Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) CSR-5361-A Adelphia Cablevision Associates, L.P.) ) For Modification of the ADI of ) WMFP(TV), Lawrence, Massachusetts,) MEMORANDUM OPINION AND ORDER Adopted: May 14, 1999 Released: May 19, 1999 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Adelphia Cablevision Associates, L.P. ("Adelphia") has filed with the Commission, pursuant to Sections 76.7(a)(1) and 76.59(a) of the Commission's rules, a petition requesting modification of the television markets of television station WMFP-TV, Channel 62, Lawrence, Massachusetts ("WMFP"), for purposes of the cable television mandatory carriage rules. Adelphia requests that Falmouth, Massachusetts be deleted from the television markets of WMFP. MFP, Inc. ("MFP"), licensee of WMFP, filed an opposition, and Adelphia filed a reply. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), and implementing rules adopted by the Commission in its Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Report and Order in MM Docket 92-259 ("Must Carry Order"), commercial television broadcast stations are 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. The Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) further 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, Section 614(h)(1)(C)(ii) 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 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 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. As for deletions of communities from a station's ADI, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. In adopting rules to implement this provision, the Commission indicated that changes requested 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. MARKET FACTS AND ARGUMENT 7. Lawrence, Massachusetts, the community of license of WMFP and Adelphia's Falmouth, Massachusetts cable television system are located in the Boston ADI. Lawrence is situated northwest of Boston, and Falmouth is located on Cape Cod in Barnstable County, southeast of Boston. Lawrence and Falmouth are eighty-two miles apart. 8. Adelphia argues that it would be contrary to the goals of Section 614 of the 1992 Cable Act to afford WMFP must carry status on Adelphia's cable system serving Falmouth. With regard to historic carriage, Adelphia states that WMFP has never been carried on its cable television system. In addition, Adelphia carries no other television station licensed to a community within an approximate 20 mile radius of Lawrence. Adelphia contends that it is not singling out WMFP for non-carriage from among other similarly situated stations, nor is it engaging in a pattern of discriminatory conduct against the station. Furthermore, Adelphia argues that WMFP has no historical carriage on cable systems serving Barnstable County, where its Falmouth system is located. 9. As for local coverage, Adelphia states that Falmouth is more than 20 miles outside of the WMFP's predicted Grade B contour. In addition, Adelphia notes that Lawrence, the station's city of license, is eighty-two miles from the cable community and that this distance equals or exceeds numerous prior decisions where the Commission has granted cable operators' requests to delete communities from a station's ADI. Further, Adelphia contends that Lawrence is separated from Falmouth by two bodies of water, Buzzard's Bay and Boston Harbour, and that Cape Cod has an identity distinct from Boston, let alone Lawrence. Adelphia states that Falmouth is located close to Rhode Island, and carries four television stations from nearby Providence, Rhode Island, of which three are listed as "significantly viewed" in Barnstable County. In contrast, Adelphia states that Lawrence is located northwest of Boston, near the New Hampshire border, with the City of Boston located in between the two communities. Adelphia concludes that the geographic facts provide evidence that no nexus exists between Lawrence and Falmouth. Furthermore, Adelphia states that it was unable to identify any local programming directed at Falmouth, and that WMFP's weekly programming consists of general interest programming, including infomericals, home shopping and religious programming. Adelphia contends that it is not the station's overall format which fails to make a local connection with Falmouth, but rather, the station's lack of any local news, sports or community interest programming geared toward Falmouth or any other specific community which renders the station distant for ADI modification purposes. Adelphia also states that the local newspaper serving the Falmouth does not even list WMFP. 10. Moreover, when a cable operator is seeking to delete a station from its system and the station is not providing local service, Adelphia asserts that the Commission attributes greater significance to the system's carriage of local stations serving the community. Adelphia states that it carries eight Boston stations, as well as four stations from Providence and a station from Vineyard Haven, located on nearby Martha's Vineyard, and that these stations provide substantial local programming directed towards Falmouth. Adelphia states that these stations broadcast a significant amount of local interest programming to Falmouth residents, including local news, community affairs and sports programming. Finally, Adelphia argues that WMFP has no significant viewership in Falmouth, or surrounding Barnstable County. 11. In its opposition, MFP asserts that Adelphia has failed to demonstrate that modification of WMFP's must carry market is justified. MFP contends that Adelphia has mischaracterized the station, in that the station's transmitter is located in Boston, and that the station serves Boston and the surrounding areas. In addition, MFP argues that Adelphia currently carries seven Boston stations on its system, with similar signal contours, and that Lawrence, the station's city of license, is part of the hyphenated Boston-Cambridge- Worcester-Lawrence television market. MFP concludes that the station competes with, and is similarly situated with the other Boston stations carried on Adelphia's system. 12. MFP contends that Adelphia is attempting to single out WMFP from the other Boston area stations, and that the Commission has held in the past that cable operators cannot discriminate against individual broadcast stations. MFP argues that because of Adelphia's discriminatory approach, the Commission should not weigh the four statutory factors as it would in a matter without such discrimination. In addition, MFP contends that the distance of 61 miles between downtown Boston and Falmouth is essentially the same distance as the other Boston area stations carried on the system. 13. In reply, Adelphia argues that WMFP's Boston transmitter location does not transform the station into a Boston television station, and that the station is licensed to Lawrence and required by the Commission to serve the latter community. Accordingly, Adelphia argues that the relevant distance and geographic attenuation between WMFP and the cable system is between Lawrence and Falmouth, not between Boston and Falmouth. Adelphia also argues that the stations carried on the system provide a plethora of local news, sports and community affairs relevant to Falmouth residents, in contrast to the lack of such programming on WMFP. Accordingly, Adelphia concludes that WMFP is not "similarly situated" to the Boston stations carried on its system. Additionally, Adelphia contends that it cannot be said to discriminate against the station, since the system does not carry any other station licenced to Lawrence, or to any community within a 20 mile radius of Lawrence. DISCUSSION 14. Based on the four statutory and other relevant factors, Adelphia's petition will be granted. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they service and which form their economic market." Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements. The ADI market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that the operator's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Adelphia's actions do not clearly reflect an intention to skirt its signal carriage responsibilities under the 1992 Cable Act and the Commission's rules nor do they evidence a pattern of discriminatory conduct against the station subject to deletion. Based on the geography and the statutory factors, we believe that the Falmouth, Massachusetts system is sufficiently removed from WMFP that it ought not be deemed part of the station's market for mandatory carriage purposes. The evidence before us, which we believe has not been sufficiently disputed by MFP, distinguishes Falmouth, Massachusetts from Lawrence, Massachusetts and persuades us that the action requested would "better effectuate purposes" of Section 614 of the l992 Cable Act. We believe Congress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly reviewed and rectified. 15. At the outset, the evidence conclusively suggests that WMFP does not provide local service to Falmouth. WMFP does not place either a Grade A or Grade B contour over the cable community. In addition, we do not believe that WMFP carries any programming of specific local interest or import for cable viewers in Falmouth to fulfill the statutory factor. The station also has no reported audience in Falmouth or surrounding Barnstable County and it has no history of carriage. Moreover, Lawrence, Massachusetts, WMFP's community of license, is 82 miles across Buzzards Bay, Boston Harbor, and the Boston metropolitan area from the relevant cable community. The distance and geographic situation involved attenuates the local ties the station might have to the cable community and helps explain why the station's viewership is too low to be reported. 16. We also believe that Adelphia's carriage of other local television stations provides support for the action requested. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, and it is clear that the station is not providing local programming to those communities, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. We believe this case is exemplary in that there are an abundance of television stations carried by Adelphia's system which have a closer nexus to Falmouth and provide local programming, which WMFP does not. 17. Adelphia also demonstrates that WMFP has no historical carriage on the cable system in question and has no audience in the county in which the cable system is located. Because WMFP is a specialized format station, these facts are not determinative, in and of themselves, of the relationship between the cable community and the market of the television station, nor should their absence permit a cable operator to undermine the objectives of the mandatory carriage requirement. Here, however, we conclude that the lack of historical carriage and the dearth of audience is of evidential significance when linked with other information regarding the market, lack of Grade B coverage, and the particular distances involved. In these circumstances, we cannot discount WMFP's carriage and audience as indicators of the scope of its market area. 18. The factors specified in Section 614(h)(1)(C)(ii) of the Communications Act do not purport to be exclusive and thus other evidence may be considered that is helpful in defining the scope of the markets of the stations involved. Another consideration argued to be relevant to this proceeding is the Commission's consideration of the scope of the Boston-Cambridge-Worcester-Lawrence, Massachusetts market in the context of a market hyphenation rulemaking proceeding. Market hyphenation proceedings, undertaken pursuant to Section 614(f) of the Communications Act, and ADI market modification proceedings, undertaken pursuant to Section 614(h)(1)(C)(ii) of the Act, although not identical in purpose nevertheless involve some overlap of objectives and decisional criteria and the Commission's decision to join markets takes into consideration the economic ties between the communities to be hyphenated and the subject stations. The hyphenation of these communities reflects a judgment that stations in the respective communities are competitive. The hyphenation decision is thus suggestive evidence of the belief, notwithstanding the distances between the communities, that stations from the communities are local to significant overlapping portions of the same market area. However, the hyphenation is not controlling in every circumstance. The "[r]edesignation of the market reflects in the rules the general competitive situation that in fact exists in the local area, allowing the application of the more specific rules, including those relating to `area of dominant influence' changes, to be addressed from the perspective of a properly defined market area." Here, the issue is not whether stations in Lawrence and Boston are competitive, but whether the Lawrence station's market properly includes communities on the opposite side of Boston. Thus, for present purposes, the hyphenation decision appears to add little to the market modification decision making process. 19. Given these facts, the operator's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. We therefore grant Adelphia's petition for modification. ORDERING CLAUSES 20. 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 "Petition for Special Relief" (CSR-5361-A) filed January 12, l999 by Adelphia Cablevision Associates, L.P. IS GRANTED. 21. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau