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Petition of Time Warner Cable Delaware and Marysville, Ohio for Modification of ADI of Television Broadcast Station WWHO

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Released: January 19, 1996

Before
the

FEDERAL COMMUNICATIONS COMMISSION


Washington, D.C. 20554




DA 95-2436


In
re:
)






)
Petition of Time Warner Cable

)
CSR-4100-A
Delaware and Marysville, Ohio

)






)
For Modification of ADI of

)
Television Broadcast Station WWHO1 )



MEMORANDUM OPINION AND ORDER





Adopted: December 7, 1995
Released: January 19, 1996


By the Cable Services Bureau:


INTRODUCTION


1..
Before the Commission is a petition for special relief filed by Time Warner Cable
("Time Warner" or "operator") seeking to modify the Columbus, Ohio "area of dominant
influence" ("ADI") and to exclude itself from the market of television broadcast station WWHO
(channel 53), Chillicothe, Ohio.2 Triplett & Associates ("Triplett"), licensee of WWHO, filed an
opposition to the petition, to which Time Warner replied.

BACKGROUND


1 WWHO's former call sign was WWAT.
2 The systems and communities affected by this petition include:

Delaware system

--Delaware
(OH 0291) and Delaware County (OH 0513);

Marysville system

--Marysville (OH 0758), Paris (OH
0759), Darby (OH 1141 and OH 1240), Dover (OH 1142), Jerome (OH 1143), Plain City (OH
1145), Milford Center (OH 1224), Union (OH 1225), Allen (OH 1556), North Lewisburg (OH
1560), Rush (OH 1563), Zane (OH 1564), Woodstock (OH 1896), Scioto (OH 1897), Ostrander
(OH 1898), Taylor (OH 1899), and Unionville Center (OH 1900).




1



2..
Pursuant to §4 of the Cable Television Consumer Protection and Competition Act
of 1992 ("1992 Cable Act")3 and implementing rules adopted by the Commission in its Report
and Order in MM Docket 92-259
,4 a commercial television broadcast station is 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.5 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.6


3..
Under the Act, however, the Commission is also directed to consider changes in
ADI areas. Section 614(h) 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;

3 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
4 Broadcast Signal Carriage Issues, 8 FCC Rcd 2965, 2976-2977 (1993).
5 Section 4 of the 1992 Cable Act specifies that a commercial broadcasting station's market shall
be determined in the manner provided in §73.3555(d)(3)(i) of the Commission's Rules, as in effect
on May 1, 1991. This section of the rules, now redesignated §73.3555(e)(3)(i), refers to Arbitron's
ADI for purposes of the broadcast multiple ownership rules. Section 76.55(e) of the Commission's
Rules provides that the ADIs to be used for purposes of the initial implementation of the mandatory
carriage rules are those published in Arbitron's 1991-1992 Television Market Guide.
6 Certain counties are divided into more than one sampling unit because of the topography
involved. Also, in certain circumstances, a station may have its home county assigned to an ADI
even though it receives less than a preponderance of the audience in that county. Refer to Arbitron's
Description of Methodology handbook for a more complete description of how counties are
allocated.




2



(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.7


5..
The Commission provided the following guidance in the Report and Order to aid
decision making in these matters:

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

7 H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992).




3


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.8


6..
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.9 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.10


MARKET FACTS AND ARGUMENTS OF THE PARTIES




7..
In its petition for special relief, Time Warner seeks to delete the above captioned
communities from WWHO's ADI so that Time Warner's Columbus area cable systems in
midwestern Ohio will not have to carry the station's signal. Time Warner believes that
mandatory carriage of WWHO does not serve the interests of localism nor do the above
referenced cable communities form part of WWHO's economic market. The operator argues that
the station fails to satisfy any of the four market factors set forth in the 1992 Cable Act and the
Commission's Rules.


8..
With regard to the historical carriage factor, the operator asserts that WWHO was
never carried in any of the above captioned communities. Petitioner then alleges that WWHO
does not provide sufficient coverage or adequate local service to the affected communities. The
operator notes that the Grade B contour map for WWHO indicates almost all of Time Warner's
cable communities served by the two headends lie completely outside the Grade B contour. In
addition, the distance from Chillicothe, Ohio, WWHO's city of license, to the Marysville
headend is 65 miles and the distance from Chillicothe to the Delaware headend is over 66 miles.
Moreover, Time Warner states that WWHO does not target any local programming to residents
served by the Marysville or Delaware systems as its programming consists primarily of reruns
and some first run syndicated programming. As for other stations serving the market, Time

8 8 FCC Rcd at 2977 (emphasis in original).
9 8 FCC Rcd at 2977 n.139. Viewership information cited herein is county data, rather than
community-specific data. However, absent evidence that such data is not fairly reflective of viewing
in the actual communities in question, we accept such data as probative in cases of this type. See,
e.g., RKZ Television, Inc.
, 8 FCC Rcd 8008, 8010 (1993).
10 47 C.F.R. §76.59.




4


Warner states that several Columbus ADI stations currently carried on the cable systems provide
an extensive amount of local programming throughout each broadcast day.11 Finally, the
operator notes that WWHO's level of viewership does not rise to the level of significantly
viewed status in any of the counties affected by this petition and that the station's viewership is
too low to be measured by Nielsen. According to Time Warner, WWHO does not generate
enough viewer interest in Time Warner's cable communities to be considered local for must-
carry purposes under the Commission's standards.


9..
In its opposition, Triplett explains that WWHO is a relatively new television
station signing on-the-air in August of 1987. The station recently emerged from bankruptcy and
is in the process of being sold to a new owner who is determined to upgrade it. Triplett asserts
that it is only through expanded service into the Columbus metropolitan area, including viewers
in and around Marysville and Delaware, that WWHO can expect to survive as the only television
station in Chillicothe. Moreover 75% of homes within the station's Grade B contour are in the
Columbus metropolitan area and of those homes, 50% subscribe to cable. WWHO cannot
survive without access to those homes thus a grant of Time Warner's petition would have a
substantial negative financial impact on WWHO.


10..
Triplett also argues that the deletion of WWHO from the cable communities
would undercut the goal of the Commission's action adding Chillicothe to the Columbus, Ohio
designation in §76.51 of the Commission's Rules.12 Triplett asserts that the addition of
Chillicothe to the Columbus market "was clearly intended to encourage carriage of WWHO in
the Columbus metro area" and to remedy the historical copyright problem which kept WWHO
off many Columbus area cable systems. Triplett also contends that deletion of WWHO would be
contrary to congressional intent in this area. It explains that it conceived the amendment to the
House bill (H.R. 4850) which required the Commission to update §76.51, drafted the proposed
amendment, and sent it the Rep. Robert McEwan, who represents the Chillicothe congressional
district, who then submitted the amendment for a vote.13 Therefore, the deletion of the
communities sought by Time Warner would not only be contrary to Congress' general intent in
enacting must carry and requiring an update of §76.51, but is contrary to Congress' specific
intent with regard to Chillicothe.

11 Time Warner notes that the systems carry the following local stations: WCMH-TV (NBC,
Channel 4), WSYX (ABC, Channel 6), WBNS-TV (CBS, Channel 10), WTTE (Fox, Channel 28),
and WOSU-TV (ETV, Channel 34), all Columbus, Ohio; WSFJ (Ind., Channel 51), Newark, Ohio;
and WMFD (Ind., Channel 68), Mansfield, Ohio. The operator states that, of these stations,
WCMH-TV, WBNS-TV, and WSYX provide significant local interest programming to the
communities served by the Delaware and Marysville systems.
12 See MM Docket 92-259, 8 FCC Rcd at 2977-2978.
13 The amendment was approved and was incorporated into the final bill which became the 1992
Cable Act.




5




11..
As for the four market modification factors contained in the 1992 Cable Act,
Triplett explains that the major reason for historical lack of carriage was the fact that such
carriage would, until the recent addition of Chillicothe to the Columbus market, trigger distant
signal copyright liability, and not because the station did not serve the cable communities at
issue. In fact, Time Warner recently added WWHO to its system serving the city of Columbus.
Triplett adds that while the operator asserts that WWHO fails to present any programming of
interest to the Delaware and Marysville communities, the addition of the station in Columbus,
which is approximately 20 miles from these communities, suggests otherwise. Furthermore,
Triplett notes that WWHO has the exclusive rights within the Columbus ADI to air 21 Cleveland
Cavaliers basketball games. Deletion of the station from these designated communities would
deprive viewers of access to these games.


12..
In its reply, Time Warner states that WWHO is not immune from petitions to
exclude communities from its market because if one follows Triplett's logic, the market
modification provision of the 1992 Cable Act would be meaningless as it could never be used to
exclude communities from a television station's market. Moreover, claims Time Warner, the
market list contained in §76.51 of the Commission's Rules is a copyright-based rule and does not
pertain to signal carriage. Therefore, the fact that the Commission has created the Columbus-
Chillicothe hyphenated market for copyright purposes has no bearing whatsoever on a market
modification proceeding pursuant to the 1992 Cable Act. Time Warner argues that the
Commission is bound by statute to consider the merits of any such bona fide modification
petition.


13..
As for the four factors, Time Warner asserts that Triplett's explanation for lack of
historical carriage is purely speculative and is unsupported by any evidence. The operator goes
further and states that WWHO's former distant copyright status is further evidence that the
station is too far from the cable communities to be considered local. The operator also explains
that the addition of WWHO to the Columbus cable system has nothing to do with the above
captioned communities because Columbus is a separate system much closer to Chillicothe, and
20 miles to the south of Marysville and Delaware. With regard to WWHO's exclusive broadcast
of Cleveland Cavaliers games, Time Warner argues that "21 basketball games out of many
thousands of hours of programming over a season is de minimis, and certainly not enough of a
showing to meet the statutory factor requiring a substantial amount of local interest
programming." The operator also notes that its Delaware system carries a number of Cavaliers
games on SportsChannel of Ohio.




6






ANALYSIS AND DECISION




14.
We will deny Time Warner's petition. At the outset, we note that the Commission
has specifically considered the issue of the scope of the Columbus - Chillicothe, Ohio market in
the context of a market hyphenation rulemaking proceeding.14 Market hyphenation proceedings,
undertaken pursuant to Section 614(f) of the 1992 Cable Act, and ADI market modification
proceedings, undertaken pursuant to Section 614(h) of the 1992 Cable Act, although not
identical in purpose nevertheless involve a considerable overlap of objectives and decisional
criteria and the Commission's decision to join markets takes into consideration the economic ties
between the communities to be hyphenated and the subject station. Each explores the
competitive relationships between television stations in an area and seeks to define the shape of
the local market in which stations compete for programming, advertisers, and viewers. The
market hyphenation process and the ADI market modification provision are similar in that each
may be used to lower the barriers to cable carriage.15 The hyphenation process, the Commission
has stated, was adopted "to assure that stations will have access to cable subscribers in the
market and cable subscribers will have access to all the stations in the market."16 The
hyphenation of Columbus and Chillicothe reflects the Commission's judgment that stations in the
two communities are competitive, at least in the core communities of the combined market area
and while not determinative of the outcome of this ADI proceeding, the hyphenation decision is
suggestive evidence of the Commission's belief, notwithstanding the distances between
Columbus and Chillicothe, that stations from both communities are local to significant
overlapping portions of the same market area. For these reasons, we reject Time Warner's claim
that market hyphenations have no bearing in our decision to modify ADI television markets. As
we recently stated, "Redesignation of the market reflects in the rules the general competitive
situation that in fact exists in the local area, allowing the application of the more specific rules,
including those relating to 'area of dominant influence' changes, to be addressed from the
perspective of a properly defined market area."17


