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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 the Matter of: ) ) GENESEE COUNTY VIDEO CORP. ) CSR-4952-A ) and ) ) TRI-COUNTY CABLEVISION, INC. ) ) ) For Modification of the Jamestown, ) New York ADI ) MEMORANDUM OPINION AND ORDER Adopted: August 14, 1997 Released: September 12, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Genesee County Video Corp. ("Genesee") and Tri-County Cablevision, Inc., ("Tri-County"), operators of cable television systems in Genesee and Orleans Counties, New York, (collectively, "Genesee/Tri-County") have filed with the Commission a petition requesting modification of the television market of WNYB-TV, Channel 26, Jamestown, New York ("WNYB") for purposes of mandatory carriage. Genesee/Tri-County request that the communities served by Genesee's headends in Perry and Stafford, New York and the communities served by Tri-County's headend in Medina, New York (collectively, the "Communities") be deleted from the television market of WNYB. Tri-State Christian TV, Inc., licensee of WNYB, filed an opposition to which Genesee/Tri-County replied. 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. SUMMARY OF PLEADINGS 6. In support of their petition, Genesee/Tri-County argue that WNYB should be excluded from carriage on Genesee/Tri-County's cable systems because WNYB fails to satisfy any of the four statutory market modification factors. First, with regard to historic carriage, Genesee/Tri-County assert that WNYB has never been carried on either cable system. Second, with regard to local coverage, Genesee/Tri-County assert that WNYB fails to provide Grade B contour coverage to all but three of the 74 communities at issue. Of the three communities of Alexander, Pembroke and Royalton, Genesee/Tri-County states that WNYB's Grade B contour covers 10% of Alexander and 50% of the communities of Pembroke and Royalton, respectively. Genesee/Tri-County further assert that WNYB, in addition to failing to provide Grade B contour coverage, is geographically distant from the Communities. Genesee/Tri-County note that Genesee's Perry system is located 78 miles from WNYB's city of license and 66 miles from WNYB's transmitter site, that Genesee's Stafford system is located 87 miles from WNYB's city of license and 78 miles from WNYB's transmitter site, and that Tri-County's Medina system is located 90 miles from WNYB's city of license and 75 miles from WNYB's transmitter site. Genesee/Tri-County argue that these distances are all within the range of distances that the Commission has previously found to attenuate the ties between cable communities and broadcast stations. 7. Third, Genesee/Tri-County assert that, with regard to the service to the Communities offered by other local television stations and eligible for carriage on Genesee/Tri-County's cable systems, local coverage is provided by seven television stations all of which are licensed to the City of Buffalo, New York. Genesee/Tri-County argue that those stations offer programming that includes a wide variety of local news, sports, public affairs and public service coverage and that provides a closer nexus than WNYB. 8. Finally, Genesee/Tri-County assert that, with regard to viewership levels, WNYB only resumed broadcast operations in January, 1997, after going off the air in 1991, and has not had sufficient on- air time to undergo a survey of its audience. 9. In opposition, WNYB asserts that the 1992 Cable Act provides for market-wide carriage of WNYB because it is a local commercial television station that can provide a good quality signal. WNYB further asserts that, under the 1992 Cable Act, the market modification process is to be used primarily to expand a television station's carriage rights and can only be used to deny carriage where a cable system lacks sufficient capacity. With respect to historical carriage, WNYB argues that the Commission has stated that a station's failure to establish a history of carriage should not be given great weight in market modification proceedings. WNYB asserts that the 1992 Cable Act provides protection to smaller stations like WNYB from discriminatory signal carriage practices. In the alternative, WNYB argues that it does have a history of carriage because, before WNYB went off the air in 1991, it was carried by Time Warner Inc., Genesee/Tri-County's parent company, on its system serving Buffalo, New York. 10. WNYB argues that, with regard to local service and coverage, Genesee/Tri-County assert, but do not demonstrate, that WNYB fails to satisfy the local service prong of the statutory test. WNYB does not dispute Genesee/Tri-County's allegations concerning WNYB's Grade B contour but argues that Congress did not intend Grade B contour coverage to be the sole measure of a station's local coverage, particularly where a station opts to upgrade its signal quality. WNYB notes that the Commission has said that a television station's decision to improve its signal can effectively negate a cable operator's argument for deletion based upon the lack of a Grade B contour over the relevant cable communities. WNYB maintains that Genesee/Tri-County's argument concerning the geographic distance between the station's city of license and transmitter, respectively, and the cable communities at issue is misleading. WNYB asserts that Congress replaced a mileage-based standard for determining must-carry rights with one that is based on the ADI market modification factors. WNYB further asserts that the geographical distances are irrelevant in defining a television station's market and that Genesee/Tri-County should not be allowed to thwart Congress' intent by their attempt to rely upon a mileage-based standard to support their argument for deletion. WNYB further asserts that it is, without question, a part of the Buffalo ADI, can deliver a good quality signal, and provides an effective platform for local ministries and other service providers to communicate with the local cable communities. 11. With regard to carriage by other local stations, WNYB argues that the fact that Genesee/Tri- County's cable systems carry other local stations is not a basis for deleting WNYB from the Buffalo ADI but is a factor which can enhance a station's claim where it can be shown that other local stations do not serve the relevant cable communities. 12. Finally, WNYB asserts that, with regard to viewing patterns, Genesee/Tri-County ignore WNYB's prior carriage on Time Warner's cable system as Channel 49, Buffalo, New York as opposed to WNYB's present service as Channel 26, Jamestown, New York. Moreover, WNYB argues that it is a specialty station that, while it provides a valuable source of diverse programming to cable communities, typically attracts a limited audience. 13. In reply, Genesee/Tri-County maintain that WNYB proffers an unduly narrow view of the Commission's authority in market modification proceedings and that it has not offered legal or factual arguments to support denial of the petition. Genesee/Tri-County assert that the ADI process allows the Commission to consider factors other than the presence of a station within a particular ADI in order to more accurately determine that station's market. Genesee/Tri-County further assert that they have shown that WNYB's economic market does not include the cable communities within the Buffalo ADI because WNYB lacks a history of carriage, is geographically distant, fails to provide meaningful local service or Grade B contour coverage, and is not viewed off-the-air by residents of the cable communities. Genesee/Tri-County point out that, in a case substantially similar to the case at hand, the Commission recently deleted a television station, WWTO-TV, because the station was geographically distant, lacked Grade B coverage, and evidenced the absence of historic cable carriage and local viewing of the subject station. 14. Genesee/Tri-County argue that in each of the Commission decisions which WNYB relies upon to show that geographic distance is irrelevant, the television station at issue placed a Grade A or Grade B contour over the relevant cable communities. Thus, Genesee/Tri-County assert that the issue of local service was not a factor in those cases as it is in the instant case. Genesee/Tri-County further argue that the issues of geographical distance and contour coverage are factors which are germane to the determination of whether the goal of localism is being achieved, a goal that is the underlying purpose of the market modification provisions of the 1992 Cable Act. 15. Genesee/Tri-County point out that WNYB did not submit examples of its programming to show that the station offers programs that are of local interest while emphasizing that Genesee/Tri-County currently carries numerous other local stations which provide programming to meet the needs and interests of viewers in the Communities. With regard to viewing patterns, Genesee/Tri-County maintain that minimal or non-reportable audience shares are factors which should be given evidentiary weight by the Commission in this proceeding as an indicator of the scope of WNYB's market. DISCUSSION 16. Based on our analysis of the evidence relating to the four statutory and other relevant factors, we will grant Genesee/Tri-County's petition except for the communities of Alexander, Pembroke and Royalton. The geographical distance, local coverage and other relevant factors persuade us that the cable communities served by Genesee/Tri-County are sufficiently removed from WNYB that they ought not be deemed part of the station's market. 17. The cable television mandatory broadcast signal carriage rules were adopted as part of the 1992 Cable Act. The legislative history of the 1992 Cable Act indicates that 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." The Act specifically provided that the Commission was to consider adding additional communities or excluding communities from the markets of television stations to "better effectuate the purposes" of the mandatory carriage requirements. In acting on such requests, the Commission was instructed to "afford particular attention to the value of localism, taking into account four specified statutory factors." These factors, however, were "not intended to be exclusive." The market modification provisions of 614(h) are said, in the legislative history, to "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." When viewed against this framework, and considering all of the relevant factual circumstances in the record, we believe that Genesee/Tri-County's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. We believe that the requested exclusion of most, but not all, of the communities served by Genesee/Tri-County's cable systems from the market of WNYB will better effectuate the purposes of the must-carry statutory provisions by guaranteeing that subscribers have access to stations that serve their community. 18. We now turn to the four part market modification analysis. Statutory factor one is "whether the station, or other stations located in the same area, has been historically carried on the cable system or systems within such community." WNYB, operating as channel 26 assigned to Jamestown, New York, has no history of carriage in the cable communities in question. The fact that the station was previously carried when it operated under a different channel number and was assigned to a different city does not bear upon the weight of the evidence in this proceeding. While in general the lack of historic carriage favors excluding the Communities from the market of WNYB, that factor is not outcome determinative in a market modification proceeding, particularly in the instant case where the station has recently resumed broadcasting. 19. Statutory factor two is "whether the television station provides coverage or other local service to such community." This factor incorporates both technical service and programming service as well as geography (mileage and topographical features). With respect to technical service, the Commission has stated in its Report and Order in MM Docket 92-259 that "to show that the station provides coverage or other local service to the cable communities, parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close in terms of mileage." In the absence of other determinative market facts (i.e. where the other aspects of the four statutory factors by themselves define the market, where there is no clear proof that the contour fails to reflect actual coverage, or where there are no terrain obstacles), Grade B contours have been found to be an efficient tool to adjust market boundaries. We find here that WNYB provides no Grade B service to 71 of the 74 cable communities at issue, provides a 10% contour over the community of Alexander, and places a Grade B contour over at least 50% of each of the communities of Pembroke and Royalton. The evidence with respect to WNYB's service to the 71 communities for which it provides no Grade B contour weighs in favor of the requested action. The evidence with respect to WNYB's service to the communities of Alexander, Pembroke and Royalton weighs against granting Genesee/Tri-County's petition with respect to those communities. The Commission has found that even partial Grade B coverage demonstrates service to cable communities and can help delineate a station's economic market. We find that the geographic distances involved further attenuate WNYB's connection to the remaining cable communities. With regard to programming service, Genesee/Tri-County alleges that WNYB fails to provide programming of local interest. WNYB asserts but provides no evidence that it offers programming relevant to the interests of the cable communities at issue. We find that WNYB fails to establish a programming nexus to the relevant cable communities. 20. Statutory factor three is "whether any other television station that is eligible to be carried by a cable system in such a community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community." In this instance, Genesee/Tri-County allege that each system carries numerous local stations including seven stations assigned to Buffalo, New York and that these stations carry programming addressing local needs and interests. We believe that Genesee/Tri-County's carriage of other local television stations provides support for the action requested in this case. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain 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 cable communities. 21. Statutory factor four is "evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community." WNYB has no significant reported audience share in the cable communities in question. We note that WNYB classifies itself as a specialty station and asserts that ratings are of no probative value when a cable operator seeks to delete such a station. We further note that WNYB did not specify the nature of its specialized programming or provide any evidence of viewership. While WNYB's apparent lack of audience share is not outcome determinative, it weighs in favor of deletion. 22. We have carefully considered the statutory factors as well as other relevant information. We find that, with respect to 71 of the 74 cable communities at issue, WNYB lacks historic carriage (factor I), provides no Grade B contour coverage or other local service (factor II), and lacks a reportable audience (factor IV). We further find that other local stations that are entitled to carriage do provide news and other information regarding issues of concern to the Communities (factor III). With respect to the remaining three communities of Alexander, Pembroke and Royalton, factors I, III and IV have been given less weight in our determination because WNYB provides those communities with Grade B contour coverage. ORDERING CLAUSES 23. Accordingly, IT IS ORDERED that, pursuant to 614 of the Communications Act, as amended, 47 U.S.C. 534, and Section 76.59 of the Commission's rules, 47 C.F.R. 76.59, the Petition for Special Relief (CSR-4952-A) filed by Genesee County Video Corp. and Tri-County Cablevision, Inc. IS GRANTED for: Genesee's Perry headend serving the Towns of Castile, Gainesville, Genesee Falls, Nunda, Perry, Pike and Portage, the Villages of Castile, Gainesville, Nunda, Perry, Pike and Silver Springs; Genesee's Stafford headend serving the City of Batavia, the Towns of Alabama, Alexander, Attica, Avon, Batavia, Bergen, Bethany, Caledonia, Conesus, Covington, Elba, Geneseo, Groveland, Leicester, Leroy, Lima, Livonia, Mendon, Middlebury, Mt. Morris, Mumford, Oakfield, Pavilion, Rush, Stafford, W. Bloomfield, York, and the Villages of Alexander, Attica, Avon, Bergen, Caledonia, Churchville, Corfu, Elba, Geneseo, Honeoye Falls, Leicester, Leroy, Lima, Livonia, Mt. Morris, Oakfield, Scottsville, and Wyoming; and Tri-County's Medina headend serving the Towns of Albion, Barre, Carlton, Gaines, Hartland, Kendall, Ridgeway, Shelby, and Yates and the Villages of Albion, Lyndonville, Medina, and Middleport. 24. IT IS FURTHER ORDERED that Genesee/Tri-County's petition IS DENIED with respect to the cable communities of Alexander, Pembroke and Royalton. 25. 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