Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) Paxson New York License, Inc. ) CSR 5360-A ) Petition for Modification of Television Market ) of Station WBPT(TV), Bridgeport, Connecticut ) MEMORANDUM OPINION AND ORDER Adopted: May 17, 1999 Released: May 20, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Paxson New York License, Inc., licensee of commercial television station WBPT(TV), Bridgeport, Connecticut, filed the captioned petition which seeks to include within the television market of WBPT(TV) certain New Haven, Hartford, Fairfield and Middlesex County, Connecticut communities. A consolidated opposition to the petition was filed by Comcast Cablevision of New Haven, Inc. and Comcast Cablevision of Clinton, Inc. (collectively "Comcast"), Community Television Systems, Inc. and United Cable Television Services Corporation (collectively "TCI-C"), and CoxCom, Inc., d/b/a Cox Communications of New England ("Cox") (collectively "the Cable Operators"). A Reply was filed by Paxson. The communities affected by this petition are listed on Appendix "A." II. 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 Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Report and Order ("Must Carry Order"), commercial television broadcast station are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market 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 station receives 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 station 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. 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 station 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 station 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 station 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. 4. The Commission provided guidance in its Must Carry Order to aid decision making in these matters, stating: 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. 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 station rather than applicable in common to all station in the market. 5. Adding communities to a station's market generally entitles that station to insist on cable carriage in those communities. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of the system's activated channel capacity to compliance with the mandatory signal carriage obligations; 2) the station is responsible for delivering a good quality signal to the principal headend of the system; and 3) the system operator is not required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried, or the signals of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry only one such duplicating signal, the operator is obliged to carry the station from the ADI whose city of license is closest to the principal headend of the cable system. Accordingly, depending upon the circumstances involved, the addition of communities to a station's market may have the following consequences. It may guarantee that station's carriage in the subject communities. Should there be more must-carry stations than one-third of the system's channel capacity, it would provide the system operator with an expanded list of must-carry signals from which to choose. Should the station be a duplicating network station, it will determine which station has priority carriage in the subject communities added. III. MARKET FACTS AND ARGUMENT 6. Paxson states that station WBPT(TV), a commercial television station operating on Channel 43, Bridgeport, Connecticut, is located in the New York, New York ADI, and that the communities it seeks to add to WBPT(TV)'s market are located in the Hartford-New Haven, Connecticut ADI. Referring to the Commission's actions in Market Modifications and the New York Area of Dominant Influence, 12 FCC Rcd 12262 (1997), Paxson asserts that WBPT(TV)'s right to mandatory carriage has been severely restricted to approximately ten percent of the New York ADI, while at the same time the station has no right of carriage in areas that lie within its over-the-air service area outside of the New York ADI and within the Hartford-New Haven ADI. Paxson submits that the Commission's application of the four statutory market modification factors that resulted in the loss of New York ADI carriage rights supports the addition of the communities at issue here. Paxson further contends that all of those communities covered by its petition lie within WBPT(TV)'s Grade B signal contour and that the addition of these communities will enable WBPT(TV) to obtain access to viewers needed to remain an economically viable and independent broadcast voice. 7. Addressing the statutory market modification factors, Paxson contends there can be no dispute that WBPT(TV) provides local over-the-air service to the targeted cable communities and submitted depictions of the station's Grade B contour as Attachment B to the petition. Paxson contends that in a number of instances the presence of Grade B service has been accepted in market modification decisions as persuasive evidence that a station provides service to communities. Paxson further asserts that WBPT(TV) provides local service through the airing of a programming format that combines program length presentations of local and national business and community organizations with local public affairs, children's, foreign language, and religious programming. Paxson contends this format provides a platform for local business, community and minority organizations to communicate with residents throughout the region. Paxson asserts that the focus of the station's programming on the greater Bridgeport, Connecticut area was among the bases for the earlier deletion of New York ADI communities from the station's market and should now support the inclusion of the Hartford- New Haven ADI communities in the station's market. Paxson also identified several episodes of a public affairs program aired weekly as examples of programming of local interest to the communities at issue. 8. The Cable Operators contend that Paxson's market modification petition should be denied because it fails to demonstrate that WBPT(TV) meets the statutory criteria set forth in Section 614(h) of the Communications Act. First, the Cable Operators point out that Paxson does not dispute that WBPT(TV) has never been carried in the communities served by their cable systems in the Hartford-New Haven ADI. The Cable Operators assert further that Paxson's mention of WBPT(TV)'s carriage in Fairfield County communities provides no credit under this first factor, because those communities are in the New York ADI and already in WBPT(TV)'s market. 9. Under the second factor, local coverage, the Cable Operators dispute Paxson's claim that WBPT(TV) provides Grade B coverage of all of the communities at issue, asserting that WBPT(TV)'s Grade B contour on file with the Commission shows that the communities at issue in Hartford County, Connecticut, clearly are either beyond or just inside WBPT(TV)'s Grade B contour, and that relevant communities in Middlesex County are just inside the Grade B contour. The Cable Operators also argue that signal strength studies taken at representative locations in the communities reveal that it is unlikely that WBPT(TV) provides a good quality off-the-air signal to individual homes in those communities. The Cable Operators contend that Paxson's petition provides little information about how WBPT(TV)'s programming is specifically tailored to the communities at issue. They argue that Paxson's contention that WBPT(TV)'s programming is not incompatible with local appeal does not mean such programming satisfies the requirement for broadcasting local programming with a special nexus to the communities. They also contend that WBPT(TV)'s weekly half- hour program titled "For the Record" mentioned by Paxson as providing coverage of local issues may be of interest to Connecticut viewers in general; that the program descriptions provided in the petition show no nexus to the communities at issue; and that such programming is de minimis at best. 10. The Cable Operators also point out that Paxson provides no evidence of any audience in either cable or non-cable households within the communities at issue. The Cable Operators presented their own study conducted by Media Strategies, which did not find any viewing for WBPT(TV) in the communities at issue. The Cable Operators list a number of stations licensed in either New Haven or Hartford as providing local programming, which they contend should not be discounted in this market modification proceeding as Paxson suggests. Rather, the Cable Operators contend that their carriage of the other local stations should not be considered as an enhancement factor for WBPT(TV), because carriage of those stations provides local coverage to the communities. The Cable Operators also note that Paxson-owned station WHPX, licensed to New London, Connecticut, is already being carried. Finally, the Cable Operators argue that despite the Commission's actions deleting New York ADI communities from WBPT(TV)'s market, WBPT(TV) is still able to reach hundreds of thousands of households as noted in the Second Circuit Opinion. Moreover, they argue that the Commission's decisions deleting communities from WBPT(TV)'s market do not of themselves justify Paxson's market expansion proposals in this case. IV. DISCUSSION AND ANALYSIS 11. Television station WBPT(TV) is licensed to Bridgeport, Connecticut, which is located in the New York ADI. Paxson, licensee of WBPT(TV), seeks to include the communities listed on Appendix "A," which are located within the Hartford-New Haven ADI, within WBPT(TV)'s market. The Cable Operators opposed the market modification request to the extent it concerns the Communities they serve. Tele-Media Corporation, Marcus Cable Partners LP, and Charter Communications, Inc., named in the petition as operators of cable systems serving other communities, have not opposed the market modification request. We resolve this matter by considering the information of record under the four statutory factors set out in Section 614(h)(i)(C)(ii). 12. With respect to the first factor, WBPT(TV) has not been carried on any of the cable systems serving the Communities at issue, although WBPT(TV) has been in operation since 1987. Nor is there any evidence that any "other station located in the same area" is carried in the Communities. 13. Paxson claims nonetheless that WBPT(TV) provides local service to the Communities. The descriptions of WBPT(TV)'s programming as including presentations of local and national business and community organizations with local public affairs, children's, foreign language, and religious programming and thus providing a platform for local business, community and minority organizations to communicate with residents throughout the region do not show that such programming is specifically directed toward the cable Communities. However, we note that the petition identified episodes of a WBPT(TV) public affairs program aired weekly as an example of programming of local interest to the Communities. Moreover, the earlier finding in Service Electric Cable TV of New Jersey Inc., et al. that WBPT(TV)'s programming has a focus on the greater Bridgeport, Connecticut area supports a finding here that such programming also has some interest to viewers in other nearby Connecticut communities in the Hartford-New Haven ADI. 14. Paxson also contends that WBPT(TV)'s local service is supported by the station's provision of Grade B service to the Communities. Neither Paxson's petition nor the Cable Operators' opposition clearly shows which communities lie within WBPT(TV)'s Grade B signal contour. However, our review of the record reveals that Avon, Bloomfield, Burlington, Canton, East Hartford, Hartford, Simsbury, West Hartford, and Windsor served by TCI-C are all in Hartford County, Connecticut, and beyond WBPT(TV)'s Grade B contour. All of the other Communities receive Grade B or better coverage from WBPT(TV). The Commission recognized in the Must Carry Order that "to show that the station provides coverage or other local service to the cable communities, parties may demonstrate that the station places at least a Grade B contour coverage over the cable community or is located close to the community in terms of mileage." Grade B contour coverage is an efficient tool to adjust market boundaries in situations where the other factors do not provide a clear basis for distinguishing market boundaries because they do not reveal whether particular communities within the larger geographic area involved are properly inside or outside of the station's market for purposes of Section 614(h). 15. Paxson made no showing either with respect to coverage of the Communities by other qualified stations, the third statutory factor, or with respect to local viewing of WBPT(TV), the fourth factor. Nor has Paxson shown any audience viewership, the fourth factor, of station WBPT(TV) in the subject communities. 16. In considering the record before us in the context of the statutory market modification factors, we find that the listed Hartford-New Haven ADI Communities should not be considered within WBPT(TV)'s market simply because in earlier actions we deleted certain New York ADI communities from the station's market. Those earlier findings have not demonstrated relevance to the issue of whether certain communities in the Hartford-New Haven ADI are served by WBPT(TV) and form part of the station's economic market. On the other hand, we have considered each statutory factor in the context of the circumstances presented here. We conclude that the requested addition of certain of the Hartford-New Haven ADI Communities within WBPT(TV)'s Grade B contour to WBPT(TV)'s market will better effectuate the must-carry statutory provisions' purpose of ensuring that the station is carried in areas which is serves and which form its economic market. We conclude that WBPT(TV)'s economic market should include the following communities: Berlin, Branford, Bristol, Farmington, East Haven, Guilford, Madison, North Branford, New Britain, North Haven Plainville, and Wallingford, served by Community Television Systems, Inc. and United Cable Television Services Corporation; Meriden, Cheshire, and Southington served by CoxCom, Inc., d/b/a Cox Communications of New England; the City of New Haven, Chester, Clinton, Deep River, Durham, Essex, Haddam, Hamden, Killington, Old Saybrook, Westbrook, and West Haven served by Comcast Cablevision of New Haven, Inc. and Comcast Cablevision of Clinton, Inc.; Bridgeport, Orange, Milford, Stratford and Woodbridge served by Cablevision Systems Development Co.; Prospect, Wolcott, Waterbury, Middlebury, and Plymouth served by Marcus Cable Partners L P; New Milford, Bridgewater, Southbury, Woodbury, Kent, Washington, and Roxbury and Bethlehem Borough served by Charter Communications, Inc.; Seymour, Shelton, Naguatuck, Oxford, Beacon Falls, Bethany, Derby and Ansonia served by Tele-Media Corporation. 17. In granting the Commission authority to modify market areas to better effectuate the purposes of Section 614, Congress manifested no intent for us to alter the basic structure of an ADI market by including its core within another ADI market, particularly where the communities lie beyond the station's normal service area. Accordingly, we decline to include within WBPT(TV)'s communities that lie beyond WBPT(TV)'s Grade B contour and near Hartford, Connecticut, one of the major core market cities within the Hartford-New Haven ADI. Thus, we do not include within WBPT(TV)'s market the following communities: Avon, Bloomfield, Burlington, Canton, East Hartford, Hartford, Simsbury, West Hartford, and Windsor served by TCI-C. We recognize that a large portion of the communities we add to WBPT(TV)'s market include New Haven and other nearby communities that make up another core of the Hartford-New Haven ADI. However, WBPT(TV)'s City Grade and Grade A coverage of New Haven and many of the nearby communities we add to WBPT(TV)'s market readily distinguishes them from communities lying beyond the station's Grade B coverage that are not added to WBPT(TV)'s market. V. ORDERING CLAUSES 18. Accordingly, IT IS ORDERED, pursuant to Section 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534(h), and Section 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief filed on behalf of Paxson New York License, Inc. in File No. CSR-5360-A IS GRANTED IN PART and the television market of television station WBPT(TV) IS MODIFIED to include the following Connecticut communities: Berlin, Branford, Bristol, Chester, Farmington, East Haven, Guilford, Madison, North Branford, New Britain, North Haven, Plainville, Wallingford, the City of New Haven, Clinton, Deep River, Durham, Essex, Haddam, Hamden, Killington, Old Saybrook, Westbrook, West Haven, Orange, Milford, Stratford, Woodbridge, Prospect, Wolcott, Waterbury, Middlebury, Plymouth, New Milford, Bridgewater, Southbury, Woodbury, Kent, Washington, Roxbury, Bethlehem Borough, Seymour, Shelton, Naguatuck, Oxford, Beacon Falls, Bethany, Derby and Ansonia. 19. IT IS FURTHER ORDERED that the petition IS DENIED IN PART AND DISMISSED IN PART and the television market of television station WBPT(TV) IS NOT MODIFIED with respect to the following Hartford County, Connecticut communities: Avon, Bloomfield, Burlington, Canton, East Hartford, Hartford, Simsbury, West Hartford, Windsor, Meriden, Cheshire, Southington, Manchester, Glastonbury, Newington, Rocky Hill, Wethersfield and South Windsor. 20. 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 APPENDIX A Hartford-New Haven ADI Communities Affected by Paxson's Petition for Special Relief File No. CSR 5360-A The Cable Operators' Consolidated Opposition identified the following communities, listed for inclusion in WBPT(TV)'s market, as being served by Community Television Systems, Inc. and United Cable Television Services Corporation, or ("TCI-C"): Avon, Berlin, Bloomfield, Branford, Bristol, Burlington, Canton, East Hartford, East Haven, Farmington, Guilford, Hartford, Madison, New Britain, North Branford, North Haven Plainville, Simsbury, Wallingford, West Hartford, and Windsor. The Cable Operators' Consolidated Opposition identified the following communities as being served by CoxCom, Inc., d/b/a Cox Communications of New England, or ("Cox"): Meriden, Cheshire, Glastonbury, Manchester, Newington, Rocky Hill, Southington, South Windsor, and Wethersfield. The Cable Operators' Consolidated Opposition identified the following communities as being served by Comcast Cablevision of New haven, Inc. and Comcast Cablevision of Clinton, Inc., or ("Comcast"): the City of New Haven, Chester, Clinton, Deep River, Durham, Essex, Haddam, Hamden, Killington, Old Saybrook, Westbrook, and West Haven. No opposition to the inclusion of the following communities within WBPT(TV)'s television market was filed. The cities of Orange and Milford and the towns of Stratford and Woodbridge are listed in the petition as served by Cablevision Systems Development Co.; Prospect, Wolcott, Waterbury, Middlebury, and Plymouth are listed as served by Marcus Cable Partners L P; New Milford, Bridgewater, Southbury, Woodbury, Kent, Washington, and Roxbury and Bethlehem Borough are listed as served by Charter Communications, Inc.; the towns of Seymour, Shelton, Naguatuck, Oxford, Beacon Falls and Bethany, and the cities of Derby and Ansonia are listed as served by Tele-Media Corporation.