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X&-" BACKGROUND ă  X-  O2.xPursuant to 614 of the Communications Act and implementing rules adopted by the  X- xCommission in its Report and Order in MM Docket 9225,I yO"-ԍ8 FCC Rcd 2965, 29762977 (1993).I commercial television broadcast  xzstations are entitled to assert mandatory carriage rights on cable systems located within the  xLstation's market. A station's market for this purpose is its "area of dominant influence" or ADI  X- xas defined by the Arbitron audience research organization.* yO&- xԍSection 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial  {O'-implementation of the mandatory carriage rules are those published in Arbitron's 19911992 Television Market Guide.* An ADI is a geographic market  xdesignation that defines each television market exclusive of others, based on measured viewing" ,))ZZ"  xjpatterns. Essentially, each county in the United States is allocated to a market based on which  X- xhomemarket stations receive a preponderance of total viewing hours in the county. For purposes  X-of this calculation, both overtheair and cable television viewing are included.$R yOK- x-ԍBecause of the topography involved, certain counties are divided into more than one sampling unit. Also, in  xcertain circumstances, a station may have its home county assigned to an ADI even though it receives less than a  {O- xpreponderance of the audience in that county. For a more complete description of how counties are allocated, see  {O-Arbitron's Description of Methodology.  X-  |3.xUnder the Act, however, the Commission is also directed to consider changes in ADI areas. Section 614(h)(1)(C) provides that the Commission may:  Xxwith respect to a particular television broadcast station, include additional  %communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section.  In considering such requests, the Act provides that:  AXxthe Commission shall afford particular attention to the value of localism by taking into account such factors as   ` 7XxX` ` (I) whether the station, or other stations located in the same area,  ` have been historically carried on the cable system or systems within such community;x`  XK-  ` pXxX` ` (II) whether the television station provides coverage or other local service to such community; `  ` p&XxX` ` (III) whether any other television station that is eligible to be carried by  ` pa cable system in such community in fulfillment of the requirements of  ` psthis section provides news coverage of issues of concern to such  ` pcommunity or provides carriage or coverage of sporting and other events of interest to the community; and `  ` 6XxX` ` (IV) evidence of viewing patterns in cable and noncable households  ` within the areas served by the cable system or systems in such  X7-community.7R yO"-ԍCommunications Act of 1934, as amended, 614(h)(1)(C)(ii), 47 U.S.C. 534(h)(l)(C)(ii).x`  X-4.xThe legislative history of this provision indicates that:  #Xxwhere the presumption in favor of ADI carriage would result in cable subscribers" D,N(N(ZZ"  losing access to local stations because they are outside the ADI in which a local  3cable system operates, the FCC may make an adjustment to include or exclude  particular communities from a television station's market consistent with Congress'  objective to ensure that television stations be carried in the areas which they serve and which form their economic market.  T   * * * * *TP  ` pXx` ` [This subsection] establishes certain criteria which the Commission shall  oconsider in acting on requests to modify the geographic area in which stations  ~have signal carriage rights. These factors are not intended to be exclusive, but  may be used to demonstrate that a community is part of a particular station's  X -market.Z R yOe -ԍH.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).Z   X -  M5.xThe Commission provided guidance in its Report and Order in MM Docket 92259, supra, to aid decision making in these matters, as follows:  aXxFor example, the historical carriage of the station could be illustrated by the  Xd- submission of documents listing the cable system's channel lineup (e.g., rate  2cards) for a period of years. To show that the station provides coverage or other  local service to the cable community (factor 2), parties may demonstrate that the  station places at least a Grade B coverage contour over the cable community or  2is located close to the community in terms of mileage. Coverage of news or other  programming of interest to the community could be demonstrated by program logs  or other descriptions of local program offerings. The final factor concerns  X- nviewing patterns in the cable community in cable and noncable homes. Audience  data clearly provide appropriate evidence about this factor. In this regard, we note  }that surveys such as those used to demonstrate significantly viewed status could  be useful. However, since this factor requires us to evaluate viewing on a  ncommunity basis for cable and noncable homes, and significantly viewed surveys  typically measure viewing only in noncable households, such surveys may need  X=-to be supplemented with additional data concerning viewing in cable homes.Q=XR yOF -ԍ8 FCC Rcd at 2977 (emphasis in original).Q  x  X-  6. xAs for deletions of communities from a station's ADI, the legislative history of this provision indicates that:   nXxThe provisions of [this subsection] reflect a recognition that the Commission may   conclude that a community within a station's ADI may be so far removed from the station   !that it cannot be deemed part of the station's market. It is not the Committee's intention"",N(N(ZZ!"   that these provisions be used by cable systems to manipulate their carriage obligations to   avoid compliance with the objectives of this section. Further, this section is not intended   "to permit a cable system to discriminate among several stations licensed to the same   ~community. Unless a cable system can point to particularized evidence that its  X-  |community is not part of one station's market, it should not be permitted to single out   {individual stations serving the same area and request that the cable system's community  Xv-be deleted from the station's television mar ket.^vR yO-ԍH.R. Rep. 102628, 102d Cong., 2d Sess. 9798 (1992). ^(# x  XH-  ?7.xIn adopting rules to implement this provision, the Commission indicated that requested  x-changes should be considered on a communitybycommunity basis rather than on a Countyby X - xCounty basis, and that they should be treated as specific to particular stations rather than  X - xapplicable in common to all stations in the market.A  XR yO -ԍ8 FCC Rcd at 2977 n.139. A The rules further provide, in accordance  xwith the requirements of the 1992 Cable Act, that a station not be deleted from carriage during  X -the pendency of an ADI change request.< R yOn-ԍ47 C.F.R. 76.59.<  X -  X -  MARKET FACTS AND ARGUMENTS OF THE PARTIES ă  Xy-  ^8. xThe communities here in question are located in the northern New Jersey counties of  xBergen, Essex, Morris, and Passaic and are considered to be part of the New York ADI.  xBridgeport, Connecticut, the city of license of WHAITV is also a part of the same ADI and is located approximately 60 miles from the nearest TCI cable community.  X-  9. xIn support of its petition, TCI argues that WHAITV should be excluded from carriage  xon its system because the station fails to meet any of the four market factors set forth in the 1992  xCable Act and the Commission's Rules. First, TCI states that there is no longterm historic  xcarriage of WHAITV on its system. While TCI admits that it has been carrying the station since  x.December 1995 pursuant to its must carry obligations, it maintains that such carriage does not  xLrepresent longterm carriage, particularly since the station has been on the air since September  X|- x28, 1987. |xR {O -ԍTCI cites Northstar Television of Providence, Inc.,11 FCC Rcd 1736 (1996), for support. Second, TCI states that WHAITV has no significant local ratings, is not listed by  xjA.C. Nielsen in any viewership surveys for the counties in which its system is located, nor is it  XN- xlisted in the local edition of TV Guide. Third, TCI avers that WHAITV provides no coverage  xof the cable communities at issue. It states that WHAITV's Grade B contour does not  xencompass any of its communities and the station's city of license is at least 60 miles from the  X - x=nearest cable community. TCI avers that this distance is comparable to similar market deletion"   ,N(N(ZZy"  X- xjrequests granted by the Cable Services Bureau. R {Oy- xԍSee, Comcast Cablevision of Monmouth County, 11 FCC Rcd 6426 (1996) and Greater Philadelphia Cablevision,  {OC-Inc., 10 FCC Rcd 8788 (1995). TCI also points out that WHAITV provides  X- xno local programming geared specifically to its subscribers. It also asserts that most of WHAI xTV's programming appears to be in the form of infomercials. Finally, TCI indicates that each  x of the cable communities already receives extensive coverage of local issues from the local television stations it currently carries.  Xv-( DISCUSSION ă  XH-   10. x Based on the four statutory and other relevant factors, TCI's petition will be granted.  xyAs an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the  xuse of ADI market areas is intended "to ensure that television stations be carried in the areas  X - xwhich they service and which form their economic market."Z  $R yO-ԍH.R. Rep. 102628, 102d Cong., 2d Sess. 97 (1992).Z Changes may be sought and  xgranted by the Commission "to better effectuate the purposes" of the mandatory carriage  X - xrequirements.= R yO:-ԍ47 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. TCI's actions do not reflect an intention to skirt its signal carriage  X4- x[responsibilities under the 1992 Cable Act4DR yO)- xԍAs noted previously, TCI commenced carriage of WHAITV when presented with a mandatory carriage request from the station. and the Commission's rules, nor do they evidence a  x-pattern of discriminatory conduct against the station. Based on the geography and the statutory  x.factors, we believe that the New Jersey communities in question are sufficiently removed from  xWHAITV that they ought not be deemed part of the station's market for mandatory carriage  xZpurposes. The evidence before us, which has not been disputed by WHAITV, distinguishes the  xvarious New Jersey communities from Bridgeport, Connecticut and persuades us that the action  xrequested would "better effectuate the purposes" of 614 of the 1992 Cable Act. We believe  xCongress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly reviewed and rectified.  XN-   11. xWith regard to the historic carriage factor, we do not believe that the station has satisfied  xMthis prong as WHAITV has had only a brief history of carriage on the system and TCI has  xcarried the station under mandate of the 1992 Cable Act. Even if the station's carriage history  xkwas more directly relevant as evidence of the scope of the WHAITV economic market, this" ,N(N(ZZy"  xfactor alone would not outweigh the station's inability to meet the other three criteria. Here, TCI  x=has also shown that WHAITV does not provide local service to the communities in question.  xWHAITV is geographically distant from the subject cable communities which are more than 60  xLmiles away. WHAITV also does not place either a Grade A or Grade B contour over the cable  X- xLcommunities.R yO- xzԍWe 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. We also find no evidence that WHAITV provides local interest programming specifically targeted for cable viewers in the relevant New Jersey communities.  X_-   12. xWe also believe that TCI's carriage of other local television stations provides support for  xthe action requested. Where a cable operator is seeking to delete a station's mandatory carriage  xrights in certain communities, the issue of local coverage by other stations becomes a factor  xwhich we will give greater weight than in cases where a party is seeking to add communities.  xWe believe this case is exemplary in that there are a number of television stations carried by  xTCI's system, including several licensed to communities in New Jersey that have a closer nexus  xto the New Jersey communities and provide more focused local programming than WHAITV.  xThese market facts, coupled with the distance between the cable communities and WHAITV, support TCI's arguments under the third factor.  Xy-   13. xTCI also shows that WHAITV has no audience in the counties in which the cable  x=communities are located. Because WHAITV is a specialized format station, audience data are  xnot determinative, in and of themselves, of the relationship between the cable communities and  xithe market of the television station, nor should their absence permit a cable operator to undermine  xMthe objectives of the mandatory carriage requirement. Here, however, we conclude that the  x\dearth of viewership is of evidentiary significance when tied with the lack of both historical  xcarriage and Grade B coverage. In these circumstances, we cannot discount the absence of viewership as an indicator of the scope of its market area. "",N(N(ZZ"  X-  ORDERING CLAUSES ă  X-  >14.xAccordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934,  xas amended, 47 U.S.C. 534, and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the  X- xpetition for special relief (CSR4820A) filed on behalf of TCI of Northern New Jersey, Inc. IS  Xv-GRANTED.  X1-  15.xThis action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam H. Johnson x` ` hhDeputy Chief, Cable Services Bureau