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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
Broadcast signal Carriage Issues
In the Matter of
Implementation of the Cable Television
Consumer Protection and Competition
Act of 1992
COMMENTS OF AFLAC BROADCAST PARTNERS
AFLAC Broadcast Partners (IIAFLACII)l hereby submits its
comments in response to the Commission's Notice of Proposed Rule
Making (IINPRMII) in this proceeding, released November 19, 1992.
In its initial comments, AFLAC wishes to focus on one critically
important factor that it believes must be taken into account by
the Commission in setting standards for the exercise of must-
carry and retransmission rights: the need to protect established
audience viewing patterns and avoid disrupting existing local
television service.
In enacting the Cable Television Consumer Protection
and Competition Act of 1992 ("Cable Act
ll
), Congress specifically
recognized the importance of maintaining and fostering local
1
AFLAC Broadcast Partners is the licensee of the following
network affiliated commercial television stations: KFVS-TV, Cape
Girardeau, Missouri; KWWL(TV), Waterloo, Iowa; WAFB(TV), Baton
Rouge, Louisiana; WAFF(TV), Huntsville, Alabama; ; WTOC(TV),
Savannah, Georgia; and WTVM(TV), Columbus, Georgia. In addition,
the general partner of AFLAC Broadcast Partners, American Family
Broadcast Group, Inc., is the sole owner of WITN-TV, Inc., the
licensee of WITN-TV, Washington, North Carolina.
No. of Copies rec'd
UstA BCD E
television service. Among the Congressional findings contained
in Section 2(a) of the Act are the following:
(10) A primary objective and benefit of our Nation's
system of regulation of television broadcasting is the
local origination of programming. There is a
substantial governmental interest in ensuring its
continuation. ?
(11) Broadcast television stations continue to be an
important source of local news and pUblic affairs
programming and other local broadcast services critical
to an informed electorate. . . . [and]
(16) As a result of the economic incentive that cable
systems have to delete, reposition, or not carry local
broadcast signals, coupled with the absence of a
requirement that such systems carry local broadcast
signals, the economic viability of free local broadcast
television and its ability to originate quality local
programming will be seriously jeopardized.
Thus, the preservation of local television service is at the
heart of the Cable Act. In adopting implementing rules for the
must-carry and retransmission provisions of the Act, the
Commission necessarily must take into account this fundamental
purpose.
Under section 614 of the Cable Act, cable television
systems are required to carry local commercial television
stations and qualified low power stations. section 614(h) (1) (A)
of the Act defines a "local commercial television station" as any
full power commercial television broadcast station licensed by
the Commission that is located in the same television market as
the cable system. Accordingly, the question of what constitutes
"the same television market" is central to the determination of
mandatory carriage rights.
-2-
Before addressing that question, however, it is first
necessary to determine the location of the cable system. AFLAC
strongly believes that the location of the cable system should be
based upon the cable service area, rather than the location of
the principal headend. Thus, a cable system should be considered
to be located in any county in which it delivers service and its
carriage obligations should be determined with reference to that
county. Such an approach is completely consistent with
Congress's expressed concern to preserve local television
service. In contrast, particularly with a large, technically
integrated cable system, defining the cable system's location as
the principal headend, which might be a considerable distance
from any particular county served by that system, would be at
odds with that purpose by tending to exclude television signals
which viewers of the cable system in a particular area would, in
fact, perceive as local.
Once the location of the cable system is defined, the
next step is to articulate the boundaries of the "television
market." Through its reference to section 73.3555(d} (3) (i) of
the Commission's RUles, section 614(h} (1) (C) of the Act
effectively defines television market as the Arbitron ADI.
However, the Act specifically confers upon the Commission the
authority, in response to a written request, to add or exclude
additional communities to the television market "to better
effectuate the purposes of this section" and specifically states
that, in considering such requests, "the Commission may determine
that particular communities are part of more than one television
-3-
market." The question is who should be permitted to make such a
request for the modification of a television market and what
standards should be applied in evaluating that request.
AFLAC believes that only broadcast stations should be
permitted to make market modification requests. Television
stations are far more likely than cable systems to have pertinent
information with respect to the four factors identified by
Congress as relevant to the Commission's evaluation of market
modification requests; each of those factors relates directly to
local television service and coverage. See discussion below.
Moreover, allowing cable systems to initiate such requests
invites potential abuse by cable systems in an attempt to
gerrYmander markets and thereby avoid carriage obligations of
stations that have a significant viewership in their area.
Limiting such requests to those made by broadcast stations will
discourage such possible abuse of the Commission's processes
while not depriving the Commission of valuable input from cable
systems; cable systems still will be able to submit comments in
any such market modification proceeding and thereby make their
views known to the Commission.
Several factors to be used in evaluating such market
modification requests are set forth in section 614(h} (1) (C) (ii)
of the Act. These include:
(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;
-4-
(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.
The common principal among these various factors, and the one
which Congress directed the Commission to "afford particular
attention" is the "value of localism." AFLAC agrees with and
supports that Congressional directive. In so doing, Congress
specifically recognized the need to avoid disrupting existing
viewing patterns and to protect local broadcast television
service.
In response to the Commission's specific inquiry about
the possible relevance of "significantly viewed" signals (see
NPRM at~20, n.22), AFLAC believes that, while "significantly
viewed" status may be indicative of historic viewing patterns,
the Commission should not limit its inquiry to whether or not a
station has such status or to other measures of off-air viewing.
Instead, the Commission should look at the total viewership of a
station in a particular area, whether off-air or cable. The
reason for this is that neither off-air or cable viewership by
itself necessarily is an accurate reflection of the viewership of
a station in a particular area. For example, a station that has
been declared "significantly viewed" by the FCC may well have a
diminished off-air audience but high cable viewership.
Conversely, a station that does not have "significantly viewed"
-5-
status may have a significant number of off-air viewers but may
not be carried, or may have been dropped from, the local cable
system. Only by considering both cable and off-air viewership
(in combination with the other factors set forth in the Cable
Act) will the Commission be able to discern the historic viewing
patterns and trends in that area and determine whether the
station is providing truly local service.
As the Commission noted in the NPRM, ADIs change from
year to year. However, AFLAC believes that it would be extremely
disruptive for television stations, cable systems, and the
viewing audience for the Commission's market definitions to
change on an annual basis.
2
This is particularly true in light
of the fact that station elections of must-carry or
retransmission status will take place every three years.
Accordingly, AFLAC proposes that the television market as defined
by the Commission remain in effect for a three-year period to
coincide with the dates on which stations must elect must-carry
or retransmission status. This will provide all parties with
reasonable certainty in the definition of the applicable markets
while, at the same time, offering the opportunity for periodic
revision to adjust to changing viewing patterns.
2
For example, if, as a result of such a market change, a
station changed from local to nonlocal in a particular county,
the station would lose its entitlement to assert must-carry
rights. Presumably, this would require stations carried by
virtue of must-carry rights to negotiate carriage based on
retransmission consent. If such negotiations were unsuccessful,
the stations would be dropped from the cable system, thus
disrupting service to local viewers.
-6-
One of the most common changes in ADIs is the addition
and deletion of "swing counties" at the edge of the ADI. Such
areas typically swing back and forth between one ADI and an
adjoining ADI based upon relatively slight changes in viewing
patterns. In the case of such "swing counties," it may not make
sense to lock them into one market or the other. Instead, in
appropriate cases, the Commission should utilize the discretion
conferred upon it by the Cable Act to "determine that particular
communities are part of more than one television market." This
will reduce the need for the Commission to reexamine its market
determinations and will avoid the potential disruption to
audience viewing patterns that would be entailed by assigning
such areas exclusively to a single market.
However, once the relevant television market has been
defined, not all stations within that geographic area are given
must-carry rights under the Act.
3
stations that are considered
"distant signals" for copyright purposes and which decline to
indemnify cable systems for increased copyright liability
resulting from that carriage are excluded as are stations that do
not deliver to the principal headend a signal of a specified
signal strength. In that regard, the Commission has asked
whether it is sufficient to simply require that good engineering
practices be employed in the associated signal reception process
3 This may be particularly true in the case of "swing
counties" -- especially to the extent that they are given dual
market identification. In such cases, it will be necessary to
specify criteria that distinguish between those stations that
provide truly local service to such areas and those that do not.
An objective measurement of signal strength, as discussed below,
may be one such factor.
-7-
and what, if any, definitions need to be included regarding how
the signal strengths are to be measured.
AFLAC believes that it is not sufficient only to
specify that good engineering practices be used. In order to
assist in resolving disputes and reduce the potential for abuse,
a clear and definite standard is required. Thus, the Commission
should specify in reference to whatever antenna is utilized by
the cable system, that a certain level of microvolts of signal
strength delivered off-air by the station's main channel
transmitter should be required in order for the television
station to be treated as "local."
A question related to the issue of market definition is
the review of the list of markets in section 76.51 that was
mandated by Congress. This list of the top 100 television
markets is based on data that is over 20 years old. As the
Commission pointed out in its NPRM, updating this list to
correspond to the current Arbitron ranking would entail
significant revisions, including dropping 14 markets in the
original list that no longer are ranked in the top 100. If
section 76.51 continues to list only the top 100 markets then
stations in hyphenated markets within those 14 will lose the
benefits of that hyphenation with a potential and adverse impact
upon copyright protection as well as upon territorial and
syndicated exclusivity rights and network nonduplication
protection. Such changes might well result in deletion of the
signal from some cable systems, thus disrupting existing
viewership patterns contrary to the Congressional intent.
-8-
Accordingly, to the extent that the list is updated, AFLAC urges
the Commission to list all markets, not just those in the top
100. This will help minimize the adverse impact on viewers of a
change in market ranking.
There is one final issue on which AFLAC would like to
address in these initial comments. AFLAC believes that it is
extremely important that cable systems be required to
affirmatively notify subscribers when they delete signals of
commercial television stations that now are being carried. The
Act imposes such a requirement for noncommercial educational
stations and AFLAC believes that the purposes of the Act strongly
support the adoption of a similar requirement for commercial
stations. AFLAC believes that the Act's requirement that
commercial stations be notified prior to deletion may not be
enough to protect the Congressionally recognized interests of
viewers for continued access to preferred sources of local news
and entertainment programming. Indeed, it is the collective
power of informed viewers in expressing their wishes that, in
AFLAC's experience, is the most effective in preventing cable
systems from abusing their monopoly power through the unwarranted
(and sometimes retaliatory) decision to drop a widely viewed
local television station. By requiring cable systems to bear the
affirmative responsibility for notifying their subscribers of any
such decision to delete a local station, the Commission will
ensure that viewers have sufficient and timely information and
the opportunity to effectively express their concerns to the
local cable system.
-9-
In addition, AFLAC believes that cable systems also
should be required to notify the governing municipality or
franchise authority of any such deletion. This will assist those
entities in their oversight of the cable system's operation under
the new Cable Act and aid in their review of the cable system's
performance measured against the promises made during the
franChising process.
CONCLUSION
AFLAC commends the Commission for its timely and
comprehensive efforts to implement the 1992 Cable Act. In so
doing, AFLAC urges the Commission to adopt implementing rules
consistent with Congress's desire to avoid disrupting historical
television viewing patterns and that recognize and support the
important role played by local television broadcasters.
Respectfully SUbmitted,
AUSTIN
1722 Eye Street, N.W.
Washington, D.C. 20006
(202) 736-8228
Its Attorneys
January 4, 1993
-10-
CERTIFICATE OF SERVICE
I, John Riley, certify that I have this 4th day of
January, 1993, sent by hand-delivery, a copy of the foregoing
Comments of AFLAC Broadcast Partners to:
*Chairman Alfred C. Sikes
Federal Communications commission
1919 M Street, N.W.
Room 814
Washington, D.C. 20554
*commissioner James H. Quello
Federal Communications Commission
1919 M Street, N.W.
Room 802
Washington, D.C. 20554
*Commissioner Sherrie P. Marshall
Federal Communications commission
1919 M Street, N.W.
Room 826
Washington, D.C. 20554
*Commissioner Andrew C. Barrett
Federal Communications Commission
1919 M Street, N.W.
Room 844
Washington, D.C. 20554
*Commissioner Ervin S. Duggan
Federal Communications Commission
1919 M Street, N.W.
Room 832
Washington, D.C. 20554
~,.(2,5J-\2~
Jo n Rl.ley
* By Hand