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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: ) ) Harron Communications Corp. ) CSR-5325-A ) For Modification of the Portland-) Poland Spring, Maine ADI Market ) MEMORANDUM OPINION AND ORDER Adopted: March 30, 1999 Released: April 2, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Harron Communications Corp., licensee of Station WMTW-TV (ABC, Ch. 8), Poland Spring, Maine, has filed the above-captioned petition which seeks to include 19 communities located in Strafford, Merrimack and Hillsborough Counties, New Hampshire, within the Area of Dominant Influence ("ADI") of WMTW-TV. Oppositions to this request have been filed on behalf of MediaOne of New England, Inc., the cable operator serving the subject communities, and WMUR-TV, Inc., licensee of Station WMUR-TV (ABC, Ch. 9), Manchester, New Hampshire. WMTW-TV filed a consolidated reply to these oppositions. II. 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 Must Carry Order, 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. III. THE PLEADINGS 7. WMTW-TV is located within the Portland-Poland Spring, Maine ADI. The counties of Strafford, Merrimack and Hillsborough, New Hampshire are located within the Boston, Massachusetts ADI. 8. In support of its request, WMTW-TV states that the must carry rules enacted by Congress in the 1992 Cable Act ensure the preservation of the "vital local service" provided by television broadcasting, and were intended "to ensure that television stations be carried in the areas which they service and which form their economic market." In this instance, WMTW-TV asserts that an analysis of the statutory factors demonstrates that its market should be modified to include the requested communities. 9. First, WMTW-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 and has been for anywhere from 10 to 20 years depending on the community. WMTW-TV argues that such long-term voluntary carriage demonstrates that the cable operator considered it to be a local signal and provides convincing support for the instant request. WMTW-TV points out that other Portland ADI stations have also been historically carried in the communities. WMTW-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 WMTW-TV's city of license. 10. Second, WMTW-TV indicates that all of the instant communities are either located within WMTW-TV's Grade B contour or on the fringe. WMTW-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. 11. Third, WMTW-TV states that it airs public affairs programming which is specifically targeted to the communities. WMTW-TV indicates that its news story coverage involves major criminal trials, labor issues, environmental issues and features stories as well as weather forecasts and election coverage. WMTW- TV states that it features two 30-second Community Event Calendar spots, on average highlights 2-4 events each month taking place in southern New Hampshire, participates in community fund-raisers, and awards a journalism scholarship to one recipient each year. WMTW-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." 12. WMTW-TV states that since its recent removal from the cable system serving many of the instant communities, it has received numerous letters from viewers complaining about the change and asking what can be done to restore the station to their channel line-up. WMTW-TV maintains that its commitment to the instant communities is evidenced by its inclusion in many New Hampshire newspapers including the Eagle Times in Claremont, The Sunday Monitor in Concord, the Mountain Ear in Conway, The Keane Sentinel, and The Northern Beacon in Lancaster, the Channel Scanner in Lincoln, The Union Leader in Manchester, The Daily Sun in North Conway, The Clock in Plymouth, Foster's Daily Democrat in Dover, The Citizen in Laconia, the Courier in Littleton, and the Valley Times Journal in Walpole. In addition, the New Hampshire edition of TV Guide features WMTW-TV's programming. 13. In its opposition, MediaOne argues that WMTW-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 it would make little sense to grant WMTW-TV must carry rights in the requested communities because the cable system already carries two other ABC affiliates which are significantly closer than WMTW-TV. MediaOne points out that although WMTW-TV claimed that it was currently carried in each of the cable communities, the station's carriage was discontinued on September 29, 1998 in the communities of Dover, Madbury, Somersworth and Rollinsford. In any event, MediaOne argues that the fact that WMTW-TV was previously carried or is currently carried voluntarily in the communities at issue does not justify conferring the station must carry rights. Moreover, MediaOne states that WMTW-TV's suggestion that it will be placed at a competitive disadvantage with the other two Portland market stations, WCSH-TV and WGME-TV, if not granted must carry rights, does not take into account the Bureau's recent decision which rejected similar arguments advanced by WGME-TV. Indeed, MediaOne maintains, granting WMTW- TV's request would create a competitive disadvantage to its Portland market competitors. 