WPC\I 2MBR Z Courierw Roman3|xTimes New Roman@`7X@HP4Si; LPT1; Rm. 907_1HPLAS4SI.PRSx  @\LSX@|D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd1; Rm. 907_1HPLAS4SI.PRSXj\  P6G;\LSXP2yX6CourierCG Times#Xj\  P6G;XP#3|x<?xxx,x6X@`7X@8wC;,}Xw PE37XP7jC:,yoXj\  P6G;XP7nC:,! v_ X-#Xj\  P6G;XP#э Time Warner notes that the systems carry the following local stations: WCMHTV (NBC, Channel 4), WSYX (ABC, Channel 6), WBNSTV (CBS, Channel 10), WTTE (Fox, Channel 28), and WOSUTV (ETV, Channel 34), all Columbus, Ohio; WSFJ (Ind., Channel 51), Newark, Ohio; and WMFD (Ind., Channel 68), Mansfield, Ohio. The operator states that, of these stations, WCMHTV, WBNSTV, and WSYX provide significant local interest programming to the communities served by the Delaware and Marysville systems.> Finally, the operator notes that WWHO's level of viewership does not rise to the level of significantly viewed status in any of the counties affected by this petition and that the station's viewership is too low to be measured by Nielsen. According to Time Warner, WWHO does not generate enough viewer interest in Time Warner's cable communities to be considered local for mustcarry purposes under the Commission's standards.  X -x9.` ` In its opposition, Triplett explains that WWHO is a relatively new television station signing ontheair in August of 1987. The station recently emerged from bankruptcy and is in the process of being sold to a new owner who is determined to upgrade it. Triplett asserts that it is only through expanded service into the Columbus metropolitan area, including viewers in and around Marysville and Delaware, that WWHO can expect to survive as the only television station in Chillicothe. Moreover 75% of homes within the station's Grade B contour are in the Columbus metropolitan area and of those homes, 50% subscribe to cable. WWHO cannot survive without access to those homes thus a grant of Time Warner's petition would have a substantial negative financial impact on WWHO.  X-x 10.` ` Triplett also argues that the deletion of WWHO from the cable communities would undercut the goal of the Commission's action adding Chillicothe to the Columbus,  X-Ohio designation in 76.51 of the Commission's Rules.  Xa -#Xj\  P6G;XP#э See MM Docket 92259, 8 FCC Rcd at 29772978. Triplett asserts that the addition of Chillicothe to the Columbus market "was clearly intended to encourage carriage of WWHO in the Columbus metro area" and to remedy the historical copyright problem which kept WWHO off many Columbus area cable systems. Triplett also contends that deletion of WWHO would be contrary to congressional intent in this area. It explains that it conceived the amendment to the House bill (H.R. 4850) which required the Commission to update 76.51, drafted the proposed amendment, and sent it the Rep. Robert McEwan, who represents the Chillicothe"  0*((\"  X-congressional district, who then submitted the amendment for a vote.  Xy-#Xj\  P6G;XP#э The amendment was approved and was incorporated into the final bill which became the 1992 Cable Act. Therefore, the deletion of the communities sought by Time Warner would not only be contrary to Congress' general intent in enacting must carry and requiring an update of 76.51, but is contrary to Congress' specific intent with regard to Chillicothe.  X-x 11.` ` As for the four market modification factors contained in the 1992 Cable Act, Triplett explains that the major reason for historical lack of carriage was the fact that such carriage would, until the recent addition of Chillicothe to the Columbus market, trigger distant signal copyright liability, and not because the station did not serve the cable communities at issue. In fact, Time Warner recently added WWHO to its system serving the city of Columbus. Triplett adds that while the operator asserts that WWHO fails to present any programming of interest to the Delaware and Marysville communities, the addition of the station in Columbus, which is approximately 20 miles from these communities, suggests otherwise. Furthermore, Triplett notes that WWHO has the exclusive rights within the Columbus ADI to air 21 Cleveland Cavaliers basketball games. Deletion of the station from these designated communities would deprive viewers of access to these games.  Xy-x 12.` ` In its reply, Time Warner states that WWHO is not immune from petitions to exclude communities from its market because if one follows Triplett's logic, the market modification provision of the 1992 Cable Act would be meaningless as it could never be used to exclude communities from a television station's market. Moreover, claims Time Warner, the market list contained in 76.51 of the Commission's Rules is a copyrightbased rule and does not pertain to signal carriage. Therefore, the fact that the Commission has created the ColumbusChillicothe hyphenated market for copyright purposes has no bearing whatsoever on a market modification proceeding pursuant to the 1992 Cable Act. Time Warner argues  X-that the Commission is bound by statute to consider the merits of any such bona fide modification petition.  X~-x 13.` ` As for the four factors, Time Warner asserts that Triplett's explanation for lack of historical carriage is purely speculative and is unsupported by any evidence. The operator goes further and states that WWHO's former distant copyright status is further evidence that the station is too far from the cable communities to be considered local. The operator also explains that the addition of WWHO to the Columbus cable system has nothing to do with the above captioned communities because Columbus is a separate system much closer to Chillicothe, and 20 miles to the south of Marysville and Delaware. With regard to WWHO's exclusive broadcast of Cleveland Cavaliers games, Time Warner argues that "21 basketball  X -games out of many thousands of hours of programming over a season is de minimis, and certainly not enough of a showing to meet the statutory factor requiring a substantial amount of local interest programming." The operator also notes that its Delaware system carries a number of Cavaliers games on SportsChannel of Ohio."#b 0*((e""Ԍ" 0*((" x` `  X- ANALYSIS AND DECISION ă  X-x14.` ` We will deny Time Warner's petition. At the outset, we note that the Commission has specifically considered the issue of the scope of the Columbus Chillicothe,  X-Ohio market in the context of a market hyphenation rulemaking proceeding. X-#Xj\  P6G;XP#э See MM Docket 92259, 8 FCC Rcd at 29772978. Market hyphenation proceedings, undertaken pursuant to Section 614(f) of the 1992 Cable Act, and ADI market modification proceedings, undertaken pursuant to Section 614(h) of the 1992 Cable Act, although not identical in purpose nevertheless involve a considerable overlap of objectives and decisional criteria and the Commission's decision to join markets takes into consideration the economic ties between the communities to be hyphenated and the subject station. Each explores the competitive relationships between television stations in an area and seeks to define the shape of the local market in which stations compete for programming, advertisers, and viewers. The market hyphenation process and the ADI market modification  X -provision are similar in that each may be used to lower the barriers to cable carriage.b { X-#Xj\  P6G;XP#э We note that while the grant of a market hyphenation weighs heavily in favor of denying a request to exclude communities under the market modification process, the hyphenation, in and of itself, is not controlling in every circumstance of the type exemplified in this case.b The hyphenation process, the Commission has stated, was adopted "to assure that stations will have access to cable subscribers in the market and cable subscribers will have access to all the  Xy-stations in the market."y X-#Xj\  P6G;XP#э#Xj\  P6G;XP# Cable Television Report and Order, 36 FCC 2d 143, 176 (1973).#x6X@`7?X@# The hyphenation of Columbus and Chillicothe reflects the Commission's judgment that stations in the two communities are competitive, at least in the core communities of the combined market area and while not determinative of the outcome of this ADI proceeding, the hyphenation decision is suggestive evidence of the Commission's belief, notwithstanding the distances between Columbus and Chillicothe, that stations from both communities are local to significant overlapping portions of the same market area. For these reasons, we reject Time Warner's claim that market hyphenations have no bearing in our decision to modify ADI television markets. As we recently stated, "Redesignation of the market reflects in the rules the general competitive situation that in fact exists in the local area, allowing the application of the more specific rules, including those relating to 'area of dominant influence' changes, to be addressed from the perspective of a properly defined  X|-market area."| X#-#Xj\  P6G;XP#э Report and Order in MM Docket 93304, 10 FCC Rcd 9298 at 9 (CSB, 1995).  XN-x15.` ` Focusing on the specific factors referenced in the statute, we also conclude that Time Warner's arguments do not sufficiently support a grant of its request. With respect to the question of historical carriage patterns, we believe that the station's distant signal status" M 0*((" for copyright purposes prior to the market hyphenation decision effectively precluded carriage on Time Warner's cable systems as well as other area cable systems. For this reason, the station never had the opportunity to build a record of historical carriage, and therefore this statutory factor does not weigh in favor of the requested deletion. x  X-x16.` ` With respect to local service, we note that the communities involved are within the Grade B contour of WWHO or are on the fringe of the station's Grade B contour, approximately 35 to 55 miles from the station's transmitter, and thus within the typical service  XH-and market area of a television station.H X -#Xj\  P6G;XP#э Furthermore, while only a limited amount of programming is involved, we find that WWHO's broadcasts of Cavaliers basketball games in the market on an exclusive basis demonstrates, in part, local service to the community and is entitled to some weight under the "carriage or coverage of sporting and other events" factor set forth in Section 614(h)((1)(C)(ii)(III).  Moreover, we do not believe that Time Warner's carriage of other local stations is sufficient to justify exclusion of its system from the above  X -referenced communities.6x  X-#Xj\  P6G;XP#э That other ADI licensees do in fact provide coverage of and service to the communities in question is not to the contrary. We do not believe that Congress intended this criterion 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  X-a station's claim where it could be shown that other stations do not serve the communities at issue.6 The evidence presented by petitioner with respect to WWHO's audience ratings is of no assistance in determining the proper scope of the market area involved because it consists of data for the 19 county market as a whole which, if relied on in the manner suggested, would leave WWHO with no market at all and hence no cable carriage rights at any location. It provides no information to distinguish the specific communities involved here from the rest of the market or to prove that these communities are outside of  X-WWHO's market area._]  X-#Xj\  P6G;XP#э#Xj\  P6G;XP# The same would be true with respect to the "significantly viewed" data presented. It should further be noted that one of the counties referenced by Time Warner in this showing Champaign County is outside of the relevant ADI._ In sum, Time Warner has not sufficiently demonstrated why it is necessary to remove itself from its own ADI, visavis WWHO, yet remain in the same market with regard to all of the station's competitors. Thus, we find that Time Warner'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  X-obligations. X$-#Xj\  P6G;XP#э H.R. Rep. No. 102628, 102d Cong., 2nd Sess. at 97. " 0*((" x  X-x  ORDERING CLAUSES ă  X-x17.` ` 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" (CSR4100A) filed September 3, 1993, by Time Warner Cable IS DENIED. Triplett & Associates shall notify Time Warner in writing of its carriage and channel position elections, (76.56, 76.57, 76.64(f) of the Commission's Rules),  XH-within thirty (30) days of the release date of this Memorandum Opinion and Order. Time Warner shall come into compliance with the applicable rules within 60 days of such notification.  X -x18.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam H. Johnson x` `  hhDeputy Chief, Cable Services Bureau