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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 the Matter of Petition of ) ) Armstrong Utilities, Inc. for ) Modification of Market of ) CSR 4834-A Station WGGN-TV, Sandusky, Ohio ) ) In re Complaint of ) ) Christian Faith Broadcast, Inc. against ) CSR 4631-M Armstrong Utilities, Inc. for Carriage of WGGN-TV ) MEMORANDUM OPINION AND ORDER Adopted: February 26, 1997 Released: March 4, 1997 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Armstrong Utilities, Inc. ("Armstrong") filed a petition pursuant to Sections 76.7(a) and 76.59(a) of the Commission's rules requesting that Ashland and Medina, Ohio and certain other communities (the Communities") served by its cable system be excluded from the market of television station WGGN-TV (Channel 52), Sandusky, Ohio. Christian Faith Broadcast, Inc. ("Christian") filed an opposition to the petition, and Armstrong filed a reply. Armstrong also filed a Petition for Reconsideration pursuant to Section 1.106(b) of the Commission's rules of a Memorandum Opinion and Order that granted a must-carry complaint filed by Christian for carriage on Armstrong's cable system serving the Communities. Christian filed an opposition to the petition for reconsideration, and Armstrong filed a reply. We will consolidate these two proceedings, which involve related circumstances and issues arising under 47 U.S.C.  634. II. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-25, 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 ADI, 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 an ADI change request. 8. With respect to Armstrong's petition for reconsideration of the Bureau Order, we note that the Bureau, after rejecting an argument that Christian's complaint was untimely filed, found that Armstrong had failed to demonstrate that WGGN-TV's signal quality at Armstrong's Ashland and Medina, Ohio headends did not meet requirements for carriage. Armstrong was ordered to commence carriage of WGGN-TV within sixty days from the provision by Christian of additional equipment. The order for carriage was made subject to a showing by Armstrong that use of such additional equipment would not provide for delivery of an adequate signal to the cable system headends. Armstrong filed the petition for reconsideration of the Bureau Order, in which it offered evidence purportedly showing that it had filed the complaint on a timely basis. Subsequently, Armstrong also filed the petition for modification of WGGN-TV's market. III. MARKET FACTS AND ARGUMENT 9. Armstrong asserts in the market modification petition that WGGN-TV has never been carried on its cable system, that WGGN-TV fails to provide a Grade B signal over any portion of the Communities, and that WGGN-TV is located geographically distant from the Communities. Armstrong also asserts that WGGN-TV's programming appears to consist mainly of programming fed by satellite from the Trinity Broadcast Network and that the station fails to broadcast any programming of specific local interest to the Communities. Armstrong asserts further that its cable system carries numerous other television stations that provide coverage of news and issues of concern to the Communities served by its cable system. Armstrong points out that local television viewing guides circulated in the Communities contain no listing for WGGN-TV, and that WGGN- TV fails to meet the minimum reporting standards for viewership and does not garner a minimum share of the audience in any of the two counties Armstrong serves or achieve any measurable viewing audience in the Communities. For those reasons, Armstrong asserts, WGGN-TV fails to satisfy the criteria established by Congress in Section 614(h)(1)(C)(ii) as a "local" station for carriage on its cable system. 10. Armstrong argues that, where, as here, a television station has never been carried on the cable system serving the Communities, is geographically remote from the Communities served by a cable system, fails to provide local service to those Communities, and has no viewing in those Communities, those Communities may be deleted from the station's market for must-carry purposes. Armstrong argues that the factual market information presented shows that the communities at issue should be deemed not a part of WGGN-TV's market for purposes of the mandatory carriage requirements. 11. Christian asserts that Armstrong's modification petition makes no argument nor provides any evidence which was not available when Armstrong presented only procedural objections in its answer to the complaint. Christian argues, therefore, that Armstrong's modification petition is untimely in presenting these matter ten months after the complaint was filed and five months after the Bureau Order was issued. Christian contends that Armstrong's modification petition represents an improper effort to get "two bites at the apple," which should be rejected. 12. Christian argues on the merits that WGGN-TV's market should be not modified as requested by Armstrong. Addressing the four market modification factors listed in Section 614(h)(1)(C)(ii), Christian admits that WGGN-TV has not been carried on Armstrong's cable system. However, Christian asserts that lack of carriage of WGGN-TV, which stems from Armstrong's failure to meet its must-carry obligation with respect to WGGN-TV, should not be used as a basis for granting the requested market modification. Regarding coverage and local service, Christian argues that WGGN-TV is not remote from Armstrong's Ashland and Medina headends. Christian notes that Armstrong carries five Cleveland market stations on its cable system, as well as two stations from the Toledo, Ohio television market, that are located farther from those headends than is WGGN-TV. Christian also attempts to show that the Communities are part of WGGN-TV's economic market by pointing out that one of the largest purchasers of time on WGGN-TV is the Harvest Center Church, whose largest of two churches is located in Ashland, Ohio. Christian states that this church produces a program broadcast on WGGN-TV Monday through Friday at 6:30 p.m. to 7:00 p.m. Long standing ties to the Communities are shown, according to Christian, through the programming produced at the Harvest Center Church located in the community, as well as by correspondence, prayer requests, and contributions stimulated by that programming. 13. Christian asserts that the Commission, in the Bureau Order, determined that the signal strength which WGGN-TV provides over Armstrong's Ashland and Medina headends is adequate, with use of additional equipment, to qualify for must carry status on Armstrong's cable system. Christian also asserts that, if its application for authority to increase WGGN-TV's tower height and effective radiated power is granted, almost all communities served by Armstrong's Ashland and Medina headends would be within the station's Grade B signal contour. 14. Christian points to the "Church on Fire" program produced at the Harvest Center Church as programming that serves the interests and needs of the relevant communities. Christian explains that, during such programs, viewers may place calls to volunteers for prayer and other help, that such calls often involve a variety of social problems, and that the callers may be referred to sources for assistance. Christian also asserts that it should not be discredited for a lack of programming since it is not being carried by the cable system serving these communities. In a similar vein, Christian argues that WGGN-TV should also not be faulted for lack of viewing in the communities for the same reason. 15. Armstrong argues in reply that Christian unsuccessfully links two distinct and separate matters by arguing that the modification petition should be denied on the grounds that it is an untimely effort to present matters that should have been presented in response to the must carry complaint. Armstrong asserts that the modification petition seeks an adjustment of WGGN-TV's market based on the four factors set forth in Section 614(h)(1)(C) of the Act, and that it is exercising statutory rights independent of the issues raised by the must carry complaint. Armstrong asserts that Christian's argument that the relevant market is established by the ADI misses the point of the Section 614(h)(1)(C) right to seek a market modification order. In this connection, Armstrong argues that the Commission, in case after case, has taken into account the distance of a station from communities and whether a station places a Grade B signal contour over relevant communities, in determining whether to modify a station's market. Armstrong, noting Christian's pending application for increased power and tower height, states that when WGGN-TV has an adequate signal, it will be willing to review the situation again. 16. Armstrong also disputes Christian's argument the historical lack of carriage should not be considered relevant, arguing that the Commission deems historical carriage patterns to be useful in providing insight into the structure of the market involved. Armstrong reasserts that WGGN-TV fails to provide programming designed to satisfy interests and needs of the Communities. It argues the carriage by WGGN-TV of a half hour daily church program does not constitute sufficient community-directed programming for Section 614(h)(1)(C) purposes. Finally, Armstrong reiterates that WGGN-TV has no demonstrated viewing audience in the Communities. IV. DISCUSSION AND ANALYSIS 17. WGGN-TV is a UHF commercial television station licensed to operate on Channel 52 at Sandusky, Ohio. It is located in the Cleveland, Ohio ADI, approximately 45 miles from Armstrong's headend in Ashland, Ohio and almost 50 Miles from Armstrong's headend in Medina, Ohio. Armstrong provides cable services in the Communities, which are also located in the Cleveland ADI. A. The Petition for Modification of WGGN-TV's Market 18. We address first the merits of Armstrong's petition to exclude the Communities served by its cable system from the television market of WGGN-TV for must-carry purposes, because doing so will facilitate our consideration of these two interrelated matters. We begin by examining the history of carriage of WGGN-TV on Armstrong's cable system. 1. Historic Signal Carriage 19. The record shows that WGGN-TV has not historically been carried on Armstrong's cable system at issue here. We reject Christian's argument that absence of carriage should not be considered significant in this case. Although WGGN-TV has been on the air since the 1982, it has never been carried on Armstrong's cable systems serving the relevant communities. The Congress intended for a station's history of carriage prior to adoption of the 1992 Act to be given weight in the ADI modification process. The fact that WGGN-TV has not historically been carried on Armstrong's cable system serving the Communities is probative and, while not decisional, will be taken into consideration as a factor in favor of the requested market modification. 2. Station Audience in Communities Served by Cable System 20. Not only has WGGN-TV not been carried on Armstrong's cable system, the available audience viewing data shows no viewing of WGGN-TV in any of the communities served by Armstrong's cable system. In fact, the Nielsen Station Index does not include WGGN-TV in the listing of stations serving the counties of Ashland and Medina, Ohio. The absence of viewing of WGGN-TV in Armstrong's service area is understandable, because WGGN-TV's Grade B contour does not reach the Communities, and WGGN-TV and the relevant communities are, on average, approximately 50 miles apart. The absence of any viewing of WGGN-TV in the Communities served by Armstrong's cable system also lends support for the requested market modification request. 3. Programming Specifically For Communities Served by Cable System 21. Christian seeks credit for providing coverage of issues and events of interest and concern to the Communities by the broadcast on WGGN-TV of a one half hour program five times weekly that originates at a church located in Ashland. Credit should also be given, according to Christian, for its programming that includes religious programming, which generates calls to WGGN-TV for prayer requests from viewers in the Ashland and Medina, Ohio areas. While recognizing that some credit should be accorded to WGGN-TV under this factor, we believe that, on the record made here, that credit should be accorded only minimal weight. Aside from the one half hour broadcast of the programming from the church in Ashland, we find that Christian has failed to demonstrate that any significant amount of WGGN-TV's programming is directed particularly toward the Communities. 4. Station Coverage of Communities Served by Cable System 22. WGGN-TV is located approximately 50 miles from the Communities, as noted earlier, and provides a Grade B contour signal over only a very small part of the relevant communities. Whether actual service was provided to the communities was a matter in issue in the proceeding leading to the earlier Bureau Order in which a carriage obligation was found. This obligation, however, was contingent on the provision by Christian of additional equipment that would assure delivery of an adequate WGGN-TV signal. The record contains no indication that Christian provided such additional equipment or now otherwise now provides actual over-the-air service to the communities in question. It appears, instead, that Christian elected to seek approval of an increase in power and tower height for WGGN-TV. Christian argues that, when those facilities are approved and become operational, WGGN-TV's predicted Grade B signal contour will cover Ashland and Medina, Ohio. However, Section 614(h)(1)(C)(iv) of the Act requires the Commission to act on market modification petitions within a fixed period after their filing. We believe that the statutory requirement for disposition of market modification petitions requires us, in applying the four factor test in Section 614(h)(1)(C), to consider current circumstances affecting the relevant market, including existing station facilities, rather than possible future station facilities and circumstances. B. Summary 23. Section 614(h)(1)(C) of the Communications Act requires the Commission to include or exclude particular communities from a television station's market for the purpose of assuring that a television is carried in the areas which it serves and which form its economic market. We believe that the requested exclusion of the Communities served by Armstrong's cable system from WGGN- TV's television market will better effectuate the purposes of the must-carry statutory provisions. In reaching this conclusion, we have considered the statutory factors under which the value of WGGN- TV to community localism is to be tested and found it to be lacking. WGGN-TV has no viewing presence in the Communities, which are located approximately 50 miles from WGGN-TV. The station has never been carried on the cable system in question, has no audience ratings in the Communities in question, offers only minimal programming of general interest to the relevant Communities, and provides no significant over-the air signal coverage of the Communities. For the foregoing reasons, we find that grant of Armstrong's petition is in the public interest. C. The Petition for Reconsideration. 24. Our decision to grant the market modification petition is dispositive of the petition for reconsideration as well as the underlying must-carry complaint. First, as a result of the market modification order we issue herein, the Communities served by Armstrong's cable system are excluded from WGGN-TV's television market, within the meaning of Section 614(h)(1)C) of the Communications Act. Therefore, WGGN-TV no longer qualifies as a "local commercial television station" for must carry purposes with respect to Armstrong's cable system. 25. We note in addition that, as indicated above, WGGN-TV's right to carriage under the earlier decision was conditioned on its provision of a good quality signal at the cable system headends involved. This it has not done. Nothing presented by Christian in response to the petition for reconsideration requires us to reach a different result here, or supports a finding that WGGN-TV is a "local" station within the meaning of Section 614(h)(1) entitling WGGN-TV to carriage on Armstrong's cable system serving the Communities. VI. ORDER 26. Accordingly, IT IS ORDERED, pursuant to 614(h)(1)(C) of the Communications Act of 1934, as amended, 47 U.S.C. 534(h)(1)(C), and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief filed on September 18, 1996 by Armstrong Utilities, Inc. in File No. CSR-4834-A IS GRANTED. 27. IT IS FURTHER ORDERED that the Memorandum Opinion and Order, (DA 96- 395), released April 3, 1996 in File No. CSR 4631-M, IS VACATED, and that the complaint filed November 28, 1995 in File No. CSR 4631-M by Christian Faith Broadcast, Inc. IS DISMISSEDas moot. 28. IT IS FURTHER ORDERED that the Petition for Reconsideration filed by Armstrong Utilities, Inc. IS DISMISSED. 29. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau