******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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: ) ) Guy Gannett Communications, Inc.) CSR-5289-A ) For Modification of the Portland-) Poland Spring, Maine ADI Market ) MEMORANDUM OPINION AND ORDER Adopted: December 1, 1998 Released: December 4, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Guy Gannett Communications, Inc., licensee of Station WGME-TV (CBS, Ch. 14), Portland, Maine, has filed the above-captioned petition which seeks to include 9 communities located in Strafford and Rockingham Counties, New Hampshire, within the Area of Dominant Influence ("ADI") of WGME-TV. An opposition to this request has been filed on behalf of MediaOne of New Hampshire, Inc., the cable operator serving the subject communities, to which WGME-TV has replied. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its 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 Report and Order in MM Docket No. 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. 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. WGME-TV is located within the Portland-Poland Spring, Maine ADI. The counties of Strafford and Rockingham, New Hampshire are located within the Boston, Massachusetts ADI. 8. In support of its request, WGME-TV states that the must carry rules enacted by Congress in the 1992 Cable Act ensures the preservation of the "vital local service" provided by television broadcasting, and was intended "to ensure that television stations be carried in the areas which they service and which form their economic market." In this instance, WGME-TV asserts that an analysis of the statutory factors demonstrates that its market should be modified to include the requested communities. 9. First, WGME-TV states that it has established a history of carriage in the requested communities. It indicates that it is currently carried in all of the requested communities. WGME-TV argues that such voluntary carriage demonstrates that the cable operator considers it to be a local signal and provides convincing support for the instant request. WGME-TV states that the Bureau has observed that historical carriage demonstrates that the cable operator and its subscribers "value the station and the service it provides." Moreover, WGME-TV points out that other Portland ADI stations have also been historically carried in the communities. WGME-TV maintains that, since the Bureau has frequently cited the carriage of other stations from the same community as justification for rejecting an attempt to delete a communities from a station's market, a similar principal should guide the Bureau's analysis of the instant request as it represents compelling evidence of the required nexus between the requested communities and WGME-TV's city of license. 10. Second, WGME-TV indicates that all of the instant communities are either located within WGME-TV's Grade B contour or on the fringe. WGME-TV points out that the Bureau has repeatedly emphasized the importance of a station's Grade B coverage in demonstrating local service, even in instances where a community is slightly beyond the contour's border. In addition, WGME-TV states that its city of license is geographically proximate to the communities at an average of 48.8 miles. This distance, WGME- TV maintains, is well within the range of distances approved in prior ADI modification decisions. 11. Third, WGME-TV states that it airs public affairs programming which is specifically targeted to the communities. WGME-TV indicates that, unlike other broadcast stations in the Boston and Portland markets, it maintains a full-time presence in the "Seacoast Communities" that lie along the southern Maine/northern New Hampshire border, an area which includes the requested communities. WGME-TV states that it has a 56-person news staff; it maintains its own satellite news bureau in Sanford, Maine, which is less than 25 miles from the majority of the communities; and it staffs two full-time on-air reporters, who reside in the area, and who research, produce and report on local news and events of interest. WGME-TV asserts that among the 27 hours of local news it broadcasts are stories produced by the Seacoast Bureau as well as live broadcasts from its reporters. WGME-TV points out that the Boston ADI network affiliates carried in the communities are more distant than is WGME-TV's Seacoast Bureau and therefore less likely to cover local issues. In any event, WGME-TV argues that, to the extent that other stations do provide local coverage to the communities, the Bureau has made clear that such coverage "does not act as a bar to a station's ADI claim." Finally, WGME-TV states that its commitment to the instant communities is evidenced by its inclusion in the two Rockingham County newspapers, The Portsmouth Herald and The Manchester Union Leader, as well as the New Hampshire edition of TV Guide, and its long advertising relationship with companies doing business in and around those communities. 12. In its opposition, MediaOne argues that WGME-TV's request should be denied because the station has failed to demonstrate that it adequately meets the criteria necessary for market modification. MediaOne states that WGME-TV fares poorly in its reliance on its Grade B coverage. MediaOne asserts that while the Commission has previously relied on a station's Grade B contour coverage as a last resort to prevent the contraction of station's market, it does not typically rely solely on the Grade B to expand a market. Moreover, MediaOne states that recently performed signal strength studies indicate that WGME- TV does not provide an off-air signal of good quality to the system communities without reliance on the use of a high-gain antenna at a height significantly greater than that typically available at individual homes in the cable communities. Further, MediaOne argues that, instead of justifying modification, the average geographic distance relied on by WGME-TV equals or exceeds distances in previous Bureau decisions which justified exclusion of communities from a station's market. 13. MediaOne points out that WGME-TV also does not provide evidence of programming specifically tailored to the instant communities. MediaOne states that WGME-TV is a CBS network affiliate and thus broadcasts CBS programming which has no specific nexus or relevance to the communities herein. In any event, even if such programming did target the communities, MediaOne states that it is already available from the Boston ADI's own CBS affiliate, WBZ-TV. Moreover, MediaOne argues that the fact that WGME-TV maintains a Seacoast Bureau does not in itself demonstrate local coverage of the communities because only 2 of its 56 person news staff is dedicated to the Seacoast Bureau; only 15 miles of the Seacoast area is New Hampshire coastline, compared to 115 miles of Maine coastline; and many of the New Hampshire stories included in WGME-TV's exhibit appear to focus on issues of potential general appeal to New Hampshire and Maine residents and do not address news or events specific to any of the instant communities. The mere fact that WGME-TV is listed in New Hampshire papers and TV Guide, argues MediaOne, fails to establish the necessary local nexus with the communities as these publications also serve residents in the Portland ADI. 14. MediaOne states further that WGME-TV fails to provide any evidence to support its claim that the instant communities are inadequately provided local coverage by their own market stations. For instance, MediaOne points out that WGME-TV completely ignores the fact that the cable communities all receive WMUR-TV, a Grade A station licensed to Manchester, New Hampshire, WNDS, licensed to Derry, New Hampshire, and WENH, licensed to Durham, New Hampshire. MediaOne states that WMUR-TV provides extensive news and sports coverage from the cable communities as well as extensive public affairs and local entertainment programming; that WNDS reached an agreement on a formal "news alliance" with the Boston ADI CBS affiliate, WBZ-TV, to air a nightly local newscast at 10:00 p.m.; and that WENH provides significant public affairs and news programming that targets the specific communities at issue. 15. Finally, MediaOne argues that WGME-TV fails to provide any evidence regarding audience viewership of its stations in either the cable or non-cable households in the requested communities. MediaOne maintains that this is hardly surprising since, in general, WGME-TV does not provide an off-air signal of good quality to the system communities. In a study conducted by Media Strategies, MediaOne states that no ratings were found for WGME-TV in Rockingham County, where the majority of the cable communities are located, and only minimal viewership in Strafford County which is easily eclipsed by that of the Boston CBS affiliate, WBZ-TV, which is also considered to be significantly viewed in both Rockingham and Strafford counties. Despite this, however, MediaOne states that due to the fact that Portland, WGME-TV's city of license, is slightly closer to the cable system's principal headend than is Boston, carriage of WBZ-TV could be at risk should WGME-TV's request be granted since Commission rules require a cable operator to carry only the closest of two identical network affiliates. MediaOne argues that such displacement of an in-market station is not what Congress had in mind when it enacted the modification rules. 16. In reply, WGME-TV states that its petition decisively demonstrated that it meets the statutory criteria for market modification. It argues that the arguments raised by MediaOne in its opposition are factually inaccurate and fail to provide any basis upon which to deny the instant request. WGME-TV points out that MediaOne concedes that the station has been carried, voluntarily and continuously, in the requested communities. WGME-TV argues that it is also relevant that MediaOne carries three other television stations licensed to the Portland ADI, since the Bureau has held that a cable operator's decision to carry one station licensed to a community, but not another, can adversely affect the latter's ability to compete with the carried station. WGME-TV maintains that such carriage represents convincing evidence of a nexus between these communities and Portland, and a grant of the current request would ensure that WGME-TV competes evenly with its Portland counterparts. In any event, WGME-TV states that MediaOne has provided no justification for treating its station differently from the other Portland-area television stations. 17. WGME-TV argues further that MediaOne's contention that the Bureau does not rely on Grade B coverage to demonstrate local service is both unfounded and unsupported. WGME-TV points out that the Bureau has issued a number of decisions in which it determined that Grade B coverage supported the addition of communities to a television station's market. Therefore, WGME-TV argues that MediaOne's attempt to diminish the importance of WGME-TV's Grade B coverage is without any basis. Moreover, WGME-TV states that MediaOne's attempt to introduce the results of a purported field strength study should be rejected because such measurements are not relevant to a market modification request and, in any event, MediaOne has conceded that its signal meets the threshold test. Similarly, WGME-TV maintains that, despite MediaOne's assertions, the Bureau has found that a distance of 56 miles is not so great as to require rejection of a request to include communities in an ADI. With respect to the 9 served communities to which its request is now directed, however, WGME-TV points out that the average distance is even closer at 49 miles. 18. WGME-TV asserts that MediaOne's attempts to dispute its local programming should also be disregarded. WGME-TV states that it is alone among the network affiliates licensed to either the Boston or Portland ADIs which provides a local news bureau designed to cover news and events occurring in and around the served communities, a fact which MediaOne fails to rebut. WGME-TV indicates that, according to its Executive Producer, Lois Czerniak, the New Hampshire-Maine border area, which includes Portsmouth and the other served communities, forms an integral component of WGME-TV's regular coverage area. WGME-TV argues that its Seacoast Bureau is staffed full-time by approximately one-tenth of its news reporting and photography professionals which facilitates its ability to cover news, sports and community events in the served communities comprehensively and timely. In fact, WGME-TV states that it has aired at least 180 stories during the past eight months directed toward the served communities and many other segments that, while not specifically directed at these communities, addressed statewide New Hampshire events of interest to the residents. Further, while MediaOne contends that the third statutory factor regarding coverage of other local stations weigh[s] heavily against the petition, WGME-TV maintains that Commission precedent clearly authorizes a station to invoke the third factor as an "enhancement criterion" in a market addition case, while expressly precluding its use against such a station. 19. WGME-TV points out that it is significant that a large number of businesses in the served communities rely on WGME-TV to reach their customers by purchasing advertising on the station. For instance, WGME-TV states that contracts from businesses located in the New Hampshire-Maine border area generate, on an annual basis, approximately $500,000, while advertisements with regional New Hampshire- Maine businesses exceed $2,500,000. In addition, WGME-TV argues that its ratings also support this request as it is significantly viewed and has measurable ratings in Strafford County, in which 4 of the 9 served communities are located. While WGME-TV concedes that it does not enjoy the level of ratings it would prefer in Rockingham County, it feels that its locally-focused programming will soon result in improved viewership. However, WGME-TV argues that in light of the overwhelming evidence satisfying the other statutory factors, its less significant ratings should not play a pivotal role in the Bureau's analysis herein. Finally, WGME-TV asserts that there is no merit in MediaOne's dire warning that grant of the instant petition will jeopardize the carriage of WBZ-TV, Boston's CBS affiliate. WGME-TV points out that MediaOne has long provided the served communities with simultaneous carriage of the network and local programming from both affiliates and there is every indication that the status quo will continue. DISCUSSION 20. The counties of Strafford and Rockingham, in which the communities requested for inclusion are located, are situated in the northeastern portion of the Boston ADI and are geographically proximate to the Portland ADI, to which WGME-TV is licensed. In our review of the case herein, the factors presented by WGME-TV would argue for grant of its request. WGME-TV has a long history of carriage in the communities at issue (factor I); provides Grade B coverage and specifically-directed programming to the communities (factor II); and has reasonable viewership in Strafford County (factor IV). Other factors inherent in this situation, however, override the statutory factors and will support a denial of the requested modification. 21. In the present case, WGME-TV, a CBS network affiliate, is seeking to modify its market to include 9 communities located in the Boston ADI. These communities are served by the Boston market CBS affiliate, WBZ-TV. In such circumstances, we are especially concerned that our decision not unduly upset the economic marketplace expectations underlying the affiliation concept. Therefore, we must take into account the effect a grant of must carry status to WGME-TV will have on WBZ-TV. 22. Our review of the case reveals several important factors. Both WGME-TV and WBZ-TV provide approximately equal Grade B coverage of the communities at issue. Geographically, however, there is some disparity. According to the most-recently available Commission records, the subject communities are served by two separate MediaOne systems -- one system serving the communities in Strafford County and the other the communities in Rockingham County. An analysis of the distances between the two stations' cities of license and the individual communities in the two systems reveals that all of the Strafford County communities are closer to Portland than to Boston while more than half of the Rockingham communities are either closer to Portland or equi-distant between Portland and Boston. A grant of must carry status to WGME-TV, therefore, particularly for the Strafford County system, would jeopardize WBZ-TV's must carry status within its own ADI market, a situation not intended or envisioned by the Cable Act. 23. Viewership levels are also important in reaching our determination. WBZ-TV, the current CBS affiliate serving the communities, achieves substantial viewership levels of 7/62 and 11/73 in Strafford and Rockingham Counties, respectively, and is also considered to be significantly viewed in the two counties while, on the other hand, WGME-TV achieves viewership levels of 5/41 in Strafford County, and no viewership recorded at all for Rockingham County. In neither county is WGME-TV considered to be significantly viewed. These viewership levels show a preference for WBZ-TV in the subject communities, especially in Rockingham County. Further, while WGME-TV has shown that it provides locally-focused programming to the communities, it has not provided any information to conclude that WBZ-TV, or indeed any other Boston ADI station eligible to be carried, fails to provide adequate news coverage or other local programming. 24. Finally, we cannot overlook the importance of the local programming the communities receive from their own market stations. We note MediaOne's apparent carriage of three other Portland market stations, WCSH-TV, WMTW-TV and WMEA-TV. Only one of these stations, WMEA-TV, a noncommercial television station, is carried pursuant to must carry requirements as the station's Grade B contour encompasses the communities. The other two network stations, WCSH-TV and WMTW-TV, are apparently being carried voluntarily, as is WGME-TV. As such, our action herein does not place WGME- TV at an unfair disadvantage to the stations with which it competes. 25. In light of WBZ-TV's current viewership in all of the communities, and the potential danger to WBZ-TV's must carry status on the Strafford County system, we see no reason to interfere with the present affiliate relationship of the relevant ADIs or change the status quo of the stations involved, despite the otherwise strong showing provided by WGME-TV. WGME-TV has long been carried in the subject communities pursuant to retransmission consent agreements and there has been no indication by MediaOne that it intends to alter this arrangement. ORDERING CLAUSES 26. 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-5289-A), filed on behalf of Guy Gannett Communications, Inc., IS DENIED. 27. 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