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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) TKR Cable Company ) CSR-4929-A Sussex and Morris Counties, New Jersey ) ) For Modification of Television ) Broadcast Station WLNY's ADI ) MEMORANDUM OPINION AND ORDER Adopted: June 23, 1997 Released: June 26, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. TKR Cable Company ("TKR"), operator of the Dover/Morris cable television system which serves various communities in Sussex and in Morris Counties, New Jersey, has filed a petition seeking to delete the communities served by TKR's Dover/Morris system from the New York area of dominant influence (or "ADI"), insofar as mandatory carriage of television broadcast station WLNY (Channel 55), Riverhead, New York, is concerned. Station WLNY's licensee, WLNY-TV, Inc., has filed an opposition, to which TKR has replied. BACKGROUND 2. Pursuant to  614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence" or ADI as defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air and cable television viewing are included. 3. Under the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) provides that the Commission may: with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section. In considering such requests, the Act provides that: the Commission shall afford particular attention to the value of localism by taking into account such factors as -- (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; (II) whether the television station provides coverage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community. 4. The legislative history of this provision indicates that: where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular communities from a television station's market consistent with Congress' objective to ensure that television stations be carried in the areas which they serve and which form their economic market. * * * * * [This subsection] establishes certain criteria which the Commission shall consider in acting on requests to modify the geographic area in which stations have signal carriage rights. These factors are not intended to be exclusive, but may be used to demonstrate that a community is part of a particular station's market. 5. The Commission provided guidance in its Report and Order in MM Docket 92- 259, supra, to aid decision making in these matters, as follows: For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel line-up (e.g., rate cards) for a period of years. To show that the station provides coverage or other local service to the cable community (factor 2), parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or other programming of interest to the community could be demonstrated by program logs or other descriptions of local program offerings. The final factor concerns viewing patterns in the cable community in cable and noncable homes. Audience data clearly provide appropriate evidence about this factor. In this regard, we note that surveys such as those used to demonstrate significantly viewed status could be useful. However, since this factor requires us to evaluate viewing on a community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6. As for deletions of communities from a station's market, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 7. In adopting rules to implement this provision, the Commission indicated that requested changes should be considered on a community-by-community basis, rather than on a county-by-county basis, and that they should be treated as specific to particular stations rather than applicable in common to all stations in the market. The rules further provide, in accordance with the requirements of the 1992 Cable Act, that a station not be deleted from carriage during the pendency of a market change request. MARKET FACTS AND PARTIES' ARGUMENTS 8. WLNY is licensed to Riverhead, New York, which is part of the New York ADI. The communities in both Sussex and Morris Counties are also all presently assigned to the New York ADI. While Sussex and Morris Counties are both located in the western portion of the New York ADI, WLNY's city of license, Riverhead, is located in the far eastern portion of the New York ADI, in Suffolk County. Riverhead is more than one hundred miles from any of the communities served by TKR's Dover/Morris system. According to Nielsen's 1995 County/Coverage Study, WLNY had no reported viewing share, either off-air or on cable either in Sussex or in Morris County, and WLNY's Grade B contour, which does not extend beyond New York State, covers none of the specified communities either in Sussex or in Morris County, New Jersey. 9. Citing the Bureau's previous decisions in Service Electric Cable TV of New Jersey, Inc.; Time Warner Entertainment-Advance Newhouse Partnership; Continental Cablevision of Western New England Inc., and Comcast Cablevision of Monmouth County. TKR notes that communities both in Sussex and in Morris Counties were excluded from WLNY's ADI in those cases, and it contends that its circumstances in this case are substantially similar. TKR adds that, even though WLNY has been broadcasting since 1985, it was never added to the Dover/Morris system until November 15, 1994, when its carriage was mandated by the 1992 Cable Act. TKR notes that it had not been carried by Service Electric in Sussex or in Warren Counties, or by Time Warner in Bergen County, or by Continental in Rockland County/Westchester County, or by Comcast in Monmouth, Warren, Morris, Hunterdon, Bergen, Hudson, Ocean, Union, Middlesex, Somerset, or Mercer Counties. TKR adds that it has previously been held that such mandatory carriage is not highly probative in establishing a history of carriage for ADI purposes. TKR also notes that the distance between the Dover/Morris headend and WLNY's city of license, Riverhead, is 100.355 miles, while the distance between its headend and WLNY's transmitter at Ridge, New York is 87.222 miles. In addition, TKR notes that all of the specified communities are located beyond WLNY's Grade B contour. TKR adds that all the designated communities in Sussex and in Morris Counties are located farther from Riverhead than are Hudson and Union Counties, New Jersey or Westchester and Rockland Counties, New York. Furthermore, TKR states that both New York City and the Hudson River are located between WLNY and the areas served by TKR, and that they form a natural barrier between those communities and the station's market, which has previously been recognized in several Bureau orders. In addition, TKR contends that ". . . almost all of WLNY's programming consists of syndicated programming and movies," which is of no particular interest to TKR's viewers, and that ". . . none is designed to meet the needs and interests of viewers in the communities served by TKR." By contrast, TKR claims that fourteen other local television stations, all but one of which places a Grade B contour over the communities served by TKR, are carried by the Dover/Morris system, including seven that are licensed to serve New Jersey communities. According to TKR, these stations provide a stronger signal to TKR's headend than does WLNY, and their programming has a closer nexus to the designated communities than does that of WLNY, which also lacks both cable and noncable viewing in the areas served by TKR. 10. In response, WLNY contends that it is the only remaining independent commercial station in the New York ADI and that it provides New Jersey viewers with diverse local television programming. The station notes that its programs are not only listed in the four major New York daily newspapers, but that they are also included in the Parsippany Daily Record, as well as in the Bergen Record. The station adds that TKR has transmitted its signal for over 2 1/2 years on its Dover/Morris system without any objections, and that it also is carried by six other New Jersey cable systems, serving over 700,000 homes in eight New Jersey counties (Bergen, Hudson, Middlesex, Monmouth, Morris, Passaic, Somerset, and Union). The station notes that three of these systems are carrying its signal pursuant to long-term carriage agreements, rather than pursuant to the must-carry rules. The station adds that it is carried by cable systems serving over 3,000,000 total homes in New Jersey, New York City, Westchester County, Fairfield County, and Long Island. Citing the Bureau's decision in Fouce Amusement Enterprises, Inc., in which it determined not to remove certain cable communities from the Los Angeles, California ADI insofar as carriage of a particular station was concerned, WLNY maintains that its carriage in nearby communities, especially in the same county, also demonstrates some degree of local service and militates against redesignation of its market. The station adds that it aired more New Jersey stories during the month of April 1995 than did the NBC network affiliate licensed to serve New York, and that its daily news coverage already includes New Jersey weather reports and professional sports team scores. The station notes that it has a news bureau in Wayne, New Jersey, and that it airs a weekly public affairs program called "New Jersey Today." The station also states that it includes New Jersey news in its one hour of self-produced local news that it broadcasts each day, and during the 1994 and 1995 football season, WLNY states that it was the only station in the New York ADI that broadcast a complete college schedule of Metro Atlantic Athletic Conference games, in addition to airing a schedule of Big East basketball games. The station also broadcasts Catholic morning mass every weekday for viewers who cannot go in person, and it broadcasts four half-hours of self-produced public affairs programming each weekend, featuring panel discussions and interviews concerning important public issues in the New York ADI, as well as a daily half-hour public affairs program covering issues of general interest. 11. According to WLNY, it also airs more local programming than did the subject station in Time Warner Cable (North Carolina), in which the Bureau denied the request to delete the designated communities from the Raleigh-Durham, North Carolina ADI insofar as the subject station was concerned. WLNY adds that neither  614 of the Communications Act, as amended, nor its legislative history contains any reference to the necessity for commercial stations placing Grade B contours over communities where they want mandatory carriage on the local cable system. The station adds that the New York ADI is a single, unified market, and that thousands of people commute there for jobs daily, so that, rather than constituting a barrier between the designated communities and WLNY, the City in fact facilitates synergy between New Jersey and Long Island. According to WLNY, its general entertainment and substantial local news and public affairs programming fully satisfies the Bureau's "local service" standard, and the fact that other stations may serve the specified communities has previously been held by the Bureau not to bar a station's ADI claim, such as in Kansas City Cable Partners, in which the Bureau denied a request to delete certain cable communities from the Kansas City, Missouri ADI with respect to mandatory carriage of a home shopping station, even though the cable operator had demonstrated carriage of various other local television stations. Moreover, WLNY states that its lack of reported viewership should not serve as a basis for eliminating its must- carry right since that would eviscerate Congress' entire ADI-based must-carry plan, which was designed to help UHF stations whose low market-based ratings frequently resulted from a lack of cable carriage by local cable systems. WLNY concludes that its programming and historic cable carriage provide a stronger case for TKR's carriage of its signal than for its carriage of other UHF stations. 12. In reply, TKR notes that the location, power, and height of WLNY's transmitter demonstrates that the station chose to serve Long Island, New York. TKR adds that the Bureau has paid substantial attention to geography, to distance, and to Grade B coverage in deciding the dozens of ADI modification orders that it has released so far. In addition, TKR states that the Commission has frequently utilized Grade B coverage in the past to determine a television station's local service area, and that the considerable distance between WLNY's Grade B contour and the specified cable communities ". . . makes it clear that WLNY opted to serve an economic market that does not include TKR." TKR notes that WLNY has not shown that carriage by any of the New Jersey cable systems it mentions pre-dated the carriage mandate of the 1992 Cable Act. TKR adds that, even though WLNY has been on the air since 1985, it still has not demonstrated how any of its programming is of particular interest to viewers in the designated communities in Sussex and in Morris Counties. TKR also explains that when the station concerned provides no local service to the cable communities, such as in the present case, the Commission will consider evidence of local programming by other stations in deletion cases. According to TKR, it has shown the availability of ample local programming from the abundance of other stations carried by TKR by its Dover/Morris system.. ANALYSIS AND DISCUSSION 13. We will grant TKR's request. Based on geography and other relevant information, we believe that the New Jersey cable communities are sufficiently removed from WLNY that they ought not be deemed part of the station's market for mandatory carriage purposes. The evidence before us distinguishes these communities from the rest of the New York television market and persuades us that the action requested would better effectuate the purposes of  614 of the Communications Act. 14. The New York ADI is the nation's largest television market with approximately 6.7 million television households and over 9 million cable viewers. Geographically, the market encompasses some 29 counties in four states, and is roughly 170 miles long and 150 miles wide, stretching north into Ulster County and the Catskill Mountains, then down the shores of Monmouth and Ocean Counties, New Jersey to the south; Pike County, Pennsylvania is at the westernmost edge of the market which then extends eastward to include Fairfield County, CT and all of Long Island, NY. The core of the ADI is New York City, the largest city in the United States, and the community of license for several local commercial television stations. WLNY, which signed on-the-air in 1985, broadcasts on Channel 55 from a transmitter located in Ridge, New York. The station's city of license is Riverhead, New York with its studios located in Ridge, New York. 15. 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. TKR'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. 16. Turning to the statutory factors, we note that WLNY has no history of cable carriage on the systems subject to the modification request prior to passage of the 1992 Cable Act, and that carriage patterns that have developed coincident with changes in the statutory carriage obligation provide only equivocal information as to the connection of these communities with WLNY in terms of the market participants understanding of the scope of the market. Thus, the fact that some New Jersey cable systems currently carry the station when mandated by law is not highly probative of establishing a history of carriage for our purposes here, particularly when, as in this instance, WLNY has been operating for over a decade. Others of the New Jersey systems cited as carrying WLNY are also significantly closer to WLNY's service area. 17. The evidence also suggests that WLNY does not provide local service to the communities in question. WLNY does not place either a Grade A or Grade B contour over the cable communities. In addition, WLNY is geographically distant from TKR's cable communities. As the operator notes, the station's transmitter is located approximately 87 miles from its Dover/Morris headend. Because WLNY is located in a different state and its city of license is more than 100 miles from TKR's closest New Jersey cable community, we cannot ignore distance as a determinative factor in this particular instance. The interposition of New York City with its tall buildings and urban electrical noise and its transportation and population congestion blocking television reception must also be reflected in our decision. Here, New York City creates an economic divide between the station and the cable communities since, from a practical perspective, a New Jersey cable viewer is unlikely to travel and purchase goods or services by a Long Island firm advertising on WLNY. The fact that the station has heavily invested in fiber optic plant and equipment to improve its signal quality does not convert WLNY into a "local" station for the purposes of the market modification analysis. While we recognize that the station has attempted to target some of its material to the needs and interests of New Jersey residents, we find that the majority of the station's programming is of general interest, rather than specifically tailored to the TKR's cable communities. 18. We also believe that TKR's carriage of other local television stations provides support for the action requested in this particular case. 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 which we will give greater weight than in cases where a party is seeking to add communities. In this particular instance, there are several television stations licensed to New Jersey, that have a closer economic nexus and provide more focused local programming to TKR's viewers than does WLNY. These market facts, coupled with the distance between the cable communities and WLNY, supports TKR's argument under the third factor. 19. The distances involved in this situation, together with the lack of a Grade B or better contours, further attenuates the local ties that the station might otherwise have to the cable communities and helps explain why the station's viewership is too low to be reported in Sussex and in Morris Counties. We conclude, therefore, that despite its carriage as a result of the 1992 Cable Act, when considered with other information regarding the market and the particular distances involved, the dearth of audience is of evidentiary significance. In these circumstances, we cannot discount the absence of viewership as an indication of the scope of WLNY's market area. 20. In view of the above, we will grant TKR's request to delete the designated communities in Sussex and Morris Counties from the New York ADI insofar as mandatory carriage of WLNY is concerned. ORDERING CLAUSES 21. Accordingly, IT IS ORDERED, pursuant to 614(c) of the Communications Act of 1934, as amended, 47 U.S.C. 534 and 76.59 of the Commission's Rules (47 C.F.R. 76.59), that the "Petition For Special Relief" (CSR-4929-A) filed by TKR Cable Company IS GRANTED. 22. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau