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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 Petition of ) ) Time Warner Cable and ) Paragon Cable of Mount Vernon ) For Modification of Television Market of)CSR 5005-A Station WHAI-TV, Bridgeport, Connecticut) ) In re Complaint of ) ) Paxson New York License, Inc. ) against Time Warner Cable and )CSR 4977-M Paragon Cable of Mount Vernon ) For Carriage of WHAI-TV, Bridgeport, Connecticut) MEMORANDUM OPINION AND ORDER Adopted: August 14, 1997Released: August 18, 1997 By the Deputy Chief, Cable Services Bureau: 1.Time Warner Cable, operator of a cable television system serving the Village of Cornwall, the Town of Cornwall, New Windsor, the Town of Newburgh, the City of Newburgh, Marlboro, and Stewart Army Post, New York, and Paragon Cable of Mount Vernon, operator of a cable television system serving Mount Vernon, New York, filed the captioned petition which seeks to exclude the Communities from the market of television station WHAI-TV (Channel 43), Bridgeport, Connecticut. Paxson New York License, Inc., ("Paxson"), licensee of WHAI-TV filed an opposition to Time Warner's petition, and Time Warner filed a reply. Paxson also filed a must carry complaint seeking carriage of WHAI-TV on Time Warner's cable systems serving the Communities, which Time Warner opposed and which we resolve herein. BACKGROUND 2.Pursuant to Section 614 of the Communications Act of 1934, as amended by the Television Consumer Protection and Competition Act of 1992 ("1992 Cable 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.The Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) further 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, Section 614(h)(1)(C)(ii) 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 news 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 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 demonstrated 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. In adopting rules to implement this provision, the Commission indicated that changes requested 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. MARKET FACTS AND ARGUMENTS OF THE PARTIES 6.The Communities at issue in this proceeding, with the exception of Mount Vernon, are located in Orange County, New York along the western side of the Hudson River. Mount Vernon is located in Westchester County adjacent to New York City. Although these Communities and WHAI-TV's city of license, Bridgeport, Connecticut, are all located within the New York ADI, WHAI-TV is located approximately 50 miles northeast of Time Warner's Mount Vernon system, and approximately 70 miles from the Newburgh system serving the Communities in Orange County. Time Warner contends that WHAI-TV has never been carried on either of its cable systems serving these Communities nor on numerous other cable systems in the New York ADI that are close to the Communities, that WHAI-TV has never provided local service to the Communities in terms of coverage or programming, that other local television broadcast stations and non-broadcast services carried by Time Warner provide substantial local service to residences of the Communities, and that WHAI-TV is barely viewed in the Communities, if at all. 7.Time Warner asserts that the Commission in other instances has deleted from WHAI-TV's television market several other markets in the New York ADI that have characteristics, in terms of the statutory four factor market modification criteria, that are quite similar to that presented in the present petition. In support of this contention, Time Warner cites Continental Cablevision of Western New England, Inc., 11 FCC Rcd 6488 (CSB 1996), in which the communities of Stony Point, West Haverstraw, Haverstraw, Pomona, and Ramapo, New York, along the western side of the Hudson River in Rockland County, located immediately south of Orange County, were deleted from WHAI-TV's market. Time Warner contends therefore that, just as in Continental Cablevision, this case satisfies the four market modification criteria set forth in Section 614(h)(1)(C)(ii). With respect to the historical carriage factor, Time Warner claims that it has never carried WHAI-TV. Time Warner asserts that WHAI-TV does not provide signal coverage to the Communities, because all of the Communities are located beyond the Grade B contour of WHAI-TV. Time Warner notes that in Continental Cablevision, the Commission excluded from the market of WHAI-TV communities that are substantially less distant from WHAI-TV than are the Communities at issue here. 8.Time Warner contends that WHAI-TV airs no meaningful local interest programming targeted to the Communities. Time Warner asserts that WHAI-TV is affiliated with Paxson's "Infomall TV Network" stations, which offer infomercials all day and religious programming almost exclusively. Time Warner contends the Commission, in other instances, has found such programming not to have any specific ties to particular cable communities under consideration, and that the same conclusion is called for here, because Paxson stations nationwide, including WHAI-TV, utilize essentially the same format which has no specific nexus to the Communities served by the Time Warner. 9.Time Warner also contends its systems carry numerous New York area stations which provide ample local service to, and coverage of, the communities in question. Time Warner claims these other New York stations provide coverage of local news and sporting events, including that of New York area professional sports teams. Time Warner also identifies several programs presented by New York area stations carried on both the Mount Vernon and the Newburgh systems that are directed toward the Communities these systems serve. It notes further that both the Mount Vernon system and the Newburgh system carry local government access channels and public access channels. 10.Finally, Time Warner contends WHAI-TV is not generally viewed in either Westchester County or Orange County where the Communities are located. Time Warner submitted pages from the 1993, 1994, 1995, and 1996 Nielsen Media Research reports for counties in the New York DMA, and points out that WHAI-TV does not appear in these Nielsen daypart ratings for Westchester and Orange counties. Time Warner submits that this lack of daypart ratings for WHAI-TV shows that Mount Vernon and Newburgh viewers have established, through their choices of stations, that WHAI-TV's programming is of little interest to them and fails to address their viewing needs. Time Warner argues that WHAI-TV's lack of viewership in the Communities reflects the station's lack of connection to the Communities. 11.In opposition, Paxson contends that Time Warner seeks modification of the station's market in order to avoid its obligations under the must-carry rules. Paxson contends that the must-carry rules were designed, in large part, to protect the small, vulnerable, independent commercial stations from being denied cable carriage so that they could compete effectively for viewership and advertising revenues. Paxson argues that Time Warner seeks to delete the type of station that the must-carry rules were designed to protect. Paxson asserts in essence that the must-carry rules require carriage of a television station like WHAI-TV throughout the station's ADI. Under the must carry regime of the 1992 Cable Act, Paxson asserts that WHAI-TV, which is located in the New York ADI with Time Warner's cable systems, is entitled to a strong presumption in favor of carriage on Time Warner's cable systems serving those Communities. 12.Paxson argues that Section 614(h)(1)(C)(ii) of the Act authorizes the Commission to modify ADI markets "to better effectuate the purposes of this section," which Paxson states are to ensure cable carriage of local stations so that they may originate local programming, and to counteract cable operators' economic incentive to delete stations which compete for advertising revenue with the operators. Paxson asserts that the burden is on the cable operator seeking a community deletion, not on the affected station, to justify market modification by proving that such deletion would "better effectuate" the purposes of the must- carry rules. Paxson contends that Time Warner has failed to meet this burden. Paxson cites legislative history of the 1992 Cable Act for the proposition that exclusion of a community from a station's market should occur only where the presumption in favor of station carriage throughout a station's ADI would result in cable subscribers losing access to local stations because they are outside the ADI in which the cable system operates. Paxson argues that grant of Time Warner's petition would subvert the clear intent of Congress that stations like WHAI-TV be assured an opportunity to compete throughout their ADI. 13.Paxson cites Turner Broadcasting Systems, Inc. v. FCC, 117 S. Ct 1174 (1997) ("Turner"), in which the Supreme Court validated the mandatory must carry provisions. Paxson argues that the Court in Turner emphasized the design of the must carry provisions to preserve the benefits of free, over-the-air broadcast television, to promote widespread dissemination of information in a multiplicity of sources, and to promote fair competition in the television programming market. Paxson argues further that the Court recognized that absent the must carry provisions significant numbers of broadcast stations may be denied carriage, resulting in loss of viewers and advertising revenues, substantial deterioration, and ultimate failure. According to Paxson, the Commission's defense of the must carry provisions on these grounds before the Court in Turner compels a denial of the market exclusion request in this case. Paxson contends, too, that denial of carriage would undermine years of Commission efforts to enable UHF stations to compete with larger more powerful VHF stations and undermine Commission objectives of promoting a healthy, diverse, and competitive local broadcast market in the New York ADI. 14.Paxson argues that Congress expressly considered and rejected a mileage based or similar geographic approach for determining the scope of a station's must carry market. It points to changes in the language of the must carry provisions that developed during the legislative processes leading to the current must carry provisions, in which must carry rights are based on a station's ADI, rather than mileage or station signal contours. Thus, Paxson argues, the must carry regime clearly anticipates that broadcast stations would be provided carriage on cable systems located outside their Grade B signal contours. Paxson admits that Section 614(h)(1)(C)(ii) provides an exception to must carry throughout a station's ADI, but only where a station fails to provide a good quality signal to a cable system headend and refuses to assume the cost of delivering a quality signal to such headend. Paxson contends that the Congress thus intended that a station be carried on systems within its ADI, so long as the station pays to amplify or otherwise enhance its signal level sufficiently. In further support of this position, Paxson points to the recent modification of the definition of a broadcast signal as "local" throughout a station's ADI for purposes of the Copyright Act, by which Congress sought to ensure that broadcasters would not be deprived of ADI-wide coverage deemed necessary to foster competition and diversity and to enhance the viability of broadcasters. 15.Paxson claims it airs programming of local interest to the Communities by means of a format that combines "program-length presentations by local and national businesses and community organizations with religious and local public affairs programming." Specifically, Paxson says WHAI-TV airs five hours of locally originated public affairs programming, four hours of children's programming in the mornings, one hour of wrestling, eight hours of non-entertainment religious programming, and ten hours of Japanese language news and entertainment programming. It claims these programs offer a valuable and cost effective local platform to businesses and community organizations to communicate with residents throughout the New York ADI. Paxson further states that after airing this format for two years it expects that as much as 45 percent of the time WHAI-TV devotes to program length presentations will be acquired by local businesses and organizations, based on its experience in other markets. Paxson identifies one locally- produced public affairs program entitled "For the Record," which highlights community issues and charitable organizations operating in New York State, and points out instances when this program aired episodes featuring public service and charitable organizations operating in Westchester and Orange counties. Paxson asserts that presentation of these programs fulfills goals of Congress by providing programming designed to meet the needs and interests of viewers throughout the New York ADI, including the Communities at issue here. 16.Paxson asserts that WHAI-TV's must carry rights in the Communities should not be eliminated because the station has not historically been carried on TCI's cable systems, claiming that failure to establish historic carriage should not be given much weight. Paxson argues that affording decisional weight to lack of carriage in the context of small, specialty stations like WHAI-TV would have the effect of preventing weaker stations from ever being carried. In that event, only well established, centrally located stations with powerful Grade B signals would be able to achieve carriage throughout their ADI, Paxson contends. Paxson argues that Time Warner's carriage of other stations which provide local coverage does not support Time Warner's request to delete the Communities from WHAI-TV's market. Paxson contends the Commission does not use carriage of other local stations as grounds for barring a market exclusion request when other stations are shown to serve the communities at issue. It says carriage of other stations enhances a station's market inclusion request only where other stations do not serve the community at issue. Paxson says the Commission recognizes that the specialty format of stations like WHAI-TV is capable of offering desirable diversity of programming despite typically attracting limited audiences. Paxson says evidence of lack of viewing of WHAI-TV in the Communities therefore should not be deemed significant for that reason, and also for the reason that such stations have been found by the Commission to enjoy significant viewership. 17.Paxson contends that decisions modifying the must carry market for WHAI-TV have resulted in a wholesale gutting of the station's ADI market established by Congress. It protests that these decisions, relying almost exclusively on Grade B coverage, have effectively excluded from must carry protection for WHAI-TV 82 percent of the land area and 89 percent of the households within the WHAI-TV's New York ADI. Asserting that the counties excluded from WHAI-TV's market contain nearly 17 million potential viewers, Paxson argues that there can be no doubt that the approach taken in these decisions has had devastating effects on WHAI-TV's ability to compete with other stations in the New York ADI. Paxson asserts that such results do not "better effectuate" the must carry provisions, but rather subverts the intent of Congress that stations like WHAI-TV be assured opportunity to compete throughout their local market, defined by Congress as the ADI. Paxson argues that the market modification provisions should be used only to fine tune the ADI standard and not to eviserate that standard as has occurred with WHAI-TV's market. 18.In reply, Time Warner reemphasizes that WHAI-TV has not historically been carried on its systems or on systems serving nearby communities, that WHAI-TV's Grade B signal does not cover the Communities, and that the Communities served by its systems are distant from Bridgeport, Connecticut, WHAI-TV's city of license. Time Warner asserts that Paxson has failed to demonstrate that WHAI-TV airs meaningful local interest programming targeted to the Mount Vernon or Newburgh area viewers. Time Warner points also to an abundance of local service provided by the New York area stations carried on its systems serving the Communities. It also reiterates the absence of any measurable WHAI-TV audience in the Communities. Time Warner argues again that, when the four part market modification test is applied in this case, it is shown that WHAI-TV is not local to the Communities and that WHAI-TV has no local nexus to the Communities, which fully supports grant of the petition. 19.Time Warner notes that the Commission has indicated that a station may not be considered local solely by airing some occasional programming associated with some of the communities in question and that such occasional programming does not serve as a quid pro quo that guarantees carriage. In this connection, Time Warner contends that WHAI-TV offers a mere 3 1/2 hours of locally focused programming to Mount Vernon residents and 3 hours to Newburgh residents, which is substantially less than one percent of WHAI-TV programming during the first half of 1997. 20.Time Warner asserts that Paxson has chosen the wrong forum for attacking the statutory and regulatory ADI modification framework. It characterizes Paxson opposition as asking the Commission to ignore the statutory market modification provisions and overturn Commission precedent developed under those provisions. Time Warner contends that any cumulative effect of prior decisions modifying WHAI- TV's market has no bearing on the current petition and provides no basis for ignoring the market realities demonstrated in the petition and for reaching a different result here. Time Warner argues that, contrary to Paxson's contention, the Commission has not in other cases relied too heavily on geographical distance and lack of technical station signal coverage as the basis for deleting communities in the New York ADI from WHAI-TV's market. Time Warner asserts that the Commission has placed reliance on all four of the statutory factors in its decisions affecting WHAI-TV. Time Warner suggests that Paxson's arguments along these lines should be addressed either to the Congress or in rulemaking proceedings concerning implementation of the statutory market modification provisions. According to Time Warner, the current adjudicatory proceeding involving one station and a few New York communities in two counties is not the proper forum for Paxson's wholesale attack on the ADI modification regulatory framework. 21.Time Warner's reply argues in essence that Paxson failed to refute the showing made in its petition for deletion of the Communities from WHAI-TV's market under the four market modification factors. Time Warner argues further that, having demonstrated that WHAI-TV has never been carried on cable systems serving the Communities or other nearby communities, removing the Communities from WHAI-TV's market would neither disrupt established viewing patterns nor deprive WHAI-TV of any existing audience. ANALYSIS AND DECISION 22.We shall grant Time Warner's request for modification of the market of WHAI-TV, Bridgeport, Connecticut, by deleting from that market the Village of Cornwall, the Town of Cornwall, New Windsor, the Town of Newburgh, the City of Newburgh, Marlboro, Stewart Army post and Mount Vernon, New York. Time Warner's deletion petition is a legitimate request to redraw station market boundaries to make them congruous with market realities. We believe Time Warner has made a persuasive case that the Communities served by Time Warner's Newburg and Mount Vernon systems are not logically part of the market of WHAI-TV, which is located in Connecticut in the eastern portion of the New York ADI approximately 50 miles away from Time Warner's Mount Vernon system and approximately 70 miles away from the Newburgh system. Based on the geography and information provided under all four statutory factors, we find that the Communities in issue here are sufficiently removed from WHAI-TV that they ought not be deemed part of the station's market for mandatory carriage purposes. This decision is consistent with the reasoning set forth our decision in Continental Cablevision, in which the communities of Stony Point, West Haverstraw, Haverstraw, Pomona, and Ramapo, New York, along the western side of the Hudson River in Rockland County, located immediately south of Orange County, were deleted from WHAI-TV's market. 23.Turning to the four-part market modification test set forth in Section 614, it is not disputed that WHAI-TV has no history of carriage on the cable systems serving any of the communities in question. The record shows that WHAI-TV also is not carried on cable systems serving other nearby communities. Regarding the provision of locally oriented programming, the amount of local interest programming provided to residents of the Communities by WHAI-TV is insufficient to support the station's opposition to market modification. The programming produced locally for WHAI-TV is not shown to be specifically tailored for the Communities as opposed to the New York area at large. In any event, these offerings are de minimis at best, amounting to only a small portion of WHAI-TV's entire programming over the first half of 1997. Although Paxson anticipates that portions of WHAI-TV's air time devoted to program-length presentations will be acquired by national and local businesses and community organizations in the future, the station provides no specific examples showing that such presentations are tailored to the communities here in question. We are unable to base our market modification decision on programming that may or may not be aired at some future date. For the purposes of determining whether a station is local to a specific market at a given point in time, our focus is on the programming actually being aired. Moreover, we cannot conclude that a station must be considered "local," as Congress intended that term to mean in Section 614 of the 1992 Cable Act, solely by airing some occasional programming associated with some of the communities in question. Furthermore, WHAI-TV does not provide Grade B contour coverage to the Communities at issue in this case, and its programming is not viewed in any measurable amount in the Communities, which are geographically distant from WHAI-TV's city of license, Bridgeport, Connecticut. Station signal availability from a technical point of view and geography are additional local service factors that must be given significant weight in delineating the station's market in this particular case. 24.Regarding viewing patterns, the record shows that WHAI-TV has virtually no over-the-air or cable audience in the communities in question or in nearby communities. For that reason, excluding the Communities from WHAI-TV's market would not disrupt established viewing patterns nor deprive the station of any existing cable audience. Another factor to consider in market deletion cases is the availability of other broadcasters in the market. We reject Paxson's argument that carriage of other local stations should not be considered in evaluating a cable operator's deletion request. Section 614(h)(1)(C)(ii)(I) specifically provides that, in considering requests to either include or exclude communities from a station's television market, the Commission shall take into account factors such as the carriage of other local stations by a cable operator serving the communities at issue. We have also stated, and reiterate here, that where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, and it is clear that the station is not providing local service to those communities, the issue of local coverage by other stations becomes a factor to which we will give greater weight than in cases where a party is seeking to add communities. Paxson insists that such reasoning is inconsistent with a prior deletion case in which we held that "we do not believe the enhancement criterion should be used by a cable operator to bolster its request to delete communities from a station's television market whenever it could show that other stations in the market serve the cable communities." In using such language, we were asserting that a cable operator seeking to delete communities from a station's market could not simply point to the fact that it carried other local stations and, by that fact alone, satisfy its burden of proof. In other words, a cable operator's deletion request will not automatically be granted whenever it can show carriage of other local stations. Rather, carriage of other local stations may be used as an enhancement factor to support a cable operator's deletion request when other evidence shows the communities at issue to be outside of the station's market. In the present case, Time Warner carries numerous network affiliated and independent stations licensed to communities in the New York ADI which provide coverage of local news and events, and other evidence shows the Communities served by Time Warner to be outside WHAI-TV's market. 25.Paxson argues that there is a strong presumption of carriage throughout a station's ADI. And Paxson takes the position that the presumption should given full effect in this case. This argument invites us to ignore the information provided for the record as well as the four statutory factors set forth in the market modification provisions and to rely instead on this presumption. For instance, as noted above, Paxson claims the availability of other local stations in the market should not be considered in this case. In addition, Paxson discounts the lack of historical carriage and non-existent viewership as insignificant to our decision, as well as the distance of the station from the Communities and the station's lack of technical coverage of the the Communities. Section 614(h)(1)(C), however, specifically and unambiguously directs the Commission, in considering requests for market modification, to afford particular attention to the value of localism by taking each of these factors into account. We have previously observed that the must carry rules "were not intended to transform an otherwise local station into a regional 'super station' that must be automatically carried in every single community in an ADI ... ." Paxson says the only circumstance in which deletion of a local station would enhance localism is where a cable system is unable, in the absence of deletion, to carry the signal of another station that is outside of the ADI market and that provides demonstrably more local service. We find these interpretations of Section 614(h) and of the Commission's implementing regulations too restrictive and without a sufficient basis in either the legislative history or the wording of the statute. The statute, on its face, does not limit market deletion requests only to those situations where an out-of-the-market station is more deserving of carriage than an in-market station. There is also no language in the legislative history of Section 614(h) directly supporting Paxson's viewpoint, nor is there any in the Commission's rules. To the contrary, Paxson ignores Congress' directive allowing either broadcasters or cable operators to ask for market modifications so that a station's ADI could better reflect the economic market at hand. In summary, we reject Paxson's arguments that amount to a wholesale attack on the statutory market modification provisions of Section 614 of the Communications Act. MUST-CARRY COMPLAINT 26.Section 614 of the Communications Act and the Commission's implementing rules permit stations to assert mandatory carriage rights on cable systems located within their market. We agree with Paxson that the must-carry rules seek to ensure cable carriage of local stations in order to strengthen their economic viability and thereby allow for greater diversity in programming. The prerequisite for asserting must-carry rights with respect to a particular cable system, however, is that the operator serve communities in the station's market or ADI. Paxson filed a must-carry complaint seeking carriage on Time Warner Cable's Newburgh cable system which serves the Village of Cornwall, the Town of Cornwall, New Windsor, the Town of Newburgh, the City of Newburgh, Marlboro, and Stewart Army Post, New York, and on Paragon Cable of Mount Vernon's cable system serving Mount Vernon, New York. These communities have been deleted from WHAI-TV's market by this Memorandum Opinion and Order. Because we have granted the petition to delete these communities from WHAI-TV's market, the associated complaint filed by Paxson for mandatory carriage of WHAI-TV is rendered moot. ORDERING CLAUSES 27.Accordingly, IT IS ORDERED, pursuant to Section 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534(h), and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief filed on behalf of Time Warner Cable and Paragon Cable of Mount Vernon in File No. CSR-5005-A IS GRANTED. 28.IT IS FURTHER ORDERED that the Must-Carry Complaint filed on March 20, 1997, by Paxson New York License, Inc., licensee of television station WHAI-TV in File No. CSR-4977-M IS DISMISSED. 29.This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau