******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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: ) ) TCI of Northern New Jersey, Inc.) CSR-4820-A ) For Modification of the ADI of ) Television Broadcast Station WHAI-TV,) Bridgeport, Connecticut ) MEMORANDUM OPINION AND ORDER Adopted: January 13, 1997 Released: January 22, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. TCI of Northern New Jersey, Inc. ("TCI"), filed the above-captioned petition for special relief seeking to modify the New York Area of Dominant Influence (ADI) relative to station WHAI-TV (Ch. 43), Bridgeport, Connecticut. Specifically, TCI requests that WHAI-TV be excluded, for purposes of the cable television mandatory broadcast signal carriage rules, from the communities it serves in northern New Jersey. This petition is unopposed. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-25, 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 ADI 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 ADI, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 7. In adopting rules to implement this provision, the Commission indicated that requested changes should be considered on a community-by-community basis rather than on a County-by- County basis, and that they should be treated as specific to particular stations rather than applicable in common to all stations in the market. The rules further provide, in accordance with the requirements of the 1992 Cable Act, that a station not be deleted from carriage during the pendency of an ADI change request. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. The communities here in question are located in the northern New Jersey counties of Bergen, Essex, Morris, and Passaic and are considered to be part of the New York ADI. Bridgeport, Connecticut, the city of license of WHAI-TV is also a part of the same ADI and is located approximately 60 miles from the nearest TCI cable community. 9. In support of its petition, TCI argues that WHAI-TV should be excluded from carriage on its system because the station fails to meet any of the four market factors set forth in the 1992 Cable Act and the Commission's Rules. First, TCI states that there is no long-term historic carriage of WHAI-TV on its system. While TCI admits that it has been carrying the station since December 1995 pursuant to its must carry obligations, it maintains that such carriage does not represent long- term carriage, particularly since the station has been on the air since September 28, 1987. Second, TCI states that WHAI-TV has no significant local ratings, is not listed by A.C. Nielsen in any viewership surveys for the counties in which its system is located, nor is it listed in the local edition of TV Guide. Third, TCI avers that WHAI-TV provides no coverage of the cable communities at issue. It states that WHAI-TV's Grade B contour does not encompass any of its communities and the station's city of license is at least 60 miles from the nearest cable community. TCI avers that this distance is comparable to similar market deletion requests granted by the Cable Services Bureau. TCI also points out that WHAI-TV provides no local programming geared specifically to its subscribers. It also asserts that most of WHAI-TV's programming appears to be in the form of infomercials. Finally, TCI indicates that each of the cable communities already receives extensive coverage of local issues from the local television stations it currently carries. DISCUSSION 10. Based on the four statutory and other relevant factors, TCI's petition will be granted. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they service and which form their economic market." Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements. The ADI market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that the operator's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. TCI's actions do not reflect an intention to skirt its signal carriage responsibilities under the 1992 Cable Act and the Commission's rules, nor do they evidence a pattern of discriminatory conduct against the station. Based on the geography and the statutory factors, we believe that the New Jersey communities in question are sufficiently removed from WHAI-TV that they ought not be deemed part of the station's market for mandatory carriage purposes. The evidence before us, which has not been disputed by WHAI-TV, distinguishes the various New Jersey communities from Bridgeport, Connecticut and persuades us that the action requested would "better effectuate the purposes" of 614 of the 1992 Cable Act. We believe Congress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly reviewed and rectified. 11. With regard to the historic carriage factor, we do not believe that the station has satisfied this prong as WHAI-TV has had only a brief history of carriage on the system and TCI has carried the station under mandate of the 1992 Cable Act. Even if the station's carriage history was more directly relevant as evidence of the scope of the WHAI-TV economic market, this factor alone would not outweigh the station's inability to meet the other three criteria. Here, TCI has also shown that WHAI-TV does not provide local service to the communities in question. WHAI-TV is geographically distant from the subject cable communities which are more than 60 miles away. WHAI-TV also does not place either a Grade A or Grade B contour over the cable communities. We also find no evidence that WHAI-TV provides local interest programming specifically targeted for cable viewers in the relevant New Jersey communities. 12. We also believe that TCI's carriage of other local television stations provides support for the action requested. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. We believe this case is exemplary in that there are a number of television stations carried by TCI's system, including several licensed to communities in New Jersey that have a closer nexus to the New Jersey communities and provide more focused local programming than WHAI-TV. These market facts, coupled with the distance between the cable communities and WHAI-TV, support TCI's arguments under the third factor. 13. TCI also shows that WHAI-TV has no audience in the counties in which the cable communities are located. Because WHAI-TV is a specialized format station, audience data are not determinative, in and of themselves, of the relationship between the cable communities and the market of the television station, nor should their absence permit a cable operator to undermine the objectives of the mandatory carriage requirement. Here, however, we conclude that the dearth of viewership is of evidentiary significance when tied with the lack of both historical carriage and Grade B coverage. In these circumstances, we cannot discount the absence of viewership as an indicator of the scope of its market area. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534, and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief (CSR-4820-A) filed on behalf of TCI of Northern New Jersey, Inc. IS GRANTED. 15. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau