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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: ) ) Garden State Cable TV ) ) For modification of the ADI of ) CSR-5035-A Television Broadcast Station WTVE-TV,) Reading, Pennsylvania ) ) MEMORANDUM OPINION AND ORDER Adopted: November 5, 1997 Released: November 10, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Garden State Cable TV ("Garden State" or "petitioner"), pursuant to Sections 76.7(a)(1) and 76.59(a) of the Commission's rules, has filed the above-captioned petition which seeks to delete 58 communities served by Garden State's Cherry Hill, New Jersey, cable system from the television market of Station WTVE-TV, Channel 51, Reading, Pennsylvania ("WTVE-TV"), for purposes of the mandatory carriage requirements. The petition is unopposed. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket No. 92-259, a commercial television broadcast station is 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 Act, that a station not be deleted from carriage during the pendency of an ADI change request. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. The New Jersey communities here in question are all served by Garden State's Cherry Hill system. The cable communities are located in the New Jersey counties of Burlington, Camden, Gloucester, and Salem. WTVE-TV is located in the Philadelphia area of dominant influence ("ADI") which is the nation's fourth largest television market in terms of population. It is also a large market in terms of geographic area, stretching from Northampton County, Pennsylvania in the north to Atlantic City and into Delaware in the South. WTVE-TV, located in the southeastern portion of Pennsylvania, and the communities, generally located in the southwestern portion of New Jersey across the Delaware River from Pennsylvania, share a common assignment in the Philadelphia ADI. According to Garden State, this common connection does not justify compelling a Cherry Hill, New Jersey, cable system to carry the signal of a station assigned to the opposite end of the ADI. As such, Garden State seeks to have the communities served by its Cherry Hill system deleted from WTVE-TV's television market. 9. In support of its petition, Garden State argues that WTVE-TV should be excluded from carriage on its Cherry Hill cable system because the station fails to meet any of the market factors set forth in the 1992 Cable Act and the Commission's rules. First, Garden State asserts that WTVE-TV lacks long-term historic carriage. Although WTVE-TV began operation in November 1980, Garden State notes that it has never been carried on the Cherry Hill System. Thus, Garden State argues that deleting the communities at issue from WTVE-TV's television market would be consistent with Congressional intent which would be to avoid disruption of established viewing patterns and to ensure that stations do not lose access to existing cable audiences. 10. Second, with regard to coverage or local service to the communities, Garden State notes that concerning geographic proximity, the communities served by the Cherry Hill system are, on average, approximately 58.72 miles from Reading, Pennsylvania, WTVE-TV's city of license, and extend as far as almost 75 miles from Reading. Garden State also represents that all of the New Jersey communities served by the Cherry Hill system fall outside of WTVE-TV's Grade B contour, which does not reach New Jersey. Garden State further represents that it conducted actual field tests at four different system sites and, in each instance, the test showed a weak or non-existent picture. Garden State does note, however, that WTVE-TV has recently received the Commission's approval to increase its signal. However, according to Garden State, even after the upgrade is completed, Garden State's service area will only be on the fringe of the WTVE-TV's Grade B contour and a number of the communities will remain outside of the Grade B. Finally, Garden State adds that WTVE-TV provides no significant programming with any particular nexus to the communities. The programming provided, according to WTVE-TV, consists primarily of children's programs and cartoons, movies, paid programming, Fox Sports News, and sporting events local to the Harrisburg and Hershey, Pennsylvania, areas. 11. With regard to the third factor, Garden State argues that other qualified stations provide ample coverage of local news and sporting events. Garden State notes that its channel line-up shows that it carries numerous stations licensed in New Jersey and Pennsylvania, and these stations provide extensive coverage of local news and sporting events. Garden State points out that its system also carries "local origination" and "local access" channels that contain local news and sports coverage. Garden State also adds that even if WTVE-TV were to provide programming of local interest to Garden State's communities, the fact that other local stations in the area provide superior local coverage would undermine any special benefits associated with WTVE-TV. 12. Garden State also argues with regard to the fourth statutory factor that it has been unable to identify any measurable ratings for WTVE-TV in Burlington, Camden, Gloucester, Ocean, and Salem Counties in New Jersey, where the communities served by Garden State are located. Garden State notes that WTVE-TV's call letters are not even listed by Nielsen for these counties. 13. Garden State also notes that in addition to not meeting the statutory test, there are other considerations that weigh in favor of granting the requested relief. For instance, Garden State points out that WTVE-TV is not listed in any of the various editions of the Philadelphia Inquirer's weekly programming guide, nor is WTVE-TV included in the weekly television listings published by the Courier- Post, a Southern New Jersey Newspaper. Garden State also notes that WTVE-TV is not carried on a number of nearby cable systems including Comcast's Woodbury and Willingboro systems, Suburban Cable's Gloucester system, TKR Cable's Camden South, Maple Shade and Delaware Valley North systems, and Cablevision Systems' Upper Freehold system. ANALYSIS AND DECISION 14. Based on the four statutory and other relevant factors, Garden State's unopposed petition will be granted. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they serve and which form their economic market." Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements. The ADI market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that the operator's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Garden State's actions do not reflect an intention to skirt its signal carriage responsibilities under the 1992 Cable Act and the Commission's rules, nor do they evidence a pattern of discriminatory conduct against the station. Based on the geography and the statutory factors, we believe that the New Jersey communities in question are sufficiently removed from WTVE-TV that they ought not be deemed part of the station's market for mandatory carriage purposes. The evidence before us, which has not been disputed by WTVE-TV, distinguishes the communities served by Garden State's Cherry Hill system and persuades us that the action requested would "better effectuate the purposes" of Section 614 of the 1992 Cable Act. We believe Congress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly reviewed and rectified. 15. Although WTVE-TV has been in operation for 17 years, the station has never been carried on Garden State's Cherry Hill system. Therefore, for purposes of our analysis, WTVE-TV has no history of carriage in this area and does not fulfill the first statutory factor. We also have no indication that WTVE-TV is carried by other cable systems serving the counties where the communities at issue are located. Carriage of the station at issue on nearby cable systems is not a factor specified in the statute, but it does seem likely, depending on the specific circumstances involved, that carriage on nearby systems could serve as evidence to define the logical scope of a station's market. In the instant case, the fact that WTVE-TV is not carried by other nearby systems is a further indication that there is no market nexus between WTVE-TV and the communities at issue. 16. From the information before us, we also cannot conclude that WTVE-TV provides coverage or other local service to the communities served by the Cherry Hill system. Garden State has demonstrated that all of the New Jersey communities served by its Cherry Hill system fall outside of WTVE-TV's existing Grade B contour. In addition, based on the record before us, we also have no indication the WTVE-TV provides any programming specifically tailored to the communities in question. 17. We also believe that Garden State's carriage of other local stations provides support for the action requested. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. In the instant case, Garden State carries five New Jersey-licensed stations and seven Philadelphia- licensed stations, as well as local origination and local access channels which provide more focused local programming than WTVE-TV. Garden State also demonstrates that WTVE-TV has no audience in the communities served by its Cherry Hill system. Indeed, the Nielsen County/Coverage Study 1995 does not even list WTVE-TV's call letters in Burlington, Camden, Gloucester, and Salem Counties. 18. In light of all of the circumstances in this matter, we cannot conclude that the communities at issue are a logical part of WTVE-TV's television market. Garden State has sufficiently demonstrated that the communities served by its Cherry Hill system lack a sufficient nexus to WTVE-TV and that deletion of these communities from the station's ADI is warranted. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED, that the petition for special relief (CSR-5035-A) filed by Garden State Cable TV IS GRANTED. 20. 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 Appendix A Garden State Cable TV Communities Community County CUID NO. *Distance Audubon Borough Camden NJ0174 44.03 Audubon Park Borough Camden NJ0172 44.05 Barrington Borough Camden NJ0230 46.63 Bellmawr Borough Camden NJ0229 45.24 Berlin Borough Camden NJ0308 54.69 Berlin Township Camden NJ0327 54.76 Camden City Camden NJ0388 41.43 Carneys Point Township Salem NJ0537 45.29 Cherry Hill Township Camden NJ0241 44.97 Chesterfield Township Burlington NJ0395 58.05 Clementon Borough Camden NJ0316 52.35 Collingswood Borough Camden NJ0209 43.66 Eastampton Township Burlington NJ0416 54.49 Evesham Township Burlington NJ0355 55.13 Fieldsboro Borough Burlington NJ0384 53.00 Florence Township Burlington NJ0387 50.83 Fort Dix Burlington NJ0255 60.81 Gibbsboro Borough Camden NJ0334 51.74 Gloucester Township Camden NJ0309 51.19 Haddon Township Camden NJ0192 44.68 Haddonfield Borough Camden NJ0301 46.23 Haddon Heights Borough Camden NJ0205 45.74 Hainesport Borough Burlington NJ0385 51.97 Hi-Nella Borough Camden NJ0335 49.49 Laurel Springs Borough Camden NJ0357 50.82 Lawnside Borough Camden NJ0303 47.73 Lindenwold Borough Camden NJ0199 51.63 Lumberton Borough Burlington NJ0389 53.56 Magnolia Borough Camden NJ0256 47.98 Mansfield Township Burlington NJ0419 54.71 McGuire Air Force Base Burlington NJ0113 62.41 Medford Lakes Borough Burlington NJ0386 57.37 Medford Township Burlington NJ0410 57.99 Merchantville Borough Camden NJ0343 43.20 Moorestown Township Burlington NJ0320 47.07 Mount Holly Township Burlington NJ0356 53.14 Mount Laurel Township Burlington NJ0328 50.76 New Hanover Township Burlington NJ0392 63.68 North Hanover Township Burlington NJ0393 61.02 Oaklyn Borough Camden NJ0173 45.73 Pemberton Borough Burlington NJ0390 65.79 Pemberton Township Burlington NJ0310 73.14 Pennsauken Township Camden NJ0257 46.65 Pine Hill Borough Camden NJ0347 52.74 Pitman Borough Gloucester NJ0340 47.07 Plumsted Township Ocean NJ0391 76.34 Runnemede Borough Camden NJ0231 46.87 Shamong Township Burlington NJ0594 67.02 Somerdale Borough Camden NJ0302 49.64 Southampton Township Burlington NJ0418 65.46 Springfield Township Burlington NJ0411 61.37 Stratford Borough Camden NJ0307 50.38 Tabernacle Township Burlington NJ0595 67.32 Voorhees Township Camden NJ0321 52.87 Westampton Township Burlington NJ0417 57.86 Woodland Township Burlington NJ0596 79.23 Woodlynne Borough Camden NJ0258 44.75 Wrightstown Borough Burlington NJ0394 68.55 * Represents the distance in miles from the community to WTVE-TV's city of license.