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Order Granting Market Mod. Pet. In Part And Denying Must Carry Pet.

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Released: July 23, 2013

Federal Communications Commission

DA 13-1618

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Complaint for Carriage by
)
CSR-8757-M
Western Pacific Broadcast, LLC
)
Docket No. 13-14
v.
)
Service Electric Cable Television, Inc.
)
and Service Electric Cablevision, Inc.
)
)

Petition for Modification of Philadelphia, PA
)
CSR-8772-A
Designated Market Area With Regard to
)
Docket No. 13-68
Television Station WACP, Atlantic City, NJ
)
)

MEMORANDUM OPINION AND ORDER

Adopted: July 23, 2013

Released: July 23, 2013

By the Senior Deputy Chief, Policy Division, Media Bureau:

I.

INTRODUCTION

1. Western Pacific Broadcast, LLC, licensee of commercial broadcast television station WACP-
DT, Atlantic City, NJ ("WACP") filed a must carry complaint pursuant to Sections 76.7 and 76.61(a)(1)
of the Commission's rules,1 seeking carriage on certain cable systems operated by Service Electric
Cablevision, Inc. ("SE Cablevision") in the Philadelphia, Pennsylvania designated market area
("DMA").2 Subsequently, WACP sought to add Service Electric Cable Television Inc. ("SE Cable TV")
to its complaint as a party-in-interest or respondent,3 an action opposed by SE Cable TV,4 and WACP has
subsequently sought to dismiss SE Cablevision from its Petition.5 Prompted by these actions, SE Cable
TV filed a separate petition to modify WACP's mandatory carriage market pursuant to Sections 76.59 of
our rules6 to exclude the station from the SE Cable TV communities in which it sought carriage.7 Given


147 C.F.R. 76.7 & 76.61(a)(1).
2 Complaint of Western Pacific Broadcast, LLC, against Service Electric Cablevision, Inc. (CSR-8757-M; Docket
No. 13-14), filed Dec. 14, 2013 ("WACP Complaint").
3 Clarification, Supplement and Correction of Record to Dec. 14, 2012 Petition for Special Relief by WACP, filed
Jan. 9, 2013 ("Motion to Clarify").
4 Opposition to Motion to Clarify and Motion to Dismiss Unauthorized Pleading by SE Cable TV, filed Feb. 11 and
officially refiled on Mar. 5, 2013 ("Opp. to Motion to Clarify"). WACP filed a reply to this pleading. See Reply to
Opposition to Motion to Clarify by WACP, filed Feb. 26, 2013 ("Reply to Opp. to Motion to Clarify").
5 See WACP Partial Dismissal of Petition for Special Relief, filed February 14, 2003 ("WACP Motion to Dismiss").
6 47 C.F.R. 76.59.
7 Petition for Special Relief of Service Electric Cable Television, Inc., filed Feb. 11, 2013 ("SE Cable TV Petition").
An opposition, reply,surreply to this petition, as well as multiple additional motions,were filed by WACP and SE
Cable TV. See Opposition to Petition for Special Relief of WACP, filed April 8, 2012 ("WACP Opposition");
Reply to Opposition of SE Cable TV, filed April 18, 2013 ("SE Cable TV Reply"); Motion to Strike and Limited
Surreply of WACP, filed May 2, 2013; Opp. to Motion to Strike of SE Cable TV, filed May 16, 2013; Reply to Opp.
(continued....)

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their interrelatedness, and for administrative convenience, the Bureau is consolidating these two matters
into one proceeding. We deny WACP's carriage complaint but grants its request to dismiss SE
Cablevision, Inc. from its complaint. Finally, we grant the market modification petition of SE Cable TV
as to all but 14 communities in Pennsylvania.

II.

BACKGROUND

2. Pursuant to Section 614 of the Communications Act of 1934, as amended (the "Act"), and
implementing rules adopted by the Commission, commercial television broadcast stations, such as
WACP, are entitled to assert mandatory carriage rights on cable systems located within their market.8 A
station's market for this purpose is its "designated market area," or DMA, as defined by the Nielsen
Company.9 The term DMA is a geographic market designation that defines each television market
exclusive of others, based on measured viewing patterns. Pursuant to the Commission's must carry rules,
cable operators have the burden of showing that a commercial station located in the same DMA is not
entitled to carriage.10 A cable operator can show that a station's signal, which would otherwise be entitled
to carriage, does not provide a good quality signal to a cable system's principal headend or is too distant
from that headend.11 Should a station fail to provide the requisite over-the-air signal quality to a cable
system's principal headend, it still may obtain carriage rights because under the Commission's rules a
station may provide a cable operator with specialized equipment, at the station's expense, which will
improve the station's signal to an acceptable quality at a cable system's principal headend.12 Particularly
important for this case however are the must carry notification procedures and the requirement that a must


(...continued from previous page)
to Motion to Strike of WACP, filed May 23, 2013. The Pennsylvania communities from which SE Cable TV seeks
to delete WACP are (CUIDs are used to distinguish duplicate names): Bethlehem (CUID# PA0092), Easton, Forks,
Glendon, Palmer (CUID# PA0108), Plainfield (CUID# PA0109), Stockertown, West Easton, Williams (CUID#
PA0117), Wilson, Bangor, East Bangor, Roseto, Lower Nazareth, Nazareth, Williams (CUID# PA0252),
Riegelsville, Tatamy, Upper Nazareth, Bridgeton, Emmaus, Macungie, Lower Macungie (CUID #PA0291),
Salisbury (CUID# PA0293), Upper Milford, Portland, Allentown, Bethlehem (CUID# PA0479), Alburtis,
Coopersburg, Salisbury (CUID# PA0856), Whitehall, South Whitehall, Upper Macungie, Upper Saucon,
Catasauqua, Lower Macungie (CUID# PA0862), Hellertown, Lower Saucon, Hanover (CUID# PA0865),
Springfield, Fountain Hill, Upper Mount Bethel, Pen Argyl, Washington, Wind Gap, Plainfield (CUID# PA0924),
Tinicum, Bushkill, Palmer (CUID# PA0952), Freemansburg, Lower Milford, Bethlehem (CUID# PA1341), East
Allen, Moore, Weisenberg, Low Hill, North Whitehall, Lower Mt Bethel (CUID# PA0109), Hanover (CUID#
PA1674), Nockamixion, Bath, Durham, Coplay, Haycock, Lynn, Greenwich, Allen, Richland, Longswamp, North
Catasauqua, Hereford, Lower Mt Bethel (CUID# PA2964), Chapman, Milford, and Northampton.
8 See Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal
Carriage Issues
, MM Docket No. 92-259, Report and Order, 8 FCC Rcd 2965, 2975-77 41-46 (1993) ("Must
Carry Order
"). The Commission has subsequently extended mandatory carriage rights to digital television stations
under Section 614(a) of the Act and has amended its rules accordingly. See Carriage of Digital Television
Broadcast Signals First Report and Order
, See 16 FCC Rcd 2598, 2606 15-16, 2610 28 (2001) ("DTV Must
Carry Order
"); see also 47 C.F.R. 76.64(f)(4).
9 Section 614(h)(1)(C) of the Communications Act, as amended by the Telecommunications Act of 1996, provides
that a station's market shall be determined by the Commission by regulation or order using, where available,
commercial publications which delineate television markets based on viewing patterns. See 47 U.S.C.
534(h)(1)(C). Section 76.55(e)(2) of the Commission's rules specifies that a commercial broadcast television
station's market is its Designated Market Area as determined by The Nielsen Company. 47 C.F.R. 76.55(e)(2).
10 See Must Carry Order, 8 FCC Rcd at 2990 102.
11 47 C.F.R. 76.55(c)(3).
12 Must Carry Order, 8 FCC Rcd at 2991 104.
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carry complaint must be filed within 60 days of a cable operator's denial of a carriage demand.13
3. With respect to SE Cable TV's market modification claim, under the Act, the Commission
may consider requests to modify 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 market to better effectuate the purposes of this section.14
In considering such requests, the 1992 Cable 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;
(IV)
evidence of viewing patterns in cable and noncable households within
the areas served by the cable system or systems in such community.15
4. 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.16 In the Modification Final Report and Order, the Commission, in an effort to
promote administrative efficiency, adopted a standardized evidence approach for modifications that
requires the following evidence be submitted:
(1) A map or maps illustrating the relevant community locations and
geographic features, station transmitter sites, cable system headend locations,
terrain features that would affect station reception, mileage between the
community and the television station transmitter site, transportation routes
and any other evidence contributing to the scope of the market.
(2) Grade B contour maps17 delineating the station's technical service


13 See 47 C.F.R. 76.61(a)(5).
14 47 U.S.C. 534(h)(1)(C).
15 Id.
16 Must Carry Order, 8 FCC Rcd 2965, 2977 n.139.
17 Service area maps using Longley-Rice (version 1.2.2) propagation curves may also be included to support a
technical service exhibit. The Longley-Rice model provides a more accurate representation of a station's technical
coverage area because it takes into account such factors as mountains and valleys that are not specifically reflected
(continued....)
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area18 and showing the location of the cable system headends and communities
in relation to the service areas.
(3) Available data on shopping and labor patterns in the local
market.
(4) Television station programming information derived from station
logs or the local edition of the television guide.
(5) Cable system channel line-up cards or other exhibits establishing
historic carriage, such as television guide listings.
(6) Published audience data for the relevant station showing its
average all day audience (i.e., the reported audience averaged over
Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both
cable and noncable households or other specific audience indicia, such
as station advertising and sales data or viewer contribution records.19
5. Petitions for special relief to modify television markets that do not include the above
evidence shall be dismissed without prejudice and may be re-filed at a later date with the appropriate
filing fee. The Modification Final Report and Order provides that parties may continue to submit
whatever additional evidence they deem appropriate and relevant.
6. In the Carriage of Digital Television Broadcast Signals First Report and Order ("DTV Must
Carry Report and Order"), the Commission concluded that under Section 614(a) of the Act, digital-only
television stations had mandatory carriage rights, and amended its rules to reflect this.20 The Commission
also clarified its framework for analyzing market modifications for digital television stations.21 It found
that the statutory factors in Section 614(h), the current process for requesting market modifications, and


(...continued from previous page)
in a traditional Grade B contour analysis. In situations involving mountainous terrain or other unusual geographic
features, Longley-Rice propagation studies can aid in determining whether or not a television station actually
provides local service to a community under factor two of the market modification test.
18 While the Grade B contour defined an analog television station's service area, see 47 C.F.R. 73.683(a), with the
completion of the full power digital television transition on June 12, 2009, there are no longer any full power analog
stations. Instead, as set forth in Section 73.622(e), a station's DTV service area is defined as the area within its
noise-limited contour where its signal strength is predicted to exceed the noise-limited service level which for
VHF stations is 28 dBu. See 47 C.F.R. 73.622(e). Accordingly, the Commission has treated a digital station's
noise limited service contour as the functional equivalent of an analog station's Grade B contour. See Report To
Congress: The Satellite Home Viewer Extension and Reauthorization Act of 2004; Study of Digital Television Field
Strength Standards and Testing Procedures
, 20 FCC Rcd 19504, 19507 3, 19554 111 (2005); Implementation of
the Satellite Home Viewer Extension and Reauthorization Act of 2004, Implementation of Section 340 of the
Communications Act,
Report and Order, 20 FCC Rcd 17278, 17292 31 (2005). See also Lenfest Broadcasting,
LLC
, 19 FCC Rcd 8970, 8974 7 n.27 (2004) ("For digital stations operating on channels 14-69 [UHF stations], for
market modification purposes the 41 dBu DTV service area contour is the digital equivalent of an analog station's
Grade B contour.").
19 47 C.F. R. 76.59(b).
20 See 16 FCC Rcd 2598, 2606 15, 2610 28 (2001); 47 C.F.R. 76.64(f)(4).
21 See 16 FCC Rcd at 2635-36 84-85. The Commission affirmed that for digital signal carriage issues, it would
continue to rely on the Nielsen Company's market designations, publications, and assignments it used for analog
signal carriage issues. See id. at 2636 85.
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the evidence needed to support such petitions, would be applicable to digital television modification
petitions.22 While the Commission presumed the market of a station's digital signal would be
coterminous with that station's market area for its prior analog signal, it recognized that the technical
coverage area of a digital television signal may not exactly replicate the technical coverage area of its
former analog television signal.23 Therefore, in deciding DTV market modifications, the Commission
would take changes in signal strength and technical coverage into consideration, on a case-by-case basis.

III.

DISCUSSION

A.

Procedural History

7.
The pleading and procedural history of this proceeding is, in a word, tortured. The following
paragraphs set forth the complex procedural and pleading history of this proceeding with as much clarity
as possible.
8.
WACP commenced broadcast operations in June 2012 and on June 6th it sent a letter
electing mandatory carriage on the cable system of "Service Electric Cablevision, Inc." ("SE
Cablevision"); it did not name "Service Electric Cable TV Inc." ("SE Cable TV") in this letter.24
However, a list of communities included with this election letter included those with physical system
identification numbers ("PSID") of 001704, associated with SE Cablevision, as well as those with PSID
001711 associated with SE Cable TV,25 and WACP's election letter was also addressed to two different
addresses one for SE Cablevision and one for SE Cable TV.26 Thereafter, on September 14, 2012,
WACP sent a must carry demand letter once again addressed to "Service Electric Cablevision Inc." and
using the two separate addresses used in the June 6th election letter, one of which was an address for SE
Cable TV.27 This demand letter was received by SE Cablevision on September 19, 2012, and it was
received by SE Cable TV on September 20, 2012.28
9. In a letter dated October 1, 2012, Joseph G. Macus, Vice President of SE Cable TV,
responded to WACP's demand letter, provided the coordinates for a headend located in Bethlehem,


22See DTV Must Carry Report and Order, 16 FCC Rcd at 2636 85.
23 See id. In adopting technical rules for the digital transmission of broadcast signals, the Commission attempted to
ensure that a station's digital over-the-air coverage area would replicate as closely as possible its former analog
coverage area. See id. at 2636 85 n.254, citing Sixth DTV Report and Order, 12 FCC Rcd 14588, 14605 29
(1997).
24 WACP Complaint at Exh. 3, Letter from M. Scott Johnson, et al., counsel for WACP to Mr. Donald Brandt,
Service Electric Cablevision, Inc., 4949 Liberty Lane, Allentown, PA & President and CEO, Service Electric
Cablevision, Inc., 1045 Hamilton Street, Allentown, PA, at 1, Jun. 6, 2012 ("WACP Election Letter"). (Stating that
WACP was electing mandatory carriage "on all cable systems operated by any one or more of Service Electric
Cablevision Inc. or its direct or indirect subsidiaries or affiliates to the extent they serve the Philadelphia, PA
[DMA], including...those community units listed on Exhibit A hereto.")
25 This can be verified by checking these PSIDs in our Cable Operations and Licensing System. See COALS,
https://apps.fcc.gov/coals/forms/search/cableSearchNf.cfm (last visited May 16, 2013).
26 See WACP Election Letter at 1.
27 See WACP Complaint at Exh. 3, Letter from M. Scott Johnson, et al., Counsel for WACP to Mr. Donald Brandt,
Service Electric Cablevision, Inc., 4949 Liberty Lane, Allentown, PA & President or CEO, Service Electric
Cablevision, Inc., 1045 Hamilton Street, Allentown, PA, at 1, Sept. 14, 2012 ("WACP Carriage Demand Letter")
(stating "This letter is a demand for carriage under FCC Rule 76.61(a)(1)").
28 See id. at Exh. 4, Certified Mail Receipts.
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Pennsylvania, and noted that "WACP is over 72 miles from the system's principal headend."29 The letter
also stated that engineers of the cable system had twice been unable to obtain WACP's signal at the
system's principal headend, and that "[i]f [WACP] wish[ed], [SE Cable TV] would be happy to discuss
[WACP's] payment of the cost to deliver a signal consistent with Section 76.55(c)(3), however, given the
distance between the station's transmitter and [SE Cable TV's] headend, it is highly unlikely that WACP
will be able to deliver a qualified signal."30 While we have substituted SE Cable TV in the sentence
above, the letterhead of this letter was actually "Service Electric Cable TV & Communications,"
addressed at 2260 Avenue A, Bethlehem, Pennsylvania, which is listed with the Pennsylvania Department
of State as a "fictitious name" or d/b/a owned by "Service Electric Cable TV Inc."31
10. Subsequently, WACP's September 14th carriage demand letter was met with a firm denial
letter dated October 16, 2012 from counsel for SE Cablevision.32 This letter stated WACP was not
eligible for carriage on SE Cablevision's cable systems because it was not a "local commercial television
station" within the meaning of section 76.55(c), by virtue of failing to deliver a good quality signal to SE
Cablevision's headend, as demonstrated by "voluminous" signal tests that could be provided on request.33
11. WACP filed its first mandatory carriage complaint against SE Cablevision on December 14,
2012, but filed a motion on January 9, 2013, in which it also sought to add SE Cable TV as a party-in-
interest. Believing that SE Cable TV "had been served without objection, responded to the carriage
demand, and ha[d] not opposed its addition as a party," the Bureau granted WACP's motion to add SE
Cable TV.34 SE Cable TV responded on February 11, 2013, strongly opposing such addition to WACP's
complaint pending against SE Cablevision or to being forced to carry the station, and it asserted that SE
Cablevision and SE Cable TV were "wholly separate entities with no common ownership or control."35
We note that the website for SE Cable TV d/b/a Service Electric Cable TV & Communications lists SE
Cablevision as an "affiliate,"36 and SE Cablevision's website also lists SE Cable TV as an "affiliate."37
Either way, SE Cable TV admitted it had been served by WACP's June 6th letter as well as by its
September 14th letter both at its official addresses at 1045 Hamilton Street,38 and it asserted it had
responded to WACP on October 1st, rejecting WACP's demand and advising it that SE Cable TV "would
not carry WACP because it was too far from Cable TV's principal headend...and because the station did


29 See id. at Exh 5, Letter from Joseph G. Macus, Vice President, Service Electric Cable TV & Communications, to
M. Scott Johnson, et al, Counsel for WACP, at 1, Oct. 1, 2012. ("SE Cable TV Oct. 1st Letter") (also providing
coordinates to locate SE Cable TV's principal headend, which placed it at or near Bethlehem, Pennsylvania).
30 See id.
31
Pennsylvania Department of State Business Entity Record Search, available at
https://www.corporations.state.pa.us/corp/soskb/Corp.asp?1837148 (go to the Pennsylvania Department of State
website, follow the "Corporations" hyperlink, then follow "Search" hyperlink, then type "SERVICE ELECTRIC
CABLE TV AND COMMUNICATIONS" into search field) (last visited May 17, 2013).
32 See id. at Exh. 6, Letter from Gary S. Lutzker, counsel for Service Electric Cablevision, Inc. to M. Scott Johnson,
et al., counsel for WACP, Oct. 16, 2012.
33 See id. at 1 (also providing coordinates to locate SE Cablevision's principal headend, which placed it nearer
Reading, Pennsylvania, different from those in SE Cable TV's Oct. 1st letter).
34 Bureau Letter Order, Jan. 31, 2013.
35 Opp. to Motion to Clarify at 1 & n.1.
36
Service Electric Cable TV & Communications, "Our Partners and Affiliates,"
http://www.sectv.com/aspPartners.aspx?strSystem=LV (last visited May 17, 2013).
37
Service Electric Cablevision, About CATV, Our Partners and Affiliates,
http://www.secv.com/catv/partners_catv.html (last visited May 17, 2013).
38 See Opp. to Motion to Clarify at 1.
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not deliver a qualified signal."39
12. When WACP filed its petition against SE Cablevision on December 14th, SE Cable TV
asserts it was not included as a defendant or served.40 As a result, SE Cable TV has argued, any
subsequent attempt to add it to the complaint or file against it were untimely under Section 76.61(a)(5)(i)
of our rules, because such attempt was 60 days after a denial by SE Cable TV of WACP's carriage
rights.41 To make this argument, SE Cable TV argues its October 1, 2012, letter was a rejection letter that
denied WACP's carriage claim on the basis of distance by giving the coordinates of its cable system
headend and stating "given the distance between the station's transmitter and our headend, it is highly
unlikely that WACP will be able to deliver a qualified signal."42 In addition, SE Cable TV argues it stated
in the letter that it attempted to receive a signal from WACP at its principal headend on two occasions and
was unable to do so.43 Therefore, given the October 1st date of its letter, WACP's complaint against it
was untimely filed 74 days later and not on December 3rd, as it should have been.44
13. WACP agrees its complaint should have been filed on December 3rd, if SE Cable TV's
October 1st letter was a valid rejection letter, but it argues the letter was not a "denial," to use the
language of of Section 76.61(a)(5)(i) of the rules, as it lacked the words "denial," "rejection" or "refusal,"
or any variant or synonym of such.45 WACP argues this letter was not a rejection, as evidenced with the
fact that it coupled the statement that SE Cable TV made some attempt to receive a signal "an attempt
of unknown formality, unknown effort and unknown compliance (if any) with FCC measurement
requirements" with a resulting opinion that it is "unlikely" a good quality signal can be received.46
WACP argues the letter does not say that a good quality signal cannot be received at the principal
headend, but instead opines as to `likelihood', which should not be taken as an implied denial.47 Nor does
the letter contain the required elements for denial based on failure to receive a good quality signal as
specified in Section 76.61(a)(3) of the rules.48 Furthermore, WACP argues even applicable precedent
finds such letter was an ineffective denial.49
14. Alternatively, SE Cable TV argues that even if its October 1st letter is discounted as a
rejection, WACP's complaint against SE Cable TV was still untimely because SE Cable TV would have
had until October 20th to respond with its rejection after it received WACP's carriage demand on
September 20th, at which point WACP would have had to file its complaint against it within 60 days, or
by December 19th, which WACP failed to do. SE Cable TV argues that WACP's motion to clarify
which sought to add SE Cable TV as a party on January 9, 2013, the Media Bureau's grant of that motion
on January 31st, and WACP's Bureau ordered service of the complaint on SE Cable TV on February 7,


39 Opp. to Motion to Clarify at 1.
40 Opp. to Motion to Clarify at 1-2.
41 Id. at 2.
42 Id. & Exh. 1, SE Cable TV Oct. 1st Letter.
43 See id. at Exh. 1.
44 See id.
45 Reply to Opp. to Motion to Clarify at 2-3.
46 See id. at 3.
47 See id.
48 See id. at 3 & n.3.
49 See id. at 4 & nn.4-6 (citing In re Complaint Against Cablevision Systems Corp., 11 FCC Rcd 2362, 2366, 20
(CSB 1996).
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2013 all of these dates exceed the 60 day deadline.50 SE Cable TV argues the Commission should not
waive its strict filing deadline given the important public interest purpose it serves.51 WACP retorts that
SE Cable TV's alternative line of argument elevates form over substance because SE Cable TV was
aware that it was the subject of WACP's complaint; it received both WACP's carriage election and
carriage demand letters, and the complaint itself included a list of CUIDs and PSIDs that corresponded to
SE Cable TV's systems.52
15. SE Cable TV has also informed the Bureau that it erred in adding it as a party to this matter
without allowing it sufficient time to object, thereby violating its due process rights.53 In response to a
preliminary objection to such addition,54 the Bureau informed the parties, however, that it would
reconsider any arguments SE Cable TV wanted to raise to its addition as a named party in its formal
objection to WACP's Motion to Clarify, and we now consider its arguments de novo.55 SE Cable TV also
argues that a motion to add a named party-in-interest or respondent is an improper motion under Section
76.7 of our rules because the Bureau does not accept additional motions or pleadings except when a
showing of "extraordinary circumstances" is made, which typically does not occur, it argues, unless the
Commission requests such pleadings.56 Yet, SE Cable TV argues, WACP has not provided the Bureau
with an extraordinary circumstance for allowing its supplement; it has merely stated it was "confused"
about the corporate ownership of the cable system operating under PSID # 001711.57 SE Cable TV
argues it is "puzzling" that WACP served both its election and carriage demand letters on SE Cable TV at
its correct address, and yet WACP was unable to connect the correct identity of SE Cable TV with the
addresses it was using for it information available in the Commission's COALS database.58
Furthermore, SE Cable TV argues WACP has not explained why it failed to serve SE Cable TV with its
complaint if it evidently knew SE Cable TV's address.59 Accordingly, SE Cable TV argues WACP
should not now be permitted to use its "confusion" as the basis to justify its noncompliance with the time
limits imposed by 76.61(a)(5).60
16. In response, WACP argues that it had assumed SE Cablevision and SE Cable TV were one
company, but it argues that SE Cable TV did not endeavor to disabuse it of this misperception and may in
fact have reinforced its through it actions.61 For example, WACP notes that the two companies' websites
refer to each other as "affiliates."62 It also notes that the strong carriage denial letter it received from
Counsel for SE Cablevision on October 16, 2012, stated in its reference line at the top that it concerned
WACP's demand for carriage "on Service Electric Cablevision, Inc. Cable Television Systems Serving


50 Opp. to Motion to Clarify at 3.
51 See id. at 6-7.
52 Reply to Opp. to Motion to Clarify at 9.
53 See id. at 3-4.
54 Opp. to Motion to Clarify, Exh. 3, Email from Mark Palchik, Counsel for SE Cable TV, to the Media Bureau,
Policy Division, Federal Communications Commission, Feb. 4, 2013.
55 mail from the Media Bureau to Counsel for both sides, Jan. 31, 2013.
56 See id. at 4, citing 47 C.F.R. 76.7(d) & (e).
57 See id. at 4.
58 See id. at 4-5 & n.18.
59 See id. at 6.
60 See id. at 6.
61 See Reply to Opp. to Motion to Clarify at 7.
62 See id. at 7; see also supra 10 & nn.38 & 39.
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the Counties of Berks, Bucks, Chester, Lehigh and Northampton, Pennsylvania."63 WACP notes this list
of counties is significant, because from the five listed, two Lehigh and Northampton are only served
by SE Cable TV, but are represented as falling under SE Cablevision;64 and furthermore, counsel referred
to himself as acting on behalf of SE Cablevision "and its subsidiaries," when, WACP argues, the only
possible subsidiary was SE Cable TV, the affiliate.65 WACP asserts these factors led it to believe that one
headend listed in counsel's October 16th letter was the principal headend for both affiliates, and it
argues it did not discover that the two entities were not one company, but instead "identical twins," until
after it filed its carriage complaint.66
17. With respect to carriage rights, SE Cable TV states that, in any event, signal tests were taken
on July 18, September 25, 2012, and February 5, 2013, and at no time was any discernible signal detected
from WACP.67 Furthermore, SE Cable TV argues WACP's programming is duplicated by a station
already carried on its cable system, and cable operators are not required to carry the signal of any local
commercial television station that substantially duplicates the signal of another local commercial
television station that is carried on a system.68
18. Finally, SE Cable TV argues that the prioritization of broadband in the National Broadband
Plan argues in favor of keeping WACP off its system because if it is forced to take WACP and reserve 6
MHz of analog channel space to it, it will not have sufficient remaining capacity to switch to DOCSIS 3,
and it will not have the capacity to upgrade its subscribers high speed internet speeds of 50 megabits per
second.69

B.

Mandatory Carriage Notice Issues

19. We conclude that WACP was not timely in serving SE Cable TV with its mandatory carriage
complaint and that as a result its carriage complaint against SE Cable TV must be dismissed. As we
noted above, no must-carry complaint filed pursuant to paragraph Section 76.61 of our rules will be
accepted if filed more than sixty days after the denial by a cable television system operator of a request
for carriage.70 To determine whether WACP properly notified SE Cable TV that it elected and then
demanded carriage on its cable systems, we apply a reasonableness approach that takes the circumstances


63 See id. at 8 & n.17, citing WACP Complaint, Exh. 6, SE Cable TV Oct. 16 Letter.
64 See id. at 8.
65 See id. at 7 & n.16, quoting WACP Complaint, Exh. 6, SE Cable TV Oct. 16 Letter.
66 See id. at 8.
67 See Opp. to Motion to Clarify at 6 & n.27, citing Exh. 2, "Service Electric Cable TV Inc. Signal Test for WACP
TV 4.1". WACP attaches a single report of a signal measurement taken in the presence of WACP engineer, Greg
Kraft, on February 5, 2013, and stating that "Mr. Kraft was satisfied that we could not pick up WACP as stated in
our previous test in October of 2012." See id. Although this test makes mention of an October test, it does not
mention the alleged test in July, or attach the measurements and other necessary documentation pertaining to those
two prior tests.
68 See id. at 6, citing 47 C.F.R. 76.56(b)(5)). SE Cable TV states it currently carries WTVE, Reading,
Pennsylvania (Ch. 51), which carries paid or commercial length programming in a majority of its schedule, and
while SE Cable TV states it has been unable to get definitive information about WACP's programming, the primary
programming on the station also appears to be paid or commercial length programming. See id. We don't believe
this is sufficient information, without more, for us to determine that WACP substantially duplicates WTVE's
programming.
69 See id. at 7.
70 See 47 C.F.R. 76.61(a)(5); see also Friendly Bible Church, Inc. v. Viacom Cable, 9 FCC Rcd 7907 3 (CSB
1994).
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surrounding the parties' communications into account.71 WACP used an effective address available in
COALS for SE Cable TV in both its carriage election and demand letters, and someone from SE Cable
TV received and signed for both letters at that address. WACP also attached the list of communities on
which it sought carriage to both letters. SE Cable TV admits it received both letters and has even argued
it rejected WACP's carriage demand on October 1st.72 Under these facts, SE Cable TV could not argue
that it was not informed of WACP's intentions to seek carriage on its systems.
20. The September 14, 2012 carriage demand letter sent by WACP to both the addresses of SE
Cablevision and SE Cable TV was received by SE Cable TV on September 20th; the letter states "[t]his
letter is a demand for carriage under FCC Rule 76.61(a)(1)."73 We also find that SE Cable TV's response
of October 1st, was not an effective rejection or denial of this demand under Section 76.61(a)(2) as it did
not contain an affirmative statement that SE Cable TV was not obligated to carry WACP. We typically
look for an affirmative denial or rejection by a cable operator.74 In the letter, an entity named "SE Cable
TV & Communications (SE Cable TV)" merely cited the distance between its headend and WACP's
transmitter, and gave the coordinates of its headend without concluding that these factors influenced its
decision to deny carriage to WACP. Furthermore, SE Cable TV's statement that its engineers had twice
attempted to receive WACP's signal also failed to provide the necessary information to function as a
denial on the basis of poor signal quality; SE Cable TV did not provide in its response "a list of
equipment used to make the measurements, the point of measurement and a list and detailed description
of the reception and over-the-air signal processing equipment used, including sketches such as block
diagrams and a description of the methodology used for processing the signal at issue."75 While the letter
concluded that "it is highly unlikely that WACP will be able to deliver a qualified signal," this did not
result in a stated conclusion that SE Cable TV would therefore not carry WACP; instead this statement
was conjoined with another that "[i]f [WACP] wish[ed], [SE Cable TV] would be happy to discuss
[WACP's] payment of the cost to deliver a signal consistent with Section 76.55(c)(3)," and it concluded
that SE Cable TV "look[ed] forward to hearing from...the station's engineers."76 This type of language
has been found not to form a firm denial in the past.77
21. Therefore, under this view of the facts, as the parties concede, WACP's carriage complaint
would have had to be filed 60 days after October 20th the date by which SE Cable TV would have had


71 See Long Comms v. HPI Acquisition, Corp., LLC, 21 FCC Rcd 10499, 10501 6 & n.22 (MB 2006), citing
Entravision Hlds, LLC v. Echostar Comms Corp., 18 FCC Rcd 19268 (2003). Entravision made clear that in the
context of must carry notice obligations, a reasonableness standard based upon the circumstances would apply. 18
FCC Rcd at 19271 3, citing In re Ho'Ana'Auao Cmty TV, Inc. v. Echostar Communications Corp., 18 FCC Rcd
2487 (MB 2003).
72 Opp. to Motion to Clarify at 2.
73 See WACP Complaint at Exh. 3, WACP Carriage Demand Letter.
74 See Johnson Broad., Inc. v. Prime Cable of Ft. Bend, L.P., 9 FCC Rcd 3574, 6 (CSB 1994).
75 47 C.F.R. 76.61(a)(2). WACP correctly notes that while SE Cable TV claimed it conducted tests of WACP's
signal on July 18, 2012, September 25, 2012, and February 5, 2013, and it cites Exhibit 2 to its Opposition as proof
that such tests were conducted, that Exhibit contains only a test conducted February 5th with a reference to a
previous test in October, with no mention or evidence of any test in July. WACP Reply at 16, citing SE Cable TV
Opposition at 6 & n.27 (citing Exh. 2). Accordingly, WACP is correct that SE Cable TV did not meet its burden of
showing WACP that it failed to deliver a good quality signal and that its argument on this ground was an ineffective
rejection.
76 WACP Complaint at Exh. 5, SE Cable TV Oct. 1st Letter.
77 See Telecino, Inc. v. Cablevision of Puerto Rico, 12 FCC Rcd 17493, 17495 7 (CSB 1997; see also SAH
Acquisition Corp.
, v. Adelphia Cablevision Assocs, L.P., 13 FCC Rcd 22306, 7 4 &, 9 8 (CSB 1998).
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to respond or by December 19, 2012.78 Unfortunately, WACP did not file its complaint against SE
Cable TV by this date. We understand WACP's argument that it did not file a complaint against SE
Cable TV because it was laboring under a false assumption or a "mistake of fact" that that SE Cablevision
and SE Cable TV were one entity and that certain actions by these entities may in fact have reinforced
this assumption.79 However, WACP concedes that SE Cablevision and SE Cable TV are "related yet
separate legal entities" and are not one entity but "identical twins," and it does not argue that these are in
fact one company or that the corporate distinction between them is a sham that should be disregarded.80
Because it acknowledges the corporate separation of these entitles, WACP was required to file a specific
complaint against SE Cable TV by December 19th, and its arguments to the contrary are largely limited to
factors which should excuse its mistake.81 We understand WACP's position, but the 60 day filing
deadline for complaints under Section 76.61(a)(5) serves as a bright line rule.82 Accordingly, we must
dismiss WACP's carriage complaint against SE Cable TV as untimely filed. Finally we note that WACP
has sought to dismiss SE Cablevision from its Petition,83 and we grant this petition, thereby dismissing
WACP's carriage complaint as to SE Cable TV and SE Cablevision.

C.

Market Modification Analysis

22. SE Cable TV has also filed to exclude WACP from the communities it serves in the
Philadelphia DMA on the grounds that its cable system communities are outside the station's market.
WACP retorts that it had only been on the air for 7 months when SE Cable TV filed this petition and that
granting it would place it at a severe disadvantage in relation to the other 15 "entrenched" Philadelphia
DMA stations.84
23. As a preliminary matter, WACP argues SE Cable TV failed to provide the standardized
evidence necessary for processing its petition under Section 76.59(b) of our rules, and so must face


78 See Opp. To Motion to Clarify at 3; see also Reply to Opp. to Motion to Clarify at 8-10.
79 Reply to Opp. to Motion to Clarify at 7-8.
80 See Motion to Clarify at 2 ("[WACP] has labored under what it just recently discovered to be a mistake of
fact...[and that] SE Cablevision and SE Cable TV are related yet separate legal entities."); Reply to Opp. to Motion
to Clarify at 8 (stating that "[n]ot until after the PSR was filed was it revealed to [WACP] that SE Cable TV and SE
Cablevision were not one company, but identical twins operating in the same geographic area.").
81 See Reply to Opp. to Motion to Clarify at Summary page i.
82 See 47 C.F.R. 76.61(a)(5); see also Must Carry Order, 8 FCC Rcd at 2995 124 ("With respect to commercial
stations, no complaints will be accepted if filed more than 60 days after the date of the response from the cable
operator was due."); see also Long Commc'ns v. HPI Acquisition, Corp., LLC, 21 FCC Rcd 10499, 10501 7 n.25
(citing cases) ("As we have said previously, time limits for filing must-carry complaints are necessary to balance the
interest of broadcasters in asserting carriage rights with the interest of cable operators in having certainty in their
carriage obligations.").
83 See WACP Partial Dismissal of Petition for Special Relief, filed February 14, 2003.
84 WACP Opposition at 1. WACP further argues we have discretion not to consider SE Cable TV's market
modification petition, and it argues the Bureau should forbear at this time from removing any communities it finds
could be removed, particularly because SE Cable TV is using market modification as a collateral attack on its
carriage complaint, a stance the Commission has repeatedly warned against. WACP Opp. at 20 & 6 n.11, citing
KTNC Licensee, 18 FCC Rcd 16269, 16277-78 15 (MB 2003) ("The DMA 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 is
warranted..."). We note, however, that WACP provides no precedent where the Bureau exercised its discretion to
refuse to consider a matter on the grounds that the station subject to a deletion request by a cable system had been in
operation for too short a time and would be placed at a competitive disadvantage vis--vis other stations.
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dismissal under subsection 76.59(c).85 At the time SE Cable TV's petition was filed, WACP argued for
the petition's dismissal on the grounds that the Petitition (i) had no maps showing the location of any of
the communities at issue and the headend was not clearly marked on any map; (ii) did not provide the
mileage between the communities and WACP's transmitter site (or community of license); (iii) did not
provide area transportation routes; (iv) failed to provide detailed terrain maps showing more than just a
fraction of the terrain; and (v) did not explain the relation of the communities to the station's noise limited
contour or explain which communities lie inside or outside of it.86 However, SE Cable TV's Reply
pleading attached the evidence it lacked in its original petition. While it is true that in instances where an
incomplete market modification is filed, we may dismiss an action without prejudice to a party's refilling
and attaching the appropriate evidence,87 WACP and SE Cable TV have now had numerous opportunities
to argue the relevance of any late filed evidence and assertions,88 and we will not dismiss this matter.
24. As noted above, our market modification analysis involves four nonexclusive statutory
factors we explicitly consider, in addition to other relevant evidence.89 The first statutory factor concerns
whether WACP, or other stations licensed to its community, have been historically carried on SE Cable
TV's cable systems.90 SE Cable TV asserts WACP fails this factor because it has never been carried on
its system serving the communities, and accordingly, no viewing patterns would be disrupted through
removing it from the market; and, it notes that no other New Jersey station has been carried on its system
besides two Spanish language stations.91 WACP responds that it is essentially a "new" station since it
only commenced operations in June of 2012.92 It is true that with new stations, failure to establish either
historic carriage or significant viewership is given lesser weight, and we typically rely more on a station's
Grade B contour to delineate its market.93 However, SE Cable TV correctly notes that the historic
carriage and significant viewership factors are not entirely discounted for new stations, nor are such
stations exempt from the market modification process.94


85 WACP Opposition at 3, citing 47 CFR 76.59(b) & (c); see also supra at 3-4.
86 WACP Opposition at 3-6.
87 See Sagamore Hill Broad. Of Wyoming/North. Colorado, LLC, 22 FCC Rcd 12944 (MB 2007).
88 WACP filed a motion seeking to strike SE Cable TV's late filed evidence and arguing that certain points were
inappropriately raised at the reply stage to obtain a litigation advantage; SE Cable TV opposed this motion, and
WACP filed yet another response to this opposition. See Motion to Strike and Limited Surreply of WACP, filed
May 2, 2013 ("WACP Surreply"); Opposition to Motion to Strike and Limited Surreply by SE Cable TV, filed May
16, 2013; Reply to Opposition to Motion to Strike and Limited Surreply by WACP filed May 23, 2013.
89 See supra 2.
90 This statutory factor is typically evidenced by "cable system channel line-up cards or other exhibits establishing
historic carriage, such as television guide listings." 47 C.F.R. 76.59(b)(6).
91 SE Cable TV Petition at 6-7.
92 WACP Opposition at 6.
93 Avenue Cable TV Service, Inc., 16 FCC Rcd 16436, 16445 22 (MB 2001). Without accommodating new or
`specialty stations' in our analysis of historic carriage, "weaker or newer stations that cable systems had previously
declined to carry, [would be prevented] from ever being carried." Time Warner, 22 FCC Rcd at 13649, 14 & n.63,
citing Paragon, 10 FCC Rcd at 9466, 12. See also NY ADI Order, 12 FCC Rcd 12262, 12267, 10 & 12271, 17
(1997) ("[G]rade B contour coverage, in the absence of other determinative market facts ... 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."); see also WRNN II, 21 FCC Rcd at 5959, 14 & n.49 (2006). However, signal coverage does not in and of
itself necessarily entitle a specialty station to carriage. See KTNC Licensee, LLC, 18 FCC Rcd 16269, 16278 17
(2003).
94 See SE Cable TV Petition at 7 n.18. Lack of historical carriage and dearth of audience shares is of evidential
significance when linked with other information regarding the market, including lack of Grade B coverage,
(continued....)
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25. WACP further argues that it satisfies the historic carriage portion of this analysis by virtue of
being carried by competing cable providers throughout the area, including in some of the very
communities at issue95 and in other cases, in surrounding or proximate communities.96 It asserts it is
carried in almost all of the communities at issue in Lehigh and Northampton Counties by RCN because it
has overbuilt SE Cable TV in these areas.97 In addition, WACP also argues that SE Cable TV carries
station WWSI to all of its subscribers in the communities, and WWSI like WACP, is licensed to Atlantic
City, New Jersey, even though WWSI's contour, unlike that of WACP, falls well short of the
communities.98 SE Cable argues that carriage of WWSI should not factor in favor of WACP's claims
because it does not carry WWSI as an "in-market" station,99 and it does not receive the station's signal
over the air but only via satellite.100 We agree with WACP that the method of delivery of WWSI's signal
to SE Cable TV's headend is not relevant to our consideration,101 and also agree with WACP and deem it
relevant that the WWSI Decision did not remove all the communities from WWSI's market that it shares
in common with WACP, and some of these communities have relevance to us today.102
26. SE Cable TV also responds that WACP's carriage in any proximate communities or on
competing cable systems of RCN, SE Cablevision and Verizon by virtue of mandatory carriage should
not count toward fulfillment of this factor because the Commission has stated that carriage as a result of
must-carry does not count toward a history of carriage.103 While we have stated that a history of carriage
cannot be proven via carriage mandated by the rules, this principle was applied to discount the relevance
of a short history of carriage in instances where stations with a long history of operations had become


(...continued from previous page)
geographic distance, and the absence of noncable audience share in relevant communities. In re Cablevision, 11
FCC Rcd 9314, 9322-23 (1996); see also U.S. Cablevision Corp., 12 FCC Rcd 21144, 21152 (CSB 1997)(another
factor to consider could be the availability of other more local television stations in the relevant communities).
95 WACP Opp. at 13-15. Historical carriage of the station by other overlapping cable systems in the communities at
issue is a strong indicator we are meant to consider under the statute. See 47 U.S.C. 534(h)(1)(C)(ii)(I). For
example, the Commission has previously found overlapping carriage by Verizon's FiOS system to lend support to
the historic carriage factor. See WRNN License Co., LLC v. Cablevision Sys. Corp., 22 FCC Rcd 21054, 21056 4
& n.15 (Nov. 29, 2007).
96 WACP Opp. at 11-13 & Exh. K, Communities by overbuilders RCN Telecom Services (Lehigh) LLC and Blue
Ridge Cable Technologies, & Exh. L, Lehigh and Northampton Counties Overbuild Chart showing coverage of
communities by Service Electric, RCN and Verizon. While carriage on nearby cable systems is not a factor
specified in the statute, such carriage does serve to demonstrate the belief of both stations and cable systems
involved that there is a market nexus between the broadcast station and the communities where the station is carried
and it thus provides evidence as to the scope of a station's market. See Paxson Atlanta License, Inc., 13 FCC Rcd
20087, 20100 35 (1998).
97 WACP Opp. at 13-14 & Exh. Lm Lehigh and Northampton Counties Overbuild Chart.
98 WACP Opp. at 16-17. The Commission has previously found that "[c]arriage by a cable system of a co-located
station is frequently a reflection that these stations are part of the cable system's market." See Ackerley Media
Group, Inc.
, 18 FCC Rcd 16199, 16203, 9 (2003 MB).
99 SE Cable TV removed WWSI from some of its Pennsylvania communities in a prior market modification
decision. See In re Hispanic Broad. Of Philadelphia, LLC v. Service Electric Cable TV, Inc., et al., 19 FCC Rcd
2609 (MB 2004) ("WWSI Decision").
100 SE Cable TV Reply at 9-10.
101 WACP Motion to Strike at 15.
102 See WWSI Reply to Opp. to Motion to Strike at 4; see also WWSI Decision, 19 FCC Rcd at 2616, Attachment A.
103 SE Cable TV Reply at 11 & n.30 (citing cases).
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carried only by virtue of passage of the 1992 Cable Act.104 Furthermore, we agree with WACP that it
would not be logical to state that no station carried via must-carry can ever accumulate a history of
carriage, as this would render certain instances of "historical carriage" meaningless.105 WACP is carried
by Comcast in the communities, although it was not subject to a must carry complaint.106 Moreover, if
anything, other operators' decisions to carry WACP are meaningful because they could have fought the
addition of the station to their systems, but instead, chose not to do so.107 Accordingly, we will consider
as favorable evidence WACP's carriage in, and proximate to, the communities on competing systems.
27. The second statutory factor asks "whether the television station provides coverage or other
local service to such community."108 SE Cable TV argues the Philadelphia DMA is the fourth largest in
the country, with 2,993,370 households and 18 counties in three states.109 It notes that Atlantic City,
WACP's city of license, and Bethlehem, PA (the approximate location of the subject cable system's
headend) are at the extreme Southeastern and Northwestern edges of this DMA, and are separated by a
mountain range.110 The cable system communities are also at an average distance of 50 to 75 miles from
WACP's transmitter and 78 to 106 miles from Atlantic City.111
28. Furthermore, SE Cable TV argues WACP fails to place a reliable signal over the
communities at issue,112 and that it fails to air programming having a distinct nexus to the communities.113
WACP responds that its noise-limited service contour covers all of Se Cable TV's communities in Bucks
County and the community of Hereford in Berks County.114 SE Cable TV responds that WACP's
programs are predominantly infomercials, and what little is available from the station's issues/programs
lists shows that they are not oriented to the communities,115 and WACP does not contest that it does not
provide local programming, but it argues its programming should not be "of decisional significance"
given that it has "had no chance of obtaining any lucrative network affiliation" because it was the 16th


104 See TKR Cable Co., Sussex and Morris Counties, NJ, 12 F.C.C.R. 8414, 8422 16 (CSB 1997) ("[C]arriage
patterns that have developed coincident with changes in the statutory carriage obligation provide only equivocal
information as to the connection of these communities with [the station]..."); see also Comcast Cablevision of
Monmouth
, 11 FCC Rcd 6426, 6435 25 (CSB 1996).
105 See WACP Motion to Strike at 11. WACP argues that all stations may have a period of mandatory carriage as
part of their history, and if we were only to consider carriage pursuant to retransmission consent as probative of
carriage history, that would leave only a subset of stations, and only those which the cable operator has agreed by
contract to carry.
106 See id. at 9.
107 WACP notes that its complaints against the other operators, RCN, SE Cablevision and Verizon, were placeholder
filings made to ensure that it would not forfeit its carriage rights, and not one of these operators opposed its carriage
demand on the record and all commenced carriage of the station after the process of ensuring a good quality signal
was concluded. See WACP Reply to Opp. to Motion to Strike at 3.
10847 U.S.C. 534(h)(1)(C)(ii)(II).
109 SE Cable TV Petition at 4.
110 SE Cable TV Petition at 4.
111 SE Cable TV Petition at 7.
112 SE Cable TV Petition at 7.
113 SE Cable TV Petition at 5 & 8.
114 WACP Opp. a 8-9.
115
SE Cable TV Petition at 5 n.13, citing Exh. D, WACP issues programs list, available at
https://stations.fcc.gov/station-profile/wacp/more-public-files/browse-%3Eissues_and_programs_lists.
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entrant in the market.116
29. In its reply, SE Cable TV attaches maps showing the location of its cable system
communities in relation to WACP's noise-limited or 28 db contour, and it argues that of the 76
communities it seeks to remove from WACP's DMA, all but 14 were outside the WACP's contour.117
We find that WACP covers the communities of Coopersburg, Haycock, Hellertown, Hereford, Milford,
Lower Milford, Richland, Riegelsville, Upper Saucon, and Tinicum with its noise-limited contour line
and WACP is carried by a competing provider in all such communities. While WACP also covers the
communities of Bridgeton, Durham, Nockamixon, and Springfield with its contour, the station is not
carried in these communities by a competing provider based on the evidence provided. However, there is
no provider other than SE Cable TV serving these latter four communities, they are surrounded by, and
are immediately proximate to, the communities where WACP is carried and which we have retained in its
market, and there is no possibility for WACP to have built a history of carriage in these communities
because it had been in operation for less than a year when the petition to remove it from these
communities was filed. We decline to add WACP to any other communities because it lacks a
demonstrated combination of both Grade B equivalent or noise-limited coverage and carriage in these
latter communities.
30. The third statutory factor is "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."118 SE Cable TV argues the Commission gives greater weight to the
carriage of other stations where a cable operator is seeking to delete a station's mandatory carriage rights
as is the case here, and when it is clear that the station is not providing a local service to those
communities.119 It argues the DMA contains 15 other stations and that its system carries substantial
amounts of local service from these other media outlets to the communities, including KYW (CBS),
WPHL, WTXF (Fox), WPVI (ABC), WCAU (NBC), WHYY (PBS), and WPSG all from Philadelphia,
as well as WLVT (PBS) and WFMZ both from Allentown. In particular, WFMZ (dubbed "News 69")
devotes a substantial portion of its broadcast day to news and information directly relevant to the
communities with 10 hours of news, much of it local, and a half-hour in Spanish.120 We acknowledge
SE Cable TV's points, but note the Bureau has previously stated that local coverage by other stations is
given little weight within the Grade B contour of the station subject to the market modification.121
31. The fourth statutory factor concerns "evidence of viewing patterns in cable and noncable
households within the areas served by the cable system or systems in such community."122 SE Cable TV
argues WACP likely has no share in the communities as it fails to provide a noise-limited contour to
them,123 and WACP does not contest it garners no ratings, but responds that as a new station, viewership


116 See WACP Opp. at 19 & 21-22.
117 SE Cable TV Reply at 7 & Exh. 2. WACP has argued that this exhibit should be struck from the record because
it is untimely. See WACP Motion to Strike at 8. However, we decline to do so because the exhibit actually provides
a benefit to WACP in that it affirms its contour coverage of some communities.
11847 U.S.C. 534(h)(1)(C)(ii)(III).
119 SE Cable TV Petition at 9.
120
SE Cable TV Petition at 4, 6 & 9, citing the on-air schedule of WFMZ, available at
http://www.locatetv.com/listings/wfmz#23-May-2013.
121 See Mediaone of Mass., Inc., 13 FCC Rcd 3017, 3025 21 (CSB 1998).
12247 U.S.C. 534(h)(1)(C)(ii)(IV).
123 SE Cable TV Petition at 9.
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values should not weigh against the station's claims to retain these communities.124
32. SE Cable TV also raises several non-enumerated economic factors that it asserts argue in
favor of its petition.125 In particular, in its Reply SE Cable TV raised for the first time that communities
within WACP's contour represent only 11 percent of its subscribers, but that it is not technically capable
of delivering WACP to just a few communities on its technically integrated system. Therefore, granting
even partial carriage WACP would give it carriage beyond that to which it would be entitled.126 Although
we could choose to disregard this factual argument raised for the first time on reply, we address the
argument in order to note that it has no relevance to our market modification determination.127
Furthermore, WACP has submitted evidence showing that SE Cable TV may be capable of separating the
signals on its system.128
33. In this matter, WACP has no history of carriage in the communities at issue, provides no
programming oriented toward them, and obtains no audience viewership values therein although it is
presently carried in several of these communities by competing providers. However, WACP is a new
station and its viewership and historical carriage may be discounted in our analysis, though not entirely
ignored. In a case such as this, to define the current limit of WACP's market, we typically rely on a
station's service area in conjunction with other factors, and given that WACP provides no programming
service, we rely on the limit of its Grade B contour taken together with other factors - its carriage by
competing providers in the communities at issue, its carriage on proximate systems, and SE Cable TV's
carriage of a co-located station, WWSI, in some of the communities. These factors weigh in favor of


124 WACP Opp. at 19.
125 SE Cable TV argues the U.S. Census Bureau does not consider Atlantic City (Atlantic County) to be part of the
Philadelphia-Camden-Wilmington PA-JN-DE-MD Metro Area in its Economic Census Local Business Snapshot.
SE Cable TV Petition at 8 & n.27, citing Exhibit I, Economic Census, Philadelphia-Camden-Wilmington, Pa-NJ-
DE-MD List Metro Area, Metro Definition, http://www.census.gov/econ/census/snaphsots_center/phila.html (last
visited May 30, 2013). It further notes, the Census Bureau reports that the vast majority of the residents of Bucks,
Lehigh and Northampton Counties work in their own county or nearby counties, as opposed to Atlantic County. SE
Cable TV Petition at 5 & n.11, citing U.S. Census Bureau, County-to-County Worker Files, available at
http://www.census.gov/population/www/cen2000/commuting/index.html#NJ. SE Cable TV further notes that
Bethlehem, PA and Atlantic City are separated by approximately 130 road miles (a two and a half hour drive). SE
Cable TV Petition at 4.
126 WACP Reply at 8.
127 This is not an instance in which the majority of the communities sought for inclusion or retention are part of an
integrated cable system, the majority of which stretches beyond the DMA itself or serves the core of another DMA.
See e.g., In re Armstrong Utilities, Inc., 21 FCC Rcd 13475, 13485-86 16 (MB 2006), citing In re Norwell
Television, LLC
, 16 FCC Rcd 21970 (MB 2001); cf. In re Tennessee Broad. Partners, 23 FCC Rcd 3928, 3957 75
(MB 2008) (declining to add the communities of Fulton, Murray and Mayfield to a station's market, when among
other factors, these communities "exist[ed] on a cable system stretching further north into the Paducah DMA"),
rev'd 25 FCC Rcd 4857, 4861 9 (MB 2010) (adding these communities back into station's market). Finally, as
WACP notes, it would be considered "local" as to any communities outside its market which SE Cable TV was
unable to isolate. See Must Carry Order, 8 FCC Rcd at 2976 41 ("[I]f the cable system is not able to alter its
channel line-up on a community-by-community basis and the system straddles two ADIs, all broadcast stations in
both ADIs will be considered "local" for must carry purposes."); WACP Motion to Strike at 17 & n.33, citing
Family Stations v. Viacom Cable, 12 FCC Rcd 19682, 19685 7 (CSB 1997) ("It should be noted that in instances
where the carriage of a station from another ADI creates copyright costs for the cable operator, the television station
will be required to negotiate a copyright indemnification agreement with the cable system. Consequently, Viacom's
carriage of KFTL will result in copyright liability for which KFTL must indemnify Viacom."). WACP also argues
we should deny the Petition because WACP's carriage in another market as a result of the integrated system will
result in its incurring copyright fees. We decline to dismiss this matter purely on this ground.
128 See WACP Reply to Opp. to Motion to Strike at 5-6 and attachments.
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granting SE Cable TV's request to modify WACP's market to remove all the communities it sought
except Bridgeton, Durham, Coopersburg, Haycock, Hellertown, Hereford, Milford, Lower Milford,
Nockamixon, Richland, Riegelsville, Upper Saucon, Springfield, and Tinicum.129 However, given the
unusual circumstances of this case, we will not bar WACP from seeking carriage in the current election
cycle on the SE Cable TV systems remaining in its market due to our market modification decision.

IV.

ORDERING CLAUSES

34. Accordingly,

IT IS ORDERED

, that pursuant to Section 614(h) of the Communications Act
of 1934, as amended, 47 U.S.C. 534, and Sections 76.7, 76.61, 76.59, of the Commission's rules, 47
C.F.R. 76.7, 76.61 and 76.59, the above captioned petition for special relief (CSR-8757-M) and its
subsidiary Motion for Clarification, Supplement and Correction of Record, all by Western Pacific
Broadcast, LLC, licensee of commercial broadcast television station WACP-DT, Atlantic City, NJ

ARE
DENIED

, though its Partial Dismissal of Petition for Special Relief By Order of Carriage,

IS
GRANTED.

35.

IT IS FURTHER ORDERED

that the Petition for Special Relief (CSR-8772-A) filed by
Service Electric Cable Television, Inc.

IS GRANTED IN PART

and

DENIED IN PART

as discussed
above.
36. This action is taken under authority delegated by Section 0.283 of the Commission's
rules.130
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division

Media Bureau


129 As a result, the following communities are removed from WACP's market: Bethlehem (CUID PA0092), Easton,
Forks, Glendon, Palmer (CUID# PA0108), Plainfield (CUID# PA0109), Stockertown, West Easton, Williams
(CUID# PA0117), Wilson, Bangor, East Bangor, Roseto, Lower Nazareth, Nazareth, Williams (CUID# PA0252),
Tatamy, Upper Nazareth, Emmaus, Macungie, Lower Macungie (CUID #PA0291), Salisbury (CUID# PA0293),
Upper Milford, Portland, Allentown, Bethlehem (CUID# PA0479), Alburtis, Salisbury (CUID# PA0856),
Whitehall, South Whitehall, Upper Macungie, Catasauqua, Lower Macungie (CUID# PA0862), Lower Saucon,
Hanover (CUID# PA0865), Fountain Hill, Upper Mount Bethel, Pen Argyl, Washington, Wind Gap, Plainfield
(CUID# PA0924), Bushkill, Palmer (CUID# PA0952), Freemansburg, Bethlehem (CUID# PA1341), East Allen,
Moore, Weisenberg, Low Hill, North Whitehall, Lower Mt Bethel (CUID# PA0109), Hanover (CUID# PA1674),
Bath, Coplay, Lynn, Greenwich, Allen, Longswamp, North Catasauqua, Lower Mt Bethel (CUID# PA2964),
Chapman, and Northampton.
130 47 C.F.R 0.283.
17

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