******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) Harron Cablevision of Massachusetts, d/b/a)CSR-4987-A Harron Communications Corp. ) ) For Modification of the ADI of Television) Broadcast Station WNDS, Derry, New) Hampshire ) MEMORANDUM OPINION AND ORDER Adopted: August 14, 1997Released: August 18, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1.Harron Cablevision of Massachusetts, d/b/a Harron Communications Corp. ("Harron"), filed the above-captioned petition for special relief seeking to modify the Boston, Massachusetts Area of Dominant Influence ("ADI") relative to television broadcast station WNDS (Ch. 50), Derry, New Hampshire. Specifically, Harron requests that WNDS be excluded for purposes of the cable television mandatory broadcast signal carriage rules from the communities of Pembroke, Halifax, Plympton, Abington, and Rockland, Massachusetts. An opposition was filed on behalf of CTV of Derry, Inc., licensee of Station WNDS to which Harron has replied. BACKGROUND 2.Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, 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)(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 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 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 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. MODIFICATION ARGUMENTS 8. The communities here in question are located in Plymouth County, Massachusetts and are considered to be part of the Boston, Massachusetts ADI. Derry, New Hampshire, the city of license of WNDS, is also part of the same ADI. WNDS is located approximately 56 miles from the nearest of the communities served by Harron. 9. In support of its request, Harron argues that WNDS should be excluded from carriage on its system because it fails to meet any of the criteria for market stations. First, Harron states that there is no history of carriage of WNDS on any of its systems. Although Harron states that it has recently received requests for carriage from WNDS for its systems serving Pembroke and Rockland, it maintains that WNDS' attempts to secure mandatory carriage would be contrary to the purposes of the must carry rules. Moreover, Harron argues that forcing it to add WNDS to its systems could require it to remove existing programming which is responsive to its subscribers' needs. Secondly, Harron points out that not only does WNDS' Grade B contour not encompass any of the communities at issue, but the station is geographically remote as well. Harron states that the closest community, Rockland, is 56 miles from WNDS' city of license while the farthest, Plympton, is 69 miles away. It maintains that these distances are even farther away than those cited in two previous modification requests where the Commission granted the requests of two cable systems to exclude WNDS from their system communities. Third, Harron indicates that WNDS provides no programming covering issues of specific concern to its subscribers. Indeed, it states that a good portion of its programming seems to be geared to New Hampshire residents. Finally, Harron stresses that issues of concern to its subscribers are more than adequately covered by the local stations it currently carries on its systems. 10. In its opposition, WNDS argues that Harron's showing with respect to the four modification factors is weak and insufficient to overcome the legislative presumption in favor of mandatory carriage. WNDS points out that the Commission has previously stated in exclusion cases that lack of historic carriage "should not be given great weight." In any event, WNDS states that until 1994 and the passage of the Satellite Home Viewer Act of 1994 it was considered, for copyright purposes, a "distant signal" for Harron's systems which precluded carriage. WNDS states further that despite its lack of Grade B coverage, it provides a sufficiently good quality signal to be entitled to must carry status in Harron's communities. Moreover, since Congress specified an economic market approach rather than a Grade B standard for must carry, WNDS argues that it should be entitled to carriage throughout the market. In addition, WNDS states that it is immaterial that Harron carries other local stations which provide local programming to its subscribers. It indicates that the Commission has previously held that "[W]e do not believe Congress intended the third criterion to operate as a bar to a station's ADI claim whenever other stations could also be shown to serve the communities at issue." Finally, WNDS argues that its lack of viewership is unimportant and, as stated by the Bureau in Greater Worcester Cablevision, supra," its lack of carriage could explain why its ratings are low in the relevant communities. . . ." 11. In its reply, Harron argues that WNDS does not offer any factual or legal support to rebut the showing made in its modification request nor does it introduce any evidence or factual information in support of its contentions. Although WNDS seeks to downplay the value of the four modification factors, Harron notes that the Commission has stated that in order to "ensure that television stations be carried in the areas in which they serve and which form their economic market" it must pay particular attention to the value of localism by considering these four factors. Under these factors, Harron concludes that its petition should be granted. DISCUSSION 12.Based on the four statutory and other relevant factors, Harron's petition will be granted. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they service and which form their economic market." Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements. The ADI market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that the operator's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Harron's actions do not reflect an intention to skirt its signal carriage responsibilities under the Communications Act and the Commission's Rules nor do they evidence a pattern of discriminatory conduct against the station subject to deletion. Based on the geography and the statutory factors, we believe that the communities in question are sufficiently removed from WNDS that they ought not be deemed part of the station's market for mandatory carriage purposes. We believe Congress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly rectified through the special relief process. 13.At the outset, the evidence suggests that WNDS does not provide local service to the communities in question. WNDS does not place either a Grade A or Grade B contour over the cable communities. In addition, we do not believe that it has been shown that WNDS carries programming of specific local interest or import for cable viewers in the instant communities. The WNDS programming information provided to us indicates programming of potential general interest but without specific ties to the communities at issue in this matter. 14.We also believe that Harron's carriage of other local television stations provides support for the requested action. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. In this case, there are several television stations carried by Harron which have a nexus to the system communities herein. 15.Harron also demonstrates that WNDS has no historical carriage on the cable systems in question, despite 13 years of operation, and has no reported audience in Plymouth County, where the cable systems are located. We note that these facts are not determinative, in and of themselves, of the relationship between the cable communities and the market of the television station, nor should their absence permit a cable operator to undermine the objectives of the mandatory carriage requirement. However, we also note in this instance, that Derry, New Hampshire, WNDS' city of license, is located from 56 to 69 miles from Harron's various headends. The distances involved in this situation further attenuates the local ties that the station might have to the cable communities and helps explain why the station's viewership is too low to be reported. Thus, we conclude that the lack of historical carriage and the dearth of audience is of evidentiary significance when linked with other information regarding the market and the particular distances involved, particularly where a station has been broadcasting since 1983 and has no reportable audience share in the relevant community. 16.This is not a situation where the carriage pattern suggests that a station is logically part of the market for carriage purposes, but has not been carried for competitive reasons. Nor do we believe that the operator has impermissibly singled out WNDS from among other similarly situated stations as the sole station it has declined to carry. ORDERING CLAUSES 17.Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534, and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief, filed March 26, 1997, on behalf of Harron Cablevision of Massachusetts d/b/a Harron Communications Corp. IS GRANTED. 18.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