NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re:) ) A-R Cable Services, Inc. ) ) For Modification of the ADI ) CSR-4785-A of Television Station WNDS(TV) ) Derry, New Hampshire ) MEMORANDUM OPINION AND ORDER Adopted: December 2, 1996 Released: December 5, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. On July 11, 1996, A-R Cable Services, Inc. ("Cablevision") filed the above- captioned petition for special relief seeking to exclude Braintree, Massachusetts, the community served by Cablevision's Braintree, Massachusetts cable system (the "Braintree system" or the "system") from the Boston Area of Dominant Influence ("ADI") of Television Broadcast Station WNDS (Ind., Channel 50), Derry, New Hampshire, ("WNDS"), for the purposes of the cable television mandatory broadcast signal carriage requirements. WNDS filed an opposition to the petition and Cablevision replied. 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, a commercial television broadcast station is 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 in 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. As for deletions of communities from a station's ADI, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 7. 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 ADI change request. MODIFICATION ARGUMENTS 8. The community of Braintree, Massachusetts is located in the southeastern portion of the Boston ADI, approximately ten miles south of the city of Boston. Derry, New Hampshire, WNDS' city of license, is located approximately 48 miles to the north of the Braintree community. 9. In support of its petition, Cablevision argues that the community of Braintree should be excluded from WNDS' television market because the station does not satisfy any of the four statutory market modification factors. First, Cablevision argues that with regard to historic carriage, WNDS has never been carried on the Braintree system. Second, Cablevision contends that the local coverage criteria have not been met because the station is geographically remote from the Braintree system and provides no local service to the community it serves. Cablevision notes that Derry, New Hampshire, WNDS' city of license, is located approximately 48 miles from the Braintree community. Because of the distance between WNDS and the Braintree system, Cablevision states that the station's Grade B contour fails to encompass the Braintree system, thereby preventing the population of Braintree from being capable of receiving WNDS over the air. 10. Moreover, Cablevision argues that its Braintree, Massachusetts subscribers are in a different state and political environment than WNDS and, as such, receive no local programming service from the station. According to Cablevision, WNDS carries no news or public affairs programming, or coverage of sporting and other events, directed to the local needs and interests of subscribers in the Braintree community. Cablevision states that WNDS' programming schedule and program descriptions list for the second quarter of 1995 indicates that the station's public affairs programming consists mostly of weather updates for the Derry, New Hampshire area and 30 to 60 second public service announcements that are not directed to Braintree residents. According to Cablevision, not only is the station's public affairs programming irrelevant to subscribers in the Braintree system, it comprises only an insignificant amount of the station's total programming. Cablevision states that the vast majority of the station's programming schedule is devoted to nationally syndicated programs that are of general interest and are featured regularly on other stations already carried on the Braintree system. In addition, Cablevision points out that the station does not participate in non-broadcast activities that are related to the Braintree community. 11. Third, Cablevision argues that households served by the Braintree system already receive a variety of news, sports, informational and public affairs programming of specific local interest to the community from many other qualified stations. For instance, Cablevision notes that unlike WNDS, these stations provide the community's subscribers with local news and public affairs programming, not the least of which are the Noon, 5:00 p.m., 6:00 p.m. and 11:00 p.m. local newscasts on WHDH, WCVX and WBZ, Boston's three leading network affiliates. These and other stations, Cablevision points out, also provide sports coverage of teams such as the Boston Red Socks and the Boston Celtics. Cablevision also adds that local programming is supplemented by its own local public affairs channel 31. Cablevision points out that Braintree subscribers receive 18 hours per week of regularly scheduled local programming from this channel, in addition to live or taped coverage of local special events. In addition, Cablevision notes that the community has access to even more news, public affairs and sports programming through several cable channels such as the Hometown Network Bulletin Board and New England Cable News, among others. 12. Finally, Cablevision argues that WNDS fails to meet the local viewership criteria for market modification. According to Cablevision, as reflected by the 1995 Nielsen County- Coverage study data, WNDS' audience measurements in Norfolk County, which encompasses Braintree, are so low as to be unreportable. 13. In its opposition, WNDS argues that because it is located within the same ADI as Cablevision, the Boston ADI, it is entitled to must carry status on the Braintree system. As an initial matter, WNDS argues that Cablevision's petition must be dismissed as procedurally defective because Cablevision failed to serve its petition on any of the stations carried on its system. 14. Regarding the four statutory factors, WNDS does not deny that it has not been carried by the Braintree system, but argues that the 1992 Cable Act was designed, in part, to cure such discriminatory practices. In the past, WNDS states that it has been precluded from carriage because it was considered a "distant signal" for copyright purposes, but that is no longer the case. With respect to the second factor, WNDS argues that it has already installed equipment for reception of its signal at Cablevision's headend and provides the system with the required signal strength pursuant to the rules. As such, WNDS notes that while Cablevision recites that Braintree is beyond the station's Grade B contour, it has failed to provide information that WNDS does not provide the required signal strength necessary for carriage. 15. Regarding the third factor, WNDS argues that Cablevision has not made a showing with respect to specific news or other programming coverage of Braintree by other stations other than to note that they carry news, public affairs and sports programming. Nonetheless, WNDS argues that even if Cablevision made such a showing, it would be immaterial. According to WNDS, the third factor only comes into place when a station or cable system seeks to preserve or add, rather than delete, carriage of a particular station. WNDS states that the legislative history of the 1992 Cable Act indicates that where the presumption of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which the local cable system operates, then the Commission may make an adjustment to include or exclude particular communities form a television station's market. According to WNDS, Cablevision has made no showing whatsoever that carriage of the station would result in cable subscribers losing access to any other local station. 16. WNDS also disagrees that its programming does not serve the needs and interests of cable subscribers in the Braintree area. WNDS states that while the station does not present programs of particular parochial interest to Braintree alone, it does provide informational programming of interest to residents of the entire region, including Braintree. For instance, WNDS notes that New Hampshire is the summer and winter playground of the entire Boston market, including Braintree. Therefore, according to WNDS, informational programming concerning New Hampshire carried on the station is of "local interest" to residents of Massachusetts and particularly the Boston ADI. 17. With regard to the fourth factor, WNDS states that it is important to note that Cablevision has provided no ratings information on a community-by-community basis. WNDS states that only information regarding Norfolk County has been provided by Cablevision. Furthermore, WNDS argues that it is not surprising that the station's audience might be small because until recently it was considered a "distant signal" for copyright purposes and, therefore, it was effectively precluded form carriage on the Braintree system. 18. In reply, Cablevision states that WNDS in incorrect in stating that its previous lack of carriage should not be considered. Cablevision notes that it is significant that WNDS has been in operation since 1983 and has not been carried by the Braintree system since that time. In addition to the number of years it has been on the air, Cablevision notes that it is also significant that Derry, New Hampshire is 48 miles from Cablevision's Braintree headend. Cablevision argues that if the station had been on the air for only a short period of time or if its transmitter were a shorter distance from the system's headend, these factors might help to outweigh WNDS' historic lack of carriage. In the instant case, however, these factors are not present. 19. Cablevision also contends that WNDS' assertion that its programming is local to Braintree is incorrect. Cablevision notes that WNDS, in support of its argument in that regard, only cited to programming of general interest as opposed to programming with specific ties to the community. In addition, Cablevision discounts WNDS' argument that because Derry, New Hampshire may be considered a recreational area for residents of Boston and surrounding communities that any programming offered by the station would be considered programming of local interest to Braintree residents. Cablevision points out that Bostonians and Braintree residents vacation in many different places and it cannot be concluded that stations in all of those areas offer programming local to Braintree. 20. With regard to the third factor, Cablevision argues that the Commission should ignore WNDS' argument regarding lack of service by other stations particularly with respect to its comments that no showing has been made regarding specific news or other programming coverage of Braintree and the surrounding area by local stations, other than to note that they carry news, public affairs and sports programming. According to Cablevision, Boston television stations offer programming to Braintree, which is a community that is an integral part of the Boston metropolitan area. With regard to the fourth factor, Cablevision argues that where, as here, the station has been broadcasting for a number of years and still has no measurable audience share in the community at issue, the Commission must consider the station's lack of audience as an indicator of the station's true market area. 21. Cablevision also argues that its petition should not be dismissed because it is alleged to be procedurally defective. Cablevision claims that WNDS' argument in that regard must be dismissed as moot because the system has filed an Erratum certifying that it has served all of the broadcast television stations carried by the Braintree system, in addition to the local franchise authority and the station's counsel. DISCUSSION 22. Based on the four statutory and other relevant factors, Cablevision's petition will be granted. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they service and which form their economic market." Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements. The ADI market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of there levant factual circumstances in the record, we believe that the operator's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Cablevision's actions do not reflect an intention to skirt its signal carriage responsibilities under the Communications Act and the Commission's Rules nor do they evidence a pattern of discriminatory conduct against the station subject to deletion. Based on the geography and the statutory factors, we believe that the community in question is sufficiently removed from WNDS that it ought not be deemed part of the station's market for mandatory carriage purposes. The evidence before us distinguishes the community of Braintree and persuades us that the action requested would "better effectuate the purposes" of Section 614. We believe Congress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly rectified through the special relief process. 23. At the outset, the evidence suggests that WNDS does not provide local service to the community in question. WNDS does not place either a Grade A or Grade B contour over the cable community. In addition, we do not believe that it has been shown that WNDS carries programming of specific local interest or import for cable viewers in the community of Braintree. The WNDS programming information provided to us indicates programming of potential general interest but without specific ties to the community at issue in this matter. We reject WNDS' argument that because New Hampshire may be considered as a recreational playground for the Boston area, including Braintree, that any informational programming concerning the state carried on the station makes the programming local in nature to the Braintree community. 24. We also believe that Cablevision's carriage of other local television stations provides support for the requested action. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, and it is clear that the station is not providing local service to those communities, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. In this case, there are several television stations carried by Cablevisionthat have a closer nexus to the community of Braintree and provide more focused local programming than WNDS. 25. Cablevision also demonstrates that WNDS has no historical carriage on the cable system in question, despite 13 years of operation, and has no reported audience where Braintree and the cable system are located. We note that these facts are not determinative, in and of themselves, of the relationship between the cable communities and the market of the television station, nor should their absence permit a cable operator to undermine the objectives of the mandatory carriage requirement. However, we also note in this instance, that Derry, New Hampshire, WNDS' city of license, is located 48 miles from Cablevision's Braintree headend. The distance involved in this situation further attenuates the local ties that the station might have to the cable community and helps explain why the station's viewership is too low to be reported. Thus, we conclude that the lack of historical carriage and the dearth of audience is of evidentiary significance when linked with other information regarding the market and the particular distances involved, particularly where a station has been broadcasting since 1983 and has no reportable audience share in the relevant community. 26. This is not a situation where the carriage pattern suggests that a station is logically part of the market for carriage purposes, but has not been carried for competitive reasons. Nor do we believe that the operator has impermissibly singled out WNDS from among other similarly situated stations as the sole station it has declined to carry. 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 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief, filed July 11, 1996 by Cablevision IS GRANTED. 28. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau