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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//MO&O, WISC-TV, grant of ADI Modification Petition, DA 95-2369//$ $/76.7 Special relief and must-carry complaint procedures/$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ Before the Federal Communications Commission Washington DC 20554 DA 95-2369 In re: ) ) TELEVISION WISCONSIN, INC. ) CSR-3904-A ) For Modification of Station ) WISC-TV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1995 Released: December 4, 1995 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Television Wisconsin, Inc. ["WISC-TV"], licensee of television broadcast station WISC-TV (CBS, channel 3), Madison, Wisconsin, has filed the captioned petition for special relief seeking to include the communities of Bagley, Bloomington, Blue River, Boscobel, Cassville, Cuba City, Dickeyville, Fennimore, Hazel Green, Lancaster, Montfort, Muscoda, Patch Grove, Platteville, Platteville Township, Potosi, Tennyson, and Woodman, Wisconsin, and surrounding unincorporated areas of Grant County, Wisconsin within WISC- TV's Madison, Wisconsin "area of dominant influence" for purposes of the cable television mandatory broadcast signal carriage rules. WISC-TV's petition is opposed by AFLAC Broadcast Partners ["KWWL"], licensee of television broadcast station KWWL (NBC, channel 7), Waterloo, Iowa, and WISC-TV has replied. BACKGRO UND 2. Pursuant to 4 of the Cable 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. Under the Act, however, the Commission is also directed to consider changes in ADI areas. Section 4 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 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 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. 6. 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. The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage during the pendency of an ADI change request. 7. Adding communities to a station's ADI generally entitles that station to insist on cable carriage in those communities. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of its activated channel capacity to compliance with the mandatory signal carriage obligations, 2) the station is responsible for delivering a good quality signal to the principal headend of the system, 3) indemnification may be required for any increase in copyright liability resulting from carriage, and 4) the system operator is not required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried or the signals of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry the signal of only a single affiliate of a broadcast network, it is obliged to carry the affiliate from within the ADI whose city of license is closest to the principal headend of the cable system. Accordingly, based on the specific circumstances involved, the addition of communities to a station's ADI may guarantee it cable carriage and specific channel position rights; simply provide the system operator with an expanded list of must-carry signals from which to choose, i.e., when it has used up its channel capacity mandated for broadcast signals carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. The communities in question are located within Grant County, Wisconsin, which is part of the Cedar Rapids-Waterloo-Dubuque, Iowa ADI, abutting the Madison ADI to the west. Dubuque, Iowa lies just across the Mississippi River from Grant County. Cedar Rapids is located some 60 miles further to the southwest, and Waterloo is located some 85 miles further to the west. Madison, Wisconsin is located some 70 miles northeast of the center of Grant County. 9. In support of its petition, WISC-TV states that it has been carried on each of the cable systems serving the communities in question since the systems' inceptions. WISC- TV also states that it places a Grade B signal over "most of Grant County . . . cover[ing] all of the communities in question." The station maintains that it provides daily live newscasts that address many issues of concern to residents of Grant County, and that it also broadcasts severe weather and school closing bulletins for Grant County. WISC-TV notes that its reporters make daily beat calls to Grant County law enforcement agencies, and that the station has weather spotters in Boscobel, Muscoda, and Platteville that are contacted twice daily. WISC-TV claims that it is the "only commercial television in Wisconsin with a full time state capital reporter," and that the station also provides regular coverage of the University of Wisconsin Regents. No Iowa station, asserts WISC-TV provides comparable coverage. In addition, WISC-TV submits its own promotional data and Arbitron data for all households in Grant County, which WISC-TV contends demonstrates that the station has substantial viewing in the county. 10. In opposition to WISC-TV, KWWL argues that it too has been carried on the cable systems in question since their inceptions, places a Grade B signal over most of Grant County, and is significantly viewed in Grant County. KWWL also states that, contrary to WISC-TV's assertion of full encompassment, the communities of Bagley, Bloomington, Cassville, Montfort, Patch Grove, and Woodman lie beyond WISC-TV's Grade B contour. KWWL further states that its Dubuque news bureau covers Grant County on a regular basis, and that Grant County is significantly closer to Dubuque than to Madison. KWWL specifically cites news stories and date book announcements of events in Fennimore, Jamestown, Platteville, and Potosi that it covered in 1993. KWWL also notes that its weather coverage is more likely to give Grant County residents advance warning of severe weather, as KWWL's weather spotters in Dubuque are located west of Grant County---from which direction weather patterns approach---unlike Madison's location to the east. KWWL contends that 1993 Nielsen data demonstrate that it and the Cedar Rapids-Waterloo-Dubuque ADI stations are more popular in Grant County than are WISC-TV and Madison stations, and that affording WISC-TV carriage rights in Grant County could disrupt existing viewing patterns. 