WPC)! 2MB%RK Z3|X Times 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/>/>/>/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""5hC:,%2Xh*f9 xr G;XX\{,W80,%0W*f9 xr G;XXd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdD yO- X   ( X-w #Xj\  P6G;9XP# Federal Communications Commission`(#DA 97498 ă  yxdddy (&dFebruary 7, 1997& j"4Q Ԋ j"4Q v3 Before the Federal Communications Commission  yO} Washington, D.C. 20554 ă x` `  hh@h  X -#Xj\  P6G;9XP#In re:x` `  hh@h) x` `  hh@h)T  X-Adelphia Cable Partners, L.P.hh@h)ppCSR4857A  X-d/b/a Adelphia Cable Communications@h)T x` `  hh@h)  X-For Modification of the MiamiFt.hh@h)  X-Lauderdale, Florida ADIhh@h) x` `  hh@h)  Xh -Complaint of WEYS Television Corp.@h)ppCSR4838M  XQ -against Adelphia Cable Communications@h) x` `  hh@h)  X# -Request for Carriage hh@h)  X-  MEMORANDUM OPINION AND ORDER TP  X-X` hp x (#%'0*,.8135@8:opposition to this petition to which Adelphia replied. In a separate but related proceeding,  xWEYS filed a must carry complaint against Adelphia for carriage on the operator's Dade County  xysystems. We will jointly consider these cases to resolve the signal carriage rights of WEYS on Adelphia's cable systems.  X)!-" BACKGROUND  X"-  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 92259,O#  yO(-ԍ8 FCC Rcd 2965, 29762977 (1993).O commercial television broadcast"#,))ZZ""  xzstations are entitled to assert mandatory carriage rights on cable systems located within the  xstation'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.* yOK- x.ԍSection 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  xjpatterns. Essentially, each county in the United States is allocated to a market based on which  xhomemarket stations receive a preponderance of total viewing hours in the county. For purposes  Xv-of this calculation, both overtheair and cable television viewing are included.$v" yOI - xKԍBecause 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.   XH-  03. xUnder the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) provides that the Commission may: xwith respect to a particular television broadcast station, include additional xcommunities within its television market or exclude communities from such xstation's television market to better effectuate the purposes of this section. In considering such requests, the Act provides that: xthe Commission shall afford particular attention to the value of localism by xtaking into account such factors as x(I) whether the station, or other stations located in the same area, have xbeen historically carried on the cable system or systems within such xcommunity; x(II) whether the television station provides coverage or other local service xto such community; x(III) whether any other television station that is eligible to be carried by a cable xsystem in such community in fulfillment of the requirements of this section xprovides new coverage of issues of concern to such community or provides xcarriage or coverage of sporting and other events of interest to the community; xand x(IV) evidence of viewing patterns in cable and noncable households within the" ,N(N(ZZ="Ԍ X-xareas served by the cable system or systems in such community. yOy-ԍCommunications Act of 1934, as amended, 614(h)(1)(C)(ii), 47 U.S.C. 534(h)(1)(C)(ii).  X-4. xThe legislative history of this provision indicates that: xwhere the presumption in favor of ADI carriage would result in cable subscribers xlosing access to local stations because they are outside the ADI in which a local xcable system operates, the FCC may make an adjustment to include or exclude xparticular communities from a television station's market consistent with Congress' xobjective to ensure that television stations be carried in the areas in which they xserve and which form their economic market.  X -pX` hp x (#%'0*,.8135@8:provides that market modifications may "reflect a recognition that . . . a community within a  xstation's ADI may be so far removed from the station that it cannot be deemed part of the  X- xstation's market."Zx18 yO-ԍH.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).Z It also adds that a cable operator's must carry obligation may be excused  xwhere a cable system "can point to particularized evidence that its community is not part of one  X-station's market . . . ."818 {Oz-ԍId. at 98.8  X-   13. xAdelphia restates that WEYS fares poorly under the four statutory criteria. First, WEYS  xzprovides no evidence of longterm historic carriage other than its novel claim of a history of  xcarriage when compared to its time on the air. Second, WEYS' use of translators to deliver its  xsignal in certain areas cannot overcome its geographic remoteness since its coverage must be  X7- xdetermined solely by its own location and signal transmission.718 yO&-ԍAdelphia points out that WEYS is silent regarding its own overtheair coverage independent of the translators. According to Adelphia,  xtranslators have no independent carriage rights so they cannot be used to establish a "local" * ,N(N(ZZ"  X- xpresence" for purposes of local coverage.w18 {Oy-ԍSee, e.g., Time Warner New York City Cable Group, 11 FCC Rcd 6528 (1996).w Third, while WEYS' programmingZ18 yO - xԍWhile WEYS claims that it switched its programming affiliate from SUR to CBS Telenoticias to "further strengthen its program offerings," it does not demonstrate specifically how this fact has enhanced its local offerings.  may be of  xgeneral interest to both Hispanic and nonHispanic alike, Adelphia points out that the fact remains  xthat WEYS' local programming coverage consists of only one locallyproduced talk show.  xFourth, Adelphia asserts that WEYS' list of advertisers is meaningless for purposes of  xestablishing local coverage as this list fails to show that those advertisers reach or expect to reach  x=the system's residents. Moreover, Adelphia states that the list of advertisers provided is from  xwhen WEYS was a SUR affiliate. A current list has not been provided. Fifth, WEYS ignores  x[the fact that Adelphia's system carries two local Spanishlanguage channels which, along with  xother local Miami stations carried, provide extensive local programming. Sixth, Adelphia argues  xthat if WEYS truly provided the local service it claims to offer to the Hispanic residents of Dade  xCounty, its ratings would reflect this and approach that of WLTV and WSCV. Finally, Adelphia  xargues that the existence of regulatory fees is irrelevant in the market modification analysis; if WEYS feels it is saddled with an unfair fee, it should seek a waiver of that requirement.  X - MUST CARRY ARGUMENTS ă  X-   14. xIn its must carry complaint, WEYS argues that the Commission should immediately order  xAdelphia to reinstate WEYS on its South Dade and Key Biscayne systems and issue a show cause  xorder against Adelphia. WEYS states that in a letter dated January 28, 1994, it exercised its must  XK- xcarry rights and requested carriage on Adelphia's systems. WEYS asserts that after a long delay,  X4- xAdelphia subsequently commenced carriage of the station which continued until July 31, 1996.418 yO- xiԍWEYS states that Adelphia dropped its signal without providing 30days prior notice. According to WEYS' operations manager, Oscar Ibarra, the notification was only 8 hours.  xWhile Adelphia claims that its action was lawful since it was carrying the station pursuant to  X- xretransmission consent, WEYS argues that no such agreement exists. It points out that Section  xy76.64(k) of the Commission's rules requires retransmission consent agreements to be in writing.  x/Therefore, WEYS maintains that the Commission should order Adelphia to produce such a  X-written agreement or it should face misrepresentation penalties for its unfounded assertions. (#(#X  X-  15. xIn its opposition, Adelphia states that the inclusion of WEYS in the Miami ADI is merely  X|- xan anomaly since it does not reflect marketplace realities.u\| 18 yO7"- xԍAdelphia notes recent Commission decisions in which the Commission determined that WEYS should not be  {O"- xpart of the Miami ADI relative to a number of communities in Dade and Broward Counties. See Dynamic  {O#-Cablevision of Florida, Ltd. et al., 11 FCC Rcd 9880 (1996).u Therefore the same factors raised in  xits market modification request, argues Adelphia, would apply here. Adelphia states initially that  xit does not deny that WEYS informed it in late January 1994 that the station had commenced  xservice as a fullpower station and that it elected to assert must carry rights. However, Adelphia  x[indicates that it had doubts that, due to its geographic distance, WEYS would qualify for must" . ,N(N(ZZz"  X- xcarry status, particularly with regard to signal quality18 yOy- xJԍA signal strength test performed by Adelphia at its South Dade headend on February 22, 1994 indicated a result of 56.3 dBm, which did not meet the Commission's criteria. and copyright liability. 18 yO- xԍAdelphia points out that at the time of WEYS' original carriage request, Congress had not yet amended the Copyright Act of 1976 to eliminate copyright liability throughout an entire ADI. Adelphia states  xLthat after WEYS' initial request, there was a series of letters between it and WEYS in which the  xcable system repeatedly requested information which would satisfy its signal quality and copyright  xconcerns. Adelphia argues that this information was necessary for it to evaluate whether WEYS  x=was indeed entitled to mandatory carriage rights. In response, however, Adelphia alleges that  xWEYS either ignored the requested information or provided incomplete or inconsistent  Xv- x>information.! vx18 yO - xiԍFor instance, states Adelphia, at different times WEYS claimed it would deliver an adequate signal via either  xYtranslator, its own microwave facility, the microwave facility of an MMDS operator, or direct fiber link. Also, with  xrespect to copyright liability, WEYS first claimed it would indemnify Adelphia, then later claimed no additional copyright would accrue due to its retransmission via a translator located within 35 miles of Adelphia's headend.! Finally, in a meeting between the parties,!v` 18 yO- xJԍAccording to an affidavit from Adelphia's General Manager Lynn Whisenhunt, the parties at this meeting were himself, WEYS representative Larry Deutsch and Canal SUR representative Hector DelgadoParker. Adelphia states that it offered to  x=resolve the ongoing dispute by agreeing to carry WEYS pursuant to a retransmission consent  XH- xagreement.I"H 18 yO-ԍSee affidavit of Lynn Whisenhunt.I When this was agreed to by WEYS' representative, Adelphia states that  xarrangements were then made to deliver WEYS via translator W55BV (Homestead, Florida) to  xits South Dade headend and, because it could not receive a good quality signal at Key Biscayne  x/from W55BV, via direct hardwire feed utilizing fiber optic line to its Key Biscayne headend.  xAdelphia maintains that at the same time W55BV provided it with a written document consenting  X -to the retransmission of its signal to both the South Dade and Key Biscayne systems.# H 18 yO- xLԍMr. Whisenhunt stated that it did not occur to him to request a separate written retransmission consent agreement concerning the fiber feed to Key Biscayne since he believed he was making a good faith gesture.  X -  16. xAdelphia continues that there were several factors in WEYS' removal from its systems.  xFirst, it states that WEYS notified it on July 29th that it was discontinuing its fiber feed to the  xKey Biscayne headend and gave the system only 48 hours to arrange to receive its signal via  x!translator W55BV. Adelphia states that it informed WEYS in response that it could not  x[technically make such arrangements since W55BV did not provide a good quality signal to the  X4- xKey Biscayne headend;$418 yO#- xԍAdelphia states that measurements taken on October 22, 1996 at the Key Biscayne headend indicate a signal quality of 48.8 dBm for WEYS. therefore, it informed WEYS that it would no longer be carried as of  xJuly 31st. Secondly, Adelphia states that when it learned that WEYS would no longer be  xproviding Canal SUR programming, it considered this inconsistent with previous carriage  X- xMarrangements and it was determined that the signal would be dropped from the South Dade" $,N(N(ZZ"  X- xkheadend as well.%18 yOy- xԍAdelphia states that in order to avoid disruption of a service to which its subscribers had become accustomed, it made arrangements directly with Canal SUR to continue the provision of its programming. Adelphia argues that the Commission should uphold the retransmission  xMconsent agreement reached between the parties for the following reasons: 1) at no time did  x[Adelphia agree with or acknowledge WEYS' claim that it was entitled to mandatory carriage; 2)  x=Adelphia cannot be held responsible for WEYS' inability to provide the information necessary  x>to establish its mandatory carriage rights; and 3) the system should not be penalized for its  x.voluntary carriage, notwithstanding the ongoing dispute regarding WEYS' must carry status.  xLAdelphia maintains further that WEYS' argument that no written retransmission consent exists  xshould be rejected. It points out that WEYS furnished Adelphia with a copy of the  xiretransmission consent authorization of W55BV covering both the South Dade and Key Biscayne  xxheadends. Adelphia states that since the systems were to carry the translator's signal, rather than  X - x\the originating station's, a retransmission consent from the translator was appropriate.& 18 {O - xԍSee Report and Order in MM Docket 92259, 8 FCC Rcd 2965 (1993) at para. 173, recon., 9 FCC Rcd 6723 (1993) at para. 107. In  x[addition, Adelphia asks that the Commission find that it was justified in discontinuing carriage  xof WEYS. It maintains that the deletion was not a flagrant violation of the rules since it occurred  x\only after it was given no more than 48 hours notice by WEYS of the discontinuance of the provision of an adequate signal to Key Biscayne and a switch from Canal SUR programming.  X-  17. xWEYS' reply states that the Commission does not, and has not, made a marketwide  xdetermination that WEYS is not a must carry station in the Miami ADI. Rather, it argues, the  xCommission has made individual market modification decisions based on WEYS' relationship  x[to particular system communities. Therefore, WEYS states that until such time as a decision is  xmade on Adelphia's market modification request, the system has a mandatory obligation to carry  xWEYS. It maintains that Adelphia's discussion of its supposed problems with WEYS in 1994  xshow that Adelphia "stonewalled and obfuscated, and otherwise took every effort to delay carriage  xjof WEYS" and reveals a "pattern of abuse" by Adelphia. WEYS suggests that Adelphia knew  x.what it was doing and simply did not want to comply with the law. Further, WEYS submits an  xkaffidavit from its vice president, David Drucker in which it points out that Mr. Drucker flatly  xcontradicts Adelphia's assertion that retransmission consent was discussed in the 1994 meeting  xbetween the parties. WEYS states that the sole purpose of this meeting was to address Adelphia's  xyconcerns regarding copyright liability. WEYS reiterates that Section 76.64 of the Commission's  xrules require that retransmission consent agreements are to be in writing and be comprehensive  x<concerning the extent of the relationship. WEYS concludes that it made no change in its delivery  xLof its signal to Adelphia's South Dade headend, other than in its programming, and it provides  x a good quality signal to that headend. In response to Adelphia's contention regarding the  xstation's poor signal qwuality WEYS states that since it has no access to Adelphia's headend at  x[Key Biscayne, it cannot determine whether the system's claim of poor signal quality was either created deliberately or was the result of poor engineering practices. " z&,N(N(ZZ"Ԍ X-( DISCUSSION ă  X-  X-  18. xWe will grant Adelphia's request. Based on geography and other relevant information,  xwe believe that the communities served by Adelphia's North Dade, South Dade, and Key  xBiscayne cable communities are sufficiently removed from WEYS that they ought not be deemed  X-part of the station's market for mandatory carriage purposes.D'18 yO-ԍH.R. Rep. 102628, at 9798.D  X_-  19. xAs an initial matter, we note that, according to the legislative history of the 1992 Cable  xAct, the use of ADI market areas is intended "to ensure that television stations be carried in the  X1- xareas which they service and which form their economic market."Z(1X18 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 - xKrequirements.=) 18 yO-ԍ47 U.S.C. 534(h).= The market change process incorporated into the Communications Act, however,  xzis not intended to be a process whereby cable operators may seek relief from the mandatory  xsignal carriage obligations apart from the question of whether a change in the market area  xyinvolved is warranted. When viewed against this backdrop, and considering all of the relevant  xfactual circumstances in the record, we believe that Adelphia's deletion petition appears to be a  x/legitimate request to redraw ADI boundaries to make them congruous with market realities.  xLAdelphia's action does not reflect an intention to skirt its signal carriage responsibilities under  xjthe 1992 Cable Act and the Commission's rules nor does it evidence a pattern of discriminatory conduct against the station.  X-  20. xWe now turn to the four part market modification analysis. At the outset, we note that  xWEYS has had only a brief history of carriage on the systems (factor I); WEYS does not provide  xkthe cable communities with service as measured by its Grade A or Grade B service contours  x(factor II); and WEYS has virtually no overtheair audience in Dade County where the cable  xcommunities are located (factor IV). Given the statutory directive, weight must be given to these  x=factors, but that must be done bearing in mind that the objective of the Section 614(h) process  xyis to "better effectuate the purposes" of the broadcast signal carriage scheme. With respect to  x-factor 1, we note that the station's history of carriage has been brief. Thus, the historical carriage  xfactor to the extent such lack of carriage is reflective of factors outside the shape of the market  xMԩ is not by itself controlling in these circumstances. As such, the evidence relating to this  xstatutory factor does weigh in favor of excluding the Adelphia cable communities from the market of WEYS but is not outcome determinative by itself.  X-  021. xAdelphia has also shown that WEYS does not provide local service to the communities  xzin question. First, WEYS is geographically distant from the subject cable systems with Key  x/Biscayne South Dade, and North Dade, sites of the three headends, 128, 109, and 132 miles  xaway, respectively. Second, WEYS does not place either a Grade A or Grade B contour over"! x),N(N(ZZ "  X- xthe cable communities.*18 yOy- xԍWe have held that the local service requirement is satisfied if the station's Grade B contour covers the  {OA-community. See 8 FCC Rcd at 2981. While we recognize that the translators' protected contours which  xretransmit WEYS' signal may cover some of the cable communities in question, translators do  x-not have carriage rights under Section 614, and given all the circumstances here, do not evidence  x that the cable communities are within the station's natural market, especially in the densely  x<populated areas in this case. We additionally note that the two translators that retransmit WEYS'  xLprogramming, are by WEYS' own admission, owned by another entity and not by WEYS itself.  x[Third, WEYS does not currently provide local programming specifically directed to the subject  xcommunities. While the programming that it does offer can be considered to be of general  xinterest to the ADI's large Hispanic population as a whole, neither it nor the locallyproduced  xprogramming WEYS cites in its opposition, is specifically relevant to Adelphia's systems.  xzMoreover, we find that the list of advertisers provided by WEYS fails to establish a specific connection to Adelphia's communities.  X -  M22. xWe also believe that Adelphia's carriage of other local television stations provides support  xfor the action requested in this particular case. Where a cable operator is seeking to delete a  xjstation's mandatory carriage rights in certain communities, the issue of local coverage by other  xstations becomes a factor to which we will give greater weight than in cases where a party is  xseeking to add communities. Here, Adelphia carries two other Hispanic stations, WLTV (Ch.  x23), Miami, Florida, and WSCV (Ch. 51), Ft. Lauderdale, Florida, which have a closer economic  xMnexus, cast a City Grade signal over the cable communities, and provide more focused local  xprogramming, than WEYS. These market facts, coupled with the distance between the cable communities and WEYS, support Adelphia's arguments under the third factor.  X-  23. xWEYS also has no significant reported audience share in the communities in question.  xWhile WEYS may have reportable ratings during certain dayparts in the ADI as a whole, we do  xnot find such evidence rises to a level sufficient to satisfy the fourth market modification factor.  X- xMoreover, WEYS' reliance on its "specialty station" status as an explanation of its failure to  xestablish significant ratings is contradicted by the high ratings achieved by the other two Spanish X|- xlanguage stations, WLTV and WSCV.7+Z|"18 {OO- x-ԍAccording to the 1995 Nielsen Station Index, WSCV achieves a 7% share of total viewing hours and a 27%  xYnet weekly circulation in Dade. WLTV garners a 13% share of total viewing hours and 35% net weekly circulation in Dade County. 7 In any event, due to the fact that WEYS broadcasts  x-Spanishlanguage programming in an area which has a high proportion of Hispanic residents, the logic of the "specialty station" analysis is questionable.  X -  24. xWEYS' payment of a regulatory fee pursuant to 1.1153 of the Commission's rules is  xirrelevant in this context. We agree with Adelphia that WEYS should seek relief under the Commission's fee rules if such payment is believed to be unfair or unduly burdensome. " D+,N(N(ZZ"Ԍ X-  25.xIn view of the fact that the only retransmission agreement reduced to writing was with  x-the translator station, W55BV, and that station has not objected to the dropping of its signal, we  x=believe that no further Commission action is warranted. Consequently, we will dismiss WEYS'  x>must carry complaint as moot in light of our action granting Adelphia's market modification petition.  Xv-  ORDERING CLAUSES ă  XH-  >26 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  xzpetition for special relief (CSR4857A) filed on behalf of Adelphia Cable Partners, L.P. d/b/a  X -Adelphia Cable Communications IS GRANTED.  X -  l27. x IT IS FURTHER ORDERED, that the complaint filed on behalf of WEYS (CSR4838 X -M) against Adelphia's systems IS DISMISSED as moot.  X-    28. 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  j"4Q  x` `  hhWilliam H. Johnson x` `  hhDeputy Chief, Cable Services Bureau X` hp x (#%'0*,.8135@8: