WPCd 28BH@ ZRoman3|KRoman (TT)Times New Roman (Bold) (TT)"5@^?(?SO_c(88?g(g(WOOOOOOOOOO((_g_GkOWSWSO[_,;WGc[WWWWOK_O_OSO888WO(OSKSK3KW,,S,WOSOCC;WG_OKG8 8_((((W,E(OWOOOOOOOOOOOwSKSKSKSKSK,,,,,,,,[WWOWOWOWO_W_W_W_W(KOOWSWOWOSKWOSSOOWWOOSKSKSKSKWWSK[K[O[[K[K_W_W,WWW,,,W;WSG,GE[W[WWW((WCWEOC((N((;S(GOOOS(OOOOKOOOOOO(((((((((((((((OOtOg\\GO\d*,KO.wROOn\CfxKxWlRx\]\cdIfIs`Wx\rriwgd((((((((((((((((((((((((((((((((?(?SO_c(88?g(g(WOOOOOOOOOO((_g_GkOWSWSO[_,;WGc[WWWWOK_O_OSO888WO(OSKSK3KW,,S,WOSOCC;WG_OKG8 8_(((((((((((((((((((((((((((((((((((KOOS,SWOOOOOOO,gOO(K;((OOOOOOGOOOOOOOSSSSS,,,,W[WWWWWOW____SSWOOOOOOwKKKKK,,,,OWOOOOOGOWWWWKSXPPS - PS4 Rm. 907_1XPPSPS.WRSSX\  P6G; P2jjz3|X I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNa2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   2#3a7TechnicalTechnical 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:/>/>/>/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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d"""5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd  |"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCdddddd>400000000009>9+@04242079$4+<744440-909020!!!4002-2--42O4020(($4+90-+!!94)0400000000000G2-2-2-2-2-744040404094949494-004240402-40220044002-2-2-2-442-7-7077-7-94944444$42++)7474444(4)0(N$2+00020000-00000000t0>77+0c7<&&209<!!&>>400000000009>9+@04242079$4+<744440-909020!!!4002-2--42O4020(($4+90-+!!9-002240000000>00-$000000+0000000222224744444049999224000000G-----0400000+04444-2y.K8?XpK\  P@QP7PC2X XP\  P6QXP.7UC2XXU4  pQXW!0(Xh0\  P6QhPI-!&X,-\  P@Q,P5PC2X9XP*f9 xQXXy.C8*XpC\  P6QP2YV@=I@}L@O @R"5@^2CTdd+CCd2C28ddddddddddCCdzzzzCYozzdozzooN8NTdCddYdY8dd88Y8ddddNN8dYYYNP7Pl2CC!CCPRCddzdzdzdzdzdYzYzYzYzYC8C8C8C8dddddddddoYzddddoYdzdzdzdzdYYYzYzYzYddddddPdCdCCCdYYo8oRdddzNzRdNdNNF2idNdddddd7>d<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd"5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[\\[^\d*C`^.wRSSn\Cfx`xWlRx\]\cdIfIs`Wx\rriwgd*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSS"5@^*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW*7777CE7S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJxJoJoJoJSSSS]]C]A]A7A]S]o.oEx]x]SxxJxJ]A]AN:*ZS7SSSSSS27}}S2}}S}277SSS77SS7S72t7[\\[_\d*C`_.wRSSn\Cfx`xWlRx\]\cdIfIs`Wx\rriwgd*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW7SSSS7]777SS:S7A7xx*7SSSS%S7}2S_7}SC[227`Z*727S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS[S]]]]S]"5@^dC2CCdECCCCCCC(-((((((((((---#J:55:1-:::1G::-:5-1::K::1&(#(#(#(((>((((((:((#&&+  !((:#:#:#:#:#G55#1#1#1#1#:(:(:(:(:(:(:(:(:(:(:#:(:(:(:(:(-(:(:#:#5#5#5#1#1#1#:(:(::(:(:(:( (((:(11!:(:(:(G:55!--N$(#(((((<<(==(<##(P((NP#Pt,,,,-O,0S .-B9(@OSB((===5E,C1:.:*4':,-,/0#1#7.=*:,@7=72920>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>!((C>(-((((((((((---#J:55:1-:::1G::-:5-1::K::1&(#(#(#(((>((((((:((#&&+>>>(#P((P-G>>>>##(PN:>>:(((((=(-=( ,.$(<<<#::::::G51111:::::::-::::::-(######5#####(((((((,((((((("5@^*7FSS$77Sq*7*.SSSSSSSSSS77qqqSffoxffxx7Jo]oxfxfS]xff]]A.AFS7SSJSJ.SS..J.xSSSSAA.SJoJJAC.CZ*7777CE7SSfSfSfSfSfSooJfJfJfJfJ7.7.7.7.oSxSxSxSxSxSxSxSxS]JfSxSxSxS]JxSfSfSfSfSoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SJoJ].]EoSoSxSofAfESASAN:*WSASSSSSS.4}}S2S}277]]S77SS7]72t7[\\[q\d*C`q.wRSSn\Cfx`xWlRx\]\cdIfIs`Wx\rriwgd*7FSS$77Sq*7*.SSSSSSSSSS77qqqSffoxffxx7Jo]oxfxfS]xff]]A.AFS7SSJSJ.SS..J.xSSSSAA.SJoJJAC.CZ7S]SS7S777]]:S7A7o]*ASSSS.S7.Sq7SC[227`W*724S}}}Sffffffoffff7777xoxxxxxqxxxxx]fSSSSSSSoJJJJJ....SSSSSSS[SSSSSJSy.K8?XpK\  P@QP7PC2X XP\  P6QXP.7UC2XXU4  pQXW!0(Xh0\  P6QhPI-!&X,-\  P@Q,P5PC2X9XP*f9 xQXXy.C8*XpC\  P6QP .y.G8*XNG4  pQa$6,!X6\  P6QP : X \  P6QP{,C8*X9-qC*f9 xQX8xCdXX-Xx{2 PQXPGWP}WP{.UN160809.531 *:G]WPCN 282d yO- X   ( X-x #Xj\  P6G; XP# Federal Communications Commission`(#DA 96831 ă  yxdddy (Պv3  x #C\  P6QpP# x Before the Federal Communications Commission  yO Washington, D.C. 20554 3 x#K\  P@QpP#3ԃ  x X01Í ÍX01Í Í x   X -#Xj\  P6G; XP#In re:x` `  hh@) x` `  hh@)  X-Petition of Time Warner New York@)hhCSR4415A(#  X-City Cable Group hh@) x` `  hh@)  X-For Modification of ADIhh@)  X-Station WTBY, Poughkeepsie, NYhh@)h  XQ -|  MEMORANDUM OPINION AND ORDER TP  X# -X` hp x (#%'0*,.8135@8: x$ yO-ԍ 47 C.F.R. 76.59.