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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) Service Electric Cable TV of New Jersey, Inc.)CSR-4803-A ) for Modification of the ) Television Market for Stations: ) WTBY, Poughkeepsie, NY ) WRNN, Kingston, NY ) WLIG, Riverhead, NY ) WHAI, Bridgeport, CT ) MEMORANDUM OPINION AND ORDER Adopted: December 16, 1996Released: December 20, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1.Service Electric Cable TV of New Jersey, Inc. ("Service Electric"), has filed the above captioned petition seeking to modify the New York "area of dominant influence" (ADI) relative to television broadcast stations WTBY (channel 54), Poughkeepsie, New York; WRNN (channel 62), Kingston, New York; WLIG (channel 55), Riverhead, New York; and WHAI-TV (channel 43), Bridgeport, Connecticut. Specifically, Service Electric requests that the communities it serves, which are located in New Jersey's Sussex and Warren Counties, both of which are assigned to the New York ADI, be deleted from the television market of each station for purposes of the cable television broadcast signal carriage rules. Oppositions to this petition were filed by Trinity Broadcasting of New York, Inc., licensee of WTBY-TV; WRNN-TV Associates Limited Partnership, licensee of WRNN-TV; Paxson New York License, Inc., licensee of WHAI-TV; and WLNY-TV, Inc., licensee of WLNY-TV, formally WLIG-TV. Service Electric submitted a reply to these oppositions. BACKGROUND 2.Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-25, commercial television broadcast stations are 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 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 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. MARKET MODIFICATION ARGUMENTS 8.Each television station here in question is assigned to the New York ADI. Service Electric's Sussex/Warren cable system and the communities noted above are located within the New York ADI as well. The principal headend for Service Electric's Sussex/Warren system is located in Sparta, New Jersey. The technical facilities of WTBY are approximately 60 miles from Sparta; the facilities of WRNN are approximately 80 miles from Sparta; the facilities of WLIG are approximately 90 miles from Sparta; and the facilities of WHAI are approximately 82 miles from Sparta. 9.In its petition for special relief, Service Electric requests that the television markets of WTBY, WRNN, WLIG and WHAI be modified for must-carry purposes, because Service Electric believes that forced carriage would have a negative impact on its ability to provide desired programming. Service Electric also believes that its modification request is justified because none of the stations provide local programming of interest to the communities in question nor do they satisfy any of the other market factors enumerated in Section 614(h)(1)(C)(ii) of the Communications Act. WTBY 10.With respect to WTBY and the first statutory criterion, Service Electric states that it did not carry WTBY from the date of its sign-on in 1981 until March 27, 1995. Service Electric states that WTBY's transmission tower is approximately 60 miles from its Sparta headend. Service Electric states that it began carrying WTBY in 1995 only after a long series of discussions with the station concerning its must-carry status. Some of the problems included high copyright costs (alleviated by the 1994 Satellite Home Viewer Act), and, more fundamentally, the failure of WTBY to deliver a usable signal to the Service Electric headend. WTBY's predicted Grade B contour just covers Sparta. In order to receive a usable signal, Service Electric continues, the system was forced to place the receive antenna at the 100 foot level of its headend tower, which is itself on a peak, and install a pre-amp between the receive antenna and the headend equipment to boost the signal because of line loss due to the long distance between the antenna and the headend equipment. Service Electric then argues that short-term carriage of WTBY, after 15 years of operation, does not support continued carriage of WTBY. WTBY's carriage has been manufactured by a series of statutory mandates and engineering work, not the natural outgrowth of the market is actually serves and as such, Service Electric concludes, WTBY has not met the requirements under the first statutory factor. 11.Service Electric then argues that WTBY fails to provide any coverage of news, sports, or public affairs, on a national or local level for subscribers to Service Electric's Sussex/Warren system and notes that WTBY is affiliated with the Trinity Broadcasting Network. Next, Service Electric states that each of the communities that its seeks to exclude from the respective television markets currently receive substantial amounts of local coverage of news, sports, and public affairs from other media outlets. Service Electric states that residents in Sussex and Warren counties align themselves very closely with New York City and that many of its subscribers work in and commute into the greater New York metropolitan market. As such, Service Electric continues, those subscribers are interested in the New York area news delivered by the ten New York City and New Jersey television stations currently carried on the systems. Service Electric contends that WTBY's predominantly religious programming does not deliver anything unique to its subscribers. As evidence, Service Electric states that it carries the Faith & Values Network, Eternal World Television Network, as well as WMBC, Newton, New Jersey, which offers significant amounts of religious programming. 12.As for local viewing, Service Electric states that it believes that WTBY has no market share and is not significantly viewed in any of the affected communities. In five customer surveys conducted over the last five years, Service Electric continues, the most recent in 1995, no subscriber has requested that WTBY be added to the channel lineup of the system. Indeed, Service Electric states that it has received many requests from subscribers requesting that the system drop either WTBY or WMBC, based on the perception that the system carried too much of the programming type offered by these stations. In reaction to these subscriber requests, Service Electric states that it now seeks to remove WTBY from its must-carry zone. 13.In opposition, WTBY contends that Service Electric has failed to show that the communities it serves should be deleted from WTBY's market. In fact, WTBY states that Service Electric has been carrying the station for over a year, after having already acknowledged it was part of the same market and entitled to carriage. WTBY stresses that its Grade B contour covers virtually all of the areas in question, primarily Sussex and Warren Counties, and a review of its locally produced "Praise the Lord" program shows numerous participants from Sussex and Warren Counties. WTBY also points our that Service Electric carries a Philadelphia station, WPHL, which not only fails to put a Grade B service over the areas in question, but for which there has been no showing that it provides any valuable local service. WTBY states that to remove the station now would create a serious and unwarranted market disparity. 14.WTBY also argues that Service Electric has failed to make a case for deleting the communities under the four statutory market modification factors. In addition, WTBY argues that it provides many programs which are of substantial interest to the subscribers in Service Electric's service area. In essence, WTBY argues that because of its unique and important local service, carriage of WTBY fulfills the imperatives of the Cable Act, and will insure that a wide variety of diverse program services are provided to cable subscribers. Finally, WTBY argues that viewership is an inappropriate factor for the Commission to consider in deletion requests because religious stations typically have limited audiences. 15.In reply, Service Electric argues that its short carriage of WTBY does not demonstrate the long-term carriage contemplated by Congress. Service Electric also replies that WTBY places too much emphasis on the fact that it delivers a usable signal to the headend. Instead, Service Electric states that, for purposes of the statutory factors under Section 614(h), coverage of the affected communities, where WTBY does not provide a clear signal, as a whole must be weighed. Service Electric also stresses that it does not seek to exclude WTBY from the entire New York ADI, but rather only from the edge of that ADI where Service Electric operates. A review of WTBY's programming exhibit demonstrates that the vast majority of its programming is network provided, having nothing to do with the New York ADI, let alone Sussex or Warren county, New Jersey. In summary, Service Electric replies that WTBY fails to demonstrate that: (1) it adequately covers the communities to be excluded; (2) those communities are generally able to receive its off-air signal; (3) the communities are not otherwise served by qualified stations; and (4) WTBY enjoys any significant viewership. WRNN 16.With regard to WRNN, Service Electric states that it has never carried the station since it began broadcasting in December 1985. Service Electric asserts that WRNN's transmission tower is located nearly 80 miles from the Service Electric headend and that its Grade B contour falls 10 miles short of the headend. Though WRNN has offered to deliver a usable signal to the headend, Service Electric points out that for purposes of a Section 614(h) analysis, a station can rely only on its over-the-air signal, and not distance-expanding devices such as fiber optic links or translator stations. Service Electric states that the TV Guide listing available to its subscribers does not include WRNN as one of the core television stations in the market, nor does it provide a breakdown of WRNN's programming. Though WRNN was assigned to the New York ADI by Arbitron, Service Electric stresses that the station has been assigned to the Albany-Schenectady-Troy DMA by Nielsen. 17.Service Electric argues that its subscribers already receive an abundance of local news, sports, movies, public affairs, and syndicated programming from other stations, and thus the addition of WRNN's programming would not enhance Service Electric's subscribers' viewing options, especially from a localism standpoint. As for local viewing, Service Electric states that it believes that WRNN has no market share and is not significantly viewed in any of the affected communities. In five customer surveys conducted over the last five years, Service Electric continues, the most recent in 1995, no subscriber has requested that WRNN be added to the channel lineup of the system. 18.In its opposition, WRNN states that Service Electric's minimal showing does not justify the extraordinary relief it seeks. As support, WRNN argues that Sussex and Warren Counties are precisely the locales where Congress intended that stations such as WRNN would have must carry rights. WRNN states that it's programming format is largely modeled after the "newswheel" format of CNN "Headline News," broadcasting substantially news and information with a local orientation. It also broadcasts "soft news" and informational features, sports, weather, interviews, location stories, bureau feeds, and other news and information segments. WRNN maintains that it has garnered awards for its news and public affairs programming and has built significant viewership in Kingston and surrounding areas. In addition, WRNN states that it has plans to add news bureaus in Westchester and Rockland Counties and eventually in Fairfield County, CT and Bergen County, NJ. WRNN argues that its programming format is valuable to the public and maintains that Service Electric's argument (i.e., that WRNN does not serve the community interests of its subscribers) is grounded largely on the station's alleged geographic remoteness from the system's headend. 19.WRNN then argues that Service Electric's petition is inconsistent with the intent of Congress to foster increased competition in the local television market. WRNN states that contrary to Service Electric's assertions, WRNN does not contend that its ability to deliver a good qualify signal via fiber renders the station local. Rather, WRNN states that its programming qualifies as local service to the affected communities. WRNN also states that its extensive local programming constitutes local service. WRNN states that it broadcasts 49 1/3 hours per week of original, locally produced news, public affairs, sports, children's informational and other locally-directed programming not duplicated on any other stations on Service Electric's system. In addition, WRNN states that it has a fully-functioning news bureau in Piscataway, New Jersey and now has a nightly newscast from New Jersey. In short, WRNN states that its signal enhancing and new programming efforts provide the local service that Congress stated the Commission should consider as critical factors in refusing to modify ADIs. Service Electric does note, and cannot, WRNN continues, point to other stations providing the extensive local news coverage to New Jersey viewers, especially in prime time, or the novel locally-oriented interactive programming present on WRNN's schedule. 20.WRNN also claims that Service Electric incorrectly asserts that Nielsen Media Research moved the station from the New York DMA to the Albany-Schenectady-Troy DMA. WRNN states that Service Electric knows, that the station is and will continue to be in the New York DMA and attaches a letter from Nielsen confirming that WRNN is in the New York DMA. Besides, WRNN concludes that Arbitron's 1991-92 Television ADI Market Guide, not WRNN's DMA designation, is the sole determininant of WRNN's statutory must carry market until January 1, 2000. 21.Service Electric replies that WRNN's claimed "widespread coverage" in New Jersey must be tempered against specific finding that WRNN does not provide local service to large areas in New Jersey as evidenced by several decisions excluding other New Jersey communities from WRNN's ADI. Service Electric also states that WRNN fails to place a Grade B contour into the heart of the Service Electric system and that the distance between the station and its system attenuates any local ties that the station has to Sussex and Warren County, New Jersey. Finally, Service Electric concludes by stating that WRNN has failed to demonstrate any viewership numbers in Sussex and Warren counties. WLIG 22.Service Electric states that is has never carried WLIG. Service Electric further states that WLIG's transmission tower is some 103 miles from Sparta, New Jersey, where Service Electric's headend is located. With regard to local coverage, Service Electric states that WLIG's Grade B contour falls fifty miles short of its headend. 23.Service Electric argues that its subscribers already receive an abundance of local news, sports, movies, public affairs, and syndicated programming from other stations, and thus the addition of WLIG's programming would not enhance Service Electric's subscribers' viewing options, especially from a localism standpoint. As for local viewing, Service Electric states that it believes that WLIG has no market share and is not significantly viewed in any of the affected communities. In five customer surveys conducted over the last five years, Service Electric continues, the most recent in 1995, no subscriber has requested that WLIG be added to the channel lineup of the system. 24.In its opposition, WLIG states that Service Electric has failed to demonstrate why WLIG should be denied carriage on its Sussex/Warren system. WLIG argues that Congress did not intend market modification procedures to be used to eviscerate must-carry rights by establishing an arbitrary cap on the amount of local programming which will be available to subscribers. The station argues that Service Electric never stated that carriage of WLIG would result in any loss of local programming on its Sussex/Warren system; rather, Service Electric seeks the right to unilaterally decide which New York ADI stations will provide sufficient local programming to its subscribers. WLIG also believes that Service Electric seeks to carry cable programming services in lieu of local stations which do not satisfy its self-created local programming quota. WLIG states that this is precisely the sort of "manipulation" which Congress intended to avoid in enacting the market modification provisions of the 1992 Cable Act. 25. WLIG then argues that Service Electric has misapplied the four market modification factors. With respect to historic carriage, WLIG maintains that Service Electric cannot sensibly argue that the condition which prompted Congress to give WLIG must-carry rights (i.e., lack of historic carriage) is a basis for eliminating those very same rights. Indeed, WLIG claims that its lack of historic carriage only provides justification for preserving WLIG's must-carry rights on Service Electric 's Sussex/Warren system. With regard to local service, WLIG argues that Congress rejected a mileage-based must-carry standard in favor of one based on a commercial television station's market and that the Commission should ignore Service Electric's geographic proximity argument. 26.In addition, WLIG maintains that Service Electric ignores the economic and community ties which unite Sussex and Warren Counties with the rest of the New York ADI. WLIG argues that both counties are part of the New York ADI for purposes of national television advertising, promotion, audience measurement, and programming. Furthermore, WLIG states that its economic base and its goals for its news and public affairs programming are market-wide in scope, encompassing the "local" interests and concerns of the New York metropolitan area, including Sussex and Warren Counties. For instance, WLIG states that it devotes a significant amount of air time to local, regional, and state-wide news coverage, and broadcasts a significant number of locally produced public service announcements which focus on the interests of local and regional viewers. WLIG states that it has also successfully completed carriage arrangements with a number of major cable television operators in New Jersey, which, incidentally, are more distant from the station than those in Sussex or Warren County. In sum, WLIG claims that it will be carried in over 3,000,000 cable homes in the New York ADI, including 700,000 subscribers in northern and central New Jersey. WLIG states that this demonstrates that the New Jersey cable systems described above have accepted that WLIG's programming serves their communities. WLIG further states that its daily news coverage, sports, and other local programming specifically includes northern and central New Jersey communities and is of substantial interest to viewers throughout the entire New York ADI. As support, WLIG states that during the 1994 and 1995 college football seasons, it was the only station in the New York ADI to broadcast a complete college schedule of Metro Atlantic Athletic Conference football games, which includes universities in New Jersey. WLIG also states that it plans to air a schedule of Ivy League football games, which includes Princeton University, located in Princeton, New Jersey. 27. Service Electric replies that the most WLIG can say about its programming is that its goals for news and public affairs programming are ADI in scope, encompassing the local interests and concerns of the New York metropolitan area. Service Electric reiterates that WLIG has never been carried on its Sussex/Warren system, it is located approximately 103 miles from Service Electric's headend, its Grade B contour does not come close to covering any of the affected communities, and WLIG provides no specific examples of news, public affairs or other local programming on its station that is responsive to the interests of the Sussex and Warren County residents. WHAI 28.Service Electric states that is has never carried WHAI, which has a home shopping format. Service Electric asserts that WHAI's transmission tower is located over 82 miles from the Service Electric headend and that its Grade B contour falls 50 miles short of the headend. The operator also asserts that WHAI's translator W23BA (East Orange, NJ), also fails to deliver a good quality signal to the headend in question. Service Electric states that the TV Guide listing available to its subscribers does not include WHAI as one of the core television stations in the market, nor does it provide a breakdown of WHAI's programming. 29.Service Electric argues that its subscribers already receive an abundance of local news, sports, movies, public affairs, and syndicated programming from other stations, and thus the addition of WHAI's programming would not enhance Service Electric's subscribers' viewing options, especially from a localism standpoint. As for local viewing, Service Electric states that it believes that WHAI has no market share and is not significantly viewed in any of the affected communities. In five customer surveys conducted over the last five years, Service Electric continues, the most recent in 1995, no subscriber has requested that WHAI be added to the channel lineup of the system. 30.In opposition, WHAI first asserts that the statutory must carry scheme contemplates market-wide carriage, provided that the station takes the necessary steps to deliver a good quality signal. The station believes that Service Electric ignores this premise as well as Congressional intent to narrowly limit a cable operator's ability to diminish a local broadcast station's must carry market. Here, WHAI argues that the only "conceivable circumstance in which deletion of a local station would enhance localism is the rare instance of a capacity-constrained cable system being unable, in the absence of a deletion, to carry the signal of another station (e.g., a nearby but out-of-the-market station) that provides demonstrably more local service." WHAI argues that WHAI does not claim that carriage of WHAI would force it to drop a more local but out-of-the-ADI over-the-air television signal. 31.WHAI alternatively argues that it provides local service to the New Jersey cable communities and satisfies each prong of the four factor market modification test. WHAI asserts that the historical carriage factor is not controlling because it would prevent weaker stations, like itself, which cable systems had previously declined to carry, from ever being carried. As for carriage of other local stations, WHAI remarks that this factor is analytically important only when a station requests a community to be added to a market, not when a cable operator seeks to delete a community from a market. With regard to its lack of viewership, WHAI asserts that ratings have no probative value when a cable operator seeks deletion of a specialty station because such stations typically attract very limited audiences. 32.Turning to local service and coverage, WHAI asserts that Service Electric's reliance on Grade B coverage is inapt as Congress did not assign television markets, for must carry purposes, based on this criterion. Similarly, WHAI notes that Congress specifically rejected a mileage-based approach when it defined a station's market by reference to an ADI. With regard to its programming format, WHAI asserts that it provides an effective advertising platform for local merchants and other business, and "provides a means for local businesses and community and minority organizations to communicate" to residents of northern New Jersey. WHAI argues that even a small amount of local programming advances the value of localism and that neither the 1992 Cable Act nor the legislative history suggests any threshold or minimum criterion for local programming. It also remarks that a substantial number of residents of the cable communities can receive an over-the-air signal from its low power stations, WNYA and W23BA (East Orange, NJ). 33.In its reply, Service Electric argues that WHAI ignores the 1992 Cable Act and numerous Commission and Bureau decisions, when presenting its arguments in opposition to the petition for special relief. With regard to WHAI's position that stations may only be deleted where an out-of-market station can be shown to be more "local," Service Electric argues WHAI's proposal would flout Congress' dictate that markets may be modified where television station's ADI does not accurately reflect the station's true local geographic, political and economic service area. Service Electric also asserts that the Bureau found that WHAI is not local, and therefore not part of the market, in other cases involving other New Jersey cable operators. 34.With regard to the historical carriage factor, the operator asserts that the Commission should take this factor into account in considering both additions and deletions to a television station's market. Service Electric also states WHAI ignores the fact that historical carriage, in combination with other factors, becomes highly relevant in cable operator petitions seeking to exclude communities from a television station's market. The operator also reiterates that WHAI does not provide local service to the systems' cable communities. Service Electric asserts that WHAI tries to hide the fact that it provides no local coverage by attempting to transfer must carry rights to its low power stations. The operator also states that WHAI's own programming lists reveal no local New Jersey programs and that the station's future programming plans are purely speculative. As for WHAI's arguments regarding the irrelevancy of geographic distance and Grade B contour coverage, the operator asserts that the Commission has recognized both of these factors as pertinent considerations with respect to the second statutory factor. Finally, Service Electric claims that WHAI does not dispute the showing that it is barely watched in the New York market nor did the station deny the fact that Service Electric's cable subscribers receive an abundance of local programming from other broadcast stations and cable sources. MARKET ANALYSIS AND DECISION 35.Based on the four statutory and other relevant factors, Service Electric'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 the relevant 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 and to take into account the relevant statutory factors. Service Electric's actions do not reflect an intention to skirt its signal carriage responsibilities under the 1992 Cable Act and the Commission's rules nor do they evidence a pattern of discriminatory conduct against the stations subject to deletion. Our decision with respect to each station is set forth below. 36.New York is the nation's largest television market with approximately 6.7 million television households. Approximately 68% of the households in the market subscribe to cable service. Geographically, the market encompasses some 29 counties in four states, and is roughly 170 miles long and 150 miles wide, stretching north into Ulster County and the Catskill Mountains then down to the shores of Monmouth and Ocean Counties, New Jersey to the south; Pike County, Pennsylvania is at the westernmost edge of the market which then extends eastward to include Fairfield County, CT and all of Long Island, NY. The heart of the ADI is New York City, the largest city in the United States and the community of license for a number of local commercial television stations. 