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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 the Matter of: ) ) Paxson Atlanta License, Inc. ) CSR-5254-A ) For Modification of the Atlanta, ) Georgia ADI Market ) MEMORANDUM OPINION AND ORDER Adopted: October 2, 1998 Released: October 6, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Paxson Atlanta License, Inc., licensee of television broadcast station WPXA (Ind., Ch. 14), Rome, Georgia, has filed the above-captioned petition which seeks to include various communities located in 15 counties in Georgia, North Carolina, and Tennessee within the Area of Dominant Influence ("ADI") of WPXA. Oppositions to this request have been filed by the following: 1) Falcon First, Inc., operator of a cable system serving seven of the communities listed in WPXA's request; 2) Freedom-TV Sub, Inc., a subsidiary of Freedom Communications, licensee of television broadcast station WTVC (ABC, Ch. 9), Chattanooga, Tennessee; 3) Media General Broadcasting, Inc., licensee of station WDEF- TV (CBS, Ch. 12), Chattanooga, Tennessee; 4) North Georgia Television, licensee of low power television stations WDNN-LP and WDGA-LP, both Dalton, Georgia, WLNT-LP, Chattanooga, Tennessee, and WTNB-LP, Cleveland, Tennessee; 5) Sarkes Tarzian, Inc., licensee of station WRCB-TV (NBC, Ch. 3), Chattanooga, Tennessee; 6) Brenmor Cable Partners, L.P. d/b/a InterMedia Partners, operator of a cable system serving Cleveland, Tennessee and certain immediately surrounding unincorporated portions of Bradley County, Tennessee; and 7) Comcast Cablevision of the South, d/b/a Comcast Communications, operator of a cable system serving 23 of the communities requested for inclusion by WPXA. WPXA has filed a consolidated reply to all of the oppositions. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues ("Must Carry Order"), 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 Must Carry Order 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. 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. ARGUMENTS OF THE PARTIES 7. WPXA is located within the Atlanta, Georgia ADI. The counties of Catoosa, Dade, Fannin, Murray, Walker and Whitfield, Georgia; Cherokee County, North Carolina; and Polk, Bradley, Hamilton, Marion, Sequatchie, McMinn, Meigs, and Rhea Counties, Tennessee are all located within the Chattanooga, Tennessee ADI. 8. In support of its request, WPXA states that the must carry scheme adopted by Congress in the 1992 Cable Act allows individual stations to ask for inclusion of additional communities in their markets "where the presumption 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. . . ." In this instance, WPXA asserts that it meets the criteria for market modification set forth in Section 614(h). 9. First, WPXA states that its signal provides a Grade B or better signal to the majority of communities requested for inclusion while the remaining few communities lie on the fringe of its Grade B contour. WPXA submits a contour map that was produced using the Longley-Rice propagation method that it maintains corroborates this assertion. It argues that the Commission has previously found the Longley-Rice model to be "probative of . . . technical coverage" of cable communities by a broadcast station, and it has recognized "[s]tudies of this type have been increasingly used elsewhere in the Commission's processes to reflect signal propagation and thus warrant consideration" in market modification cases. WPXA points out that the Commission has consistently found in market modification cases that stations with a Grade B or better over-the-air signal provide local service to communities. 10. Second, WPXA states that it provides valuable local programming services to the communities by using a unique format combining program-length presentations of local and national businesses and community organizations with local public affairs, children's, foreign language and religious programming. WPXA indicates that recently, in August 1998, Paxson launched its PaxNet network, which airs an array of popular family programming as well as movies and original programming. WPXA maintains that grant of its modification request will allow it to devote even more resources to developing programming specifically targeted to its market. 11. Third, while it cannot claim historic carriage, WPXA states that the Commission has held that historical carriage is not a controlling factor which would necessarily justify denial as it could "in effect prevent newer or weaker stations from ever being entitled to carriage, contrary to the policy of the statute." Similarly, WPXA argues that the Bureau should conclude that ratings are of little probative value in cases where a specialty format station, such as itself, seeks to add communities to its must carry market since such programming "traditionally has drawn smaller audiences." WPXA states that it is clear that Congress could not have intended for the market modification process to prevent a struggling independent station like WPXA from obtaining carriage solely because its audience share is not as significant as other stations with which it competes. Finally, WPXA indicates that the Commission has repeatedly determined that the ability of other stations eligible for carriage to provide coverage or other local service to the communities is not a basis for denying a request for inclusion. 12. The seven opposing parties -- three cable operators (Brenmor Cable, Comcast and Falcon), three full power television stations (WTVC, WDEF-TV and WRCB-TV), and one low power television operator (North Georgia Television) -- have basically similar objections to WPXA's modification request. All of the parties argue that the Commission is mandated by Congress to take into account the four criteria set forth in Section 614(h)(C)(ii) of the Communications Act of 1934, as amended, in any analysis of market modification requests and any party seeking such modification must provide sufficient evidence to satisfy those factors. All parties universally agree that WPXA has failed to demonstrate that it meets any of the criteria necessary to justify grant of its request in this instance. A. Historic Carriage 13. All opposing parties point to the fact that WPXA concedes that it has no historical carriage in any of the requested communities and all object to WPXA's contention that it is not a controlling factor in this case. WTVC argues that since WPXA has been in operation since 1988 and its present format in place since 1994, WPXA cannot claim that lack of such carriage is as the result of being a new station or being recently reformatted. North Georgia Television points out that WPXA also has provided no evidence that it satisfies the historical carriage factor because "similarly situated stations" have been carried in the requested communities as set out in 614(h)(1)(C) of the Act. Falcon indicates that in a previous decision, the Bureau stated in granting a cable operator's request for exclusion against WTLK- TV (now WPXA) that ". . . it does seem likely, depending on the specific circumstances involved, that carriage on nearby systems would serve as evidence to define the logical scope of a station's market. Such carriage serves to demonstrate the belief of both the stations and systems involved that there is a market nexus between the broadcast station and the communities where the station is carried and thus provide evidence as to the scope of a station's market." Brenmor Cable maintains that WPXA suggests that its lack of historic carriage should be overlooked due to past discriminatory carriage practices on the part of Brenmor and the fact that it is a "specialty" station. Brenmor argues that it has not improperly discriminated against WPXA since it is assigned to a different ADI market. Falcon also claims that it is not showing a pattern of discrimination against WPXA since it is not carrying any other stations licensed to Rome, Georgia, WPXA's city of license. Comcast states that while lack of historical carriage is not determinative in and of itself, the Commission has specifically stated that it is a significant factor, when as here, the broadcaster has failed to meet the other statutory factors. B. Viewership 14. All parties note that WPXA has no reportable viewership in any of the counties where the communities requested for inclusion are located. Falcon states that there would thus be no disruption of viewing patterns or audience in denying WPXA's request. Falcon also argues that given that both of its systems are at full capacity, its cable service would be severely disrupted if it were forced to drop another service to carry WPXA, particularly when its subscribers have not requested that it do so. Moreover, Falcon maintains that WPXA cannot even claim that it is a new or weaker station in need of protection since it, and its predecessor WTLK-TV, have been on-the-air continuously for many years. Falcon cites an order where the Bureau stated that "we must give some weight to the fact that the station also has no reported audience in the counties where the cable communities are located and has no history of carriage on Service's systems despite ten years of operations." 15. WTVC maintains that nothing in WPXA's petition demonstrates that the station has any viewership or nexus to any of the requested communities, and that the request is contrary to Congress' intent that the ADI modification process be used to reflect market realities. WTVC states that unlike Rome-Atlanta, which has long been considered a hyphenated market where the stations are considered competitive, Chattanooga is a distinctly separate market whose stations do not compete with Rome-Atlanta stations given the distance and terrain factors. Grant of such a request, WTVC asserts, would fundamentally alter the competitive nature of the Chattanooga ADI without seriously impacting WPXA's ability to compete with other stations within its home market. 16. WDEF-TV states that WPXA makes no attempt to provide evidence of viewing patterns, merely claiming that its lack of viewing is attributable to its lack of carriage. According to WDEF-TV, the most recent Nielsen surveys for the Chattanooga ADI show that WPXA has literally no viewership in that market and it ties this lack directly to the fact that WPXA does not provide any programming designed or tailored to meet the needs, interests, and concerns of the residents of the Chattanooga ADI. North Georgia Television states that WPXA implies, without providing any concrete evidence, that its lack of ratings is due to its "specialty format" rather than its lack of focus on the communities. Comcast argues that WPXA's failure to provide any evidence of viewership is not surprising since the station generally does not provide an off-air signal of good quality to the communities. Comcast contends that WPXA's lack of audience is highlighted by the fact that the station is not listed in the Knoxville-Chattanooga edition of TV Guide or The Chattanooga Free Press TV Magazine. C. Grade B Coverage 17. All of the parties contest WPXA's assertion that it provides Grade B coverage to all of the requested communities. Falcon argues that WPXA has not demonstrated that it provides coverage or service to its cable communities, but merely points to two illegible maps which purportedly show Grade B or better signal coverage. Falcon also states that WPXA does not indicate which communities lie outside its Grade B contour or how far. Falcon maintains that while Paxson has argued that Grade B coverage alone should determine the outcome in this case, it argued completely opposite views in other cases before the Commission and the courts that the Commission wrongfully adopted a de facto Grade B standard for determining ADI modification petitions. In any event, Falcon argues that the 1992 Cable Act does not elevate Grade B coverage over the other modification factors; it is just one element among the required criteria. 18. Falcon points out that another equally-important element of the technical coverage factor includes distance, something which WPXA has not addressed. Falcon indicates that its system communities are, on average, 44.4 miles from WPXA's transmitter site while the home-market Chattanooga stations the system carries are only an average of 20.4 miles from its cable communities. Moreover, Comcast points out that WPXA is, on average, approximately 60 miles away from all of the cable communities. Both Comcast and Falcon maintain that these distances are comparable to or even greater than distances in previous Commission decisions in which the requested modification was denied. Falcon argues that the ADI modification procedures are intended to ensure that viewers do not lose access to local programming, but were not designed to be a tool for broadcasters, such as WPXA, to expand into areas which they have never served and for which there is no local nexus. Comcast and WTVC both point out that WPXA's Grade B signal fails to encompass the majority of the requested communities, and even more important, the communities are remote from the station in terms of distance and terrain. WTVC states that even those communities which do lie within WPXA's predicted Grade B contour are located anywhere from 30-45 miles away from WPXA's transmitter. WTVC states that it appears that much of WPXA's coverage in the Chattanooga ADI is to scarcely populated areas at high elevation. There is thus no basis, WTVC maintains, for WPXA's claim that it delivers a strong, high-quality signal to the instant communities. 19. WRCB-TV argues that both the terrain in northwest Georgia and WPXA's own propagation study strongly suggest that the market for Rome television stations is oriented to the east and south toward Atlanta and its suburbs and not to the north toward Chattanooga. WRCB-TV points out that north and west of WPXA's transmitter site, mountainous terrain above the Coosa River valley causes the station's signal to degrade rapidly in the direction of the counties of Catoosa, Dade, Walker and Whitfield. WRCB-TV states that not only does Rome lie on the south side of the Coosa River, but beyond the river to the north is a broad swath of the Chattahoochie National Forest and the prominent Taylor Ridge, Pigeon and Lookout Mountain ranges, while to the north and east are the high peaks of Cowpen and Big Bald Mountains, the last two of which limit WPXA's Grade B service to Fannin and Murray Counties, Georgia, as well as any part of North Carolina. 20. Several of the opposing parties, WDEF-TV, North Georgia Television and WRCB-TV, question WPXA's use of the Longley-Rice data. WDEF-TV argues that the Commission has never relied on Longley-Rice propagation methods in any market modification case to determine technical service nor has it unqualifiedly endorsed that method as a means for determining such service. In the case cited by WPXA, Channel 39, Inc., supra, where the station presented an engineering study utilizing the traditional Commission methodology as well as the Longley-Rice method, WDEF-TV states that the Commission's reliance on the Longley-Rice data was decidedly limited. In that decision, the Commission stated that the Longley-Rice modeling may be "somewhat probative" and that "given the flat terrain involved" in the Channel 39 case, the station signal may extend "further than the traditional analysis would suggest." WDEF-TV points out, however, that the terrain between Rome and Chattanooga is hardly "flat" and therefore WPXA's exclusive reliance on the Longley-Rice method in this instance is entirely misplaced. 21. Indeed, WDEF-TV maintains that the Commission has no reliable or credible means of determining, as a factual matter, the actual extent of WPXA's technical coverage over any of the subject communities. North Georgia Television argues that WPXA has provided no evidence that, given the terrain involved, a Longley-Rice study would be appropriate. WRCB-TV states that the study provided by WPXA is wholly deficient under the Commission's rules in that it failed to describe the procedure employed or include sample calculations, nor did it include predicted coverage by the regular method, as required by Part 73 of the rules. In addition, WRCB-TV indicates that the coverage map provided does not appear to be verified by the person who prepared it, as required by Part 76 of the rules. Finally, Comcast and Brenmor Cable both argue that in signal strength studies performed at a representative sample of headend locations, it was revealed that WPXA does not provide an off-air signal of good quality to the cable communities which reinforces that, despite its claimed theoretical Grade B coverage, WPXA does not provide adequate over-the-air service to the cable communities. D. Local Programming 22. All parties agree that WPXA fails to provide any local programming to the relevant cable communities. Falcon states that WPXA's programming appears to be a general mixture of infomercials and religious programming which is not targeted to any of the requested communities and even the arrival of its PaxNet network programming only added more general interest programming in lieu of locally- oriented fare. WTVC asserts that WPXA has provided no showing that its programming is in any way "local," but relies instead on general descriptions of its "specialty" programming. However, WTVC points out that the Commission has previously examined WPXA's programming format in the must carry context and determined that the "material does not appear to be the kind that suggests that these communities are a particular focus of the station or are in any sense served in a manner that establishes a specific market connection." Moreover, WTVC states that even though WPXA claims that its format allows it to provide locally-oriented programming, it does not describe in detail any actual news, sports, weather, public affairs or other local programming aired which is geared specifically to any of the requested communities. 23. In addition, WTVC maintains that although WPXA relies heavily on its "specialty" station status, the Commission has stated that "The fact that a station is . . . of specialized appeal does not mean that its logical market area is without limits or that it should be exempt from the Section 614(h) market modification process." Similarly, in Service Electric Cable TV, the Commission stated in deleting stations from a Paxson station that "The information of record indicates that WTGI-TV provides some programming of potential general interest but provides very little, if any, programming with specific ties to any of the communities at issue in this matter. We recognize that WTGI-TV is a station that may have a limited audience." 24. WRCB-TV states that WPXA does not mention one specific local business or community organization from the cable communities at issue as a regular component of its programming, nor is there any reference to news or public affairs coverage of particular events or institutions in these counties. WDEF-TV points out that the declaration in WPXA's petition references a single (half hour) weekly "locally produced public affairs program," but given the enormous size of the market in which WPXA is located, it is not surprising that WPXA cannot provide, within the context of this one locally produced program, service of interest to cable subscribers, many of whom reside upwards of 80 miles from the station's studio. Brenmor Cable states that WPXA's claim that its programming allows it to "[p]rovide locally-originated programming that satisfies the needs and interests of the communities it serves" should be rejected as circular since WPXA's failure to provide a Grade B contour to the cable communities and its lack of viewership makes it plain that the instant communities are not among "the communities it serves." Moreover, Brenmor Cable argues that WPXA's overall attempt to expand its market to include communities located significantly north of Rome, Georgia, is particularly troubling, given the station's past attempts to associate itself with Atlanta and points south and east of Rome. Brenmor argues that it is difficult to imagine how WPXA can at once provide "local coverage" to both Athens and Cleveland, communities which are more than 120 miles apart. E. Coverage by Other Local Stations 25. All of the opposing parties point to the large array of local programming the instant communities currently receive from Chattanooga ADI market stations and maintain that, despite WPXA's assertions, this is not a factor which can be overlooked. For instance, WTVC indicates that it provides over 25 hours of live news coverage per week and community outreach programs geared specifically to the instant communities. WRCB-TV provides a comprehensive list of the news stories and other events it has aired during the second quarter of 1998 concerning the instant communities and claims that, in the case of the Chattanooga ADI counties listed in WPXA's petition, only Chattanooga-based stations can demonstrate program service to these areas. Comcast maintains that the fact that it carries a large number of other broadcast stations that provide truly local programming to the cable communities it serves, significantly undermines any claim of "uniqueness" by WPXA or any special benefit WPXA seeks on the basis of its programming format. Comcast states that the local stations which it carries provide a total of 70 1/2 hours per week of local news, 10 hours per week of public affairs and local church news, 53 hours per week of local public, educational and governmental programming specific to the region, and 21.5 hours of local leased access programming. F. Other Arguments 26. WTVC argues that in the ten years in which WPXA has operated in the Rome-Atlanta market it has made no effort to serve any of the communities within the Chattanooga market. WTVC maintains that now, as part of a nationwide attempt to expand the reach of Paxson stations, WPXA is attempting to expand its must carry area into the Chattanooga market in a manner that is both wholly inconsistent with the purposes behind the must carry rules and unsupported by fact and law. WDEF-TV goes even further by stating that WPXA's request includes communities located in nearly every county within the Chattanooga ADI; communities which represent the core of the market. WDEF-TV argues that the Commission has categorically rejected the principle that, on grounds of technical coverage or otherwise, a station may invoke Section 614 as the basis for annexing to its must carry "market" the entire adjoining ADI: "In granting the Commission authority to modify market areas to better effectuate the purposes of Section 614, the Congress manifested no intent for us to alter the basic structure of an ADI market by including its core within another ADI market . . . . The inclusion of these communities . . . would, nevertheless, modify the basic nature and competitive relationships within the core [of the adjoining ADI] and conflict with Congress' objective of carriage of television stations in the economic areas they serve." WDEF-TV maintains that by the breadth of its claims and by the theory upon which WPXA purports to justify the scope of its request, it is plain that WPXA is not seeking to protect or maintain its position within its economic market but is purely and simply seeking to add the entirety of the Chattanooga ADI, including its core cities, to its must carry rights. 27. WTVC objects to the inclusion of any county areas listed for inclusion by WPXA since the modification requirements specify individual communities only. North Georgia Television argues that, as a low power television provider, grant of WPXA's request would make it even more difficult for North Georgia to obtain cable carriage for its low power stations on those cable systems in the Chattanooga market which do not already carry them. 28. In a consolidated reply, WPXA argues that contrary to the opposing parties' contentions, it request should be granted because it has demonstrated that it provides local service and programming to the instant communities and the modification procedure was designed specifically to prevent cable subscribers from losing access to local broadcast stations such as WPXA. WPXA maintains that, consistent with Commission precedent, Grade B coverage in modification cases is of great decisional significance. WPXA states that it has demonstrated that the vast majority of the requested communities are either encompassed by a Grade A or Grade B signal or lie on the fringe and that its reliance on a Longley-Rice Irregular Terrain Study was appropriate. WPXA asserts that the Commission has not only considered predicted signals generated using the Longley-Rice methodology as evidence in market modification proceedings, but also has accepted that this propagation model provides an accurate measure of signal contour in a variety of contexts, including both analog and digital television. There is thus no legal basis or policy rationale, argues WPXA, for the Commission to disregard the results of WPXA's signal strength studies using the Longley-Rice methodology. Moreover, WPXA states that while WDEF-TV attempts to argue that the Commission in Channel 39 did not "unqualifiedly endorse the Longley-Rice method," it failed to suggest any valid engineering basis as to why the Longley-Rice methodology does not generate an accurate measure of a station's Grade B contour. 29. WPXA states that the Longley-Rice methodology, also known as the "ITS Irregular Terrain Model" is among the most accepted methods available for alternative propagation prediction of broadcast frequency signal strength. It was introduced in 1968, updated in 1982 and again in 1985. WPXA points out that over the past thirty years it has been used in various contexts as a means of measuring a radio signal's predicted reach and has been selected as the Commission's permissible, or even principal, method of calculating the reach and interference of signals generated by both conventional analog and digital television transmitters, Personal Communications Services, and Private Land Mobile Radio Services. In references to the Longley-Rice propagation model, WPXA indicates that the Commission has stated that it is "well known to the broadcast industry," provides an "accurate measure of service and interference," and is "in the public domain and has been extensively documented; thereby ensuring that all parties using this model will be able to achieve the same results." Moreover, WPXA maintains that neither the Cable Act nor the Commission's must carry rules proscribe the use of alternative propagation methodologies in demonstrating that a station provides local coverage to a particular community or indicate that the methodology established in 73.684 will be the only cognizable indicator of signal strength under the market modification analysis. Indeed, states WPXA, the Commission in Channel 39 simply noted that the Longley-Rice data was useful because "given the flat terrain involved, the signal of [the broadcast station] may extend farther to the north than the traditional analysis would suggest." 30. WPXA states that, since it found that the Longley-Rice study it submitted with its petition predated the station's reduction in power, it submits a new study conducted with the current level of 3890 kW. WPXA points out that in addition to the area predicted to receive a Grade B signal, the supplemental study also includes a 61.7 dBu "modified Grade B" contour, which the Commission has concluded is a more accurate indicator of the reach of an analog UHF station's signal and must be used in Longley-Rice models to assess interference between the signals of analog and digital television stations. WPXA argues that when these results are viewed in conjunction with the station's "standard" FCC Grade B contour, there can be no question that nearly all of the cable communities at issue here are within or near the fringe of the station's Grade B contour. WPXA asserts that even those parties who object to the use of the Longley-Rice study have suggested that the Commission not consider the station's FCC Grade B contour. WPXA states that, most significantly, analysis of the Supplemental Study demonstrates that a number of the cable communities beyond the station's predicted Grade B contour actually fall within the scope of WPXA's Longley-Rice Grade B contour. 31. WPXA points out that two parties, Brenmor Cable and Comcast, offered results of tests measuring WPXA's signal in an attempt to show that the station does not provide actual over-the-air coverage. However, WPXA argues that these limited tests cannot be regarded as conclusive indicators of its signal strength throughout the communities. In any event, WPXA states that two tests conducted by its own engineer demonstrate that the station does, in fact, place a quality over-the-air signal into Cleveland and the surrounding areas, the system served by Brenmor Cable. In conclusion, WPXA argues that denial of its petition would be inconsistent with Commission precedent. Moreover, since in several previous decisions the Commission has deleted communities in the Atlanta ADI from WPXA's local market because they fell outside the Grade B contour, a denial where Grade B coverage has been shown would effectively limit WPXA to only a portion of its Congressionally-recognized local market. 32. In a supplement to its opposition, WTVC argues that the FCC Grade B contour supplied by WPXA proves that the station's Grade B contour does not extend to the city of Chattanooga or communities north. In addition, the latest Longely-Rice exhibit shows WPXA's signal reaches only mere pockets of high terrain, sparsely-populated areas that are not covered within the "standard" Grade B contour. WTVC maintains that this does not demonstrate sufficient coverage for ADI modification purposes. Finally, WTVC indicates that WPXA improperly applies the Longley-Rice UHF dipole factor adjustment outside its intended context. It points out that the Commission specifically stated that the DTV Sixth Report and Order "does not modify previous rules relating to analog NTSC service." DISCUSSION 33. WPXA is seeking to add 78 communities and unincorporated county areas located in 15 counties in Georgia, Tennessee and North Carolina to its Atlanta ADI. WPXA argues that it sufficiently meets the criteria with regard to local service and local programming to be considered a local station for the communities in question. The opposing parties deny this. Based on our analysis of the evidence relating to the four statutory and other relevant factors, WPXA's petition will be granted in part and denied in part. 34. Atlanta, WPXA's market, is the nation's tenth largest market in terms of population. It is approximately 170 miles long and 150 miles wide, encompassing 52 counties in three states. WPXA, licensed to Rome, Georgia, began operation in 1988 and broadcasts on channel 14 from a transmitter close to Waleska, Georgia. Chattanooga, the market in which all of the requested communities are located, is the 86th largest market in terms of population and in size is less than half that of Atlanta, encompassing 18 counties in four states. The requested communities range, on average, from 41 to 94 miles away from Rome, WPXA's city of license, and 35 to 87 miles away from Waleska, WPXA's transmitter site. The terrain of many of the requested communities is affected by such natural barriers as mountain ranges, National forests, rivers and lakes. 35. Historic Carriage. WPXA has no history of carriage on any of the cable systems serving the relevant communities, despite being on-the-air for 10 years. There is also no evidence that WPXA is carried on any cable systems serving other nearby communities. While carriage on nearby cable systems is not a factor specified in the statute, such carriage serves to demonstrate the belief of both the stations and systems involved that there is a market nexus between the broadcast station and the communities where the station is carried and thus provides evidence as to the scope of a station's market. It should also be noted that WPXA is not listed in any local TV listings for any of the principal communities nor has it provided information that any of its income is attributable to the communities at issue. 36. Viewership. WPXA has been operating as a full-power television station since February 29, 1988. It was able to achieve significantly viewed status in five Georgia counties based on viewership levels it achieved within its first three years of operation. Currently, with the exception of Murray County, Georgia, WPXA is not considered to be significantly viewed in any of the instant counties nor does it achieve any ratings in the subject counties. It is true that WPXA's switch in 1994 to a "specialty" format may have contributed to its decline and/or current lack of viewership data and we recognize that, for a time, WPXA was a station that may have had a limited audience. However, it should be noted that with the arrival of its current PaxNet programming, WPXA can no longer be considered a specialty station, but a regular commercial independent station. Therefore, we must give some weight to the fact that the station has no reported audience in the counties where the cable communities are located. 37. Local Programming. WPXA contends that its program format combining informercials, religious and local public affairs programming, and its new PaxNet network provides valuable programming services to the instant communities. However, we are not convinced that such programming, while of potential general interest, is the kind that suggests that the requested communities are a particular focus of the station or are in any sense served in a manner that establishes a specific market connection. 38. Coverage by Other Stations. In general, in instances where other stations eligible to be carried serve the communities in question, we do not believe that Congress intended this criterion to operate as a bar to a station's ADI claim whenever other stations could also be shown to serve the communities at issue. Rather, we believe that this criterion was intended to enhance a station's claim where it could be shown that other stations do not serve the communities at issue. 39. Station Coverage of Communities. With respect to coverage, the Commission stated in its Report and Order in MM Docket 92-259, supra, 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 communities or is located close to the community in terms of mileage." While the predicted Grade B contour of WPXA's signal on file with the Commission indicates Grade B coverage over only about half of the requested counties, in this instance WPXA places its strongest reliance on a Longley-Rice propagation study which purports to show that WPXA provides a Grade B or better signal to all of the instant communities. WPXA maintains that Longley-Rice studies are being increasingly used in Commission processes to reflect signal propagation and its use is appropriate here. The opposing parties contend that, given the geography of the region, the use of a Longley-Rice study is both inappropriate and an unreliable indicator of WPXA's true coverage of the communities. 40. The cable television mandatory broadcast signal carriage rules were adopted as part of the 1992 Cable Act. According to the legislative history of that 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." The Act specifically provided that the Commission was to consider adding additional communities or excluding communities from the markets of television stations "to better effectuate the purposes" of the mandatory carriage requirements. In acting on such requests, the Commission was instructed to "afford particular attention to the value of localism, taking into account four specified statutory factors." These factors, however, were "not intended to be exclusive." 41. In reaching our conclusion, we have considered the statutory factors as well as other relevant information. WPXA has never been carried in any of the communities in question (factor I), provides no specifically-directed local programming to the communities (factor II), and has no measured audience in the communities. Given the statutory directive, weight must be given to these factors, but that must be done bearing in mind that the objective of the Section 614(h) process is to "better effectuate the purposes" of the broadcast signal carriage scheme. Thus, with respect to the question of historical carriage patterns, attention must be paid to the circumstances from which such patterns developed. Some stations have not had the opportunity to build a record of historical carriage for specific reasons that do not necessarily reflect a judgment as to the geography of the market involved. Given the age of WPXA and the terrain involved, however, that does not appear to be the circumstance here. 42. Given the difficulties of relying exclusively and explicitly on the statutory factors of historical carriage and viewing patterns, which in certain circumstances could severely narrow the carriage rights of stations even within what is undeniably their local market area, we have found it helpful to focus also on factors that are less influenced by the type of station involved or historical carriage, especially in instances such as here when the station had a specialty format. The scope of a local station's market may be measured through geographic means by examining the distance between the station and the cable communities subject to the request and by taking into account natural phenomena such as waterways, mountains, and valleys that may tend to separate communities and define natural markets -- basic geographic, demographic and political features that provide the best available evidence of the market boundaries of the stations involved. In this regard, the Commission has explicitly noted the relevance of Grade B contours as well. In the absence of other information, station service contours provide at least one objective measure of the scope of a station's local market. In the case herein, we find that, in view of the numerous natural barriers inherent in the region in which the requested communities are located, WPXA's predicted Grade B contour alone cannot be relied on as an accurate representation of the station's actual over-the-air coverage. Longley-Rice propagation studies, however, take such factors as terrain into account and can be of help in determining a station's actual service area. Moreover, since such studies have been used in a variery of contexts, including both analog and digital television, and are generally useful in demonstrating the effects of irregular terrain, we find their use of probative value in modification cases. We therefore accept WPXA's Longley-Rice submission as supporting, or for some areas rebutting, its request. 43. Upon review, however, we do not agree with WPXA that the Longley-Rice propagation study presented justifies its argument that it provides a Grade B or better signal to all of the communities. Outside of the counties of Whitfield and Murray, Georgia, and a small portion of Bradley County, Tennessee which does not encompass the requested communities in that county, WPXA's coverage appears spotty at best, while the majority of counties appear to receive no Grade B service at all. Such spotty coverage is a clear indication that the natural barriers found in a majority of the region precludes over-the-air reception of WPXA's signal in all but a few isolated instances. Adding this factor to WPXA's lack of historic carriage, lack of programming and lack of viewership, we conclude that it cannot be used to justify grant of WPXA's request for communities located in the counties of Catoosa, Fannin, and Walker, Georgia; Cherokee, North Carolina; and Bradley, Polk, Hamilton, Marion, Rhea, Sequatchie, McMinn and Meigs, Tennessee. For communities in the counties of Murray and Whitfield, Georgia, however, although the factors recited by the opposing parties do weigh in favor of denial, we find that other factors deserve more weight. Whether it is from topography or orientation of its signal, it appears that WPXA provides a consistent over-the-air signal to this region. WPXA has the ability to establish itself in this region. Moreover, as these two counties cannot be said to constitute the core of the Chattanooga market, there is little danger that the limited grant of must carry rights to WPXA will pose serious competitive harm to the Chattanooga market as a whole. ORDERING CLAUSES 44. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534(h) and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief (CSR-5254-A) filed on behalf of Paxson Atlanta License, Inc. IS GRANTED IN PART with respect to the communities of Chatsworth, Eton and Unincorporated Murray County, Georgia; and Cohutta, Dalton, Tunnel Hill, Varnell and Unincorporated Whitfield County, Georgia, and IS OTHERWISE DENIED. 45. 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 I The communities listed in WPXA's petition are the following: Distances from Relation to Community County CUID Rome/ Waleska* WPXA Gr. B* Unin. Catoosa Cty. Catoosa GA0574 Unin. Catoosa Cty. (N) " " GA0173 Unin. Catoosa Cty. " " GA0153 Ringgold " " GA0172 45/52 within Ft. Oglethorpe " " GA0493 46/58 within Ft. Oglethorpe " " GA0496 46/58 within TrentonDade GA0539 46/67 outside Unin. Dade Cty. " " GA0975 Blue Ridge Fannin GA0166 64/40 within# Unin. Fannin Cty. " " GA0159 within McCaysville " " GA0171 68/47 within# Morganton " " GA0387 68/42 within# Lafayette Walker GA0094 31/50 within Linwood" " GA0152 31/50 within Unin. Walker Cty. " " GA0151 Unin. Walker Cty. " " GA0067 Ft. Oglethorpe " " GA0494 Ft. Oglethorpe " " GA0497 Rossville " " GA0192 49/62 outside Rossville " " GA0495 49/62 outside Chickamauga " " GA0088 42/57 within Lookout Mountain " " GA0190 49/64 outside Chatsworth Murray GA0252 43/34 within# Eton " " GA0659 46/37 within# Unin. Murray Cty. " " GA0253 within# CohuttaWhitfield GA0320 50/50 within Dalton " " GA0051 37/40 within# Tunnel Hill " " GA0319 41/46 within Varnell" " GA0318 46/47 within Unin. Whitfield Cty. " " GA0317 within Unin. Cherokee Cty. Cherokee NC0814 Murphy " " NC0107 87/61 outside Andrews" " NC0647 101/74 outside Unin. Bradley Cty. Bradley TN0159 Cleveland " " TN0068 66/62 on edge Charleston " " TN0285 77/68 outside Charleston " " TN0316 77/68 outside Copperhill Polk TN0114 69/48 within Ducktown " " TN0240 70/50 within Unin. Polk Cty. " " TN0341 Unin. Polk Cty.(N) " " TN0635 Unin. Polk Cty. " " TN0404 Unin. Polk Cty. " " TN0579 Benton " " TN0338 70/60 within Mineral Bluff** " " TN0667 Chattanooga Hamilton TN0062 56/66 outside Collegedale " " TN0183 54/58 within East Ridge " " TN0066 51/61 outside Unin. Hamilton Cty. " " TN0173 Lakesite " " TN0182 65/70 outside Lookout Mountain " " TN0125 51/65 outside Red Bank " " TN0065 59/69 outside Ridgeside " " TN0124 53/64 outside Signal Mountain " " TN0177 60/72 outside Soddy-Daisy " " TN0187 69/74 outside Walden " " TN0206 62/73 outside Unin. Marion Cty. Marion TN0666 outside Unin. Marion Cty. " " TN0286 outside Jasper " " TN0164 60/80 outside Jasper " " TN0277 60/80 outside Kimball" " TN0165 61/81 outside New Hope " " TN0596 58/79 outside Powells Crossroad " " TN0305 66/80 outside South Pittsburg " " TN0163 60/82 outside Whitwell " " TN0304 67/82 outside Dayton Rhea TN0356 85/85 outside Unin. Sequatchie Cty. Sequatchie TN0508 outside Unin. Sequatchie Cty. " " TN0260 outside Dunlap " " TN0262 77/87 outside Athens McMinn TN0010 88/78 outside Englewood " " TN0203 89/76 outside Etowah " " TN0011 83/70 outside Unin. McMinn Cty. " " TN0204 outside Niota " " TN0311 94/83 outside Calhoun" " TN0284 76/69 outside Calhoun" " TN0317 76/69 outside DecaturMeigs TN0357 90/84 outside Unin. Meigs Cty. " " TN0512 outside *where known **There is apparently some confusion as to the actual location of Mineral Bluff. WPXA, in its petition, lists Mineral Bluff as located in Polk County, Tennessee and it is so registered with the Commission. In its opposition, however, WTVC states that Mineral Bluff is located in Fannin County, Georgia. Commission records do not indicate that a Mineral Bluff, Georgia has ever been registered, but from available maps we cannot locate a Mineral Bluff in Polk County, Tennessee, while these same maps do show a Mineral Bluff in Fannin County, Georgia. In addition, the US Geological Survey website which provides distance information also shows a Mineral Bluff in Fannin County at a distance of 69 miles from Rome, Georgia. #also within Grade A contour