>  X - MARKET FACTS AND ARGUMENTS OF THE PARTIES ă  Xy- ` Qx8.` ` In its petition for, Time Warner requests that the Commission delete New York  xCity from the television market of station WTBY, Poughkeepsie, New York. Time Warner  xgenerally asserts that WTBY is not "local" to New York City as its programming is geared to  x-the local needs and interests of the distant Poughkeepsie, NY area. Moreover, the needs of Time  xWarner's subscribers for local news, public affairs and public service programming are being  xfully met by the local broadcast stations and cable access programmers carried on the New York  xyCity systems. Time Warner also notes that it has not carried WTBY because of past copyright  X-and signal quality concerns. $ yO- xhԍ Time Warner notes that WTBY has proposed to deliver its signal by microwave to certain locations, although such arrangements have never been finalized.  X- ` x9.` ` With regard to the historical carriage factor, the operator asserts that WTBY has  x=never been carried on the systems because it has never believed that the station provides any  xylocallyoriented programming of interest to New York City cable subscribers. Time Warner also  Xe- xstates that it has never carried any television station licensed to the same area as WTBY. e` $ yOv%- xԍ Time Warner submits that Cablevision Systems Corporation has also never carried WTBY on its systems serving the Bronx and eastern Brooklyn, the only areas of New York City not served by Time Warner's systems. For  xexample, the systems have never carried WRNN, a station licensed to Kingston, NY, which is"N ,N(N(ZZ"  xdue north of Poughkeepsie. Referring to the third factor, Time Warner states that other stations  xiand cable offerings provide ample local news, sports, and public service programming throughout  X- xeach broadcast day. $ yOK- xԍ The systems carry the following local commercial stations: WCBS (CBS); WNBC (NBC); WABC (ABC);  xWNYW (FOX); WWOR (general); WPIX (general); WXTV (Spanish lang.); WNJU (Spanish lang.); WHSE (Home  xShopping) and WLIG (general). The noncommercial and other stations currently carried are: WNYC; WNET; WLIW; WNJN; and WNYE.  In addition, subscribers can also receive religious cable program services  xysuch as VISN in Northern Manhattan, Faith & Values Channel in Southern Manhattan, and the  x0Prayer Channel in Brooklyn and Queens. Time Warner also mentions that it meets local  xcommunity concerns through its carriage of at least nine public, educational, and government  xyaccess channels. The operator alleges that WTBY has achieved no viewing in the households  x[of New York City and that the station did not have a sufficient audience to be rated in the New  xYork market. Time Warner also argues that the addition of WTBY, or any of the other newly  xKcopyrightfree television stations, would have an adverse impact upon its subscribers as it would  X -have to drop cable programming services to accommodate carriage of the signals. $ yO{-ԍ According to Time Warner, its 550 MHz systems in Manhattan, Queens, and Brooklyn are filled to capacity.  X - ` Px 10.` ` Time Warner's principal argument, however, is that WTBY does not provide local  xservice to the relevant cable communities. The operator claims the station makes no effort to  X - xOserve New York City with programming of local interest to City residents.$ @$ yO- xxԍ Time Warner notes that the lack of interest on the part of New York City viewers is evidenced by the fact  {Ow- xthat TV Guide does not include WTBY in its New York City television station programming guide. The operator  {OA- xasserts that TV Guide recognizes that the programming of WTBY is not of sufficient local interest to be included with that of 20 other broadcast stations in the New York City edition. The local  x=programming the station does provide is oriented more toward Poughkeepsie and the area it is  xlicensed to serve. Moreover, The WTBY daily schedule appears to consist largely of Trinity  xNetwork and syndicated religious programming and does not indicate any regular locally  xproduced newscasts. The operator also notes that WTBY is not physically proximate as  xPoughkeepsie, NY is almost 65 miles away from New York City. Time Warner submits that  xWTBY's Grade B contour does not appear to cover most of the areas served by the New York  xCity systems and the station fails to provide an adequate strength signal at the headend of any of the systems.  X- ` x 11.` ` In opposition, WTBY first asserts that Time Warner has singled out WTBY for  xexclusion from its systems while leaving other stations licensed in the New York ADI with their  xmust carry rights intact. The station notes that Congress specifically warned that the market  xwaiver provisions of the 1992 Cable Act were not intended as a tool for this kind of  xdiscrimination against one or more stations licensed to the market area. WTBY claims  xdiscrimination in this case is "especially grave" because the station provides religious,  xinspirational, family oriented and nonviolent programming throughout the ADI. Even apart from  xxits discriminatory intent, the station asserts that Time Warner's showing is inadequate to "warrant  x=the evisceration of WTBY's must carry status" throughout large portions of its ADI under the" , ,N(N(ZZz"  xcriteria enumerated in the Act and the Commission's rules. WTBY also argues that the operator  xprovides no evidence that the communities it seeks to exclude from the New York ADI are not  x\part of the "economic weft" joining Poughkeepsie with New York City nor did Time Warner  xproduce any evidence showing that advertisers or program time buyers regard WTBY as part of only a portion of the ADI.  Xv- ` ~x 12.` ` With regard to past cable carriage, WTBY argues that the failure to satisfy this  x.factor proves little. The station submits that the historical carriage factor is significant only in  xthose cases where the Commission must consider if an extension of an existing ADI is  x.appropriate. Moreover, WTBY argues that it does not "better effectuate" the purposes of the  x1992 Cable Act for the Commission to consider the fact of a station's past injury in being denied  x-access to viewers in its market as a good justification for the injury to continue into the indefinite  xfuture. As for the third statutory factor, WTBY argues that it is being unfairly singled out for  xdeletion as the operator has not requested the market be modified to exclude the several other  xstations serving the New York ADI. With respect to viewership, WTBY asserts that this factor  xis irrelevant in cases such as this one. The station explains that in a heavily cabled marketplace  xjwhen an independent station is denied cable carriage throughout large parts of the market, it is  xdifficult for a station's viewership to rise to the level of becoming significantly viewed.  xMoreover, having denied WTBY access to a significant portion of its viewers for so many years,  x\Time Warner adds insult to injury by arguing that the station is not popular enough among viewers to whom it has been denied access to justify carriage.  X- ` x 13.` ` To rebut Time Warner's lack of local programming claim, WTBY notes that it  x<provides about 11 1/2 hours per week of local programming responsive to local issues and needs.  x]The station also asserts that the operator cannot seriously argue that the issues of local  ximportance in New York City are intrinsically different from those facing Poughkeepsie and other  xneighboring ADI communities. For example, WTBY airs local programming discussing issues  xKof general importance such as drug abuse, education, and crime. Moreover, several of the guests  xon these programs live and work in Time Warner's cable communities. In addition, WTBY  xmaintains that it broadcasts a significant amount of "high quality" children's programming. The  xstation also asserts that WTBY's lack of Grade B contour coverage is irrelevant because Congress  xelected to define a station's market according to economic units or ADIs and not by technical  xcoverage. Time Warner's geographic distance argument is similarly irrelevant because ADIs, not  xdistance, form the basis for must carry status. With regard to the poor quality signal argument,  xWTBY asserts that this is a nonissue because it offered to provide the station's signal to the cable headends via a microwave link.  X!- ` x 14.` ` In its reply, Time Warner first argues that its petition does not discriminate against  xxWTBY. The operator explains that Congress was concerned about market discrimination between  xjseveral stations licensed in the same community, and because there are no stations licensed to  xPoughkeepsie other than WTBY, there is no discrimination. Moreover, the petition is not  xunfairly targeting WTBY's religious format, rather, it concerns the station's lack of local program  xservice to the New York City cable communities. Time Warner explains that the Commission  xis authorized to modify the ADI markets of stations which do not provide local service to"#',N(N(ZZ%"  xlparticular communities, and nothing in the law provides for an exception or other special treatment for religious stations.  X- ` x15.` ` With regard to the historical carriage factor, the operator asserts that the statute  xexpressly provides that the Commission should take this factor into account in considering both  xadditions and deletions to a television station's market. Time Warner also states that past carriage  xjis important to consider because if carriage of the station's programming would have increased  xthe value of the channel lineup to subscribers through local interest programming, the systems  xwould have previously added it. The operator also reiterates that WTBY does not provide local  xservice to the systems' cable communities. The programming the station cites as support for the  xproposition that it provides local service appears to be produced and aired for Poughkeepsie  xresidents, not for those in New York City. Moreover, while there may be guests on certain  xprograms from the New York City communities, it does not necessarily follow that they  xdiscussed issues of local concern to New York City itself. As for WTBY's arguments regarding  xthe irrelevancy of geographic distance and Grade B contour coverage, the operator asserts that  xthe Commission has recognized both of these factors as pertinent considerations with respect to  xthe second statutory factor. Moreover, WTBY's assertion that it is committed to deliver the  x<requisite signal strength by microwave does not lessen the relevance of Grade B coverage, which  xdemonstrates proximity of a station, and thus the likelihood of local service. Finally, Time  xWarner claims that WTBY does not dispute the showing that it is barely watched in the New  xYork market nor did the station acknowledge the fact that the New York City metro edition of  X-TV Guide excludes WTBY from its lineup.  X-  ANALYSIS AND DECISION ă  X- ` x16.` ` We will grant Time Warner's request.|$ yO<- xԍ We note that the constitutionality of the 1992 Cable Act's must carry provisions and the Commission's  ximplementing rules were initially upheld by the U.S. District Court for the District of Columbia. The U.S. Supreme  x;Court subsequently reviewed the lower court's decision and then vacated and remanded the case to the District Court  {O- xJfor further factfinding. See Turner Broadcasting System, Inc., et al. v. Federal Communications Commission, 819  {O^- xF.Supp. 32 (D.D.C. 1993), vacated and remanded, 114 S.Ct. 2445 (1994), on remand, 910 F.Supp. 734 (D.D.C.  xz1995). However, during the course of this ongoing litigation, no court has stayed the enforcement of the Commission's rules, and therefore Time Warner's challenge to the constitutionality of the rules is inappropriate here. Based on geography and other relevant  xinformation, we believe that the New York City cable communities are sufficiently removed from  xWTBY that they ought not be deemed part of the station's market for mandatory carriage  X~- x= purposes.G~ $ yO;"-ԍ H.R. Rep. 102628, at 9798. G The evidence before us distinguishes these communities from the rest of the New  xYork television market and persuades us that the action requested would better effectuate the purposes of Section 614 of the 1992 Cable Act.  X"- ` x17.` ` New York is the nation's largest television market with approximately 6.7 million  xjtelevision households. Approximately 68% of the households in the market subscribe to cable" ,N(N(ZZ="  X- x>service.q$ {Oy-ԍ See Nielsen February 1996 Cable Television Penetration Estimates.q Geographically, the market encompasses some 29 counties in four states,@Z$ yO - xԍ The following counties are located in the New York ADI: (1) Pike County, PA; (2) Fairfield County, CT; (3)  xOcean County, NJ; (4) Monmouth County, NJ; (5) Middlesex County, NJ; (6) Somerset County, NJ; (7) Union  xxCounty, NJ; (8) Hudson County, NJ; (9) Essex County, NJ; (10) Hunterdon County, NJ; (11) Warren County, NJ  xK(12) Sussex County, NJ; (13) Morris County, NJ; (14) Passaic County, NJ; (15) Bergen County, NJ; (16) Suffolk  x<County, NY; (17) Nassau County, NY; (18) Westchester County, NY; (19) Rockland County, NY; (20) Putnam  xCounty, NY; (21) Dutchess County, NY; (22) Orange County, NY; (23) Ulster County, NY; (24) Sullivan County,  xNY; (25) Queens County, NY; (26) Kings County, NY; (27) Richmond County, NY; (28) New York County, NY; and (29) The Bronx, NY. and is  x[roughly 170 miles long and 150 miles wide, stretching north into Ulster County and the Catskill  xMountains then down the shores of Monmouth and Ocean Counties, New Jersey to the south;  xKPike County, Pennsylvania is at the westernmost edge of the market which then extends eastward  X- xyto include Fairfield County, CT and all of Long Island, NY. b $ yO-  ԍ The AlbanySchenectadyTroy ADI abuts the New York ADI to the north; the HartfordNew Haven ADI abuts   the New York ADI to the east; the Philadelphia ADI abuts the New York ADI to the southwest; the Wilkes Barre  Scranton ADI abuts the New York ADI to the west; and the Binghamton ADI abuts the New York ADI to the northwest. The heart of the ADI is New York  xCity, the largest city in the United States and the community of license for several local  xcommercial television stations. Time Warner's New York City cable systems serve over 1 million  xsubscribers making that system the largest in the country. WTBY, which signed ontheair in  x=1981, is an affiliate of the Trinity Broadcasting Network and broadcasts religious programming  xon channel 54 from a transmitter located on Illinois Mountain in Highland, NY. The station's  X -city of license is Poughkeepsie, NY (Dutchess County) with its studio located in Fishkill, NY. J $ yO-ԍ Highland is 2 miles north of Poughkeepsie and Fishkill is 13 miles south of Poughkeepsie.  X - ` 2x18.` ` As an initial matter, we note that, according to the legislative history of the 1992  xCable Act, the use of ADI market areas is intended "to ensure that television stations be carried  X - x<in the areas which they service and which form their economic market.\ $ yOI-ԍ H.R. Rep. 102628, 102d Cong., 2d Sess. 97 (1992).\ Changes may be sought  xand granted by the Commission "to better effectuate the purposes" of the mandatory carriage  X- xrequirements.?j$ yO -ԍ 47 U.S.C. 534(h).? The ADI market change process incorporated into the Communications Act,  xhowever, is not intended to be a process whereby cable operators may seek relief from the  xmandatory signal carriage obligations apart from the question of whether a change in the market  x>area involved is warranted. When viewed against this backdrop, and considering all of the  xMrelevant factual circumstances in the record, we believe that the operator's deletion petition  x appears to be a legitimate request to redraw ADI boundaries to make them congruous with  x\market realities. Time Warner's actions do not reflect an intention to skirt its signal carriage",N(N(ZZ"  xresponsibilities under the 1992 Cable Act and the Commission's rules nor do they evidence a pattern of discriminatory conduct against the station.  X- ` x19. ` ` Turning to the statutory factors, we note that WTBY has no history of cable  x.carriage on either Time Warner's systems or other cable systems serving the five Boroughs of  x=New York despite being ontheair for over a decade. The evidence also suggests that WTBY  xdoes not provide local service to the communities in question. WTBY's does not place either a  X_- x=Grade A or Grade B contour over the majority of the cable communities._$ yO- x=ԍ We have held that the local service requirement is satisfied if the station's Grade B contour covers the  {O -community. See 8 FCC Rcd at 2981. While we recognize  x\that WTBY's Grade B contour does indeed clip Northern Manhattan, we decline to split the  xKborough into discrete segments for signal carriage purposes in light of the other factors weighing  x[against the station. In addition, we do not believe that WTBY has sufficiently countered Time  xWarner's argument that it carries programming of specific local interest or import for cable  xzviewers in the relevant New York City cable communities. The WTBY schedule information  xprovided indicates programming of potential general interest but without specific ties to any of  xLthe cable communities at issue in this matter. Moreover, WTBY is geographically distant from  x the cable communities with Highland, NY, where the station's transmitter site is located, an  X- x.average of 72 miles away."$ yOc- xZԍ WTBY is 64 miles away from Manhattan, 71 miles away from Queens, 74 miles away from Brooklyn, and 79 miles away from Staten Island. Moreover, according to evidence presented in another New York  Xy- xxmarket deletion case involving WTBY and Cablevision Systems Corporation,yz$ {O-ԍ See Opposition of WTBY in Petition of Cablevision Systems Corporation, CSR3873A (filed May 28, 1993). the station admits  x>that due to elevated terrain between Poughkeepsie and New York City, its signal cannot be  xreceived at an optimum level in the Greater New York City area. Here then, the distance, terrain, and lack of service attenuates any local ties the station could have with the cable communities.  X- ` x20.` ` We also believe that Time Warner's carriage of other local television stations  xMprovides support for the action requested in this particular case. Where a cable operator is  xseeking to delete a station's mandatory carriage rights in certain communities within its ADI, and  x[it is clear that the station is not providing local service to those communities, the issue of local  xcoverage by other stations becomes a factor which we will give greater weight than in cases  xwhere a party is seeking to add communities. In this particular instance, there are several  xtelevision stations licensed to New York City and adjacent communities which have a closer  xnexus, cast a Grade A signal over the cable communities, and provide more focused local  xprogramming than WTBY. These market facts, coupled with the distance between the cable communities and WTBY, supports Time Warner's argument under the third factor.  X - ` ~x21.` ` Time Warner also demonstrates that WTBY has no audience in the counties in  xwhich the cable systems are located. We recognize that religious stations, which were once  xLreferred to as specialty stations, are capable of "offer[ing] desirable diversity of programming ." ,N(N(ZZ"  X- x. . ," yet typically attract limited audiences.$ {Oy-ԍ First Report and Order in Docket 20553, 58 FCC 2d 442, 452 (1976), recon. denied, 60 FCC 2d 661 (1976). Because the station has a specialized format  xcatering to a niche audience, this point is not a proper indicator of the relationship between the  X- xcable communities and the market of the television station. However, the fact that the station  xalso has no historical carriage on the cable systems in question even though it has been on the  xair since 1981 does have evidential significance when linked with other information regarding  xthe market and the geography involved. In this particular circumstance, we cannot discount WTBY's lack of carriage as an indicator of the scope its market area.  XH-   ORDERING CLAUSES ă  X - ` x22.` ` Accordingly, IT IS ORDERED , pursuant to 614(h) of the Communications Act  xof 1934, as amended, 47 U.S.C. 534, and 76.59 of the Commission's Rules, 47 C.F.R. 76.59,  xMthat the "Petition for Special Relief" (CSR4415A) filed November 14, 1994 by Time Warner  X -New York City Cable Group IS GRANTED .  X - ` x23.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  William H. Johnson x` `  Deputy Chief, Cable Services Bureau