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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 ) ) Blue Ridge Cable Technologies, Inc. ) ) For Modification of Television Market of ) CSR 5018-A Station WHAI-TV, Bridgeport, Connecticut ) ) In re Complaint of ) ) Paxson New York License, Inc. ) against Blue Ridge Cable Technologies, Inc. ) CSR 4830-M ) For Carriage of WHAI-TV, Bridgeport, Connecticut ) MEMORANDUM OPINION AND ORDER Adopted: October 1, 1997 Released: October 7, 1997 By the Deputy Chief, Cable Services Bureau: 1. Blue Ridge Cable Technologies, Inc. ("Blue Ridge") filed the captioned petition which seeks to exclude the Pike County, Pennsylvania Communities listed on Appendix "A" from the market of television station WHAI-TV (Channel 43), Bridgeport, Connecticut. Paxson New York License, Inc., ("Paxson"), licensee of WHAI-TV, filed an opposition to Blue Ridge's petition, and Blue Ridge filed a reply. Paxson also filed a Petition for Reconsideration of Paxson New York License, Inc. v. Blue Ridge Cable Technologies, Inc. (Milford, PA), 12 FCC Rcd 1373 (CSB 1997), ("Blue Ridge"), which denied a must carry complaint filed by Paxson seeking carriage of WHAI-TV on Blue Ridge's cable systems serving the Communities. Blue Ridge filed an opposition to the petition for reconsideration, and Paxson filed a reply. We also resolve the petition for reconsideration 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. MARKET FACTS 6. The Communities at issue in this proceeding are located in Pike County, Pennsylvania, which lies west of the Delaware River. Pike County is the only Pennsylvania county in the New York ADI. Although these Communities and WHAI-TV's city of license, Bridgeport, Connecticut, are located within the New York ADI, Milford, Pennsylvania, the community served by Blue Ridge nearest to WHAI- TV, is located approximately 95 miles from WHAI-TV's transmitter and approximately 100 miles from Bridgeport. It is undisputed that WHAI-TV has never been carried on the cable systems serving these Communities. Blue Ridge contends that WHAI-TV does not provide local service to the Communities in terms of technical signal coverage or programming designed to meet the needs and interests of the Communities, that other local television broadcast stations and non-broadcast services carried on its cable systems provide substantial local service to residences of the Communities, and that WHAI-TV is not viewed in the Communities. 7. In Market Modifications and the New York Area of Dominant Influence, et al., FCC 97- 285, released August 13, 1997 ("New York ADI Order"), the Commission affirmed our decisions in Adelphia Cable Communications, 1996 WL 272185 (CSB 1996); Cablevision Systems Corporation, 11 FCC Rcd 6453 (CSB 1996); Comcast of Monmouth County et al., 11 FCC Rcd 4226 (CSB 1996); Time Warner Entertainment-Advance/Newhouse Partnership, 11 FCC Rcd 6541 (CSB 1996); Time Warner New York Cable Group, 1996 WL 532081 (CSB 1996); and TKR Cable Company, 1996 WL 663129 (CSB 1996), to delete from the market of WHAI-TV a number of communities located in New York and New Jersey substantially closer to WHAI-TV than are the Pike County, Pennsylvania Communities at issue in this proceeding. Paxson presents essentially the same objections to the market modification request in this case that were presented with respect to the New York and New Jersey communities. The bases for rejection of Paxson's market modification objections as well as the reasons for granting those market modification requests are set out in the cited cases and need not be repeated here. 8. Its sufficient to emphasize here that the Pike County, Pennsylvania Communities at issue are substantially more remote from WHAI-TV than are the New York and New Jersey communities previously deleted from WHAI-TV's market. Because of technical nature of the television broadcast service, the intervention of such additional distance can serve only to preclude the Pike County communities from being deemed part of WHAI-TV's television market. The substantial additional distance plus the intervention of a major geological terrain feature, the Delaware River which forms the eastern border of Pike County and an additional barrier between the Communities at issue here and WHAI-TV, precludes any finding that WHAI-TV actually does or logically could rely on the Pike County Communities for economic support, or that the Pike County Communities rely on WHAI-TV for television services to any degree. For these reasons, we find that the bases for the deletion of the New York and New Jersey communities from the television market of WHAI-TV stated in the cited cases are unquestionably applicable here as well. Accordingly, we will grant Blue Ridge's request to delete the Pike County, Pennsylvania Communities listed on Attachment "A" from the television market of WHAI-TV. MUST-CARRY COMPLAINT 9. Section 614 of the Communications Act and the Commission's implementing rules permit stations to assert mandatory carriage rights on cable systems located within their market. We agree with Paxson that the must-carry rules seek to ensure cable carriage of local stations in order to strengthen their economic viability and thereby allow for greater diversity in programming. The prerequisite for asserting must-carry rights with respect to a particular cable system, however, is that the operator serve communities in the station's market or ADI. Paxson filed a must-carry complaint seeking carriage on Blue Ridge's cable system which serves the Pike County, Pennsylvania Communities listed on Attachment "A" to this Order. In Paxson New York License, Inc. v. Blue Ridge Cable Technologies, Inc. (Milford, PA), 12 FCC Rcd 1373 (CSB 1997), ("Blue Ridge"), we denied Paxson's must carry complaint. These communities have been deleted from WHAI-TV's market by this Order. Because we have granted the petition to delete these communities from WHAI-TV's market, the associated petition for reconsideration of Blue Ridge is rendered moot. ORDERING CLAUSES 10. 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 Blue Ridge Cable Technologies, Inc. in File No. CSR- 5018-A IS GRANTED. 11. IT IS FURTHER ORDERED that the petition for reconsideration of Paxson New York License, Inc. v. Blue Ridge Cable Technologies, Inc. (Milford, PA), 12 FCC Rcd 1373 (CSB 1997), filed on March 3, 1997, by Paxson New York License, Inc., licensee of television station WHAI-TV, in File No. CSR-4830-M IS DISMISSED. 12. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau ATTACHMENT 'A' Pike County, Pennsylvania Communities Served by Blue Ridge Cable Technologies, Inc. Milford Headend Milford Borough (PA0379) Milford Township (PA1059) Dingmans Township (PA1060) Lehman Township (PA2552) Delaware Township (PA2812) Shohola Headend Lackawaxen Township (PA1272) Shohola Township (PA1458) Bloomington GroveTownship (PA1515) Porter Township (PA2814) Hawley Headend Palmyra Township (PA1832) Greene Township (PA2947)