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(1) (a) (i) 1) a)D )DDDFrf9q Times New RomanTimes New Roman BoldTimes New Roman ItalicCG TimesTimes New Roman Bold Italic:,+Xj\  P6G;XP7nC:,Xn4  pG;Xy.\80, {\4  pG;pDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd/>/>/>/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""<.<<<<(#,%2h>*f9 xr G;hX6jC:,ELXj9 xOG;XRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (2wf AgW]D^r",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d<|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`Ly.X80,IX\  P6G;P7jC:,+Xj\  P6G;XP7nC:,Xn4  pG;Xy.\80, {\4  pG;W!@(#,9h@\  P6G;hP H5!,,5\  P6G;,P\5hC:,%Xh*f9 xr G;XX \{,W80,%W*f9 xr G;X8wC;,<=9Xw PE37XP\X >(#,%2h>*f9 xr G;hX6jC:,ELXj9 xOG;X"i~'^09]SS999S]+9+/SSSSSSSSSS99]]]Sxnxx?Snxgx]nxxxxn9/9aS9S]I]I9S]/9]/]S]]I?9]SxSSIC%CW9+Wa999+999999S9]/x27w yO- X   )^} X-w #Xj\  P6G;+XP# Federal Communications Commission`)(# DA 971338 ă  yxdddy )Cv3 Before the Federal Communications Commission  yO} Washington, D.C. 20554 #Xj\  P6G;+XP#у T  XA-In re:x` `  hh@h)pp  xx 0(#(#X X*-x` `  hh@h)pp  xx 0(#(#X  X- #2 TKR Cable Companyhh@h) CSR4929A  X-Sussex and Morris Counties, New Jersey@h) x` `  hh@h)  X-For Modification of Television hh@h)  X-Broadcast Station WLNY's ADIhh@h) T  Xr -  MEMORANDUM OPINION AND ORDER TP  XD -X` hp x (#%'0*,.8135@8: g yOR-ԍ10 FCC Rcd 668 (1995).>  xin which it determined not to remove certain cable communities from the Los Angeles, California  xADI insofar as carriage of a particular station was concerned, WLNY maintains that its carriage  x.in nearby communities, especially in the same county, also demonstrates some degree of local  xservice and militates against redesignation of its market. The station adds that it aired more New  xMJersey stories during the month of April 1995 than did the NBC network affiliate licensed to  xjserve New York, and that its daily news coverage already includes New Jersey weather reports  x<and professional sports team scores. The station notes that it has a news bureau in Wayne, New  xjJersey, and that it airs a weekly public affairs program called "New Jersey Today." The station  x.also states that it includes New Jersey news in its one hour of selfproduced local news that it  xbroadcasts each day, and during the 1994 and 1995 football season, WLNY states that it was the  xonly station in the New York ADI that broadcast a complete college schedule of Metro Atlantic  x=Athletic Conference games, in addition to airing a schedule of Big East basketball games. The  xstation also broadcasts Catholic morning mass every weekday for viewers who cannot go in  x>person, and it broadcasts four halfhours of selfproduced public affairs programming each  xweekend, featuring panel discussions and interviews concerning important public issues in the  xNew York ADI, as well as a daily halfhour public affairs program covering issues of general interest.  X&- ` x11.` ` According to WLNY, it also airs more local programming than did the subject  X- xstation in Time Warner Cable (North Carolina),>Xm yO"-ԍ10 FCC Rcd 962 (1995).> in which the Bureau denied the request to  xdelete the designated communities from the RaleighDurham, North Carolina ADI insofar as the  xsubject station was concerned. WLNY adds that neither  614 of the Communications Act, as  xamended, nor its legislative history contains any reference to the necessity for commercial stations  xplacing Grade B contours over communities where they want mandatory carriage on the local  x cable system. The station adds that the New York ADI is a single, unified market, and that"",N(N(ZZ!"  xkthousands of people commute there for jobs daily, so that, rather than constituting a barrier  xxbetween the designated communities and WLNY, the City in fact facilitates synergy between New  xJersey and Long Island. According to WLNY, its general entertainment and substantial local  X- xnews and public affairs programming fully satisfies the Bureau's "local service" standard,)xm yO4- x;ԍAccording to WLNY, of the seven New Jersey stations in the New York ADI, one is a homeshopping affiliate  x(WHSE, Channel 68, Newark, New Jersey); two are public television stations, which often duplicate each other  x;(WNET, Channel 13, Newark, New Jersey, and WNJNTV, Channel 50, Montclair, New Jersey); three stations that  xYbroadcast in foreign languages (WXTV, Channel 41, Paterson, New Jersey; WNJU, Channel 47, Linden, New Jersey;  xand WMBCTV, Channel 63, Newton, New Jersey); and the remaining station (WWORTV, Channel 9, Secaucus,  xiNew Jersey) is a UPN network affiliate, which carries about the same amount of general interest programming as does WLNY.) and  xthe fact that other stations may serve the specified communities has previously been held by the  X- xjBureau not to bar a station's ADI claim, such as in Kansas City Cable Partners,Em yOF -ԍ10 FCC Rcd 3807, 3809 (1995).E in which the  xBureau denied a request to delete certain cable communities from the Kansas City, Missouri ADI  xwith respect to mandatory carriage of a home shopping station, even though the cable operator  xhad demonstrated carriage of various other local television stations. Moreover, WLNY states that  xits lack of reported viewership should not serve as a basis for eliminating its mustcarry right  xsince that would eviscerate Congress' entire ADIbased mustcarry plan, which was designed to  x help UHF stations whose low marketbased ratings frequently resulted from a lack of cable  X - xcarriage by local cable systems.\ m {O7- x]ԍIn support of this contention, WLNY cites the Bureau's decision in Time Warner Entertainment {O- x-Advance/Newhouse Partnership, in which it granted a request to delete various cable communities from the New York, New York ADI insofar as mandatory carriage of WLIG was concerned. 11 FCC Rcd at 6555. WLNY concludes that its programming and historic cable  xkcarriage provide a stronger case for TKR's carriage of its signal than for its carriage of other UHF stations.  X -   X- ` x12.` ` In reply, TKR notes that the location, power, and height of WLNY's transmitter  xdemonstrates that the station chose to serve Long Island, New York. TKR adds that the Bureau  xKhas paid substantial attention to geography, to distance, and to Grade B coverage in deciding the  xdozens of ADI modification orders that it has released so far. In addition, TKR states that the  xCommission has frequently utilized Grade B coverage in the past to determine a television  xstation's local service area, and that the considerable distance between WLNY's Grade B contour  xand the specified cable communities ". . . makes it clear that WLNY opted to serve an economic  X- xKmarket that does not include TKR."~ m yO^"- xԍTKR notes, among other things, that the cable communities were within the subject station's City Grade contour  {O&#- xin Fouce Amusement, 10 FCC Rcd at 671. In Time Warner (North Carolina), the cable communities were also  xKwithin the subject station's Grade B contour and the station received "appreciable offair viewership" as well. 10  {O$- xFCC Rcd at 96364. In Time Warner (Texas), the specified cable communities were not only located within the  xZsubject station's City Grade contour, but they were also located within approximately twenty miles of the subject  {OJ&- x\station's transmitter and its city of license. 10 FCC Rcd at 6667. In Kansas City, some of the designated  xcommunities were within the subject station's City Grade contour; some were in its Grade A contour; the remainder"',N(N(Y'"  xiwere in its Grade B contour; in addition, all the specified communities were located within 54 miles of the subject  yOX-station's city of license. 10 FCC Rcd at 3809.    TKR notes that WLNY has not shown that carriage by any" ,N(N(ZZ"  xof the New Jersey cable systems it mentions predated the carriage mandate of the 1992 Cable  xAct. TKR adds that, even though WLNY has been on the air since 1985, it still has not  xLdemonstrated how any of its programming is of particular interest to viewers in the designated  x]communities in Sussex and in Morris Counties. TKR also explains that when the station  xLconcerned provides no local service to the cable communities, such as in the present case, the  X- x=Commission will consider evidence of local programming by other stations in deletion cases.\ m {O^ - xiԍAccording to TKR, this was the case in Time Warner EntertainmentAdvance/Newhouse Partnership, supra,  {O( - xxbut it was not the case in Kansas City Cable Partners, supra, because in the latter case, the station placed a Grade B contour over the cable community, so the factor was not considered.  xAccording to TKR, it has shown the availability of ample local programming from the abundance  1x@of other stations carried by TKR by its Dover/Morris system..  XH-   X1-w ANALYSIS AND DISCUSSION  X -  X - ` x13.` ` We will grant TKR's request. Based on geography and other relevant information,  xwe believe that the New Jersey cable communities are sufficiently removed from WLNY that  X - xLthey ought not be deemed part of the station's market for mandatory carriage purposes.E Dm yO-ԍH.R. Rep. 102628, at 9798. E The  xevidence before us distinguishes these communities from the rest of the New York television  xmarket and persuades us that the action requested would better effectuate the purposes of  614 of the Communications Act.  Xb- ` Bx14.` ` The New York ADI is the nation's largest television market with approximately  x6.7 million television households and over 9 million cable viewers. Geographically, the market  X4- x-encompasses some 29 counties in four states,@4m yO- xԍThe following counties are located in the New York ADI: (1) Pike County, PA; (2) Fairfield County, CT; (3)  xOcean County, NJ; (4) Monmouth County, NJ; (5) Middlesex County, NJ; (6) Somerset County, NJ; (7) Union  xxCounty, NJ; (8) Hudson County, NJ; (9) Essex County, NJ; (10) Hunterdon County, NJ; (11) Warren County, NJ  xK(12) Sussex County, NJ; (13) Morris County, NJ; (14) Passaic County, NJ; (15) Bergen County, NJ; (16) Suffolk  x<County, NY; (17) Nassau County, NY; (18) Westchester County, NY; (19) Rockland County, NY; (20) Putnam  xCounty, NY; (21) Dutchess County, NY; (22) Orange County, NY; (23) Ulster County, NY; (24) Sullivan County,  xNY; (25) Queens County, NY; (26) Kings County, NY; (27) Richmond County, NY; (28) New York County, NY; and (29) The Bronx, NY. and is roughly 170 miles long and 150 miles wide,  xstretching north into Ulster County and the Catskill Mountains, then down the shores of  x[Monmouth and Ocean Counties, New Jersey to the south; Pike County, Pennsylvania is at the  x<westernmost edge of the market which then extends eastward to include Fairfield County, CT and",N(N(ZZ"  X- xall of Long Island, NY. m yOy- xwԍThe AlbanySchenectadyTroy ADI abuts the New York ADI to the north; the HartfordNew Haven ADI abuts  xLthe New York ADI to the east; the Philadelphia ADI abuts the New York ADI to the southwest; the Wilkes x<Barre/Scranton ADI abuts the New York ADI to the west; and the Binghamton ADI abuts the New York ADI to the northwest. The core of the ADI is New York City, the largest city in the United  xStates, and the community of license for several local commercial television stations. WLNY,  x.which signed ontheair in 1985, broadcasts on Channel 55 from a transmitter located in Ridge,  xNew York. The station's city of license is Riverhead, New York with its studios located in Ridge, New York.  Xv- ` 2x15.` ` As an initial matter, we note that, according to the legislative history of the 1992  xCable Act, the use of ADI market areas is intended "to ensure that television stations be carried  XH- x<in the areas which they service and which form their economic market.ZHm yO -ԍH.R. Rep. 102628, 102d Cong., 2d Sess. 97 (1992).Z Changes may be sought  xand granted by the Commission "to better effectuate the purposes" of the mandatory carriage  X - xrequirements.= @m yO -ԍ47 U.S.C. 534(h).= The ADI market change process incorporated into the Communications Act,  xhowever, is not intended to be a process whereby cable operators may seek relief from the  xmandatory signal carriage obligations apart from the question of whether a change in the market  x>area involved is warranted. When viewed against this backdrop, and considering all of the  xMrelevant factual circumstances in the record, we believe that the operator's deletion petition  xZappears to be a legitimate request to redraw ADI boundaries to make them congruous with market  xzrealities. TKR's actions do not reflect an intention to skirt its signal carriage responsibilities  xunder the 1992 Cable Act and the Commission's rules nor do they evidence a pattern of discriminatory conduct against the station.  X4- ` x16. ` ` Turning to the statutory factors, we note that WLNY has no history of cable  xcarriage on the systems subject to the modification request prior to passage of the 1992 Cable  xAct, and that carriage patterns that have developed coincident with changes in the statutory  xKcarriage obligation provide only equivocal information as to the connection of these communities  X- x>with WLNY in terms of the market participants understanding of the scope of the market.wXm yOY- xxԍWe also note that, according to Commission records, a number of the communities cited by WLNY as being  xlocated relatively close to TKR's Dover/Morris system, but served by cable systems other than TKR that carry WLNY's signal, seem only to be served by TKR, including Morristown, Rockaway, and Stanhope.w  x<Thus, the fact that some New Jersey cable systems currently carry the station when mandated by  xKlaw is not highly probative of establishing a history of carriage for our purposes here, particularly  xKwhen, as in this instance, WLNY has been operating for over a decade. Others of the New Jersey systems cited as carrying WLNY are also significantly closer to WLNY's service area.  XN- ` `x17.` ` The evidence also suggests that WLNY does not provide local service to the  xcommunities in question. WLNY does not place either a Grade A or Grade B contour over the"7 ,N(N(ZZ"  X- x"cable communities. m 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. In addition, WLNY is geographically distant from TKR's cable  xLcommunities. As the operator notes, the station's transmitter is located approximately 87 miles  xfrom its Dover/Morris headend. Because WLNY is located in a different state and its city of  xlicense is more than 100 miles from TKR's closest New Jersey cable community, we cannot  xignore distance as a determinative factor in this particular instance. The interposition of New  xYork City with its tall buildings and urban electrical noise and its transportation and population  xcongestion blocking television reception must also be reflected in our decision. Here, New York  xCity creates an economic divide between the station and the cable communities since, from a  xkpractical perspective, a New Jersey cable viewer is unlikely to travel and purchase goods or  x/services by a Long Island firm advertising on WLNY. The fact that the station has heavily  xinvested in fiber optic plant and equipment to improve its signal quality does not convert WLNY  xjinto a "local" station for the purposes of the market modification analysis. While we recognize  xthat the station has attempted to target some of its material to the needs and interests of New  xJersey residents, we find that the majority of the station's programming is of general interest, rather than specifically tailored to the TKR's cable communities.  X- ` Bx18.` ` We also believe that TKR's carriage of other local television stations provides  xsupport for the action requested in this particular case. Where a cable operator is seeking to  xdelete a station's mandatory carriage rights in certain communities within its ADI, and it is clear  xythat the station is not providing local service to those communities, the issue of local coverage  xby other stations becomes a factor which we will give greater weight than in cases where a party  x.is seeking to add communities. In this particular instance, there are several television stations  x licensed to New Jersey, that have a closer economic nexus and provide more focused local  xprogramming to TKR's viewers than does WLNY. These market facts, coupled with the distance  X-between the cable communities and WLNY, supports TKR's argument under the third factor.      X-  X- ` Bx19.` ` The distances involved in this situation, together with the lack of a Grade B or  xbetter contours, further attenuates the local ties that the station might otherwise have to the cable  xcommunities and helps explain why the station's viewership is too low to be reported in Sussex  xand in Morris Counties. We conclude, therefore, that despite its carriage as a result of the 1992  xCable Act, when considered with other information regarding the market and the particular  X7- xdistances involved, the dearth of audience is of evidentiary significance.!Z7"m yO !- x;ԍWe also note that WLNY had no reported viewing share either on cable or offair in any of the following New  {O!- xJersey Counties, where it states it is receiving cable carriage, according to Nielsen's 1995 County/Coverage Study: Bergen, Essex, Hudson, Middlesex, Monmouth, Passaic, Somerset, or Union. In these circumstances,  xywe cannot discount the absence of viewership as an indication of the scope of WLNY's market area.  X- ` x20.` ` In view of the above, we will grant TKR's request to delete the designated  xcommunities in Sussex and Morris Counties from the New York ADI insofar as mandatory" D!,N(N(ZZ" carriage of WLNY is concerned.  X-x  ORDERING CLAUSES  X-  X- ` ~x21.` ` Accordingly, IT IS ORDERED, pursuant to 614(c) of the Communications Act  xof 1934, as amended, 47 U.S.C. 534 and 76.59 of the Commission's Rules (47 C.F.R. 76.59),  xthat the "Petition For Special Relief" (CSR4929A) filed by TKR Cable Company IS GRANTED.  X1- ` x22.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules.  X -x` `  hh x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  "s hhWilliam H. Johnson  Xy-x` `  Deputy Chief, Cable Services Bureau