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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) Cablevision Systems Corporation ) CSR-4819-A Framingham, Norwood, and Westwood, MA ) ) For Modification of Television ) Broadcast Station WNDS's ADI ) MEMORANDUM OPINION AND ORDER Adopted: February 26, 1997 Released: March 3, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Cablevision of Framingham, Inc., operator of a cable television system serving Framingham, Massachusetts, together with A-R Cable Services, Inc., operator of cable television systems serving the Massachusetts communities of Norwood and Westwood, (hereinafter, "Cablevision" or the "Operators") jointly filed a "Petition For Special Relief." The petition seeks to delete the communities of Framingham, Norwood and Westwood from the Boston, Massachusetts area of dominant influence (or "ADI"), insofar as mandatory carriage of station WNDS (Ch. 50), Derry, New Hampshire, is concerned. CTV of Derry, Inc., licensee of WNDS filed an "Opposition To Petition For Special Relief," and Cablevision filed a joint reply. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence" or ADI as defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air and cable television viewing are included. 3. Under the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) provides that the Commission may: with 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: the Commission shall afford particular attention to the value of localism by taking into account such factors as -- (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; (II) whether the television station provides coverage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community. 4. The legislative history of this provision indicates that: where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which a local cable 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. * * * * * [This subsection] establishes certain criteria which the Commission shall consider 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 market. 5. The Commission provided guidance in its Report and Order in MM Docket 92-259, supra, to aid decision making in these matters, as follows: For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel line-up (e.g., rate cards) 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 is 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 viewing 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 community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6. As for deletions of communities from a station's market, the legislative history of this provision indicates that: The 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 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 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 be deleted from the station's television market. 7. In adopting rules to implement this provision, the Commission indicated that requested changes should be considered on a community-by-community basis rather than on a County-by-County basis, and that they should be treated as specific to particular stations rather than applicable in common to all stations in the market. The rules further provide, in accordance with the requirements of the 1992 Cable Act, that a station not be deleted from carriage during the pendency of a market change request. MARKET FACTS AND PARTIES' ARGUMENTS 8. WNDS is licensed to serve Derry, New Hampshire, which is presently assigned to the Boston, Massachusetts ADI. Both Middlesex County, where Framingham is located, and Norfolk County, where both Norwood and Westwood are located, are also assigned to the Boston, Massachusetts ADI. All three specified communities are located within approximately six miles of each other. Derry, WNDS's city of license, is located in the middle eastern portion of the Boston ADI, and it is about 42 miles from Framingham, 46 miles from Westwood, and 48 miles from Norwood. WNDS places a Grade B contour over Middlesex County. 9. In support of its petition, Cablevision claims that none of its three designated systems has ever carried WNDS, and that about 30% (between 1 1/2 and 5 hours) of the station's daily programming consists of infomercials, while most of the rest of the station's programming is syndicated and duplicates programming aired by other stations already carried by the three systems. Cablevision claims that WNDS has no news, public affairs, sporting or other programming directed to its Massachusetts cable subscribers, and that its public affairs programs consist of weather updates for Derry together with shows that exhibit "an insular New Hampshire focus," such as "Buckle Up New Hampshire," "Granite State Duck Race," and "First Night New Hampshire." Cablevision adds that WNDS's Grade B contour does not reach either Norwood or Westwood, which are located about 47 miles from Derry, and it concludes that ". . . these systems do not receive a clear WNDS signal over the air." Cablevision maintains that the three designated communities actually are suburban bedroom communities for Boston, and that its subscribers receive Massachusetts-focused sports, including the Boston Celtics and the Boston Red Sox from the nine commercial television stations licensed to serve the Boston ADI that Cablevision carries. Cablevision maintains that its subscribers also receive Boston area news and public affairs programs from local network affiliates, like WHDH-TV, WCVB-TV, and WBZ-TV. Cablevision notes that it also provides cable channels that carry local news, weather, and sports programs, including shows such as "Vet Rep," Kids Corner," "Inside Norwood," "Cat Talk," "Crime Watch,"and "From the State House to Your House." Cablevision states that it will have to delete existing cable programming to add WNDS to its Norwood and Westwood systems, which are presently operating at their maximum capacity of 440 MHz. Cablevision states that its Framingham system, with a channel capacity of 550 MHz, is currently using 517.25 MHz, and that even though it presently has five available channels, the landlord of the office building where its headend is located will not allow any additional antennae to be installed on the roof, so that adding WNDS is not practical. Finally Cablevision notes that, according to Nielsen's 1995 County/Coverage Study, WNDS had no reported viewing share in Norfolk County, and its viewing share in Middlesex County was low and should be deemed "evidentially insignificant." 10. In opposition, WNDS notes that until late 1994, it was considered to be a distant signal in Norwood and in Westwood for copyright purposes, which "effectively precluded" carriage there. WNDS adds, however, that since its city of license, Derry, is assigned to the Boston, Massachusetts ADI, it has a right to mandatory carriage on the Framingham system, which has 76 channels, and on the systems serving Westwood and Norwood, each of which has 57 channels. According to WNDS, the Framingham system is obligated to carry up to 25 local commercial signals (although it currently only carries 10), and the systems serving Norwood and Westwood are obligated to transmit 19 local commercial stations (although they presently only carry 12, including two NBC and two ABC affiliates). WNDS notes that its Grade B contour only covers Framingham, but it emphasizes that Westwood is only four miles further from Derry, and that Norwood is only six miles more. WNDS concludes, therefore, that its Grade B contour lies relatively close to all three designated communities. In addition, WNDS states that it broadcasts news and weather updates ten times daily, much of it directed to Massachusetts residents, who annually constitute 39% of all New Hampshire visitors. WNDS also notes that it helps to raise awareness and money both in Massachusetts and in New Hampshire for groups like the Red Cross, Easter Seals, Special Olympics, American Lung Association, YMCA, American Diabetes Association, and Arthritis Foundation. Moreover, WNDS produces a number of local specials, including "Local Talent Showcase," "Veterans Moments," and "New England Law in Review," in addition to airing local programs, such as the University of Massachusetts hockey games, "WNDS Sports Rap" (covering Massachusetts based professional and college teams), "WNDS High School Sports Review" (which features a weekly segment devoted to Massachusetts schools), and "Upfront Shows" (which featured stories concerning Massachusetts residents or events over 30 times during 1995). WNDS also notes that the Commission has held that where it is shown that other local stations entitled to mandatory cable carriage do provide service to the communities at issue, it will not bar a station's ADI claim. Cablecast programs are not relevant in this instance, according to WNDS. Finally, WNDS notes that Cablevision has only submitted county-wide viewing data, rather than community-by-community data, and it argues that, although its lack of cable carriage in the specified communities did hamper its audience development, it still had an average total cumulative share for the week of 12% in Middlesex County, according to the above 1995 Nielsen study (which was six times that of another station Cablevision currently carries, WUNI, which had 2%). 11. In reply, Cablevision argues that WNDS is not entitled to assert mandatory carriage in any of the above communities, because it is not actually local to any of them. According to Cablevision, the must carry provisions were intended to preserve local television service and public interest programming; they ". . . were not designed to promote broadcast television programming over cable network programming." Cablevision adds that the fact that some local residents vacation in the Derry area makes it no more local to the Boston area than are Miami and Hawaii, where local residents also vacation, nor does the fact that the programming may include some local residents. Cablevision also notes that the local programming of interest to the Commission in these proceedings must have ". . . specific local interest or import," rather than programming of general interest. Cablevision adds that although other stations in the Boston market do serve the three designated communities, this issue has been found only to be relevant in market addition proceedings. Cablevision contends that nothing precludes systems that have not yet reached their maximum carriage obligations from filing market modification requests. Cablevision also maintains that, because Framingham is located in the southern portion of Middlesex County, WNDS's viewership there is unlikely to be higher than in the County as a whole; Cablevision characterizes WNDS's objection to Cablevision's use of county-wide viewing statistics, which it notes that the Commission has accepted in numerous prior cases, as "somewhat disingenuous." Finally, Cablevision notes that WNDS has been in operation since 1983, and it suggests that in cases where a station has no measurable audience after being in operation for a number of years the Bureau ought to consider its lack of audience in the cable community ". . . as a telling indicator of the station's true market area." ANALYSIS AND DISCUSSION 12. We will grant the operators' request in part and deny it in part. At the outset, we note that WNDS has never been carried on any of the operators' three systems. WNDS has been broadcasting for a number of years but nevertheless lacks historic carriage in all the cable communities. While the evidence relating to this statutory factor does weigh in favor of excluding the cable systems' communities from WNDS's market, it is not outcome determinative by itself. Further we note that WNDS' has no measured audience in both Norwood and Westwood counties. Also to be weighed in the balance, however, is the extent to which WNDS provides local service to the communities. A station's broadcast of local programming, which has a distinct nexus to the cable community, is evidence of local service as is the service area of the station viewed from a technical point of view. Service may additionally be measured through geographic means: by examining the distance between the station and the cable community subject to the deletion request and taking into account natural phenomena such as waterways, mountains, and valleys which tend to separate communities. 13. In this instance, we conclude that local service as measured by the station's service contours is a decisive factor. The Commission recognized this approach in its Broadcast Signal Carriage Report and Order, when it stated that "to show that the station provides coverage or other local service to the cable communities, parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage." Reviewing the facts at hand, we find that WNDS places a Grade B contour over Middlesex County, where Framingham is located, but not over either Norwood or Westwood. We believe that Grade B contour coverage is an efficient tool to adjust market boundaries in those situations where the other factors do not provide a clear basis for distinguishing market boundaries; that is do not reveal whether particular communities within the larger geographic area involved are properly inside or outside of the station's market for purposes of Section 614(h). Additionally, while WNDS has little audience in Framingham, it shows no viewership in Norwood or Westwood. In fact, WNDS does not appear in Nielsen's 1995 County Coverage Summary for Norfolk County in which both Norwood and Westwood are located. We note also that Norwood and Westwood are in fact further away from Derry than is Framingham and are served by a separate cable system which does not provide service to Framingham. While WNDS has shown that it carries programming directed to the Boston, Massachusetts, ADI audience, it has not shown specific programming directed to the subject cable communities. Thus, this information is of limited value as to the question of whether to retain Norwood and Westwood within WNDS's mandatory carriage area. 14. The availability of other broadcasters in the market is another factor to consider in market modification cases such as this one. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within [its] ADI, and it is clear that the station is not providing local service to those communities, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. Here, the Boston network affiliates and a number of noncommercial stations, provide subscribers residing in the cable communities with targeted local newscasts and public affairs programming. While this factor is not decisionally significant in Framingham, where WNDS' Grade B service supports continued inclusion, coverage by other stations in Norwood and Westwood does weigh in favor of the operators request. 15. We note finally that, while the lack of an adequate signal may be a relevant factor in a must-carry complaint proceeding, it has more limited significance in determining whether or not markets should be modified through the Section 614(h) process. Television broadcast stations involved in market modification proceedings remain subject to the requirement of delivering a good quality signal to the principal headend of any cable system on which carriage is sought. 16. In view of the above, the operators' request is granted with respect to the communities of Norwood and Westwood but denied with regard to Framingham. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED, pursuant to 614(c) of the Communications Act of 1934, as amended, 47 U.S.C. 534 and 76.59 of the Commission's Rules (47 C.F.R. 76.59), that the "Petition For Special Relief" (CSR-4819-A) filed jointly on September 4, 1996, by Cablevision of Framingham, Inc. and by A-R Cable Services, Inc. IS GRANTED IN PART AND DENIED IN PART. 18. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau