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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: ) ) Adelphia Cable Partners, L.P. ) CSR-4857-A d/b/a Adelphia Cable Communications ) ) For Modification of the Miami-Ft. ) Lauderdale, Florida ADI ) ) Complaint of WEYS Television Corp. ) CSR-4838-M against Adelphia Cable Communications ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: March 3, 1997 Released: March 11, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Adelphia Cable Partners, L.P. d/b/a Adelphia Cable Communications ("Adelphia") in the above-captioned proceeding requests the Commission to modify the Miami-Ft. Lauderdale, Florida Area of Dominant Influence ("Miami ADI") of television broadcast station WEYS (Ch. 22), Key West, Florida. Specifically, Adelphia requests that WEYS be excluded from the Miami ADI relative to three of its systems serving communities in Dade County, Florida, for the purposes of the cable television mandatory broadcast signal carriage rules. WEYS filed an opposition to this petition to which Adelphia replied. In a separate but related proceeding, WEYS filed a must carry complaint against Adelphia for carriage on the operator's Dade County systems. We will jointly consider these cases to resolve the signal carriage rights of WEYS on Adelphia's cable systems. 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, 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 market 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 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 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 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 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. MODIFICATION ARGUMENTS 8. Adelphia's cable systems are located in Dade County, Florida, and are part of the Miami-Ft. Lauderdale, Florida ADI. Key West, the city of license of WEYS, is also part of the same ADI and is approximately 103 miles from Florida City, the closest of Adelphia's communities. 9. In support of its petition, Adelphia argues that WEYS should be excluded from carriage on its systems because the station does not satisfy any of the four statutory market modification factors. Adelphia admits that it commenced carriage of WEYS on its South Dade and Key Biscayne systems on December 13, 1994, it states that it ceased carriage on July 31, 1996, due to a change in the station's programming format and its lack of local service to the communities. With regard to its North Dade system, Adelphia indicates that WEYS is presently being carried, but Adelphia does not control the programming carried on that system. Adelphia claims that carriage for such a short period of time on any of the systems cannot be termed "historic" since WEYS only went on-the-air in June of 1993. Adelphia states that the Commission has specifically recognized that such short- term carriage does not represent historic carriage for must carry purposes. Adelphia offers the following reasons to support the proposition that WEYS does not provide local coverage to its systems: 1) WEYS is geographically remote with respect to Adelphia's cable systems in the northeastern part of the Miami ADI and WEYS in the southwestern most tip; 2) WEYS' transmitter is located approximately 128 miles from the Key Biscayne headend, 109 miles from the South Dade headend and 132 miles from the North Dade headend; and 3) WEYS is currently an affiliate of the CBS TeleNoticias Network which provides no programming covering local issues in Dade County. Adelphia also asserts that the programming offered by WEYS is already being provided by the local Miami stations it carries, all of which provide local news, sports and community programming. In addition, its systems also carry two 24-hour local Spanish-language stations, WSCV and WLTV, which include daily local news and programming relevant to the cable communities and whose transmitters are located anywhere from 6 to 43 miles from the various system headends. Finally, Adelphia asserts that the station has no audience in Dade County. According to the 1995 Nielsen Station Index, WEYS is "reportable in the Daypart section only" with virtually no ratings in any of the other ratings sections. The fact that the station's viewership is too low to be reported is buttressed by its absence in the listings of the southern Florida edition of TV Guide. In conclusion, Adelphia maintains that requiring carriage of WEYS on its systems would limit its ability to provide the programming and services desired by its customers. 10. In opposition, WEYS states initially that Adelphia is currently in violation of the Communications Act and the Commission's Rules in ceasing carriage of its station despite WEYS' legitimate must carry request. It argues that a cable system in "open defiance" of the broadcast signal carriage rules should not be allowed to seek market modification until its system is in compliance with the must carry regulations. WEYS argues that no showing has been made that Adelphia's cable systems would lose a local station already carried, or contemplated to be carried, in the event its request is not granted. WEYS contends that Adelphia has made no showing that there is insufficient channel capacity to accommodate carriage of the station. WEYS maintains that Adelphia'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. WEYS points out that it is legitimately part of the Miami-Ft. Lauderdale ADI and as such is entitled to carriage throughout the ADI. To demonstrate that Dade County herein is part of WEYS' economic market, the station points out that: 1) it airs a substantial number of advertisements placed by Dade County businesses; 2) it has been historically carried on two of Adelphia's cable systems for at least 18 months and is currently carried on a third system; as a percentage of total time on-air, it can be said to have a long history of carriage; and 3) the station 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. 11. WEYS further argues that Adelphia 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 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" that 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 states 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. 12. In reply, Adelphia states initially that WEYS' argument that the Commission is precluded from acting on the instant market modification request until such time as the must carry issues raised in its complaint are resolved is without merit. Adelphia asserts that the two proceedings are entirely separate. Moreover, it contends that even a favorable ruling in the must carry case would not alter the geographic distance between the station and cable communities. Adelphia adds that WEYS offers little evidence to counter its petition's arguments. While Adelphia argues that it does not claim that WEYS is not part of the Miami ADI, it contends that such a common link does not justify compelling it to carry a station on the opposite side of its ADI, particularly when that station does not even claim a local nexus to the system communities. Adelphia discounts WEYS' arguments that a community can never be excluded from an ADI unless doing so leads to the additional carriage of more local stations. It argues that the 1992 Cable Act provides that market modifications may "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 . . . ." 13. Adelphia re-states that WEYS fares poorly under the four statutory criteria. First, WEYS provides no evidence of long-term historic carriage other than its novel claim of a history of carriage when compared to its time on the air. Second, 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 Adelphia, translators have no independent carriage rights so they cannot be used to establish a "local presence" for purposes of local coverage. Third, while WEYS' programming may be of general interest to both Hispanic and non-Hispanic alike, Adelphia points out that the fact remains that WEYS' local programming coverage consists of only one locally-produced talk show. Fourth, Adelphia asserts that WEYS' list of advertisers is meaningless for purposes of establishing local coverage as this list fails to show that those advertisers reach or expect to reach the system's residents. Moreover, Adelphia states that the list of advertisers provided is from when WEYS was a SUR affiliate. A current list has not been provided. Fifth, WEYS ignores the fact that Adelphia's system carries two local Spanish-language channels which, along with other local Miami stations carried, provide extensive local programming. Sixth, Adelphia argues that if WEYS truly provided the local service it claims to offer to the Hispanic residents of Dade County, its ratings would reflect this and approach that of WLTV and WSCV. Finally, Adelphia 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. MUST CARRY ARGUMENTS 14. In its must carry complaint, WEYS argues that the Commission should immediately order Adelphia to reinstate WEYS on its South Dade and Key Biscayne systems and issue a show cause order against Adelphia. WEYS states that in a letter dated January 28, 1994, it exercised its must carry rights and requested carriage on Adelphia's systems. WEYS asserts that after a long delay, Adelphia subsequently commenced carriage of the station which continued until July 31, 1996. While Adelphia claims that its action was lawful since it was carrying the station pursuant to retransmission consent, WEYS argues that no such agreement exists. It points out that Section 76.64(k) of the Commission's rules requires retransmission consent agreements to be in writing. Therefore, WEYS maintains that the Commission should order Adelphia to produce such a written agreement or it should face misrepresentation penalties for its unfounded assertions. 15. In its opposition, Adelphia states that the inclusion of WEYS in the Miami ADI is merely an anomaly since it does not reflect marketplace realities. Therefore the same factors raised in its market modification request, argues Adelphia, would apply here. Adelphia states initially that it does not deny that WEYS informed it in late January 1994 that the station had commenced service as a full-power station and that it elected to assert must carry rights. However, Adelphia indicates that it had doubts that, due to its geographic distance, WEYS would qualify for must carry status, particularly with regard to signal quality and copyright liability. Adelphia states that after WEYS' initial request, there was a series of letters between it and WEYS in which the cable system repeatedly requested information which would satisfy its signal quality and copyright concerns. Adelphia argues that this information was necessary for it to evaluate whether WEYS was indeed entitled to mandatory carriage rights. In response, however, Adelphia alleges that WEYS either ignored the requested information or provided incomplete or inconsistent information. Finally, in a meeting between the parties, Adelphia states that it offered to resolve the ongoing dispute by agreeing to carry WEYS pursuant to a retransmission consent agreement. When this was agreed to by WEYS' representative, Adelphia states that arrangements were then made to deliver WEYS via translator W55BV (Homestead, Florida) to its South Dade headend and, because it could not receive a good quality signal at Key Biscayne from W55BV, via direct hardwire feed utilizing fiber optic line to its Key Biscayne headend. Adelphia maintains that at the same time W55BV provided it with a written document consenting to the retransmission of its signal to both the South Dade and Key Biscayne systems. 16. Adelphia continues that there were several factors in WEYS' removal from its systems. First, it states that WEYS notified it on July 29th that it was discontinuing its fiber feed to the Key Biscayne headend and gave the system only 48 hours to arrange to receive its signal via translator W55BV. Adelphia states that it informed WEYS in response that it could not technically make such arrangements since W55BV did not provide a good quality signal to the Key Biscayne headend; therefore, it informed WEYS that it would no longer be carried as of July 31st. Secondly, Adelphia states that when it learned that WEYS would no longer be providing Canal SUR programming, it considered this inconsistent with previous carriage arrangements and it was determined that the signal would be dropped from the South Dade headend as well. Adelphia argues that the Commission should uphold the retransmission consent agreement reached between the parties for the following reasons: 1) at no time did Adelphia agree with or acknowledge WEYS' claim that it was entitled to mandatory carriage; 2) Adelphia cannot be held responsible for WEYS' inability to provide the information necessary to establish its mandatory carriage rights; and 3) the system should not be penalized for its voluntary carriage, notwithstanding the on-going dispute regarding WEYS' must carry status. Adelphia maintains further that WEYS' argument that no written retransmission consent exists should be rejected. It points out that WEYS furnished Adelphia with a copy of the retransmission consent authorization of W55BV covering both the South Dade and Key Biscayne headends. Adelphia states that since the systems were to carry the translator's signal, rather than the originating station's, a retransmission consent from the translator was appropriate. In addition, Adelphia asks that the Commission find that it was justified in discontinuing carriage of WEYS. It maintains that the deletion was not a flagrant violation of the rules since it occurred only after it was given no more than 48 hours notice by WEYS of the discontinuance of the provision of an adequate signal to Key Biscayne and a switch from Canal SUR programming. 17. WEYS' reply states that the Commission does not, and has not, made a market-wide determination that WEYS is not a must carry station in the Miami ADI. Rather, it argues, the Commission has made individual market modification decisions based on WEYS' relationship to particular system communities. Therefore, WEYS states that until such time as a decision is made on Adelphia's market modification request, the system has a mandatory obligation to carry WEYS. It maintains that Adelphia's discussion of its supposed problems with WEYS in 1994 show that Adelphia "stonewalled and obfuscated, and otherwise took every effort to delay carriage of WEYS" and reveals a "pattern of abuse" by Adelphia. WEYS suggests that Adelphia knew what it was doing and simply did not want to comply with the law. Further, WEYS submits an affidavit from its vice president, David Drucker in which it points out that Mr. Drucker flatly contradicts Adelphia's assertion that retransmission consent was discussed in the 1994 meeting between the parties. WEYS states that the sole purpose of this meeting was to address Adelphia's concerns regarding copyright liability. WEYS reiterates that Section 76.64 of the Commission's rules require that retransmission consent agreements are to be in writing and be comprehensive concerning the extent of the relationship. WEYS concludes that it made no change in its delivery of its signal to Adelphia's South Dade headend, other than in its programming, and it provides a good quality signal to that headend. In response to Adelphia's contention regarding the station's poor signal qwuality WEYS states that since it has no access to Adelphia's headend at Key Biscayne, it cannot determine whether the system's claim of poor signal quality was either created deliberately or was the result of poor engineering practices. DISCUSSION 18. We will grant Adelphia's request. Based on geography and other relevant information, we believe that the communities served by Adelphia's North Dade, South Dade, and Key Biscayne cable communities are sufficiently removed from WEYS that they ought not be deemed part of the station's market for mandatory carriage purposes. 19. 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 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 Adelphia's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Adelphia'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. 20. We now turn to the four part market modification analysis. At the outset, we note that WEYS has had only a brief history of carriage on the systems (factor I); WEYS does not provide the cable communities with service as measured by its Grade A or Grade B service contours (factor II); and WEYS has virtually no over-the-air audience in Dade County where the cable communities are located (factor IV). 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. With respect to factor 1, we note that the station's history of carriage has been brief. 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. As such, the evidence relating to this statutory factor does weigh in favor of excluding the Adelphia cable communities from the market of WEYS but is not outcome determinative by itself. 21. Adelphia has also shown that WEYS does not provide local service to the communities in question. First, WEYS is geographically distant from the subject cable systems with Key Biscayne South Dade, and North Dade, sites of the three headends, 128, 109, and 132 miles away, respectively. Second, WEYS does not place either a Grade A or Grade B contour over the cable communities. While we recognize that the translators' protected contours which retransmit WEYS' signal may cover 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 the densely populated areas in this case. We additionally note that the two translators that retransmit WEYS' programming, are by WEYS' own admission, owned by another entity and not by WEYS itself. Third, WEYS does not currently provide 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 large Hispanic population as a whole, neither it nor the locally-produced programming WEYS cites in its opposition, is specifically relevant to Adelphia's systems. Moreover, we find that the list of advertisers provided by WEYS fails to establish a specific connection to Adelphia's communities. 22. We also believe that Adelphia's carriage of other local television stations provides support for the action requested in this particular case. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities, the issue of local coverage by other stations becomes a factor to which we will give greater weight than in cases where a party is seeking to add communities. Here, Adelphia carries two other Hispanic stations, WLTV (Ch. 23), Miami, Florida, and WSCV (Ch. 51), Ft. Lauderdale, Florida, which have a closer economic nexus, cast a City Grade signal over the cable communities, and provide more focused local programming, than WEYS. These market facts, coupled with the distance between the cable communities and WEYS, support Adelphia's arguments under the third factor. 23. WEYS also has no significant reported audience share in the communities in question. 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. Moreover, WEYS' reliance on its "specialty station" status as an explanation of its failure to establish significant ratings is contradicted by the high ratings achieved by the other two Spanish-language stations, WLTV and WSCV. In any event, due to the fact that WEYS broadcasts Spanish-language programming in an area which has a high proportion of Hispanic residents, the logic of the "specialty station" analysis is questionable. 24. WEYS' payment of a regulatory fee pursuant to 1.1153 of the Commission's rules is irrelevant in this context. We agree with Adelphia that WEYS should seek relief under the Commission's fee rules if such payment is believed to be unfair or unduly burdensome. 25. In view of the fact that the only retransmission agreement reduced to writing was with the translator station, W55BV, and that station has not objected to the dropping of its signal, we believe that no further Commission action is warranted. Consequently, we will dismiss WEYS' must carry complaint as moot in light of our action granting Adelphia's market modification petition. ORDERING CLAUSES 26 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-4857-A) filed on behalf of Adelphia Cable Partners, L.P. d/b/a Adelphia Cable Communications IS GRANTED. 27. IT IS FURTHER ORDERED, that the complaint filed on behalf of WEYS (CSR-4838-M) against Adelphia's systems IS DISMISSED as moot. 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