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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: ) ) Erie County Cablevision, Inc. ) CSR-5146-A ) For Modification of the Cleveland, Ohio) ADI ) MEMORANDUM OPINION AND ORDER Adopted: March 19, 1998 Released: March 25, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Erie County Cablevision, Inc. ("Erie County") filed the above-captioned petition seeking to modify the Cleveland, Ohio Area of Dominant Influence ("ADI") of Station WAKC-TV (ABC, Ch. 23), Akron, Ohio. Specifically, Erie County requests that WAKC-TV be excluded from the Cleveland ADI relative to the Sandusky, Ohio area communities it serves. An opposition to this petition was filed on behalf of Paxson Akron License, Inc., licensee of Station WAKC-TV to which Erie County has replied. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), and implementing rules adopted by the Commission in its Report and Order in MM Docket No. 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence," or ADI, as defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air and cable television viewing are included. 3. The Commission is also directed to consider changes in market areas. Section 614(h)(l)(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, Section 614(h)(1)(C)(ii) provides that: the Commission shall afford particular attention to the value of localism by taking into account such factors as - - (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; (II) whether the television station provides coverage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (IV) evidence of viewing patterns in cable and 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 in 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 No. 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 demon- strated 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 an ADI change request. MODIFICATION ARGUMENTS 8. All of the communities served by Erie County's cable system are located in Erie County, Ohio and are part of the Cleveland, Ohio ADI. Akron, the city of license of WAKC-TV, is also part of the same ADI and is approximately 66 miles from the cable system's headend. 9. In support of its modification request, Erie County argues that WAKC-TV should be excluded from carriage on its system because the station does not satisfy any of the four statutory market modification factors. First, the station has no significant history of carriage. Erie County indicates that it did carry WAKC-TV from 1973 until 1986, but deleted the station because it was a duplicate ABC station and because its subscribers had no interest in news from Akron, Ohio. WAKC-TV has therefore not been carried on its system, states Erie County, for more than ten years. In addition, Erie County states that of the three stations located in the same area as WAKC-TV -- WBNX-TV (Ind., Ch. 55) and WEAO (Educ., Ch. 40), both Akron, Ohio, and WOAC- TV (Ind., Ch. 67), Canton, Ohio -- it currently carries only WBNX-TV because that station's transmitter is located in Parma, Ohio, only eight miles from Cleveland. In addition, it carries WBNX-TV because the cable system's communities lie on the fringe of the station, and the station offers dozens of hours of children's programming each week. Erie County states that it has never carried either WEAO or WOAC-TV due to the greater distances of their transmitters, lack of Grade B service and programming which is offered by other, closer sources. Secondly, Erie County argues that WAKC-TV provides no Grade B coverage to the instant cable communities and the station is not listed in any of the three major newspapers in circulation in the Sandusky area. Moreover, Erie County points out that WAKC-TV's city of license is 66.30 miles from the cable system's principal headend and its transmitter site 63.34 miles away. Erie County contends that these distances far exceed the distances in other Bureau decisions in which requests for ADI exclusion were granted. Due to the geographic distance involved and the fact that the majority of WAKC-TV's programming consists of infomercials, Erie County maintains that any remaining local programming would appear to have no local nexus to the cable system communities herein. 10. Erie County maintains that Sandusky area residents are more strongly connected to the communities of Cleveland and Toledo, Ohio than they are to Akron, Ohio, WAKC-TV's city of license. Erie County points out that the majority of the fourteen local broadcast stations it currently carries are licensed to Cleveland and Toledo, Ohio, and they provide its subscribers with substantial amounts of local news and other programming. The City of Cleveland, it states, serves as the economic, cultural, entertainment and sports center of northern Ohio, while news coverage from Toledo includes sports and other activities relating to Bowling Green University and stories relative to Detroit, Michigan, the automobile capital of the country. In addition, Erie County states that Sandusky area residents travel to and from and shop in both cities, not Akron, thus making advertisements from Cleveland and Toledo stations of interest to its subscribers. In addition to these local stations, Erie County states that it also airs public access programming which includes bulletin boards and programming with information relative to schools, city council meetings, and local sports events. Fourth, Erie County maintains that due to the fact that its Grade B contour does not encompass any of the communities, it is unlikely that the station would have any measurable viewership in the county. In light of the above, Erie County requests that its request for exclusion be granted. 11. In opposition, WAKC-TV states that by applying the criteria specified in Section 614 of the Communications Act, as amended, it can be shown that it should not be excluded from the communities served by Erie County and the requested waiver should be denied. WAKC-TV points out initially that it was historically carried on the Erie County system for thirteen years and that despite petitioner's attempt to dismiss this carriage as insignificant it represents evidence that the instant communities are located within the station's television market. In any event, WAKC-TV indicates that Erie County's stated reason for the deletion no longer exists since WAKC-TV is no longer an ABC affiliate but an independent station which serves the entire Cleveland metropolitan area. Erie County's carriage of Akron-based WBNX-TV and not its own station, contends WAKC-TV, is an example of the type of market discrimination the must carry provisions were designed to overcome. Moreover, WAKC-TV argues that the system's attempts to justify WBNX-TV's carriage over other Akron stations falls short of the "particularized evidence" necessary to rebut such discrimination. WAKC-TV maintains that there is no evidence that WBNX-TV and WAKC-TV target their programming to different geographic markets, both are assigned to the same ADI and both compete for viewers and advertising revenue with other market stations. Indeed, WAKC-TV states that Erie County's previous carriage of its signal overrides the system's contention that WAKC-TV's transmitter is too far away to provide a good quality signal. It should also be noted, WAKC-TV maintains, that it is carried on several MediaOne cable systems surrounding and/or more distant than the Erie County system, and one system even serves two of the communities for which Erie County is seeking exclusion, Milan Township and Oxford Township. WAKC-TV argues that such carriage, despite Erie County's contention, reflects other cable systems' belief that WAKC-TV serves the western portions of the Cleveland market. Secondly, WAKC-TV maintains that its Grade B contour encompasses a substantial portion of Erie County and the system communities herein are proximately located to that contour. WAKC-TV argues that failure to place a Grade B contour does not disqualify it from carriage and points out that in a recent decision, the Bureau denied a request for exclusion where a station's Grade B contour fell almost 40 miles short of the communities because the cable system involved was carrying five other stations from the station's community of license. 12. WAKC-TV argues further that it provides locally-oriented programming which is specifically targeted to viewers in the Cleveland area which features news and events from the Erie County area. WAKC-TV states, for instance, that its regular half-hour public affairs program "Community" recently featured an episode focused exclusively on places of interest in Erie County. In addition, WAKC-TV indicates that it regularly promotes events of interest to Erie County residents through the station's "Community Bulletin Board" and it provides extensive coverage of events and issues of local interest to the greater Cleveland metropolitan area. Third, WAKC-TV maintains that it has been well established that the carriage of others stations which provide local coverage or programming is irrelevant in evaluating a request for deletion and cannot alter WAKC-TV's carriage rights. Fourth, WAKC-TV asserts that the Bureau should accord little weight to its low audience ratings due to the fact that it has a specialty format particularly as the Bureau has recognized that stations with specialized programming typically attract "limited audiences." Similarly, WAKC-TV argues that its station's omission from the three weekly papers mentioned by Erie County should have no import especially since anywhere from one to seven of the stations currently carried by the system are not listed in the various papers. Finally, WAKC-TV points out that as a further indication that its economic market includes the Erie County communities is the fact that the Cleveland Major Trading Area ("MTA") includes both Akron and Erie County. 13. In reply, Erie County maintains that WAKC-TV fails to rebut the clear showing that the four statutory criteria support its request for exclusion. Erie County points out that WAKC-TV acknowledges that its signal's Grade B contour fails to encompass any of the cable system communities. Indeed, Erie County states that a review of the Grade B contour maps for WAKC-TV reveals that the closest community it serves is at least three miles beyond WAKC-TV's Grade B contour, while more than 80% of its subscribers are located in communities which are at least 11 miles outside the contour. As such, Erie County argues that these communities cannot be considered close enough to require inclusion as "fringe" communities. The disparity is even greater, states Erie County, when one considers that WAKC-TV admits that it is voluntarily operating at one-quarter power, a clear indication that its real intent to serve a far more limited market than the entire Cleveland ADI. Erie County states that WAKC-TV's reliance on TWI Cable, supra, is also misplaced. In that situation the cable system in question carried five other stations from the same market, but Erie County points out that in this situation, it carries only one station licensed to Akron and, more importantly, a station which not only does not transmit from the same site as other Akron stations, but whose transmitter site is also the site of numerous Cleveland broadcast stations the system carries. With regard to WAKC-TV's claim that it can provide a good quality signal to the system's headend even at reduced power, Erie County notes that WAKC- TV achieved this only while using specialized equipment and that an earlier test conducted by the system using normal equipment revealed a far weaker signal level. Further, Erie County contends that the two de minimis examples of local programming that WAKC-TV claims in its opposition were neither created nor aired until after the instant petition was filed and a review of the station's program logs for the past six months shows that WAKC-TV did not carry any local programming relevant to the cable system subscribers. 14. Erie County maintains its assertion that WAKC-TV's prior carriage is not significant. It states that WAKC-TV has been on-the-air for 44 years and was dropped from carriage more than ten years ago because it was Akron-based and because its programming was not of interest to subscribers. Similarly, Erie County argues that carriage by other neighboring systems is also not significant. Only one cable operator, MediaOne, carries the station, states Erie County, and the decision to do so was apparently promulgated at the time by that system's desire to ensure ABC network programming which was provided by WAKC-TV at that time. Erie County also argues that the Bureau has rejected WAKC-TV's contention that no weight should be given to the provision of local coverage by other stations or lack of ratings for specialty stations. Finally, Erie County disputes WAKC-TV's assertion that the cable system and the station are both part of the same economic market. It points out that the Major Trading Area (MTA) map attached to WAKC-TV's opposition indicates that Erie County is located in a different Basic Trading Area (BTA) than that which includes Cleveland and Akron. In addition, it should be noted that a map of the Metropolitan Statistical Areas shows that Akron is located in one Metropolitan Area, Cleveland another, while Sandusky and the rest of Erie County do not appear to be allocated to any one Metropolitan Area. DISCUSSION 15. Based on a consideration of evidence relating to the four specific statutory factors and lacking persuasive evidence that the communities in question are not part of WAKC-TV's market Erie County's petition will be denied. 16. With regard to the first statutory criterion, which deals with historic carriage on a cable system, we note that the must carry rules were adopted in part to cure past discriminatory signal carriage practices. In this instance, WAKC-TV was carried on Erie County's system from 1973 until 1986 when it was deleted because it was a duplicate ABC network station. While we recognize that WAKC-TV has not been carried for over 10 years, we believe its past carriage is probative in establishing its market. In this regard, we note that Erie County has not shown that the marketplace has changed in its configuration over the last 10 years. The fact that Erie County chose to drop WAKC-TV's carriage does not necessarily indicate that the station is not in the same market as the cable system. Further, it is undisputed that during the period in which WAKC- TV was carried on the Erie County system, the station provided a good quality signal to the system's principal headend. Second, the Erie County cable system's communities currently fall close to WAKC-TV's predicted Grade B contour. Moreover, the fact that other ADI licensees provide coverage of and service to the communities in question is not probative of WAKC-TV's market. We do not believe that Congress intended this service by other stations in deletion cases to operate as a bar to a station's ADI claim whenever other stations could also be shown to serve the communities at issue, but rather that this criterion was intended to enhance a station's claim where it could be shown that other stations do not serve the communities at issue. 17. We must also consider not only whether a cable system carries the station that is the subject of the market modification petition, but also whether "other stations located in the same area, have been historically carried on the cable system. . . . ." The record shows in this instance that Erie County carries, in addition to the stations licensed to Cleveland, station WBNX-TV licensed to Akron. Akron is also the city of license of WAKC-TV. It is also of note that WAKC-TV is currently carried in numerous cable system communities surrounding Erie County's system and in two communities, served by a second cable system, which Erie County also serves. 18. Further, we also find Erie County's arguments regarding WAKC-TV's lack of ratings to be unpersuasive. The Commission has previously recognized that stations that could once be classified as specialty stations (i.e., religious and foreign language) are capable of "offer[ing] desirable diversity of programming . . . ," yet typically attract limited audiences. We continue to believe that, the fact that specialty stations attract limited audiences, must be taken into account in determining the equities concerning such stations' rights to cable carriage. Stations such as WAKC-TV, whose programming consists largely of home shopping, program length presentations, or "informercials," and religious programming, warrant analogous treatment and consideration. 19. Section 614(h)(1)(C) of the Communications Act requires the Commission to include or exclude particular communities from a television station's market for the purpose of ensuring that a television station is carried in the areas which it serves and which form its economic market. The carriage of station WBNX-TV, licensed to Akron, in the Erie County communities, coupled with its prior carriage, provides strong evidence that the communities should be considered part of WAKC-TV's market, which is licensed to the same Akron metropolitan area. The requested exclusion of the communities from WAKC-TV's market would allow Erie County to discriminate among the several stations licensed to the Akron metropolitan area, despite a Congressional mandate to preclude such discrimination. Being excluded from the communities herein would have the effect of precluding WAKC-TV from any opportunity to compete for viewers and advertising revenues with WBNX-TV in the portion of the Cleveland ADI served by Erie County. Such exclusion would compound any advantage WBNX-TV has in that portion of the Cleveland ADI. 20. We have carefully considered each statutory factor in the context of the circumstances presented here. When taken together, we believe that the following factors warrant WAKC-TV's carriage n Erie County's system: the carriage of another station licensed to Akron, the communities at issue are in close proximity to WAKC-TV's Grade B contour, the station is currently carried by another cable system in two of the communities also served by Erie County, the station is carried on nearby cable systems, and has been carried in the past on the Erie County system. Considering the record as a whole, we find that Erie County failed to demonstrate that the requested exclusion of the communities served by its cable system from the television market of WAKC-TV will better effectuate the purposes of the must-carry statutory provisions and serve the public interest. ORDERING CLAUSES 21. 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-5146-A) filed on behalf of Erie County Cablevision, Inc. IS DENIED. 22. IT IS FURTHER ORDERED that Erie County Cablevision, Inc. shall commence carriage of Station WAKC-TV within sixty (60) days of the release date of this Order. Paxson Akron License, Inc. shall notify Erie County in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules), within thirty (30) days of the release date of this Order. 23. 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