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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In Matter of Petition of ) ) TCI of Indiana, Inc. )CSR 4828-A ) For Modification of Market of ) Station WTJC-TV, Springfield, Ohio ) ) In re Complaint of ) ) Paxson Dayton License, Inc. ) against TCI of Indiana, Inc.)CSR 4810-M ) Request for Carriage of WTJC-TV, Springfield, Ohio ) MEMORANDUM OPINION AND ORDER Adopted: December 17, 1996Released: December 20, 1996 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1.Paxson Dayton License, Inc. ("Paxson"), licensee of WTJC-TV, Springfield, Ohio, filed a complaint pursuant to Section 614 of the Communications Act, as amended, 47 U.S.C.  534, and Sections 76.7 and 76.61(a) of the Commission's Rules, 47 C.F.R. 76.7 & 76.61(a), claiming entitlement to mandatory carriage of WTJC-TV on the cable system of TCI of Indiana, Inc. ("TCII"), in Centerville, Richmond, Spring Grove, and Wayne County, Indiana ("the Richmond Communities"). TCII filed an Opposition to the complaint, and Paxson filed a Reply. In response to the petition, TCII filed a petition pursuant to Sections 76.7(a) and 76.59(a) of the Commission's rules requesting that the Richmond Communities served by its cable system be excluded from the television market of WTJC-TV. Paxson filed an opposition to the petition, and TCII filed a reply. II. BACKGROUND 2.Pursuant to Section 614 of the Communications Act of 1934, as amended by the Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence" or ADI as defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the- air and cable television viewing are included. 3.The Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) further provides that the Commission may: with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section. In considering such requests, Section 614(h)(1)(C)(ii) provides that: the Commission shall afford particular attention to the value of localism by taking into account such factors as -- (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; (II) whether the television station provides coverage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community. 4.The legislative history of this provision indicates that: where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular communities from a television station's market consistent with Congress' objective to ensure that television stations be carried in the areas which they serve and which form their economic market. * * * * * [This subsection] establishes certain criteria which the Commission shall consider in acting on requests to modify the geographic area in which stations have signal carriage rights. These factors are not intended to be exclusive, but may be used to demonstrate that a community is part of a particular station's market. 5.The Commission provided guidance in its Report and Order in MM Docket 92-259, supra, to aid decision making in these matters, as follows: For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel line-up (e.g., rate cards) for a period of years. To show that the station provides coverage or other local service to the cable community (factor 2), parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or other programming of interest to the community could be demonstrated by program logs or other descriptions of local program offerings. The final factor concerns viewing patterns in the cable community in cable and noncable homes. Audience data clearly provide appropriate evidence about this factor. In this regard, we note that surveys such as those used to demonstrate significantly viewed status could be useful. However, since this factor requires us to evaluate viewing on a community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. In adopting rules to implement this provision, the Commission indicated that changes requested should be considered on a community-by-community basis rather than on a county-by-county basis and that they should be treated as specific to particular stations rather than applicable in common to all stations in the market. III. MARKET FACTS AND ARGUMENT 6.After TCII refused a request from Paxson for carriage of WTJC-TV on TCII's cable system serving the Richmond Communities, Paxson filed the instant must-carry complaint. Concurrently with its filing of an opposition to the complaint, TCII filed the instant television market modification petition. The petition seeks an order pursuant to the provisions of Section 614(h)(1)(C) of the Act deleting the Richmond Communities from the television market of WTJC-TV, a commercial television station licensed to Springfield, Ohio. A. The Complaint 7.Paxson states in the complaint that on June 12, 1996, it requested carriage of WTJC- TV on TCII's cable system in the Richmond Communities. Paxson asserts that TCII has failed to provide any valid basis for denying carriage of WTJC-TV. Paxson further asserts that WTJC-TV is eligible for must carry on TCII's cable system, because WTJC-TV is located within the same ADI as the Richmond Communities, i.e., the Dayton, Ohio ADI, and because it has committed to provide a good quality signal to the headend of TCII's cable system by means of a microwave radio link. Paxson asserts therefore that TCII has failed to meet its must carry obligations with respect to WTJC-TV. TCII asserts in opposition that the complaint should be denied because WTJC-TV fails to deliver a signal of sufficient strength to its cable system principal headend. TCII asserts further that the complaint should be dismissed as premature, until WTJC-TV overcomes the signal delivery problem by additional measures. B. The Market Modification Petition 8.TCII asserts in the market modification petition that WTJC-TV has never been carried on its cable system, that WTJC-TV is located geographically distant (approximately 60 miles) from WTJC-TV, and that WTJC-TV fails to provide a Grade B signal over any portion of the Richmond Communities. TCII also asserts that WTJC-TV fails to broadcast any programming of specific local interest to the Richmond Communities, and fails to achieve any measurable viewing audience in the Richmond Communities. TCII asserts further that its cable system carries numerous other television stations that provide coverage of news and issues of concern to the Richmond Communities served by its cable system. TCII points out that local television viewing guides circulated in the Richmond Communities contain no listing for WTJC-TV. For those reasons, TCII asserts that WTJC-TV fails to satisfy the criteria established by Congress in Section 614(h)(1)(C)(ii) as a "local" station for carriage on its cable system. 9.TCII argues that, where a television station is separated by large distances from a community served by a cable system and fails to provide local service to that community, settled precedent requires that the distant communities be deleted from the station's market for must-carry purposes. It also contends that a station's use of a microwave radio link to extend its signal to a cable system for the purpose of overcoming the absence of off-air pick-up capability may not serve to convert a distant station into a "local" station for market modification analysis purposes. TCII argues that the factual market information it presented makes a compelling case under criteria established by Congress for redrawing WTJC-TV's market boundaries congruous with market realities. 10.Paxson, in response, argues that WTJC-TV's market should be not modified. Addressing the first of four market modification factors listed in Section 614(h)(1)(C)(ii) (historic carriage), Paxson admits that WTJC-TV has not been carried on TCII's cable system. However, Paxson asserts that lack of carriage of WTJC-TV should not be used as a basis for granting the relief requested by TCII. Regarding the second factor (coverage and local service), Paxson does not dispute that station WTJC-TV is located approximately 60 miles from the Richmond Communities and nearly at the opposite end of the Dayton ADI from the Richmond Communities. However, Paxson argues that geographical distance should not be considered as a factor supporting grant of the petition. 11.With regard to the third factor (programming to cover issues and events of interest to the community), Paxson states that WTJC-TV's programming format includes religious, public affairs, and children's programming, as well as program-length presentations of business and community organizations. Paxson asserts that this program format provides a valuable and effective advertising platform for local merchants and businesses, and provides a means for business organizations "to provide information to residents throughout the Dayton ADI." Paxson argues that TCII should not receive credit for carriage of other stations' programming as an alternative to that of WTJC-TV. Paxson notes that three of the stations carried by TCII are not located in the Dayton ADI as are WTJC-TV and the Richmond Communities, and that all three of those stations are located at equal or greater distance from the Richmond Communities than is WTJC-TV. Paxson argues in this connection that exclusion of the cable system from a station's market area is not justified by the fact that benefits are provided by other stations carried on the cable system. The Commission, Paxson contends, has rejected TCII's argument that absence of WTJC-TV viewing in the Richmond Communities must be weighed in favor of market modification, on the grounds that the Commission deems "specialty" stations, such as WTJC-TV, to be capable of offering desirable diversity of programming, although they attract typically limited audiences. 12.In reply, TCII reiterates that WTJC-TV's Grade B signal does not reach the Richmond Communities, a fact which distinguishes this case from Time Warner Cable, 10 FCC Rcd 936, (Cable Serv. Bur. 1995). TCII asserts that Paxson offered no evidence showing that WTJC-TV provides any programming directed toward matters of interest in the Richmond Communities. TCII asserts that, while WTJC-TV's programming format includes religious, public affairs, and children's programming, as well as program-length presentations of business and community organizations, Paxson presented nothing to show that such programming contained any content directed toward the Richmond Communities in particular. TCII argues that WTJC-TV fails to serve the Richmond Communities and therefore should not be afforded carriage on its cable system serving the Richmond Communities. IV. DISCUSSION AND ANALYSIS 13.WTJC-TV is a UHF commercial television station licensed to operate on Channel 26 at Springfield, Ohio. It is located in the eastern portion of the Dayton, Ohio ADI, approximately 60 miles from the Richmond Communities. TCII provides cable services in the Richmond Communities, which are located in Indiana in the western portion of the Dayton ADI. WTJC-TV does not deliver a Grade B or better signal over any portion of the Richmond Communities. Neverthless, on June 12, 1996, Paxson requested carriage of WTJC-TV on TCII's cable system serving the Richmond Communities. After TCII declined to provide carriage of WTJC-TV, Paxson filed the instant must-carry complaint. In response, TCII filed the instant petition for relief on September 13, 1996 concurrently with the filing of an opposition to the complaint. A. The Petition for Relief 14.We address first the merits of TCII's petition to exclude the Richmond Communities served by its cable system from the television market of WTJC-TV for must-carry purposes, because doing so will facilitate our consideration of these two interrelated matters. As noted above, Congress and the Commission provided guidance for our resolution of this request. First we examine the history of carriage of WTJC-TV on TCII's cable system. 1. Historic Signal Carriage 15.Paxson admits that WTJC-TV has not historically been carried on TCII's cable system at issue here. However, Paxson argues that absence of carriage should not be considered significant in this case. We reject that argument. WTJC-TV has been on the air since the 1980's. In that time it has never been carried on TCII's cable systems serving the relevant communities. The Congress intended for a station's history of carriage prior to adoption of the 1992 Act to be given weight in the ADI modification process. The fact that WTJC-TV has not historically been carried on TCII's cable system serving the Communities is probative and, while not decisional, will be taken into consideration as a factor in favor of the requested market modification. 2. Station Audience in Communities Served by Cable System 16.Not only has WTJC-TV not been carried on TCII's cable system, the available audience viewing data shows no viewing of WTJC-TV in any of the communities served by TCII's cable system. In fact, the Nielson Station Index does not include WTJC-TV in the listing of stations serving that market. The absence of viewing of WTJC-TV in TCII's service area is understandable, because WTJC-TV's Grade B contour does not come close to reaching the Richmond Communities, and WTJC-TV and the relevant communities are some 60 miles apart. The absence of any viewing of WTJC-TV in the Communities served by TCII's cable system also lends strong support for the requested market modification request. 3. Programming Specifically For Communities Served by Cable System 17.Paxson contends that WTJC-TV should be credited for providing coverage of issues and events of interest and concern to the Richmond Communities by its programming that includes religious, public affairs, and children's programming, as well as program-length presentations of business and community organizations. We reject this contention, because Paxson presented nothing to show that such programming contained any content directed other than toward the Dayton ADI generally. Nothing demonstrates that WTJC-TV's programming is directed toward the Richmond Communities in particular. The program format described by Paxson provides WTJC-TV with no credit for programming specifically for the communities served by TCII. WTJC-TV's failure to provide programming designed to serve the Richmond Communities, in particular, provides additional weight toward granting this market modification petition. 4. Station Coverage of Communities Served by Cable System 18.As noted earlier, WTJC-TV is located approximately 60 miles from the Richmond Communities and does not provide a Grade B contour signal over any of the relevant communities. Paxson stated that it is committed to providing a quality signal to TCII's principal headend by means of a microwave radio link. Where, as here, the other statutory factors so overwhelmingly demonstrate that the relevant communities are not a part of WTJC-TV's market, we do not believe that WTJC-TV's presence as a "local" station is established by Paxson's proposed use of a microwave radio transmission link. B. Summary 19.Section 614(h)(1)(C) of the Communications Act allows the Commission to include or exclude particular communities from a television station's market for the purpose of insuring that a television is carried in the areas which it serves and which form its economic market. We believe that the requested exclusion of the Richmond Communities served by TCII's cable system from WTJC-TV's television market will better effectuate the purposes of the must-carry statutory provisions. In reaching this conclusion, we have considered the statutory factors under which the value of WTJC-TV to Richmond Community localism is to be tested and found it to be lacking. Local television guides in the Richmond, Indiana area contain no listing for WTJC-TV. WTJC-TV has no viewing presence in the Richmond Communities, which are located approximately 60 miles from WTJC-TV. The station has never been carried on the cable system in question, offers no programming specifically for the relevant communities, and provides no over-the air signal coverage of the Richmond Communities. For the foregoing reasons, we find that grant of TCI's petition is in the public interest. C. The Must-Carry Complaint. 20.Our decision to grant TCII's market modification petition is dispositive of Paxson's must-carry complaint, and accordingly we deny that complaint. First, as a result of the market modification order we issue herein, the Richmond Communities served by TCII's cable system are excluded from WTJC-TV's television market, within the meaning of Section 614(h)(1)C) of the Communications Act. Therefore, WTJC-TV no longer qualifies as a "local commercial television station" for must carry purposes with respect to TCII's cable system. That decision was based on our findings that WTJC-TV is located geographically approximately 60 miles from the relevant communities, provides no over-the-air signal coverage of the those communities, has no history of carriage in the communities at issue, and offers no programming specifically for those communities. Based on those considerations, which are probative under the factors set forth in Section 614(h)(1)(C) of the Communications Act, we concluded above that the exclusion of these particular communities from WTJC-TV's market for must carry purposes served the public interest. 21.Nothing presented in Paxson's complaint requires us to reach a different result here, or supports a finding that WTJC-TV is a "local" station within the meaning of Section 614(h)(1) entitling WTJC-TV to carriage on TCII's cable system serving the Richmond Communities. Paxson presented no factual information or data in the complaint that was not considered in connection with TCII's petition. Further, we reiterate that Paxson's proposed delivery of WTJC-TV's signal to TCII's headend by microwave radio link would not establish WTJC-TV's presence as a local station in the relevant communities. VI. ORDER 22.Accordingly, IT IS ORDERED, pursuant to 614(h)(1)(C) of the Communications Act of 1934, as amended, 47 U.S.C. 534(h)(1)(C), and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief filed on September 13, 1996 by TCI of Indiana, Inc. in File No. CSR-4828-A IS GRANTED. 23.IT IS FURTHER ORDERED, pursuant to Section 614 of the Communications Act, that the complaint filed August 14, 1996 in File No. CSR 4810-M by Paxson Dayton License, Inc. IS DENIED. 24.This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau