In a decision released this week, the FCC reiterated a policy of being very tough on petitions to add communities to television markets to change the stations that are considered to be part of the market for cable and satellite carriage purposes. This strict compliance policy was set out in another case decided last year. The Commission will dismiss a request for a market modification if all the evidentiary requirements set out by the FCC are not met in the initial filing. While these requests can be refiled at a later date with the missing information, such a dismissal will delay the processing of any request.
Cable market modifications of the type addressed in this filing have become more common in recent years, at least partially because of a change in the Communications Act enacted by Congress in 2014 (see our article here). In that change, Congress said that , among the statutory factors that must be considered in defining television markets, the FCC must examine whether the communities that are proposed to be added would promote access to in-state television stations. Prior to the adoption of the revised statute, Congress was concerned that there were too many communities that were included in Nielsen markets where the programming originated from stations located in another state, at one point asking that the FCC study the issue (see our article here). In these instances, some in Congress believed that residents were deprived of public service and news information as to events and issues in their own state.
Congress set out the following factors to be considered in any analysis of a market modification:
- whether the station, or other stations located in the same area—(a) have been historically carried on the cable system or systems within such community; and (b) have been historically carried on the satellite carrier or carriers serving such community;
- whether the television station provides coverage or other local service to such community;
- whether modifying the local market of the television station would promote consumers’ access to television broadcast station signals that originate in their State of residence;
- whether any other television station that is eligible to be carried by a satellite carrier 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
- evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community.
To address these factors, the FCC requires very specific evidence, set out in seven categories. Unless evidence is provided as to each of the following matters (or a waiver is sought with a showing as to why it is not possible to provide such evidence), under these recent precedents, the request will be denied. The evidentiary showings required are:
- A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend or satellite carrier local receive facility locations, terrain features that would affect station reception, mileage between the community and the television station transmitter site, transportation routes and any other evidence contributing to the scope of the market;
- Noise-limited service contour maps delineating the station’s technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas;
- Available data on shopping and labor patterns in the local market;
- Television station programming information derived from station logs or the local edition of the television guide;
- Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings;
- Published audience data for the relevant station showing its average all day audience (i.e., the reported audience averaged over Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both multichannel video programming distributor (MVPD) and non-MVPD households or other specific audience information, such as station advertising and sales data or viewer contribution records; and
- If applicable, a statement that the station is licensed to a community within the same state as the relevant community.
While the request in this case was filed by a county government, requests can also come from stations that want to be carried on MVPDs in communities that are now considered to be outside of their markets, or by cable or satellite providers who want a station to be considered local so that they need not pay distant-signal copyright fees. No matter who files the market modification request, these cases make clear that the request must be very detailed for the Commission to process it.
Some of the requested information – such as information about non-MVPD household viewing patterns – can be difficult to obtain, especially in counties where there is little over-the-air viewing. Other information may require an archival dig into historical records to find the history of TV carriage in a market. These cases make clear that the effort must be made, or the request will be denied.