*Pages 1--4 from Microsoft Word - 10718.doc* Federal Communications Commission FCC 01- 219 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of: Diversified Communications Petition For Modification of the Television Market of Station WCJB- TV, Gainesville, Florida Application for Review ) ) ) ) ) ) ) ) CSR 3970- A MEMORANDUM OPINION AND ORDER Adopted: August 1, 2001 Released: August 8, 2001 By the Commission: I. INTRODUCTION 1. WFTV, Inc. (" WFTV"), licensee of television station WFTV, Orlando, Florida, has filed an Application for Review of the Memorandum Opinion and Order in Diversified Communications (" Bureau Order") pursuant to Section 1.115 of the Commission's rules. 1 The Bureau Order granted a petition for special relief filed by Diversified Communications (" Diversified") for modification of the television market of Station WCJB- TV, Gainesville, Florida, pursuant to Sections 76. 7 and 76. 59 of the Commission's rules, and added certain communities in Marion County, Florida to WCJB- TV's market. Diversified, licensee of WCJB- TV, filed an opposition to the application for review. No reply was filed. The Application for Review is denied. II. DISCUSSION 2. Section 614( h)( 1)( C)( i) of the Communications Act authorizes the Commission to add communities to, or delete communities from a television station's market "to better effectuate the purposes of this section." 2 Four statutory factors considered are historic carriage of the station, station coverage of the community, carriage of other stations in the community, and local service to the community. 3 The facts, a detailed description of the market modification provisions and the Commission's related regulations, the arguments of the parties, and a detailed analysis of those matters are set forth in the Bureau Order and need not be repeated here. 3. WFTV contends in its application for review that the Bureau Order erroneously ignored the extent of Station WFTV’s viewership and the viewership of other Orlando stations in Marion County, 1 10 FCC Rcd 4998 (CSB 1995). 2 47 U. S. C. § 534( h)( 1)( C)( i ). 3 47 U. S. C. § 534( h)( 1)( C)( ii). 1 Federal Communications Commission FCC 01- 219 2 and improperly ignored information regarding WFTV's programming. WFTV also argues that the Bureau Order is inconsistent with applicable precedent. WFTV contends that the Bureau Order’s finding that WCJB- TV has substantial viewership in the Marion County communities at issue ignored evidence showing WFTV's viewership in Marion County to be greater than that of WCJB- TV during many measurement periods and improperly relied only on certain measurement periods showing WCJB- TV's viewership to be greater than WFTV's. Diversified points out that the Bureau Order did consider WCJB-TV’s viewing audience during news programming, and found WCJB- TV to be competitive with WFTV’s net weekly circulation as a whole. 4 While the Bureau Order did compare certain day part viewership levels, we believe that total weekly viewing statistics are the most useful when comparing two stations’ viewership levels. A review of the most recent total weekly statistics reveals that in Marion County, WCJB- TV captures a larger total share of audience viewing than WFTV. 5 In contrast to WFTV, which garners a 7 share in cable households and a 6 share in non- cable households, WCJB- TV captures an 8 share in cable households and an 11 share in non- cable households. 6 Audience share alone, however, cannot solely be relied upon to determine whether a station should be considered local. All four statutory factors, as well as any other relevant factors, must be taken into consideration, as the Bureau Order has done. 7 4. WFTV next contends that the Bureau Order disregarded information showing the extent of WFTV's programming. In this regard, WFTV faults the Bureau Order for holding that its local coverage of the communities was not relevant in considering whether WCJB- TV should be allowed to provide service to the subject communities. We reject these contentions and find that the Bureau order appropriately considered the information. As Diversified points out, the Bureau Order correctly held that factor three, which looks to coverage by other stations, should only be applied as an enhancement factor when a station seeking to add a community can show that a community is under- served by other television stations. 8 As the Bureau correctly held, we do not believe Congress intended for the third criterion to act as a bar to a station’s ADI claim if it was shown that other stations serve the community at issue. The public interest concerns of Section 614( h) are served by applying this factor in a manner that provides for additional local coverage as was done in the Bureau Order in this case. 9 4 Diversified Opposition at 4, citing Bureau Order, 10 FCC Rcd at 5001. 5 At the time the Bureau Order was released, Section 76.55( e) of the Commission’s rules provided that ADIs to be used for purposes of the initial implementation of the mandatory carriage rules would be those published in Arbitron's 1991- 1992 Television Market Guide. That rule was amended in 1999 to require that commercial broadcast television station markets be defined by Nielsen Media Research’s designated market areas (“ DMAs”). See 47 C. F. R § 76.55( e); See also Definition of Markets for Purposes of the Cable Television Broadcast Signal Carriage Rules, Order on Reconsideration and Second Report and Order, 14 FCC Rcd 8366 (1999) (“ Modification Final Report and Order”). Total station audience share data available at the time of the Bureau Order did not establish that Station WFTV held any significant edge over WCJB- TV on cable or non- cable viewing in Marion County. Specifically, at that time, the record showed that WFTV had an average cable share of 11 and an average non- cable share of 10, compared with WCJB- TV's average cable share of 8 and an average non- cable share of 11. Bureau Order, 10 FCC Rcd at 5001. 6 See Nielsen Station Index, County Coverage Study 2000 at p. 681. 7 Bureau Order, 10 FCC Rcd at 5001- 02. 8 See e. g., Bureau Order at 5001. 9 See Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal (continued…) 2 Federal Communications Commission FCC 01- 219 3 5. Finally, WFTV contends that the Bureau Order fails to recognize that, with the inclusion of the Marion County communities within WCJB- TV's market, WCJB- TV would obtain mandatory carriage priority over WFTV in the Marion County communities located nearer to WCJB- TV than to WFTV, pursuant to Section 76.56( b)( 4)( ii) of the Commission's rules. 10 WFTV argues that Commission precedent precludes a network station assigned to one designated market, or area of dominant influence (“ ADI”), from obtaining mandatory carriage priority over another network station located in another ADI. Diversified asserts that the Bureau Order is indeed consistent with precedent in this respect, arguing that Broad Street Television, LP Davenport, Iowa, 11 cited by WFTV, does not require a different result. While in some instances we have taken this factor into consideration in the past, it does not act as a bar to modifying a network station’s television market. Rather, it must be taken into consideration with all other relevant factors in determining whether or not to modify a station’s television market. In Broad Street Television, the network station’s modification petition failed to meet all four statutory market modification factors and was not based solely on the consideration that the petitioning station would have been expanding into another similar network station’s television market. In contrast here, WCJB- TV has prevailed in each of the statutory factors, and we do not believe that the fact that WCJB- TV will be expanding into another network station television market, in this instance, should act as a bar, since WCJB-TV will not be expanding into communities located in the core of WFTV’s market. Consequently, we believe that the inclusion of the communities at issue in WCJB- TV’s television market as ordered by Bureau Order is fully supported by the record. 12 6. In summary, we find the analysis in the Bureau Order regarding historic carriage of the station and carriage of other stations in the community, station coverage and local service to the community, coverage of the communities by other stations, and station audience share, to be fully supported by substantial evidence of record. The findings and conclusions of the Bureau Order are solidly based on that analysis and fully consistent with our analysis and application of the market modification provisions of Section 614( h) in New York ADI Appeals Memorandum Opinion and Order (" New York ADI Order"). 13 The findings and conclusions in the New York ADI Order were upheld on judicial review in WLNY- TV, Inc., et al. v. FCC. 14 Accordingly, we reaffirm the conclusions reached in the Bureau Order that the requested market modification will effectuate the purposes of the must carry statutory provisions and associated Commission rules. (… continued from previous page) Carriage Issues, Report and Order, 8 FCC Rcd 2965, 2975 (1993) (public interest served by requiring cable system to carry television broadcast stations that are local to a community). 10 See 47 C. F. R. § 76.56( b)( 4)( ii). (Station is obligated to carry only the closest national network affiliated station). 11 10 FCC Rcd 5576 (1995) (" Broad Street Television"). 12 Our action today does not remove the disputed communities from WFTV’s television market. WFTV may continue to be carried in the Communities at issue if cable systems there so desire, consistent with the provisions of Section 76.56( b)( 4)( ii) of the Commission’s rules. 13 12 FCC Rcd 12262 (1997). 14 163 F. 3d 187 (2d Cir. 1998). 3 Federal Communications Commission FCC 01- 219 4 III. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4( i), 5( c), 405, and 614( h)( 1)( C) of the Communications Act of 1934, as amended, 47 U. S. C. §§ 151, 154( i), 155( c), 405, 534( h)( 1)( C), and Section 1.115 of the Commission’s rules, 47 C. F. R. § 1.115, that the captioned application for review IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 4