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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 Petition of ) ) RCN Telecom Services of Pennsylvania, Inc. ) CSR 5049-A ) For Modification of Television Market of ) Station WTGI-TV, Wilmington, Delaware ) MEMORANDUM OPINION AND ORDER Adopted: November 24, 1997 Released: November 26, 1997 By the Deputy Chief, Cable Services Bureau: 1. RCN Telecom Services of Pennsylvania, Inc. ("RCN") filed the captioned petition which seeks to exclude the Lehigh and Northhampton County, Pennsylvania Communities listed on Appendix "A" from the market of television station WTGI-TV (Channel 61), Wilmington, Delaware. Paxson Philadelphia License, Inc., ("Paxson"), licensee of WTGI-TV, filed an opposition to RCN's petition, and RCN filed a reply. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the 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, 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. The Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) further 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, Section 614(h)(1)(C)(ii) 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 non-cable 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 non-cable 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 non-cable homes, and significantly viewed surveys typically measure viewing only in non-cable 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. In adopting rules to implement this provision, the Commission indicated that changes requested should be considered on a community-by-community basis rather than on a county-by-county basis and that they should be treated as specific to particular stations rather than applicable in common to all stations in the market. MARKET FACTS 7. The Communities at issue in this proceeding are located in Lehigh and Northhampton counties of Pennsylvania, which lie west of the Delaware River and north of Philadelphia. Lehigh and Northhampton counties are the northern most counties in the Philadelphia ADI. Although these Communities and WTGI-TV's city of license, Wilmington, Delaware, are located within the Philadelphia ADI, Hellertown, Pennsylvania, the community served by RCN nearest to WTGI-TV, is located approximately 59 miles from Wilmington and even farther from WTGI-TV's transmitter. Several of the Communities are more than 75 miles from Wilmington. WTGI-TV and Wilmington, on the other hand, are located virtually on the opposite side and south of Philadelphia from the Communities. It is undisputed that WTGI-TV has never been carried on the cable system serving these Communities. RCN contends WTGI-TV does not provide local service to the Communities in terms of technical signal coverage or programming designed to meet the needs and interests of the Communities, that other local television broadcast stations and non-broadcast services carried on its cable systems provide substantial local service to residences of the Communities, and that WTGI-TV is not viewed in the Communities. 8. In Time Warner Cable, 11 FCC Rcd 13149 (CSB 1996), and Service Electric Cable TV, Inc., __ FCC Rcd __, DA 97-1857, (Cable Serv. Bur., released August 29, 1997), we deleted from the market of WTGI-TV a number of communities located in the northern portion of the Philadelphia ADI approximately the same or less distances from WTGI-TV as the Lehigh and Northhampton Communities at issue in this proceeding. Paxson presents essentially the same objections to the market modification request in this case that were presented with respect to those other northern Philadelphia ADI communities. The bases for rejection of Paxson's market modification objections as well as the reasons for granting those market modification requests are set out in the cited cases and need not be repeated here. 9. Its sufficient to emphasize here that the Lehigh and Northhampton Communities at issue here are equally remote from WTGI-TV as the communities previously deleted from WTGI-TV's market in the above-cited cases. Because of the technical nature of the television broadcast service, the intervention of such distances serves only to preclude the Lehigh and Northhampton Communities from being deemed part of WTGI-TV's television market. The substantial distance and the intervention of the Philadelphia metropolitan area and the Delaware River between WTGI-TV and the Communities at issue here preclude any finding that WTGI-TV actually relies on the Lehigh and Northhampton County Communities for economic support, or that viewers in those Communities rely on WTGI-TV for television services to any degree. For these reasons, we find that the bases for the deletion of the several communities from the television market of WTGI-TV in the cited cases are equally applicable here as they were in Time Warner Cable and Service Electric Cable TV, Inc. Accordingly, we will grant RCN's request to delete the Lehigh and Northhampton County, Pennsylvania Communities listed on Attachment "A" from the television market of WTGI-TV. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED, pursuant to Section 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534(h), and Section 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief filed on behalf of RCN Telecom Services of Pennsylvania, Inc. in File No. CSR-5049-A IS GRANTED. 11. 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 ATTACHMENT 'A' Lehigh and Northhampton County, Pennsylvania Communities Served byRCN Telecom Services of Pennsylvania, Inc. Allen Twp., Allentown, Bangor, Bath, Bethlehem, Bethlehem Twp., Bushkill Twp., Catasauqua, Comenton, Chapman, Coplay, East Allen Twp., Easton, Egypt, Forks Twp., Fountain Hill, Freemansburg, Fullerton, Glendon, Hanover Twp., Heidelberg Twp., Hellertown, Lower Macungie Twp., Lower Nazareth Twp., Lower Saucon Twp., Lowhill Twp., Moore, Moore Twp., Nazareth, North Catasauqua, North Whitehall Twp., Ormrod, Palmer Twp., Pen Argyl, Plainfield Twp., Portland, Roseto, Salisbury Twp., South Whitehall Twp., Stiles, Stockertown, Tatamy, Upper Macungie Twp., Upper Mount Bethel, Upper Nazareth Twp., Upper Saucon Twp., Wanamakers, Washington Twp., Weisenberg Twp., Weat Easton, Whitehall Twp., Williams Twp., Wilson, and Wine Gap