WPCVC 2B.J CourierCG TimesTimes New RomanTimes New Roman BoldXPCG Timeset 4_230_1HPLAS4.PRS 4x  @\oeX@206 ZFE3|w  HP LaserJet 4_230_1HPLAS4.PRS 4Xw PE37\oeXP Y-#Xw PE37XP#CG TimesTimes New Roman^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||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$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2vbpkHka8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# 2yPvtka2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# 2V  N   a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# 2  G   a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p 2ATech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . 2Oa2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   2,o3(a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8: -#Xj\  P6G;yoXP#э WNNETV gained carriage on Warner Cable's Hinsdale system only in 1990. WNNETV is not carried on Lamont Television Systems serving RindgeFranklin Pierce College; on Highland Communications serving Harrisville (town) and Nelson (town); on Community Cable One CATV serving Marlow; and on Comsat Video Enterprises serving KeeneRamada 5636. WNNETV maintains that carriage is due to the fact that it considers the Communities an integral part of its principle service area and is considered by local businesses as a local station over which they can reach consumers in the Communities. Over a dozen different businesses from each county chose to advertise on WNNETV in 1992. WNNETV argues that this demonstrates the importance of WNNETV as an advertising medium for local business that cannot afford the higher rates of Boston or Portland, Maine stations and who need WNNETV to reach their large market area. WNNETV states that it places a predicted Grade A contour over all of Sullivan County, more than half of Cheshire County and 80 percent of Windham County, and places a predicted Grade B contour over the remaining parts of the counties. According to WNNETV, only one other television station, WMURTV (ABC, Channel 9), Manchester, New Hampshire, places a predicted Grade A contour over Sullivan or Cheshire Counties, and no other station places a predicted Grade A contour over Windham County. WMURTV places a predicted Grade B contour over 50 percent of Windham County, and both Television Broadcast Stations WRGB (NBC, Channel 6) and WNYT (CBS, Channel 13), both AlbanySchenectady, New York place a Grade B contour over 60 percent of Windham County. There are three other stations that provide Grade B service to 25 percent of Sullivan County.  X-x11.` ` WNNETV presents data to suggest that it achieves substantial viewership in  X-both cable and noncable homes in Sullivan, Cheshire, and Windham Counties.4& X#-#Xj\  P6G;yoXP#э Based on A.C. Nielsen data, WNNETV states that its viewing in Sullivan County was a 16% share in total viewing ( 27% in noncable households), and that its average weekly cume was 59%. In Cheshire County the station's viewing was 5% (7% in noncable households), with an average weekly cume of 36%. In Windham County WNNETV had a 13% share ( 32% in noncable households), and had an average weekly cume of 62%. A.C."k'0*((i'"  X-Nielsen County Report 1992, County Summaries for WNNETV Trading Area: Household Shares. Significantly,"d0*((" WNNETV points out that A.C. Nielsen in 1992 reassigned Sullivan County from the Boston to the BurlingtonPlattsburgh DMA. Moreover, WNNETV asserts that it provides more news coverage of the Communities than any other commercial television station. WNNETV claims that it provides indepth local news, weather, sports and election coverage to viewers in the Communities. WNNETV states that the three counties are composed of small villages, and that WNNETV monitors newsworthy events throughout the counties and broadcasts on a timely basis. WNNETV notes that it is aided in doing so by a transportable satellite uplink station (Station E874053). WNNETV lists several news stories it broadcast relating to issues of interest to the Communities throughout the three counties. In addition, WNNETV serves the community through offair activities such as cosponsoring charitable events, organizing school tours of its facilities, and providing speakers for career days at area schools.  X -x12.` ` In addressing the third statutory factor, WNNETV believes that because of its location as the closest commercial television station to the Counties and its familiarity and involvement in the community, it provides more news and programming covering the Community than all other stations in the Boston ADI combined. The Boston stations are not located close to the communities and must of necessity direct their programming to the stations' own city of license, Boston.  XK-x13.` ` In its opposition, Group W asserts that WNNETV has failed to meet the four statutory criteria. Group W argues that WNNETV "merely serves as a satellite" of Television Broadcast Station WPTZ (NBC, Channel 5), North Pole, New York, and simply rebroadcasts WPTZ programming. Group W states that its licensee WBZTV has a long history of carriage on cable systems in contrast to WNNETV. With respect to WNNETV's local news and public affairs programming, Group W argues that WNNETV's local news is limited to one hour a day during weekdays and none on weekends and no public affairs programming. Group W claims that much of WNNETV's programming and news service is generated from WPTZ, more than 120 miles away. In contrast, Group W states, WBZTV broadcasts five hours of local news a day during weekdays and three hours on weekends. WBZTV traditionally considers the counties an integral part of its viewership and provides news and local information for these counties. Group W states that over the past six years WBZTV news programming has covered approximately 100 stories about or of interest to the counties. Group W argues that WNNETV cannot match WBZTV's news service in substance, quality and level. Moreover, it states that WBZTV provides public affairs programming that smaller markets cannot. In addition, Group W states that Arbitron data for  X-each county reveals that WBZTV is significantly viewed in the counties.Sd4& X$-#Xj\  P6G;yoXP#э A network station deemed to be significantly viewed in a community or a county is one that achieves in noncable homes a share of viewing hours of at least 3 percent (total week hours) and net weekly circulation of at least 25 percent. 47 C.F.R. 76.5(i).S"0*(("Ԍ X-ԙx14.` ` In reply, WNNETV argues that Group W's opposition is misleading and devoid of merit as it downplays the fact that WNNETV places Grade A and B contours over the Communities, and minimizes the amount of WNNETV's local programming while inflating WBZTV's own contribution to local programming. WNNETV states that it does not rebroadcast the local news carried on WPTZ, but rather the station originates local news broadcasts in its fully staffed Hartford studio with stories directed toward the needs of Communities. WNNETV asserts that it only rebroadcasts WPTZ's NBC network and syndicated programming. WNNETV disputes Group W's contention that WBZTV has been carried on some cable systems since 1955 whereas WNNETV has only been carried since 1979 or 1980 as legally insignificant. Group W, according to WNNETV, ignores the fact that WNNETV began service in 1978, in contrast to WBZTV which began service in 1948. WNNETV notes that the two stations have had similar continuous carriage patterns, with WNNETV appearing on more systems.  X -x15.` ` WNNETV argues that Group W's characterization of WBZTV's programming is misleading because the portion directed to the Communities is insignificant compared to coverage of interest to its Boston viewers. WNNETV asserts that its coverage of the Communities far exceeds that of WBZTV. WNNETV states that the bulk of WBZTV's programming, unlike WNNETV's newscasts, is focused not on residents of Communities but on Boston, which is 70 to 90 miles away from the Communities. WNNETV claims that events around Boston are of no interest to residents of the Communities. In response to  X-Group W's claims to have broadcast 100 stories over six years (e.g., one and a half stories per month), WNNETV argues that this hardly evidences a devotion or focus on needs of Communities. In contrast, according to WNNETV, its fulltime news staff of eight people broadcast 200 stories concerning Communities over the past 2 years and more than 400 stories over the past six years, four times WBZTV's local coverage. WNNETV contends that Group W's viewership data is misleading because both stations have significant viewing and  X-during the time periods that include local newscasts WNNETV achieves greater viewership.c4& X-#Xj\  P6G;yoXP#э During the daypart which includes WNNETV's 6:00 p.m. local newscasts, WNNETV has a 15 share in Windham County, compared with WBZTV's 5 share, and an 8 share in Sullivan County, compared with WBZTV's 6 share. In Cheshire County, during the daypart which includes WNNETV's 11:00 p.m. local newscast, WNNETV has a 10 share, compared  X-with WBZTV's 14 share. Arbitron, Television County Coverage: Vermont (Cable Controlled  X-Counties) 1993; Television County Coverage: New Hampshire (Cable Controlled Counties) 1993.  Xg- ANALYSIS AND DECISION ĐTP  X9-x16.` ` We shall grant WNNETV's petitions. With respect to the first statutory factor, we note that WNNETV has demonstrated a history of carriage on most of the cable systems serving the Communities. We note that the one cable system in Sullivan County on which WNNETV is not carriedserving the community of Springfieldhas only been in operation"0*(("  X-since 1990.4& Xy-#Xj\  P6G;yoXP#э Television and Cable Factbook at D1065 (1994). In Cheshire County, the cable systems in the communities of Nelson, Marlow, and Harrisville and some portions of Keene and Rindge do not carry WNNETV. In Windham County, the cable system serving the communities of Stratton, Stratton Mountain, Stratton Ski, and Stratton West does not carry WNNETV, and the station has only shown itself to be carried currently in Jacksonville, West Dover, and Whitingham. However, WNNETV has demonstrated historic carriage with respect to all other cable communities.  X_-x17.` ` WNNETV has shown that it meets the second statutory factor by providing coverage or other local service to the Communities. WNNETV's predicted Grade A contour covers all of Sullivan County, 80% of Windham County and more than half of Cheshire County and WNNETV places a Grade B over the remaining areas of Windham and Cheshire  X -Counties. {4& X/-#Xj\  P6G;yoXP#э We note in contrast that WBZTV's Grade B contour only extends as far as the southeastern portion of Cheshire County, New Hampshire, the area in question nearest to Boston. With respect to the communities in Cheshire County on which WNNETV has not achieved historic carriage, we note that Nelson, Marlow, and Harrisville are within WNNETV's Grade A service contour, while Rindge is at the fringe of the station's Grade B contour. The fact that WNNETV places a Grade A or Grade B signal over these communities in Cheshire County is persuasive evidence that WNNETV provides service to these communities. Moreover, WNNETV's showing is further supported by its coverage of news events and provision of other local service specific to many of the Communities. WNNETV has demonstrated that the Communities are close in proximity to WNNETV's community of license and the site of its transmitter. We have previously stated that the second statutory criterion may be satisfied with a showing that the station places at least  X-predicted Grade B contour or is located close to the community in terms of mileage.4& X-#Xj\  P6G;yoXP#э E.g., WNNETV, Inc., 9 FCC Rcd 270, 272 (1994); MM Docket 92259, 8 FCC Rcd at 2977. Clearly, WNNETV satisfies this criterion in Sullivan, Cheshire, and Windham Counties, based on the coverage of the station's service contours and its close proximity to the Communities. Though Group W attempts to rebut this by arguing that WNNETV provides no public affairs programming and limited local news for the Communities, the petitions provide numerous examples of programming directed toward the needs and interests of the Communities.  Xe-x18.` ` Group W also challenges WNNETV's petition under the third criterion, arguing that its Boston licensee, WBZTV, is entitled to carriage on cable systems in the Communities in the three counties and provides more and better news and programming coverage of interests to the Communities. We believe that Congress did not intend the third criterion to be a bar to a station's ADI modification claim whenever other stations could also be shown to serve the communities at issue. Rather, we believe that this criterion was" 0*((<" intended to enhance a station's claim where it could be shown that other stations do not serve the communities at issue. Under such circumstances, a denial of carriage rights to the claiming station could deprive cable viewers of any broadcast signals that might provide programming geared to their communities. Because WBZTV, along with other stations, does appear to serve the Communities, this enhancement factor would not appear applicable.  Xv-x19.` ` With respect to the fourth criterion, we find that WNNETV has presented evidence of viewing patterns for cable and noncable households to demonstrate substantial viewership of the in the communities located within Sullivan and Windham Counties. A review of Arbitron data for these counties confirms that WNNETV achieves a high share of  X -viewership, indeed the highest share relative to the Boston stations.  4& X -#Xj\  P6G;yoXP#э In Windham County, Vermont, WNNETV holds a 12 share of the total market and has a 61 percent net weekly circulation. Only the Boston station WBZTV holds a larger share of 15, but at 56 percent WBZTV does not exceed WNNETV's net weekly circulation. The data for all other Boston ADI stations fall below WNNETV's numbers. In Sullivan County, New Hampshire, WNNETV has a 9 share of the total market and a 74 percent of net weekly circulation, whereas only the Manchester station WMURTV holds a larger share of 15. However, at 62 percent WMURTV does not exceed WNNETV's net weekly circulation. The data for all other Boston ADI stations fall far below WNNETV's numbers. Arbitron,  X-Television County Coverage: Vermont (Standard/Fringe) 1993; Arbitron, Television County  X-Coverage: New Hampshire (Standard/Fringe) 1993. We note that both Nielsen and Arbitron data are countywide, rather than communityspecific. Absent evidence that such data are not fairly reflective of viewing in the actual communities in question, we shall accept such data as probative, although not conclusive, in cases of this type. In addition to the four statutory factors, we believe that the fact that local businesses in the counties use  X -WNNETV as an advertising medium further supports a grant of the petitions. 4& X-#Xj\  P6G;yoXP#э See, e.g., WNNETV, Inc., 10 FCC Rcd 4993, 4995 (1995). With respect to the communities located in Sullivan and Windham Counties, WNNETV clearly satisfies the first, second and fourth factors, and, even absent enhancement under the third criterion, has justified grant of its requests.  X4-x20.` ` With respect to Cheshire County, for certain communities WNNETV has not demonstrated historic carriage. However, the location of these communities within WNNE X-TV's Grade A service contour outweighs the lack of historic carriage.Oa 4& X"-#Xj\  P6G;yoXP#э We note that WNNETV has no record of historic carriage in the community of RindgeFranklin Pierce College, which is within the station's Grade B contour. However, in the neighboring community of Rindge, WNNETV has been carried for over a decade.O As other stations serve Cheshire County the third factor is not applicable. With respect to the fourth factor, WNNETV's showing is not as conclusive as it is for Sullivan and Windham Counties. In Cheshire County, Arbitron data reveal that WNNETV has only a two total share and 27 percent of net weekly circulation. In contrast, three Boston stations [WBZTV, WCVBTV" 0*((4" (ABC, Channel 5), and WHDHTV (CBS, Channel 7)] and one Manchester station (WMURTV) have total shares over 12 and net weekly circulation over 60 percent. WNNE's viewing pattern between cable and noncable homes is similar: noncable share of one and nine percent of net weekly circulation; cable share of two and 33 percent of net weekly  X-circulation.4& X-#Xj\  P6G;yoXP#э Arbitron, Television County Coverage: New Hampshire (Cable Controlled Counties) 1993. However, WNNETV has shown that its viewership is most significant during  X-the times when it broadcasts its local news,pd4& X -#Xj\  P6G;yoXP#э See note 20, supra.p and has presented Nielsen viewing data on  Xv-viewership that supports its petition.pv4& X> -#Xj\  P6G;yoXP#э See note 18, supra.p Moreover, the use of WNNETV as an advertising medium by local business in Cheshire County further supports including these communities in WNNETV's market. Weighing the totality of circumstances presented to us with respect to the communities located in Cheshire County, we believe a grant of WNNETV's request is warranted.  X -x21.` ` Accordingly, for the purposes of determining mandatory signal carriage obligations, we shall consider the communities in Sullivan County and Cheshire County, New Hampshire and Windham County, Vermont, listed respectively in notes one, two, and three,  X -supra, to be part of the Burlington, VermontPlattsburgh, New York ADI with respect to WNNETV, as well as within the Boston, Massachusetts ADI. This determination is subject to all generally applicable limitations on signal carriage rights, including copyright liability,  Xd-signal quality, channel capacity, and program duplication. See paragraph 7, supra.  X8-  ORDERING CLAUSES ă x  X -x23.` ` Accordingly, IT IS ORDERED, pursuant to 614 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 captioned petitions for special relief (CSR4004A, CSR4001A, and CSR4002A) filed by WNNETV, Inc. ARE GRANTED. This change shall be effective in accordance with the following schedule: WNNETV, Inc. shall notify the cable systems in question in writing of its carriage and channel position election (76.56, 76.57, and 76.64(f)  X-of the Commission's Rules) within 30 days of the release date of this Memorandum Opinion  Xk-and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of the above notice. x24. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. x` `  hhFEDERAL COMMUNICATIONS COMMISSION " 0*(("Ԍx` `  hhWilliam H. Johnson x` `  hhDeputy Chief, Cable Services Bureau