WPCON 2MB%RK Z3|XTimes New RomanTimes New Roman Bold P6G;P"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN  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 x7a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p 21Tech InitInitialize Technical Style. k I. 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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""-ԍ47 C.F.R. 76.59.<  X-U  MARKET MODIFICATION ARGUMENTS T  X- ` TPx8.` ` In its petition for special relief, TKR requests that the Cable Services Bureau delete  xseveral communities located in Orange County, New York and Hamilton, Mercer, Monmouth,  xMiddlesex, Ocean, Passaic, Somerset and Union Counties, New Jersey, from WHAI's television  X- xMmarket for purposes of the cable television broadcast signal carriage rules.  18 yO-!- xԍTKR notes that the Bureau modified WHAI's market to exclude communities in New York and New Jersey  {O!- xxcounties, some of which TKR also serves, in earlier Memorandum Opinion and Orders. See Comcast Cablevision  xof Monmouth County, DA 96450 (rel. April 4, 1996); Clear Cablevision Inc. and Manchester Cablevision Inc., both  xd/b/a Adelphia Cable Communications, DA 96812 (rel. May 22, 1996); Cablevision Systems Corporation, DA 96 x,828, (rel. May 31, 1996); Continental Cablevision of Western New England, Inc., DA 96827 (rel. May 31, 1996); and Time Warner EntertainmentAdvance/Newhouse Partnership, DA 96830 (rel. May 31, 1996).  TKR generally  x|asserts that WHAI is not "local" to these New York and New Jersey Counties and its  xprogramming is geared to the local needs and interests of the distant Bridgeport, Connecticut area. "|L ,N(N(ZZ"  xMoreover, the needs of TKR's subscribers for local news, public affairs and public service  xprogramming are being fully met by the local broadcast stations and other programming carried  xon the New York and New Jersey systems at issue here. TKR also notes WHAI has never been  xcarried on any of the affected systems and is not generally viewed in either cable or noncable households in the affected areas. x  Xv- ` x9.` ` With regard to the historical carriage factor, the operator asserts that WHAI has  x=never been carried on the systems because it has never believed that the station provides any  x\locallyoriented programming of interest to its New York and New Jersey cable subscribers.  xReferring to the third factor, TKR states that other stations and cable offerings provide ample  X - xlocal news, sports, and public service programming throughout each day.I X 18 yO - xԍThe five affected systems carry a total of 32 local commercial stations, including the following from the New  xYork ADI: WCBS (CBS); WNBC (NBC); WABC (ABC); WNYW (FOX); WNJN; WWOR; WPIX; WNYC; WNET; WXTV; WLIW; WNJU; WHSE; WMBC; WNYE; WRNN; WLIG; WNJM; WTBY.I The operator alleges  xthat WHAI has achieved no measurable viewership in the affected New York and New Jersey  x=counties. TKR also argues that the addition of WHAI would have an adverse impact upon its  xsubscribers as it would have to drop cable programming services to accommodate carriage of its signal.  X- ` x 10.` ` TKR's principal argument, however, is that WHAI does not provide local service  xyto the relevant cable communities. The operator claims the station makes no effort to serve the  xaffected New York and New Jersey counties with programming of local interest. TKR points out  XK- xthat almost all of WHAI's programming consists of home shopping infomercials. K18 yO- xxԍTKR notes that WHAI's programming log reveals that there are no shows appealing to the interests its New Jersey subscribers. The operator  xalso notes that WHAI is not physically proximate as Bridgeport, CT is from 57 to 123 miles  X- xaway from the affected New Jersey cable communities. @18 yO- xwԍThe distances from the affected TKR headend to WHAI's city of licensee, Bridgeport, Connecticut and WHAI's  xtransmitter site, Seymour, Connecticut, respectively, are as follows: Trisystem, 75.96 and 86.76; Hamilton, 102.64  xand 113.89 miles; Long Beach Island, 123.38 and 136.38; Elizabeth, 71.67 and 74.60 miles; and Warwick, 57.16 and 61.37. TKR submits that WHAI's Grade B  xxcontour does not cover the areas served by its New York and New Jersey systems and the station fails to provide an adequate strength signal to the headend of any of the systems. x  X- ` mx 11.` ` In opposition, WHAI first asserts that the statutory must carry scheme contemplates  xxmarketwide carriage, provided that the station takes the necessary steps to deliver a good quality  xsignal. The station believes that TKR ignores this premise as well as Congressional intent to  xnarrowly limit a cable operator's ability to diminish a local broadcast station's must carry market.  xHere, WHAI argues that the only "conceivable circumstance in which deletion of a local station  x-would enhance localism is the rare instance of a capacityconstrained cable system being unable,  xin the absence of a deletion, to carry the signal of another station (e.g., a nearby but outofthe ximarket station) that provides demonstrably more local service." WHAI argues that TKR does not" ( ,N(N(ZZz"  xyclaim that carriage of WHAI would force it to drop a more local but outoftheADI overtheair television signal.  X- ` Px 12.` ` WHAI alternatively argues that it provides local service to the affected New York  xOand New Jersey cable communities and satisfies each prong of the four factor market  x[modification test. WHAI asserts that the historical carriage factor is not controlling because it  xwould prevent weaker stations, like itself, which cable systems had previously declined to carry,  xfrom ever being carried. As for carriage of other local stations, WHAI remarks that this factor  xis analytically important only when a station requests a community to be added to a market, not  x>when a cable operator seeks to delete a community from a market. With regard to its lack of  xviewership, WHAI asserts that ratings have no probative value when a cable operator seeks deletion of a specialty station because such stations typically attract very limited audiences.  X - ` x 13.` ` Turning to local service and coverage, WHAI asserts that TKR's reliance on Grade  xxB coverage is inapt as Congress did not assign television markets, for must carry purposes, based  xon this criterion. Similarly, WHAI notes that Congress specifically rejected a mileagebased  X- x?approach when it defined a station's market by reference to an ADI."18 {O - xiԍWHAI also states that the Rand McNally Commercial Atlas and Marketing Guide describes Orange County,  x-New York and Passaic, Union, Monmouth, Somerset, Middlesex and Ocean Counties, New Jersey as being in the  xsame "Basic Trading Area" as Bridgeport, Conn., and that this evidence is an indication that the affected communities have substantial economic and social ties. With regard to its  xprogramming format, WHAI asserts that it provides an effective advertising platform for local  x=merchants and other business, and provides a means for local businesses and community and  XK- x.minority organizations to communicate to residents in the New York ADI.8XK18 yO- xԍIn fact, WHAI states that it expects as much as 45 percent of the time on the station devoted to programlength  xKpresentations will be acquired by local business and organizations after the station has been airing this format for two years. 8 Moreover, WHAI  xstates that it produces several local public service programs, "For the Record" and "Jersey Cares",  xwhich feature programming specifically targeted to meet the needs and interests of the  xkcommunities served by TKR. WHAI argues that even a small amount of local programming  xadvances the value of localism and that neither the 1992 Cable Act nor the legislative history  X- x>suggests any threshold or minimum criterion for local programming.SX18 yO[- xwԍWHAI states that it is currently negotiating with several ethnic and minority controlled organizations who wish  xto purchase time on the station in the future. The station believes these groups would provide programming to underserved populations in the New York ADI.S It also remarks that a  xsubstantial number of residents of the cable communities can receive an overtheair signal from  x>one of its low power stations, W23BA (East Orange, NJ). WHAI also states that its has an  xagreement to deliver its signal through fiber optic cable to those headends in New Jersey and  xyNew York that cannot receive a good quality overtheair signal. Finally, WHAI states that the  xBureau has held that ratings are of no probative value when a cable operator seeks to delete an independant station. "7 ,N(N(ZZ"Ԍ X- ` Qx 14.` ` In its reply, TKR argues that WHAI ignores the 1992 Cable Act and numerous  xCommission and Bureau decisions, when presenting its arguments in opposition to the petition  xfor special relief. With regard to WHAI's position that stations may only be deleted where an  xoutofmarket station can be shown to be more "local," TKR argues WHAI's proposal would  xflout Congress' dictate that markets may be modified where television station's ADI does not  x=accurately reflect the station's true local geographic, political and economic service area. TKR  xalso asserts that the Bureau found that WHAI is not local, and therefore not part of the market,  X_-in other cases involving New York and New Jersey cable operators.G_18 {O-ԍSee, supra, fn. 11.G x  X1- ` x15.` ` With regard to the historical carriage factor, the operator asserts that the  xCommission should take this factor into account in considering both additions and deletions to  xya television station's market. TKR also states WHAI ignores the fact that historical carriage, in  x=combination with other factors, becomes highly relevant in cable operator petitions seeking to  xexclude communities from a television station's market. The operator also reiterates that WHAI  xdoes not provide local service to the systems' cable communities. TKR asserts that WHAI tries  xyto hide the fact that it provides no local coverage by attempting to transfer must carry rights to  X- xiits low power station.pZ18 yO-ԍTKR asserts that W23BA, a translator station, has no must carry rights. p The operator also states that WHAI's "program length presentations" are  xnothing more than "infomercials" and that the station's future programming plans are purely  xspeculative. As for WHAI's arguments regarding the irrelevancy of geographic distance and  xxGrade B contour coverage, the operator asserts that the Commission has recognized both of these  xfactors as pertinent considerations with respect to the second statutory factor. Moreover, WHAI's  x<assertion that it is committed to deliver the requisite signal strength by translator does not lessen  xthe relevance of the lack of Grade B coverage. Finally, TKR claims that WHAI does not dispute  xthe showing that it is barely watched in the New York market nor did the station deny the fact  x[that TKR's cable subscribers receive an abundance of local programming from other broadcast stations and cable sources.  X-   X-xANALYSIS AND DECISION ă  Xe- ` Dx16.` ` We will grant TKR's request.~e18 yO - x[ԍWe 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  {OX"- 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.  x,1995). The Supreme Court agreed to review the District Court's decision on remand and heard oral argument in the  {O$-Turner case on October 7, 1996, the first day of the Court's 19961997 term.  Based on geography and other relevant  x=information, we believe that the New York and New Jersey cable communities at issue here are  xsufficiently removed from WHAI that they ought not be deemed part of the station's market for"70 ,N(N(ZZ"  X- xmandatory carriage purposes.E18 yOy-ԍH.R. Rep. 102628, at 9798. E The evidence before us distinguishes these communities from the  xrest of the New York television market and persuades us that the action requested would better effectuate the purposes of Section 614 of the Communications Act.  X- ` Rx17.` ` New York is the nation's largest television market with almost seven million  xjtelevision households. Approximately 68% of the households in the market subscribe to cable  Xv- xzservice.ivX18 yO -ԍSee Nielsen February 1996 Cable Television Penetration Estimates.i Geographically, the market encompasses some 29 counties in four states,@v18 yO - xԍThe 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 - xto include Fairfield County, Conn. and all of Long Island, NY.  18 yO- xwԍThe AlbanySchenectadyTroy ADI abuts the New York ADI to the north; the HartfordNew Haven ADI abuts  xthe New York ADI to the east; the Philadelphia ADI abuts the New York ADI to the southwest; the Wilkes Barre xScranton 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  xYork City, one of the largest cities in the United States and the community of license for several  xlocal commercial television stations. WHAI, which signed ontheair in 1987 and broadcasts on  X - xchannel 43 from a transmitter located in Seymour, Connecticut.p 18 yO^-ԍWe note that WHAI went dark for a period of years between 1991 and 1993.p The station's city of license is Bridgeport, Connecticut (Fairfield County).  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  Xb- x<in the areas which they service and which form their economic market.Zbh18 yO{"-ԍH.R. Rep. 102628, 102d Cong., 2d Sess. 97 (1992).Z Changes may be sought  xand granted by the Commission "to better effectuate the purposes" of the mandatory carriage  X4- xrequirements.=418 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",N(N(ZZ)"  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  xZappears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities.  Xv- ` x19.` ` We also find that WHAI's interpretation of Section 614 (h) of the 1992 Cable Act  xand the Commission's implementing rules regarding the filing of market deletion requests, is too  XH- xrestrictive and without a sufficient textual basis.=H18 yO -ԍ47 C.F.R.  76.59.= The statute, on its face, does not limit market  xdeletion requests only to those situations where an outofthe market station is more deserving  x[of carriage than an inmarket station. There is also no language in either the legislative history  xjof Section 614(h) or the Commission's rules directly supporting the station's viewpoint. To the  x[contrary, WHAI ignores Congress' directive allowing either broadcasters or cable operators to  xLask for market modifications so that a station's ADI could better reflect the economic market at  X - xKhand.a X18 yO-ԍH.R. Rep. No. 628, 102d Cong., 2d Sess. 66, at 97 (1992).a Moreover, WHAI's formulation disregards Congress' directive that the Commission may  xconclude that a community within a station's ADI may be so far removed from the station that  X-it cannot be deemed part of the station's market.X18 {O)-ԍId.#Xw PE37XP#X  Xb- ` x20. ` ` Turning to the statutory factors, we note that WHAI has no history of cable  x{carriage on any of TKR's New York and New Jersey systems despite having commenced  x[broadcasting in 1987 and been consistently broadcasting for a number of years. The evidence  xalso suggests that WHAI does not provide local service to the communities in question and does  X- x]not place a Grade B contour over the cable communities.z18 yO1- xԍWe 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. That is due to the location of  xWHAI's transmitter, Seymour, Connecuticut, which is in a different market, the HartfordNew  xHaven ADI, from the affected New York and New Jersey cable communities, which are, on  xMaverage, over 90 miles away. Here then, the distance and lack of service combined with the  xgeneral geographic pattern of the areas involved attenuates any local ties the station might have  xwith the cable communities. Furthermore, WHAI's reliance on its commercial translator,  xW23BA in East Orange, New Jersey, is misplaced. Commercial translators and low power  xZstations are secondary service stations that are explicitly not entitled to carriage in their own right  xand the service here involved is not otherwise sufficient to persuade us that WHAI's market includes the affected New Jersey and New York cable communities.  X - ` x21.` ` We also do not believe that WHAI has sufficiently countered TKR's argument that  xthe station does not carry programming of specific local interest or import for cable viewers in" ,N(N(ZZZ"  xthe relevant New York and New Jersey cable communities. The WHAI schedule information  xprovided in the pleadings indicates it airs home shopping programming the majority of the  xbroadcast day with some material of potential general interest interspersed throughout; neither the  xhome shopping programming nor the general interest programming can be said to have specific  xties to any of the cable communities at issue. In addition, the station's plans to air ethnic and  xminority programming in the future are too speculative and as such, do not count in the present market modification analysis.  XH- ` Bx22.` ` We also believe that TKR's carriage of other local television stations provides  xsupport for the action requested in this particular case. Where a cable operator is seeking to  xdelete a station's mandatory carriage rights in certain communities within its ADI, and it is clear  xythat the station is not providing local service to those communities, the issue of local coverage  x/by other stations will be given greater weight than in cases where a party is seeking to add  x[communities. In this particular instance, there are several television stations, such as WWOR,  xlicensed to the New York ADI and adjacent communities which have a closer nexus, cast a Grade  xA signal over the cable communities, and provide more focused local programming than WHAI.  xThese market facts, coupled with the distance between the cable communities and WHAI, supports TKR's argument under the third factor.  XK- ` x23.` ` TKR also demonstrates that WHAI has no audience in the counties in which the  x.cable systems are located. We recognize that home shopping stations, like religious and non xMEnglish language stations, which were once referred to as specialty stations, are capable of  X- x"offer[ing] desirable diversity of programming . . . ," yet typically attract limited audiences. 18 {O-ԍFirst Report and Order in Docket 20553, 58 FCC 2d 442, 452 (1976), recon. denied, 60 FCC 2d 661 (1976).  xBecause the station has a specialized format catering to a niche audience, this point, by itself, is  xnot a complete indicator of the relationship between the cable communities and the market of the  X- xtelevision station. However, the fact that the station also has no historical carriage on the cable  xsystems in question even though it is not a new station does have decisional significance when  x-linked with other information regarding the market and the geography involved. In this particular  xcircumstance, we cannot entirely discount WHAI's lack of carriage as an indicator of the scope its market area. "N Z ,N(N(ZZ|" x  X-   ORDERING CLAUSES ă  X- ` x24.` ` 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,  X- xthat the "Petition for Special Relief" (CSR4845A) filed by TKR Cable Company IS  Xv-GRANTED .  XH- ` x23.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William H. Johnson x` `  hh@Deputy Chief, Cable Services Bureau