11. In reply, WISC-TV states for "clarification" that the communities of Bloomington, Cassville, Montfort, Patch Grove, and Woodman lie beyond the station's Grade B contour. WISC-TV argues that KWWL's service to Grant County is clearly inferior to that of WISC-TV, and that KWWL's submitted Nielsen data shows that Nielsen includes Grant County within WISC-TV's primary coverage area. In fact, states WISC-TV, this Nielsen data shows that WISC-TV's viewing shares during its 5:00 pm and 10:00 pm newscasts (19 and 23, respectively) are higher than those for KWWL at the same time (17 and 14, respectively). WISC-TV characterizes KWWL's claims of viewer disruption as speculative, and urges grant of the instant petition to protect localism in Grant County. ANALYSIS AND DECISION 12. We shall grant WISC-TV's petition. WISC-TV clearly satisfies the first and fourth factors in each of the eighteen communities and surrounding unincorporated areas in question, that of historic carriage and viewership.. With regard to the second factor, that of coverage or other local service to the communities, WISC-TV's Grade B contour encompasses all the communities in question other than Bagley, Bloomington, Cassville, Patch Grove, and Woodman. We have previously stated that Grade B coverage is sufficient to demonstrate that a station satisfies this factor. WISC-TV also notes programming specific to certain of the communities it seeks to include within its ADI. 13. Turning to the third statutory factor, WISC-TV concedes that other stations entitled to mandatory carriage in the communities in question serve the communities, but questions the quality of this service. Nevertheless, we do not believe that Congress intended the third 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. Rather, we believe 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. Under such circumstances, a denial of carriage rights to the claiming station could deprive cable viewers of any broadcast signals that might provide programming geared to their communities. In this case, as WISC-TV concedes that other stations entitled to carriage serve the communities in question, this enhancement factor would not appear to be applicable. We further note, with respect to KWWL's claim of subscriber disruption, that this claim is speculative and unsubstantiated. 14. Finally, with respect to the fourth factor, it has been established that WISC-TV garners substantial viewership in Grant County. Arbitron data show that WISC-TV achieves a total share in noncable homes in Grant County of 12, and a net weekly circulation of 41. Though this does not exceed the viewership levels of most of the Cedar Rapids-Waterloo- Dubuque ADI commercial stations -- KWWL achieves a 25 total share and a 66 net weekly circulation; KCRG-TV achieves a 16 total share and a 61 net weekly circulation; KDUB-TV achieves an 8 total share and a 40 net weekly circulation; and KGAN achieves a 15 total share and a 51 net weekly circulation -- it is substantial and comparable. In cable homes, however, this situation is reversed: WISC-TV's viewership exceeds that of each Cedar Rapids- Waterloo-Dubuque ADI licensee. WISC-TV achieves an 18 total share and a 74 net weekly circulation, while KWWL achieves a 9 total share and a 64 net weekly circulation, and the other stations achieve even lower ratings. Taken as a whole, WISC-TV's viewership in Grant County satisfies the fourth statutory factor. 15. Accordingly, for purposes of determining mandatory signal carriage obligations, we shall consider the communities of Bagley, Bloomington, Blue River, Boscobel, Cassville, Cuba City, Dickeyville, Fennimore, Hazel Green, Lancaster, Montfort, Muscoda, Patch Grove, Platteville, Platteville Township, Potosi, Tennyson, and Woodman, Wisconsin, and surrounding unincorporated areas of Grant County, Wisconsin, to be part of the Madison, Wisconsin ADI with respect to WISC-TV, as well as within the Cedar Rapids-Waterloo- Dubuque, Iowa ADI. In making this determination we have taken into consideration the fact that five of the relevant communities lie outside of WISC-TV's Grade B contour. Nevertheless, based upon the totality of circumstance present here we believe it appropriate to grant the petition with respect to all the communities at issue. This determination is subject to all generally applicable limitations on signal carriage rights, including copyright liability, signal quality, channel capacity, and program duplication. See paragraph 7, supra. ORDER 16. Accordingly, IT IS ORDERED, pursuant to 614 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 captioned petition for special relief filed June 11, 1993 by Television Wisconsin, Inc. IS GRANTED. This change shall be effective in accordance with the following schedule: WISC-TV shall notify the affected cable systems in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within 30 days of the release date of this Memorandum Opinion and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of the above notice. 17. 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