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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: ) ) Market Modifications and )CSR 3873-A/CSR 4545-M the New York Area of Dominant Influence)CSR 4019-A/CSR 4647-M ))CSR 4051-A Petitions for Reconsideration and)CSR 4413-A/4538-M Applications for Review of: )CSR 4416-A )CSR 4549-A/4590-M & 4591-M Cablevision Systems Corporation )CSR 4556-A/CSR 4624-M Time Warner )CSR 4563-A WRNN-TV Associates Ltd. )CSR 4669-A/CSR 4649-M Mountain Broadcasting Corporation)CSR 4726-A/CSR 4747-M Trinity Broadcasting of New York, Inc.)CSR 4794-A Paxson New York License, Inc. )CSR 4783-A/CSR 4782-M WLNY TV, Inc. )CSR 4803-A MEMORANDUM OPINION AND ORDER Adopted: August 11, 1997Released: August 13, 1997 By the Commission: INTRODUCTION 1.Before the Commission are twenty six petitions seeking review or reconsideration of thirteen market modification orders and nine must carry orders adopted by the Cable Services Bureau ("Bureau") pursuant to delegated authority. 2.These orders involve the broadcast signal carriage obligations of cable television system operators in numerous communities within the New York Area of Dominant Influence ("ADI"), otherwise known as the New York television market. The cable operators involved are: (1) Cablevision Systems Corporation ("Cablevision"); (2) Time Warner; (3) Continental Cablevision; (4) Comcast Cablevision; (5) Adelphia Cable; (6) TKR Cable Company; and (7) Service Electric Cable TV of New Jersey. The orders, adopted pursuant to the processes set forth in Section 614(h) of the Communications Act, granted in part and denied in part requests by these cable operators to delete the communities served by their systems with regard to: (1) WRNN (Ch. 62-Kingston, N.Y.), licensed to WRNN-TV Associates Limited Partnership; (2) WTBY (Ch. 54-Poughkeepsie, N.Y.), licensed to Trinity Broadcasting of New York, Inc.; (3) WMBC-TV (Ch. 63-Newton, N.J.), licensed to Mountain Broadcasting Corporation; (4) WHAI-TV (Ch. 43-Bridgeport, Conn.), licensed to Paxson New York License, Inc.; and (5) WLNY (Ch. 55-Riverhead, N.Y.), licensed to WLNY-TV, Inc. (collectively "the broadcasters"). 3. Section 614(h)(1)(C)(i) provides in relevant part: "[F]ollowing a written request, 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." When deletion requests are denied, cable operators must, if all other applicable conditions are complied with, carry the broadcast station signals involved. When deletion requests are granted, cable operators are relieved of their obligations to carry the broadcast signals involved. The broadcasters seeking review or reconsideration, request that the Commission reverse those Bureau orders granting the cable operators' petitions to delete various communities in the New York ADI for must carry purposes. Cablevision and Time Warner ask for reversal of two of the Bureau's orders that denied their separate requests to delete various communities from the ADI with regard to WRNN and WTBY (Cablevision), and WMBC-TV (Time Warner). We consolidate consideration of these petitions because they all involve the New York television market, the legal arguments presented by the parties are substantially similar, and the interests of administrative efficiency will be advanced thereby. 4.In considering market modification 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. We subsequently refer to the four factors listed in Section 614(h)(1)(C)(ii) as factors I through IV. 5. The following orders are involved:  Adelphia Cable Communications, 1996 WL 272185 (1996) (CSR 4669-A/CSR 4649-M). This case involved Adelphia's request to modify the television market of WTBY, WMBC-TV, and WHAI-TV with regard to its system serving communities in Ocean County, NJ. It also included WHAI-TV's must carry complaint against Adelphia. The Bureau granted Adelphia's request and dismissed WHAI-TV's complaint.  Cablevision of Monmouth, 11 FCC Rcd 9314 (1996) (CSR 4726-A/CSR 4747-M). This case involved Cablevision's request to modify the television market of WMBC-TV with regard to its systems serving communities in Monmouth County, NJ and surrounding areas. It also included WMBC-TV's must carry complaint against Cablevision. The Bureau granted Cablevision's request and dismissed WMBC-TV's complaint.  Cablevision Systems Corporation, 11 FCC Rcd 6453 (1996) (CSR 3873-A/CSR 4545-M). This case involved Cablevision's request to modify the television markets of WTBY, WRNN, WMBC- TV, and WHAI-TV with regard to communities served by its systems in upstate New York, New York City (the Bronx and parts of Brooklyn), New Jersey, and southern Connecticut. It also included WMBC-TV's must carry complaint against Cablevision. The Bureau granted Cablevision's request to delete WMBC-TV throughout the New York ADI. The request was also granted with regard to WRNN and WTBY except for those communities served by the Westchester County (Yonkers), NY, Portchester, NY, Fairfield County (Bridgeport and Norwalk), CT, and northern Bergen County, NJ cable systems. The Bureau granted Cablevision's request to delete WHAI-TV except for those communities served by its Portchester and Yorktown, NY, systems.  Comcast Cablevision of Monmouth County, et. al., 11 FCC Rcd 4226 (1996) (CSR 4549-A/CSRs 4590-M and 4591-M). This case involved Comcast's request to modify the television market of WHAI-TV with regard to its systems serving communities in northern and central New Jersey. It also included WHAI-TV's must carry complaints against Comcast. The Bureau granted Comcast's request and dismissed WHAI-TV's complaint.  Comcast Cablevision of Monmouth County, et. al., 11 FCC Rcd 6440 (1996) (CSR 4556-A/CSR 4624-M). This case involved Comcast's request to modify the television market of WRNN with regard to its systems serving communities in northern and central New Jersey. It also included WRNN's must carry complaint against Comcast. The Bureau granted Comcast's request and dismissed WRNN's must carry complaint.  Comcast Cablevision of Monmouth County, et. al., 11 FCC Rcd 6426 (1996) (CSR 4563-A). This case involved Comcast's request to modify the television market of WLNY with regard to its systems serving communities in northern and central New Jersey. The Bureau granted Comcast's request.  Continental Cablevision of Western New England, 11 FCC Rcd 6488 (1996) (CSR 4019-A/CSR 4647-M). This case involved Continental's request to modify the television markets of WTBY, WRNN, WMBC-TV, WLNY, WHSE, WHSI and WHAI-TV with regard to its system serving communities in Westchester and Rockland Counties, NY. It also included WMBC-TV's must carry complaint against Continental. The Bureau granted Continental's request with regard to WLNY. Its request with regard to WHAI-TV was granted for all communities except Pleasantville, Briarcliff Manor, Garrison, and Bedford, NY, and its request to delete WMBC-TV was granted with respect to those communities in Westchester County but denied with regard to those communities in Rockland County. The Bureau denied Continental's request to delete WTBY and WRNN. Time Warner Entertainment-Advance/Newhouse Partnership, 11 FCC Rcd 6541 (1996) (CSR 4051-A). This case involved Time Warner's request to modify the television markets of WTBY, WRNN, WLNY, and WHAI-TV with regard to the communities served by its Fort Lee, NJ system in southern Bergen County, NJ. The Bureau granted Time Warner's request. Time Warner New York City Cable Group, 11 FCC Rcd 6514 (1996) (CSR 4413-A/CSR 4538-M). This case involved Time Warner's request to modify the television market of WMBC-TV with regard to its systems serving Manhattan, Staten Island, Queens, and parts of Brooklyn. It also included WMBC-TV's must carry complaint against Time Warner. The Bureau granted Time Warner's request with respect to Queens and Brooklyn but denied its request with respect to Manhattan and Staten Island. WMBC-TV's must carry complaint, therefore, was granted only for Manhattan and Staten Island.  Time Warner New York City Cable Group, 11 FCC Rcd 6528 (1996) (CSR 4416-A). This case involved Time Warner's request to modify the television market of WRNN with regard to its systems serving Manhattan, Staten Island, Queens, and parts of Brooklyn. The Bureau granted Time Warner's request.  Time Warner New York City Cable Group, 1996 WL 532081 (1996) (CSR 4794-A). This case involved Time Warner's request to modify the television market of television broadcast station WHAI-TV with regard to its systems serving Manhattan, Staten Island, Queens, and parts of Brooklyn. The Bureau granted Time Warner's request. TKR Cable Company, 1996 WL 663129 (1996), (CSR 4783-A/CSR 4782-M). This case involved TKR's request to modify the television market of WHAI-TV with regard to its systems serving Rockland County, NY and Bergen, Morris, and Sussex Counties, New Jersey. It also included WHAI-TV's must carry complaint against TKR. The Bureau granted TKR's request and dismissed WHAI-TV's must carry complaint. Service Electric Cable TV of New Jersey, 1996 WL 740781 (1996), (CSR 4803-A). This case involved Service Electric's request to modify the television markets of WTBY, WRNN, WLNY, and WHAI-TV with regard to the communities served by its Sussex County and Warren County, NJ systems. The Bureau granted Service Electric's request. DISCUSSION 6.The facts, applicable law, arguments of the parties, and the Bureau's detailed analyses are fully set forth in the underlying decisions and will not be repeated here. Having reviewed the arguments in the review and reconsideration petitions, we conclude that the arguments presented here were in almost all respects raised and properly resolved by the Bureau in the first instance. Accordingly, we affirm most of the Bureau's conclusions. We find the Bureau's rationales with regard to historic carriage and carriage or non-carriage by neighboring cable operators (factor I), coverage of the communities by other stations (factor III), and audience share (factor IV), carry out the purposes of the applicable statutory provisions and associated Commission rules. However, as noted below, we cure certain inconsistencies by reversing the Bureau's decisions to delete communities in limited circumstances involving stations' WHAI-TV and WMBC-TV. 7.In its initial decisions, the Bureau noted that the five television stations at issue generally had no history of carriage in the cable communities in question. The Bureau gave minimal weight to this factor by itself. The Bureau stated that historical carriage is not by itself controlling in these circumstances because such an interpretation of the 1992 Cable Act would, in effect, prevent weaker stations, that cable systems had previously declined to carry, from ever obtaining carriage rights. The Bureau also found that the five stations had virtually no over-the-air audience in the cable communities at issue. However, the Bureau did not find this to be controlling either, reasoning that Congress could not have intended for these stations to have cable communities deleted from their markets solely because their audience shares are not as significant as those of the other stations with which they compete. The Bureau noted that WMBC-TV, WTBY, and WHAI-TV are "specialty stations" that typically attract limited audiences. The Bureau believed the fact that such stations attract a smaller audience share must be taken into account in determining the equities concerning a station's right to cable carriage. 8.The Bureau also noted that the availability of other broadcasters in the market is another factor to consider in market deletion cases. The Bureau reasoned that where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, and that the station is not providing local service to those communities, the issue of local coverage by other stations becomes a factor that accords greater weight than in cases where a party is seeking to add communities. The Bureau found that other area stations provide subscribers residing in the cable communities with an abundance of targeted local newscasts and public affairs programming. 9.In general, the Bureau recognized the difficulties of applying the four statutory factors to stations of recent origin, such as WMBC-TV, or more specialized formats, such as WTBY or WHAI-TV. To remedy the situation, the Bureau relied more heavily on basic geographic and political features and recognized marketing facts as the best available alternative evidence of the market boundaries of the stations subject to deletion here. The Bureau also found that New York City, with its transportation and population congestion, served as a natural boundary when delineating the markets of the stations involved. ANALYSIS 10. We now address the major issues presented for review. With regard to whether a station provides coverage or other local service to a community (factor II), we find that the Bureau's reliance on Grade B contour coverage and distance to the community, in terms of both geography and mileage, is fully supported by the Section 614(h), its legislative history, and Commission precedent. We disagree with the cable operators' arguments that all of the communities in question should have been deleted given the absence of historical carriage and audience in the communities. The Bureau examined historic carriage, carriage of other stations, and audience share, and found that, if a decision were based on these specific statutory criteria alone, the stations at issue would have virtually no market at all to assert their signal carriage rights because they fail to satisfy each of the factors throughout the New York ADI. The Bureau properly interpreted the statute's legislative history indicating that the four enumerated factors are not intended to be exclusive in determining a particular station's television market, and other factors can also be considered in the analysis. 11.The New York Interconnect was one of the other factors the Bureau weighed in the analysis. Here, we disagree with Cablevision and WHAI-TV that the Bureau inappropriately applied the sub-zone definitions of the New York advertising interconnect when modifying the ADI. The New York interconnect was created by the cable operators in this market so that local advertisers would reach as many subscribers as practically possible through the cable television medium. The interconnect is divided into four sub-zones for advertising purchasing purposes: (1) Northern and Central New Jersey; (2) New York City; (3) Long Island; and (4) Upstate New York/Fairfield County, CT (including, among others, Rockland and Westchester Counties). The Bureau reasoned that the sub-zones were created to reflect the different demographics and consumer patterns found in the four discrete areas of the market. We find that the Bureau appropriately viewed the sub-zones as supporting evidence that its modification decisions were generally congruous with the cable operators' understanding of the ADI, at least from an advertising and marketing perspective. 12. We also reject the arguments of the broadcasters suggesting that regardless of the Section 614(h) process, they are essentially guaranteed the right to carriage throughout the ADI. The statute specifically provides that the Commission may exclude communities from a station's ADI. The legislative history notes that when making its market determinations, 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 to be part of the station's market. Consistent with this language, the Bureau properly examined the stations' distance to the cable community as measured by geography as well as by mileage. It duly noted the importance of geographic features such as expansive waterways like the Hudson River and the Long Island Sound and the interposition of Manhattan in the epicenter of the market with its extremely congested infrastructure, that act to remove communities from one another. The Bureau took these factors into consideration and reasoned that the greater the distance between the cable community and the broadcaster, the less likely it is that the stations serve the local viewing audience from either a programming or technical perspective. 13.WHAI-TV and WTBY also argue that the only circumstance in which deletion of a local station would enhance localism is where a cable system is unable, in the absence of a deletion, to carry the signal of another "out-of-the-market" station that provides demonstrably more local service. WHAI-TV attempts to clarify this argument by adding that the statutory language indicates the market deletion provisions are to be used only when deletion of a station's must carry rights is found to "better effectuate" the purposes of the 1992 Cable Act. We find these interpretations of Section 614(h) of the 1992 Cable Act and the Commission's implementing rules regarding the filing of market deletion requests are too restrictive and without a sufficient textual basis. The statute, on its face, does not limit market deletion requests only to those situations where an out-of-the market station is more deserving of carriage than an in-market station. There is also no language in either the legislative history of Section 614(h) or the Commission's rules directly supporting the station's viewpoint. To the contrary, the stations ignore Congress' directive allowing either broadcasters or cable operators to ask for market modifications so that a station's ADI could better reflect the economic market at hand. Moreover, the purposes of the 1992 Cable Act are indeed advanced by the Bureau's decisions because they ensure that television stations are carried in the areas which they service and which form their economic market. Cable subscribers, in turn, are ensured that they are able to view television stations that serve their local interests. 14 Turning to local service issues (factor II), we first affirm the Bureau's holding that translator coverage, particularly in highly dense population areas such as New York City, does not lessen the relevance of the parent station's failure, in this case WRNN and its primary facilities in Woodstock, NY and WHAI-TV and its primary facilities in Seymour, CT, to place a Grade B contour over the subject cable communities as Grade B coverage is one indication of the stations' natural market. Commercial translators are secondary service stations that are explicitly not entitled to carriage in their own right and the service provided by WRNN and WHAI-TV's translators, WRNN-LP and WNYA-LP, respectfully, here is of less significance in the market modification analysis. Additionally, WNYA-LP and WRNN-LP are not fulfilling their traditional role of filling in gaps in the stations' service areas. Instead, they are extending the stations' coverage to areas well beyond the reach of their Grade B contours. 15.Moreover, the evidence suggests that WRNN-LP and WNYA-LP are in fact licensed low power television stations functioning as translators that retransmit the parent stations' programming schedule. Low power television stations, which are not included in the statutory definition of "local commercial television station", also are not entitled to carriage unless they meet six criteria set forth in Section 614(h)(2). At least in the case of Time Warner and Cablevision's New York City systems, WNYA- LP and WRNN-LP, are not low power television stations qualified for carriage because the franchise areas of the cable systems are inside one of the largest Metropolitan Statistical Areas and there are several full power television broadcast stations licensed to New York City. 16.With respect to the programming issues presented by the broadcasters, we cannot conclude that a station must be considered "local", as Congress intended that term to mean in Section 614 of the 1992 Cable Act, solely by airing some occasional programming associated with some of the communities in question. Programming is considered in the context of Section 614(h) proceedings only insofar as it serves to demonstrate the scope a station's existing market and service area, not as a quid pro quo that guarantees carriage or as an obligation that must be met to obtain carriage. Moreover, the broadcasters have not made a persuasive case that the Bureau's findings in this matter were in error. We note that WMBC-TV, WHAI- TV, and WLNY all stress the value of their various programming efforts and formats for cable subscribers throughout the New York market. However, it appears that the programming being offered on each of these stations is either general in nature and not specifically targeted to the cable communities at issue, or is in the planning stages and has not yet aired. The lack of actual, targeted programming weighs against the stations in the market modification analysis. 17.We do find that the Bureau erred when it ordered Time Warner to carry WMBC-TV in Manhattan and Staten Island yet relieved Cablevision and Continental of their obligation to carry the same station in the adjacent areas of the Bronx, Yonkers, and other Westchester County communities. In this instance, the cable operators' contend that distance and Grade B contour coverage are irrelevant when a station fails to provide local programming to the relevant community. To the contrary, Grade B contour coverage, in the absence of other determinative market facts (i.e. where the four statutory factors by themselves define the market, where there is no clear proof that the contour fails to reflect actual coverage, or where there is a terrain obstacle such as a mountain range or a significant body of water), is an efficient tool to adjust market boundaries because it is a sound indicator of the economic reach of a particular television station's signal. The Commission recognized this approach in its Broadcast Signal Carriage Report and Order, when it stated that "to show that the station provides coverage or other local service to the cable communities, 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." Given this direction, and finding that WMBC-TV places a full or partial Grade B contour over the following communities, we reverse the Bureau's decision to delete Queens, Brooklyn, the Bronx, Yonkers, Tarrytown, N. Tarrytown, Ossining, Croton-on-Hudson, Buchanan, and Peekskill (all New York) from the station's market. The cable operators serving those areas are therefore required to carry WMBC-TV's signal. 18. We also find that the Bureau erred in redrawing the market boundaries of WHAI-TV with regard to six cable communities served by Continental Cablevision. In this case, the Bureau found that the upstate New York cable communities of Tarrytown, North Tarrytown, Ossining, Croton-on-Hudson, Buchanan, and Peekskill were not part of the station's market because they were outside WHAI-TV's Grade B contour and on the opposite side of the Hudson river. In fact, the six communities are on the same side of the Hudson River as the station, are on the fringe of WHAI-TV's Grade B contour, and are close enough to be logically part of the WHAI-TV market area. We therefore reverse the Bureau's decision with regard to these communities and find that they are part of WHAI-TV's market. The Bureau's conclusions with regard to the other cable communities and their relationship with WHAI-TV are reasonable and are not reversed. 19.Finally, we reject WRNN's argument that the Bureau was inconsistent when it granted Time Warner's request to delete the station from communities in southern Bergen County yet denied Cablevision's request to delete communities in northern Bergen County. We also disagree with the similar claim that the Bureau's Grade B contour analysis led to inconsistent decision-making when it retained, in WTBY's market, the northern Bergen County communities served by Cablevision yet deleted adjacent southern Bergen County communities served by Time Warner from the same station's market. In the first instance, WRNN has no historic carriage, audience share, and also does not place a Grade B contour over Bergen County but it does provide some programming coverage of import to county residents. We support the Bureau's decision to divide the county communities in half for must carry purposes because of geographic distance and other factors. While programming coverage is relevant in the market modification equation in the northern part of the county, mileage between the cable communities and the station attenuates any the ties WRNN might have had with communities in southern Bergen County. The Bureau understood that extending the station's market any further south would not only stretch geographic proximity to the extreme but would also run counter to the evidence that WRNN is sufficiently far removed so as to have actually been considered, for some industry market analysis purposes, to be associated with the Albany-Schenectady-Troy Designated Market Area ("DMA"), which is far north of New Jersey. WRNN claims that Nielsen changed its market designation from Albany-Schenectady-Troy to New York in October, 1996. This, however, does not affect the conclusion that the station has been associated with the very northern portion of the market. It appears, moreover, that the change in question was made at the request of the station. Nothing in the change suggests that Nielsen was addressing whether the station was local to the southern Bergen County communities. The Bureau's decision also gave additional recognition to the fact that two different cable operators and cable systems serve the north and the south, and that WRNN's market area should overlay WTBY's as they both broadcast from generally the same region in upstate New York. As for the Bureau's finding that WTBY is not local to communities in southern Bergen County, we first note that Time Warner has demonstrated that WTBY does not satisfy factors I, III, and IV. In addition, WTBY's Grade B contour does not cover all of the communities Time Warner serves and the station has not objected to the Bureau's conclusions that southern Bergen County is not part of its market by filing any type of appeal with the Commission. ORDERING CLAUSE 20.Accordingly, IT IS ORDERED, that the captioned petitions for review and reconsideration ARE DENIED in all respects except in the two instances noted in paragraphs 17 and 18, above. 21.IT IS FURTHER ORDERED that the communities of Queens, Brooklyn, the Bronx, Yonkers, Tarrytown, N. Tarrytown, Ossining, Croton-on-Hudson, Buchanan, and Peekskill are again part of WMBC-TV's television market, as explained in paragraph 17, above. WMBC-TV shall notify Time Warner Cable, Cablevision Systems Corporation and Continental Cablevision of Western New England (Media One) in writing of its carriage and channel position election with regard to these communities, (76.56, 76.57, 76.64(f) of the Commission's Rules), within thirty (30) days of the release date of this Memorandum Opinion and Order. Time Warner, Cablevision and Continental shall comply with the provisions of the Communications Act of 1934, as amended, and the associated rules within sixty (60) days of the release of this Order. 22. IT IS FURTHER ORDERED that the communities of Tarrytown, North Tarrytown, Ossining, Croton-on-Hudson, Buchanan, and Peekskill are again part of WHAI-TV's television market, as explained in paragraph 18, above. WHAI-TV shall notify Continental Cablevision of Western New England (Media One) in writing of its carriage and channel position election with regard to these six communities, (76.56, 76.57, 76.64(f) of the Commission's Rules), within thirty (30) days of the release date of this Memorandum Opinion and Order. Continental shall comply with the provisions of the Communications Act of 1934, as amended, and the associated rules within sixty (60) days of the release of this Order. 23.This action is taken pursuant to statutory authority found in Sections 1, 4(i), 5(c), 405, and 614(h)(1)(C) of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 155(c), 405, 534(h)(1)(C). FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary