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: ) ) Rifkin/Narragansett South Florida, ) CSR-4776-A CATV Limited Partnership, d/b/a ) Gold Coast Cablevision) ) For Modification of the Miami-Ft.) Lauderdale, Florida ADI ) ) Complaint of Hispanic Keys Broad-) CSR-4809-M casting Corp. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: December 2, 1996 Released: December 5, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. On June 24, 1996, Rifkin/Narragansett South Florida, CATV Limited Partnership, d/b/a Gold Coast Cablevision ("Rifkin"), filed the above-captioned petition for special relief seeking to modify the Miami-Ft. Lauderdale, Florida Area of Dominant Influence ("Miami ADI") of television broadcast stations WEYS (CBC, Ch. 22), and WWFD-TV (Channel 8), both Key West, Florida. Specifically, Rifkin requests that WEYS and WWFD-TV be excluded from the Miami ADI relative to its system serving communities in and around Miami Beach, Florida, for the purposes of the cable television mandatory broadcast signal carriage rules. Both WEYS and WWFD-TV filed oppositions to this petition to which Rifkin replied. BACKGROUND 2. Pursuant to 4 of 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, 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 market areas. Section 4 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 1992 Cable 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 new 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 the following guidance in the Report and Order to aid decision making in these matters: 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 demon- strated 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 market, 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 requested changes 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 1992 Cable Act, that a station not be deleted from carriage during the pendency of an ADI change request. MODIFICATION ARGUMENTS 8. Rifkin's cable system is located in Dade County, Florida and is part of the Miami- Ft. Lauderdale, Florida ADI. Key West, the city of license of WEYS and WWFD-TV, is also part of the same ADI and is approximately 136 miles from Rifkin's communities. 9. In support of its petition, Rifkin argues that WEYS and WWFD-TV should be excluded from carriage on its system because the stations do not satisfy any of the four statutory market modification factors. First, it states that WWFD-TV has no record of historic carriage. Rifkin states that since it has never carried WWFD-TV there would be no disruption of established viewing patterns nor would the station be deprived of any existing audience. While Rifkin admits that it is presently carrying WEYS, it claims that such carriage cannot be termed "historic" since WEYS only went on-the-air in June of 1993. It states that the Commission has specifically recognized that carriage for such a short period of time does not represent long-term carriage for must carry purposes. Secondly, Rifkin avers that neither WEYS nor WWFD-TV provide local coverage to its system due to the following: a) Both stations are geographically remote; Rifkin's cable system is in the northeastern part of the Miami ADI while WEYS and WWFD-TV are in the southwestern most tip; b) the Grade B contours of WEYS and WWFD-TV are more than 115 miles from South Beach, the closest of Rifkin's communities and the stations are not generally viewable off-air in either cable or noncable homes; c) WEYS offers programming which appears to be almost entirely "foreign" in origin from South America and provides no programming covering local issues; and d) Rifkin has been unable to identify any of WWFD-TV's programming including any programming providing "local coverage" of the system communities. Rifkin asserts that any programming offered by WEYS and WWFD-TV is already being provided by the local Miami stations it carries, all of which provide local news, sports and community programming. In addition, its system already carries two 24-hour local Spanish-language stations, WSCV and WLTV, which include daily local news and programming relevant to the cable communities. Finally, Rifkin asserts that the stations have no audience in Dade County. According to the 1996 Nielsen Station Index for the Miami DMA, WWFD-TV is not even listed and WEYS is "reportable in the Daypart section only" with virtually no ratings in any of the other ratings sections. The fact that the stations' viewership is too low to be reported is buttressed by their absence in the listings of the southern Florida edition of TV Guide. In conclusion, Rifkin maintains that requiring carriage of WEYS and WWFD-TV on its system would limit its ability to provide the programming and services desired by its customers. 10. In opposition, WWFD-TV states that pursuant to the Cable Television Consumer Protection and Competition Act of 1992 ["92 Act"] and the Commission's Report and Order, supra, it is entitled to assert mandatory carriage rights on every cable system located within the Miami ADI. Also, Section 614 of the Act creates an affirmative duty for every cable operator in an ADI to carry the signals of the local commercial television stations in its market. Stations such as WWFD-TV, it continues, represent precisely the kind of station Congress intended to have must carry rights. While modification of ADI markets is allowed, WWFD-TV argues that there is a heavy burden of proof on petitioners who move to exclude communities from a station's market. In the instant case, WWFD-TV maintains that Rifkin has not met this burden. WWFD- TV states that it provides a valuable program service which caters specifically to the communities served by Rifkin. It points out that its programming is produced by SUR Corporation, which is the only "Latin American television cable programmer" serving the Miami market 24-hours a day. WWFD-TV states that the majority of the Hispanic residents of the Miami ADI have migrated from various Latin American countries and that their various interests and needs are not being met by the more traditional Spanish-language programming services offered by Rifkin. Moreover, it maintains that as an international city, Miami, and indeed the entire southern Florida region (i.e., the Miami ADI) is tied together in a geopolitical sense with the Latin American countries. Thus, daily knowledge of Latin American news is of crucial local importance to the residents and businesses in the Miami market. WWFD-TV states that as proof that its programming occupies a special niche in the community and is not duplicated anywhere in the market, it should be noted that numerous individuals in Rifkin's communities who are extremely upset regarding the potential unavailability of its signal have petitioned the Commission for relief from this exclusion. 11. WWFD-TV argues further that no showing has been made that Rifkin's system would lose a local station already carried, or contemplated to be carried, in the event its request is not granted or that there is insufficient channel capacity to accommodate WWFD-TV's carriage. WWFD-TV maintains that Rifkin's attempts to limit must carry rights to specific coverage areas is misplaced given that Congress adopted an economic market approach, as designated by the ADI, rather than using distance or Grade B coverage to determine carriage rights. WWFD-TV points out that Rifkin ignores the fact that its signal is already being carried by multiple cable systems in Dade and Broward Counties despite having recently gone on-the- air. Moreover, WWFD-TV states that it has attracted a substantial amount of business from advertisers located in Dade and Broward Counties who clearly see WWFD-TV as part of their economic market. In addition, WWFD-TV argues that its station can scarcely have ratings or carriage history since it only went on-the-air in May, 1996. In any event, it avers, the Commission has held that low ratings and lack of historic carriage are of limited relevance in petitions seeking exclusion. While WWFD-TV admits that it does not provide Grade B service to the system's communities, it states that the Commission has specified that Grade B contours are "not to be used as any absolute measure of the scope of a station's market." Further, the carriage of other local stations by Rifkin does not lessen its communities' need of WWFD-TV's programming or obviate Rifkin's statutory obligations. Finally, WWFD-TV maintains that geographical remoteness is not a recognized basis for modification and is an argument that is undercut by the fact that WWFD-TV is currently carried on cable systems throughout the ADI which not only surround Rifkin's system, but are equally distant. 12. In it opposition WEYS states that it is located in Key West (Monroe County) which is legitimately a part of the Miami ADI. It argues that no showing has been made that Rifkin's cable system would lose a local station already carried, or contemplated to be carried, in the event its request is not granted or that there is insufficient channel capacity to accommodate WEYS' continued carriage. WEYS maintains that cable operators' attempts to limit must carry rights to specific coverage areas is misplaced given that Congress adopted an economic market approach, as designated by the ADI, rather than using distance or Grade B coverage to determine carriage rights. To demonstrate that Dade County herein is part of WEYS' economic market, the station points out that: a) it airs advertisements placed by Dade and Broward Counties' businesses; b) has been historically carried on Rifkin's system since November 1994 and other cable systems in the Miami ADI since it went on the air on June 15, 1993; and c) can be viewed off-the-air by a significant portion of the total population and by a majority of the Hispanic population. In a technical report on WEYS' coverage area, it was noted that out of the total population of the Miami ADI, the combined Grade B contours of WEYS and its associated translators cover a total population of 1,527,941. Out of this number, WEYS reaches approximately 841,391 subscribers, 682,086 of whom are Hispanic. 13. WEYS further argues that Rifkin mischaracterizes the relevance of the ADI's Hispanic population and ignores the ties the station has with this group. WEYS asserts that its programming cannot be considered "foreign" because Hispanics make up a significant percentage of the overall population in the Miami ADI, and the station serves these Hispanics with exclusive Latin American programming 24-hours a day. With regard to audience shares, WEYS states that it garners significant ratings during the period when locally-produced programming is being shown. The fact that its viewership is not as significant as those of the traditional networks or independents should not diminish its importance since, as a foreign-language specialty station, it is "capable of offer[ing] desirable diversity of programming" yet typically attracts limited audiences. Finally, WEYS argues that the licensee regulatory fee assessed by the Commission is an additional factor that weighs against granting the deletion requests. It avers that since it is required to pay a fee in the amount of $15,950 as part of the Miami ADI, it would be unfair and inappropriate to remove it as a must carry station in part of that same ADI. 14. In reply to the stations, Rifkin states that neither WWFD-TV nor WEYS offer sufficient evidence to counter the arguments raised in its petition. It maintains that the Commission has specifically rejected the stations' arguments that requires a petitioner to show that a "local" station would have to be dropped if the market modification is not granted. Moreover, Rifkin argues that WWFD-TV's reliance on the Commission's language in its Report and Order that a cable operator's must carry obligations takes priority over carriage of cable programming services ignores the clear intention that such priority should be given "to the carriage of local broadcast signals" (emphasis supplied). Rifkin does not dispute that the Act presumes must carry rights throughout a station's ADI, however, it avers that both WWFD-TV and WEYS ignore the section which states that market modification provisions "reflect a recognition 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 also adds that a cable operator's must carry obligation may be excused where a cable system "can point to particularized evidence that its community is not part of one station's market. . . ." 15. Rifkin re-states that both WWFD-TV and WEYS fare poorly under the four statutory criteria, the primary reason being that the stations fail to establish any nexus with the communities served by its system. While WWFD-TV implies that somehow the statutory criteria do not apply here, Rifkin argues that it is entirely appropriate for the Commission to consider these factors in its analysis. The fact remains, therefore, that WWFD-TV has never been carried on its system, states Rifkin, and WEYS provides no evidence of long-term carriage other than its novel claim of a history of carriage when compared to its time on air. Secondly, WEYS' use of translators to deliver its signal in certain areas cannot overcome its geographic remoteness since its coverage must be determined solely by its own location and signal transmission. According to Rifkin, translators have no independent carriage rights so they cannot be used to establish a "local presence" for purposes of local coverage. Third, the only evidence offered by WWFD-TV to establish a local nexus, continues Rifkin, is the station's "unique programming" resulting from its recent affiliation with Latin American programmer, Canal SUR. Rifkin states that it should be noted, however, that the Commission recently ruled in a virtually identical case that this programming is not "local" programming specifically directed to the subject communities." Thus, Rifkin argues that while WWFD-TV's programming, as well as that of WEYS, may be of general interest to both Hispanic and non-Hispanic alike, the fact remains that the "local coverage" of both WWFD-TV and WEYS consists of only one locally-produced talk show each. Indeed, states Rifkin, WWFD-TV's arguments in this regard only serve to highlight its misunderstanding of the underlying goals of the must carry rules where the relevant question is not whether programming is of general interest, but whether it covers local matters. 16. In addition, argues Rifkin, the list of advertisers provided by the stations is meaningless for purposes of establishing local coverage as there is no evidence that any of these advertisers are from its system's communities or are targeting those communities. Fourth, it points out that both WWFD-TV and WEYS ignore the fact that its system carries two local Spanish-language channels; this evidence rebuts WWFD-TV's and WEYS' assertions that each is the only 24-hour source for Spanish-language programming in the ADI. The radio editorials and letters of concern from residents referenced by WWFD-TV, avers Rifkin, were obviously solicited for purposes of this pleading and actually address the potential loss of Canal SUR's programming as a result of its decision to switch its affiliation from WEYS to WWFD-TV, and not by any action of the cable system. Fifth, while WEYS attacks Rifkin's use of Nielsen data for the entire ADI, it uses that same data to support its claim that it has "[v]ery significant viewing throughout the ADI. . . ." However, argues Rifkin, the station does not state that it has any appreciable viewership in the specific cable communities herein. Sixth, Rifkin argues that WWFD-TV's suggestion that the 92 Act's preference for ADI markets automatically precludes an analysis of a station's geographic location is not true. Moreover, its carriage on other cable systems in the market says absolutely nothing about WWFD-TV's coverage of the specific communities served by its system. Finally, Rifkin argues that the existence of regulatory fees is irrelevant in the market modification analysis; if WEYS feels it is saddled with an unfair fee, it should seek a waiver of that requirement. 17. In a supplement to its opposition, WWFD-TV submits copies of "hundreds of complaints" registered by local cable subscribers to Rifkin's system regarding its decision not to carry WWFD-TV. It argues that since it has already demonstrated in its opposition that three of the four statutory factors don't apply here, the only remaining applicable factor is local service. WWFD-TV maintains that its lack of Grade B service is immaterial given the reality that it provides programming of specific local interest and import to viewers in the relevant communities. This interest is demonstrated, it continues, by the following factors: a) the unusually high amount of carriage for a new station on surrounding cable systems; b) the large number of local advertisers; c) the ongoing controversy created by Rifkin's failure to carry WWFD-TV which is reflected in radio editorials, letters to the Miami Herald Spanish Edition, and the hundreds, if not thousands of complaint letters by subscribers unable to obtain WWFD- TV. WWFD-TV submits that the Commission cannot ignore this outpouring of local sentiment. In addition, WWFD-TV avers that the Commission's decision in Dynamic Cablevision of Florida, Ltd., supra, should not be held as an example here since the Commission has stated that it "judge[s] the merits of market modifications on a case-by-case basis." In any event, WWFD- TV states, the evidence provided by WEYS in Dynamic was different in substance and magnitude than that of the evidence which was presented herein. WWFD-TV argues that the key to the case is found in Congress' stated "objective to ensure that television stations be carried in the areas in which they serve and which form their economic market." Given the fact that there are substantially more Hispanic residents in Dade and Broward Counties than in either Key West or all of Monroe County, WWFD-TV maintains that it is clear that its Spanish-language programming is directed to Rifkin's residents and that those same residents perceive this to be true. 18. Rifkin requests in reply that WWFD-TV's supplement be stricken as it is not permitted by the Commission's rules and the station did not file for leave to accept an unauthorized pleading. In any event, Rifkin states that the complaint letters contained therein are irrelevant to this proceeding. Almost all, it continues, are undated form letters which do not show any nexus between the station's programming and the system's communities nor is there any proof that they come from subscribers to Rifkin's system. Moreover, such letters should not be given any weight since as the Commission no longer regulates program format, which can be changed by the station at will, it is irrelevant what type of format is being advocated by WWFD-TV's form letters. Finally, WWFD-TV's argument that it satisfies the local programming factor because there are more Hispanics residing in Broward and Dade Counties than in Key West is similarly irrelevant since such demographics fail to address whether WWFD-TV offers local programming to the specific communities herein. 19. WWFD-TV notes in reply that in a recent decision the Commission denied a Motion to Strike a supplement "noting, inter alia, that the information provided in the Supplement was not available prior to the earlier filing deadline and that there was a lack of any apparent injury to the adversary." In this case, WWFD-TV states that the information in its supplement was not available earlier and it submits a formal request for leave to file a supplement. Therefore, the Commission should accept it in order to obtain as complete a record as possible for this proceeding. Rifkin objects to WWFD-TV's late-filed request for leave to file a supplement stating that since the request was submitted more than thirty days after submission of the supplement the request is procedurally defective. 20. In a subsequent submission filed by WEYS, the station incorporates by reference exhibits attached to its petition for reconsideration in Dynamic Cablevision of Florida, Ltd. These exhibits reflect: a) The changes in WEYS' programming since August 1, 1996 -- WEYS is now transmitting the programming of CBS TeleNoticias, an around-the-clock Spanish-language news service headquartered in Hialeah, Florida. b) The competitive posture of the Key West stations in the Miami ADI -- without carriage throughout the ADI, it is not possible for the Key West stations to compete with the larger market stations. c) The strong economic link between Key West stations and the communities in Dade and Broward Counties -- according to the station's operations manager, approximately 90% of WEYS' advertising revenues have been obtained through local advertisers seeking to reach Spanish-speaking communities in those two counties. MUST CARRY ARGUMENTS 21. In the complaint filed by WWFD-TV, it requests the Commission to order Rifkin's system to carry its signal for the following reasons: a) Its complaint was timely filed. WWFD- TV states that it requested carriage on Rifkin's system by letter dated May 13, 1996 in which it notified Rifkin that it would deliver a broadcast quality signal to the system's headend by July 1, 1996. Rifkin failed to respond to this letter, but instead filed its market modification petition to exclude WWFD-TV from its system. WWFD-TV states that it filed its complaint within 60 days of Rifkin's waiver request and the July 1st delivery date of its signal. b) As a commercial television station operating within the same ADI market as Rifkin's system, WWFD-TV is entitled to carriage pursuant to Section 614 of the Communications Act and the Commission Rules. c) WWFD-TV has fully complied with all of the requirements for mandatory carriage of its signal on the system -- Rifkin's system is devoting less than one-third of its channel capacity to mandatory signal carriage, WWFD-TV delivers a good quality signal to the cable system's headend via fiber optic cable, and no other currently-carried television station substantially duplicates its programming. 22. In its opposition, Rifkin incorporates by reference the arguments raised in its market modification request and argues that the complaint herein cannot be resolved until such request is resolved. It states, however, that should its modification request be denied, it will fully comply with its must carry obligations in this regard. DISCUSSION 23. Based on the four statutory and other relevant factors, Rifkin'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 serve 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 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 the relevant factual circumstances in the record, we believe that the instant operator's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Rifkin's action does not reflect an intention to skirt its signal carriage responsibilities under the 1992 Cable Act and the Commission's Rules nor does it evidence a pattern of discriminatory conduct against the station. 24. We now turn to the four part market modification analysis. At the outset, we note one of the broadcast stations herein, WWFD-TV, has no history of carriage in the cable communities in question while the other, WEYS, has been carried for a relatively short period of time (factor I), both stations have virtually no over-the-air audience in the counties where the cable communities are located (factor IV), and neither provide the cable communities with service as measured by their Grade A or Grade B service contours (factor II). Given the statutory directive, weight must be given to these factors, but that must be done bearing in mind that the objective of the Section 614(h) process is to "better effectuate the purposes" of the broadcast signal carriage scheme. Thus, with respect to the question of historical carriage patterns, attention must be paid to the circumstances from which such patterns developed. Some stations have not had the opportunity to build a record of historical carriage for specific reasons that do not necessarily reflect a judgment as to the geography of the market involved. Thus, the historical carriage factor -- to the extent such lack of carriage is reflective of factors outside the shape of the market -- is not by itself controlling in these circumstances because such an implementation of the 1992 Cable Act would, in effect, prevent weaker stations, that cable systems had previously declined to carry, from ever obtaining carriage rights. As such, the evidence relating to this statutory factor does weigh in favor of excluding the Rifkin cable system communities from the market of the stations but is not outcome determinative by itself. 25. With regard to viewership, we recognize that, as a newer station which only went on-the-air in May 1996, WWFD-TV has not had as much time as other stations to build an audience. We also recognize that a station's lack of carriage could also explain why its ratings are low in the relevant cable communities. As noted in paragraph 5 above, viewing patterns and/or significantly viewed surveys to be relied upon in ADI requests are ideally to be conducted on a community-by-community basis. The methodology inherent in such surveys is considerably stricter and a better indication of actual viewing patterns in individual communities. In any case, even when we accept county-wide surveys, it should be taken into account that stations can take up to three years to establish their viewing patterns. That is why 76.54 of our rules allows viewership data from the first three years of operation. 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 station 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. 26. On the other hand, a station's local service to cable communities is one of the relevant factors to consider in this particular case that is not influenced by the type or age of the station involved or historical carriage. Service may be measured through geographic means: by examining the distance between the station and the cable communities subject to the deletion request and taking into account natural phenomena such as waterways, mountains and valleys which tend to separate communities. A station's broadcast of local programming, which has a distinct nexus to the cable communities, is also evidence of local service. Finally, a station's Grade A or Grade B contour coverage is an additional indicator of local service and we will weigh the presence or absence of such technical coverage accordingly. We note here that the broadcast signal carriage rules were not intended to transform a station with a restricted market and service area into a regional "super-station" that must be automatically carried in every single community in an ADI, particularly one as large as Miami. If this were the case, then Congress would not have included a deletion mechanism as it had in Section 614(h) of the Communications Act. 27. The availability of other broadcasters in the market is another factor to consider in market deletion cases such as this one. 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 a 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. Here, the Miami affiliates, as well as the Spanish-language stations WSCV and WLTV, which have a closer economic nexus and cast a City Grade signal over the cable communities, provide subscribers residing in the cable communities with targeted local newscasts and public affairs programming. 28. Considering the above, the task in this proceeding is how to reflect the statutory factors in our decision while at the same time recognizing the difficulties of applying these factors to stations of recent origin or more specialized formats. A decision based strictly on the four statutory modification factors -- historical carriage, service, other stations' presence, and audience information -- would simply exclude Rifkin's communities from WWFD-TV's and WEYS' market. Attempting to take into account the particular difficulties faced by such stations in light of the purposes of the carriage rule, would result in a smaller number of exclusions. However, even taking into account the difficulties of applying these factors to new stations and those with specialized formats, it is hard to find supporting evidence and to conclude that Rifkin's communities warrant inclusion. The fact that a station is new or of specialized appeal does not mean that its logical market area is without limits. Thus, the problem here is where logical market boundaries may properly be established between the extremes. Given the difficulty of direct reliance on the statutory factors (which demonstrate only limited connections between the cable communities and the two stations), we focus here more heavily on basic geographic and technical features, mileage and Grade B contour, that provide a clearer picture and the best available alternative evidence of the market boundaries of the station subject to deletion here. Given the state of evidence in this proceeding, no other alternative appears to be available to accomplish the objective of Section 614(h). WWFD-TV 29. Rifkin's request to delete WWFD-TV from its ADI for the purposes of the broadcast carriage rules is granted. WWFD-TV, which signed on-the-air May, 1996, broadcasts the programming of SUR Corporation, a signal originating in South America, which broadcasts a mix of foreign-language, sports and general entertainment programming. The station's city of license is Key West, Florida. It lacks measured audience (cable and non-cable) and historic carriage in all of the cable communities that Rifkin has requested be deleted and all of the communities involved are outside of WWFD-TV's Grade B contour. While the programming offered by WWFD-TV can be considered to be of general interest to the ADI's Hispanic population as a whole, neither it nor the locally-produced programming WWFD-TV cites in its opposition, can be considered to be specifically relevant to Rifkin's communities. It is also generally undisputed that the cable communities receive an abundance of local news, sports, and public affairs broadcasts from other closer stations. Further, the communities served by Rifkin's system are all more than 115 miles outside of WWFD-TV's predicted Grade B contour. WWFD- TV is on average 136 miles away from Rifkin's cable communities. Finally, it should be noted that while WWFD-TV submitted a list of the cable systems on which it is carried, it did not provide a list of the specific communities served by each system. In addition, the list of advertisers provided by WWFD-TV fails to establish a specific connection to Rifkin's communities. WEYS 30. Rifkin's request to delete WEYS from its ADI for the purposes of the broadcast carriage rules is granted. With regard to historic carriage, we do not believe that the station has satisfied this prong as WEYS has had only a brief history of carriage on the system and Rifkin has carried the station under mandate of the 1992 Cable Act. Therefore, the fact that some Miami ADI systems may carry WEYS when mandated by law is not highly probative of establishing a history of carriage for our purposes here. Furthermore, it should be noted that all three of the cable systems cited by WEYS as carrying its signal have filed modification requests to delete WEYS from their systems. All of these petitions have been granted. Rifkin has shown that WEYS does not provide local service to the communities in question. WEYS is geographically distant from the subject cable system with South Beach, the closest of Rifkin's communities more than 115 miles away. WEYS does not place either a Grade A or Grade B contour over the cable communities. While we recognize that the translators which retransmit WEYS' signal may encompass some of the cable communities in question, translators do not have carriage rights under Section 614 and given all the circumstances here do not evidence that the cable communities are within the station's natural market, especially in densely populated areas. We also note that the two translators that retransmit WEYS' programming, are by WEYS' own admission, owned by another entity and not by WEYS itself. We also do not find that WEYS currently provides local programming specifically directed to the subject communities. While the programming that it does offer can be considered to be of general interest to the ADI's Hispanic population as a whole, neither it nor the locally-produced programming WEYS cites in its opposition, is claimed to be specifically relevant to Rifkin's system. Further, it should be noted that the list of advertisers provided by WEYS fails to establish a specific connection to Rifkin's communities. While the station's operations manager alleges that 90% of the station's revenue comes from these same advertisers, he does not provide any figures in support of this allegation. It is also apparent that WEYS has no audience shares. While WEYS may have reportable ratings during certain dayparts in the ADI as a whole, we do not find such evidence rises to a level sufficient to satisfy the fourth market modification factor, particularly when, according to the 1995 Nielsen Station Index, WEYS is not even listed for Dade County. Finally, WEYS' payment of a regulatory fee pursuant to 1.1153 of the Commission's rules is irrelevant in this context. We agree with Rifkin that WEYS should seek relief under the Commission's fee rules if such payment is believed to be unfair or unduly burdensome. ORDERING CLAUSES 31. 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 (CSR-4476-A) filed on behalf of Rifkin/Narragansett South Florida, CATV Limited Partnership, d/b/a Gold Coast Cablevision IS GRANTED. 32. IT IS FURTHER ORDERED, that WWFD-TV's complaint filed August 12, 1996 (CSR-4809-M) against Rifkin's system IS DISMISSED as moot. 33. 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