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A. a.(1)(a) i) a)Documentg2)e-PleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:dYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(-((((((((((---#J:55:2-:::2F::-:5-2::K::2%(#(#(#(((>((((((:((#&&++%(:#:#:#:#:#F45#2#2#2#2#:(:(:(:(:(:(:(:(:(:(:#:(:':(:(:(-(:#:#:#5#5#5+5#:22#2#2#2#:(:(:(:+:(:+:(((8-++:(22 222:(/:(:(:(:(F:555----+2"22%:(:(:(:(:(:(K::+2#2#2#:(2:(-2:(2((W888888888888888888888888888888888888888888888888xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN00%(#((((M(==(==(=##(P0P((N1=PP00/CC--P#(CP"5555==JPP(=P0.+(-N00P(>>>>>>>>>>>>>>>>>>>>>!((C>(-((((((((((---#J:55:1-:::1G::-:5-1::K::1&(#(#(#(((>((((((:((#&&+>>>(#P((P-G>>>>##(PN:>>:(((((=(-=( ,.$(<<<#::::::G51111:::::::-::::::-(######5#####(((((((,(((((((2OFK18 Kq;@>\A"i~'^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddXdX8dd88X8ddddLL8dXXXLP8PlD4lTDDD4DDDDDDdDd8|d|d|d|d|dX|X|X|X|XD8D8D8D8dddddddddpX|ddddpXd|d|d|d|dXXlXx|X|X|X|XdddldldD8DdDDDddllXp8pHpDp@p8dtdddd|L|L|LdLdLdLllpHp8pTddddddplpLpLpLdpDddLpDpdx4ddC,CWddddddddddddddddddddddddddddddddddddddddNHxxHhdLdddddd8@d<@d<DDppdDDxddzHxxHkddDpd<"dxtldxxd2CTdd+CCd2C28ddddddddddCCdzzzzCYozzdozzooN8NTdCddYdY8dd88Y8ddddNN8dYYYNP7PlCdoddCdCCCooFdCNCo2Ndddd7dC7dCdPn<ddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd"i~'^:LpddDDDdp4D48ddddddddddDDpppdLd||p|||D8DpdDddXdXDdp88d8pdddLL8pXdXLD,DpD4ppDDD4DDDDDDdDd8dddddXXXXXL8L8L8L8pddddpppp|Xdddd|Xd|ddddXXpXXXXXdddpdppL8LdLDLdpppd|8|h|D|L|8pppddLLLpLpLpLpp|l|8|ppppppp|p|L|L|Ld|DppL|D|d4ddC8CWddddddddddddddddddddddddddddddddddddddddNHxxHddLdddddd4x}; yO-ԍ 47 C.F.R. 76.59.>   0x7. Adding communities to a station's market area generally entitles that station to insist  xjon cable carriage in those communities. However, this right is subject to several conditions: 1)  x.a cable system operator is generally required to devote no more than onethird of its activated  xchannel capacity to compliance with the mandatory signal carriage obligations, 2) the station is  xresponsible for delivering a good quality signal to the principal headend of the system, 3)  xindemnification may be required for any increase in copyright liability resulting from carriage,  xand 4) the system operator is not required to carry the signal of any station whose signal  xxsubstantially duplicates the signal of any other local signal carried or the signals of more than one  xlocal station affiliated with a particular broadcast network. If, pursuant to these requirements,  xa system operator elects to carry the signal of only a single affiliate of a broadcast network, it  x/is obliged to carry the affiliate from within the market whose city of license is closest to the  Xg- x>principal headend of the cable system.<g}; yO #-ԍ 8 FCC Rcd at 2981.< Accordingly, based on the specific circumstances  xjinvolved, the addition of communities to a station's market area may guarantee it cable carriage  xand specific channel position rights; simply provide the system operator with an expanded list of  X"- x-mustcarry signals from which to choose, i.e., when it has used up its channel capacity mandated"",N(N(ZZ"  xfor broadcast signals carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority.  X-  MARKET FACTS AND PETITIONER'S ARGUMENTS ă   x8. With the exception of Gogebic County, WLUCTV has been recognized as  Xv- x\significantly viewed in each of the other five designated Counties.`Xv}; yO- xԍ For either a full or a partial network station to be recognized as significantly viewed in a community or in  xZa county, it must achieve in noncable homes a share of viewing hours of at least 3% (total week hours) and a net weekly circulation of at least 25%. 47 CFR 76.5(i).` All six of the specified  X_- xkCounties border the Marquette, Michigan ADI;_}; yO - xԍ The counties presently assigned to this ADI, aside from Marquette County, are as follow: Alger, Baraga, Florence, Houghton, Iron, and Ontonagon. Gogebic is on its far western border, while  xDickinson, Menominee, and Delta are on its southern border, and Schoolcraft and Luce Counties  xare on its eastern border. In fact, Dickinson, Delta, and Menominee Counties all border  xMarquette County itself. Luce County is located outside Station WLUCTV's Grade B contour,  xbut the Grade B covers portions of Schoolcraft and Gogebic Counties, as well as all of Dickinson  xjCounty, and all of the specified communities, except for Garden, in Delta County, in addition to  xall of the designated communities in Menominee County, except for the community of  xMenominee itself. The communities in Luce County are currently assigned to the Traverse City xCadillac, Michigan ADI, while those in Gogebic County are presently assigned to the Duluth,  xMinnesotaSuperior, Wisconsin ADI, and the communities in the Counties of Dickinson,  xiMenominee, Delta, and Schoolcraft are currently assigned to the Green BayAppleton, Wisconsin ADI.   ?x9. In support of its petition, WLUCTV notes that it is the only nonsatellite commercial  xZtelevision broadcast station licensed to a community located on Michigan's Upper Peninsula, and  xxthat all the cable systems serving the designated communities in the six specified Counties (which  xare also all located on Michigan's Upper Peninsula), have carried WLUCTV since they  xcommenced operations. Failure to grant this petition, therefore, could result in significant  x.subscriber disruption, according to WLUCTV. WLUCTV adds that many of the residents of  xthe communities in the six designated Counties share a common Scandinavian heritage, and each  xyof the Counties borders the Marquette ADI, even though most of the Counties are assigned to  xADI's in other States. For example, although Luce County is now assigned to the Traverse City xyCadillac, Michigan ADI, Traverse City is about 150 miles from Luce County. Similarly, Gogebic  xCounty is the only Michigan County presently assigned to the Duluth, MinnesotaSuperior,  xWisconsin ADI, even though Gogebic County is located about 90 miles from Duluth and  xSuperior. Delta, Dickinson, Menominee, and Schoolcraft Counties are about 50 miles from the  xKMichigan border, although they are all currently assigned to the Green BayAppleton, Wisconsin ADI. "@,N(N(ZZ"Ԍ  x10. Insofar as Dickinson County is concerned, WLUCTV again states that its signal has  xbeen carried by all the local cable systems since their inception, and that WLUCTV's Grade B  xor better contour covers all the designated communities in the County, where the station also  x-maintains a fulltime news and sales staff. In addition, WLUCTV adds that it has broadcast over  xkninety public service announcements and special promotions of benefit to Upper Peninsula  xresidents, in addition to 15 news stories about events in Dickinson County between January 3,  Xv- x1992 and September 21, 1992. WLUCTV also cites Nielsen's Michigan County/Coverage Study  Xa- x1992, which it states showed that the station had a 30% station share for primetime viewing  xMonday through Sunday, whereas the stations in the Green BayAppleton ADI attracted only 14%  x\of prime time households. Between 6:00 pm and 7:00 pm, WLUCTV received a 44% station  x]share in Dickinson, and it had a 36% station share there between 11:00 pm and 12:00 pm.  xZWLUCTV adds that no other station in the area focuses significant attention on the communities  xin this area both because they are assigned to ADI's in States other than Michigan, and because  xDickinson combined with Delta, Menominee, and Schoolcraft have only onetenth of the 385,400  X -households in their current ADI of Green BayAppleton.H }; yO;- xԍ Insofar as the third factor is concerned, while WLUCTV has not fully addressed the issue of whether or not  xother stations, including affiliates of other networks and independents, entitled to mandatory carriage by cable  xYsystems in the communities specified already provide news coverage of issues of concern to them, as well as carriage  xZor coverage of sporting or other events of interest there, we do not believe that Congress intended this factor to  xoperate as a bar to a station's ADI claim whenever other stations also could be shown to serve the communities at  xissue. Rather, we believe that this criterion was intended to enhance a station's claim where it could be shown that  xxother stations do not serve the communities at issue. Under such circumstances, a denial of carriage rights to the  xclaiming station could deprive cable viewers of any broadcast signals that might provide programming geared to their  {xAcommunities. H   lx11. With respect to Delta County, WLUCTV repeats that the cable systems serving the  xispecified communities have all carried its signal since their inception, adding that the station aired  x.20 items about events in the County between January 6, 1992 and October 5, 1992. WLUCTV  xnotes that it has a fulltime news and sales office in the County, where it is the only station with  X8- xKthe capacity to broadcast live via microwave. WLUCTV also notes that, according to the above  xNielsen study, its primetime viewing share was 32%. According to WLUCTV, no other station  xhad a higher share, while stations presently assigned to the Green BayAppleton ADI (to which  xDelta is currently assigned) received only a 14% of household viewing. In addition, between  x6:00 pm and 7:00 pm, during WLUCTV's news programs, WLUCTV had a 44% viewing share  xin Delta County. According to WLUCTV, the signals of the Green Bay network affiliates do  x/not even reach Delta, Dickinson, or Schoolcraft Counties, unlike WLUCTV which places a  xGrade B contour over all of the specified communities in Delta County, except for Garden, as  xwell as all of Dickinson County, and part of Schoolcraft County. WLUCTV also notes that the  xother stations seldom cover issues of local concern or carry sports or other events of interest to  xcommunities in this County for the same reasons as those already noted in Dickinson. However,  x[WLUCTV claims that one reason for its high ratings in the County is that it has a long history  xof covering accidents, emergencies, weather, sports, news, and other events of local interest,"&` ,N(N(ZZ>"  xincluding oil spills, school closings, county festivals, issues such as forest regrowth, the plight  xof local farmers, and landfill protests, as well as weekly carriage of the country's only Finnish  xlanguage television program, "Finland Calling," which the station states is of particular interest  xKto the large Finnish population in the designated communities. WLUCTV adds that it is the only  xlocal television station that provides national charity fund raising services to local residents,  x<including drives for Easter Seals, Muscular Dystrophy, and the Salvation Army. The station also  xnotes that it provides valuable advertising opportunities to local business owners who would lose  xzan effective means of communicating with potential customers should WLUCTV be denied  xmandatory carriage rights on cable systems serving the specified communities, and that any potential customers would also be deprived of relevant information.   x12. With regard to Menominee County, WLUCTV again states that the cable systems  x=serving the specified communities all have retransmitted its signal ever since they commenced  xoperations. In addition, with the exception of the community of Menominee, WLUCTV's Grade  xB contour covers all of the other specified communities in the County. WLUCTV also notes  xMthat it aired ten news stories relating to events in the County between January 26, 1992 and  xSeptember 30, 1992. Moreover, according to the above Nielsen report, WLUCTV received a  x15% share during its 11:00 pm news broadcast, and a 24% share during its 6:00 pm newscast.  x{Once again, WLUCTV states that for the reasons already given for Dickinson and Delta  xCounties, the stations currently entitled to mandatory carriage on the cable systems serving the  xdesignated communities in Menominee County infrequently provide coverage of sports or of other special issues of interest to this area.   x13. Similarly, the cable systems serving all the designated communities in Schoolcraft  xCounty have carried WLUCTV ever since they began operations, according to the station. The  xstation also states that it broadcast seventeen stories about events in the County between January  x7, 1992 and September 16, 1992. According to the above Nielsen study, WLUCTV received  xa 21% audience share during primetime in the County, which was second only to that of a Green  xBay satellite station in Escanaba, which had a 27.7% share during primetime. Like Dickinson,  xDelta, and Menominee Counties, WLUCTV states that the other stations entitled to mandatory  xcarriage by systems in Schoolcraft cover news of local concern or sporting or the events of local interest very infrequently.  txd   nx14. In Luce County, WLUCTV again states that the cable systems serving all the  xdesignated communities in the County carried it ever since their inception. WLUCTV adds that  xit aired eight stories about events in the County between February 9, 1992 and September 16,  xz1992. Moreover, according to the above Nielsen report, WLUCTV had a 30% station share  x/during its 6:00 pm newscast in the County, and it received a 22% share during the 11:00 pm  xnews. WLUCTV states that no other station came even close to these ratings, including those  xin the Traverse CityCadillac, Michigan ADI, to which Luce County is currently assigned. In  x=fact, WLUCTV states that residents in communities in Luce County do not even receive ABC  x[network programs from stations in that ADI, which is located about 150 miles away, and which  xis accessible only by means of one bridge. Unlike WLUCTV, which has a total of 56,000  x.households in its entire ADI, there are 182,2000 total households in the Traverse CityCadillac"#',N(N(ZZ%"  xADI (of which only 2,000 are in Luce), and the stations operating in that ADI have little  xiincentive to cover news, sports, or other events of particular interest to the specified communities in Luce County.   0x15. Insofar as Gogebic County is concerned, WLUCTV repeats that it has been carried  xZby the cable systems serving all the designated communities in the County ever since they began  xoperations. WLUCTV adds that it broadcast seven items about events in the County between  xJanuary 10, 1992 and June 19, 1992. Even though the station is unavailable to County residents  xwithout cable service, WLUCTV received a 31% station share during the early news, which  xexceeded that of the station from Duluth with the second highest rating by a twotoone margin,  xand during the 11:00 pm newscast, WLUCTV received a 40% share, which dominated the  xistation operating in the Duluth ADI, to which Gogebic County is presently assigned, by a fiveto xjone margin. WLUCTV also notes that, although the DuluthSuperior ADI has a total of about  xy168,000 households, only 7,200 of them are in Michigan, and that since all the other counties in  xxthis ADI are either in Minnesota or in Wisconsin, the stations operating there have little incentive  xto provide news coverage or carriage of sports or other events of special interest to residents in  >xthe designated communities in Gogebic County.  txd  Xb-  PARTIES' RESPONSES ă   x16. In its comments, Grove states that the only offair service available in Seney, which  X- xis in Schoolcraft County, prior to construction of the cable system, was Station WJMNTV (CBS, Channel 3), Escanaba, Michigan. Grove adds that it was able to pick up  xWLUCTV with a signal level of 18 db by constructing a sixty foot tower on a small hill, but  xthat in many weather conditions this signal level reduces to a noise level with no visible picture.  xTherefore, Grove pays $.15 for each of its 47 subscribers to add Station WXYZTV (ABC, Channel 7), Detroit, Michigan, by means of the Anik I satellite. Grove adds that it  xwill not deny WLUCTV carriage unless it has to chose between it and WXYZTV, but that it  xis not convinced that WLUCTV fulfills the four factors enumerated by Congress for modifying an ADI.   x17. In its opposition, Bresnan argues that this petition should be summarily denied, since  xit would only be appropriate in the context of mandatory carriage, whereas WLUCTV has  xalready elected retransmission consent on all of Bresnan's relevant systems. Bresnan adds that  xit cannot get a good signal from WLUCTV in Gogebic County, which it states is outside the  xLstation's Grade B contour, so the system must utilize microwave retransmission at its headend,  xLwhich is located about 130 miles from Marquette. Bresnan adds that its system at Manistique,  xin Schoolcraft County, which is about seventy miles from Marquette, also requires microwave  xis to pick up WLUCTV. Bresnan also notes that, although it does not operate a system in Luce  x-County, Newberry is located approximately ninetytwo miles from Marquette, and that since each  x-of the remaining Counties of Delta, Dickinson, and Menominee are located between fiftyfive and  xMsixty miles from Marquette, none of them can actually be considered "local" for WLUCTV.  xzAccording to Bresnan, WLUCTV has also failed to demonstrate a sufficient commitment to  xlocalism in its programming, since the programs listed are identified only by title and fail to"#',N(N(ZZ%"  xfurther specify either their substance or their running time. In addition, WLUCTV has not listed  xiits programs on a communityspecific basis, and in many instances, Bresnan states, there are only  xone or two items per month for an entire County. For example, in Gogebic County, apparently  xseveral months passed without any local news stories at all, according to Bresnan, which adds that  xLit also provides independent coverage of matters of local interest, and that its systems usually  xcarry stations from other ADI's as well. Bresnan notes that all the communities served by its  xsystems in Dickinson, Delta, Gogebic, Menominee, and Schoolcraft Counties receive signals off xair from stations which are not located so far away that they fail to provide any significant  xcoverage of local community events, contrary to WLUCTV's assertions. For example, Bresnan  xstates that Gogebic County is largely encompassed by the Grade B contours of Stations WJFW xLTV (NBC, Channel 12), Rhinelander, Wisconsin, and WLEFTV (Educ., Channel 36), Park Falls,  xWisconsin, which are carried by the systems in the County,along with WDIOTV, KDLHTV,  x and KBJRTV. Station WJMNTV (CBS, Channel 3), Escanaba, Michigan places a Grade B  xcontour over the Counties in the Green BayAppleton, Wisconsin ADI, where Bresnan operates  x-cable systems, and it is generally carried by these systems, along with WLUKTV (NBC, Channel  Ux11), Green Bay, Wisconsin.   mx18. In their joint partial opposition, Stations KBJRTV, KDLHTV, and WDIOTV ask  xthe Commission to deny WLUCTV's petition insofar as it seeks inclusion of certain specified  xcommunities in Gogebic County in its Marquette, Michigan ADI. In support of this request,  xthese three stations claim that the communities in this County are not adjacent to the Marquette,  x{Michigan ADI, but are separated from it by the Counties of Iron, Baraga, Houghton, and  X- xOntonagon.H}; {O-ԍ See, n. 17, supra.H They also state that WLUCTV's Grade B contour does not cover any portion of  xGogebic County, and that Marquette, WLUCTV's city of license, is located 78 miles from  x Gogebic's eastern border and 132 miles from its western border, where the County's largest  X- xcommunity, with almost half its population, is located. The stations also cite Nielsen's Michigan  X- xCounty/Coverage Study1993, Summary for Gogebic County, according to which KBJRTV had  xya total household audience share of 22%, and a 20% share in cable households, and WDIOTV  x-received a total household audience share of 12% and a 13% share of cable households, whereas  xWLUCTV had a total household audience share in the County of only 4% and a 5% share of  xcable households MondaySaturday during primetime. The stations add that WLUCTV's share  x[of total cable and noncable households MondayFriday from 9:00 am to 4:00 pm was 3%, while  xWDIOTV had a 15% share of total households in this time period, and a 17% share of cable  x/households, and KDLHTV had a 13% share of total households, and a 12% share of cable  xhouseholds, and KBJRTV had a 9% share of total households, and a 10% share of cable  xhouseholds. In addition, the three stations note that the weekly circulation of each of them was  xmore than double that of WLUCTV during prime time hours, and that the circulation of each  xjof the three stations during daytime hours exceeded that of WLUCTV by more than onethird.  xThe three stations imply that at least part of the reason for this viewing pattern is their frequent  xycoverage of local news events in Gogebic County and its communities, including daily weather  xjforecasts for Ironwood by KBJRTV, which also covered the establishment of a Northland Gay"l$ Z,N(N(ZZF#"  xMen's Center there, the shooting of a motorcyclist in Bessemer, and plans to close K. I. Sawyer  xAir Force Base. The latter story was also featured by KDLHTV, which together with WDIO xTV, also provides daily coverage of local news events in Gogebic County, and in its  x[communities, as well as news of crime and copper mining in the area and broadcasts of hockey  xgames by WCHA teams in Upper Michigan. By comparison, the three stations note that WLUC xTV cited only seven news events in Gogebic County that it had aired, and they note that,  x.although Arbitron is considering adding Dickinson and Delta to the Marquette ADI in 1993, it  xis not considering adding Gogebic to it. Station KBJRTV adds that denial of WLUCTV's  xpetition as to Gogebic County will not deprive businesses in the communities there of their only  xopportunity to advertise on local television, since many of the business already advertise on  xKBJRTV, including McDonald's, Kentucky Fried Chicken, Subway, and the local Pontiac dealer.  xKBJRTV also notes that its "Operation Rudolph" throughout Gogebic County collected $7,000  xxduring the last four years in toys and cash donations for needy families in Gogebic County during  \xthe Christmas season.   x19. In its opposition, WBAYTV submits a letter dated July 9, 1993 from Nielsen Media  xResearch stating that it would assign Delta County to the Green BayAppleton, Wisconsin ADI,  x>premised upon its 19931994 county assignment review, Station WBAYTV claims that this  xdemonstrates that Arbitron continues to consider the County to be part of the Green BayAppleton  xADI until then. In addition, WBAYTV contends that WLUCTV's petition does not comply  xwith 1.49(b) and (c) of the Commission's Rules since it lacks a summary and a table of  xcontents, even though it is in excess of ten pages. Station WBAYTV adds that WLUCTV's  xpetition fails to focus on each community at issue, as required by the Commission, and is,  xinstead, a hodgepodge of speculation, generalization, and omission, which is supported only by  xa conclusory affidavit from the station's General Manager, who fails to state whether or not it  xis based on actual knowledge of the facts, as required by 76.7(c)(1) of the Commission's Rules.  xStation WBAYTV also contends that WLUCTV's petition is filled with conclusory allegations  xand factual errors, including the assumptions concerning the cultural and geographic ties between  x<the communities WLUCTV wishes to add to its ADI and the rest of Upper Michigan. According  xto WBAYTV, WLUCTV has not even attempted to show that similar ties do not exist between  xthese same communities and other counties in the Duluth, MinnesotaSuperior, Wisconsin ADI  xor in the Green BayAppleton, Wisconsin ADI. Insofar as local cable systems' historical carriage  x.of WLUCTV is concerned, WBAYTV notes that it has not been specified whether or not the  xlist of cable systems in petitioner's Exhibit 1 is a complete list of cable systems operating in the  xsix specified Counties; that no rate cards were produced; and that no explanation has been given  xconcerning why the cable operator's survey for Iron Mountain did not indicate carriage of  xWLUCTV. In addition, WBAYTV questions the selection of viewing data, citing para. 47 of  X!- xthe Commission's Report and Order in MM Docket 92259, 8 FCC Rcd 2965, 2976 (1993),  xwhich contemplates submission of the data itself, rather than of portions of the data, which may  xmerely be the product of cherry picking, and which expressly mandates analysis of "viewing on  xya community basis," whereas the data submitted by WLUCTV is solely countywide. WBAY xTV adds that the data submitted also fails to disclose whether it is for cable homes, for noncable  xhomes, or for both, and it questions why WLUCTV submitted no data for 1993. Specifically,  xjin the case of Menominee County, WBAYTV contends that the key community is the town of"%' ,N(N(ZZ%"  xMenominee, and that its cable system with 7,800 subscribers (including those in the nearby towns  xLof Peshtigo and Marinette, Wisconsin), are within WBAYTV's Grade B contour, but that they  xare outside WLUCTV's Grade B contour. In addition, these communities, according to WBAY xTV, are also located fifty miles closer to WBAYTV's city of license, Green Bay, than they are  xto Marquette, the city of license for WLUCTV. Finally, although petitioner submitted no  x.viewing data either for the County or for the communities, the data submitted by WBAYTV it  xstates demonstrates that it and the other stations in the Green BayAppleton, Wisconsin ADI have  xfar greater audience shares than does WLUCTV, which has failed to demonstrate either that the  xtown of Menominee or the County of Menominee should be added to the Marquette, Michigan  xzADI, or, in fact, that any of the other designated communities or Counties ought to be.  X -   PETITIONER'S REPLY ă   x20. In its consolidated reply to these pleadings, WLUCTV notes that none of the parties  xfiling made any showing of a legal interest with respect to the outcome of the petition insofar as  xthe communities in Luce County are concerned. Station WLUCTV contends that the oppositions  xymerely serve to emphasize the level of localism provided by WLUCTV's coverage of news and  xiof events in the above Counties and communities, and the subscriber disruption that would occur  xshould local cable systems be permitted to delete its signal. Except for the partial opposition  xinvolving Gogebic County, none of the oppositions have submitted any evidence, according to  xWLUCTV, that alternative sources exist for coverage of local news and events for residents of  x{the designated communities in the above Counties. Station WLUCTV contends that its  xopponents are merely selfserving broadcasters who wish to restrict competition and a cable  xoperator with whom the station has been conducting retransmission consent negotiations. Station  xWLUCTV adds that WBAYTV will have rights to mandatory carriage on many of the systems  x-serving communities in Dickinson, Delta, Menominee, and Schoolcraft Counties. Station WLUC x[TV also offers to submit a table of contents and a summary of its pleadings, should it be asked  xto do so by Commission staff, but it claims that it was previously informed by Commission staff  x<in a similar proceeding that a summary and a table of contents were not necessary, because these  x<proceedings were not as paper sensitive or as time sensitive as were the type of proceedings that  xyhad originally engendered the requirement. WLUCTV repeats that the cable systems in all the  xdesignated communities have carried it since they began operations, as demonstrated by Nielsen's  xCable Operators' Survey; since the precise dates were not known, however, WLUCTV's Vice  xPresident and General Manager stated that each system carried the station upon start up ". . . to  xjthe best of our knowledge." With respect to WLUCTV's carriage by the systems serving Iron  xMountain, the station notes that both Northside TV Cable ("Northside") and Bresnan serve the  xcommunity, and that both say that they carried the signal there, even though Northside mistakenly  x>omitted the signal from its station listing. Station WLUCTV confirms that as of September  x1993, Arbitron intends to assign both Dickinson and Delta to the Marquette ADI, and it submits  xcopies of the appropriate pages of Nielsen's data both for 1992 and for 1993, stating that the  x/latter was unavailable when it initially drafted its petition and noting that it had not initially  xsubmitted actual copies of Nielsen's data, because of its sensitivity to Nielsen's copyright.  xAccording to WLUCTV, since the designated communities comprise all the populated areas in  x[the above Counties, submission of Countywide data, as opposed to communityspecific data,"#' ,N(N(ZZ%"  xhowever, is appropriate. In addition, WLUCTV notes that its weekly, hourlong Finnish  xylanguage program, "Finland Calling," averaged 6,300 viewers in 5,800 households each week in  x{May 1993, and that it has broadcast the program since March 1962, following a study by  xNorthern Michigan University indicating that 27% of Upper Peninsula residents were either first  xor second generation Finnish Americans. WLUCTV states that this population has essentially  xremained unchanged during the past thirty years, and that the program still attracts viewers from  xLuce, Gogebic, Schoolcraft, Menominee, Delta, and Dickinson Counties. Insofar as Menominee  xZCounty is concerned, WLUCTV adds that, contrary to WBAYTV's assertions, it had substantial  xyviewing shares in the County in 1993, where, according to Nielsen's study, the station received  xza 30% share in the County during its 5:00 pm news program, a 16% share during the 6:00 pm news program, and a 7% share during the 11:00 pm news program.   x21. With respect to Bresnan's opposition, WLUCTV contends that, since the designated  xjcommunities have not been within the station's ADI, it was unable to elect mandatory carriage,  xLand it therefore has attempted to negotiate retransmission consent with the system. However,  xWLUCTV contends that this does not preclude it from filing for an ADI waiver, which would  xafford it a right to mandatory signal carriage in the future. Station WLUCTV again notes that  xit broadcasts three daily news programs, together with four daily news cutins covering news  xfrom Michigan, as well as from the Upper Peninsula, and events from the specified Counties, and  xthat it also airs hourly weather updates, local sports coverage, and public affairs programs  xaddressing the interests of Upper Michigan sports enthusiasts, as well as Finnish Americans.  xWhile the designated communities are too small to generate daily news stories, WLUCTV notes  xthat it does interrupt regular programming to inform viewers of local weather emergencies or  xLbreaking news, such as the closing of a local military base, and although Bresnan's opposition  xclaims that residents of these communities enjoy significant coverage from other overtheair  xLsignals, it failed to even give one specific example of a local story carried by another station or  xcable operator in these communities. In fact, of the three other stations that place a Grade B  xysignal over any of these communities WLUCTV notes that one is noncommercial, and that the  xcommercial station in Escanaba, Michigan has no permanent news staff and merely functions as  xa satellite of a station at Green Bay, Michigan. According to WLUCTV, Bresnan also lacks any  xknown local news or program staff, and therefore it is unable to give any examples to support  /xOits claim of "independent coverage of matters of local interest."   Nx22. Insofar as the joint partial opposition relating only to Gogebic County is concerned,  xWLUCTV notes that while the stations that filed it claimed that they provided daily coverage  x<of the communities in this County, they only cited three specific items during an unspecified past  xperiod of time. By comparison, WLUCTV states that its petition listed only a representative  xKsample of the 71 stories concerning events in Gogebic County, including 40 relating to three trials  xin the County, that it broadcast during a ten month period between January 10, 1992 and July 19,  x1992. Station WLUCTV adds that, while its Grade B contour does not reach the County, neither  xdoes the Grade B contour of any of its three opponents, and WLUCTV maintains that it still  x-provides these remote communities with significant local coverage and news that addresses their  xneeds and concerns and of which they ought not to be deprived. The new 1993 Nielsen County  xviewing data reflects this, according to WLUCTV, and although it gives WLUCTV's opponents"#' ,N(N(ZZ%"  xhigher shares of viewing during daytime and primetime, it gives WLUCTV a 22% share during  xthe 6:00 pm news and a 34% share during its 11:00 pm news, which is sixteen points higher than  Lxthe second place station, KBJRTV.  X- ANALYSIS AND DECISION ă   x23. We shall partially grant WLUCTV's petition, but only with respect to the designated  xcommunities in the Counties currently assigned to the Green BayAppleton, Wisconsin ADI:  XH- xDickinson, Delta, Menominee, and Schoolcraft.NXH}; yO - xhԍ At the same time, we note that Arbitron added both Dickinson and Delta Counties to the Marquette, Michigan  x;ADI in 1994, and that in 1995, Nielsen added Schoolcraft County to its comparable concept, the designated market area (or "DMA") for Marquette, Michigan.N Insofar as the communities in Dickinson  xCounty are concerned, the Nielsen Cable Operators' Survey submitted by WLUCTV as "Exhibit  xk1" to its petition is sufficient to demonstrate its historic carriage by the systems serving the  xspecified communities (factor one). Moreover, all of the specified communities in the County  xMare within WLUCTV's Grade B or better contour, and the County actually forms part of the  xsouthern border of Marquette County. In addition, WLUCTV broadcast fifteen news stories  xyabout events in the County between January 3, 1992 and September 21, 1992, and the station is  xalso recognized as significantly viewed in the County, where it maintains a fulltime news and  X- xZsales staff (factor two). According to Nielsen's Michigan County/Coverage Study 1995, WLUC X{- xTV also had a substantial 20% share of total audience in the County.x{}; yO- xJԍ During the same time period, WBAYTV, the ABC affiliate operating in the Green BayAppleton ADI, where  xDickinson County is presently assigned, only had a 1% total audience share SundaySaturday in the County,  xYaccording to the same Nielsen study. Although Dickinson County is located completely outside its Grade B contour,  xWBAYTV is recognized as significantly viewed there. Moreover, Station WGBA (Fox, Channel 26), Green Bay,  xWisconsin, received a 5% total audience share SundaySaturday in the County, during the same time period, and the  xKlocal NBC station, WLUKTV, had a 7% total audience share SundaySaturday, while WFRVTV (CBS, Channel  yO-5), Green Bay, Wisconsin, received a 1% total audience share, according to the same study. ė Nielsen's 1995 study also  xxconsiders Dickinson County to be in the same DMA as the counties which currently comprise the  xMarquette ADI in which WLUCTV is located. As indicated previously, since other stations  x<entitled to mandatory carriage may be shown to serve the designated communities in the County,  x the third factor does not appear to be applicable in this instance. However, the other three  xfactors, even without any additional enhancement under the third factor, are sufficient to  xdemonstrate that the specified communities in Dickinson County should be added to the Marquette, Michigan ADI for mandatory carriage purposes, as requested by WLUCTV.   x24. With respect to the specified communities in Delta County, the signal carriage survey  xsubmitted by WLUCTV is again sufficient to establish its carriage by the cable systems serving  xthe communities listed (factor one). Moreover, all the communities specified, except for Garden,  xare within WLUCTV's Grade B contour, and Delta County forms part of the southern border of Marquette County. Station WLUCTV also maintains a fulltime  xjnews and sales staff in Delta County, where it is recognized as significantly viewed, and where  xit broadcast twenty items about local events between January 6, 1992 and October 5, 1992 (factor"" ( ,N(N(ZZ\"  xtwo). Between 7:00 am and 1:00 am SundaySaturday, WLUCTV also had a substantial total  X- xaudience share of 23%. }; yOb- xԍ According to the same Nielsen study, by comparison, the ABC affiliate in the Green BayAppleton ADI,  xwhere Delta County is presently assigned, WBAYTV, had no reported viewing in the County, which is located  xitotally outside the station's Grade B contour, although WBAYTV is recognized as significantly viewed there. In  xxaddition, the local Fox station, WGBA, also had no reported viewing in the County, according to the same study,  xand the local NBC affiliate, WLUK, received a 8% total audience share SundaySaturday during the same time  yOJ-period, while the local CBS affiliate, WFRVTV, had a 5% share of total audience.  Additionally, Nielsen's 1995 study considers Delta County to be in the  x[same DMA as the counties which comprise the Marquette ADI in which WLUCTV is located.  x=WLUCTV also broadcast fifteen news stories about events in the County between January 3,  x1992 and September 21, 1992. Because other stations entitled to mandatory carriage on cable  xsystems in the County do appear to serve the designated communities, the third factor is not  xapplicable herein, as we explained previously. Even absent enhancement under the third factor,  xhowever, the other three factors, taken together, are sufficient to demonstrate that the specified  xLcommunities in Delta County should be added to the Marquette, Michigan ADI for mandatory  xLcarriage purposes, as requested by WLUCTV. In making this finding we also include Garden  xMas well in view of the station's large audience share, the County's inclusion in the DMA, its  @xhistoric carriage, and the rural nature of the area.  X -      x25. With regard to the designated communities in Menominee County, the signal carriage  xsurvey submitted by WLUCTV is again sufficient to demonstrate its historic carriage by the  xcable systems serving these communities (factor one). In addition, WLUCTV broadcast ten  xitems concerning events in Menominee County between January 26, 1992 and September 30,  xL1992. Moreover, WLUCTV's Grade B contour also covers all the specified communities in the  x!County, except for the community of Menominee itself, and the station is recognized as  xysignificantly viewed in the County (factor two). According to Nielsen's 1995 study, WLUCTV  X4- xalso had a 10% share of total viewing.dx4@}; yO%- xhԍ Station WBAYTV, the ABC affiliate in the Green BayAppleton ADI, where Menominee County is currently  xJassigned, is recognized as significantly viewed in the County, and its Grade B contour covers that part of the County  xwhere the community of Menominee is located; during the same time period, WBAYTV received a 16% total  xiaudience share SundaySaturday, according to the same Nielsen study. The local Fox affiliate, WGBA, received a  x4% total audience share SundaySaturday during the same time period, while the local NBC station, WLUK, had  xa 17% total audience share SundaySaturday, and the local CBS station, WFRVTV, received a 19% total audience  yO-share, according to the same study. d While we note that other local stations also have  xsubstantial audience shares in the County, we believe that waiver is nevertheless warranted in this  xinstance, because in addition to meeting factors one and two, Menominee County, in which the  xcommunities are located, borders on Marquette County, in which WLUCTV operates.  xFurthermore, because there are a limited number of other stations which serve the designated  xcommunities, we cannot grant WLUCTV full enhancement based on factor three. However, we  xfind that due to the limited number of other stations serving the communities, we will take this  xfactor into consideration in granting the requested waiver for Menominee County. With regard  xto Menominee itself, even absent Grade B coverage in this instance, we believe that based upon the totality of circumstances above that a waiver is warranted for this community."e ,N(N(ZZ"Ԍ   >x26. Insofar as the designated communities in Schoolcraft County are concerned, the signal  xcarriage survey submitted by WLUCTV is sufficient to demonstrate its historic carriage by the  xxcable systems serving them (factor one). Although most of the County is located outside WLUC xTV's Grade B contour, it has demonstrated some local service and coverage of seventeen stories  xabout events in the County between January 7, 1992 and September 16, 1992, and it is recognized  xas significantly viewed there (factor two). According to Nielsen's 1995 study, WLUCTV had  X_- xa 20% total audience share in the County._}; yO- xԍ According to the same Nielsen study, the ABC affiliate in the Green BayAppleton ADI, where Schoolcraft  xxCounty is currently assigned, WBAYTV, had no reported viewing in the County, which is located totally outside  xithe station's Grade B contour, and in which the station is not recognized as significantly viewed. Station WGBA,  xthe local Fox affiliate, also had no reported viewing in the County, according to the same study, and the local CBS  xKstation, WFRVTV, had a 2% total audience share, while the local NBC affiliate, WLUK, received a 6% share of  yO -total audience SundaySaturday, during the same time period.  Additionally, Nielsen's 1995 study considers  xSchoolcraft County to be in the same DMA as the counties which comprise the Marquette ADI  xyin which WLUCTV is located. As we noted previously, since other stations presently entitled  xxto mandatory carriage in the County do appear to serve the specified communities, the third factor  x!is not applicable herein. However, the other three factors, taken as a whole, absent any  xenhancement under the third factor, are sufficient to demonstrate that the specified communities  xin Schoolcraft County should be added to the Marquette, Michigan ADI for mandatory carriage purposes, as requested by WLUCTV.   x27. With respect to the designated communities in Gogebic County, we again find that  xthe signal carriage survey submitted by WLUCTV is sufficient to establish the station's historic  xcarriage by the cable system serving the specified communities (factor one). However, WLUC xNTV's Grade B contour does not encompass any of the specified communities, and unlike  xDickinson, Delta, and Menominee Counties, Gogebic does not border Marquette County, where  xWLUCTV operates, nor is the station recognized as significantly viewed there. In addition,  x-WLUCTV"s broadcast of seven items about events in the County between January 10, 1992 and  xJune 19, 1992 is not sufficient to show a significant pattern of service. In making our finding,  x[we take note of the fact that WLUCTV had a 10% share of total viewing in the County. While  xthis is a substantial share, a review of the audience statistics for Gogebic County reveals that the  X- xcurrent local affiliate stations have appreciably the same shares as that of WLUCTV.lZ@}; yO- xԍ KBJRTV, the local NBC affiliate, captured an 8% share; KDLHTV, the local CBS affiliate, received a 10%  {Oc - xshare; and WDIOTV, the local ABC affiliate, had a 9% share in the County, according to Nielsen's Michigan  {M-!-County/Coverage Study1995. l In view  xLof WLUCTV only meeting the first of the four criteria for waiver (factor one, historic carriage),  xwe cannot find that a modification of its ADI is warranted with respect to the specified communities in Gogebic County.   1x28. Insofar as the designated communities in Luce County are concerned, the signal  xcarriage survey submitted by WLUCTV is again sufficient to demonstrate the station's historic" b ,N(N(ZZ\"  xcarriage by the cable systems serving the communities listed (factor one). However, the County  xis located totally outside WLUCTV's Grade B contour, although the station is recognized as  xisignificantly viewed there, but the fact that the station aired eight items about news in the County  x^between February 9, 1992 and September 16, 1992 is insufficient to satisfy factor two.  x\Additionally, like Gogebic County, Luce County does not border Marquette County, where  x=WLUCTV operates. Moreover, WLUCTV only had a 1% total audience share in the County,  Xv- x-while three of the other local network stations serving the ADI had significantly greater shares.@v}; yO- xԍ During the same time periods, Television Broadcast Station WGTQ (Channel 8), Sault Ste Marie, Michigan,  xsatellite station of the ABC affiliate in the Traverse CityCadillac, Michigan ADI, to which Luce County is presently  xassigned (Television Broadcast Station WGTU (Channel 29), Traverse City, Michigan), achieved a 12% total  xaudience share in the County, SundaySaturday, according to the same Nielsen study, although neither station is  xrecognized as significantly viewed in the County or places a Grade B contour over the County. In addition, Station  xWTOMTV (NBC, Channel 4), Cheboygan, Michigan, had a 16% total audience share there, and Station WWUPTV  x(CBS, Channel 10), Sault Ste Marie, Michigan, received a 25% total audience share in the County, while WGKI (Fox, Channel 33), Cadillac, Michigan, had no reported viewing in the County, according to the same study.  xAbsent any additional enhancement under the third factor, which does not apply in this instance  xsince other stations entitled to mandatory carriage in the County may be shown to serve the  xspecified communities, we find that WLUCTV's showing is not sufficient to demonstrate that the designated communities in Luce County should be added to the Marquette, Michigan ADI.   x29. Therefore, for the purposes of determining mandatory signal carriage obligations, we  xshall consider the communities previously specified by WLUCTV in the Michigan Counties of  xyDickinson, Delta, Menominee, and Schoolcraft to be part of the Marquette, Michigan ADI with  xrespect to carriage of WLUCTV (as well as within the Green BayAppleton, Wisconsin ADI),  xbut we shall still consider the designated communities in Gogebic County, Michigan only as part  xjof the Duluth, MinnesotaSuperior, Wisconsin ADI for purposes of mandatory signal carriage,  xand we shall continue to consider the specified communities in Luce County, Michigan only as part of the Traverse CityCadillac, Michigan ADI for the purposes of mandatory signal carriage.  X-  ORDERING CLAUSESX  XxxX 0 (#   x30. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of  x1934, as amended, (47 U.S.C. 534) and 76.56 and 76.59 of the Commission's Rules (47 CFR  x76.56 and 76.59), That the captioned "Petition For Special Relief," filed June 1, 1993, by  xjFederal Broadcasting Company (CSR3861A) IS GRANTED to the extent indicated above, and  xin all other respects IS DENIED. This change shall be effective in accordance with the following  xschedule: WLUCTV shall notify the cable systems in question in writing of its carriage and  xchannel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty  XN- x(30) days of the release date of this Memorandum Opinion and Order. The affected cable  x/systems shall come into compliance with the applicable rules within sixty (60) days of such notification. " ,N(N(ZZ"Ԍ  x31. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules.  k x  X-x` `  hh@hpp (#(#Xx` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William H. Johnson x` `  hh@Deputy Chief, Cable Services Bureau