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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 the Matter of: ) ) CSR-5123-A MediaOne of Massachusetts, Inc. ) ) For Modification of the ADIs of ) WHSH-TV, Marlborough, Massachusetts, ) and WMFP-TV, Lawrence, Massachusetts ) MEMORANDUM OPINION AND ORDER Adopted: February 13, 1998 Released: February 18, 1998 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. MediaOne of Massachusetts, Inc. ("MediaOne") has filed with the Commission, pursuant to Sections 76.7(a)(1) and 76.59(a) of the Commission's rules, a petition requesting modification of the television markets of television stations WHSH-TV, Channel 66, Marlborough, Massachusetts ("WHSH"), and WMFP-TV, Channel 62, Lawrence, Massachusetts ("WMFP") (collectively, the "Stations"), for purposes of the cable television mandatory carriage rules. MediaOne requests that the Massachusetts Towns of Barnstable, Brewster, Chatham, Dennis, Eastham, Harwich, Lakeville, Marion, Mashpee, Mattapoisett, Middleborough, Nantucket, Orleans, Provincetown, Rochester, Truro, Wareham, Wellfleet, and Yarmouth (collectively the "Communities") be deleted from the television markets of the Stations. SKMA Broadcasting Partnership ("SKMA"), licensee for WHSH, filed an opposition, and MediaOne filed a reply. II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, 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. III. MARKET FACTS AND ARGUMENT 7. The Communities and Stations are located in the Boston ADI. The Communities are south and southeast of Boston located in the south of Plymouth County, on Cape Cod in Barnstable County, and on Nantucket. The town of license for WHSH is Marlborough, and the town of license for WMFP is Lawrence, located north and northwest of Boston. The distances between the Stations and the Communities are as follows: WHSH is approximately 47.51 miles from the Plymouth County Town of Middleboro headend (which serves Lakeville and Middleboro) and 58.42 miles from the Plymouth County Town of Marion headend (which serves Marion, Mattapoisett, Rochester and Wareham). WHSH is approximately 84.71 miles from the Barnstable County Town of Barnstable headend (which serves Barnstable, Chatham, Dennis, Harwich and Yarmouth), 73.86 miles from the Town of Mashpee headend, and 83.39 miles from the Barnstable County Town of Orleans headend (which serves Brewster, Eastham, Orleans, Provincetown, Truro and Wellfleet). WHSH is 102.32 miles from the Nantucket headend. WMFP is approximately 59.73 miles from the Middleboro headend (which serves Lakeville and Middleboro) and 70.02 miles from the Marion headend (which serves Marion, Mattapoisett, Rochester and Wareham). WMFP is approximately 86.37 miles from the Barnstable headend (which serves Barnstable, Chatham, Dennis, Harwich and Yarmouth), 82.22 miles from the Mashpee headend, and 79.92 miles from the Orleans headend (which serves Brewster, Eastham, Orleans, Provincetown, Truro and Wellfleet). WMFP is 110.46 miles from the Nantucket headend. 8. MediaOne argues that it would be contrary to the goals of Section 4 of the 1992 Cable Act, 47 U.S.C.  534, to afford the Stations must carry status on MediaOne's cable systems serving the Communities. With regard to historic carriage, MediaOne states that WHSH and WMFP have never been carried on MediaOne's systems in Barnstable County, including the Towns of Barnstable, Brewster, Chatham, Dennis, Eastham, Mashpee, Orleans, Provincetown, Truro, Wellfleet, and Yarmouth, or in Nantucket County and that WMFP has never been carried on its Marion headend in Plymouth County serving Marion, Mattapoisett, Rochester and Wareham. MediaOne discounts the fact that it has carried WHSH in Marion, Mattapoisett, Rochester, and Wareham (in Plymouth County served by the Marion headend) since 1995 and has carried WMFP in Lakeville and Middleboro (in Plymouth County served by the Middleboro headend) since 1994, by asserting that these were short periods of time and that MediaOne carried them only subject to must carry orders. MediaOne then argues that its carriage of WHSH in Lakeville and Middleboro since 1987 provides no reason for WHSH to be carried on MediaOne's other systems. 9. As for local coverage, MediaOne states that the Stations' Grade B contours do not cover the "vast" majority of its Communities and that this is an indicator of the Stations' markets, but in a footnote MediaOne acknowledges that the WHSH's Grade B contour does cover Middleboro, Lakeville, Marion, Mattapoisett, Rochester, and Wareham albeit "just within the outer edge of [WHSH's] Grade B signal contour" and that Middleboro and Lakeville are "located just inside WMFP's Grade B contour." In addition, MediaOne notes that the Communities range from approximately 47 to 102 miles from WHSH's city of license and approximately 59 to 110 miles from WMFP's city of license and that these distances demonstrate that the Communities are not part of the Stations' market. Furthermore, MediaOne states that it was unable to identify any local programming directed at the Communities from any newspapers or guides serving the metropolitan Boston area and that WMFP and WHSH's weekly programming consists of paid programming and infomericals. MediaOne also states that the local papers serving the Communities do not include listings for WHSH or WMFP and that the Massachusetts southeastern regional edition of TV Guide does not identify WHSH or WMFP's programming but merely lists them in a general index of stations. MediaOne contends that television listings are important evidence for the Commission to consider when determining the economic market of a television station. 10. Moreover, when a cable operator is seeking to delete a station from its system and the station is not providing local service, MediaOne asserts that the Commission then gives greater weight to the factor of whether other local stations serve the community. MediaOne states that it carries Boston stations WBZ (CBS), WCVB (ABC), WHDH (NBC), WFXT (FOX), WSBK (UPN) and WLVI (WB) and that these stations provide substantial local programming directed towards the Communities. Finally, MediaOne argues that the Stations do not have any significant viewership in the Communities. As evidence, MediaOne proffers the Nielson's County Coverage Report (1996) which does not even list the Stations' call letters for the counties where the Communities are located. 11. In its opposition, SKMA asserts that MediaOne has not met the statutory criteria for an ADI modification. Regarding historic carriage, MediaOne notes that WHSH has been carried in Lakeville and Middleboro since 1987 and in Marion, Mattapoisett, Rochester, and Wareham since 1995 and that its removal from the systems serving those communities will disrupt viewership. SKMA states that WHSH is also carried by other cable systems serving communities adjacent to the MediaOne Communities at issue in Plymouth and Barnstable Counties. Then, SKMA asserts that MediaOne falsely states that the Stations failed to satisfy the local coverage factor measured by Grade B contours. In this regard, SKMA notes that WHSH's Grade B contour encompasses Middleboro, Lakeville, Marion, Mattapoisett, Rochester, and Wareham. In response to MediaOne's statement that WHSH's programming is not carried by any local program guides, SKMA states that, except for children's programming, WHSH "does not choose to provide programming information regarding the stations' programming to local publications" and that, accordingly, the Commission should not accord any weight to this factor. 12. SKMA then argues that coverage by other stations is only relevant as an enhancement factor if the Commission determines that the Communities are outside of the station's market and notes that Middleboro, Lakeville, Marion, Mattapoisett, Rochester, and Wareham are in WHSH's market because they fall within WHSH's Grade B contour. As for the Communities outside of WHSH's Grade B contour, SKMA argues that they are served by WHSH and that, under these circumstances, the enhancement factor should not be applied. Finally, regarding local programming, SKMA proffers seven features carried by WHSH that focused on local areas of the Boston ADI and states that it "directs its locally produced programming at viewers in the Greater Boston area." 13. Station WMFP did not file an opposition. IV. DISCUSSION 14. Based upon our analysis of the record relating to the four statutory and other relevant factors, we will grant in part and deny in part MediaOne's petition. The Stations' Grade B contour coverage, historic carriage and other relevant factors persuade us that the Communities served by the MediaOne cable systems that currently carry the Stations are part of the Stations' market area and should not be deleted. The remaining communities do not appear to have any market relationship with the Stations and will be deleted. 15. The cable television mandatory broadcast signal carriage rules were adopted as part of the 1992 Cable Act. According to the legislative history of that Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they serve and which form their economic market." The Act specifically provided that the Commission was to consider adding additional communities or excluding communities from the markets of television stations "to better effectuate the purposes" of the mandatory carriage requirements. These factors, however, were "not intended to be exclusive." In acting on such requests the Commission was instructed to "afford particular attention to the value of localism, taking into account four specified statutory factors." We believe that our decision here will better effectuate the purposes of the must-carry statutory provisions. 16. Statutory factor one is "whether the station, or other stations located in the same area, has been historically carried on the cable system or systems within such community." WHSH has been carried for two years in Marion, Mattapoisett, Rochester and Wareham and for ten years in Lakeville and Middleboro, all towns in Plymouth County. WMFP has been carried for three years in Lakeville and Middleboro. MediaOne argues that the Communities carried for three years or less should not count towards historic carriage because they were carried pursuant to must-carry orders. However, we will not give much probative value to this argument here given that MediaOne voluntarily carried WHSH in the adjacent towns for ten years. Even though MediaOne carried the Stations in some Communities pursuant to must carry orders, we note that MediaOne waited two and three years before challenging the ADI's of the Stations thereby suggesting that MediaOne may have considered the Communities to be part of the Stations' market. 17. Moreover, while carriage on nearby cable systems is not a factor enumerated in the statute, depending on the specific circumstances involved, carriage on nearby systems can serve as evidence to define the logical scope of a station's market. Such carriage may also serve to demonstrate a market nexus between the broadcast station and the communities where the station is carried and thus provide evidence as to the scope of a station's market. We note that WHSH is also carried on other cable systems in neighboring towns of Plymouth and Barnstable Counties. 18. Statutory factor two is "whether the television station provides coverage or other local service to such community." As noted above, "to show that the stations provides coverage or other local service to the cable communities, parties may demonstrate that the station places at least a Grade B contour over the cable community or is located close to the community in terms of milage." The Commission recently held: Grade B contour coverage, in the absence of other determinative market facts (i.e. where the four statutory factors by themselves define the market, where there is no clear proof that the contour fails to reflect actual coverage, or where there is a terrain obstacle such as a mountain range or a significant body of water), is an efficient tool to adjust market boundaries because it is a sound indicator of the economic reach of a particular television station's signal. Here, WHSH places a Grade B contour over all the Communities at issue in Plymouth County, but not over the Communities in Barnstable or Nantucket Counties. WMFP places a Grade B contour over Lakeville and Middleboro, but not over the remaining Communities. 19. MediaOne argues that the distance between the Stations and the Communities show that the Stations do not provide coverage to the Communities. However, we do not find the distances to the Communities over which the Stations place a Grade B contour to be probative of the Stations' markets because "television stations actually do or logically can rely on the area within their Grade B contours for economic support." On the other hand, in the absence of a Grade B contour, the distances between the Stations and the other Communities show that the Stations do not provide coverage to those Communities. As noted above, WHSH is between 74 and 84 miles from the Communities on Cape Cod and 102 miles from Nantucket. WMFP is between 80 and 87 miles from the Communities on Cape Cod, 110 miles from Nantucket, and 70 miles from the Marion headend. 20. With respect to programming service, we find that neither WMFP nor WHSH provides programming specifically targeting the Communities. WHSH was only able to point to six specific shows that addressed issues in the Boston metropolitan area generally and one show that addressed one of the Communities. In addition, none of the local newspapers carry listings for the Stations, and the Southeastern TV Guide for Massachusetts does not list the programs for the Stations, but merely includes the Stations in its general list of stations. Although WHSH argues that it only provides papers with its children programming but not its other programming, we find the lack of local programming and local listings to weigh in favor of the petition. 21. The third factor to consider is the availability of other broadcasters in the market that are eligible for carriage and provide coverage of news, sporting events, or other events of interest to the communities at issue. We have stated that 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 to which we will give greater weight than in cases where a party is seeking to add communities. Carriage of other local stations may be used as an enhancement factor to support a cable operator's deletion request when there is other evidence in the record that the communities at issue are outside of the station's market. Where the Stations provide Grade B contour coverage, we will give little weight to the coverage provided by other local stations to those Communities within the Stations' Grade B contours. However, where the Stations provide no Grade B contour coverage, we will give weight to the six Boston stations that provide local coverage to those Communities. 22. Statutory factor four is "evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community." MediaOne presents evidence that shows that the Nielson's County Coverage Report (1996) does not list the Stations for Plymouth, Barnstable or Nantucket Counties which demonstrates that the Stations do not have a significant viewership in those counties. 23. We have carefully considered the statutory and other relevant factors in the context of the circumstances presented here, but we are under no obligation to give particular weight to any one of the several factors under consideration. We find that the Stations' Grade B contour coverage, their historic carriage in Plymouth County, and the carriage of WHSH by neighboring cable systems provide evidence of WHSH and WFMP's ties to the markets of the Communities under the Stations' Grade B contours. Thus we conclude that MediaOne has not demonstrated that the Communities under the Stations' Grade B contours lack a sufficient nexus with the Stations to warrant deletion of these Communities from the Stations' Boston ADI. Regarding the Communities not covered by the Stations' Grade B contours, we find that MediaOne has shown that those communities are not part of the Stations' markets and may be deleted from their ADIs. V. ORDERING CLAUSES 24. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534, and Section 76.59 of the Commission's rules, 47 C.F.R. 76.59, that the petition for special relief (CSR-5123-A) filed by MediaOne of Massachusetts, Inc. IS GRANTED IN PART AND DENIED IN PART. Nantucket County and the Barnstable County Towns of Barnstable, Mashpee, Yarmouth, Dennis, Brewster, Harwich, Chatham, Orleans, Wellfleet, Eastham, Truro and Provincetown are deleted from the Stations' ADI's. The Plymouth County Towns of Rochester, Mattapoisett, Marion, and Wareham are deleted from WMFP's ADI. The Plymouth County Towns of Middleboro and Lakeville are not deleted from WMFP's ADI, and the Plymouth County Towns of Middlesboro, Lakeville, Rochester, Mattapoisett, Marion and Wareham are not deleted from WHSH's ADI. 25. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau