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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 re: ) ) Rifkin & Associates, Inc. ) CSR-5068-A ) For Modification of the ADI of ) Television Broadcast Station WNAB, ) Nashville, Tennessee ) MEMORANDUM OPINION AND ORDER Adopted: December 19, 1997 Released: December 23, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Rifkin & Associates, Inc. ("Rifkin"), filed the above-captioned petition for special relief seeking to modify the Nashville, Tennessee Area of Dominant Influence (ADI) relative to Television Broadcast Station WNAB (Channel 58), Nashville, Tennessee. Specifically, Rifkin requests that WNAB be excluded, for purposes of the cable television mandatory broadcast signal carriage rules, from the communities served by several of its systems in the Nashville ADI. Speer Communications Holdings I Limited Partnership, licensee of WNAB has filed an opposition to this petition. No reply was filed. BACKGROUND 2. Pursuant to 614 of the Communications 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. Under the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(l)(C) 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, the 1992 Cable Act 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 in 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 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 demon- strated 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. 6. As for deletions of communities from a station's market, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 7. In adopting rules to implement this provision, the Commission indicated that requested changes 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. The rules further provide, in accordance with the requirements of the 1992 Cable Act, that a station not be deleted from carriage during the pendency of an ADI change request. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. The communities here in question are located in Warren, Giles, Van Buren, Coffee, Franklin, Moore and Lawrence Counties, Tennessee and are considered to be part of the Nashville ADI. Nashville, Tennessee, the city of license of WNAB is also a part of the same ADI. 9. In support of its petition, Rifkin argues that WNAB should be excluded from carriage on its systems because the station does not satisfy any of the four statutory market modification factors. First, Rifkin states that WNAB has never been carried on any of its systems. As such, Rifkin contends that there would be no disruption of service to its subscribers. Secondly, Rifkin maintains that WNAB does not provide local coverage to its systems due to the fact that it is geographically remote. Rifkin points out that the closest of its communities is approximately 45 miles from WNAB's city of license while the farthest is approximately 71 miles away. Moreover, Rifkin states that WNAB does not place either a Grade A or Grade B over any of the communities at issue. Rifkin argues that in recent decisions, the Cable Bureau has granted similar requests for exclusion where the distances were even less than here. Third, Rifkin states that it is unable to identify any "local programming" from WNAB which is tailored to the needs of the specific communities it serves. Rifkin indicates that a recent sampling of WNAB's weekly programming consists of "infomercials," cartoons and syndicated programming. In addition, unlike other network affiliates, Rifkin states that it appears WNAB does not offer any local news broadcasts which might possibly address the interests of its subscribers. Rifkin asserts that local programming is already being provided by the Nashville ADI stations it already carries, all of which provide local news, sports and community programming. Finally, Rifkin argues that studies conducted by Media Strategies were unable to find any ratings for WNAB in either cable or non-cable households in any of the counties herein. This lack of viewership, states Rifkin, is buttressed by the fact that WNAB is not listed in either of the communities' two local papers, the Southern Standard and the Tullahoma News. 10. In opposition, WNAB states that it went on-the-air on November 29, 1995 and carries Warner Brothers Network and local programming throughout the Nashville ADI. It argues that Rifkin's modification petition singles-out WNAB due to its status as a new UHF station whose Grade B contour is somewhat smaller than that of its larger, more well-established competitors. WNAB points to a recent decision in which the Commission denied Time Warner Cable's request to exclude WNAB from certain Tennessee communities in the Nashville ADI. WNAB states that the Commission held that the "requested exclusion . . . would allow TWI Cable to discriminate among the several stations licensed to Nashville, despite the Congressional mandate to preclude such discrimination." WNAB maintains that the same discriminatory circumstances exist here. Moreover, continues WNAB, just as in the previous case, while Rifkin claims that Nashville, WNAB's city of license, is too remote to serve its communities, it carries at least three Nashville-licensed stations on its systems. Given these similarities, WNAB argues that the Commission should apply the same conclusion as that reached in TWI Cable, Inc., supra. 11. In any event, WNAB argues that Rifkin has failed to demonstrate that the four statutory criteria for modification support exclusion of its station. As a relatively new station which has only been on-the-air since November 1995, WNAB maintains that the absence of historical carriage and the station's low viewership cannot be used to justify exclusion from its market. Moreover, it points out that the Commission has held that low ratings and lack of historic carriage are of limited relevance in petitions seeking exclusion. In addition, WNAB asserts that the fact that it does not provide Grade B coverage to the instant communities should have no bearing here. Not only did Congress reject a mileage-based market definition when it adopted the ADI market concept, but the distances in the present petition are significantly closer than those in TWI Cable, Inc., supra, where the Commission denied the deletion request. Further, WNAB states that it produces and broadcasts programming which is designed to address the interests of all residents of the Nashville ADI. Finally, WNAB argues that the carriage of other local stations by Rifkin, particularly other Nashville stations, should only be considered in light of the discrimination contemplated by Rifkin in singling out WNAB for deletion. DISCUSSION 12. We are not persuaded by the arguments raised by Rifkin herein. With regard to the first criteria which deals with historic carriage on a cable system, we note that Section 614 of the Communications Act of 1934, as amended, was adopted in part to cure past discriminatory signal carriage practices. Where, as is the case here, a petitioner seeks to delete a new station from a relevant ADI with respect to a cable system, we believe that failure to establish historic carriage should not, by itself, be given determinative weight. WNAB has only been on-the-air for two years, which may also explain why no ratings are reported for the station in any of the relevant counties. Congress could not have intended for stations to have cable communities deleted from their markets solely because their audience shares are not as significant as those of several other stations with which they compete. While other factors recited by Rifkin, such as lack of Grade B and geographic distance, do weigh in favor of their request, we find that others factors deserve more weight. Section 614(h)(1)(C) of the Act requires the Commission to include or exclude particular communities from a television station's market for the purpose of ensuring that a television station is carried in the areas which it serves and which form its economic market. Although WNAB is not carried on the McMinnville, Pulaski, Spencer, Tullahoma and Lawrenceburg cable systems, these systems do carry anywhere from four to six other stations licensed to Nashville, which is also WNAB's city of license. The carriage of other Nashville-licensed stations on Rifkin's cable systems provides strong evidence that the instant communities should be considered part of the market of stations licensed to that city. The requested exclusion of Rifkin's five systems from WNAB's market would allow Rifkin to discriminate among the several stations licensed to Nashville, despite the Congressional mandate to preclude such discrimination. Under the statutory factors, we must consider not only whether the cable system carries the station that is the subject of the market modification petition, but also whether "other stations located in the same area, have been historically carried on the cable system. . . ." 13. We have carefully considered each statutory factor in the context of the circumstances presented here. The carriage of the four to six Nashville stations on the various Rifkin cable systems, however, is an overriding factor in this case because it evidences a strong market nexus between Nashville and the instant cable communities. It also impacts heavily on the ability of WNAB to reach viewers in a portion of the Nashville ADI that at least four of the other stations serving the same community are able to reach. Accordingly, we find that Rifkin failed to demonstrate that the requested exclusion of the communities served by its cable systems from WNAB's television market will better effectuate the purposes of the must carry statutory provisions. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED, pursuant to 614(h)(1)(C) of the Communications Act of 1934, as amended, 47 U.S.C. 534, and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief (CSR-5068-A) filed on behalf of Rifkin & Associates, Inc. IS DENIED. Speer Communications Holdings I Limited Partnership shall notify Rifkin in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty (30) days of the release date of this Order. Rifkin shall come into compliance with the applicable rules within sixty (60) days of such notification. 15. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau