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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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(-((((((((((---#J:55:2-:::2F::-:5-2::K::2%(#(#(#(((>((((((:((#&&++%(:#:#:#:#:#F45#2#2#2#2#:(:(:(:(:(:(:(:(:(:(:#:(:':(:(:(-(:#:#:#5#5#5+5#:22#2#2#2#:(:(:(:+:(:+:(((8-++:(22 222:(/:(:(:(:(F:555----+2"22%:(:(:(:(:(:(K::+2#2#2#:(2:(-2:(2((W888888888888888888888888888888888888888888888888xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN00%(#((((M(==(==(=##(P0P((N1=PP00/CC--P#(CP"5555==JPP(=P0.+(-N00P("i~'^09FSS999Sq+9+/SSSSSSSSSS99qqqSggnxggxx9In]nxgxgS]xgg]]?/?FS9SSISI/SS//I/xSSSS??/SInII?C/CZ9+ZF999+999999S9S/gSgSgSgSgSnnIgIgIgIgI9/9/9/9/nSxSxSxSxSxSxSxSxS]IgSxSxSxS]IxSgSgSgSgSnInInZnIxdgIgIgIgIxSxSxSxZxSxZxS9/9S999SSZZnI]/]<]9]5]/nSanSnSxSxSng?g?g?S?S?S?ZZ]<]/]FxSxSxSxSxSxSn]Z]?]?]?xS]9nSS?]9]Sd+SS8%8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddNof its cable system serving the Communities, and that WGOTTV fails to provide a Grade B  X - xsignal over any portion of the Communities served by its cable system.u ~B {O-ԍSee Cable & Station Coverage Atlas, Warren Publishing, Inc., at Map 49.u Time Warner Cable  xjalso asserts that WGOTTV fails to broadcast any programming of specific local interest to the  x=Communities, and fails to achieve any significant viewing audience in the Communities. Time  xZWarner Cable contends that WGOTTV is owned by a group owner, who offers a standard format  xfeaturing program length presentations by local and national businesses and organizations that  xcontain no programming of specific appeal or interest for cable system subscribers located at the edge or beyond the station's Grade B signal contour.  X- ` x7. ` ` Time Warner Cable provided copies of print sources of television listings from the  X- xBoston area, which do not contain WGOTTV among station listings.@ B yO-ԍPetition, Attachment 2A.@ The absence of any  xnexus between WGOTTV and the Communities is further emphasized, Time Warner Cable  x?contends, by the absence of WGOTTV from TV listings from Sunday television guides  X- xpublished with the three local daily newspapers, The Enterprise, the Middlesex News, and the Sun,  xavailable in communities served by its cable system. Additionally, Time Warner Cable points  X~- x>out that the Providence edition of Television Guide does not include WGOTTV among its  Xi- xlistings, nor does The Boston Globe or the Boston Herald include the station in their featured  xtelevision listings. Time Warner Cable asserts further that its cable system carries numerous other  x[Boston and Providence television stations that provide a wide range of local, sports coverage,  xxpublic affairs and public service coverage designed to meet the specific needs and interests of the Communities." ,N(N(ZZ"Ԍ X- ` 2ԙx8. ` ` Time Warner Cable states that, while ratings data for WGOTTV are not available  x<to it, the Commission may reasonably conclude that the station achieves no measurable audience  xin the Communities, because of the station's distance form the Communities, its failure to provide  xa Grade B or better signal to any of the Communities, and the lack of exposure of the station's program schedule in local print media.  Xv- ` x9. ` ` Although the station and the Communities are in the Boston ADI, Time Warner  x=Cable contends that the Commission should delete the Communities from WGOTTV's market.  xIt argues that when the relevant facts and circumstance described in its petition are tested under  xkthe statutory market modification criteria, such relief is required to make the station's market congruous with market realities.  X - ` x10. ` ` Paxson opposes the proposed modification of the market of station WGOTTV.  xAddressing the first of four market modification factors listed in Section 614(h)(1)(C)(ii) (historic  x[carriage), Paxson concedes that WGOTTV has not been carried on Time Warner Cable's cable  xsystem, asserting that lack of carriage of WGOTTV should not be given significant weight in  xkdetermining whether to grant the petition. Paxson contends the must carry provisions were  xenacted to cure past discriminatory signal carriage practices. Regarding the second factor  x(coverage and local service), Paxson takes the position that the Congress enacted the must carry  xprovisions to protect small, vulnerable, independent stations by ensuring their carriage throughout  xan ADI derived from economic market realities in favor of a mileagebased system dependent in  xlarge part upon the extent of a station's signal contours. Paxson notes in this regard that the  xCongress did not enact a bill that initially included a fifty mile radius must carry qualification  xKprovision that failed to gain acceptance while eventually replacing that provision with the current  xLADIbased qualification test. Paxson contends that Congress sought in this manner to enable  x-these stations to compete effectively for viewership and advertising revenues, thereby providing  xfinancial resources and incentives necessary to strengthen local program services. It argues,  xMtherefore, that WGOTTV failure to place a Grade B signal contour over the Communities at  xissue and its location some distance from those Communities have no decisional significance.  xThe more important factor in Paxson's view is the location of the station and the Communities in the Boston ADI, which defines the station's market for must carry purposes.  X - ` Px11. ` ` Paxson seeks to establish coverage of the Communities and programming of local  xinterest by stating that it has pioneered a programming format that combines program length  xpresentations by local and national businesses and community organizations with religious and  xlocal public affairs programming. From its experience in other markets, Paxson believes as much  xas 45 percent of the program length presentations will be acquired by local businessmen and  X!- x.organizations after two years of Paxson ownership.j !B yO&$-ԍPaxson acquired WGOTTV on May 17, 1995. Opposition, p. 7, n. 21.j The station also presents three hours of  xchildren's programming weekly in the mornings as well as three hours of regional and local  xreligious programming and an hour of locally produced public interest programming on  xMweekends. It also produces and broadcasts a local public service program, "Focus on New"h$X ,N(N(ZZF#"  x England," designed to address the interests of New England. Paxson contends it has thus  xLdemonstrated a significant commitment to developing programming for the cable communities.  xyPaxson also points out that it has acquired a translator station for retransmission of WGOTTV  xprogramming and that the ability of households to receive WGOTTV programming by means of the translator is a valid indicator of local service.  Xv- ` px12. ` ` The cable system's carriage of the programming of other stations should be  xdisregarded, according to Paxson, because precedent indicates that this factor does not support  xja cable operator's request to delete a community; instead this criterion is used only to enhance  xa station's claim for adding a community where no other station serves the community. Finally,  xPaxson argues that the Cable Service Bureau has held that ratings of small specialty stations are  xLnot of probative value when a cable operator seek to delete markets of struggling independent  xstation. Paxson argues further that the Commission has found that such stations may in fact enjoy significant viewership despite lack of any concrete evidence to that effect.  X - ` $x13. ` ` Paxson asserts that Time Warner Cable's petition fails to demonstrate that the  xproposed deletion of the Communities from its market would "better effectuate" the purposes of  xthe must carry provisions. It argues that the must carry provision place the burden on the cable  xoperators to justify a market modification, that the Congress did not intend for market  xmodification procedures to permit a cable operator to avoid it must carry obligations, and that  xthe market modification procedures were intended to address select cases where ADI fine tuning  xlwas appropriate. It claims Time Warner Cable failed to address how denying WGOTTV  xcarriage in the Communities would better effectuate the purposes of the must carry provisions and  xzfailed to allege that carriage of the station would preclude carriage of a more local broadcast  xstation, noting that the cable system appears to have at least two unused channels that may be used for carriage of WGOTTV.  X- IV. DISCUSSION AND ANALYSIS  Xe- ` Px14. ` ` WGOTTV is a UHF commercial television station licensed to operate on Channel  x60 at Merrimack, New Hampshire and is located within the Boston, Massachusetts ADI. The  xMdistance from the station to the headends of Time Warner Cable's cable system serving the  xCommunities ranges from 42 miles to 58 miles. Time Warner Cable provides cable services in  X - xthe Communities, which are also located in the Boston ADI.g B {O -ԍArbitron's 19911992 Television ADI Market Guide, p. 169.g Time Warner Cable requests that the Communities be deleted from WGOTTV's television market.  X-  X - xA. Historic Signal Carriage; Station Coverage of Communities  X"- ` _x15. ` ` WGOTTV has not historically been carried on Time Warner Cable's cable system  xat issue here. Paxson's argument that absence of carriage should not be considered significant  xin this case will be rejected. WGOTTV has been on the air since 1987, but has never been"h$Z,N(N(ZZF#"  x\carried on Time Warner Cable's cable system serving the relevant communities. A station's  x=history of carriage prior to adoption of the 1992 Act is included as one of the statutory factors  xwe are directed to consider, and accordingly, lack of historic carriage must be given appropriate  x/weight in the ADI modification process. The fact that WGOTTV has not historically been  x<carried on Time Warner Cable's cable system serving the Communities is therefore probative and,  xwhile not decisional, will be taken into consideration as a factor in favor of the requested market  xMmodification. Additionally, WGOTTV is located from 42 to 58 miles from the Communities.  x>Additionaly, WGOTTV does not provide a Grade B contour signal over any portion of the  x[Communities. Although not conclusive of themselves, these factors strongly indicate that the Communities served by Time Warner Cable are not a part of WGOTTV's market.  X - ` Px16. ` ` Paxson suggests that distance and Grade B contour coverage are irrelevant in the  xcontext of a smaller, independent stations and that carriage within the ADI would provide  xopportunity for revenue growth that can be translated into additional public service. However,  xwhere our task is to determine station market boundaries, Grade B contour coverage in the  x.absence of other probative information is an efficient tool, because it is a sound indicator of  X- xthe economic reach of a particular television station's signal.S6 B {O - x#X\  P6G;P#эSee Amendment of Section 76.51 (OrlandoDaytona Beach, Melbourne, and Cocoa, Florida), 102 FCC 2d at  x1070 ("We believe that television stations actually do or logically can rely on the area within their Grade B contours  xfor economic support."). The Commission uses Grade B contours, in other contexts, to determine the scope of a  {Oc- x,station's market and reach: (1) In choosing between mutually exclusive applications for new television service (See  {O-- xHearing Designation Order, Washington Children's Television Outreach, Inc., BC Docket No. 81528, 46 Fed. Reg.  x;43737 (August 31, 1981)); (2) In applying the television duopoly rules, which prevents any party from owning two  {O- xbroadcast stations whose Grade B contours overlap (See 47 C.F.R.  73.3555(b)); (3) In the cablebroadcast  xownership rules which prevents a cable system from carrying any television broadcast stations if the operator owns  {OQ- xa television station whose Grade B contour overlaps the area served by the system (See 47 C.F.R.  76.501(a)),  xamong others. The Commerce Department also uses Grade B contours in its analysis when awarding grants for  {O- xunique noncommercial television broadcasting projects. See 15 C.F.R.  2301.4(b)(3)(ii). And the U.S. Copyright  xLOffice uses the Grade B Contour construct in determining cable compulsory copyright fees for the secondary  {Ou-retransmission of certain television stations by cable systems. See 37 C.F.R.  201.17(h)(2)(ii).S The Commission recognized this  Xy- xapproach in its Broadcast Signal Carriage Report and Order when it stated that "to show that the  xstation provides coverage or other local service to the cable communities, parties may demonstrate  xZthat the station places at least a Grade B coverage contour over the cable community or is located  X6-close to the community in terms of mileage."f6 B yO-#X\  P6G;P#э8 FCC Rcd at 29762977.f  X- ` x17. ` ` We reject Paxson's argument that regardless of the Section 614(h) process, smaller,  xjindependent stations are essentially guaranteed the right to carriage throughout the ADI. The  x[provisions of the must carry statute specifically direct the Commission to exclude communities  X- xfrom a station's ADI where doing so will better effectuate the purposes of the legislation.wV B {O%-#X\  P6G;P#эSee 47 U.S.C. 534(h)(1)(C)(i).w The  xLlegislative history notes that the Commission, in making market determinations, may conclude",N(N(ZZ4"  xthat a community within a station's ADI may be "so far removed" from the station that it cannot  X-be deemed part of the station's market.B yOb-#X\  P6G;P#эH.R. Rep. No. 628, 102d Cong., 2d Sess.at 9798.  X-x B. Programming Specifically For Communities Served by Cable System  X- ` x18.` ` Paxson's contention that this market modification request should be defeated  x because WGOTTVprovides coverage of issues and events of interest and concern to the  xkCommunities will also be rejected. We do not accept the principle advance by Paxson that a  xstation must be considered "local," as Congress intended that term to mean in Section 614 of the  x1992 Cable Act, by airing some programming associated with some of the communities in  xquestion. Programming is considered in the context of Section 614(h) proceedings only insofar  xas it serves to demonstrate the scope of a station's existing market and service area. It is not  X - xMa quid pro quo that assures carriage or a threshold through which carriage may be attained  xLthroughout an ADI. Even so, we find that the substantial bulk of WGOTTV's programming is  xeither general in nature and not specifically targeted to the cable communities at issue, or is in  xthe planning stages and has not yet aired. The "Focus on New England" programming (6:30 to  xM7:00 a.m. Saturday and 7:00 to 7:30 a.m. Sunday), for example, appears to be directed toward  x=the New England area as a whole or at best toward the whole Boston area. Nothing presented  xby Paxson shows that the program length presentations, while acquired by local businesses  xorganizations, consists of programming directed particularly toward the Communities served by  xTime Warner Cable's cable system. Paxson's failure to demonstrate that WGOTTV presents  xprogramming designed to serve the Communities in particular provides additional weight toward granting this market modification petition.  X- xC. Station Audience in Communities Served by Cable System  X- ` px19.` ` In addition to the fact that WGOTTV has not been carried on Time Warner  xCable's cable system, the record before us establishes no significant level of viewing of WGOT xTV in the Communities served by Time Warner Cable's cable system. Paxson has not refuted  xTime Warner Cable's claim that there is little viewing of WGOTTV in the relevant communities.  xWith respect to the subject communities served by Time Warner Cable's cable system, we note  X9- xthat the Nielsen Station Index does not show any audience for WGOTTV. In fact, the Nielsen  X$- x.Station Index does not include WGOTTV in the listing of stations serving that market.$XB {O-!-ԍSee Nielsen Station Index, County/Coverage Study, 1995, pp. 16381639, 164447, 16541663. The  xyapparent absence of WGOTTV viewership is consistent with the fact that its Grade B contour  X- xdoes not reach any of the Communities{B {O$-ԍSee Cable & Station Coverage Atlas, Warren Publishing, Inc., 1990, at Map 47.{ and the fact that WGOTTV and the relevant communities are some 42 to 58 miles apart. " |,N(N(ZZ"Ԍ X-x D. Translator Coverage  X- ` x20. ` ` Paxson references a translator station that it has acquired in Boston as evidence of  xthe appropriate scope of its market and identifies 27 communities that it contends are within the  x"Grade B" contour of the translator. Of these communities, however, only one is specifically  xinvolved in this proceeding. With respect to that community (Foxboro), Time Warner undertook  xactual measurements at its headend site and found no acceptable quality signal even at the 75 foot  x[level. According to an affidavit filed by Time Warner, the translator was not even in operation  xKduring four days in February 1997 when it attempted to take additional measurements. Moreover,  xcommercial translators are secondary service stations explicitly not entitled to carriage in their  X - xown right. B {O - xK#X\  P6G;P#эSee 47 U.S.C. 534(h)(1)(B)(i) (The term "local commercial television station" shall not include low power stations, television translator stations, and passive repeaters.) Accordingly, the service provided by WGOTTV's translator is of little significance in the market modification analysis.  X -x D. Summary  X - ` x21.` ` Section 614(h)(1)(C) of the Communications Act requires the Commission to  xinclude or exclude particular communities from a television station's market for the purpose of  xensuring that a television station is carried in the areas which it serves and which form its  xjeconomic market. We believe that the requested exclusion of the Communities served by Time  xWarner Cable's cable system from WGOTTV's television market will better effectuate the  xpurposes of the mustcarry statutory provisions. In reaching this conclusion, we have considered  xthe statutory factors under which the value of WGOTTV to community localism is to be tested  xand found it to be lacking. Local television guides available in the Communities served by Time  X- xWarner Cable's system contain no listing for WGOTTV.A"B yO-ԍPetition, Attachments 2A.A WGOTTV has at best a minimal  xviewing presence in the instant Communities, which are located approximately 42 to 58 miles  xKfrom WGOTTV. Furthermore, the station has never been carried on the cable system in question,  x-offers no significant level of programming specifically for the relevant communities, and provides  xino overthe air signal coverage of the Communities. We have carefully considered each statutory  X|- xfactors in the context of the circumstances presented here_|B {O- xԍWe are under no obligation to give particular weight to any particular one of the several statutory factors. See  {O - xTime Warner Entertainment Co. v. FCC, 56 F.3d 151, 175 (D.C. Cir. 1995); Accord Omnipoint Corp. v. FCC, 78  xF.3d 620, 633634 (D.C. Cir. 1996) (When Congress directs an agency to consider certain factors, the agency simply  x"must reach an express and considered conclusion about the bearing of a factor, but is not required to give any specific weight to it.")_ and conclude that grant of Time  Xe-Warner Cable's petition will effectuate the purposes of the must carry statutory provisions. "N f ,N(N(ZZ"  X- V. ORDER  X- ` x22. ` ` Accordingly, IT IS ORDERED , pursuant to 614(h)(1)(C) of the Communications  x/Act of 1934, as amended, 47 U.S.C. 534(h)(1)(C), and 76.59 of the Commission's Rules, 47  xC.F.R. 76.59, that the petition for special relief filed by Time Warner Cable in File No. CSR  X-4917A IS GRANTED .  X_- ` px23.` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William H. Johnson x` `  hh@Deputy Chief, Cable Services Bureau