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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: ) ) Complaint of Reading Broadcasting, Inc.CSR-4925-M) against ) ) Comcast Cablevision of Willow Grove, Inc.) ) Request for Carriage ) ) Comcast Cablevision of Willow Grove, Inc. CSR-4951-A) ) For Modification of the ADI of ) Station WTVE ) MEMORANDUM OPINION AND ORDER Adopted: June 23, 1997 Released: June 26, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Reading Broadcasting, Inc. ("WTVE"), licensee of station WTVE (Channel 51), Reading, Pennsylvania, has filed the above-captioned signal carriage complaint (CSR-4925-M) against Comcast Cablevision of Willow Grove, Inc. ("Comcast"), operator of a cable television system serving Abingdon, Bryn Athyn, Cheltenham, Jenkintown, Lower Moreland Township, Rockledge, and Upper Moreland Township, Pennsylvania. These communities, as is Reading, which is WTVE's city of license, are located in the Philadelphia area of dominant influence ("ADI"). Comcast has opposed WTVE's complaint. In addition, Comcast has filed the above- captioned petition (CSR-4951-A) to modify the market of WTVE, to remove the communities Comcast serves from the station's market. WTVE has opposed Comcast's petition, and Comcast has replied. We are consolidating these cases for processing to determine the signal carriage rights of WTVE in the communities Comcast serves. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket No. 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)(l)(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 1992 Cable 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 new 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 in 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 No. 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 demon- strated 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 an ADI change request. ARGUMENTS OF THE PARTIES 8. Signal Carriage Complaint (CSR-4925-M). WTVE states that its city of license and the communities Comcast serves are all located in the Philadelphia ADI, and that WTVE is thus entitled to carriage on Comcast's cable system. WTVE states that it has installed receiving equipment at its own expense on Comcast's tower to allow Comcast to receive a good quality signal from the station. WTVE complains that despite this installation, as well as receiving an oral assurance of carriage from Comcast's former General Manager, Comcast now refuses to carry WTVE's signal. Accordingly, WTVE requests that the Commission order Comcast to commence carriage of WTVE's signal. 9. In response to WTVE, Comcast states that it is filing a petition to modify the ADI of WTVE to delete the communities Comcast serves from WTVE's ADI. Accordingly, states Comcast, it need not carry the signal of WTVE pending resolution of this ADI market modification petition. 10. Market Modification Petition (CSR-4951-A). Comcast states that it has never carried WTVE, even though the station began operation in November 1980. Comcast argues that the Commission has previously stated that natural landforms and geographic distance should be considered in determining whether to delete communities from a station's ADI, and states that WTVE's city of license is, on average, about 46.7 miles from Comcast's communities. Comcast describes WTVE's programming as primarily children's programming, paid programming, movies, Fox sports news, and Harrisburg and Hershey, Pennsylvania area sporting events. Comcast contends that this programming has no nexus with Comcast's communities. Comcast notes that it does carry on its system several Philadelphia ADI licensees which provide coverage of local news and sporting events. In addition, Comcast carries education and government access channels as well as local origination channels. Comcast further argues that WTVE's viewing in Montgomery County is minimal, and is not even listed by Nielsen for that county. 11. WTVE argues in opposition that it has no history of carriage on Comcast's system because until passage of the Satellite Home Viewing Act in 1994, amending the Copyright Act, WTVE had no right to mandatory carriage on Comcast's system unless it indemnified Comcast against costly copyright payments. WTVE notes that, based on Comcast's 1996 assurance of carriage to WTVE, the station invested in installation and testing equipment to ensure delivery of a good quality signal to Comcast's principal headend. WTVE states that its Grade B signal contour encompasses all of Comcast's communities, and that this is sufficient to demonstrate service to those communities. 12. In reply, Comcast argues that the question of a station's historic carriage is properly weighed in analyzing market modification petitions, and notes that WTVE has not even been carried in the three years since the Copyright Act was amended. Comcast states that WTVE does not dispute that its city of license is distant from Comcast's communities, nor does WTVE address the question of its actual local programming. Comcast notes, too, that WTVE does not dispute its lack of measured viewing in the communities Comcast serves. ANALYSIS AND DECISION 13. We turn first to Comcast's market modification petition, to determine whether the communities served by Comcast should be removed from WTVE's ADI. A resolution of this matter will determine whether WTVE is eligible to claim carriage rights in these communities. 14. In view of all the facts and circumstances relevant to this proceeding, we find that the communities Comcast serves in the Philadelphia ADI are not so attenuated from WTVE to warrant deleting these communities from the station's ADI. While we recognize that WTVE has no history of carriage in the communities in question, where, as is the case here, a petitioner seeks to delete its communities from a station's ADI with respect to a cable system, we believe that failure to establish historic carriage should not, by itself, be given determinative weight. Nor do we believe that Comcast has succeeded in demonstrating that WTVE does not provide local service to Comcast's communities. All of the communities in question are encompassed by WTVE's Grade B contour, and the communities nearest to WTVE's city of license lie just approximately ten miles beyond the station's Grade A contour. We find this evidence of local service to be decisive. This differentiates this case from Rifkin/Narragansett South Florida CATV Limited Partnership, supra, in which the stations in question failed even to place a Grade B contour over the communities in question. Comcast argues that the sports news and other sporting events coverage WTVE provides has no specific nexus with Comcast's cable communities. However, Comcast has not demonstrated that WTVE's sports programming does not constitute "sporting . . . events of interest to the communit[ies]" within the meaning of the Communications Act. 15. The third factor to consider in market deletion cases is the availability of other broadcasters in the market. While carriage of other local stations may be used as an enhancement factor to support a cable operator's deletion request when there is other evidence in the record that the communities at issue are outside of the station's market, this is not the case before us. That Comcast carries other stations which arguably provide news or other coverage of issue of concern to Comcast's communities is not sufficient in this context to justify removal of the communities from WTVE's ADI. With respect to viewership (the fourth statutory factor), Comcast argues that WTVE lacks viewing in the communities Comcast serves, and demonstrates this with Nielsen viewership data, which records no viewing of WTVE in communities in Chester or Delaware Counties. However, WTVE's lack of carriage in these heavily cabled communities, as well as the station's specialty station type programming format, likely explain why WTVE's ratings are low in Chester and Delaware Counties. We believe that in the circumstances of the present case a station's limited viewership should not be given determinative weight, in view of the heavily cabled nature of the communities. 16. In view of the foregoing, we find that Comcast has not demonstrated that WTVE lacks a sufficient nexus with the communities Comcast serves. Deletion of these communities from WTVE's ADI is therefore not warranted. 17. Turning to WTVE's signal carriage complaint, having found that grant of Comcast's petition for market modification is not warranted, we find the only issue remaining is that of WTVE's signal strength. WTVE states that it has already installed receiving equipment at its own expense on Comcast's tower to allow Comcast to receive a good quality signal from the station. Comcast does not deny this, nor refutes WTVE's contention that it provides a good quality signal to Comcast. Consequently, we shall order Suburban to carry WTVE's signal. ORDERING CLAUSES 18. Accordingly, IT IS ORDERED, that the petition for special relief (CSR-4951-A) filed March 3, 1997 by Comcast Cablevision of Willow Grove, Inc. IS DENIED. 19. IT IS FURTHER ORDERED, that the "Complaint" (CSR-4925-M) filed January 30, 1997 by Reading Broadcasting, Inc., IS GRANTED, in accordance with 614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C. 534) and 47 C.F.R. 76.56(b). Comcast Cablevision of Willow Grove, Inc. IS ORDERED to commence carriage of television station WTVE within sixty (60) days from the release date of this Order. WTVE shall notify Comcast Cablevision of Willow Grove, Inc. in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty (30) days of the release date of this Order. 20. 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