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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 the Matter of: ) ) CSR-5154-A Bay Television, Inc., Licensee ) for WTTA-TV, St. Petersburg, Florida) ) For Modification of the ADI of ) WTTA-TV, St. Petersburg, Florida) MEMORANDUM OPINION AND ORDER Adopted: April 3, 1998 Released: April 9, 1998 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Bay Television, Inc. ("Bay Television"), licensee for WTTA-TV (the "Station"), Channel 38, St. Petersburg, Florida, filed a petition for special relief to modify the Station's area of dominant influence ("ADI") to include the communities of Sarasota, Florida, Longkey, Florida, and the unincorporated areas of Sarasota County, Florida (the "Communities") that are served by the cable systems of Comcast Cablevision of West Florida, Inc. ("Comcast"). Comcast filed an opposition, and Bay Television filed a reply. II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by 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. 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 non-cable 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 non-cable 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 non- cable homes, and significantly viewed surveys typically measure viewing only in non-cable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6. In adopting rules to implement Section 614, 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 7. In its petition, Bay Television states that the Station began broadcast operations on June 21, 1991 and was carried on the Comcast system serving the Communities from 1993 until December 31, 1994 and again, pursuant to a retransmission agreement, from July 1, 1995 until November 1, 1996 at which time Comcast stopped carrying the Station when they had a disagreement over distant signal copyright liability. Bay Television also states that seven other stations in its area of St. Petersburg-Tampa are carried by the Comcast system -- WFLA (NBC affiliate, Tampa), WFTS (ABC Affiliate, Tampa), WTOG (UPN affiliate, St. Petersburg), WTVT (Fox affiliate, Tampa), and WUSF and WEDU (public/education channels carrying PBS programming, Tampa and St. Petersburg) -- which Bay Television asserts shows the social and economic unity of the region. 8. Bay Television asserts that Sarasota, Tampa and St. Petersburg are geographically, socially and economically one region, as Nielsen recognized when it placed the three cities together in the Tampa-St. Petersburg-Sarasota DMA, that the Station falls within that DMA, and that the distance between St. Petersburg and Sarasota is 31.4 miles. Bay Television states that the Commission has concluded that Nielsen DMAs more accurately reflect the areas served by television stations than do the ADIs that will over time become outdated because Arbitron abandoned the television research business. In addition, Bay Television argues that the Commission recognizes that the Station is part of the Sarasota television market for other purposes in that the Station pays regulatory fees to the Commission based on the inclusion of Sarasota County viewers within the Station's viewing area. 9. As further evidence that Sarasota is part of its market, Bay Television presents a statement by the Station's sales manager who asserts that the loss of the Station's carriage on Comcast's Sarasota system has depressed the Station's ratings and has accordingly depressed the Station's advertising and revenue flow. According to the manager, regional and local automotive dealers have shunned the Station because it is not carried on the Comcast system. Even though the Station places a Grade B contour comparable to that of its competitors, Bay Television argues that the Station has been placed at a competitive disadvantage in its market with regard to the local stations that Comcast carries because the cable penetration rate for Sarasota County is 82%, and advertisers will not advertise with a station that is not carried on the cable system. Furthermore, although the Station pays regulatory fees to the Commission for Sarasota County households, these households may not have any Station viewers because of the deep cable penetration rate for the county. 10. Regarding service to the communities, the Station asserts that it carries programs of local interest, including programs with local content and programs that no other stations in the area carry. The Station is the only local television station that carries the games of the Florida Tampa Bay Lightning professional hockey team and the Orlando Magic professional basketball team. The Station also carries shows of local interest such as the SEC football package, including games of the University of Florida, a show featuring the University of Florida football coach Steve Spurrier, and the locally produced half-hour show for motorcycle enthusiasts entitled "Born to Ride." In terms of exclusive programming, the Station is the only local station to carry the Fox Children's Network programming, the children's program "Bananas in Pajamas," "The All New Captain Kangaroo," a program regarding computers and the internet entitled "Mark's Wired World," a science literacy program for children from 6 to 11 years of age entitled "Saban's Why Why Family," and first run series "Tarzan," "Pacific Drive," "LAPD," "The Dating Game," and "The Newlywed Game." The Station is also the exclusive broadcaster for "Who's the Boss," "Bonanza," "Rescue 911," "Make Room for Daddy," and "Ozzie and Harriet." In addition, the Station airs first run series and movies not seen on other local stations. Bay Television also states that the Station places a B Grade contour or better over the cities of Sarasota and Longboat Key and portions of Sarasota County. In fact, Bay Television states that its Station places a Grade A contour over Longboat Key and the majority of the City of Sarasota. Regarding local services, the Station has sponsored a puppet workshop with the Sarasota County libraries. 11. When Comcast stopped carrying the Station on its system, 223 fans of "Born to Ride" signed a petition asking that the program be brought back to the Comcast cable system. According to the Station, other disappointed viewers also registered their disappointment when they could no longer receive the Station. 12. In its opposition to Bay Television's complaint, Comcast asserts that the length of time that it has historically carried the Station is insufficient, in itself, to constitute sufficient grounds for expanding the Station's ADI. Moreover, Comcast argues that, because the Station is not currently carried on the Sarasota system, denying Bay Television's petition will not disrupt viewing patterns or deny the Station of a substantial existing cable audience. Comcast argues that the Station does not provide local service because the Station does not provide a significant amount of programming specifically tailored to the Communities and that a substantial portion of the Station's programming consists of paid programming and infomercials. Bay Television attaches the television listings from the Sarasota Herald-Tribune purportedly to support this latter assertion. In addition, Comcast states that a substantial portion of Comcast's service area falls outside of the Station's Grade B contour because the contour does not extend to the southernmost portion of Sarasota County which the system covers. 13. Regarding the programming of other local stations that it carries, Comcast argues that their programming provides extensive coverage of local news and sporting events. Comcast states that it also carries a "local origination" and a "Sarasota News New" channel that contain local news and sports coverage. Thus, Comcast argues that, even assuming that the Station provides local interest programming, which Comcast argues the Station does not, Comcast's carriage of these other local stations weighs against expanding the Station's market. As for local viewing, Comcast proffers a report which shows that the Station does not have any measurable ratings in Sarasota and that Nielsen does not even list the Station for that county. 14. In its reply, Bay Television argues that the Station's historic carriage, even though of short duration, on the Comcast system is particularly convincing because the carriage was performed pursuant to a retransmission agreement. Bay Television then argues that where lack of coverage is due to factors outside the shape of the market, failure to demonstrate coverage is not controlling. In this instance, Bay Television asserts that it was not the market, but rather the interests of Comcast that denied the Station carriage in the past year. In addition, Bay Television states that it demonstrated that the viewing patterns of the Comcast cable system viewers were disrupted with a showing of viewer complaints that Bay Television was taken off the system, and that the statement of its sales manager has demonstrated that the station has been deprived of a substantial existing cable audience. 15. In response to Comcast's argument that the Station does not place a Grade B contour over a substantial portion of Comcast's Sarasota system, the Station replies that it is not seeking carriage on the two Comcast headends that serve communities located in the southern party of Sarasota County. The Station concedes that the southernmost portions of unincorporated Sarasota County are outside of the Station's Grade B contour, but states that the bulk of the county's population live within the contour. The Station attaches as an exhibit a demographic map of Sarasota County that shows that only a small portion of the unincorporated county is not covered by the Grade B contour and that the county population is more concentrated in the northern end of the county than the southern end. Thus, the Station argues that most of Comcast's Sarasota County subscribers live within the Station's Grade B contour. Finally, regardless of the Grade B contour, the Station argues that all of Sarasota County is within range of the Station's signal because of the unusually even topography of southern Florida. The Station proffers a letter from Comcast that allegedly verifies that the Station's signals meet the Commission's requirements at headends 64, 39, 55, and 71 miles from Tampa, Florida. Because the Sarasota communities farthest from Tampa are 69 miles from Tampa, Bay Television states that they can receive a clear signal. 16. Bay Television then disputes Comcast's argument that a substantial amount of the Station's programming consists of infomercials and paid programming. Bay Television states that Comcast's exhibit of one week's television programming taken from the Sarasota Herald-Tribune television listings indicate that in one week the Station aired only 47.4 hours of paid programming, which was scheduled during times when viewership was low such as in the middle of the night and during weekday afternoons, and 108.5 hours of nonpaid programming. Moreover, Bay Television argues that, even if the Station carried primarily paid programming, this would not refute its service to the community. Bay Television argues that the Commission has held that home shopping programming provides an important service to viewers who have difficulty obtaining or do not wish to obtain goods in the traditional manner. 17. Regarding the third factor, Bay Television argues that Congress did not intend for this criterion to bar a Station's ADI addition claim if other stations are providing local service to the relevant communities. As for the fourth factor, Bay Television states that the Commission should not accord great weight to the Station's low viewership in Sarasota County. Because the Station is not a Nielsen subscriber, neither Bay Television nor Comcast can provide actual viewership patterns. In any event, Bay Television provides several reasons why its viewership would be low. First, the cable penetration rate for Sarasota County is 82% which hinders non-carried stations from gaining an audience share. Second, the Station is a newer station competing against older, more established stations. Third, the Station is a non-network specialty station, and such stations typically attract limited audiences. IV. DISCUSSION 18. Based upon our analysis of the record relating to the four statutory and other relevant factors, we will grant Bay Television's petition. The Station's Grade A and B contour coverage, historic carriage, specialty programming and other relevant factors demonstrating the Station's ADI persuade us that the Communities should be added to the Station's market area. 19. The cable television mandatory broadcast signal carriage rules were adopted as part of the 1992 Cable Act. According to the legislative history of that Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they serve and which form their economic market." The Act specifically provided that the Commission was to consider adding additional communities or excluding communities from the markets of television stations "to better effectuate the purposes" of the mandatory carriage requirements. These factors, however, were "not intended to be exclusive." In acting on such requests the Commission was instructed to "afford particular attention to the value of localism, taking into account four specified statutory factors." We believe that our decision here will better effectuate the purposes of the must-carry statutory provisions. 20. Statutory factor one is "whether the station, or other stations located in the same area, has been historically carried on the cable system or systems within such community." The Station was carried by Comcast for approximately two years out of the past seven years. Although Comcast argues that the Station's short-term carriage should be discounted, the Station was carried pursuant to a retransmission agreement, which is probative of the scope of the market involved and is convincing evidence that the station has a market nexus with the communities in question. Comcast also carries seven other stations located in the Station's area which provides additional evidence as the the factor one element that "other stations located in the same area" have historically been carried. 21. Statutory factor two is "whether the television station provides coverage or other local service to such community." As noted above, "to show that the stations provides coverage or other local service to the cable communities, parties may demonstrate that the station places at least a Grade B contour over the cable community or is located close to the community in terms of milage." We find that the Station places a Grade A contour over Longboat Key and the majority of Sarasota City. Moreover, the Station places a Grade B contour over most of the unincorporated portions of Sarasota County in which a substantial majority of the people in the county live. 22. With respect to programming service, we find that the Station provides some local coverage likely to be of specific interest to the communities in question, such as its Florida sports programs. The fact that the station broadcasts infomercials does not, as Comcast suggests, weigh against the request because such programming may "provide an important service to viewers who either have difficulty obtaining or do not otherwise wish to purchase goods in a more traditional manner" that is not be incompatible with local appeal Finally, we note that the Station's programming log is published in the Sarasota Herald-Tribune which is another indication of the Station's local coverage and market area. 23. With regard to the third statutory factor -- whether other stations that are eligible to be carried serve the communities in question -- in general, we do not believe that Congress intended this third criterion to operate as a bar to a station's ADI claim whenever other stations could 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. 24. Statutory factor four is "evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community." Comcast presents evidence that shows that the Nielsen County Coverage Report (1997) does not list the Station for Sarasota County which demonstrates that the Station does not have a significant viewership in that county. However, we are not convinced that the Station's negligible ratings should defeat its ADI request because (1) specialty stations such as the Station historically garner a smaller audience share, and (2) most importantly, the cable penetration rate for Sarasota County is 82% which hinders the Station from gaining an audience share in that County. We also find that Congress could not have intended for such stations to have cable communities deleted from their market solely because their audience shares are not as significant as those of several other stations with which they compete. If this were the case, the 1992 Cable Act would have designated a ratings mechanism, rather than ADIs, as the primary determinant for broadcast signal carriage. 25. Finally, Bay Television has produced further evidence of the economic and cultural relationship between the Station and the Communities that weighs in favor of granting the petition. Regarding economic factors, Bay Television has shown that the Station has lost advertising revenues from Sarasota County businesses as a result of Comcast's decision not to carry the Station. Where a station may rely on an area for advertising revenues, this logically demonstrates that that area is part of the station's market. In addition, Nielsen has recognized this economic relationship by placing Sarasota in the Station's DMA. Regarding cultural factors, Bay Television has shown that several of the Station's programs had a loyal local following in Sarasota who protested when Comcast removed the Station from the Sarasota cable system. 26. We have carefully considered the statutory and other relevant factors in the context of the circumstances presented here, but we are under no obligation to give particular weight to any one of the several factors under consideration. Based on our analysis, we will grant Bay Television's petition because it has demonstrated historic carriage, local coverage, programming of local interest, and other economic and cultural ties with the Communities. V. ORDERING CLAUSES 27. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534, and Section 76.59 of the Commission's rules, 47 C.F.R. 76.59, that the petition for special relief (CSR-5154-A) filed by Bay Television, Inc., licensee for WTTA-TV, channel 38, St. Petersburg, Florida, IS GRANTED. The Cities of Longboat Key and Sarasota and the unincorporated areas of Sarasota County are added to WTTA-TV's area of dominant influence. 28. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau