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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 ) ) SERVICE ELECTRIC CABLE TV, INC. ) ) For Modification of Television Markets of) CSR 5011-A Stations WTGI-TV, Wilmington, Delaware and) WGTW-TV, Burlington, New Jersey ) ) In re Complaint of ) ) PAXSON PHILADELPHIA LICENSE, INC.) against Service Electric Cable TV, Inc.) CSR 4999-M ) For Carriage of WTGI-TV, Wilmington, Delaware) MEMORANDUM OPINION AND ORDER Adopted: August 27, 1997 Released: August 29, 1997 By the Deputy Chief, Cable Services Bureau: 1. Service Electric Cable TV, Inc. ("Service"), operator of a cable television system, filed the captioned petition seeking, pursuant to 47 U.S.C.  534(h)(1)(C), to exclude the Communities listed below from the markets of television stations WTGI-TV (Channel 61), Wilmington, Delaware, and WGTW-TV, Burlington, New Jersey. Paxson Philadelphia License, Inc., ("Paxson"), licensee of WTGI-TV, and Brunson Communications, Inc. ("Brunson"), licensee of WGTW-TV, filed oppositions to Service's petition, and Service filed replies. Paxson also filed a must carry complaint seeking carriage of WTGI-TV on Service's cable system serving the Communities, which Service 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. THE PETITION FOR RELIEF 6. The Communities served by Service are located in Berks, Bucks, Lehigh and Northhampton Counties of Pennsylvania and are part of the Philadelphia, Pennsylvania ADI. Principal communities served by Service's system include Allentown, Kutztown, Bethlehem, Easton, and Bangor, Pennsylvania. The Philadelphia ADI is one of the nation's larger television markets. It extends geographically approximately 180 miles in one direction and well over 100 miles in another direction over sixteen counties in Pennsylvania, Delaware and New Jersey. Wilmington, Delaware, the city of license of WTGI-TV, and Burlington, New Jersey, the city of license of WGTW-TV, are also within the Philadelphia ADI. Service requests exclusion, pursuant to Section 614(h)(1)(C), of the Communities from both stations' markets, arguing that, although both stations and the Communities are located in the Philadelphia ADI, the Communities are so remote from the stations as to have no economic nexus with either of them. A. MARKET FACTS AND ARGUMENTS: WTGI-TV, Wilmington, Delaware 7. We address first the request for modification of WTGI-TV's market. Service contends that WTGI-TV has no nexus to the Communities, and asserts that the station does not satisfy any of the four statutory market modification factors. Service states that, although WTGI-TV has been operational since July of 1986, it has never been carried on its system. Service states further that, to its knowledge, WTGI-TV also has not been carried by any other cable operator in upper Berks, Bucks, Lehigh or Northampton Counties. Second, Service maintains that WTGI-TV does not provide local coverage to the communities. Service points out that WTGI-TV's transmitter is located approximately 63 miles from Allentown, Pennsylvania, where the cable system headend is located. Service adds that Wilmington, WTGI-TV's city of license, is approximately 83 mile from the Kutztown portion of its system, 77 miles from the Allentown portion, 74 miles from the Bethlehem portion, 92 miles from the Easton portion, and 109 miles from the Bangor portion, and is also separated from those communities by the Pennsylvania state line. Service also points out that WTGI-TV's Grade B contour fails to encompass any of the Communities, and that WTGI- TV's signal cannot be received off-air by residents of the Communities. The Express Times and Morning Call, newspapers local to the Easton, Bethlehem and Allentown areas do not include WTGI-TV in their TV listings, nor is the station listed in the Philadelphia issue of TV Guide. Service asserts that WTGI-TV makes no effort to serve the Communities with programming specific to the local needs and interests of local residents. Service contends WTGI-TV's weekly program schedule is filled with infomercials or religious programming, and provides no local coverage of news, sports or public affairs programming of specific interest even to local residents. Service asserts that the Communities receive substantial amounts of local service from other media, including the programming of network and independent stations carried on its system from Philadelphia as well as from Scranton, Wilkes-Barre and Reading, Pennsylvania, and New York City, which provide a variety of public affairs, news and public service programming geared specifically to Community residents. Finally, Service asserts that WTGI-TV is not viewed in any of the Communities, reflective of the absence of any technical signal coverage of the Communities and the unavailability in the Communities of any information regarding WTGI-TV programming. Service submits that, by showing the absence of WTGI-TV coverage or local service, the geographic distance of WTGI-TV from the Communities, the provision by other stations of news programming of local interest, and the absence of WTGI-TV viewing in the Communities, it has demonstrated that the proposed exclusion of the Communities from WTGI-TV's market would better effectuate the purposes of the mandatory carriage regulations. 