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The legislative history of this provision indicates that:  Xxwhere the presumption in favor of ADI carriage would result in cable subscribers losing  Baccess 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  pfrom 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.  $ * * * * *  n  [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  S-community is part of a particular station's market.ZX_ yO-ԍH.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).Z     S-  x5. The Commission provided guidance in its Report and Order in MM Docket 92259, supra, to aid decision making in these matters, as follows:   A  For example, the historical carriage of the station could be illustrated by the submission of  S-  documents listing the cable system's channel lineup (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  S -  ^community in cable and noncable homes. Audience data clearly provide appropriate evidence  S -  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   mviewing 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"v#,>(>(II%"  S-supplemented with additional data concerning viewing in cable homes.i  {Oh-ԍMustCarry Order, 8 FCC Rcd at 2977 (emphasis in original).i     S- xIn adopting rules to implement this provision, the Commission indicated that changes requested should  xbe considered on a communitybycommunity basis rather than on a countybycounty basis and that they  x=should be treated as specific to particular stations rather than applicable in common to all stations in the  S8-market.Z 8Z {O2-ԍMustCarry Order, 8 FCC Rcd at 2977 n.139. Z  S-1 SUMMARY OF PLEADINGS ă  S- ` ~x6.` ` In support of their petition, Genesee/TriCounty argue that WNYB should be excluded  x>from carriage on Genesee/TriCounty's cable systems because WNYB fails to satisfy any of the four  x=statutory market modification factors. First, with regard to historic carriage, Genesee/TriCounty assert  x0that WNYB has never been carried on either cable system. Second, with regard to local coverage,  x.Genesee/TriCounty assert that WNYB fails to provide Grade B contour coverage to all but three of the  xL74 communities at issue. Of the three communities of Alexander, Pembroke and Royalton, Genesee/Tri xCounty states that WNYB's Grade B contour covers 10% of Alexander and 50% of the communities of  xPembroke and Royalton, respectively. Genesee/TriCounty further assert that WNYB, in addition to  xfailing to provide Grade B contour coverage, is geographically distant from the Communities.  xGenesee/TriCounty note that Genesee's Perry system is located 78 miles from WNYB's city of license  x and 66 miles from WNYB's transmitter site, that Genesee's Stafford system is located 87 miles from  xWNYB's city of license and 78 miles from WNYB's transmitter site, and that TriCounty's Medina system  S- xis located 90 miles from WNYB's city of license and 75 miles from WNYB's transmitter site.6  yOD-ԍPetition at 3.6  x.Genesee/TriCounty argue that these distances are all within the range of distances that the Commission  Sh-has previously found to attenuate the ties between cable communities and broadcast stations.* &h| {O- xԍId. at 7  citing Service Electric Cable TV of New Jersey, Inc. DA 962138 (Cab. Serv. Bur., rel. December 20,  {ON- x1996) at  8;  TKR Cable Company, DA 961890 (Cab. Serv. Bur., rel. November 18, 1996) at  11; Time Warner  {O- xCable, DA 961694 (Cab. Serv. Bur. rel. October 15, 1996) at  13; and Time Warner New York City Cable Group, DA 961545 (Cab. Serv. Bur. rel. September 17, 1996) at  20, n. 33.*  S- ` x7.` ` Third, Genesee/TriCounty assert that, with regard to the service to the Communities  xjoffered by other local television stations and eligible for carriage on Genesee/TriCounty's cable systems,  xlocal coverage is provided by seven television stations all of which are licensed to the City of Buffalo,  xNew York. Genesee/TriCounty argue that those stations offer programming that includes a wide variety  x>of local news, sports, public affairs and public service coverage and that provides a closer nexus than  SP-WNYB. Pj  {O#- xԍGenesee/TriCounty attached excerpts from TV Guide, Buffalo Edition, listing the programming provided by  {OL$-the Buffalo stations. SeeĠPetition at Attachment 3.h  S- ` x8.` ` Finally, Genesee/TriCounty assert that, with regard to viewership levels, WNYB only  S- xLresumed broadcast operations in January, 1997, after going off the air in 1991, and has not had sufficient" ,>(>(IIL" onair time to undergo a survey of its audience.  S- ` x9.` ` In opposition, WNYB asserts that the 1992 Cable Act provides for marketwide carriage  xof WNYB because it is a local commercial television station that can provide a good quality signal.  x>WNYB further asserts that, under the 1992 Cable Act, the market modification process is to be used  xzprimarily to expand a television station's carriage rights and can only be used to deny carriage where a  xNcable system lacks sufficient capacity. With respect to historical carriage, WNYB argues that the  xCommission has stated that a station's failure to establish a history of carriage should not be given great  S- xweight in market modification proceedings. {O( - x;ԍOpposition at 6, citing Time Warner Cable, 10 FCC Rcd 936, 938 (1995) and  North Central Communications,  {O -Inc., 10 FCC Rcd 4381, 4383 (1995). WNYB asserts that the 1992 Cable Act provides protection  S- xLto smaller stations like WNYB from discriminatory signal carriage practices.x$ {O\ -ԍId. citing Kansas City Cable Partners, 10 FCC Rcd 3807, 3809 (1995).x In the alternative, WNYB  xargues that it does have a history of carriage because, before WNYB went off the air in 1991, it was  xcarried by Time Warner Inc., Genesee/TriCounty's parent company, on its system serving Buffalo, New  S -York.r  yOv-ԍThe Petitioners are indirect whollyowned subsidiaries of Time Warner Inc.r  S - ` x10.` ` WNYB argues that, with regard to local service and coverage, Genesee/TriCounty assert,  xybut do not demonstrate, that WNYB fails to satisfy the local service prong of the statutory test. WNYB  x=does not dispute Genesee/TriCounty's allegations concerning WNYB's Grade B contour but argues that  xzCongress did not intend Grade B contour coverage to be the sole measure of a station's local coverage,  xparticularly where a station opts to upgrade its signal quality. WNYB notes that the Commission has said  x[that a television station's decision to improve its signal can effectively negate a cable operator's argument  S- xMfor deletion based upon the lack of a Grade B contour over the relevant cable communities.F {O-ԍOpposition at 8 citing Greater Worcester Cablevision, 10 FCC Rcd 12569, 12573 (1995). WNYB  xmaintains that Genesee/TriCounty's argument concerning the geographic distance between the station's  xcity of license and transmitter, respectively, and the cable communities at issue is misleading. WNYB  xasserts that Congress replaced a mileagebased standard for determining mustcarry rights with one that  S@- xis based on the ADI market modification factors.@ {O- x<ԍId. citing H.R. Rep. No. 4850, 102d Cong. 2d Sess.  6 (1992) and H.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992). WNYB further asserts that the geographical distances  S- xyare irrelevant in defining a television station's market and that Genesee/TriCounty should not be allowed  xZto thwart Congress' intent by their attempt to rely upon a mileagebased standard to support their argument  S- xfor deletion.;&2  {O"- xԍId. citing Amendment of Section 76.51 (Orlando, Daytona Beach, Melbourne and Cocoa, Florida), 102 FCC  {Od#- x 2d 1062 (1985) ("Amendment of Section 76.51") (major market communities more than 75 miles apart); Amendment  {O.$- x-of Section 76.51 (TampaSt. PetersburgClearwater, Florida), DA 951121 (Cab. Serv. Bur. rel. May 25, 1995) (Grade B contour has reduced relevance under mustcarry rules which are based on ADI geographical market areas).; WNYB further asserts that it is, without question, a part of the Buffalo ADI, can deliver  xa good quality signal, and provides an effective platform for local ministries and other service providers to communicate with the local cable communities."x ,>(>(II"Ԍ S- ` ԙx11.` ` With regard to carriage by other local stations, WNYB argues that the fact that  xyGenesee/TriCounty's cable systems carry other local stations is not a basis for deleting WNYB from the  xzBuffalo 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.  S8- ` x12.` ` Finally, WNYB asserts that, with regard to viewing patterns, Genesee/TriCounty ignore  xWNYB's prior carriage on Time Warner's cable system as Channel 49, Buffalo, New York as opposed  xto WNYB's present service as Channel 26, Jamestown, New York. Moreover, WNYB argues that it is  xa specialty station that, while it provides a valuable source of diverse programming to cable communities, typically attracts a limited audience.  SH - ` x13.` ` In reply, Genesee/TriCounty maintain that WNYB proffers an unduly narrow view of the  xkCommission's authority in market modification proceedings and that it has not offered legal or factual  xyarguments to support denial of the petition. Genesee/TriCounty assert that the ADI process allows the  xCommission to consider factors other than the presence of a station within a particular ADI in order to  xmore accurately determine that station's market. Genesee/TriCounty further assert that they have shown  xthat WNYB's economic market does not include the cable communities within the Buffalo ADI because  xWNYB lacks a history of carriage, is geographically distant, fails to provide meaningful local service or  xGrade B contour coverage, and is not viewed offtheair by residents of the cable communities.  xGenesee/TriCounty point out that, in a case substantially similar to the case at hand, the Commission  xrecently deleted a television station, WWTOTV, because the station was geographically distant, lacked  xzGrade B coverage, and evidenced the absence of historic cable carriage and local viewing of the subject  S-station. {O- xԍReply 3 citing Time Warner EntertainmentAdvance/Newhouse Partnership, DA 97565 (Cab. Serv. Bur. rel. March 14, 1997).  S@- ` x14.` ` Genesee/TriCounty argue that in each of the Commission decisions which WNYB relies  xupon to show that geographic distance is irrelevant, the television station at issue placed a Grade A or  S- x.Grade B contour over the relevant cable communities.7" {O-ԍId. at 8.7 Thus, Genesee/TriCounty assert that the issue  xof local service was not a factor in those cases as it is in the instant case. Genesee/TriCounty further  xargue that the issues of geographical distance and contour coverage are factors which are germane to the  xdetermination 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.  S- ` x15.` ` Genesee/TriCounty point out that WNYB did not submit examples of its programming  xto show that the station offers programs that are of local interest while emphasizing that Genesee/Tri xCounty currently carries numerous other local stations which provide programming to meet the needs and  xinterests of viewers in the Communities. With regard to viewing patterns, Genesee/TriCounty maintain  xthat minimal or nonreportable 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. " ,>(>(II!"Ԍ S-(  +#P 8 +#P DISCUSSION ă  S- ` x16.` ` Based on our analysis of the evidence relating to the four statutory and other relevant  xjfactors, we will grant Genesee/TriCounty's petition except for the communities of Alexander, Pembroke  x +#P 8 +#P and Royalton. The geographical distance, local coverage and other relevant factors persuade us that the  x[cable communities served by Genesee/TriCounty are sufficiently removed from WNYB that they ought not be deemed part of the station's market.  S- ` #x17.` ` The cable television mandatory broadcast signal carriage rules were adopted as part of the  x1992 Cable Act. The legislative history of the 1992 Cable Act indicates that the use of ADI market areas  xis intended "to ensure that television stations be carried in the areas which they service and which form  SH - xtheir economic market."^H  yO -ԍH.R. Rep. No. 102628, 102d Cong., 2d Sess. 97 (1992).^ The Act specifically provided that the Commission was to consider adding  xadditional communities or excluding communities from the markets of television stations to "better  S - xeffectuate the purposes" of the mandatory carriage requirements.= X yO-ԍ47 U.S.C. 534(h).= In acting on such requests, the  xCommission was instructed to "afford particular attention to the value of localism, taking into account four  S - xLspecified statutory factors." These factors, however, were "not intended to be exclusive."^  yO0-ԍH.R. Rep. No. 102628, 102d Cong., 2d Sess. 97 (1992).^ The market  xkmodification provisions of 614(h) are said, in the legislative history, to "reflect a recognition that the  xMCommission may conclude that a community within a station's ADI may be so far removed from the  S0- xstation that it cannot be deemed part of the station's market."10x {OH-ԍId.1 When viewed against this framework, and  xconsidering all of the relevant factual circumstances in the record, we believe that Genesee/TriCounty's  xdeletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous  xwith market realities. We believe that the requested exclusion of most, but not all, of the communities  xserved by Genesee/TriCounty's cable systems from the market of WNYB will better effectuate the  xypurposes of the mustcarry statutory provisions by guaranteeing that subscribers have access to stations that serve their community.  S- ` Rx18.` ` We now turn to the four part market modification analysis. Statutory factor one is  x."whether the station, or other stations located in the same area, has been historically carried on the cable  xZsystem or systems within such community." WNYB, operating as channel 26 assigned to Jamestown, New  xYork, has no history of carriage in the cable communities in question. The fact that the station was  xypreviously carried when it operated under a different channel number and was assigned to a different city  xkdoes not bear upon the weight of the evidence in this proceeding. While in general the lack of historic  x!carriage favors excluding the Communities from the market of WNYB, that factor is not outcome  xdeterminative in a market modification proceeding, particularly in the instant case where the station has recently resumed broadcasting.  S`- ` Qx19.` ` Statutory factor two is "whether the television station provides coverage or other local  xLservice to such community." This factor incorporates both technical service and programming service as  S - x@well as geography (mileage and topographical features). With respect to technical service, the"  ,>(>(II!"  S- x/Commission has stated in its Report and Order in MM Docket 92259 that "to show that the station  xprovides coverage or other local service to the cable communities, parties may demonstrate that the station  xplaces at least a Grade B coverage contour over the cable community or is located close in terms of  S- xmileage."? yO-ԍ8 FCC Rcd at 29762977.? In the absence of other determinative market facts (i.e. where the other aspects of the four  x.statutory factors by themselves define the market, where there is no clear proof that the contour fails to  xreflect actual coverage, or where there are no terrain obstacles), Grade B contours have been found to be  S- xan efficient tool to adjust market boundaries.X {O -ԍ See, e.g. Cablevision Systems Corp. (N.Y. ADI Market), FCC 97285 (released August 13, 1997). We find here that WNYB provides no Grade B service  xto 71 of the 74 cable communities at issue, provides a 10% contour over the community of Alexander,  xand places a Grade B contour over at least 50% of each of the communities of Pembroke and Royalton.  xThe evidence with respect to WNYB's service to the 71 communities for which it provides no Grade B  xzcontour weighs in favor of the requested action. The evidence with respect to WNYB's service to the  xcommunities of Alexander, Pembroke and Royalton weighs against granting Genesee/TriCounty's petition  xwith respect to those communities. The Commission has found that even partial Grade B coverage  S - xjdemonstrates service to cable communities and can help delineate a station's economic market.  {O- xԍReport and Order, 8 FCC Rcd at 2977 and Amendment of Section 76.51 at 1070 ("We believe that television stations actually do or logically can rely on the area within their Grade B contours for economic support.") We find  xthat the geographic distances involved further attenuate WNYB's connection to the remaining cable  S - xkcommunities.  D yO- xkԍGenesee's Perry system is located 78 miles from WNYB's city of license and 66 miles from WNYB's  xtransmitter site, Genesee's Stafford system is located 87 miles from WNYB's city of license and 78 miles from  xWNYB's transmitter site. TriCounty's Medina system is located 90 miles from WNYB's city of license and 75 miles from WNYB's transmitter site. With regard to programming service, Genesee/TriCounty alleges that WNYB fails to  x1provide programming of local interest. WNYB asserts but provides no evidence that it offers  x\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.  S- ` x20.` ` Statutory factor three is "whether any other television station that is eligible to be carried  xby a cable system in such a community in fulfillment of the requirements of this section provides news  xjcoverage of issues of concern to such community." In this instance, Genesee/TriCounty allege that each  xsystem carries numerous local stations including seven stations assigned to Buffalo, New York and that  x these stations carry programming addressing local needs and interests. We believe that Genesee/Tri x[County's carriage of other local television stations provides support for the action requested in this case.  xWhere a cable operator is seeking to delete a station's mandatory carriage rights in certain communities,  xthe 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.  SR- ` ox21.` ` Statutory factor four is "evidence of viewing patterns in cable and noncable households  xwithin the areas served by the cable system or systems in such community." WNYB has no significant  xreported audience share in the cable communities in question. We note that WNYB classifies itself as a  xspecialty station and asserts that ratings are of no probative value when a cable operator seeks to delete  xjsuch a station. We further note that WNYB did not specify the nature of its specialized programming or", ,>(>(II"  x/provide any evidence of viewership. While WNYB's apparent lack of audience share is not outcome determinative, it weighs in favor of deletion.  S- ` x22.` ` We have carefully considered the statutory factors as well as other relevant information.  xWe find that, with respect to 71 of the 74 cable communities at issue, WNYB lacks historic carriage  x(factor I), provides no Grade B contour coverage or other local service (factor II), and lacks a reportable  xaudience (factor IV). We further find that other local stations that are entitled to carriage do provide news  xand other information regarding issues of concern to the Communities (factor III). With respect to the  xLremaining three communities of Alexander, Pembroke and Royalton, factors I, III and IV have been given  xless weight in our determination because WNYB provides those communities with Grade B contour coverage.  SH -  S -1ORDERING CLAUSES ă  S - ` x23.` ` Accordingly, IT IS ORDERED that, pursuant to 614 of the Communications Act, as  xamended, 47 U.S.C. 534, and Section 76.59 of the Commission's rules, 47 C.F.R. 76.59, the Petition  xyfor Special Relief (CSR4952A) filed by Genesee County Video Corp. and TriCounty Cablevision, Inc.  SX- xL IS GRANTED for: Genesee's Perry headend serving the Towns of Castile, Gainesville, Genesee Falls,  xlNunda, Perry, Pike and Portage, the Villages of Castile, Gainesville, Nunda, Perry, Pike and Silver  xSprings; Genesee's Stafford headend serving the City of Batavia, the Towns of Alabama, Alexander,  x Attica, Avon, Batavia, Bergen, Bethany, Caledonia, Conesus, Covington, Elba, Geneseo, Groveland,  xjLeicester, Leroy, Lima, Livonia, Mendon, Middlebury, Mt. Morris, Mumford, Oakfield, Pavilion, Rush,  xStafford, W. Bloomfield, York, and the Villages of Alexander, Attica, Avon, Bergen, Caledonia,  xChurchville, Corfu, Elba, Geneseo, Honeoye Falls, Leicester, Leroy, Lima, Livonia, Mt. Morris, Oakfield,  xScottsville, and Wyoming; and TriCounty's Medina headend serving the Towns of Albion, Barre, Carlton,  xGaines, Hartland, Kendall, Ridgeway, Shelby, and Yates and the Villages of Albion, Lyndonville, Medina, and Middleport.  S- ` x24.` ` IT IS FURTHER ORDERED that Genesee/TriCounty's petition IS DENIED with respect to the cable communities of Alexander, Pembroke and Royalton.  S(- ` _x25.` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R. 0.321. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION  +#P   +#P  x` `  hh@William H. Johnson x` `  hh@Deputy Chief, Cable Services Bureau  S!- x x