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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Denial of Paragon's petition for special relief, DA 95- //$ $/76.7 Special relief and must-carry complaint procedures/$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-2402 In re: ) ) Petition of Paragon Cable ) CSR-4105-A ) Pinellas County, FL ) Hillsborough County, FL ) Manatee County, FL ) Polk County, FL ) ) For Modification of ADI ) Station WBHS, Clearwater, FL ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1995 Released: December 5, 1995 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Before the Commission is a petition for special relief filed by Paragon Cable ("Paragon" or "operator") seeking to modify the Tampa-St. Petersburg, Florida "area of dominant influence" ("ADI") and to exclude itself from WBHS's television market for purposes of the cable television mandatory broadcast signal carriage rules. Silver King Broadcasting of Tampa, Inc. ("Silver King"), licensee of television station WBHS-TV (channel 50), Clearwater, Florida, filed an opposition to the petition to which Paragon replied. Silver King also filed a motion for expedited and consolidated action, which Paragon opposed, along with a reply to the opposition. Paragon then filed a motion to strike the reply to opposition filed by Silver King. Subsequent to these pleadings, Paragon filed several letters from local franchising authorities which support its petition for special relief and Silver King filed a response to these supplemental filings. BACKGROUND 2. Pursuant to 4 of the Cable 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 92-259, a commercial television broadcast station is 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) 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 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; 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 the following guidance in the Report and Order to aid decision making in these matters: 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. 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 7. In its petition for special relief, Paragon requests that WBHS's market be modified so its cable systems serving communities located in Pinellas, Hillsborough, Manatee, and Polk Counties, Florida, are under no obligation to carry the station's signal. The operator states that mandatory carriage of WBHS will force it to make consumer unfriendly changes by removing some service from the basic tier line-up and dropping a service from the expanded basic tier. Paragon asks that the Commission "grant the Systems special relief to avoid mandatory carriage" of WBHS because the station does not provide local coverage to the communities in question and fails to satisfy any of the four market factors set forth in the 1992 Cable Act and the Commission's rules. 8. With regard to the historical carriage factor, the operator asserts that WBHS has never been carried on the systems although it has been on-the-air since 1988. The operator states that the system would have voluntarily carried WBHS if its subscribers so demanded. Paragon asserts that "WBHS is the only qualified local commercial television station which is not carried on the Systems" and that no other area cable system carries its signal. Second, petitioner alleges that WBHS does not provide local service to the relevant communities. Specifically, WBHS broadcasts home shopping programming that is almost exclusively without any focus on interests and issues involving the Tampa area. Paragon adds that the non-shopping programs the station does air are short segment "fillers" found between sales presentations or are programs broadcast primarily on Sunday mornings when viewing is at a minimum. In addition, these programs are nationally syndicated and neglect local issues of importance to the community. The operator also notes that WBHS is not physically proximate to many communities served by the cable system; in this regard, Paragon asserts that the 35 mile zone around Tampa, Florida does not cover approximately three quarters of Polk County and over one-half of Manatee County (including the communities of Bradenton Beach, Davenport, Dundee, and Lake Hamilton). Referring to the third factor, Paragon states that eight Tampa area ADI stations, which are carried on all of the cable systems, provide extensive local news and sports coverage throughout each programming day. Paragon also mentions that it meets local community concerns through its carriage of educational and public access channels as well as the Weather Channel. Finally, the operator alleges that WBHS has insignificant viewing in the area, with the July 1993 Nielsen Report showing that WBHS did not meet the minimum reporting standards to be considered a part of the Tampa market. 9. In opposition, Silver King first asserts that Paragon is abusing the Commission's processes by "pursuing piecemeal destruction of home shopping stations' must carry rights through petitions which seek to evade its obligation to carry individual home shopping stations." Silver King argues that the motivation behind these petitions is to eliminate any competition that may affect Paragon's own cable home shopping service. Silver King also believes that Paragon has impermissibly singled the station out for different treatment from all other Tampa area stations by purposefully avoiding compliance with the 1992 Cable Act's must carry objectives vis-a-vis WBHS. 10. With regard to past cable carriage, Silver King argues that this factor is not controlling in market deletion cases because the 1992 Cable Act would have accomplished nothing more than maintaining the status quo with respect to weaker stations which cable systems had previously declined to carry. To rebut Paragon's lack of public interest programming claim, Silver King notes that broadcasts specialized commercial-free children's fare and locally oriented religious programming during certain dayparts. Moreover, Silver King states that the Commission has found that home shopping generally serves the public interest and Paragon's objections do not support a change in this conclusion. Silver King also asserts that the operator fails to: (1) demonstrate that programs are worthy of Commission consideration only if they are half-hour programs; (2) submit any information which suggests that WBHS does not address a particular significant community issue or has otherwise abused its discretion; and (3) provide any support for its suggestion that stations' public service programming may be considered for purposes of mandatory carriage qualification only if the station promotes or produces it. On this last point, Silver King notes that other Tampa stations whose programming Paragon praises also carry large amounts of network and syndicated non-local programming. Silver King also asserts that the physical distance between the WBHS and the cable communities is not determinative because, if this were a controlling factor, Paragon would not be required to carry any Tampa market station more than 35 miles away. As for other stations serving Tampa, Silver King maintains that WBHS is carrying more public service programs than at least two other independent UHF commercial stations in the Tampa market yet Paragon is apparently carrying those stations. With respect to viewership, Silver King asserts that it would be contrary to First Amendment principles to base must carry rights on the popularity of particular stations as Paragon would like the Commission to do. It also notes that Paragon does not submit necessary data showing that WBHS is not viewed in the cable communities. Silver King concludes by asking the Commission to deny Paragon's petition and order the operator to commence carriage of WBHS. 11. Soon after Silver King filed its opposition, it submitted a motion for expedited and consolidated action. In this pleading, Silver King asks the Commission to promptly resolve and deny petitions filed by cable operators who are evading their obligation to carry home shopping stations in their ADI. Silver King asserts that because the filing of ADI modification petitions preserves the status quo with respect to broadcast stations' signal carriage, any delay in acting on them "thwarts" full implementation of the Commission's will as expressed in the Home Shopping Report and Order. Moreover, Congress expressly forbade cable systems from manipulating market modification procedures to defeat the public interest purposes of mandatory cable carriage and emphasized that cable systems cannot use the market modification procedures to avoid mandatory carriage obligations. Silver King concludes by stating that the cable operators' petitions "attempt to end-run the Home Shopping Report and Order by abusing the Commission's special relief procedures" and they should not be permitted to succeed. 12. In its reply, Paragon counters the arguments presented by Silver King in both its opposition to the petition for special relief and its motion for expedited and consolidated action. With regard to Silver King's argument about the "piecemeal destruction of home shopping station must carry rights," Paragon responds by stating that neither Congress nor the Commission has precluded the filing of a market modification petition where, as here, a particular station does not provide local service to certain cable communities. As for Silver King's discrimination claim, Paragon states that Section 614(h)(1)(C)(ii)(III) of the 1992 Cable Act "expressly contemplates discrimination among stations where a particular station, such as WBHS-TV, fails to offer local programming of interest to the communities served by the cable system." The operator then adds that the market modification procedure would be rendered meaningless if stations within an ADI could not be distinguished. Paragon dispels Silver King's anti-competitive allegations by stating that its systems carry the Home Shopping Network in most cable communities. 13. As for Silver King's arguments regarding the inapplicability of the historical carriage factor in deletion cases, Paragon argues that nothing in the 1992 Cable Act indicates that certain factors are to be used only in considering a petition to add, but not one to delete, a community. Paragon adds that past cable carriage is pertinent to this case because it guards against disruption of established viewing patterns. Paragon also argues that, contrary to Silver King's assertion, the 35 mile zone is clearly relevant under the second statutory factor to show the proximity of the station and thus the likelihood of local coverage and service. The operator reiterates that WBHS's weekly programming demonstrates very little commitment to covering events and issues of local interest to the communities served by the system. Similarly, Paragon argues that Silver King's placement of WBHS's only non-shopping programs on Sunday mornings demonstrates its sparse efforts to serve local interests. As for the provision of local programming by other area stations, the operator argues that this statutory factor is relevant to the analysis because it allows specific communities to be excluded from the ADI of a station which provides little or no local service to those communities in comparison to local programming available from other stations carried by the cable system. The operator then states that while Silver King claims that WBHS provides more public service programming "quantitatively" than at least two other independent Tampa stations, it appears that this figure is based largely on its repetition of short spots throughout the day. Paragon also contends that Silver King can not and does not dispute the fact that WBHS has no reportable ratings. Because the station has no significant viewership, carriage of the station would do nothing to further the statutory goals of local programming service. 14. In its reply to Paragon's opposition to the motion for expedited and consolidated action, Silver King reiterates that prompt Commission action is necessary to ensure that home shopping stations have mandated access to the audience they are obligated to serve. With regard to its public service programming, Silver King argues that the operator does not refute that its stations produce "substantially more local programming and air substantially more public service programming than many similarly situated market independent UHF stations" which the operator already carries. Silver King also argues that Paragon does not demonstrate that the stations have failed to address a significant local need or have failed to ascertain community issues. In sum, Silver King states Paragon's "privately motivated assessment" of WBHS's format, scheduling, and promotion should not and cannot support delay in carriage of the station. 15. Paragon subsequently filed a motion to strike Silver King's reply to opposition stating that the referenced pleading "is unauthorized, unfairly reiterates argument from its Oppositions, and needlessly extends the pleading cycle. . . ." Paragon argues that under Section 76.7(e) of the Commission's rules, its reply should have closed the pleading cycle with respect to its substantive showings under the statutory market modification proceedings. Paragon concludes by stating that it is "ironic that Silver King, which claims to seek expedition, has burdened the Commission with a repetitive unauthorized pleading." The operator requests that Silver King's pleading should therefore be stricken. 16. Paragon also filed with the Commission letters from city officials of certain Tampa area communities which support the operator's market modification petition. In response, Silver King filed a supplemental pleading arguing that these letters are irrelevant and were not accompanied by a request for leave to file them. Silver King also maintains that the submissions ignore WBHS's local programming service. In this regard, Silver King states that it is now submitting its comments in the Commission's home shopping proceeding which documents WBHS's "extensive" local public service programming record. Finally, Silver King asserts that the "Paragon-generated opinions of individual local leaders" cannot override the Commission's determination that carriage of home shopping stations are in the public interest, particularly when those opinions have no foundation in fact and appear to be premised upon the operator's incomplete representations. ANALYSIS AND DECISION 17. Because Paragon has not pointed to particularized and persuasive evidence that the communities in question are not part of WBHS's market, based on the four statutory or any other relevant factors, its petition must be denied. The ADI market change process incorporated into the Communications Act is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations, particularly in cases concerning a station's programming format, apart from the question of whether a change in the market area involved is warranted. The arguments presented by the petitioner in this proceeding are not such as to assist us in resolving whether a change is appropriate -- whether one community rather than another should be included or excluded from the market - - but rather are directed more generally to whether the signal of WBHS should be carried regardless of the specific location of the cable communities. 18. WBHS is licensed to Clearwater, Florida, a community in the Tampa-St. Petersburg, Florida ADI, a market that encompasses some 10 counties and is roughly 80 miles long and 80 miles wide. The station's studio is located in Clearwater (the urban center of Pinellas County) in the middle of the core cluster of television stations serving the Tampa area. The station's transmitter is located in Riverview, a community about 30 miles southeast of Clearwater and near the geographic center of the Tampa-St. Petersburg ADI. The station places a Grade A service contour over all Pinellas and Hillsborough Counties, virtually all of Manatee County, and two-thirds of Polk County. The Paragon cable systems serves St. Petersburg as well as a number of surrounding communities that are the subject of this request. Given these facts and the general structure of the market, it appears at the outset that WBHS is logically part of this ADI as are the cable communities in question. 19. Focusing on the specific factors referenced in the statute, we are unable to conclude that any of Paragon's argument distinguish these cable communities from the rest of the market. With respect to the question of historical carriage patterns, Paragon states that it has not carried the signal of WBHS since the station began broadcasting because it has aired home shopping programming. However, we cannot find this factor to be controlling because it is of no assistance in determining the correct scope of the market and provides no basis for distinguishing among communities in the ADI. 20. We also find that Paragon has failed to demonstrate that WBHS does not provide local coverage or service. The fact that WBHS places a Grade A signal over Tampa, St. Petersburg, and other relevant communities where Paragon's subscribers are located is persuasive evidence that it provides service to these communities. With regard to the content of WBHS's programming, we note that home shopping formats are not incompatible with local appeal and recognize that such specialty programming traditionally has drawn smaller audiences. The Commission has specifically affirmed that home shopping stations may serve the public interest because, among other reasons, they provide "an important service to viewers who either have difficulty obtaining or do not otherwise wish to purchase goods in a more traditional manner." Finally, as Silver King has pointed out, we cannot weigh the merits of a television station's format or promotional activities when resolving signal carriage complaints or modifying television markets under the special relief process. 21. We also find Paragon's arguments regarding WBHS' lack of ratings to be unpersuasive. We recognize that home shopping stations, like religious or foreign language stations, which were once referred to as specialty stations, are capable of "offer[ing] desirable diversity of programming . . . ," yet typically attract limited audiences. We continue to believe, as we did then, 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. Further, no evidence is before us in this proceeding that would permit us to distinguish these communities from the rest of the communities in the market through the use of ratings data. 22. Finally, we do not believe that Paragon's carriage of other local stations is sufficient to justify exclusion of its system from the above referenced communities. Paragon has not sufficiently demonstrated why it is necessary to remove itself from its own ADI, vis- a-vis WBHS, yet remain in the same market with regard to the station's competitors. We find that Paragon's Petition is inconsistent with Congressional intent which clearly states that the market modification policy was not provided as a means for cable systems to avoid their must carry obligations. This is particularly notable in this instance where Paragon admits that it is carrying all other television stations in the Tampa market except for WBHS. ORDERING CLAUSES 23. Accordingly, IT IS ORDERED, pursuant to Section 614(c) of the Communications Act of 1934, as amended, 47 U.S.C.  534, and Section 76.59 of the Commission's Rules, 47 C.F.R.  76.59, that the "Petition for Special Relief" (CSR-4105-A) filed September 24, 1993 by Paragon Cable IS DENIED. Paragon Cable is therefore required to carry the signal of WBHS-TV on its systems serving the afformentioned communities. Silver King Broadcasting of Tampa, Inc. shall notify Paragon in writing of its carriage and channel position elections, (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. Paragon shall come into compliance with the applicable rules within 60 days of such notification. 24. 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