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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>>>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\pBnnBmgg>Q\7"yyyy\njc\gnn\"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\24K-K/ !2!2"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\vy.X80,X\  P6G;Pw7jC:,9Xj\  P6G;XPx7nC:,|Xn4  pG;X}2a=5,&a\  P6G;&P|2e=5,&e4  pG;&~P:% ,J:\  P6G;JPH5!,i,5\  P6G;,P\0_=5,%&_*f9 xr G;&X\{,W80,%0W*f9 xr G;XQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\ X- X   ) X-  #&a\  P6G;&P#Federal Communications Commission`}(#<DA 972000 ă  yxdddy )ՊX` hp x (#%'0*,.8135@8:(>(II%"   kbroadcast 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  S-  jby the Arbitron audience research organization.W yO-  ԍSection 614(h)(1)(C) of the Communications Act, as amended by the Telecommunications Act of 1996, provides   that a station's market shall be determined by the Commission by regulation or order using, where available,  {O-  commercial publications which delineate television markets based on viewing patterns. See 47 U.S.C.  534(h)(1)(C).   Section 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial  {O:-  implementation of the mandatory carriage rules are those published in Arbitron's 19911992 Television Market Guide.   The Commission is currently addressing in a rulemaking proceeding the question of whether Nielsen DMAs would  {O-  jbetter define television markets. See Definition of Markets for Purposes of the Cable Television Mandatory   Television Broadcast Signal Carriage Rules, Report and Order and Further Notice of Proposed Rule Making, CS  {O^ -Docket No. 95178, 11 FCC Rcd 6201, (1996) ("Market Determinations"). An ADI is a geographic market designation that defines   yeach 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 homemarket stations receive a preponderance   lof total viewing hours in the county. For purposes of this calculation, both overtheair and cable  S-television viewing are included.$W yOP-  xԍBecause of the topography involved, certain counties are divided into more than one sampling unit. Also, in   certain circumstances, a station may have its home county assigned to an ADI even though it receives less than a  {O-  preponderance of the audience in that county. For a more complete description of how counties are allocated, see  {O-Arbitron's Description of Methodology.  S-  3. ` ` The Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) further provides that the Commission may:  ~Xwith 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:  BXthe Commission shall afford particular attention to the value of localism by taking into account such factors as    XX` ` (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;x`   #XX` ` (II) whether the television station provides coverage or other local service to such community; `   #&XX` ` (III) whether any other television station that is eligible to be carried by a cable   #6system in such community in fulfillment of the requirements of this section   #rprovides 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 ` "( ,>(>(II]"Ԍ  ԙXX` ` (IV) evidence of viewing patterns in cable and noncable households   within the areas served by the cable system or systems in such  S-community.GW yO-ԍ47 U.S.C. 534(h)(l)(C)(ii).Gx`  S`-4. ` ` The legislative history of this provision indicates that:  Xwhere 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  S0-community is part of a particular station's market.Z0X{ yO(-ԍH.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).Z     S-  n5. ` ` 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  SB- 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  ST- ^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  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  S-supplemented with additional data concerning viewing in cable homes.i4 {O#-ԍMustCarry Order, 8 FCC Rcd at 2977 (emphasis in original).i      In adopting rules to implement this provision, the Commission indicated that changes requested should  S -  be considered on a communitybycommunity basis rather than on a countybycounty basis and that they" z,>(>(II!"   =should be treated as specific to particular stations rather than applicable in common to all stations in the  S-market.ZW {O@-ԍMustCarry Order, 8 FCC Rcd at 2977 n.139. Z  S- THE PETITION FOR RELIEF ă  S8-   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 WAKCTV and WOACTV. These Communities are located in the Cleveland, Ohio   ADI. Akron, Ohio, the city of license of WAKCTV, and Canton, Ohio, the city of license of WOACTV, are also within the Cleveland ADI.  S - A. MARKET FACTS AND ARGUMENTS: WOACTV, Canton, Ohio  S -  %7. ` ` We address first the request for modification of WOACTV's market. Cablevision   Lcontends that WOACTV has no economic nexus to the Communities. Cablevision states that, although   WOACTV first went on the air in March of 1982, the station has never been carried on its system.   jCablevision argues that a station's history of carriage on a cable system prior to passage of the Cable Act  S0-  !of 1992 is given weight by the Commission in the station market modification process.g0ZW {O*-ԍSee Time Warner Cable, 11 FCC Rcd 13149,13157 (CSB 1996).g Second,   Cablevision maintains that WOACTV is geographically remote for the Communities served by its system.   Cablevision states that WOACTV's transmitter is located between 4 and 48 miles (with an average of   zapproximately 30 miles) from the Cablevision Communities at issue. Cablevision contends that since   zcommunities located approximately 42 miles from certain other stations have been deleted from those  Sh-  stations' markets, hW {O-ԍSee Comcast Cablevision of Danbury, Inc., DA 97234, (Cable Serv. Bur. released February 12, 1997). a similar result should be adopted here. Cablevision also asserts that while some of the   Communities are within WOACTV's Grade B signal contour, some of the communities fall outside of   WOACTV'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.  SP-  8. ` ` Cablevision contends WOACTV fails to provide any programming of specific local   interest to the Communities, that WOACTV is not listed in the local, citywide television guide published  S-  with the Cleveland Plain Dealer, and that WOACTV does not maintain in the public inspection file at  S-  the station any program and issues description list ~W {O"-  ԍSee 47 C.F.R.  73.3526(a)(8)(i). Cablevision asserts that it tried, both by phone call and by a visit to the station, to obtain a program and issues list from WOACTV, but none was provided. that identifies any local programming. Cablevision   argues that the failure to provide local programming should weigh heavily against WOACTV in   considering this request to exclude the Communities from WOACTV's market. Rather than providing   local service, Cablevision contends WOACTV 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": ,>(>(II "   needs and interests of the Communities at issue here. Cablevision asserts that the Communities receive  S-  substantial amounts of local service from the programming of network and educational stations carried  S-  Lon its system from the Cleveland area.: ZW yO-  ԍThe stations carried on Cablevision's system include WKYC (NBC), WEWS (ABC), WJW (FOX), WOIO  {O-  (CBS), and WVIZ (PBS), all Cleveland stations, as well as WBNXTV and WEAO, licensed to Akron, Ohio. See petition, Exhibit 8, p. 2.: Finally, Cablevision asserts that WOACTV has no measurable   viewing in any of the Communities. In support, Cablevision provided a Nielsen CountyCoverage Study   jfor the Cleveland television market to show that WOACTV's viewership is so low in the Cleveland area  S8-  as not to be reported.G 8W {O -ԍSee Petition, Exhibit 10.G 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 WOACTV's market.  S-  9. ` ` In opposition, Whitehead states that the facilities of WOACTV, licensed to operate on   lChannel 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 WOACTV's signal coverage of the Cleveland ADI, including the Communities   at issue here. Whitehead contends that with these improved facilities the Communities are geographically   yproximate to the station's transmitter site and the vast majority of the Communities are all located within   jWOACTV's Grade A or Grade B signal contour and the others are on the fringes of WOACTV's Grade   [B signal contour. Whitehead asserts that Cablevision's exhibit presenting the distances from WOACTV   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 WOACTV facilities diminish any significance that should be given to the lack of historic carriage on   kCablevision's system. It argues further that the inability to document a history of carriage should not   jpreclude newer, weaker and specialty station from ever obtaining carriage. Whitehead argues further that   ythe 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 WOACTV and the Communities at issue do not exist.  Sx-  10. ` ` Whitehead claims that WOACTV 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 WOACTV aired nine episodes of a regular half   hour public affairs program called "Dialogue" involving organizations or events of interest to viewers in   Mthe 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  S-  those organizations have appeared on shows in the "Dialogue" series.E |W yO$-ԍWhitehead Opposition, p. 68.E In this connection, Whitehead   asserts that the provision of local programming by other stations carried on Cablevision's system is   lirrelevant 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"   ,>(>(II!"   local service. It contends, however, that WOACTV 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 WOACTV in the   yCommunities because of the station's specialty format. It contends that the Commission has specifically  S`-  \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  S-  to purchase goods in the traditional manner.W {Ox-  YԍSee Home Shopping Report and Order, 8 FCC Rcd 5321, 5327 (1993), and Nationwide Communications, Inc.,  {OB-dba EagleVision, 10 FCC Rcd 13050 13053 (1995). It contends further that the recent upgrading of WOAC  TV's technical facilities undermines Cablevision's reliance on the relatively small audience ratings for WOACTV in the Communities that the station's signal previously could not reach.  Sp-  11. ` ` In reply, Cablevision reemphasizes its previous arguments and contends that Whitehead   failed to rebut its showing that WOACTV does not satisfy the local coverage factor. With respect to the   =impact of the upgrade of WOACTV'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 WOACTV'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   Lthe station's inability to substantiate it by producing a contemporaneously generated programissues 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  S-  ja 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.  S- B. MARKET FACTS AND ARGUMENTS: WAKCTV, Akron, Ohio  S-  S-  12. ` ` Cablevision contends also that WAKCTV does not have any nexus to the Communities   and fails to satisfy the four statutory market modification factors. Cablevision states that WAKCTV has   never been carried in over onethird of the communities served by its system. Cablevision contends   >further that its carriage of WAKCTV in some of the other communities it serves is not relevant here   [because WAKCTV 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 WAKCTV's programming format. Cablevision   argues that with this major shift in WAKCTV's programming the requested deletion of the Communities   zfrom WAKCTV market would not be disruptive of established viewing patterns in the Communities because of WAKCTV's low audience viewing levels since the change to the new program format.  S -  13. ` ` Cablevision maintains that WAKCTV does not provide local coverage to the   communities. Although Cablevision concedes that WAKCTV'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  Sp#-  may satisfy the local coverage statutory factor and are not dispositive. It contends that WAKCTV does"p#$,>(>(II$"   /not provide any programming specifically addressed to the Communities at issue and claims that the   ystation, 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 WAKCTV from listings in the Cleveland  S`-area television guide.s`W {O-ԍSee Petition, Exhibit 5 (Cleveland Plain Dealer TV WEEK).s  S-  P14.` ` Cablevision contends that WAKCTV'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  S-  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  SH -  public service programming geared specifically to Community residents.AH ZW {OB -ԍSee note 11, above.A Cablevision also asserts that   WAKCTV has no measurable viewing in any of the Communities. Cablevision provides 1996 Nielsen   CountyCoverage Study data for the Cleveland television market to show that WAKCTV, 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  S -  viewership levels similar to those present in this case.G W {O -ԍSee Petition, Exhibit 10.G Cablevision also asserts that the application of   the statutory four factor test to this record shows that the Communities should be excluded from WAKCTV's market.  S-  } 15. ` ` In opposition, Paxson contends that Cablevision seeks modification of the station's market   in order to avoid its obligations under the mustcarry rules. Paxson asserts that under the must carry   statutory provisions, WAKCTV is entitled to a strong presumption in favor of carriage on Cablevision's   [cable systems serving those Communities. Paxson argues that by placing WAKCTV 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,  S-and that market hyphenation and market modification proceedings involve overlapping objectives.~W {O-  ԍCiting Los Angeles Television Market Order, 10 FCC Rcd 9298, 9299 (1995), and Time Warner Cable  {O-Delaware, 11 FCC Rcd 492, 494 (CSB 1996).  S-  16. ` ` Paxson cites Turner Broadcasting Systems, Inc. v. FCC, 117 S. Ct 1174 (1997) ("Turner"),  Sz-  and argues that in Turner the Court emphasized the design of the must carry provisions as a method to   preserve the benefits of free, overtheair broadcast television; to promote widespread dissemination of   information in a multiplicity of sources; and to promote fair competition in the television programming  S-  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  S-  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">,>(>(II "   undermine Commission objectives of promoting a healthy, diverse, and competitive local broadcast market in the Cleveland ADI.  S-  17. ` ` Paxson further argues that Section 614(h)(1)(C) of the Act authorizes the Commission to  S`-  modify ADI markets "to better effectuate the purposes of this section,"P`W {O-ԍSee 47 U.S.C. 534(h)(1)(C)(i).P and to "fine tune" ADIs in a  S8-  handful of instances but not to eviscerate the ADIdefined 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 mustcarry rules   zand that Cablevision has failed to meet this burden. Paxson cites legislative history of the 1992 Cable  S-  yActHZW yO -ԍH.R. Rep. No. 102628, at 9798.H 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 WAKCTV, be assured an opportunity to compete throughout their ADI.  SX-  18. ` ` Paxson also contends that WAKCTV's must carry rights in the Communities should not   Lbe 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   yseeks to delete a station from an ADI, "failure to establish historic carriage should not be given such great  S@-  weight."@W {O-  ԍSee Time Warner Cable, 10 FCC Rcd 936 (CSB 1995), and North Central Communications, Inc. dba Meredith  {O-Cable, 10 FCC Rcd 4381 (CSB 1995). Further, Paxson contends that the Commission has repeatedly stated that carriage of other local  S-  stations provides no basis for deletion.iFW {O-ԍSee Kansas City Cable Partners, 10 FCC Rcd 3807 (CSB 1995).i It points to Commission findings where specialty stations, such   as WAKCTV, were deemed "capable of offer[ing] desirable diversity of programming. . . yet typically  S-  attract limited audiences."W {O@ -ԍCiting Nationwide Communications, In., 10 FCC Rcd 13050, at 13053 (CSB 1995). Paxson argues that in view of this precedent, the request here for deletion of the Communities from WAKCTV's market should be denied.  SP-  %19. ` ` Paxson argues further that making lack of carriage in the context of small, specialty  S(-  stations like WAKCTV would have the effect of preventing weaker stations from ever being carried(j W {O2%-  ԍCiting Time Warner Cable, 10 FCC Rcd 8045, 8048 (CSB 1995); and Time Warner Cable, 10 FCC Rcd 6663, 6667 (CSB 1995); and   /that only well established, centrally located stations with powerful Grade B signals would be able to" ,>(>(IIz"   achieve carriage throughout their ADI. Paxson contends that the Commission recognizes that the specialty   format of stations like WAKCTV is capable of offering desirable diversity of programming despite   Ltypically attracting limited audiences. Paxson also states that evidence of lack of viewing of WAKCTV  S-in the Communities, therefore, should not be deemed dispositive.rW {O-ԍCiting Home Shopping Station Issues, 8 FCC Rcd 5321, at 5327 (1993).r  S8-  A20. ` ` Finally, Paxson claims that WAKCTV airs programming of local interest to Cablevision's   ysubscribers and residents throughout the Cleveland ADI through a format that combines "programlength   presentations by local and national businesses and community organizations with religious and local public  S-  affairs programming."WZW yO -ԍOpposition to Petition for Special Relief at 7.W 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,  SH -political and societal issues Cleveland and the surrounding communities. H W yO-  ԍPaxson identifies several episodes of "Community" as examples programs that have featured local organizations   .such as the Victim Resource Center, Youth Visions, the American Diabetes Association of Ohio, the Greater   Cleveland Chapter of the Lupus Foundation of America, the Cuyahoga Valley National Recreation Area, and The Urban League of Greater Cleveland.  S -  21. ` ` In reply, Cablevision contends that Paxson failed to controvert its showing that WAKCTV   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.   yCablevision says it presented particularized and persuasive evidence under each of the four elements that   Mdemonstrate the exclusion of the Communities from WAKCTV's market would better effectuate the   Mpurposes of the must carry provisions. In particular, Cablevision contends that it demonstrated that   WAKCTV is not carried on its cable system; WAKCTV viewer levels in the Communities were too low   to show any economic connection between the Communities and the station; WAKCTV 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 WAKCTV programming does not provide the local nexus desired   Kby Congress, Cablevision asserts that the record shows that WAKCTV provides virtually no programming   specifically directed to the local needs and interests of the Communities at issue here. In this connection,   jCablevision says the Commission should discredit any Paxson claim of local programming because of the  S-  station's inability to substantiate that claim by producing a contemporaneously generated programissues list from the public inspection file as required by 47 C.F.R.  73.3526(a)(8)(i).  SP- ` DISCUSSION AND ANALYSIS  S(-  S-   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 WAKCTV and WOACTV. `   jFirst, due to the recent upgrading of WOACTV's facilities, the Communities lie within, or on the fringes  S-  zof, the predicted Grade B signal contour of WOACTV.NW yO&-ԍWhitehead Opposition, Exhibit 1.N WOACTV's lack of history of carriage on" b ,>(>(II"   Cablevision's cable systems stems largely from the location and status of WOACTV's facilities before   the recent station upgrading. The Communities also lie within the predicted Grade B signal contour of   WAKCTV. WAKCTV 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 WOACTV and WAKCTV consists largely of home shopping, program   >length presentations, or "infomercials," and religious programming. The Commission recognizes that   Mstations like WOACTV and WAKCTV, whose operations are in the nature of "specialty stations," typically attract limited audiences.  SH -  23. ` ` We also consider the fact that both stations are located in proximity to the Communities.  S -  The average distance from WOACTV to the Communities is only 30 miles.F W yO -ԍWhitehead Opposition, at p. 5.F WAKCTV is on average  S -  26.75 miles from the Communities.; XW yO-ԍPetition, at p. 17.; 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.  SX-  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  S-  ybeen historically carried on the cable system ...."UW {O-ԍSee 47 U.S.C.  534(h)(1)(C)(ii)(I).U The record shows that Cablevision carries, in addition   to the stations licensed to Cleveland, stations WBNXTV and WEAO licensed to Akron. Akron is also   the city of license of WAKCTV. In addition, with its recently upgraded facilities, WOACTV is located   at Brimfield, Ohio, which is less than 10 miles from Akron. Also, both WOACTV and WAKCTV have  Sh-coverage of the Communities at issue here that is similar to the coverage of WBNXTV. hzW {O-  ԍSee Whitehead Opposition, Exhibit 1; TV & Cable Factbook No. 65, 1997 Edition, at pp. A849, A850, & A852.  S-  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 WBNXTV 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 WOACTV's and WAKCTV's markets would allow   Cablevision to discriminate among the several stations licensed to the Akron metropolitan area, despite  S-  ya Congressional mandate to preclude such discrimination.T!ZW {Ot$-  JԍSee House Committee on Energy and Commerce, Cable Television Consumer Protection and Competition Act   of 1992, H.R. Rep. No. 102628, at 98. (Congress sought to prevent cable operators from discriminating "among several stations licensed to the same community.")T Being excluded from the Communities would   have the effect of precluding these two stations from any opportunity to compete for viewers and" !,>(>(IIL"   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.  S-  S`-  $26. ` ` We have carefully considered each statutory factor in the context of the circumstances  S8-  presented here._"8W {O-  ԍWe are under no obligation to give particular weight to any particular one of the several statutory factors. See  {Oj-  Time Warner Entertainment Co. v. FCC, 56 F.3d 151, 175 (D.C. Cir. 1995); Accord Omnipoint Corp. v. FCC, 78   F.3d 620, 633634 (D.C. Cir. 1996) (When Congress directs an agency to consider certain factors, the agency simply   "must reach an express and considered conclusion about the bearing of a factor, but is not required to give any specific weight to it.")_ 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 WOACTV's Grade B contour. We also find that the   jCommunities 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 WOACTV and WAKCTV consists largely of program length presentations, or "infomercials,"   and religious programming. The Commission recognizes that stations like WOACTV and WAKCTV,   \whose operations are in the nature of "specialty stations," typically attract limited audiences, yet are  S -  capable of offering a desirable diversity of programming.# |W {O-  ԍSee Home Shopping Station Issues, 8 FCC Rcd 5321, at 5327 (1993). See also Nationwide Communications,  {O-In., 10 FCC Rcd 13050, at 13053 (CSB 1995). Considering the record as a whole, we find   that Cablevision failed to demonstrate that the requested exclusion of the Communities served by its cable   ysystem from television markets of WOACTV and WAKCTV will better effectuate the purposes of the mustcarry statutory provisions and serve the public interest.   S- MUSTCARRY COMPLAINTS Ń  S-  P27. ` ` Complainants Whitehead, license of WOACTV, and Paxson, license of WAKCTV, state   that their cities of license and the Communities Cablevision serve are all located in the Cleveland ADI.   zWhitehead 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   Lthat, 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  Sx-order requiring Cablevision to commence carriage of WOACTV and WAKCTV's signals.<$XxW yO!-  >ԍWhitehead requests carriage on Cablevision's systems served by the Lakeside, Cleveland Heights and   Strongsville headends. Paxson requests carriage on Cablevision's systems served by the Cleveland Heights headend. See Appendix A to this Order.<  S(-  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 WOACTV and WAKCTV are both affiliates" $,>(>(II."  S-  of the Infomall TV Network ("inTV"). Cablevision further states that pursuant to 76.56(b)(5) of the  S-  LCommission's rulesk%W {OB-ԍ47 C.F.R. 76.56(b)(5). See also 47 U.S.C. 534(b)(5).k it need not carry more than one affiliate of a particular "broadcast network," which  S-  is defined for purposes of the mustcarry rules as "an entity that offers programming on a regular basis  S-  for 15 or more hours per week to at least 25 affiliates in 10 or more states."?&ZW yO-ԍ47 C.F.R. 76.55(f).? Cablevision asserts that  Sb-  .inTV fits the definition of a "broadcast network" because it offers programming on a regular basis for 15  S<-  or more hours per week to at least 25 affiliates in 10 or more states." Cablevision asserts that inTV is  S-  owned by Paxson Communications Corporation and that inTV provides programming on a regular basis   to thirtyseven affiliates located in twenty states, the District of Columbia, and Puerto Rico. Cablevision   submitted sample program schedules for WOACTV and WAKCTV, which show that WAKCTV  S-  broadcasts more than 30 hours of inTV programming per week, and that the programming schedule of   WOACTV is nearly identical to that of WAKCTV. Cablevision notes that Paxson, the licensee of   yWAKCTV, is a subsidiary of Paxson Communications Corporation, and asserts that, pursuant to a time   brokerage agreement between Paxson Communications Corporation and Whitehead, Paxson  S -  Communications Corporation programs virtually all of WOACTV's air time and provides inTV programming to WOACTV.  S -  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:  SXa 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:  XA 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  Qstation 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  o76.55(f). However, if a cable operator declines to carry duplicating signals, such cable  ooperator shall carry the station whose community of license reference point, as defined  oin 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  Bthe identical programming as another station for more than 50 percent of the broadcast week.   S -  `30. ` ` Cablevision's opposition to the instant carriage complaints is based on the fact that the   programming of WOACTV and WAKCTV is duplicative and that both stations are affiliated with the  S!-  ?inTV broadcast network, which allegedly meets the definition in Section 76.55(f) of the rules as a  S"-  network. It contends inTV Network is an entity that far exceeds the definitional benchmarks: i.e., "an"" &,>(>(II'$"   kentity offering programming on a regular basis for 15 or more hour per week to at least 25 affiliates in  S-  k10 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.  S- Cablevision argues, therefore, that the signal of only one of the stations need be carried.  S:-  C31. ` ` 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  S-  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 WOACTV is not a "network affiliate."   Whitehead contends that WOACTV acquires the bulk of its programming via a time brokerage agreement  SL -with Paxson Communication Corporation and that WOACTV sells some of this time to inTV.  S -  A32. ` ` 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  S -  licensees in 10 or more states . . . ."N' W {O-ԍSee 47 C.F.R. 73.3613(a)(1).N 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  S8-  Lthe network definition in its Report and Order in MM Docket No. 92295, the Commission stated that it was seeking:  #Xa definition that not only includes entities that traditionally have been considered national  %television networks, but is also flexible enough to accommodate the changing video  Sr-marketplace.j(rZW {Ol-ԍReport and Order in MM Docket No. 92259, 8 FCC Rcd at 2980.j    [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.  S-  "Moreover, it is undisputed that inTV offers, on a regular basis, more than 15 hours a week of   yprogramming and has more than 25 affiliates in more than 10 states, which is the standard set forth in the  S-  rules to define a network.N)W {O-ԍSee 47 C.F.R. 73.3613(a)(1).N Similarly, although the phrase "interconnected program service" appears in   Mother 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.  S-  433. ` ` In addition to contenting that inTV is not a network, Whitehead also contends that  S-  WOACTV 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. "! ~),>(>(IIU#"Ԍ S-  ԙ 34. ` ` Based on the record, we conclude that both WOACTV and WAKCTV satisfy the  S-  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   Mthat 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 WOACTV and WAKCTV. Instead, Cablevision   .is required to carry the station, WOACTV or WAKCTV, that is closer to the principle headend of the particular cable system or systems on which carriage is requested.  Sp-1' ORDERING CLAUSES ă  S -  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,  S -  that the petition for special relief filed on beha lf of Cablevision of Cleveland L.P. and V Cable, Inc. File  S -No. CSR5006A IS DENIED. M*X W yO-  LԍOn June 20, 1997, Paxson filed a Motion for Leave to File Supplement to Opposition, accompanied by   ;Supplement to Opposition. Cablevision filed Response to Supplement on July 3, 1997. In view of the action taken in this Order, Paxson's motion is rendered moot.M  SX-  ^36. ` ` IT IS FURTHER ORDERED that the MustCarry Complaints filed on June 5, 1997, by   Paxson Akron License, Inc., licensee of television station WAKCTV in File No. CSR5021M and on  S-  ?June 6, 1997 by Whitehead Media of Ohio, Inc., licensee of television station WOACTV, ARE  S-  =GRANTED . WAKCTV and WOACTV 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  S-  Commission's Rules) within thirty (30) days of the release date of this Memorandum Opinion and Order.    MCablevision 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 WOACTV or WAKCTV,   depending on which station's community of license reference point is closer to the subject cable system's principal heahend.  S-  _37. ` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. 0.321. ` ` hh,FEDERAL COMMUNICATIONS COMMISSION 0#Z@  ` `  hh,William H. Johnson  S-` ` hh,Deputy Chief, Cable Services Bureau "*,>(>(II"  S-D APPENDIX A  S-  S-8`List of Ohio Communities Served by Cabvlevision of Cleveland, Inc., and V Cable, Inc. ă  yO`-  X` hp x (#%'0*,.8135@8:(>(IIV" H(*,>(>(IIV$(V>(>(IIHԯ"*,>(>(II(" H*,>(>(II($(>(>(IIHԯ yO-ԇCommunities Served by Strongsville Headend  yOH-X` hVp x (#%'0*,.8135@8:(>(IIT$"  yO-Communities Served by Bainbridge Headend  yOH-AuburnppOH2231  yO-BainbridgeppOH1233  yO-Hunting ValleyppOH1399  yO -NewburyppOH1584  yOh -Russell CenterppOH1235  yO0 -South RussellppOH1388  yO -Communities Served by Sheffield Lake Headend  yOP-AvonppOH1258  yO-SheffieldppOH1320  yO-Sheffield LakeppOH1022  yOp-Communities Served by Cleveland Heights Headend  yO-BeachwoodppOH0201  yO-BedfordppOH0805  yO-BentleyvilleppOH1926  yOX-Chagrin FallsppOH0804  yO -Cleveland HeightsOH0695  yO-EuclidppOH0109  yO-Gates MillsppOH1944  yOx-Highland HeightsOH0986 Highland Hills  yO-LyndhurstppOH0663  yO-Maple HeightsppOH1004  yO-Mayfield VillageOH0862  yO`-Mayfield HeightsOH0777  yO(-Moreland HillsppOH1061  yO-North RandallppOH0757  yO-OrangeppOH0774  yO-Pepper PikeppOH1062  yOH -Richmond HeightsOH0765  yO!-Shaker HeightsppOH0175 H"*,>(>(IIT$$h#ZZ>(>(IIH  yO-Communities Served by Cleveland Heights Headend (Cont'd)  yO-  yOX-South Euclid` `  z z OH0778  yO -University Heights z z OH0662  yO-Warrensville Heights z z OH0113  yO-Willowick` `  z z OH0776  yOx-Woodmere` `  z z OH0775  yO-Communities Served by Cleveland Headend  yO-Bratenahl` `  z z OH2290  yO` -Cleveland` `  z z OH1623  yO( -Lindale` `  z z OH2289  yO -Communities Served by Chardon Headend  yOH -Aquilla` `  z z OH1323  yO-Burton (Village)` `  z z OH1585  yO-Burton (Twp.)` `  z z OH2060  yO-Chardon (TWP.)` `  z z OH1232  yOh-Chardon (Village) z z OH1109  yO0-Claridon` `  z z OH1387  yO-Hamden` `  z z OH1322  yO-Middlefield (Village) z z OH1586  yO-Munson` `  z z OH1234  yOP-Newbury` `  z z OH1584