14. MediaOne states that WMTW-TV also 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 as a last resort to prevent the contraction of a station's market, it does not typically rely solely on the Grade B to expand a market. MediaOne points out that WMTW-TV's own Grade B contour map indicates that 10 of the 17 requested communities fall outside of the station's Grade B contour. In addition, MediaOne states that Poland Spring, WMTW-TV's city of license, is geographically distant from the cable communities at an average distance of 78 miles. MediaOne argues that this distance easily exceeds distances in previous Bureau decisions which justified exclusion of communities from a station's market. 15. MediaOne points out that WMTW-TV also does not provide evidence of programming specifically tailored to the instant communities. MediaOne states that WMTW-TV is an ABC network affiliate and thus broadcasts ABC 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 ABC affiliates, WMUR-TV and WCVB-TV. While WMTW-TV asserts that it provides "locally-oriented" programming, MediaOne argues that many of the news stories and program information listed in WMTW-TV's petition 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 WMTW-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. Further, MediaOne states that WMTW-TV's reliance on its significantly viewed status in Merrimack County is undermined by the fact that both of the Boston ADI ABC stations are also significantly viewed in that county, as well as the counties of Hillsborough and Strafford. 16. MediaOne states further that WMTW-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 WMTW-TV completely ignores the fact that the cable communities all receive WMUR-TV, a Grade A station licensed to Manchester, New Hampshire, less than 22 miles from the communities. 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. 17. Finally, MediaOne argues that WMTW-TV fails to provide any evidence regarding audience viewership of its station in either the cable or non-cable households in the requested communities. In a study conducted by Media Strategies, MediaOne states that no ratings were found for WMTW-TV in Hillsborough County unlike WMUR-TV and WCVB-TV which have significant viewership. Moreover, although WMTW- TV does show viewership in Merrimack and Strafford Counties, MediaOne argues that it is easily eclipsed by that of the Boston ABC affiliate, WMUR-TV, in all dayparts. MediaOne concludes that it is not required to carry more than one local commercial station affiliated with a particular network. In this instance, the cities of license of WMUR-TV and WCVB-TV are both located within the Boston ADI and are geographically closer than is the city of license of WMTW-TV. 18. In its opposition, WMUR-TV argues that it has a unique tie and responsibility to the state of New Hampshire and its citizens. It points out that it is the only commercial VHF station licensed to New Hampshire, the only affiliate of a major network and the first station to bring digital television to the state. It maintains that it is aggressively committed to its coverage of New Hampshire news and has a news staff of 63 full-time people. Because its signal, in combination with translator stations, broadcasts over-the-air to the entire state, WMUR-TV states that it provides 71 hours of news per week with a third of each half hour dedicated to New Hampshire news. WMUR-TV argues that grant of WMTW-TV's petition not only would jeopardize WMUR-TV's own ability to meet its special obligations in its home state, but would rob it of core communities well within its predicted Grade A contour and disrupt the relationship of two ABC affiliates located in adjacent ADIs. 19. WMUR-TV states that WMTW-TV makes an insufficient showing under the four modification criteria to justify grant of its request. WMUR-TV states that WMTW-TV's claim of historic carriage is internally inconsistent because it initially claimed current carriage and then stated it had recently been removed. In addition, WMUR-TV points out that although WMTW-TV claimed to have "been carried for more than 15 years in each of Communities where cable service has been available for 15 years," a review of the 1995-1998 Television & Cable Factbooks reveals that WMTW-TV has not been carried in five of the 17 communities since at least 1994. In any event, WMUR-TV states that in instances where affiliates of the same network in adjacent ADIs have both been historically carried, the factor relating to historic carriage is not significant to the ultimate decision as to modification because Section 76.56(b)(4)(ii) of the rules requires a cable system to carry only the local network affiliate closest to its principal headend. WMUR-TV argues, therefore, the fact that WMTW-TV, or indeed any of the other Portland ADI stations, may have been historically carried in the communities does not support its requested relief. 20. WMUR-TV argues that WMTW-TV's showing of local programming falls short as it appears to contain news stories of a general regional interest and nothing specifically tailored to the instant communities and is unsubstantiated by the submission of program or news logs. Further, WMUR-TV points out that WMTW-TV's predicted Grade B contour does not cover all of the requested communities. Five are completely outside by a distance of 4-10 miles from the contour edge, and 7 are on the "fringe" lying only partially within the contour. Of the 5 remaining communities that do lie within WMTW-TV's Grade B, WMUR-TV stresses that the Bureau should compare the relative signal strengths of WMTW-TV and WMUR-TV in these communities before making an ultimate decision. WMUR-TV also indicates that the communities herein are on average 78.6 miles from WMTW-TV's city of license and an average of 75.9 miles from the station's transmitter site. WMUR-TV argues that Commission precedent strongly suggests that WMTW-TV's geographic distance weighs heavily against a grant of its request. 21. WMUR-TV points out that WMTW-TV provides absolutely no viewership data for the communities at issue except to state in passing that it is deemed to be significantly viewed in one of the three counties where the communities are located. WMUR-TV argues that WMTW-TV's failure is not surprising as WMTW-TV has either non-existent or low ratings in each of the three relevant counties. For instance, WMUR-TV states that the Nielsen ratings indicate that WMTW-TV achieves no measurable viewership in Hillsborough County, and the minimal ratings it garners in Merrimack and Strafford Counties falls far short of the ratings WMUR-TV achieves in all three counties. Such high ratings, maintains WMUR-TV, demonstrate that viewers in the New Hampshire communities do not look to WMTW-TV for their local news and information programming. 22. Finally, WMUR-TV argues that grant of WMTW-TV's petition would alter the basic structure of the Boston ADI by encroaching on WMUR-TV's core communities, something that neither Congress nor the Commission envisioned. WMUR-TV maintains that by allowing WMTW-TV, located over 70 miles away, to expand its ADI into the core of WMUR-TV's coverage area would fundamentally disrupt the basic market structure and competitive relationships of broadcasting in southern New Hampshire. Further, WMUR- TV argues that the Bureau has also refused to "unduly upset the economic marketplace expectations underlying the affiliation concept." WMUR-TV states that the same concerns apply here and that grant of WMTW-TV's petition would jeopardize WMUR-TV's right to cable carriage in its core service area, all to the benefit of an adjacent market ABC affiliate. While WMUR-TV states that it believes that its city of license is geographically closer than that of WMTW-TV to MediaOne's principal headend, grant of the instant request could subject WMUR-TV's carriage rights to the vagaries of the cable operator's designation of its principal headend. 23. In a consolidated reply, WMTW-TV argues that while WMUR-TV and MediaOne rely heavily on the Bureau's decision in Guy Gannett as justification for not granting the instant request, that decision is distinguishable from WMTW-TV's case and the reasoning herein actually supports grant of WMTW-TV's petition. WMTW-TV points out that the Bureau's denial of WGME-TV's request in Guy Gannett rested largely on the concern that a favorable decision would grant WGME-TV must carry rights superior to those of the Boston CBS affiliate, WBZ-TV, because Portland is closer to MediaOne's systems than is Boston. In the case herein, WMTW-TV states that its city of license, Poland Spring, is further from the cable communities than either Boston and Manchester, the cities of license of the Boston ABC affiliates and, therefore, the requested relief would have no adverse effect on the Boston ADI affiliates. Second, unlike the WGME-TV case where the cable system in question was carrying all of the Portland market stations, including WGME-TV, WMTW-TV indicates that MediaOne dropped carriage of its signal in the subject communities as of September 29, 1998. Therefore, it maintains, the Bureau cannot rely on MediaOne's equal treatment of the Portland market stations. Indeed, because of the disparate treatment of WMTW-TV by MediaOne, WMTW-TV asserts that it is clear that grant of its request would help restore WMTW-TV's status quo among its Portland market competitors. 24. WMTW-TV reiterates that it amply satisfies the local service criteria by providing local coverage of news, sporting events, politics, weather, emergency information and local interest stories. Moreover, WMTW-TV states that the detailed map it submitted in its petition clearly shows that the instant communities are either inside or just outside of the station's Grade B contour. WMTW-TV points out that it has a pending application to relocate its transmitter site that would, once granted, result in Grade B coverage to all but three of the cable communities and decrease the geographic distances from 66-84 miles to 41-76 miles. WMTW-TV argues that it has always considered the cable communities herein to be part of its local service area and this is evidenced by the public outcry when its signal was dropped by MediaOne. Further, WMTW-TV maintains that the local viewing patterns supplied by MediaOne and WMUR-TV are misleading. If anything, states WMTW-TV, its viewership in noncable homes was considerably stronger than its viewership in cable homes and is attributable to WMTW-TV being dropped from MediaOne's system prior to Nielsen's November sweeps period. Finally, WMTW-TV asserts that grant of its petition would not harm WMUR-TV's standing in its own market. WMTW-TV points out that it has been carried for more than a decade in all of the cable communities in question without undermining WMUR-TV's ability to do business. IV. DISCUSSION 25. The counties of Strafford, Merrimack and Hillsborough, 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 WMTW-TV is licensed. In our review of the case herein, the factors presented by WMTW-TV would argue for grant of its request. WMTW-TV has had a long history of carriage in the communities at issue (factor I); provides partial Grade B coverage and specifically-directed programming to the communities (factor II); and has reasonable viewership in Strafford and Hillsborough Counties (factor IV). Other factors inherent in this situation, however, support a denial of the requested modification and are ultimately more persuasive. 26. In the present case, WMTW-TV, an ABC network affiliate, is seeking to modify its market to include 17 communities located in the Boston ADI. These communities are served by the Boston market ABC affiliates, WCVB-TV and WMUR-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 WMTW-TV will have on WCVB-TV and WMUR-TV. 27. Our review of the case reveals several important factors. Both WMTW-TV and WCVB-TV provide approximately equal Grade B coverage of the communities at issue. WMUR-TV, on the other hand, provides Grade A coverage. According to the most recently available Commission records, the subject communities are served by three separate physical systems operated by MediaOne -- one system serving the communities in Strafford County, one the communities in Merrimack County, and the other the communities in Hillsborough County. WCVB-TV, the Boston ABC affiliate serving the communities, achieves substantial viewership levels of 8/61, 11/67 and 4/39 in Strafford, Merrimack and Hillsborough Counties, respectively, and is also considered to be significantly viewed in all three counties. WMUR-TV, the Manchester ABC affiliate, achieves viewership levels of 12/63, 14/66 and 21/76 and is also significantly viewed in all three counties. In comparison, WMTW-TV only achieves viewership levels of 4/37 in Strafford County, 2/26 in Hillsborough County, and no reported viewership at all for Merrimack County. WMTW-TV is considered to be significantly viewed in Merrimack and Strafford Counties. These viewership levels show a marked preference for WCVB-TV and, particularly, WMUR-TV in the subject communities. Further, while WMTW- TV has shown that it provides locally-focused programming to the communities, it has not provided any information to conclude that WCVB-TV and WMUR-TV, or indeed any other Boston ADI station eligible to be carried, fails to provide adequate news coverage or other local programming. 28. In light of WCVB-TV's and WMUR-TV's current viewership in all of the communities, 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 WMTW-TV. V. ORDERING CLAUSES 29. Accordingly, IT IS ORDERED, pursuant to Section 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-5325-A), filed on behalf of Harron Communications Corp., IS DENIED. 30. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson, Deputy Chief Cable Services Bureau