15.
Focusing on the specific factors referenced in the statute, we also conclude that
Time Warner's arguments do not sufficiently support a grant of its request. With respect to the
question of historical carriage patterns, we believe that the station's distant signal status for

14 See MM Docket 92-259, 8 FCC Rcd at 2977-2978.
15 We note that while the grant of a market hyphenation weighs heavily in favor of denying a
request to exclude communities under the market modification process, the hyphenation, in and of
itself, is not controlling in every circumstance of the type exemplified in this case.
16 Cable Television Report and Order, 36 FCC 2d 143, 176 (1973).
17 Report and Order in MM Docket 93-304, 10 FCC Rcd 9298 at ¶9 (CSB, 1995).




7


copyright purposes prior to the market hyphenation decision effectively precluded carriage on
Time Warner's cable systems as well as other area cable systems. For this reason, the station
never had the opportunity to build a record of historical carriage, and therefore this statutory
factor does not weigh in favor of the requested deletion.



16.
With respect to local service, we note that the communities involved are within
the Grade B contour of WWHO or are on the fringe of the station's Grade B contour,
approximately 35 to 55 miles from the station's transmitter, and thus within the typical service
and market area of a television station.18 Moreover, we do not believe that Time Warner's
carriage of other local stations is sufficient to justify exclusion of its system from the above
referenced communities.19 The evidence presented by petitioner with respect to WWHO's
audience ratings is of no assistance in determining the proper scope of the market area involved
because it consists of data for the 19 county market as a whole which, if relied on in the manner
suggested, would leave WWHO with no market at all and hence no cable carriage rights at any
location. It provides no information to distinguish the specific communities involved here from
the rest of the market or to prove that these communities are outside of WWHO's market area.20
In sum, Time Warner has not sufficiently demonstrated why it is necessary to remove itself from
its own ADI, vis-a-vis WWHO, yet remain in the same market with regard to all of the station's
competitors. Thus, we find that Time Warner's Petition is inconsistent with Congressional intent
which clearly states that the market modification policy was not provided as a means for cable
systems to avoid their must carry obligations.21

18 Furthermore, while only a limited amount of programming is involved, we find that WWHO's
broadcasts of Cavaliers basketball games in the market on an exclusive basis demonstrates, in part,
local service to the community and is entitled to some weight under the "carriage or coverage of
sporting and other events" factor set forth in Section 614(h)((1)(C)(ii)(III).
19 That other ADI licensees do in fact provide coverage of and service to the communities in
question is not to the contrary. We do not believe that Congress intended this criterion to operate as
a bar to a station's ADI claim whenever other stations could also be shown to serve the communities
at issue, but rather that this criterion was intended to enhance a station's claim where it could be
shown that other stations do not serve the communities at issue.
20 The same would be true with respect to the "significantly viewed" data presented. It should
further be noted that one of the counties referenced by Time Warner in this showing -- Champaign
County -- is outside of the relevant ADI.
21 H.R. Rep. No. 102-628, 102d Cong., 2nd Sess. at 97.




8





ORDERING

CLAUSES




17.
Accordingly, IT IS ORDERED, pursuant to §614(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-4100-A) filed September 3, 1993, by Time Warner
Cable IS DENIED. Triplett & Associates shall notify Time Warner in writing of its carriage and
channel position elections, (§§76.56, 76.57, 76.64(f) of the Commission's Rules), within thirty
(30) days of the release date of this Memorandum Opinion and Order. Time Warner shall come
into compliance with the applicable rules within 60 days of such notification.


18.
This action is taken pursuant to authority delegated by §0.321 of the
Commission's Rules, 47 C.F.R. §0.321.


FEDERAL
COMMUNICATIONS
COMMISSION




William
H.
Johnson
Deputy
Chief,
Cable
Services
Bureau




9

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