37.We note as a preliminary matter that Service Electric and the other cable operators serving communities in the New York ADI recognize that this television market is unusually large in terms of geography and population, and for this reason created the NYI interconnect so that local advertisers can reach as many subscribers as practically possible through the cable television medium. Based on the record and other indicia, we believe that the interconnect was designed to achieve efficiencies in selling advertising time and as a tool in maximizing advertising revenues and does not necessarily reflect a collective viewpoint on the part of these operators that the New York ADI is in fact one uniform and homogenous television marketplace. The interconnect is divided into four sub-zones for advertising purchasing purposes: (1) Northern and Central New Jersey; (2) New York City; (3) Long Island; and (4) Upstate New York/Fairfield County, CT (including, among others, Rockland and Westchester Counties). Service Electric and the other cable operators appear to have recognized that different demographics and consumer patterns exist within the sub-zones and planned their marketing strategy accordingly. Since the evidence suggests that the interconnect was not intended to mirror a tightly knit ADI, we do not see its existence as supportive of the broadcasters' contention that only a single indivisible market is involved. 38.We now turn to the four part market modification test set forth in Section 614(h). At the outset, we note that the broadcast stations here in question generally have no history of carriage in the cable communities in question (factor I), have virtually no over-the-air audience in the cable communities (factor IV), and provide many of the cable communities with no 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, such as, for example, the stations' past distant copyright status. Thus, the historical carriage factor -- to the extent such lack of carriage is reflective of factors outside of 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 like WLIG, WRNN, WTBY, and WHAI-TV, that cable systems had previously declined to carry, from ever obtaining carriage rights. As such, failure to satisfy this statutory factor does weigh in favor of exclusion of the Service Electric cable systems from the markets of the stations but is not outcome determinative by itself. 39.With regard to viewership, the stations' lack of carriage could also explain why its ratings are low in the relevant cable communities and in the entire New York ADI. Moreover, Congress could not have intended for these stations to have cable communities deleted from their markets solely because their audience shares are not as significant as those of the several other stations 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. We also recognize that WHAI-TV is a newer station located in a community outside the core market of New York City, and that it has not had enough on-air time to build an audience. 40.On the other hand, the stations' local service to the 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 stations involved or historical carriage. Service may be measured through geographic means: by examining the distance between the station and the cable community subject to the deletion request and taking into account natural phenomena such as waterways, mountains, and valleys which tend to separate communities and define natural markets. A station's broadcast of local programming, which has a distinct nexus to the cable community, is also evidence of local service. Finally, a station's 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 an otherwise local station into a regional "super- station" that must be automatically carried in every single community in an ADI, particularly one as large as New York. If this were the case, then Congress would not have included a deletion mechanism as it had in Section 614(h) of the 1992 Cable Act. 41.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 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 New York network affiliates, as well as the Spanish language stations Univision and Telemundo and a number of noncommercial stations, provide subscribers residing in the cable communities with targeted local newscasts and public affairs programming. Also, the majority of the New York ADI stations have transmitters located atop of the World Trade Center in lower Manhattan and provide a Grade B contour covering Bergen County and almost every other County in the New York market. 42.As has been indicated in other Section 614(h) proceedings involving most of these same stations, given the difficulties of relying exclusively and explicitly on the statutory factors of historical carriage, service, other station's presence, and audience information which would severely restrict the carriage rights of new stations and stations with specialized formats, we have found it necessary to focus more heavily on basic geographic, demographic, and political features which provide the best available alternative evidence of the market boundaries of the stations involved. WTBY 43. Service Electric's request to delete WTBY from its ADI for the purposes of the broadcast carriage rules will be granted. WTBY, which signed on-the-air in 1981, is an affiliate of the Trinity Broadcasting Network and broadcasts religious programming on channel 54 from a transmitter located on Illinois Mountain in Highland, NY. The station's city of license is Poughkeepsie, NY (Dutchess County) with its studio located in Fishkill, NY. Although we note that WTBY's Grade B contour encompasses the northernmost communities served by Service Electric's Sussex/Warren system, the majority of the communities fall outside this contour. Moreover, the cable communities are approximately 60 miles or more away from the station. The elevated terrain and other geographic obstacles also serve to attenuate the connection between the cable communities and the station. The station's programming does not appear to be specifically tailored to the interests and needs of the communities at issue and therefore does not work to establish a connection between the station and Service Electric's subscribers. We also note that Service Electric carries WMBC, Newton, New Jersey, which, like WTBY, offers significant amounts of religious programming. In short, the presence of the closer New York City and New Jersey television stations many of which are carried on the system, exhibit a stronger nexus to the operator's subscribers through their programming efforts and Grade A contour coverage. WRNN 44. Service Electric's request to delete WRNN from its ADI for the purposes of the broadcast carriage rules will be granted. WRNN, which signed on-the-air in 1985 as WTZA, broadcasts on channel 62 from a transmitter located on Overlook Mountain in Woodstock, New York. The station's city of license is Kingston, New York (Ulster County) with its original (main) studios located in Kingston and New Windsor, New York. We note that while Kingston, NY, is physically situated in the New York ADI, Nielsen Media Research has, in its most recent report, assigned the station to the Albany-Schenectady-Troy television market. Service Electric's cable communities are approximately 80 miles away from the station and are outside the station's Grade B contour. The presence of other television stations which provide ample coverage of local news and public events and are located within 15 miles of the cable communities, is another factor weighing in favor of our decision here. While we recognize that WRNN has a translator with a protected contour covering some of the cable communities and that the station has demonstrated some programming coverage of local issues, we do not believe that these factors, by themselves, are sufficient to override the considerable geographic distance to the cable communities, the lack of historical carriage, and the dearth of audience in the communities served by Service Electric. WLIG 45. Service Electric's request to delete WLIG from its ADI for the purposes of the broadcast carriage rules will be granted. WLIG first signed on-the-air in 1985 and broadcasts on channel 55 from a transmitter located in Ridge, New York. The station also has its studio in Ridge, yet its city of license is Riverhead, New York (Suffolk County). Service Electric's cable communities are approximately 100 miles away from the station and fall outside the fringe of WLIG's Grade B contour. Moreover, the station is geographically separated from Sussex and Warren Counties by New York City and the Hudson River. Here, the City and the waterway serve as natural market boundaries and correspond to the station's technical border as reflected by its Grade B contour. While we recognize that the station has attempted to target some of its material to the needs and interests of New Jersey residents, we find that the majority of the station's programming is of general interest rather than specifically tailored to the Service Electric cable communities. In this instance, the New York City and New Jersey stations carried by Service Electric have a closer economic nexus and provide more focused local programming to Service Electric viewers than does WLIG. WHAI-TV 46. Service Electric's request to delete WHAI-TV from its ADI for the purposes of the broadcast carriage rules will also be granted. WHAI-TV first signed on-the-air in 1987, but went dark due to financial difficulties in 1991 and did not resume service until late 1993. The station broadcasts on channel 43 from a transmitter located in Seymour, Connecticut. The station's city of license is Bridgeport, Connecticut (Fairfield County) and its studio is also located in Seymour. We also find that while WHAI-TV airs some local programming, the issues covered focus on the greater Bridgeport, CT area; however, its schedule does not include a sufficient amount of programming that is specific to the cable communities and each of the cable communities receives an abundance of local news, sports, and public affairs broadcasts from other closer stations. The lack of Grade B contour coverage and geography also plays a the decisive role in our decision. Service Electric's communities are 80 miles away from the station and fall outside the fringe of the station's Grade B contour. In addition, the cable communities are separated from the station by New York City and the Hudson River. As with WLIG, these natural market boundaries mirror the station's lack of Grade B contour coverage over the relevant communities. ORDER 47. 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 filed on behalf of Service Electric Cable TV of New Jersey, Inc. IS GRANTED. 48.This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau