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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 ) ) CABLEVISION OF CLEVELAND, L.P. ) AND V CABLE, INC. ) ) For Modification of Television Markets of ) CSR 5006-A Stations WAKC-TV, Akron, Ohio ) and WOAC-TV, Canton, Ohio ) ) In re Complaints of ) ) PAXSON AKRON LICENSE, INC. ) CSR 5021-M and ) WHITEHEAD MEDIA OF OHIO, INC. ) CSR 5028-M ) against Cablevision of Cleveland, L.P. and V Cable, Inc. ) For Carriage of WAKC-TV, Akron, Ohio and ) WOAC-TV, Canton, Ohio ) MEMORANDUM OPINION AND ORDER Adopted: September 12, 1997 Released: September 19, 1997 By the Deputy Chief, Cable Services Bureau: 1. Cablevision of Cleveland, L.P. and V Cable, Inc. ("Cablevision") filed the captioned petition, pursuant to 47 U.S.C.  534(h)(1)(C), seeking to exclude the Communities listed in Appendix A from the markets of television stations WAKC-TV (Channel 23), Akron, Ohio, and WOAC-TV (Channel 67), Canton, Ohio. Paxson Akron License, Inc. ("Paxson"), licensee of WAKC-TV, and Whitehead Media of Ohio, Inc. ("Whitehead"), licensee of WOAC-TV, filed oppositions to Cablevision's petition, and Cablevision filed replies. Paxson and Whitehead also filed must carry complaints seeking carriage of WAKC-TV and WOAC- TV in some of the communities served by Cablevision's cable systems, which Cablevision opposed and which we address 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. Cablevision's petition requests the Commission, pursuant to Section 614(h)(1)(C), to delete the Communities listed in Appendix A, which it serves from five headends identified as the Strongsville, Bainbridge, Sheffield Lake, Cleveland Heights, and Chadron headends, from the television markets of television stations WAKC-TV and WOAC-TV. These Communities are located in the Cleveland, Ohio ADI. Akron, Ohio, the city of license of WAKC-TV, and Canton, Ohio, the city of license of WOAC-TV, are also within the Cleveland ADI. A. MARKET FACTS AND ARGUMENTS: WOAC-TV, Canton, Ohio 7. We address first the request for modification of WOAC-TV's market. Cablevision contends that WOAC-TV has no economic nexus to the Communities. Cablevision states that, although WOAC-TV first went on the air in March of 1982, the station has never been carried on its system. Cablevision argues that a station's history of carriage on a cable system prior to passage of the Cable Act of 1992 is given weight by the Commission in the station market modification process. Second, Cablevision maintains that WOAC- TV is geographically remote for the Communities served by its system. Cablevision states that WOAC-TV's transmitter is located between 4 and 48 miles (with an average of approximately 30 miles) from the Cablevision Communities at issue. Cablevision contends that since communities located approximately 42 miles from certain other stations have been deleted from those stations' markets, a similar result should be adopted here. Cablevision also asserts that while some of the Communities are within WOAC-TV's Grade B signal contour, some of the communities fall outside of WOAC-TV's Grade B contour and other communities are located on the fringes of the station's Grade B contour. Cablevision suggests the Communities have a closer nexus to Cleveland than they do to either Akron or Canton because they are located in the northern portion of the Cleveland ADI as is Cleveland itself, while Akron and Canton are located in the southern portion of the Cleveland ADI. 8. Cablevision contends WOAC-TV fails to provide any programming of specific local interest to the Communities, that WOAC-TV is not listed in the local, citywide television guide published with the Cleveland Plain Dealer, and that WOAC-TV does not maintain in the public inspection file at the station any program and issues description list that identifies any local programming. Cablevision argues that the failure to provide local programming should weigh heavily against WOAC-TV in considering this request to exclude the Communities from WOAC-TV's market. Rather than providing local service, Cablevision contends WOAC-TV fills 80 percent of its air time with infomercials and 20 percent of its air time with religious and general interest programming having no specific reference to the needs and interests of the Communities at issue here. Cablevision asserts that the Communities receive substantial amounts of local service from the programming of network and educational stations carried on its system from the Cleveland area. Finally, Cablevision asserts that WOAC-TV has no measurable viewing in any of the Communities. In support, Cablevision provided a Nielsen County-Coverage Study for the Cleveland television market to show that WOAC-TV's viewership is so low in the Cleveland area as not to be reported. Cablevision asserts that when the statutory four factor test is applied to the record outlined above, it becomes clear that the Commission should exclude the Communities from WOAC-TV's market. 9. In opposition, Whitehead states that the facilities of WOAC-TV, licensed to operate on Channel 67 in Canton, Ohio, were recently upgraded in power and tower height and relocated to a Brimfield, Ohio transmitter site near Akron, Ohio. According to Whitehead, the new facilities significantly increased WOAC-TV's signal coverage of the Cleveland ADI, including the Communities at issue here. Whitehead contends that with these improved facilities the Communities are geographically proximate to the station's transmitter site and the vast majority of the Communities are all located within WOAC-TV's Grade A or Grade B signal contour and the others are on the fringes of WOAC-TV's Grade B signal contour. Whitehead asserts that Cablevision's exhibit presenting the distances from WOAC-TV to each of the Communities it serves does not demonstrate that the Communities are distant from WOAC-TV as Cablevision claims, but instead shows how close they are. Whitehead states that while eight of the Communities are more than 35 miles from the station, 12 communities are within 20 miles and 36 of them are within 25 miles of the station's new transmitter site. Whitehead argues that the recent improvements in WOAC-TV facilities diminish any significance that should be given to the lack of historic carriage on Cablevision's system. It argues further that the inability to document a history of carriage should not preclude newer, weaker and specialty station from ever obtaining carriage. Whitehead argues further that the factors that led to market modifications in other cases where historic carriage could not be established are absent here. Whitehead notes that here Grade B or better signal coverage encompasses all, or nearly all, of the Communities at issue and that the great distances between WOAC-TV and the Communities at issue do not exist. 10. Whitehead claims that WOAC-TV provides locally originated programming specifically targeted to viewers in the Cleveland area, including residents of the Cablevision Communities. Specifically, Whitehead states that in one recent month WOAC-TV aired nine episodes of a regular half hour public affairs program called "Dialogue" involving organizations or events of interest to viewers in the Cleveland area, including residents of the Cablevision Communities. Whitehead identified several organizations that are based in communities served by Cablevision's system and indicated that guests from those organizations have appeared on shows in the "Dialogue" series. In this connection, Whitehead asserts that the provision of local programming by other stations carried on Cablevision's system is irrelevant to the market modification analysis required in this case. It argues that the Commission consistently refuses to give this factor any weight except in instances where the station is not providing local service. It contends, however, that WOAC-TV provides local service through its Grade B service, local programming efforts and geographic proximity to the Communities. Finally, Whitehead urges the Commission to give little weight to the relatively small audience ratings of WOAC-TV in the Communities because of the station's specialty format. It contends that the Commission has specifically affirmed the public interest value of home shopping programming and program length commercials as providing an important service to viewers who either have difficulty obtaining or do not otherwise wish to purchase goods in the traditional manner. It contends further that the recent upgrading of WOAC-TV's technical facilities undermines Cablevision's reliance on the relatively small audience ratings for WOAC-TV in the Communities that the station's signal previously could not reach. 11. In reply, Cablevision reemphasizes its previous arguments and contends that Whitehead failed to rebut its showing that WOAC-TV does not satisfy the local coverage factor. With respect to the impact of the upgrade of WOAC-TV's facilities, Cablevision argues that the delivery of a Grade B signal to the Communities does not by itself establish the Communities as part of WOAC-TV's market. Cablevision contends that delivery of a Grade B signal merely provides threshold evidence of local service from a technical point of view. Cablevision asserts that station programming provides the local nexus desired by Congress and that the record shows that Whitehead provides virtually no programming specifically directed to the local needs and interests of the Communities at issue here. In this connection, Cablevision contends that the Commission should discredit any claim of local programming because of the station's inability to substantiate it by producing a contemporaneously generated program-issues list from the public inspection file as required by 47 C.F.R.  73.3526(a)(8)(i). Cablevision also asserts that Whitehead's evidence concerning the one half hour program series "Dialogue" is insufficient to establish a nexus to the Communities because the record does not show what portion of the program is devoted to local issues or even when the program is aired. B. MARKET FACTS AND ARGUMENTS: WAKC-TV, Akron, Ohio 12. Cablevision contends also that WAKC-TV does not have any nexus to the Communities and fails to satisfy the four statutory market modification factors. Cablevision states that WAKC-TV has never been carried in over one-third of the communities served by its system. Cablevision contends further that its carriage of WAKC-TV in some of the other communities it serves is not relevant here because WAKC- TV had been carried as a second ABC network affiliate until the station's sale to Paxson in December of 1995. It asserts that Paxson's replacement of ABC network programming during 1996 resulted in a fundamental change in the overall nature of WAKC-TV's programming format. Cablevision argues that with this major shift in WAKC-TV's programming the requested deletion of the Communities from WAKC-TV market would not be disruptive of established viewing patterns in the Communities because of WAKC-TV's low audience viewing levels since the change to the new program format. 13. Cablevision maintains that WAKC-TV does not provide local coverage to the communities. Although Cablevision concedes that WAKC-TV's Grade B signal contour covers the Communities and the station is between 8 and 41 miles from the Communities (with an average of 26.75 miles), it suggests that proximity and signal coverage are only examples of the types of information that may satisfy the local coverage statutory factor and are not dispositive. It contends that WAKC-TV does not provide any programming specifically addressed to the Communities at issue and claims that the station, when requested to do so, could not produce any "issues/program" list from the public inspection file that would establish the local aspects of any of the station's programming. According to Cablevision, the absence of local coverage is also shown by the absence of WAKC-TV from listings in the Cleveland area television guide. 14. Cablevision contends that WAKC-TV's weekly program schedule consists of infomercials or religious programming, and that it does not provide any local coverage of news, sports or public affairs programming of specific interest even to local residents. Cablevision reasserts that the Communities receive substantial amounts of local service from the programming of network and public stations from Cleveland that are carried on its system and, therefore, are provided a variety of public affairs, news and public service programming geared specifically to Community residents. Cablevision also asserts that WAKC-TV has no measurable viewing in any of the Communities. Cablevision provides 1996 Nielsen County-Coverage Study data for the Cleveland television market to show that WAKC-TV, even as an ABC affiliate, managed only a one share in most of the cable and noncable reporting categories and contends that in other instances the Commission has deleted communities from a station's market with viewership levels similar to those present in this case. Cablevision also asserts that the application of the statutory four factor test to this record shows that the Communities should be excluded from WAKC-TV's market. 15. In opposition, Paxson contends that Cablevision seeks modification of the station's market in order to avoid its obligations under the must-carry rules. Paxson asserts that under the must carry statutory provisions, WAKC-TV is entitled to a strong presumption in favor of carriage on Cablevision's cable systems serving those Communities. Paxson argues that by placing WAKC-TV in the hyphenated Cleveland market, the Commission determined that Akron stations compete with stations licensed to Cleveland, that carriage throughout the ADI is necessary to help equalize competition among area stations, and that market hyphenation and market modification proceedings involve overlapping objectives. 16. Paxson cites Turner Broadcasting Systems, Inc. v. FCC, 117 S. Ct 1174 (1997) ("Turner"), and argues that in Turner the Court emphasized the design of the must carry provisions as a method 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 states that the Commission defended the must carry provisions on these grounds 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 Cleveland ADI. 17. Paxson further 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 and that Cablevision 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 the grant of this petition would subvert the clear intent of Congress that stations, like WAKC-TV, be assured an opportunity to compete throughout their ADI. 18. Paxson also contends that WAKC-TV's must carry rights in the Communities should not be eliminated because the station has not historically been carried in some of the Communities served by Cablevision's cable systems, claiming that failure to establish historic carriage should not be given much weight. Paxson states that Cablevision 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 notes Commission decisions holding 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, Paxson contends that the Commission has repeatedly stated that carriage of other local stations provides no basis for deletion. It points to Commission findings where specialty stations, such as WAKC-TV, were deemed "capable of offer[ing] desirable diversity of programming. . . yet typically attract limited audiences." Paxson argues that in view of this precedent, the request here for deletion of the Communities from WAKC-TV's market should be denied. 19. Paxson argues further that making lack of carriage in the context of small, specialty stations like WAKC-TV would have the effect of preventing weaker stations from ever being carried and that only well established, centrally located stations with powerful Grade B signals would be able to achieve carriage throughout their ADI. Paxson contends that the Commission recognizes that the specialty format of stations like WAKC-TV is capable of offering desirable diversity of programming despite typically attracting limited audiences. Paxson also states that evidence of lack of viewing of WAKC-TV in the Communities, therefore, should not be deemed dispositive. 20. Finally, Paxson claims that WAKC-TV airs programming of local interest to Cablevision's subscribers and residents throughout the Cleveland ADI through a format that combines "program-length presentations by local and national businesses and community organizations with religious and local public affairs programming." It claims that these programs offer a valuable and cost effective local platform to businesses and community organizations to communicate with residents throughout the Cleveland ADI. Paxson cites "Community" as a public affairs program that provides information on the latest educational, political and societal issues Cleveland and the surrounding communities. 21. In reply, Cablevision contends that Paxson failed to controvert its showing that WAKC-TV does not satisfy the local coverage factor, arguing that Paxson's opposition ignores the four part market test and insists instead on matters inconsistent with the must carry statutory and regulatory provisions. Cablevision says it presented particularized and persuasive evidence under each of the four elements that demonstrate the exclusion of the Communities from WAKC-TV's market would better effectuate the purposes of the must carry provisions. In particular, Cablevision contends that it demonstrated that WAKC- TV is not carried on its cable system; WAKC-TV viewer levels in the Communities were too low to show any economic connection between the Communities and the station; WAKC-TV fails to provide any significant level of programming specific to the needs and interests of the Communities; and other qualified stations carried on its cable systems respond more directly to the specific needs and interests of the Communities. Emphasizing that WAKC-TV programming does not provide the local nexus desired by Congress, Cablevision asserts that the record shows that WAKC-TV provides virtually no programming specifically directed to the local needs and interests of the Communities at issue here. In this connection, Cablevision says the Commission should discredit any Paxson claim of local programming because of the station's inability to substantiate that claim by producing a contemporaneously generated program-issues list from the public inspection file as required by 47 C.F.R.  73.3526(a)(8)(i). DISCUSSION AND ANALYSIS 22. Based on the record information, which we consider under the four statutory factors, we decline to delete the Communities served by Cablevision from the markets of WAKC-TV and WOAC-TV. First, due to the recent upgrading of WOAC-TV's facilities, the Communities lie within, or on the fringes of, the predicted Grade B signal contour of WOAC-TV. WOAC-TV's lack of history of carriage on Cablevision's cable systems stems largely from the location and status of WOAC-TV's facilities before the recent station upgrading. The Communities also lie within the predicted Grade B signal contour of WAKC- TV. WAKC-TV has a history of carriage in a large portion of the Communities served by Cablevision's cable systems, which ended when the station gave up an ABC network affiliation upon its recent acquisition by Paxson. While the record contains evidence indicating that neither of the stations enjoy significant viewing levels in the Communities, this is not dispositive. In this regard, we note that the programming format of WOAC-TV and WAKC-TV consists largely of home shopping, program length presentations, or "infomercials," and religious programming. The Commission recognizes that stations like WOAC-TV and WAKC-TV, whose operations are in the nature of "specialty stations," typically attract limited audiences. 23. We also consider the fact that both stations are located in proximity to the Communities. The average distance from WOAC-TV to the Communities is only 30 miles. WAKC-TV is on average 26.75 miles from the Communities. These facts, considered along with other circumstances here, tend to indicate that the Communities served by Cablevision are sufficiently close to both stations to be considered part of those stations' markets. 24. We must also consider not only whether a 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 ...." The record shows that Cablevision carries, in addition to the stations licensed to Cleveland, stations WBNX-TV and WEAO licensed to Akron. Akron is also the city of license of WAKC-TV. In addition, with its recently upgraded facilities, WOAC-TV is located at Brimfield, Ohio, which is less than 10 miles from Akron. Also, both WOAC-TV and WAKC-TV have coverage of the Communities at issue here that is similar to the coverage of WBNX-TV. 25. 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. The carriage of stations WBNX-TV and WEAO, licensed to Akron, in the Communities provides strong evidence that the Communities should be considered part of the market of all stations in the Akron metropolitan area. The requested exclusion of the Communities from WOAC-TV's and WAKC-TV's markets would allow Cablevision to discriminate among the several stations licensed to the Akron metropolitan area, despite a Congressional mandate to preclude such discrimination. Being excluded from the Communities would have the effect of precluding these two stations from any opportunity to compete for viewers and advertising revenues with the other Akron metropolitan area stations in the portion of the Cleveland ADI served by Cablevision. Such exclusion would compound any advantage the other Akron stations carried on Cablevision's system have in that portion of the Cleveland ADI. 26. We have carefully considered each statutory factor in the context of the circumstances presented here. We believe the carriage of other Akron metropolitan area stations on Cablevision's cable system in this case must be given considerable weight, along with the fact that most of the Communities at issue here are encompassed by the Grade B signal contours of both stations, with the exception of a few communities that lie on the fringes of WOAC-TV's Grade B contour. We also find that the Communities are generally proximate to the stations, which adds to our finding that the Communities are part of the stations' market place. With regard to viewership levels, as noted earlier, the programming format of WOAC-TV and WAKC-TV consists largely of program length presentations, or "infomercials," and religious programming. The Commission recognizes that stations like WOAC-TV and WAKC-TV, whose operations are in the nature of "specialty stations," typically attract limited audiences, yet are capable of offering a desirable diversity of programming. Considering the record as a whole, we find that Cablevision failed to demonstrate that the requested exclusion of the Communities served by its cable system from television markets of WOAC-TV and WAKC-TV will better effectuate the purposes of the must-carry statutory provisions and serve the public interest. MUST-CARRY COMPLAINTS 27. Complainants Whitehead, license of WOAC-TV, and Paxson, license of WAKC-TV, state that their cities of license and the Communities Cablevision serve are all located in the Cleveland ADI. Whitehead and Paxson further state that the stations are therefore entitled to carriage on Cablevision's cable systems, because the stations provide a good quality signal to Cablevision's headends and carriage of the stations will not result in increased copyright fees to Cablevision. Whitehead and Paxson also state that, following discussions and formal written requests for carriage on Cablevision's system that brought no results other than Cablevision's petition requesting deletion of the Communities served by Cablevision from their respective stations' television markets, they filed the instant complaints formally requesting an order requiring Cablevision to commence carriage of WOAC-TV and WAKC-TV's signals. 28. In response, Cablevision argues that, in the event its market modification petition is denied, it should not be required to carry the signals of both stations on any cable system where they both have requested mandatory carriage. Cablevision states that WOAC-TV and WAKC-TV are both affiliates of the Infomall TV Network ("inTV"). Cablevision further states that pursuant to 76.56(b)(5) of the Commission's rules it need not carry more than one affiliate of a particular "broadcast network," which is defined for purposes of the must-carry rules as "an entity that offers programming on a regular basis for 15 or more hours per week to at least 25 affiliates in 10 or more states." Cablevision asserts that inTV fits the definition of a "broadcast network" because it offers programming on a regular basis for 15 or more hours per week to at least 25 affiliates in 10 or more states." Cablevision asserts that inTV is owned by Paxson Communications Corporation and that inTV provides programming on a regular basis to thirty-seven affiliates located in twenty states, the District of Columbia, and Puerto Rico. Cablevision submitted sample program schedules for WOAC-TV and WAKC-TV, which show that WAKC-TV broadcasts more than 30 hours of inTV programming per week, and that the programming schedule of WOAC-TV is nearly identical to that of WAKC-TV. Cablevision notes that Paxson, the licensee of WAKC-TV, is a subsidiary of Paxson Communications Corporation, and asserts that, pursuant to a time brokerage agreement between Paxson Communications Corporation and Whitehead, Paxson Communications Corporation programs virtually all of WOAC-TV's air time and provides inTV programming to WOAC-TV. 29. Section 614(b)(5) of the Communications Act, which contains the cable television mandatory signal carriage requirement, provides that notwithstanding the general carriage obligations: a cable operator shall not be required to carry the signal of any local commercial television station that substantially duplicates the signal of another local commercial television station which is carried on its cable system, or to carry the signals of more than one local commercial television station affiliated with a particular broadcast network (as such term is defined by regulation). Section 76.56(b)(5) of the Commission's implementing regulations provides, in pertinent part: A cable operator is not required to carry the signal of any local commercial television station that substantially duplicates the signal of another local commercial television station that is carried on its cable system, or to carry the signals of more than one local commercial television station affiliated with a particular broadcast network, as defined in 76.55(f). However, if a cable operator declines to carry duplicating signals, such cable operator shall carry the station whose community of license reference point, as defined in 76.53, is closest to the principal headend of the cable system. For purposes of this paragraph, substantially duplicates means that a station regularly simultaneously broadcasts the identical programming as another station for more than 50 percent of the broadcast week. 30. Cablevision's opposition to the instant carriage complaints is based on the fact that the programming of WOAC-TV and WAKC-TV is duplicative and that both stations are affiliated with the inTV broadcast network, which allegedly meets the definition in Section 76.55(f) of the rules as a network. It contends inTV Network is an entity that far exceeds the definitional benchmarks: i.e., "an entity offering programming on a regular basis for 15 or more hour per week to at least 25 affiliates in 10 or more states." Cablevision claims inTV is offering programming on a regular basis for at least 48 hours per week to at least 37 affiliates in 20 different states plus the District of Columbia and Puerto Rico. Cablevision argues, therefore, that the signal of only one of the stations need be carried. 31. In response, Paxson and Whitehead do not dispute that if the programming of their respective stations were duplicative or if the stations are affiliates of the same network, Cablevision would have an obligation to carry only one of the stations' signals. They also do not dispute that the stations carry inTV programming for 36 hours per week. They do contend that inTV is not a "network" within the meaning of the rules. Whitehead also contends that WOAC-TV is not a "network affiliate." Whitehead contends that WOAC-TV acquires the bulk of its programming via a time brokerage agreement with Paxson Communication Corporation and that WOAC-TV sells some of this time to inTV. 32. With respect to the network issue, it appears undisputed that inTV is an "entity" offering programming "on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more states . . . ." It is contended, however, that only "traditional" networks (ABC, CBS, NBC, and Fox) are covered by the rule and that a network must be an "interconnected program service" in order to be covered by the rules. Neither of these argument appear to have merit. In adopting the network definition in its Report and Order in MM Docket No. 92-295, the Commission stated that it was seeking: a definition that not only includes entities that traditionally have been considered national television networks, but is also flexible enough to accommodate the changing video marketplace. Thus, the Commission intended to cover entities in addition to ABC, CBS, NBC, and Fox to accomplish the intended purpose of this statutory provision, which is to avoid duplicative carriage obligations. Moreover, it is undisputed that inTV offers, on a regular basis, more than 15 hours a week of programming and has more than 25 affiliates in more than 10 states, which is the standard set forth in the rules to define a network. Similarly, although the phrase "interconnected program service" appears in other Commission definitions of the term "network," such as in 73.3613(a)(1), it does not appear in 76.55(f), which is the applicable definition for purposes of this provision of the mandatory carriage rules. 33. In addition to contenting that inTV is not a network, Whitehead also contends that WOAC- TV is not a network "affiliate" because the station receives its inTV programming via a time brokerage agreement with Paxson Communications Corporation. We find no support for the proposition that for purposes of Section 76.56(b)(5) a network affiliate is anything other than a station which broadcasts the output of a television network. Whether that takes place pursuant to a conventional affiliation contract, a retransmission consent agreement, a local marketing agreement, or in some other creative fashion would not seem to matter in terms of the specific purposes of the statutory and rule provisions regarding the cable carriage of duplicative networks. 34. Based on the record, we conclude that both WOAC-TV and WAKC-TV satisfy the definition of a "qualified local commercial television station" under the must carry rules with respect to the communities served by Cablevision on which the stations have requested carriage. It is uncontested that both stations deliver a good quality signal to the headends of the systems on which they request carriage. In addition, there is no contention that carriage of either station will increase the copyright liability of Cablevision. However, consistent with the requirements of 47 U.S.C. 614(b)(5) and 47 C.F.R. 76.56(b)(5), Cablevision is not required to carry both WOAC-TV and WAKC-TV. Instead, Cablevision is required to carry the station, WOAC-TV or WAKC-TV, that is closer to the principle headend of the particular cable system or systems on which carriage is requested. ORDERING CLAUSES 35. 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 Cablevision of Cleveland L.P. and V Cable, Inc. File No. CSR-5006-A IS DENIED. 36. IT IS FURTHER ORDERED that the Must-Carry Complaints filed on June 5, 1997, by Paxson Akron License, Inc., licensee of television station WAKC-TV in File No. CSR-5021-M and on June 6, 1997 by Whitehead Media of Ohio, Inc., licensee of television station WOAC-TV, ARE GRANTED. WAKC-TV and WOAC-TV shall notify Cablevision of Cleveland, L.P. and V Cable, Inc. in writing of their carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty (30) days of the release date of this Memorandum Opinion and Order. Cablevision of Cleveland, L.P. and V Cable, Inc. shall come into compliance with the applicable rules within sixty (60) days of such notification by commencing carriage of either WOAC-TV or WAKC-TV, depending on which station's community of license reference point is closer to the subject cable system's principal heahend. 37. 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 Ohio Communities Served by Cabvlevision of Cleveland, Inc., and V Cable, Inc. Community CUID No. Community CUID No. Communities Served by Strongsville Headend Bath OH1269 Bedford Heights OH0967 Bentleyville OH1926 Berea OH0949 Brecksville OH1274 Brook Park OH1823 Brooklyn OH1606 Brunswick OH1076 Brunswick Hills OH1077 Columbia OH1024 Copley OH1270 Cuyahoga Falla OH1271 Cuyahoga Heights OH1196 Garield Heights OH1193 Glenwillow OH1180 Granger OH1272 Hinckley OH1601 Independence OH0093 Lakewood OH1449 Middleburg Heights OH1023 Newburg Heights OH1194 North Olmsted OH0800 North Royalton OH0971 Northfield OH0969 Oakwod OH1101 Peninsula Richfield (Twp.) OH1276 Richfield (Village) OH1275 Sharon Solon OH0968 Strongville OH0841 Valley View OH1195 Walton Hills OH1306 Westlake OH0746 Communities Served by Bainbridge Headend Auburn OH2231 Bainbridge OH1233 Hunting Valley OH1399 Newbury OH1584 Russell Center OH1235 South Russell OH1388 Communities Served by Sheffield Lake Headend Avon OH1258 Sheffield OH1320 Sheffield Lake OH1022 Communities Served by Cleveland Heights Headend Beachwood OH0201 Bedford OH0805 Bentleyville OH1926 Chagrin Falls OH0804 Cleveland Heights OH0695 Euclid OH0109 Gates Mills OH1944 Highland Heights OH0986 Highland Hills Lyndhurst OH0663 Maple Heights OH1004 Mayfield Village OH0862 Mayfield Heights OH0777 Moreland Hills OH1061 North Randall OH0757 Orange OH0774 Pepper Pike OH1062 Richmond Heights OH0765 Shaker Heights OH0175 Communities Served by Cleveland Heights Headend (Cont'd) South Euclid OH0778 University Heights OH0662 Warrensville Heights OH0113 Willowick OH0776 Woodmere OH0775 Communities Served by Cleveland Headend Bratenahl OH2290 Cleveland OH1623 Lindale OH2289 Communities Served by Chardon Headend Aquilla OH1323 Burton (Village) OH1585 Burton (Twp.) OH2060 Chardon (TWP.) OH1232 Chardon (Village) OH1109 Claridon OH1387 Hamden OH1322 Middlefield (Village) OH1586 Munson OH1234 Newbury OH1584