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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Petition of: ) ) Greater Worcester Cablevision, Inc., et al. ) CSR-5276-A ) For Modification of Market of Station ) WBPX, Channel 46, Norwell, Massachusetts ) ) Petition for Reconsideration ) CSR-5212-M MEMORANDUM OPINION AND ORDER Adopted: November 6, 1998 Released: November 9, 1998 By the Acting Chief, Consumer Protection and Competition Divison, Cable Services Bureau: INTRODUCTION 1. In the above-captioned proceeding, Greater Worcester Cablevision, Inc. and associated cable systems ("Greater Worcester") have asked the Commission to exclude certain Massachusetts cable communities from the area of dominant influence ("ADI") of Television Broadcast Station WBPX (Channel 46), Norwell, Massachusetts, for must-carry purposes. WBPX filed an opposition to this petition, and Greater Worcester has replied. Fox Television Stations, Inc., licensee of Station WFXT, Boston, Massachusetts, filed comments in support of Greater Worcester's petition. In a separate but related proceeding, Greater Worcester filed a Petition for Reconsideration of a Cable Services Bureau's Memorandum Opinion and Order, DA 98-1028, released June 2, 1998. In that petition, Greater Worcester asks the Commission to reconsider it June 2nd action ordering Greater Worcester to Carry Station WBPX because the Bureau inadvertently failed to take into consideration an Opposition to Complaint for Carriage filed by Greater Worcester. BACKGROUND 2. Pursuant to  614 of the Communications Act and implementing rules adopted by the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues Report and Order ("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 purpose of this section. In considering such request, 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 non-cable 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 is 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. The factors are 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 of other programming of interest to the community could be demonstrated by program logs or other descriptions of local programming offerings. The final factor concerns viewing patterns in the cable community in cable and non-cable 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 non-cable homes, and significantly viewed surveys typically measure viewing only in non-cable 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 county-by-county basis, and that they should be treated as specific to particular stations, rather than applicable in common to all stations in the market. MARKET FACTS AND THE PARTIES' ARGUMENTS 7. Greater Worcester requests that WBPX's market be modified to exclude the communities served by its cable systems. Greater Worcester notes that even though the Boston, Massachusetts ADI encompasses both the station and the systems, WBPX does not serve the cable communities in question, which, on average, lie about 52 miles from Norwell, Massachusetts, WBPX's city of license. Greater Worcester notes further that WBPX does not provide either a Grade B contour coverage or an off-air signal to the communities at issue. 8. Greater Worcester argues that the statutory factors for market modification weigh in favor of deleting the cable communities from WBPX's market. Greater Worcester notes that WBPX returned to the air in 1996, after a six-year hiatus, and points out that WBPX has no historic carriage in the communities served by Greater Worcester. It indicates that WBPX's over-the-air signal does not reach the communities at issue. As for local coverage, Greater Worcester notes that the distance between the cable communities at issue and Norwell ranges between 39 and 70 miles. It argues that the Station's Grade B contour "does not cover any of the communities served by Petitioner's System," and maintains that these distances are comparable to the geographic distances of 40 to 75 miles encountered in cases where the Bureau has granted similar exclusion requests. Greater Worcester asserts that the Station does not air programs of local concern to residents in the cable communities; moreover, it argues that the programming format utilized by WBPX has neither a specific nexus nor is it specifically targeted to the cable communities at issue. With regard to other qualified stations, Greater Worcester states that its systems carry several local broadcast stations licensed in and around Boston, with many of these stations offering extensive coverage of local news and sporting events. The operator adds that its systems also carry 3 local access channels and 1 local origination channel, each of which cablecasts local news and sports coverage. Finally, Greater Worcester contends that WBPX's market share is not significant in or around the cable communities as shown by a study conducted by Media Strategies, which was unable to find any commercial ratings for WBPX in either cable or non-cable households in Worcester County where the System communities are located. In view of the above, Greater Worcester concludes that its petition for modification should be granted. 9. In opposition, WBPX admits that its current Grade B contour does not cover the cable communities in question, but argues that the situation is only temporary, until the Station completes the construction of its new facilities. Once the new facilities are completed, WBPX asserts, its Grade B contour "will blanket a number of the Cable Communities, including the city of Worcester." WBPX notes that while it has experienced construction delays due to a zoning dispute over its transmitter site, it expects to complete its new facilities as soon as the zoning matters are resolved. As a result, WBPX argues, in deciding the above-captioned petition, the Cable Services Bureau should look beyond the Station's temporary situation and consider the proposed Grade B contour on WBPX's 1995 construction permit, which WBPX points out, inadvertently lapsed. In support, WBPX cites the Bureau's decisions in Petition of Comcast of New Jersey and Suburban Cable TV Co., Inc., for the determination that "the proposed Grade B contour of a station which is on file and pending at the Commission prior to and during an ADI proceeding is probative and determinative evidence of Grade B coverage." WBPX points out that the Bureau has denied exclusion petitions, even in situations where a station's Grade B contour falls short of the cable communities, but the cable operator was carrying other stations from the same community of license. As an example, WBPX cites TWI Cable, Inc., and notes that in that case, the Bureau found that carriage by the cable operator of five stations from the same area showed a "strong market nexus" between the service areas and the station opposing the market modification. 10. WBPX maintains that Greater Worcester's argument about the distance between WBPX's transmitter and the communities at issue is irrelevant because presently, Greater Worcester is carrying a station licensed to Derry, New Hampshire, which "is on an average 54 miles from the Cable Communities." WBPX argues that the geographic closeness of the Station and the communities at issue "reinforces their common location within the Boston market," and maintains that the exclusion of the communities in question from its market would adversely affect its ability to reach viewers in a portion of its ADI. WBPX asserts that Greater Worcester is using the instant proceeding to avoid its mandatory carriage obligations. According to WBPX, the issue of whether the Station can provide an adequate off-air signal was resolved when WBPX, during the earlier must-carry proceeding, "demonstrated ... that the station does provide a good quality signal to Greater Media's headend." 11. WBPX states that it recently completed the construction of its studio, but for lack of an occupancy permit, it cannot yet move into its new facilities and produce locally-oriented or locally- originated programming. It asserts, however, that when it moves to its new studio, once the occupancy permit is granted, its programming will address the communities at issue, including other communities in the Boston market. Indeed, WBPX argues, its lack of local programming is due to its condition as a new television station, rather than to the scope of its market. Therefore, WBPX alleges, under the principles enunciated in Market Modifications and the New York Area of Dominant Influence, its lack of local programming should not be an obstacle for carriage on the Greater Worcester system. WBPX argues that the economic and demographic relationship among Worcester, Boston, and Norwell increases the connection between WBPX and Greater Worcester. 12. In addition, WBPX maintains that the Bureau should not give much weight to the historic carriage factor in the instant proceeding because in similar cases, the Bureau has said that doing so "would defeat the underlying purposes of the mandatory carriage requirement by preventing weaker or newer stations that cable systems had previously declined to carry, from ever obtaining the right to carriage." Also, WBPX argues that, as a new station, its current lack of viewership is irrelevant to determine the scope of its market. Otherwise, WBPX asserts, similarly situated stations would be unable to establish themselves and obtain carriage. In addition, WBPX maintains that although its programming is not presently listed on local TV listings, once it becomes a PaxTV affiliate and changes its programming format, it will be listed on the local TV listings, or at least, TV listing services intend to distribute PaxTV weekly listings to local newspapers. WBPX argues that granting the instant petition would go contrary to Congress' goals to provide cable subscribers with diversity of programming, which WBPX could provide its new programming that will include "many family oriented and local programs." Finally, WBPX argues that it cannot be denied its carriage rights in the communities in question simply because of the local programming efforts of other television stations in the Boston ADI. Those efforts, according to WBPX, should be given little weight in deciding the above-captioned petition. 13. In reply, Greater Worcester disagrees with WBPX's argument that historical carriage should not be given much weight. It points out that the Commission has concluded that historical carriage needs to be considered along with the other three statutory factors. Greater Worcester maintains that WBPX's argument of a more encompassing Grade B contour is only an attempt to justify its lack of local programming. In addition, Greater Worcester points out that WBPX fails to explain the nature and quantity of local programming it will offer. 14. Greater Worcester argues that even if WBPX moves into its new facilities, the proposed Grade B contour would not cover the most heavily populated areas. Those areas, Greater Worcester notes, would lie outside the Grade B contour the Station proposed in 1995, and the other cable communities would be "fringe" communities. Greater Worcester maintains that WBPX's reliance on TWI Cable Inc. is misplaced because, unlike the instant situation, in TWI the cable operator was carrying five other stations licensed to the same community. In this case, Greater Worcester point out, its system does not carry any other stations licensed to Norwell, Massachusetts, WBPX's city of license. Greater Worcester restates that not only is WBPX geographically remote from the communities in question, but that it fails to provide them with an adequate over-the-air signal. Greater Worcester asserts that while lack of audience share in the relevant communities may not be determinative in and of itself, it is significant when, as here, the broadcaster has failed to meet the other statutory factors. Greater Worcester maintains that WBPX does not have the required local nexus to the communities at issue, and argues that simply because Greater Worcester, the cable communities, and WBPX are located in the same ADI, WBPX is not entitled to automatic carriage in every community in the Boston ADI, without first complying with the market modification provisions of the Cable Television Consumer Protection and Competition Act of 1992. Otherwise, Greater Worcester asserts, the anomaly of transforming a local station into a "super station" would occur. 15. In its Comments in Support of Greater Worcester's petition, Fox Television Stations, Inc. states that the exclusion of the cable communities at issue would not disrupt any established viewing patterns or existing cable audiences because WBPX has never been carried on the Greater Worcester system, or provide an over-the-air signal to those communities. Fox notes that WBPX's programming does not address local interests; rather, it points out, its programming "is standard Paxson programming, which has not specific nexus to the Communities." Fox concludes that the above-captioned petition should be granted "because analysis of the four statutory factors reveals that WBPX is not the type of station that should be entitled to demand carriage in the Communities." ANALYSIS AND DECISION 16. Based on our analysis of the evidence relating to the four statutory and other relevant factor, Greater Worcester petition for market modification is granted. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market area is intended "to ensure that television stations be carried in the areas which they service and which form their economic market." The ADI market change process incorporated into the Communications Act, however, is neither 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 is warranted, nor a vehicle for broadcast stations to reach service areas that otherwise they could not serve. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that the operator's exclusion petition appears to be a legitimate request to redraw ADI boundaries to make them harmonious with market realities. Greater Worcester's actions do not reflect an intention to skirt its signal carriage responsibilities under the Communications Act and the Commission's Rules, nor do they evidence a pattern of discriminatory conduct against WBPX. 17. With respect to the first statutory factor, while we recognize that WBPX's lack of demonstrated historical carriage is a reflection of the Station's recent origin, we disagree with its argument that the Commission should find that WBPX meets this factor by focusing on the historical carriage of four other stations licensed to communities other than Norwell, or on Grade B contour changes that may come about once the Station's construction permit is reinstated; an occupancy permit is obtained, and WBPX moves into its new studio facilities. We find that WBPX's reliance on TWI Cable, Inc., supra, is misplaced. In that case, the Commission found a "strong market nexus" between the service areas and the station opposing the market modification, because the cable operator was carrying five other stations licensed to the same community. In the instant case, however, no other station licensed to Norwell, Massachusetts, is carried by Greater Worcester. 18. Turning to the second statutory factor, we have held that the presence of a Grade B contour over a community is evidence generally sufficient to satisfy this factor. In this case, however, WBPX does not place either a Grade A or a Grade B contour over the cable communities. Therefore, we conclude that WBPX does not meet this statutory factor. It is true that WBPX potentially could have a new Grade B contour that would partially cover the cable communities. Under that possible new Grade B contour, however, only a few communities would lie within that contour, others would lie at the edge of the proposed Grade B contour, while the majority of the communities would fall outside the Grade B contour. Presently, however, the proposed new Grade B contour is only an eventuality. In the past, in deciding ADI modification requests, we have considered the fact that broadcast stations were in the process of upgrading their facilities. In the instant case, however, it does not appear that WBPX is "in the process." Indeed, the record indicates that its 1995 construction permit has expired and that it cannot obtain an occupancy permit because of certain zoning matters. As a result, the completion of the upgrade process is uncertain. 19. With respect to programming service, WBPX has not shown that it carries programming of specific local interest or import for cable viewers in the communities in question. The information concerning WBPX's current programming, as part of the PaxTV network, indicates that those offerings may have some potential general interest to the cable communities, but with no specific ties to the communities at issue in this matter. Although, WBPX asks that we take into consideration recent changes in its programming format, we cannot conclude that it is a "local station," based upon current programming or future intentions. For the purposes of determining whether a station is local to a specific market at a given point in time, our focus is on the programming being aired. As we have previously concluded, we are unable to base our market modification decisions on programming that may or may not be aired at some future date. In the instant case, not even a description or proposal for future local programming was submitted. 20. With regard to the third statutory factor -- whether other stations eligible to be carried serve the communities in question -- in general, we do not believe that Congress intended this third 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. 21. With regard to viewership, the Commission has stated that it generally takes up to three years for new stations to establish viewing patterns. Therefore, this factor does not count as much as other factors. As a consequence, we will not weigh heavily WBPX's viewership levels. However, we note that even after two years on the air, the Station has no measurable viewing audience in the communities at issue. 22. We have carefully considered each statutory factor in the context of the circumstances presented here. When taken together, however, we believe that Greater Worcester has established that the communities at issue are not part of WBPX's ADI. The lack of historical carriage, the lack of an over-the-air signal over the cable communities, the lack of a Grade B contour coverage, the lack of other local service or targeted programming, and the lack of viewing patterns weigh against WBPX. 23. Because we have granted the petition to delete the communities identified in footnote 1 above from WBPX's market, the associated petition for reconsideration is rendered moot. ORDERING CLAUSES 24. Accordingly, IT IS ORDERED, pursuant to  614(h) of the Communications Act of 1934, as amended (47 U.S.C.  534) and  76.59 of the Commission's Rules, 47 C.F.R.  76.59, that the captioned petition for special relief filed June 30, 1998 by Greater Worcester Cablevision, Inc. IS GRANTED. 25. IT IS FURTHER ORDERED that the Bureau's June 2, 1998 must-carry Order, DA 98- 1028, CSR-5212-M IS RESCINDED, and the associated Petition for Reconsideration IS DISMISSED. 26. This action is taken pursuant to  0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Deborah E. Klein, Acting Chief Consumer Protection and Competition Division Cable Services Bureau