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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: ) ) Greater Worcester Cablevision, Inc. ) CSR-5015-A Worcester, Massachusetts ) ) For Modification of Television ) Broadcast Station WGOT's ADI ) MEMORANDUM OPINION AND ORDER Adopted: October 16, 1997 Released: October 21, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Greater Worcester Cablevision, Inc., together with Quinebaug Valley Cablevision, Inc., Greater Webster-Dudley Cablevision, Inc., Greater Oxford Cablevision, Inc., Greater Millbury Cablevision, Inc., Greater Grafton Cablevision, Inc., and Greater Northbridge Cablevision, Inc. (the "Systems"), operators of cable television systems serving various communities in Worcester County, Massachusetts, have filed a combined petition seeking to delete the communities served by the Systems from the Boston, Massachusetts area of dominant influence (or "ADI"), insofar as mandatory carriage of television broadcast station WGOT (Channel 60), Merrimack, New Hampshire, is concerned. Station WGOT's licensee, Paxson Boston License, Inc., has filed an opposition, to which the Systems filed a combined reply. BACKGROUND 2. Pursuant to  614 of the Communications 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. Under the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) 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, the Act 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. 6. As for deletions of communities from a station's market, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 7. In adopting rules to implement this provision, the Commission indicated that requested changes 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 rules further provide, in accordance with the requirements of the 1992 Cable Act, that a station not be deleted from carriage during the pendency of a market change request. MARKET FACTS AND PARTIES' ARGUMENTS 8. WGOT is licensed to Merrimack, New Hampshire, which is part of the Boston ADI. The specified communities in Worcester County are also all presently assigned to the Boston ADI. The average distance between Merrimack and the communities served by the Systems is approximately fifty miles. According to Nielsen's 1995 County/Coverage Study, WGOT had no reported viewing share, either off-air or on cable in Worcester County, and the station does not place a Grade B contour over any of the designated communities in Worcester County. 9. In support of their request, the Systems note that they have never carried WGOT, even though it commenced broadcasting in 1987, and that since the station has no local ratings, removing the specified communities from the Boston ADI will neither disrupt established viewing patterns nor will it deprive WGOT of any existing cable audience. The Systems add that their headend at Oxford, Massachusetts is about 58 miles from WGOT's antenna, and that the distances between Merrimack and the specified communities range from 38 miles, at West Boylston, to 61 miles, at Dudley. The Systems note that similar distances have justified prior ADI deletion requests, citing the Bureau's decision in Time Warner Cable, which deleted communities from WGOT's ADI that were located outside the station's Grade B contour and which were located between 42 and 58 miles from Merrimack. According to the Systems, the infomercial format utilized by Paxson stations has no special nexus to the designated cable communities. The Systems add that WGOT is not even listed in the TV Guide for the Boston area, and that it also is not listed in the Worcester County daily newspaper, the Telegram & Gazette. By contrast, the Systems note that they transmit various Boston stations which air extensive local news and sporting events. The Systems add that they also transmit three local access channels, which carry programming for and by the designated communities, in addition to a local origination channel, which emphasizes local sports and which carries a live Worcester County news program several times a day, five days each week. Finally, the Systems note that, since WGOT does not place a Grade B contour over the specified communities, it is not surprising that it has no significant viewership there. 10. Addressing the first of four market modification factors listed in  614(h)(1)(C)(ii) (historic carriage), WGOT concedes that it has not been carried by the Systems. Asserting that lack of carriage should not be given significant weight in determining whether to grant the petition, WGOT contends the must-carry provisions were enacted to cure past discriminatory signal carriage practices, citing the Bureau's prior decision in Greater Worcester Cablevision, Inc. Regarding the second factor (coverage and local service), WGOT contends that the must-carry provisions are intended to protect small, vulnerable, independent stations by ensuring their carriage throughout an ADI derived from economic market realities, instead of a mileage-based system. In this regard, WGOT notes that Congress once considered a fifty mile radius as the must-carry zone, but it opted instead for the current ADI-based requirement. Station WGOT contends that Congress sought in this manner to enable these stations to compete effectively for viewership and advertising revenues, thereby providing financial resources and incentives necessary to strengthen local program services. The station argues, therefore, that its failure to place a Grade B signal contour over the cable communities at issue, and its location some distance from those communities, is not decisionally significant. The more important factor in WGOT's view is its location, as well as the specified communities in the Boston ADI, which defines the station's market for must-carry purposes. The station adds that it and the specified cable communities also are placed in the same basic trading area by Rand McNally, and that it is listed by the Boston Globe, which has a circulation of 18,252 in Worcester County and 32,926 on Sunday. 11. Station WGOT seeks to establish coverage of the specified communities and programming of local interest by stating that it has pioneered a programming format that combines program length presentations by local and national businesses and community organizations with religious and local public affairs programming. Station WGOT adds that 45 percent of its program length presentations have been acquired by local businessmen and organizations after only two years of Paxson acquiring its ownership in May 1995. The station also airs three hours of children's programming weekly in the mornings, as well as three hours of regional and local religious programming, and an hour of locally produced public interest programming on weekends. The station also notes that it produces and broadcasts a local public service program, "Focus on New England," designed to address the interests of New England, as well as a program aired Fridays between 9:00 pm and 10:00 pm entitled "Asian Entertainment," which targets residents with ties to India, some 2,000 of whom live in Worcester County. Station WGOT contends that it has thus demonstrated a significant commitment to developing programming for the cable communities. 12. Insofar as the third factor (availability of programming from other local stations) is concerned, WGOT contends that the Systems' carriage of programming from other local stations also should be disregarded, because precedent indicates that this factor does not support a cable operator's request to delete communities from an ADI. Instead, this criterion is used only to enhance a station's claim for adding communities to an ADI where, in fact, no other station serves those communities. Station WGOT adds that the Systems have not demonstrated how the programming of other stations they presently carry, including WNDS (Channel 50), Derry, New Hampshire, which is located about the same distance from Worcester as is WGOT, is more specifically tailored to the designated cable communities than is that of WGOT. 13. With respect to the fourth factor (viewership of the station), WGOT argues that the Bureau has held that ratings of struggling independent stations are not of probative value when cable operators seek to delete them from their ADIs, again citing Greater Worcester Cablevision. The station also argues further that the Commission has found that such stations may, in fact, enjoy significant viewership, despite lack of any concrete evidence to that effect, and it notes that because Worcester County now has a cable penetration rate of 82 percent, over-the-air ratings must be discounted. 14. Station WGOT also asserts that the Systems' petition fails to demonstrate that the proposed deletion of the designated communities from the Boston ADI would "better effectuate" the purposes of the must carry provisions. It argues that the must-carry provisions place the burden on the cable operator to justify a market modification; that the Congress did not intend for market modification procedures to permit cable operators to avoid their must-carry obligations; and that the market modification procedures were only intended to address select cases where ADI fine tuning was appropriate. According to WGOT, Greater Worcester presently has 18 available channels on its 78 channel system, so WGOT's carriage would not limit subscriber choice in anyway. 15. In reply, the Systems repeat their contentions that WGOT has not demonstrated historic carriage; that the station has not shown significant coverage of, or service to, the designated cable communities; that other local stations already carried by the Systems do, in fact, provide coverage of local news, including local sports and other events; and that WGOT lacks any recorded viewership in Worcester County, either on cable or off-air. The Systems note that the Bureau's prior decision in Greater Worcester Cablevision, Inc. was partially premised on the fact that in that case, unlike the present one, the station concerned placed a Grade B contour over the area where most of the population of the designated cable communities lived. The Systems add that the other local stations they presently carry, in addition to providing extensive coverage of local news and sporting events, also provide at least a Grade B contour over nearly all the communities at issue. The Systems do not contend that WGOT is not in their ADI, but they argue that market realities would be better effectuated by deleting it for must- carry purposes, noting that even the local programming produced by the station, such as "Focus on New England" is designed to appeal at least to the entire Boston ADI, if not to all of New England. With respect to the 45 percent of its air time that WGOT states is devoted to infomercials by local businesses, the Systems note that the station has not shown that any of these businesses are located in the specified cable communities. Likewise, with respect to the "Asian Entertainment" program, the Systems note that only one percent of Worcester's population is of Indian descent, and that not all of them may be interested in such programming. Finally, the Systems dispute WGOT's struggling nature, since the Systems contend that it is licensed to "Paxson, which is one of the largest broadcast station owners in the U.S." ANALYSIS AND DISCUSSION A. Historic Signal Carriage; Station Coverage of Communities 16. Station WGOT's argument that its absence of historic carriage should not be considered significant in this case will be rejected. WGOT has been on the air since 1987, but has never been carried by the Systems serving the relevant communities. A station's history of carriage prior to adoption of the 1992 Act is included as one of the statutory factors and, accordingly, lack of historic carriage must be given appropriate weight in the ADI modification process. The fact that WGOT has not historically been carried by the Systems serving the designated communities is therefore probative and, while not decisional, will be taken into consideration as a factor in favor of the requested market modification. Additionally, WGOT is located between 38 and 61 miles from the designated communities, and WGOT does not provide a Grade B contour signal over them. Although not conclusive in themselves, these factors also strongly indicate that the specified communities served by the Systems are not a part of WGOT's market. 17. The station contends that distance and Grade B contour coverage are irrelevant in the context of a smaller, independent stations and that carriage within the ADI would provide it with an opportunity for revenue growth that can be translated into additional public service. However, where our task is to determine station market boundaries, Grade B contour coverage -- in the absence of other probative information -- is an efficient tool, because it is a sound indicator of the economic reach of a particular television station's signal. The Commission recognized this approach in its Report and Order in MM Docket 92-259 when it stated that "to show that the station provides coverage or other local service to the cable communities, parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage." 18. We also reject WGOT's argument that regardless of the  614(h) process, smaller, independent stations are essentially guaranteed the right to carriage throughout the ADI. The provisions of the must-carry statute specifically direct the Commission to exclude communities from a station's ADI where doing so will better effectuate the purposes of the legislation. The legislative history notes that the Commission, in making market determinations, may conclude that a community within a station's ADI may be "so far removed" from the station that it cannot be deemed part of the station's market. B. Programming Specifically For Communities Served by Cable System 19. We find that the majority of WGOT's programming is general in nature and not specifically targeted to the cable communities at issue. The "Focus on New England" programming, for example, appears to be directed toward the New England area as a whole, or at best, toward the whole Boston area. Nothing presented by WGOT shows that its program length presentations, while acquired by local businesses organizations, consist of programming directed particularly toward the designated communities served by the Systems. The failure to demonstrate that WGOT presents programming designed to serve the designated communities in particular provides additional weight toward granting this market modification petition. C. Station Audience in Communities Served by Cable System 20. In addition to the fact that WGOT has not been carried by the Systems, the record before us does not establish a significant level of viewing of WGOT in the specified communities. With respect to the subject communities served by the Systems, we note that Nielsen's 1995 County/Coverage Study does not show any audience for WGOT. In fact, Nielsen's 1995 County/Coverage Study does not include WGOT in the listing of stations serving that market. While the Commission has previously recognized that stations with specialized programming often have low audience ratings, the apparent absence of WGOT viewership also is consistent with the fact that its Grade B contour does not reach any of the designated communities, and the fact that WGOT and the relevant communities are some 38 to 61 miles apart. D. Summary 21. 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. We believe that the requested exclusion of the cable communities served by the Systems from WGOT's television market will better effectuate the purposes of the must-carry statutory provisions. In reaching this conclusion, we have considered the statutory factors under which the value of WGOT to community localism is to be tested and found it to be lacking. Local television guides available in the specified communities served by the Systems contain no listing for WGOT. WGOT has minimal viewing in the designated communities, which are located approximately 38 to 61 miles from the station. Furthermore, the station has never been carried by the Systems, it offers no significant level of programming specifically for the relevant communities, and it provides no over-the air signal coverage of the Communities. We have carefully considered each of the statutory factors in the context of the circumstances presented here and conclude that grant of the Systems' petition will effectuate the purposes of the must-carry statutory provisions. 22. In view of the above, we will grant the Systems' request to delete the designated communities in Worcester County from the Boston, Massachusetts ADI insofar as mandatory carriage of WGOT is concerned. ORDERING CLAUSES 23. Accordingly, IT IS ORDERED, pursuant to 614(c) of the Communications Act of 1934, as amended, 47 U.S.C. 534 and 76.59 of the Commission's Rules (47 C.F.R. 76.59), that the "Petition For Special Relief" (CSR-5015-A) filed May 29, 1997, by Greater Worchester Cablevision, Inc., together with Quinebaug Valley Cablevision, Inc., Greater Webster-Dudley Cablevision, Inc., Greater Oxford Cablevision, Inc., Greater Millbury Cablevision, Inc., Greater Grafton Cablevision, Inc., and Greater Northbridge Cablevision, Inc. IS GRANTED. 24. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau