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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 Communications ) CSR-5078-A Ocean County, New Jersey) ) For Modification of the ADIs of ) Stations WPXN-TV and WHSE-TV ) MEMORANDUM OPINION AND ORDER Adopted: December 23, 1997 Released: December 31, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Clear Cablevision, Inc. and Manchester Cablevision, Inc., both d/b/a Adelphia Cable Communications ("Adelphia"), operator of cable television systems serving various communities in Ocean County, New Jersey, filed a petition seeking to delete these communities from the New York, New York area of dominant influence (or "ADI"), insofar as mandatory carriage of Stations WPXN-TV (Channel 31), New York, New York, and WHSE-TV (Channel 68), Newark, New Jersey, are concerned. Oppositions to this petition were filed by ITT/Dow Jones Television, licensee of WPXN-TV and by SKNJ Broadcasting Partnership, licensee of Station WHSE-TV, in response to which Adelphia filed a consolidated reply. 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 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 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 a market change request. MARKET FACTS AND PARTIES' ARGUMENTS 8. WPXN-TV is licensed to the City of New York, New York, and WHSE-TV is licensed to Newark, New Jersey; both of these communities are in the New York ADI. The specified communities in Ocean County are also all presently assigned to the New York ADI, and they are all located in central New Jersey. Adelphia's headend is about 51 miles south of Newark, and about 53 miles south of New York City. According to Nielsen's 1995 County/Coverage Study, neither WPXN-TV nor WHSE-TV had any reported viewing shares, either off-air or on cable in Ocean County, and neither station has been recognized as significantly viewed in Ocean County. 9. Adelphia argues that neither station is entitled to mandatory carriage on its systems because neither station provides any programming targeted toward residents of the designated communities, unlike the other stations licensed to New York City that are presently entitled to request carriage by Adelphia. Adelphia adds that it has never carried WPXN-TV, even though the station has been on the air for almost 35 years, during most of which time it was operated as a municipally-owned noncommercial station. 10. With respect to WHSE-TV, Adelphia notes that it became a prime-time subscription television station on March 1, 1977, but that it has operated as a full-time commercial broadcast station for the past 12 years. Adelphia states that it has never carried the station in the past 12 years, however, even though it was carried for about 1 1/2 years by the system's prior owner before it became a subscription television station. Adelphia adds that the specified cable communities are all located beyond the Grade B contours both of WPXN-TV and of WHSE-TV. Adelphia notes that the vast majority of WPXN-TV's programming is infomercials, Fox Sports News, and the Bloomberg News Service, while WHSE-TV's programming consists exclusively of the Home Shopping Network. Adelphia contends that neither format is tailored to the needs and interests of its subscribers. Adelphia also notes that Ocean County is about equidistant from New York City and from Philadelphia, Pennsylvania, and it claims that its subscribers receive plenty of local programming, including news and weather reports, from other stations licensed to serve those cities which the system already carries, as well as from various nonbroadcast programs also carried on the system. Adelphia adds that neither WPXN-TV nor WHSE- TV is listed in the Philadelphia TV Guide. Finally, Adelphia notes that neither station had enough of a reportable audience to be listed in the ratings for Ocean County in Nielsen's 1996 County/Coverage Study. 11. In response, WPXN-TV notes that it was operated by the City of New York as WNYC- TV, a non-commercial, municipal station prior to its sale a year ago to ITT/Dow Jones, and that it has only had a commercial format since July 1, 1996. In addition, WPXN-TV notes that there is no dispute concerning the fact that it is in the same ADI as are the designated cable communities. Moreover, WPXN-TV states that Adelphia already carries eight other stations licensed to the New York ADI, seven of which broadcast from the World Trade Center, the same location as that used by WPXN-TV. According to WPXN-TV, these are factors that demonstrate "a strong market nexus" between the designated cable communities and the station's community of license. Moreover, WPXN-TV contends that granting the requested waiver would enable the cable operator to discriminate among stations licensed to the same community in a manner expressly prohibited by Congress. The station adds that grant of the requested waiver would also deny its ability to compete with the other New York stations, and it would damage the very type of small, independent stations that the must-carry rules were designed to protect, while hampering the promotion of diverse, local programming. Citing the Supreme Court's recent decision in Turner Broadcasting System, Inc., WPXN-TV contends that the Court also recognized that cable operators frequently have incentives to drop local stations in favor of programming less likely to compete with them for audience and for advertisers. Since WPXN-TV has only had a commercial format for sixteen months, its lack of historic carriage is irrelevant, according to WPXN-TV, citing the Bureau's decision in Petition of Catawba Services, Inc. The station also notes that other stations licensed to New York City have historically been carried by the cable systems serving the specified communities, thus evidencing a strong market nexus between the station's community of license and the noted cable communities. 12. According to WPXN-TV, its geographic distance from the cable communities, as well as its lack of a Grade B contour over them, are not significant since Congress adopted an ADI based standard for mandatory signal carriage, instead of one premised either upon mileage or upon signal contours. The station also notes that parts of New York City are only 38 miles from Adelphia's headend in any event. Moreover, WPXN-TV maintains that its programming is designed to address the needs and interests of all residents of the New York ADI, including those presently served by Adelphia. The station notes that it aired a live Rutgers College football game on September 6, 1997, and that another game is scheduled to be broadcast in October. In addition, WPXN-TV states that its Bloomberg Television programs from 6:00 am to 6:00 pm on Monday to Friday provide viewers with constantly updated local and national news, weather, traffic, and business information, all of which is specifically geared to viewers in the New York ADI. On Saturday, the station also airs one hour of wrestling from New York or from New Jersey, and it broadcasts three hours of children's programming in the morning, as well as several locally produced news and entertainment shows. The remainder of WPXN-TV's time is allocated to paid programming, with 22 of its half-hour time slots presently acquired by local businesses. The station adds that Adelphia has not yet shown how the programs offered by the other local stations it carries are of any greater specific interest in the designated cable communities than do those of WPXN- TV. According to WPXN-TV, the factor concerning the system's carriage of other stations is given greater weight when it is clear that the local station involved is not providing local service there. As for its 1996 viewership figures, WPXN-TV notes that Ocean County has a cable penetration rate of about 92%, so off-air viewing is of little relevance, and it maintains that due to its extensive ownership and format changes during the past year, any overall viewing figures would also be unreliable. Citing the Bureau's prior decision in DeSoto Broadcasting, Inc. WPXN-TV adds that it is recognized that it can take up to three years to develop an audience. Moreover WPXN-TV argues that audience share is not given much weight in cases where the station concerned is not being carried already and where there is high cable penetration, citing the Bureau's previous decision in Complaint of Maranatha Broadcasting Company, Inc. against Garden State Cable TV. Finally, WPXN-TV states that it is currently listed in several newspapers serving New Jersey and New York, and that several cable systems closely proximate to Adelphia's already carry it. 13. According to WHSE-TV, it is currently carried by other Ocean County cable systems, including Cablevision of Monmouth and Comcast Cable of Ocean County. The station adds that it was also carried by a prior owner of Adelphia's system. Moreover, WHSE-TV states that its transmitter is only 53 miles from Adelphia's headend which, in turn, is only 51 miles from Newark, WHSE-TV's city of license. According to WHSE-TV, Adelphia's headend is very near the fringe of its Grade B contour, which is also closer to Toms River than is the contour of several other stations in the New York ADI already carried by Adelphia, such as WRNN (Channel 62), Kingston, New York. The station adds that its studio in Newark is actually "the single closest studio to Ocean County of any New York ADI station." According to WHSE-TV, not only is it in the same state as Adelphia's systems are, but the cable communities and Newark are not separated by rough terrain or by any major body of water. The station notes that Adelphia not only currently carries other stations from the New York ADI, but that it also transmits other New Jersey stations, including WWOR-TV (Channel 9), Secaucus, and WNJU (Channel 47), Linden. According to WHSE-TV, Adelphia's carriage of these stations, together with WHSE-TV's carriage in Jackson Township, and soon in Lakewood Township, by Cablevision of Monmouth, and in the New Jersey communities of Brick, Mantoloking, and Point Pleasant, by Comcast Cablevision of Ocean County, demonstrates that the designated cable communities, in fact, are part of WHSE-TV's natural market. Citing the Bureau's prior decisions in Complaint of Maranatha Broadcasting Inc. against TKR Cable Company Hamilton Township, New Jersey, and in Complaint of Maranatha Broadcasting Company, Inc. against Comcast Cablevision of Burlington and Gloucester County, Inc., the station notes that in the first case, the cable communities were not deleted from the subject station's ADI, even though the station involved was located in a different state from the cable communities, across a major river from them, and the communities were about the same distance from the station as Newark is from Adelphia's headend. In the second case, WHSE-TV notes that the cable communities were not deleted from the subject station's ADI, although they were located up to 68 miles from the station's city of license, as well as across the Delaware River, on the other side of the ADI's central urban area, and in another state. In this case, WHSE-TV notes that nearly all the other stations in the New York ADI, including those now carried by Adelphia, are separated from the specified cable communities by the Hudson River, Long Island Sound, or the Atlantic Ocean, while one of the other New Jersey stations, WRNN, is located considerably farther from Ocean County than is WHSE-TV. According to WHSE-TV, it offers viewers valuable services through its live electronic retail programming, and it offers items of local appeal through its "Info Minutes" series on such matters as Lyme Disease, which is of concern to Ocean County residents, and highway safety with members of the New Jersey police. The station maintains that, despite the fact that its programming is not listed in TV Guide and that it has not been recognized as significantly viewed, it should not be deprived it of its must- carry rights due to insufficient ratings, throughout its home state. The station adds that it also has been recognized that ratings should not be given much weight with specialty format stations, and that for advertising and marketing purposes, the New York market has been divided into four sub-zones, one of which is the New Jersey sub-zone, which encompasses all of Newark and Ocean County. 14. In its consolidated reply, Adelphia contends that neither WPXN-TV nor WHSE-TV has shown that it airs a single program geared to residents of Ocean County, whereas other local stations that it currently carries have done so. Adelphia emphasizes that neither WPXN-TV nor WHSE-TV provides Grade B or better coverage to the specified cable communities, and that it never carried either station. Had either station offered meaningful local programming, Adelphia states that it would naturally have added its signal. Citing four other cases involving the New York ADI where the Bureau granted the cable operators' ADI modification requests, and where the distances involved were between sixty and forty miles from the station to the system, Adelphia adds that it recently ceased carriage of WRNN and that both stations in this instance are separated from its headend not only by 53 miles, but also by a series of waterways, and, in the case of WHSE-TV, by Newark Bay. Citing the Bureau's prior decision in Time Warner Cable, Adelphia adds that Mount Vernon, New York was recently excluded from the ADI of WPXN-TV's affiliate, Station WHAI-TV (Channel 43), Bridgeport, Connecticut, which had a transmitter located only 50 miles from Mount Vernon. Adelphia notes that, rather than being a struggling, small, vulnerable television station, WPXN-TV is affiliated with Paxson Communications Company, which operates 62 television stations in markets reaching 60%, or 58.2 million, U. S. television households. Moreover, Adelphia contends that the stations' complete lack of audience share in Ocean County confirms their lack of local programming geared toward and of interest to Ocean County residents. ANALYSIS AND DISCUSSION 15. Adelphia's request to delete stations WPXN-TV and WHSE-TV from the New York ADI for mandatory carriage purposes will be denied. Although WPXN-TV itself has not been carried by Adelphia in the past, Adelphia has and continues to carry numerous stations licensed to the same city, New York, as WPXN-TV. In setting out the historic carriage factor, Congress clearly held that historic carriage would exist if other stations in the same area are carried. In this instance, Adelphia carries seven other stations that broadcast from the same location as WPXN-TV, the World Trade Center. Carriage of these other stations located in the same area is persuasive evidence that the market served by all these stations is essentially the same. Evidence of historic carriage is especially persuasive where the station seeking to be deleted captures low audience ratings throughout an ADI as is the case in this instance. We also note that because of its recent change from its educational format to a specialized commercial format, WPXN-TV has not had a full opportunity to build a presence in its market place. 16. With regard to WHSE-TV, we note that while it has not been carried on Adelphia's system in recent years it does have some history of carriage and it is unrefuted that it is being carried on several nearby cable systems. While carriage on nearby systems is not a factor specified by the statute, such carriage serves as evidence to define the logical scope of a station's market because it demonstrates the belief of both the station and of the systems involved that there is a market nexus between the broadcast station and the communities where the station is being carried. Additionally like the above situation, Adelphia is currently carrying two other nearby licensees: WWOR, Secaucus and WNJU-TV Linden, New Jersey. Both of these stations are licensed to communities located within approximately five to ten miles of Newark, WHSE-TV's community of license. In addition with respect to the second statutory factor, we note while WHSE-TV's grade B contour does not cover any of the relevant communities it lies only three miles from Adelphia's principal headend and on the fringe of some of Adelphia's cable communities, such as Lakehurst and South Toms River. Insofar as the fourth statutory factor is concerned, although WHSE-TV has no measurable viewing in the specified cable communities, we are not convinced that negligible ratings provide reason enough to grant the market modification request, particularly in view of the station's lack of cable carriage, as well as the high cable penetration rate (over 90%) in Ocean County, coupled with the its home shopping format which has historically not garnered significant audience shares in comparison with other nonspecialized commercial formats. 17. In view of the above, we will deny Adelphia's request to delete the designated communities in Ocean County from the New York ADI insofar as mandatory carriage of WPXN-TV and WHSE-TV is concerned. ORDERING CLAUSES 18. Accordingly, IT IS ORDERED, pursuant to 614(c) 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-5078-A) filed August 18, 1997, by Clear Cablevision, Inc. and by Manchester Cablevision, Inc., both d/b/a Adelphia Cable Communications IS DENIED. 19. 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