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 P6QP W7PC2,W XP\  P6QXP.X7UC2,PXU4  pQXZ2J=.,/&J\  P6Q&P.Y2N=.,&N4  pQ&.[y.G8*,.G4  pQ\0J=.,3V^&J*f9 xQ&X]P,%,J,\  P6QJP^I(!,,(\  P6Q,P{,C8*,3C*f9 xQX"5@^!)22SN!!28!2222222222888-\HCCH=7HH!'H=YHH7HC7=HH^HH=!!/2!-2-2-!222N2222!'22H22-006!!!!()!22H-H-H-H-H-YCC-=-=-=-=-!!!!H2H2H2H2H2H2H2H2H2H2H-H2H2H2H2H272H2H-H-C-C-C-=-=-=-H2H2HH2H2H2H2(2!2!!!2'H2==)H2H2H2YHC!C)7'7'N#-2!-22222KK2LL2K!!--2d!!22bd!-d!t!77778c7States is allocated to a market based on which homemarket stations receive a preponderance of total"B#z,))II$"  xviewing hours in the county. For purposes of this calculation, both overtheair and cable television  S-viewing are included.$] yO@- xKԍBecause of the topography involved, certain counties are divided into more than one sampling unit. Also, in  xcertain circumstances, a station may have its home county assigned to an ADI even though it receives less than a  {O- xpreponderance of the audience in that county. For a more complete description of how counties are allocated, see  {O-Arbitron's Description of Methodology.   S- ` ~x3.` ` 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: xwith respect to a particular television broadcast station, include additional xcommunities within its television market or exclude communities from such xstation's television market to better effectuate the purposes of this section. In considering such requests, the Act provides that: xthe Commission shall afford particular attention to the value of localism by xtaking into account such factors as x(I) whether the station, or other stations located in the same area, have xbeen historically carried on the cable system or systems within such xcommunity; x(II) whether the television station provides coverage or other local service xto such community; x(III) whether any other television station that is eligible to be carried by a cable xsystem in such community in fulfillment of the requirements of this section xprovides news coverage of issues of concern to such community or provides xcarriage or coverage of sporting and other events of interest to the community; xand x(IV) evidence of viewing patterns in cable and noncable households within the  Sx-xareas served by the cable system or systems in such community.x] yO-ԍCommunications Act of 1934, as amended, 614(h)(1)(C)(ii), 47 U.S.C. 534(h)(1)(C)(ii).  S(-x4.` ` The legislative history of this provision indicates that: xwhere the presumption in favor of ADI carriage would result in cable subscribers xlosing access to local stations because they are outside the ADI in which a local xcable system operates, the FCC may make an adjustment to include or exclude xparticular communities from a television station's market consistent with Congress' xobjective to ensure that television stations be carried in the areas in which they xserve and which form their economic market. " D,_(_(IIe""Ԍ S-X` hp x (#%'0*,.8135@8:never carried the station, there would be no disruption of established viewing patterns nor would the  xstation be deprived of any existing audience. Secondly, Jones maintains that WWFDTV does not provide  xlocal coverage to its system due to the following: a) WWFDTV is geographically remote; Jones' cable  x=system is in the northeastern part of the Miami ADI while WWFDTV is in the southwestern most tip;  xb) WWFDTV's Grade B contour is more than 135 miles from Pembroke Pines, the closest of the cable  xcommunities, and more than 140 miles from Davie, Jones' headend site, and the station is not generally  xviewable offtheair in either cable or noncable homes; and c) WWFDTV does not carry any  S- xprogramming providing "local coverage" of the systems' communities. x] yO- xԍJones states that it is aware that WWFDTV now broadcasts Englishlanguage programming which consists primarily of syndicated programming (i.e., reruns). Third, Jones asserts that local  Sh- xprogramming is already being provided by the Miami market stations it currently carries,. Xh] yO- xԍThe local stations carried by the system include: WPBT (PBS), WFOR (CBS), WTVJ (NBC), WSVN (FOX),  xWBFS (Ind.), WPLG (ABC), WSCV (Ind.), WLTV (Ind.), WCTD (Ind.), WYHS (Ind.), WLRN (ETV), WHFT (TBN), WDZL (Ind.), and WFLX (FOX). . all of which  xprovide local news, sports and community programming. Finally, Jones argues that the station has no  S- x.audience in Broward County. WWFDTV is not even listed in the 1996 Nielsen Station Index. The fact  S- xthat the station's viewership is too low to be reported is buttressed by its absence in the listings of the Sun  S- xSentinel, a local newspaper. In conclusion, Jones maintains that requiring carriage of WWFDTV on its system would limit its ability to provide the programming and services desired by its customers.  SV- ` %x10.` ` In opposition, WWFDTV states that pursuant to the Cable Television Consumer  S.- xProtection and Competition Act of 1992S . ] yO&-ԍPub. L. No. 102385, 106 Stat. 1460 (1992).S and the Commission's Report and Order, supra, it is entitled". ,_(_(II{"  xto assert mandatory carriage rights on every cable system located within the Miami ADI. Also, Section  x614 of the Act creates an affirmative duty for every cable operator in an ADI to carry the signals of the  xlocal commercial television stations in its market. Stations such as WWFDTV, it continues, represent  xprecisely the kind of station Congress intended to have must carry rights. While modification of ADI  xmarkets are allowed, WWFDTV argues that there is a heavy burden of proof on petitioners who move  xto exclude communities from a station's market. In the instant case, WWFDTV maintains that Jones has  xnot met this burden. WWFDTV states that it provides a valuable program service which caters  xspecifically to the communities served by Jones. It points out programming such as "This Morning in  xSouth Florida," which covers events in Broward County as well as the entire ADI, and coverage of local  x/news, weather and sports (professional, college and high school). WWFDTV argues further that no  xshowing has been made that Jones cable system would lose a local station already carried, or contemplated  xlto be carried, in the event its request is not granted or that there is insufficient channel capacity to  xaccommodate WWFDTV's carriage. WWFDTV maintains that Jones' attempts to limit must carry rights  x\to specific coverage areas is misplaced given that Congress adopted an economic market approach, as  xdesignated by the ADI, rather than using distance or Grade B coverage to determine carriage rights.  xWWFDTV points out that Jones ignores the fact that its signal is already being carried by multiple cable  S - xsystems in Broward Countyh ] yO-ԍThese systems have a combined total of over 320,000 subscribers.h with some communities even farther from Key West than Jones'  xycommunities. In addition, WWFDTV argues that its station can scarcely have ratings or carriage history  xsince it only began carriage in May, 1996. In any event, it maintains, the Commission has held that low  xratings and lack of historic carriage are of limited relevance in petitions seeking exclusion. While  xWWFDTV admits that it does not provide Grade B service to the system's communities, it states that the  xCommission has specified that Grade B contours are "not to be used as any absolute measure of the scope  S- xof a station's market."kX] {O-ԍSee Chronicle Publishing, 10 FCC Rcd 9474, 9483 n. 27 (1995).k Further, the carriage of other local stations by Jones does not lessen the  Sh- xcommunities' need of WWFDTV's programming or obviate Jones' statutory obligations.\h] {O-ԍSee Time Warner Cable, 11 FCC Rcd 8047 (1996).\ Finally,  xWWFDTV maintains that geographical remoteness is not a recognized basis for modification and is an  xargument that is undercut by the fact that WWFDTV is currently carried on cable systems throughout  xthe ADI which not only surround Jones' system but are equally distant. WWFDTV concludes, therefore, that Jones' petition should be denied.  Sx- ` x11.` ` In reply, Jones states that WWFDTV offers little evidence to counter its petition's  x.arguments. Jones does not dispute that the Act presumes must carry rights throughout a station's ADI,  x/however, WWFDTV ignores the section which states that market modification provisions "reflect a  xrecognition that . . . a community within a station's ADI may be so far removed from the station that it  S- xcannot be deemed part of the station's market."Z|] yO"-ԍH.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).Z It also adds that a cable operator's must carry obligation  xmay be excused where a cable system "can point to particularized evidence that its community is not part  S- xof one station's market. . . ."2 ] yO4&-ԍId. at 98.2 Jones states that the Commission has specifically rejected WWFDTV's  x[argument that requires a petitioner to show that a "local" station would have to be dropped if the market"`,_(_(II"  S- xZmodification is not granted.] {Oh-ԍSee Dynamic Cablevision of Florida, Ltd., et al., DA 961291, para. 2022, (released August 20, 1996). Jones restates that WWFDTV fares poorly under the four statutory criteria,  xjthe primary reason being that the station fails to establish any nexus with the communities served by the  S- xsystem. While WWFDTV implies that somehow the statutory criteria do not apply here,Z] yO- xԍIn essence claiming that the absence of historical carriage and local viewing are irrelevant and avoiding the issue of lack of local coverage by downplaying its lack of Grade B coverage and geographical distance. Jones argues  xthat it is entirely appropriate for the Commission to consider these factors in its analysis. It states that  xythe programming examples offered by WWFDTV to establish a local nexus are general in nature and lack  xdetails to indicate that they specifically target Jones' communities. Indeed, it maintains, WWFDTV's  xarguments in this regard only serve to highlight its misunderstanding of the underlying goals of the must  xcarry rules where the relevant question is not whether programming is of general interest, but whether it  S- xcovers local matters. Jones points out that the in Time Warner Cable,K] yO -ԍDA 971009 (released May 13, 1997).K the Commission found that  xanecdotal evidence of programming insufficient to satisfy the local coverage factor in situations where  x/the station otherwise failed to meet any of the other statutory factors. Finally, Jones concludes that  xWWFDTV's carriage on other cable systems within the ADI says nothing about the station's coverage of the specific communities herein.  S -  S -  MUST CARRY ARGUMENTS ă  S - ` x12.` ` In the complaint filed by WWFDTV, it requests the Commission to order the Jones  xsystem to carry its signal for the following reasons: a) Its complaint was timely filed. WWFDTV states  xthat it requested carriage on Jones' cable system by letter dated April 2, 1997. Jones failed to respond  S - x<to this letter and WWFDTV states that it filed its complaints within 60 days of Jones' failure to respond.? B] yO-ԍ76.7(c)(4)(iii)(B).?  x=b) As a commercial television station operating within the same ADI market as Jones' system, WWFD x TV is entitled to carriage pursuant to Section 614 of the Communications Act and the Commission's  S- xMRules.{] {O-ԍSee Report and Order in MM Docket No. 92259, 8 FCC Rcd 2965, 297274 (1993).{ c) WWFDTV has fully complied with all of the requirements for mandatory carriage of its  xsignal on the system Jones' system is devoting less than onethird of its channel capacities to  xmandatory signal carriage, WWFDTV delivers a good quality signal to the cable system's principal  xheadend via fiber optic cable, and no other currentlycarried television stations substantially duplicates its programming.  S- ` 3x13.` ` In its opposition, Jones incorporates by reference the arguments raised in their market  x?modification request and argues that the complaint herein cannot be resolved until such request is  x=resolved. It states, however, that should its modification request be denied, it will fully comply with its must carry obligations in this regard. "d ,_(_(IIk"Ԍ S-@( DISCUSSION ă  S- ` x14.` ` We will grant Jones' modification request. Based on geography and other relevant  xzinformation, we believe that the cable system herein is sufficiently removed from WWFDTV that its  S`-communities ought not be deemed part of the station's market for mandatory carriage purposes.D`] yO-ԍH.R. Rep. 102628, at 9798.D  S- ` `@x15.` ` As an initial matter, we note that, according to the legislative history of the 1992 Cable  x\Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas  S- xzwhich they service and which form their economic market."ZX] yO -ԍH.R. Rep. 102628, 102d Cong., 2d Sess. 97 (1992).Z Changes may be sought and granted by  S- xthe Commission "to better effectuate the purposes" of the mandatory carriage requirements.=] yO -ԍ47 U.S.C. 534(h).= The market  x change process incorporated into the Communications Act, however, is not intended to be a process  xwhereby cable operators may seek relief from the mandatory signal carriage obligations apart from the  x?question of whether a change in the market area involved in warranted. When viewed against this  xbackdrop, and considering all of the relevant factual circumstances in the record, we believe that Jones'  xdeletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous  x.with market realities. Jones' actions do not reflect an intention to skirt its signal carriage responsibilities  S - xunder the 1992 Cable Act x] yO- x,ԍAs noted in paragraph 13 above, Jones has stated that it will comply with the mandatory carriage request from WWFDTV should its petition be denied. and the Commission's Rules, nor do they evidence a pattern of discriminatory conduct against the station.  S- ` }x16.` ` We now turn to the market modification analysis. At the outset, we note that WWFDTV  x\has no history of carriage in the cable communities in question (factor I), has virtually no overtheair  xaudience in the cable communities (factor IV), and provides none of the cable communities with service  xas measured by its Grade A or Grade B service contours (factor II). Given the statutory directive, weight  xkmust be given to these factors, but that must be done bearing in mind that the objective of the Section  xj614(h) process is to "better effectuate the purposes" of the broadcast signal carriage scheme. Thus, with  xrespect to the question of historical carriage patterns, attention must be paid to the circumstances from  xwhich such patterns developed. Some stations have not had the opportunity to build a record of historical  xcarriage for specific reasons that do not necessarily reflect a judgment as to the geography of the market  xinvolved. Thus, the historical carriage factor to the extent such lack of carriage is reflective of factors  xoutside of the shape of the market is not by itself controlling in these circumstances because such an  x.implementation of the 1992 Cable Act would, in effect, prevent weaker stations, that cable systems had  xpreviously declined to carry, from ever obtaining carriage rights. As such, the evidence relating to this  xstatutory factor does weigh in favor of excluding Jones' cable system communities from the WWFDTV's market but is not outcome determinative by itself.  S- ` #x17.` ` With regard to viewership, we recognize that, as a newer station, WWFDTV has not had  xkas much time as other stations to build an audience. As noted in paragraph 5 above, viewing patterns  xand/or significantly viewed surveys to be relied upon in ADI requests are ideally to be conducted on a"8,_(_(II "  xcommunitybycommunity basis. The methodology inherent in such surveys is considerably stricter and  xa better indication of actual viewing patterns in individual communities. In any case, even when we  xaccept countywide surveys, it should be taken into account that stations can take up to three years to  xlestablish their viewing patterns. Congress could not have intended for such stations to have cable  xjcommunities deleted from their market solely because their audience shares are not as significant as those  S8- xof several other stations with which they compete.8] yO- xԍFor instance, since WWFDTV went ontheair in May 1996, it could use data through May 1999 to establish significantlyviewed status in particular counties. If this were the case, the 1992 Cable Act would have  x{designated a ratings mechanism, rather than ADIs, as the primary determinant for broadcast signal carriage.  S- ` x18.` ` On the other hand, a station's local service to cable communities is one of the relevant  xLfactors to consider in this particular case that is not influenced by the type or age of the station involved  x\or historical carriage. Service may be measured through geographic means: by examining the distance  x\between the station and the cable communities subject to the deletion request and taking into account  xnatural phenomena such as waterways, mountains and valleys which tend to separate communities. A  x>station's broadcast of local programming, which has a distinct nexus to the cable communities, is also  xevidence of local service. Finally, a station's Grade A or Grade B contour coverage is an additional  x@indicator of local service and we will weigh the presence or absence of such technical coverage  SX-accordingly.XX ] yO- xԍAs a general matter, Grade B coverage demonstrates service to cable communities and serves as a measure  {O- x[of a station's natural economic market. See Broadcast Signal Carriage Issues, 8 FCC Rcd at 2977. See also  {O- xAmendment of Section 76.51 (OrlandoDaytona BeachMelbourne, and Cocoa, Florida), 102 FCC 2d at 1070 ("We  xLbelieve that television stations actually do or logically can rely on the area within their Grade B contours for economic support.").X  S- ` 2x19.` ` The availability of other broadcasters in the market is another factor to consider in market  xjdeletion cases such as this one. Where a cable operator is seeking to delete a station's mandatory carriage  xrights in certain communities within its ADI, and it is clear that the station is not providing local service  xto those communities, the issue of local coverage by other stations becomes a factor which we will give  Sh- xgreater weight than in cases where a party is seeking to add communities."h] {O- xyԍAccord, Petition of Time Warner Cable, 10 FCC Rcd 8625 (1995) (taking into account the proximity of  xtelevision stations licensed to Hagerstown, MD and surrounding communities in granting the operator's request to  xydelete Arlington, VA station WTMW from the Washington, DC ADI with regard to its cable systems serving Martinsburg, WV and Chambersburg, PA). Here, the Miami affiliates,  xwhich have a closer economic nexus and case a City Grade signal over the cable communities, provide  xsubscribers residing in the cable communities with targeted local newscasts and public affairs programming.  S- ` x20.` ` Considering the above, the task in this proceeding is how to reflect the statutory factors  x=in our decision while at the same time recognizing the difficulties of applying these factors to stations of  xrecent origin or more specialized formats. A decision based strictly on the four statutory modification  xfactors historical carriage, service, other stations' presence, and audience information would simply  xexclude Jones' communities from WWFDTV's market. However, even taking into account the" ,_(_(IIM"  xdifficulties of applying these factors to new stations and those with specialized formats, there is no  x.supporting evidence demonstrating that Jones' communities warrant inclusion. The fact that a station is  x=new or of specialized appeal does not mean that its logical market area is without limits or that it should  xbe exempt from the Section 614(h) market modification process. Given the difficulty of direct reliance  xon the statutory factors (which demonstrate only limited connections between the cable communities and  xWWFDTV), we focus here more heavily on basic geographic and technical features, mileage and Grade  x\B contour, that provide the best available alternative evidence of the market boundaries of the station subject to deletion here.  S- ` x21.` ` WWFDTV, which signed ontheair May 1996, now apparently broadcasts English xlanguage syndicated programming. The station's city of license is Key West, Florida. It lacks measured  xaudience (cable and noncable) and historic carriage in all of the cable communities that Jones has  xrequested be deleted and all of the communities involved are outside of WWFDTV's Grade B contour.  x=The communities served by Jones system are all more than 140 miles outside of WWFDTV's predicted  x Grade B contour and, on average, 135 miles away from Jones' communities. While the programming  xoffered by WWFDTV can be considered to be of general interest to the ADI as a whole, neither it nor  xthe locallyproduced programming WWFDTV cites in its opposition, can be considered to be specifically  xlrelevant to Jones' communities. It is also generally undisputed that each of the cable communities receives an abundance of local news, sports, and public affairs broadcasts from other closer stations.  S- ` Bx22.` ` Given the evidence as to the statutory factors, the obvious lack of evidence concerning  xservice to the communities in question, and the lack of specific programming service to these  xNcommunities, we conclude that it is logical and consistent with the objective of Section 614 of the  x>Communications Act to delete Jones' cable communities from the WWFDTV market for mandatory carriage purposes.  S-0 ORDERING CLAUSES ă  S- ` Ox23.` ` Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934,  xas amended, 47 U.S.C. 534, and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition  x=for special relief (CSR5019A) filed on behalf of Cable TV Fund 14A, Ltd., d/b/a Jones Intercable, Inc.  S(- IS GRANTED.  S- ` x24.` ` IT IS FURTHER ORDERED, that WWFDTV's complaint filed June 27, 1997, (CSR S-5037M) against the abovelisted cable system IS DISMISSED as moot.  S`- ` _x25.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam H. Johnson x` `  hhDeputy Chief, Cable Services Bureau