8. In opposition, Paxson contends that Service 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 Service seeks to delete the type of station that the must-carry rules were designed to protect, asserting in essence that the must-carry rules require carriage of a television station like WTGI-TV throughout the station's ADI. Under the must carry regime of the 1992 Cable Act, Paxson asserts WTGI-TV is entitled to a strong presumption in favor of carriage on Service's cable system serving those Communities. 9. Paxson relies on Turner Broadcasting Systems, Inc. v. FCC, 117 S. Ct 1174 (1997) ("Turner"), in which the mandatory must carry provisions were validated by the Supreme Court. 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. Paxson suggests the Commission defended the must carry provisions on these grounds before the Court in Turner and, therefore, must deny the market exclusion requested in this case. Paxson suggests further that exclusion would undermine years of Commission efforts directed towards enabling UHF stations to compete with larger more powerful VHF stations, and would also undermine Commission objectives of promoting a healthy, diverse, and competitive local broadcast market in the Philadelphia ADI. 10. Paxson argues that Section 614(h)(1)(C) of the Act authorizes the Commission to modify ADI markets "to better effectuate the purposes of this section," and to "fine tune" ADIs in a handful of instances but not to eviscerate the ADI-defined local market. 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 Service 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 asserts that the must carry provisions were enacted to ensure cable carriage of local stations to counteract cable operators' economic incentive to delete stations which compete for advertising revenue with the operators. Paxson argues that grant of the petition for relief would subvert the clear intent of Congress that stations like WTGI- TV be assured an opportunity to compete throughout their ADI. 11. 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 evolved 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. 12. Paxson asserts that WTGI-TV's must carry rights in the Communities should not be eliminated because the station has not historically been carried on Service's cable systems, claiming that failure to establish historic carriage should not be given much weight. WTGI-TV avers that Service mistakenly claims that, where a station lacks historic carriage or community viewing, system carriage of other stations that provide local programming justifies deletion of the station's signal. Paxson points to Commission decisions stating that in situations where a petitioner seeks to delete a station from an ADI, "failure to establish historic carriage should not be given such great weight." Further, it contends the Commission has repeatedly stated that carriage of other local stations provides no basis for deletion. Finally, it points to Commission findings where specialty stations, such as WTGI-TV, were deemed "capable of offer[ing] desirable diversity of programming. . . yet typically attract limited audiences." WTGI-TV states that in view of these precedents, the present request for deletion of the Communities from WTGI-TV's market should be denied. 13. Paxson argues further that affording decisional weight to lack of carriage in the context of small, specialty stations like WTGI-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 says the Commission recognizes that the specialty format of stations like WTGI-TV is capable of offering desirable diversity of programming despite typically attracting limited audiences. Paxson says evidence of lack of viewing of WTGI-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. 14. Paxson claims WTGI-TV airs programming of local interest to Service's subscribers as well as residents throughout the Philadelphia ADI 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." It claims these programs offer a valuable and cost effective local platform to businesses and community organizations to communicate with residents throughout the Philadelphia ADI. In addition, Paxson cites "City Talk" as a public affairs program that addresses local issues and features local public service organizations operating in Philadelphia and the surrounding communities. Paxson also identifies four locally produced programs as having clear local ties. 15. Finally, Paxson contends the carriage of WTGI-TV on two other cable systems serving communities in Berks and Bucks County provide evidence of the belief of both the station and the cable systems involved of a market nexus between the stations and the communities where the station is carried. Since WTGI-TV is carried on cable systems in close proximity to Service's cable system at issue here, Paxson contends the policy concerning station carriage on cable systems in close proximity employed in Maranatha supports denial of the instant petition. 16. In reply, Service contends its market modification request is consistent with Section 614 of the Communications Act and the Commission's regulations implementing that provision. In this connection Service argues that market modification is particularly appropriate in this case, because WTGI-TV is quite remote from the Communities at issue here. Services suggests the requested market exclusion is consistent with, and even compelled by, Time Warner Cable (WTGI-TV), 11 FCC Rcd 13149 (CSB 1996), where the Commission excluded Reading, Pennsylvania and certain other Berks County, Pennsylvania communities from WTGI-TV's market on the basis of facts and circumstances similar to that involved in the present case. Comparing the facts and circumstances here with those involved in Time Warner Cable under the elements of the statutory four factor test, Service argues that the record here is even more compelling than that presented in Time Warner Cable. Service also points to dissimilarities in the present case from cases relied upon by Paxson in opposition to the petition. For example, Service notes that in one cited case, the station transmitter was only 26 miles from the cable system headend and the station's Grade A contour encompassed the community that was not excluded from the market. In another case, Service notes that the Dayton ADI is much more compact than the Philadelphia ADI, that the Dayton ADI and the relevant station were a mere 25 miles apart, and that the station's Grade B or better signal encompassed all of the communities in question. Service characterizes the programming locally produced on WTGI-TV as de minimis at best and insufficient to throw the weight of this factor in Paxson's favor. Service then reemphasizes its carriage of other stations that provide local service to the Communities, which it contrasts with the lack of WTGI-TV viewing in the Communities. Finally, Service denies that other cable systems carrying WTGI-TV in Berks and Bucks County are in close proximity to its cable system as claimed by Paxson, asserting that the communities in which WTGI-TV are carried are approximately 30 to 40 miles from, and not adjoining to, the Communities its systems serve. B. MARKET FACTS AND ARGUMENTS: WGTW-TV, Burlington, New Jersey 17. Addressing its request for modification of WGTW-TV's market, Service concedes that its system commenced carrying WGTW-TV following a recent modification of the station's facilities. However, it asserts that its direct competitors in the Lehigh Valley do not carry WGTW-TV. Service asserts further that no cable system in Berks, Bucks, Lehigh and Northampton Counties carried WGTW-TV until 1995 and even then only systems in lower Bucks County within close proximity to Philadelphia commenced carrying the station. Service maintains that WGTW-TV does not provide local coverage to the communities, pointing out that WGTW-TV's transmitter is located approximately 40 miles from Allentown, Pennsylvania, where the cable system headend is located. Service adds that Burlington, New Jersey, WGTW-TV's city of license, is approximately 83 miles from the Kutztown portion of its system, 68 miles from the Allentown portion, 65 miles from the Bethlehem portion, 67 miles from the Easton portion, and 84 miles from the Bangor portion, and separated from those communities by the Pennsylvania state line. Service contends that WGTW-TV's presumptive delivery of a predicted Grade B signal to portions of its systems' communities "is a misnomer," that, despite recent modifications to WGTW-TV facilities, "problems have been observed in the station's picture quality," and that "non-cable subscribers in the Communities likely still may not be able to receive the station off-air" because they don't have the advantage of Service's mountain top reception facility. Service reiterates the substantial amounts of local programming from other stations that its system carries and points out the absence of viewing of WGTW-TV in the Communities, stemming from the poor quality of WGTW-TV's signal in the Communities. Service also claims the inability of Community residents to obtain information concerning WGTW-TV's programming contributes to the absence of WGTW-TV viewing in the Communities. Service submits that, by showing an absence of WGTW-TV coverage or local service, the geographic distance of WGTW-TV from the Communities, the provision by other stations of news and sports programming of local interest, and the absence of WGTW-TV viewing in the Communities, it demonstrated that the proposed exclusion of the Communities from WGTW-TV's market is warranted and would better effectuate the purposes of the mandatory carriage regulations. 18. Brunson in opposition takes the position that WGTW-TV, while licensed to Burlington, New Jersey, should have the same carriage rights in the Communities as do Philadelphia stations. It rests this position on several arguments. First, it notes the location of WGTW-TV's transmitter in an antenna "farm" in the Roxborough section of Philadelphia that is "shared by all of the television stations licensed to Philadelphia," and the location of the station's studio in Philadelphia. Brunson also points out that Burlington, WGTW-TV's city of license, is on the Delaware River "in the immediate Philadelphia metropolitan area, and is even part of the Philadelphia urbanized Area." Brunson asserts further that WGTW-TV places a predicted Grade B signal over the headend of Service's cable system and over Allentown and Bethlehem, Pennsylvania which are among the principal communities served by that system. Finally, Brunson notes that WGTW-TV has been carried on Service's system since last fall. Brunson's position is essentially that, because Service's system carries virtually all of the Philadelphia stations and WGTW-TV is, in essence, a Philadelphia station, the Commission should not sanction the discrimination against WGTW-TV that would result should the Communities be removed from WGTW-TV's market and WGTW-TV lose carriage rights on Service's cable systems as proposed in the petition. 19. Brunson concedes that the signal of WGTW-TV may not be well received off-air in the Lehigh Valley because of an intervening mountain range. But Brunson argues that that intervening terrain is the cause of the difficulty Lehigh Valley residents have in receiving the signals of all Philadelphia and Burlington stations. Brunson argues that, if receipt of television signals off-air were the criterion as suggested by Service's argument, then the Lehigh Valley should be completely severed from the Philadelphia ADI. It suggests that the New York City stations as well as stations from Philadelphia, Reading, Scranton and Wilkes-Barre would not be viewable in the Lehigh Valley because of mountainous terrain, absent carriage on cable. Moreover, Brunson asserts that WGTW-TV is located considerably closer to the Communities than are several of the other stations Service carries, such as the New York City stations, for example. Brunson requests that the Lehigh Valley communities at issue here not be removed from WGTW- TV's market, so long as that area remains within the market of WGTW-TV's competitors. It contends that the Commission, in Kansas City Cable Partners, supra, rejected an attempt by a cable system to discriminate against one local station while continuing to carry other local stations, and that Service's attempt to discriminate against WGTW-TV should likewise be rejected here. Brunson urges the Commission not to disrupt WGTW-TV's service to the Communities through carriage on Service's cable by granting the petition. Such service disruption would occur because, Brunson concedes, the intervening mountainous terrain keeps WGTW-TV's off-air signal from reaching the Lehigh Valley the same as it does that of other Philadelphia stations. Brunson says the proposed discrimination would adversely impact on WGTW-TV viewership and lessen competition for other Philadelphia stations; results the must carry provisions were designed to prevent. 20. Lastly, Brunson notes that WGTW-TV is the only television station in the country that is owned and managed by African American women. Brunson concedes that such ownership is not a decisionally significant factor standing alone. However, it requests the station's ownership not be ignored in considering carriage rights among similarly situated television stations. 21. Service in reply contends that Brunson failed to rebut evidence showing that WGTW-TV has no relevant history of carriage in the Communities, provides no coverage or local service to the Communities, and has no local viewing. It notes again that other stations qualified for carriage in the Communities provide coverage of news or programming of local interest. Service distinguishes this case from that of station WFMZ-TV in Maranatha and KMCI(TV) in Kansas City Cable Partners. It notes that unlike WFMZ-TV in Maranatha, which also involved system carriage of other stations, WGTW-TV in this case fails to satisfy each of the other statutory factors that must be considered in this context. And unlike Kansas City Cable Partners, where the Commission declined to delete Kansas City ADI core communities from the market of station KMCI(TV), Service asserts that its system operates neither in Philadelphia ADI core communities nor in close proximity to WGTW-TV. DISCUSSION AND ANALYSIS A. WTGI-TV, Wilmington, Delaware. 22. We shall grant Service's request for modification of the market of WTGI-TV, Wilmington, Delaware by deleting from that market the Communities served by Service's cable system at issue here. Service has made a persuasive case that the Communities served by its cable system are not logically part of the market of WTGI-TV, which is located in Delaware, substantially more than 70 miles from any of the principle communities served by Service. Based on the geography and information provided under all four statutory factors, we find that the Communities in issue here are sufficiently removed from WTGI-TV that they ought not be deemed part of the station's market for mandatory carriage purposes. This decision is also consistent with our decision in Time Warner Cable, 11 FCC Rcd 13149 (CSB 1996), in which certain communities of Berks County, Pennsylvania were deleted from WTGI-TV's market. 23. Turning to the four-part market modification test set forth in Section 614(h), it is not disputed that WTGI-TV has no history of carriage on the cable systems serving any of the communities in question. The information of record indicates that WTGI-TV provides some programming of potential general interest but provides very little, if any, programming with specific ties to any of the Communities at issue in this matter. We recognize that WTGI-TV is a station that may have a limited audience. However, we must give some weight to the fact that the station also has no reported audience in the counties where the cable communities are located and has no history of carriage on Service's systems despite ten years of operation. The record also shows that WTGI-TV also is not carried on cable systems serving other nearby communities. It should also be noted that WTGI-TV is not listed in any local TV listings for principal communities served by Service. Moreover, WTGI-TV has provided no information that any of its income is attributable to the communities at issue. Wilmington, Delaware, WTGI-TV's city of license, and Woodstown, New Jersey, WTGI-TV's transmitter location, are quite distant, more than 70 miles, from the relevant cable communities. The distance involved attenuates any local ties the station may have to the cable communities and most likely contributes to the station's lack of viewership in the Communities. 24. Also, Service's carriage of other local television stations provides support for the action requested. 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 give greater weight than in cases where a station is seeking to add communities. In this case there are several television stations carried by Service's system that have a closer nexus to the Communities and provide more focused local programming than WTGI-TV. 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. 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, Service carries numerous network affiliated and independent stations licensed to communities in the Philadelphia ADI, including stations from Scranton, Wilkes-Barre, and Reading, which provide coverage of local news and events, and other evidence shows the Communities served by Service to be outside WTGI-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 be given full effect in this case. This argument disregards the information provided for the record as well as the four statutory factors set forth in the market modification provisions. 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 as insignificant to our decision the station's lack of historical carriage, the station's lack of technical coverage of the Communities, and the station's lack of viewership, as well as the distance of the station from 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 contends 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. 26. Changes in station markets 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. Service's petition reflects no intention to skirt signal carriage responsibilities under the Communications Act and the Commission's Rules, nor does it 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 WTGI-TV that they ought not be deemed part of the station's market for mandatory carriage purposes. The evidence before us distinguishes the various Communities served by Service from WTGI-TV's market and persuades us that the action requested would "better effectuate the purposes" of Section 614. 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. B. WGTW-TV, Burlington, New Jersey 27. When tested under the four statutory factors, the record before us requires that we reach a different result with respect to WGTW-TV, and we decline to delete the Communities served by Service from the market of WGTW-TV. First, WGTW-TV, after recent modification of facilities, extends a predicted Grade B signal contour to a large portion of the Communities served by Service, and WGTW-TV is currently being carried on Service's cable system. Although the record contains no evidence regarding the extent of WGTW-TV viewing in the Communities, carriage of WGTW-TV on Service's systems assures exposure to viewers there, and exclusion of the Communities from the station's market would be disruptive of whatever level of viewing may now exist. 28. The fact that the station is currently being carried on Service's cable systems serving the Communities is probative and, while not decisional, will be taken into consideration in the overall context of the requested market modification. We also consider the fact that Burlington, New Jersey, WGTW-TV's city of license, is approximately 83 miles from the Kutztown portion of Service's cable system, 68 miles from the Allentown portion, 65 miles from the Bethlehem portion, 67 miles from the Easton portion, and 84 miles from the Bangor portion, and separated from those communities by the Pennsylvania state line. However, WGTW-TV does provide a predicted Grade B signal contour to portions of the Communities. Although not conclusive of themselves, in other circumstances these factors may tend to indicate that the Communities served by Service may be too distant to be a part of WGTW-TV's market. 29. However, we must consider not only whether the cable system carries the station that is the subject of the market modification petition, but also whether "other stations located in the same area, have been historically carried on the cable system ...." As noted above, WGTW-TV transmits from an antenna "farm" in the Roxborough section of Philadelphia that is shared by other television stations licensed to Philadelphia. Also, WGTW-TV's studio is located in Philadelphia, and Burlington, New Jersey, WGTW- TV's city of license, is on the Delaware River and in the immediate Philadelphia metropolitan area. 30. Section 614(h)(1)(C) of the Communications Act requires the Commission to include or exclude particular communities from a television station's market for the purpose of ensuring that a television station is carried in the areas which it serves and which form its economic market. In addition to the fact that WGTW-TV is carried on the cable system in question, the cable system also carries the other stations licensed to Philadelphia, in which WGTW-TV's transmitter and studio are located. WGTW-TV's city of license, Burlington, New Jersey is on the Delaware River and in the immediate Philadelphia metropolitan area. The carriage of the other stations licensed to Philadelphia, along with WGTW-TV, in the Communities provides strong evidence that the Communities should be considered part of the market of all stations in the Philadelphia metropolitan area. The requested exclusion of the Communities from WGTW-TV's market would allow Service to discriminate among the several stations licensed to the Philadelphia metropolitan area, despite a Congressional mandate to preclude such discrimination. Being excluded from the Communities would have the effect of precluding WGTW-TV from any opportunity to compete for viewers and advertising revenues with the other Philadelphia metropolitan area stations in the portion of the Philadelphia served by Service. Such exclusion would compound any advantage the other Philadelphia stations carried on Service's system have in that portion of the Philadelphia ADI. 31. We have carefully considered each statutory factor in the context of the circumstances presented here. We believe the carriage of the other Philadelphia metropolitan area stations on Service's cable system in this case is an overriding factor in this case, because it impacts heavily on the ability of WGTW-TV to reach viewers in a portion of the Philadelphia ADI that the other Philadelphia stations are able to reach because of their carriage on Service's cable system. Also, as noted before, WGTW-TV places a predicted Grade B signal over a large portion of the Communities, and since Service currently carries WGTW-TV on its cable system, exclusion of the Communities from WGTW-TV's market will result in disruption of WGTW-TV's programming currently available to residents of the Communities through Service's cable system. We find that Service failed to demonstrate that the requested exclusion of the Communities served by its cable system from WGTW-TV's television market will better effectuate the purposes of the must-carry statutory provisions. MUST-CARRY COMPLAINT 32. 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. 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. However, the prerequisite for asserting must-carry rights with respect to a particular cable system is that the operator serve communities in the station's market or ADI. Paxson filed a must-carry complaint seeking carriage on Service's cable system which serves the Communities identified in footnote 1 above. These Communities have been deleted from WTGI-TV's market by this Memorandum Opinion and Order. Because we have granted the petition to delete these communities from WTGI-TV's market, the associated complaint filed by Paxson for mandatory carriage of WTGI-TV is rendered moot. ORDERING CLAUSES 33. Accordingly, IT IS ORDERED, pursuant to Section 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534(h), and Section 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief filed on behalf of Service Electric Cable TV, Inc. File No. CSR-5011-A IS GRANTED IN PART with respect to television station WTGI-TV, and IS DENIED IN PART respect to television station WGTW-TV. 34. IT IS FURTHER ORDERED that the Must-Carry Complaint filed on April 21, 1997, by Paxson Philadelphia License, Inc., licensee of television station WTGI-TV in File No. CSR-4999-M IS DISMISSED. 35. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau APPENDIX A List of Communities Served by Service Electric Cable TV, Inc. Community CUID No. Community CUID No. Greenwich Twp. PA2305 Allen Twp. PA2528 Hereford Twp. PA2745 Bangor Borough PA0195 Longswamp Twp. PA2662 Bath Borough PA1974 Bethlehem Borough PA1341 Bridgeton Twp. PA2056 Bushkill Twp. PA0951 Durham Twp. PA2059 East Allen Twp. PA1342 Haycock Twp. PA2176 East Bangor Borough PA0197 Nockamixon Twp. PA1790 City of Easton PA0097 Richland Twp. PA2658 Forks Twp. PA0098 Riegelsville Borough PA0253 Freemansburg Twp. PA1028 Springfield Twp. PA0866 Glendon borough PA0099 Tinicum Twp. PA0948 Hanover Twp. PA0865 Hellertown Borough PA0863 Alburtis Borough PA0854 Lower Mount Bethel Twp. PA2964 City of Allentown PA0478 Lower Nazareth Twp. PA0250 Catasqua Borough PA0861 Lower Saucon Twp. PA0864 Coopersburg Borough PA0855 Moore Twp. PA1368 Coplay Borough PA2111 North Catasauqua Borough PA2709 Emmaus Borough PA0289 Palmer Twp. PA0108 Fountain Hill Borough PA0867 Pen Argyl Borough PA0921 Hanover Twp. PA1674 Plainfield Twp. PA0924 Lower Macungie Twp. PA0862 Portland Borough PA0413 Lowhill Twp. PA1374 Roseto Borough PA0198 Lynn Twp. PA2220 Stockerton Borough PA0112 Macungie Borough. PA0290 Tatamy Borough PA0254 North Whitehall Twp. PA1378 Upper Mt. Bethel Twp. PA0920 Salisbury Twp. PA0856 Upper Nazareth Twp. PA0255 South Whitehall Twp. PA0858 Washington Twp. PA0922 Upper Macungie Twp. PA0859 West Easton Borough PA0115 Upper Milford Twp. PA0293 Williams Twp. PA0252 Upper Saucon Twp. PA0860 Wilson Borough PA0118 Whitehall Twp. PA0857 Wind Gap Borough PA0923 Bethlehem Twp. PA0092 Nazareth Borough PA0251 Chapman Borough PA3225 Williams Twp. PA0117 City of Bethlehem PA0479 Plainfield Twp. PA0109 Lower Mt. Bethel Twp. PA1583