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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** Before the Federal Communications Commission Washington, D.C. 20554 ) In re: ) ) Mohawk Valley Broadcasting, Inc. ) CSR-3927-A Utica, New York ) ) For Modification of Television ) Broadcast Station WFXV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: May 2, 1996 Released: May 14, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Mohawk Valley Broadcasting, Inc., licensee of Television Broadcast Station WFXV (Fox, Channel 33), Utica, New York, has filed the captioned petition seeking to include certain communities in the five following New York Counties within the Utica, New York "area of dominant influence" (or "ADI") for the purposes of the cable television mandatory signal carriage rules : Oneida, Madison, Lewis, Oswego, and Chenango. This petition is unopposed. 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 ADI areas. Section 614(h)(1)(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 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 market area change request. 7. Adding communities to a station's market area 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 market 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 market area 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 PETITIONER'S ARGUMENTS 8. WFXV is assigned to the Utica ADI, which includes both the New York Counties of Herkimer and Oswego, as well as eastern Oneida County. Western Oneida County is presently assigned to the Syracuse ADI, as are both Oswego and Madison Counties, while Lewis County is in the Watertown-Carthage, New York ADI, and Chenango County is part of the Binghamton, New York ADI. Chenango, Madison, Lewis and western Oneida Counties are all located on the western border of the Utica, New York ADI, and Oswego County is on the western border of Oneida County. WFXV's Grade B contour encompasses virtually all of Oneida County, where the station is recognized as significantly viewed both in the western and in the eastern portion of the County. Its Grade B signal covers only limited portions of Lewis, and Madison Counties and does not cover Oswego or Chenango Counties.. 9. Because of its extensive coverage of local sports and other events in the communities, WFXV states that all except three of the cable systems serving the above designated communities have carried its signal from the time the station began broadcasting in 1986 to present, and that failure to grant its petition might, therefore, result in serious subscriber disruption as available cable channel capacity becomes more scarce. WFXV adds that it is actually located in the same New York county as are the communities in the western portion of Oneida County, and that it also is within ten miles of some of them, even though those communities are now in the Syracuse ADI. WFXV notes that the specified communities in Lewis County are located within thirty miles of Utica, and that the designated communities in Madison and in Oswego Counties are within thirty-five miles of Utica. In addition, WFXV states that, unlike the Utica ADI which currently has only three commercial stations, the Syracuse ADI presently has five, including Television Broadcast Station WSYT (Fox, Channel 68). Station WFXV adds that even the United States Government has recognized that the area of Utica-Rome, New York constitutes one Standard Metropolitan Statistical Area, or SMSA. In addition, WFXV states that it chose Rome, in western Oneida County, as the location both of its studio and of its offices, because the area known as Mohawk Valley considers Utica-Rome to be one large entity, similar to the Minneapolis-St. Paul, Minnesota area. WFXV adds that this is where it concentrates its advertising efforts, since Syracuse is located sixty miles away from some of the designated communities, and the station claims that its advertisers are extremely satisfied with its efforts. According to WFXV, in 1992 it broadcast a two-hour telethon from Rome to benefit the Association for Retarded Children, which resulted in more than $10,000 being donated to the organization, and in 1991, it states that it also sponsored a putt-putt golf tournament both in Oneida and in Madison Counties for the benefit of the American Diabetes Association. In addition, the station also supports the Red Cross Disaster Relief program in these communities, and it has contributed air time to bring foreign exchange students to many of them. 10. WFXV adds that it frequently covers sports and other events from both Hamilton High School and from Colgate University, both of which are located in Madison County. In addition, the Boxing Hall of Fame is in Canastota, which is in Madison County, where WFXV broadcast a half-hour special on June 14, 1993, covering a weekend of events there. WFXV adds that many of the specified communities in Madison County are located within thirty miles of Utica. 11. Similarly, WFXV notes that all the specified communities in Lewis County are located within thirty miles of Utica, even though they are in the Watertown-Carthage ADI. If it is not granted mandatory carriage on the cable systems serving these communities, WFXV adds that their subscribers may no longer have access to the Fox programming it broadcasts since there currently is no other station carrying Fox programming in the Watertown-Carthage ADI. ANALYSIS AND DECISION 12. WFXV's petition will be granted in part and denied in part. Turning to Madison County, WFXV has demonstrated historic carriage. However, WFXV's Grade B contour only encompasses a small portion of the County, in contrast to WSYT's Grade B contour which encompasses all of Madison County. WSYT is the current local Fox affiliate which serves the Syracuse ADI. Furthermore, WSYT captures nearly four times the audience share of WFXV in the communities. While WFXV has introduced evidence which demonstrates it provides some programming to the relevant communities in Madison County along with historic carriage, this is insufficient in this instance to carry its burden of proof in view of the other factors set out above. 13. As with Madison County, WFXV has established historic carriage in western Oneida County. Unlike Madison County, however, WFXV's Grade B contour covers nearly the entirety of western Oneida County where the station also has offices, a studio, and is significantly viewed. WFXV is also licensed to Utica, which is located in Oneida County. Lastly, audience data reveals that WFXV captures a somewhat higher audience share than does WSYT, the local Syracuse ADI Fox affiliate. 14. As with the other communities, WFXV has demonstrated historic carriage with respect to all the relevant communities in Lewis County. While WFXV's Grade B contour in large part does not encompass Lewis County, neither does that of WSYT, and both stations have approximately the same audience shares in the relevant communities. However, Lewis County is significantly closer to Utica, WFXV's community of license, than to Syracuse, WSYT's community of license. Lastly, it is uncontroverted that WFXV is the only station that provides Fox programming to the relevant communities. Therefore, based on the above, we will grant WFXV's request as it applies to the communities in Lewis County. 15. We are unable to do the same for Chenango and Oswego Counties. While WFXV has demonstrated historic carriage in the communities in these Counties, this alone, in this instance, is insufficient to carry its burden of proof. The record reveals that WFXV fails to place a Grade B signal over any of the relevant communities located in these Counties. In contrast, WSYT's Grade B contour covers all the communities at issue. Further, WFXV has no reported audience shares in the communities, while WSYT has significant audience shares in both of them. Thus, we cannot find that waiver is warranted based on either the record for Chenango or for Oswego County. 16. With respect to factor three, while WFXV has not fully addressed the issue of whether or not other stations currently entitled to mandatory carriage on the specified cable systems already provide news coverage of issues of concern to them, as well as carriage or coverage of sporting or other events of interest there, we do not believe that Congress intended this factor to operate as a bar to a station's ADI claim whenever other stations also could be shown to serve the communities at issue. Rather, we believe 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 17. However, WFXV's showing on other factors is sufficient in this case to warrant grant of its request with respect to Lewis and western Oneida Counties, even absent enhancement under the third criterion. Therefore, for the purposes of determining mandatory signal carriage obligations, we shall consider the communities listed in Lewis County and western Oneida County to be part of the Utica, New York ADI with respect to WFXV. ORDERING CLAUSES 18. Accordingly, IT IS ORDERED, pursuant to 614 of the Communications Act of 1934, as amended (47 U.S.C. 534) 76.56 and 76.59 of the Commission's Rules (47 CFR 76.56 and 76.59), That the captioned petition for special relief filed June 21, 1993, by Mohawk Valley Broadcasting, Inc. IS GRANTED for the communities located in western Oneida and Lewis Counties and in all other respects IS DENIED. This change shall be in accordance with the following schedule: WFXV shall notify the cable systems in question of its carriage and channel position election (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty (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 sixty (60) days of such notification. 19. 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