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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) Cablevision of Cleveland, L.P. and ) CSR-4602-A V Cable, Inc., d/b/a Cablevision of Ohio ) ) For Modification of Station ) WGGN-TV's ADI ) ) In re: ) ) Compliant of Christian Faith Broadcast, Inc. ) CSR-4625-M against Cablevision of Ohio ) ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: May 28, 1996 Released: June 3, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Cablevision of Cleveland, L.P., and V Cable, Inc., jointly d/b/a Cablevision of Ohio ("Cablevision"), have filed this petition seeking to modify the Cleveland, Ohio area of dominant influence (or "ADI") and to exclude its cable communities from that ADI with regard to WGGN-TV (Ch. 52- Sandusky, OH). Christian Faith Broadcast, Inc., ("CFB"), licensee of WGGN-TV filed an opposition to the above-referenced petition, to which Cablevision replied. In a separate but related proceeding, WGGN-TV filed a complaint against Cablevision requesting mandatory carriage of its signal. Cablevision responded by filing an opposition to the station's must-carry complaint. We will jointly consider the two cases to finally resolve WGGN-TV's signal carriage status in Cablevision's cable communities. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence" or ADI as defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air and cable television viewing are included. 3. Under the Act, however, the Commission is also directed to consider changes in ADI areas. Section 614(h)(1)(C) provides that the Commission may: with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section. In considering such requests, the Act provides that: the Commission shall afford particular attention to the value of localism by taking into account such factors as -- (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; (II) whether the television station provides coverage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community. 4. The legislative history of this provision indicates that: where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular communities from a television station's market consistent with Congress' objective to ensure that television stations be carried in the areas which they serve and which form their economic market. * * * * * [This subsection] establishes certain criteria which the Commission shall consider in acting on requests to modify the geographic area in which stations have signal carriage rights. These factors are not intended to be exclusive, but may be used to demonstrate that a community is part of a particular station's market. 5. The Commission provided guidance in its Report and Order in MM Docket 92- 259, supra, to aid decision making in these matters, as follows: For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel line-up (e.g., rate cards) for a period of years. To show that the station provides coverage or other local service to the cable community (factor 2), parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or other programming of interest to the community could be demonstrated by program logs or other descriptions of local program offerings. The final factor concerns viewing patterns in the cable community in cable and noncable homes. Audience data clearly provide appropriate evidence about this factor. In this regard, we note that surveys such as those used to demonstrate significantly viewed status could be useful. However, since this factor requires us to evaluate viewing on a community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6. As for deletions of communities from a station's ADI, 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. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. Cablevision's cable communities are located near Lake Erie, in the northern central and eastern parts of the Cleveland ADI. The six cable systems subject to the request are: (1) Chardon, serving Geauga County; (2) Bainbridge, also serving Geauga County; (3) Sheffield Lake, serving Lorain County; (4) Cleveland, serving Cuyahoga County; (5) Strongsville, serving both Lorain and Cuyahoga Counties; and (6) Cleveland Heights, serving Geauga, Lake, and Cuyahoga Counties. WGGN-TV is a commercial television station broadcasting religious programming from Sandusky in Erie County, OH. 9. Cablevision argues that the 1992 Cable Act's four-factor market modification test favors excluding the cable communities from WGGN-TV's market. Cablevision first asserts that WGGN-TV has no history of carriage in any of the cable communities. Cablevision next argues WGGN-TV does not provide local service to the cable communities. The operator states that the station is geographically remote with Sandusky, Ohio, its city of license, an average of 57.02 miles from Cablevision's six principal headends. Cablevision adds that the station is located in a different county and separate congressional district from the cable communities. Cablevision also asserts that its principal headends are located an average of nearly 19 miles outside of the station's Grade B contour and that the station does not provide the designated communities with local programming, unlike other Cleveland stations presently carried on Cablevision's systems. Cablevision asserts that the station's programming is not specifically directed to the needs and interests of the cable communities because the majority of the station's programming day consists of a satellite feed from the Trinity Broadcasting Network. With regard to the third market modification factor, Cablevision claims that several other Cleveland stations provide extensive local programming. Specifically, Cablevision notes that WOIO (Ch. 19), Shaker Heights, Ohio; WJW-TV (Ch. 8-CBS, ), Cleveland, Ohio; and WKYC-TV (Ch. 3-NBC, ), Cleveland, Ohio, broadcast several daily newscasts, as well as daily variety shows, with a local focus. Finally, Cablevision asserts that, according to Nielsen, WGGN-TV has no measurable viewership in the cable communities. 10. In its opposition, WGGN-TV asserts that Cablevision's petition raises factually erroneous or legally irrelevant contentions and is no more than an attempt to evade Cablevision's signal carriage obligations under the 1992 Cable Act. To support its position, WGGN-TV asserts that the market modification guidelines establish a strong presumption that a station's ADI is the most accurate indication of the area in which the station provides local service. WGGN-TV next asserts that since it is a specialty station, its previous lack of carriage and low audience viewership is not dispositive in cases such as this one. WGGN-TV alternatively asserts that its economic and social nexus with the cable communities are better indicators of whether its television market should be modified. WGGN-TV attempts to prove its case by stating that: (1) it is within the Cleveland Emergency Broadcasting Service operational area; (2) it is charged a higher price for programming due to its location within the Cleveland ADI; and (3) the station airs announcements regarding religious and other events in the Cleveland metropolitan area. WGGN-TV also states that its programming is no more duplicative than other networks, such as Warner Brothers, UPN, or Fox, which are currently carried by Cablevision. WGGN-TV asserts that the station's broadcast of at least one "local" religious program per day distinguishes it from other religious oriented stations currently carried by Cablevision. Moreover, WGGN-TV maintains that the station has established a nexus with the cable communities through its local programming, which includes religious shows featuring guests from the Metropolitan Cleveland area. WGGN-TV finally argues that past denial of carriage by cable systems located in the heart of its market (Cleveland and its nearby suburbs) has dramatically limited the station's audience and should not justify cable operators' continued refusal to carry the station. 11. In its reply, Cablevision argues that WGGN-TV ignores the 1992 Cable Act's market modification criteria. Cablevision asserts that the station did not adequately rebut its lack of historic carriage in the cable communities, its low viewership levels, or its geographic distance to the cable communities. Cablevision further argues that, contrary to WGGN-TV's claim, specialty stations are not exempt from having their markets modified. Cablevision also argues that WGGN-TV's assertions that it provides local and non-duplicative programming are unsupported and incorrect noting that 20% of WGGN-TV's broadcast day consists of three TBN programs. Finally, Cablevision rejects WGGN-TV's allegation that the petition is an attempt to circumvent its statutory must-carry obligations, arguing that its request is valid and demonstrates that the exclusion of the cable communities from WGGN-TV's ADI is in the public interest. ANALYSIS AND DECISION 12. Based on the four statutory and other relevant factors, Cablevision's petition will be granted in part and denied in part. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they service and which form their economic market." Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements. The ADI market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that the operator's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Cablevision's actions do not clearly reflect an intention to skirt its signal carriage responsibilities under the 1992 Cable Act and the Commission's rules nor do they evidence a pattern of discriminatory conduct against the station subject to deletion. Based on the geography and the statutory factors, we believe that the majority of the north-central Ohio communities in question are sufficiently removed from WGGN-TV that it ought not be deemed part of the station's market for mandatory carriage purposes. The evidence before us, which we believe has not been sufficiently disputed by WGGN-TV, distinguishes the various north-central Ohio communities from Sandusky, Ohio and persuades us that the action requested would "better effectuate the purposes" of Section 614 of the l992 Cable Act. We believe Congress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly rectified through the special relief process. 13. At the outset, the evidence suggests the WGGN-TV does not provide local service to the communities in question. WGGN-TV does not place either a Grade A or Grade B contour over the vast majority of the cable communities. In addition, we do not believe that it has been shown that WGGN-TV carries programming of specific local interest or import for cable viewers in the north-central Ohio communities. The WGGN-TV schedule information provided indicates programming of potential general interest but without specific ties to any of the north- central Ohio communities at issue in this matter. The station also has no reported audience in the counties where the cable communities are located and it has no history of carriage. Moreover, Sandusky, Ohio, WGGN-TV's city of license, is 41 to 85 miles away from the cable communities, excluding those served by the Sheffield Lake headend. The distance is even greater considering that the station's transmitter is located in Castalia, OH, which is five miles southwest of Sandusky and further away from the communities at issue. Generally, the distance involved attenuates the local ties the station might have to the cable communities and helps explain why the station's viewership is too low to be reported. 14. We also believe that Cablevision's carriage of other local television stations provides support for the action requested, particularly for Cleveland and the immediately adjacent suburbs. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, and it is clear that the station is not providing local service to those communities, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. In this case there are several television stations carried by Cablevision's systems, such as WOIO, WJW- TV,and WKYC-TV, that have a closer nexus to the relevant north-central Ohio communities, as determined by their proximity to the cable communities as well as Grade B contour coverage, and provide more focused local programming than WGGN-TV. 15. Cablevision also demonstrates the WGGN-TV has no historical carriage on the cable systems in question and has no audience in the counties in which the cable systems are located. Because WGGN-TV is a specialized format station, these facts are not determinative, in and of themselves, of the relationship between the cable communities and the market of the television station, nor should their absence permit a cable operator to undermine the objectives of the mandatory carriage requirement. Here, however, we conclude that the lack of historical carriage and the dearth of audience is of evidential significance when linked with other information regarding the market and the particular distances involved, particularly where a station has been broadcasting since l982 and has no noncable audience share in the relevant north-central Ohio counties. In these circumstances, we cannot discount WGGN-TV's existing carriage and audience as proper indicators of the scope of its market area. 16. We deny the operator's request with regard to the Sheffield system which serves Avon, Sheffield Lake, and Sheffield, giving special consideration to geographic factors. First, unlike all the other communities at issue, these three towns are on the fringe of the station's Grade B contour. We additionally note that they are 35, 32, and 31 miles away from Sandusky, respectively and located in Lorain County which is immediately adjacent to Erie County, the station's home county. There are also no apparent geographic or man-made obstacles, such as rivers, mountains, tall buildings, or congested traffic areas which would naturally separate these communities from either Sandusky or Castalia. The relative proximity of the station to the cable communities coupled with apparent Grade B contour coverage along with other factors serve as evidence, in this instance, that Avon, Sheffield Lake, and Sheffield are part of WGGN-TV's market. MUST CARRY COMPLAINT 17. On August 30, 1995, WGGN-TV requested carriage on Cablevision's systems serving Cleveland and its suburbs. WGGN-TV notes that it formal carriage request followed joint measurements between the station and the operator on August 24, 1995. At that meeting, it was demonstrated that the station would be able to place a good quality signal at Cablevision's headends with the aid of a "Lindsay" antenna and an inexpensive 20 db pre-amp, both of which would be provided to the operator by WGGN-TV. The station asserts that Cablevision refused its request for carriage, despite these positive results, insisting on further "tests" of the equipment. WGGN-TV adds that there is no doubt as to Cablevision's refusal at this point noting that the operator filed its petition for special relief on October 25, 1995, asking to delete almost all of the same communities that were subject to the signal carriage request. 18. In its Opposition, Cablevision argues that there are three reasons why WGGN-TV's must carry complaint should be dismissed. First, the complaint is procedurally defective given that Cablevision has no obligation to carry the station's signal during the pendency of the petition for special relief to modify WGGN-TV's market. Cablevision adds that the station's filing of the complaint is "duplicative and wasteful" of the Commission's resources. Second, the complaint should be dismissed as untimely, having been filed over two years after Cablevision denied the station's first request for carriage and many weeks after the expiration of the 60 day filing deadline following its most recent denials of carriage. Cablevision explains that WGGN-TV first requested carriage on May 11, 1993 and its denied the station's written request on May 28, 1993, advising the station that it did not meet the requirements of the Commission's signal testing scheme. With regard to the station's May 24, 1995, request, Cablevision states that it again determined that WGGN-TV failed to meet the requisite signal strength requirements during signal strength surveys conducted by Cablevision engineers on June 15, 1995 and August 2, 1995, and informed the station in a meeting on August 9, 1995, that it would not grant the carriage request as a result. The operator then adds that after the station performed its own measurements on August 25, 1995, it again requested carriage on August 30, 1995; noting that its signal was deficient, WGGN-TV offered to strengthen it using a "20 db pre-amp." Cablevision denied this last request by letter dated September 20, 1995. Third and finally, the complaint should be rejected because the pre-amplification method which the station proposes to boost the quality of the signal does not comport with the Commission's signal testing and delivery requirements, and would result in a "material degradation of picture quality." Cablevision argues that WGGN-TV cannot cure its signal deficiency by installing a pre-amplifier after the antenna and before the transmission line; Cablevision asserts that signal measurements must be taken at the input terminal (i.e., in front, not in back, of the amplifier) in order to ensure that the test properly identifies the signal's off-air characteristics as received by the antenna. 19. We are not persuaded by the arguments raised by Cablevision in its opposition and we grant WGGN-TV's must carry complaint as it relates to the operator's Sheffield Lake cable system. First, we reject the operator's untimeliness arguments with regard to the 1993 correspondences as we find no language in any of Cablevision's letters which would constitute an affirmative denial of WGGN-TV's request. We also do not find merit in the operator's arguments with regard to the communications between the station and the operator any time thereafter. In all these instances, the two parties, either jointly or singularly, were repeatedly testing the station's signal and addressing whatever technical measures were necessary to cure WGGN-TV's signal strength. These ongoing processes indicate that the operator is willing to work with the station and we did not find any instance where the station's request was ultimately rejected. WGGN-TV's filed its complaint in a timely manner on November 20, 1995, within 60 days of Cablevision's latest letter dated September 20, 1995. The operator's signal testing argument is also rejected as a basis for denial of carriage. In this instance, WGGN-TV has shown that can provide a good quality signal through the use of additional equipment and has indicated a willingness to pay the expense of boosting its signal to acceptable levels. Whether the pre-amp is installed before or after the amplifier is not an issue as long as the station can meet the Commission's requisite "good quality" signal requirements. Finally, since we resolve Cablevision's market modification petition along with WGGN-TV's must carry complaint, the argument regarding the cable operator's compliance with the Commission's signal carriage requirements during the pendency of the deletion request is rendered moot. ORDE RS 20. Accordingly, IT IS ORDERED, that 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), the captioned petition (CSR-4602-A), filed October 13, 1995, by Cablevision of Cleveland, L.P. and V Cable, Inc. d/b/a Cablevision of Ohio IS GRANTED IN PART AND DENIED IN PART per the discussion in paras. 12-16, above. 21. IT IS FURTHER ORDERED, that the complaint filed on November 20, 1995, by Christian Faith Broadcast, Inc. (CSR-4625-M) IS GRANTED IN PART AND DENIED IN PART. Cablevision is therefore required to carry the signal of WGGN-TV on its system serving Sheffield, Sheffield Lake, and Avon. WGGN-TV shall notify Cablevision 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. Cablevision shall come into compliance with the applicable rules within sixty (60) days of such notification. 22. This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau APPENDIX A The attachment was not available in WordPerfect.