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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: ) ) CSR-5371-A MEDIAONE OF OHIO, INC. ) ) For Modification of the ADI Market) of Station WOAC, Channel 67 ) Canton, Ohio ) ) Petition for Special Relief ) MEMORANDUM OPINION AND ORDER Adopted: June 11, 1999 Released: June 14, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. MediaOne of Ohio, Inc. ("MediaOne"), has filed with the Commission, pursuant to Sections 76.7 and 76.59 of the Commission's rules, a petition requesting modification of the television market of television broadcast station WOAC, Channel 67, Canton, Ohio ("WOAC"), for purposes of the cable television mandatory broadcast signal carriage rules. Specifically, MediaOne requests that the television market of WOAC be modified to exclude the communities served by MediaOne's Elyria, Mentor, and Peru, Ohio cable systems. SAH Acquisition Corp. II, licensee of WOAC, filed an opposition to which MediaOne replied. II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the 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. 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. 6. As for deletions of communities from a station's market, 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. 7. 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 1992 Cable Act, that a station not be deleted from carriage during the pendency of an ADI change request. III. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. WOAC and each of the cable communities at issue are located within the Cleveland ADI. MediaOne states that WOAC, since it commenced operations, has never been carried on its cable systems and, thus, has no history of carriage within the cable communities at issue. MediaOne further states that WOAC's Grade B contour fails to cover any of the communities served by MediaOne's cable systems in Erie, Huron, Richland, Seneca, or Sandusky Counties, where 43 of the 65 communities at issue are located. MediaOne maintains that the 22 remaining communities at issue fall either outside or just inside the edge of the Grade B contour. In addition, MediaOne states that the distances between Canton, WOAC's city of license, and the communities at issue range from approximately 48 miles to nearly 100 miles. MediaOne argues that these distances exceed those found to justify past market modification requests. MediaOne conducted signal strength tests of WOAC's signal at Mediaone's Mentor, Elyria, and Peru headends, and argues that, based on those tests, it is highly unlikely that WOAC provides an adequate off-air signal to any of the individual households located in the communities at issue. 9. MediaOne argues that it has been unable to identify any local programming provided by WOAC to the relevant communities. MediaOne maintains that WOAC's programming consists almost entirely of home shopping that is not targeted to any particular community. MediaOne states that WOAC's programming is not listed in the local television programming guides or in the Northern Ohio edition of TV Guide. MediaOne further states that it carries a number of broadcast television stations which provide Grade B contour coverage to the communities, an off-air signal, and extensive coverage of local news and sporting events. With regard to local viewing, MediaOne argues that WOAC has no significant viewership in the communities largely because of the station's inability to deliver a Grade B signal or an off-air signal to the communities at issue. MediaOne thus concludes that WOAC fails to meet any of the four statutory criteria for mandatory carriage in the cable communities at issue. 10. In opposition, WOAC states that the Commission has affirmed its must-carry rights throughout MediaOne's Elyria and Mentor cable systems. With regard to MediaOne's Peru cable system, WOAC concedes that the communities served by that system are "substantially beyond the station's Grade B contour." WOAC argues that MediaOne's failure to carry WOAC's signal in the past has no bearing on the station's must-carry rights. WOAC states that, as evidence of its nexus to the communities, its signal is carried on cable systems that are nearby or adjacent to MediaOne's Elyria and Mentor systems. Specifically, WOAC states that it is carried on cable systems serving Chardon and Thompson, Ohio which are adjacent to MediaOne's Mentor cable system and on systems serving Lorain and Vermilion, Ohio, which are adjacent to MediaOne's Elyria cable system. With regard to coverage or other local service, WOAC argues that MediaOne has inaccurately portrayed the contours of WOAC's Grade B contour. In fact, WOAC states that the Commission has previously refused to exclude from WOAC's television market certain communities which are adjacent to MediaOne's Elyria and Mentor cable systems because they lie within WOAC's Grade B signal contour or within its fringe. WOAC argues that, in this case, all of the communities served by MediaOne's Elyria and Mentor cable systems lie within or on the fringe of WOAC's Grade B contour. Moreover, WOAC argues that MediaOne's assertion that WOAC is not available off-air is based upon one signal test the results of which the Commission has previously rejected as untrustworthy. WOAC states that the Commission concluded that the signal test cited in this proceeding failed to comply with sound engineering practices. 11. With regard to other local service, WOAC maintains that, while the vast majority of its programming is a home shopping format, it airs local affairs and children's programming including a weekly local public affairs program, "Dialogue," which allows community leaders and representatives of civic groups to discuss significant issues affecting the residents of the Cleveland ADI. WOAC states that "Dialogue" has interviewed representatives of local organizations including the Urban League of Cleveland, Victim Resource Center, Laurelwood Hospital, Ohio Ballet, Cuyahoga Valley Association, NCA Financial Planners, among others. WOAC also states that it airs three hours weekly of advertiser-restricted children's programming. WOAC states that, with regard to television guide and newspaper listings, the fact that Cleveland-area publications do not list the station is not an indication that the station is not local but has more to do with its predominate format, i.e., a home shopping format which is less dependent on these types of listings. 12. WOAC maintains that, with regard to other local programming, MediaOne carries WOAC's VHF competitors who, like WOAC, broadcast from sites at or near the center of the Cleveland ADI. This fact, WOAC argues, weighs in favor of its position that the communities at issue are part of WOAC's television market. WOAC suggests that MediaOne's carriage of other home shopping networks such as QVC, the Home Shopping Network, and two channels showing infomercials may indicate that its real objection to WOAC is competitive in nature. 13. With regard to viewing patterns, WOAC maintains that it collects zip code information from its Shop at Home service which shows that the station is viewable in the communities at issue. WOAC states that, in communities served by MediaOne's Elyria and Mentor systems, Shop at Home has received an average of 75.5 calls from viewers in Mentor, Ohio, resulting in average sales of $15,968.69 and an average of 26.3 calls from viewers in Elyria, Ohio, resulting in average sales of $5,591.64. WOAC argues that its viewership must be more extensive than indicated by the product sales because only a portion of WOAC's viewers make product purchases. 14. MediaOne replies that WOAC does not contest its request to delete from WOAC's television market the 43 communities served by MediaOne's Peru system. With regard to the remaining 22 communities served by MediaOne's Elyria and Mentor cable systems, MediaOne maintains that WOAC has no local nexus with those communities. MediaOne reiterates that WOAC does not provide local programming to those communities and is unlikely to provide a quality off-air signal. MediaOne states that the signal tests relied upon in its petition comply with the Commission requirements for signal testing. With regard to WOAC's Grade B coverage, MediaOne discounts WOAC's assertion that the communities served by MediaOne's Elyria and Mentor systems lie either outside or just within WOAC's Grade B contour. With regard to viewership, MediaOne states that WOAC's telephone call data represent 0.05 percent of Elyria's 56,746 residents and 0.16 percent of Mentor's 47,358 residents. IV. DISCUSSION 15. We grant, in part, and deny, in part MediaOne's request to modify the television market of WOAC. As an initial matter, we note that in 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 balancing all of the relevant factual circumstances in the record, we grant MediaOne's request to exclude the 43 communities served by its Peru cable system and we deny MediaOne's request to exclude the remaining 22 communities served by its Elyria and Mentor cable systems. With regard to communities served by MediaOne's Peru system, WOAC concedes that it fails to place a Grade B contour over those communities and WOAC also fails to introduce other evidence to meet any of the remaining statutory criteria. We evaluate MediaOne's request to exclude communities served by its Elyria and Mentor systems in the context of evidence introduced in the record in light of the four statutory factors. 16. With regard to the first factor, WOAC has no history of carriage in the communities served by MediaOne's Elyria and Mentor cable systems despite the fact that WOAC began operations in 1982. WOAC asserts that its lack of historical carriage should be given little weight in this proceeding because MediaOne has engaged in delaying tactics to deny WOAC's must-carry rights. WOAC also argues that this factor should be weighed against the fact that the television station is carried on cable systems which are nearby MediaOne's Elyria and Mentor systems. The fact that WOAC has been operating since 1982 without carriage on MediaOne's cable systems serving the communities at issue weighs in favor of MediaOne's request to exclude those communities from WOAC's market. The Commission has stated, however, that historic carriage of television stations in the same area is a factor to be considered because carriage of other television stations may indicate a belief that a common market exists between the station involved and the cable communities at issue. In this case, WOAC states that MediaOne carries its VHF competitors serving the Cleveland ADI. MediaOne's channel line-ups show that it carries television stations WKYC-3 (NBC), WUAB-43 (UPN), WEWS-5 (ABC), WOIO-19 (CBS), and WJW-8 (FOX). WOAC maintains that because its transmitter is located 15 miles north of Canton, Ohio in the central-eastern portion of the Cleveland ADI, its Grade B coverage contours are comparable to, although covering less territory than, the contours of the other television stations carried by MediaOne. 17. Carriage on nearby cable systems is not a factor enumerated in the statute, but it also seems reasonable, depending upon the specific circumstances involved, that carriage on nearby systems could serve as evidence to define the logical scope of a station's market. Such carriage could also serve to demonstrate market nexus between the broadcast station and the communities where the station is carried and thus provide evidence of the scope of the station's market. WOAC maintains that it is currently carried on systems serving Chardon and Thompson, Ohio -communities which are located adjacent to MediaOne's Mentor system and that, pursuant to a Commission order, it will soon be carried on Adelphia Cablevision's systems serving Lorain and Vermilion which are nearby MediaOne's Elyria system. While MediaOne concedes that "carriage in Chardon and Thompson approaches some of the [its] Mentor system communities," it also maintains that the Mentor system is "generally beyond such current carriage of WOAC." With regard to WOAC's carriage on cable systems serving Chardon and Thompson, MediaOne argues that its Elyria system is located in Lorain County which is "more than 40 miles away from either Chardon and Thompson." 18. Local service, statutory factor two, incorporates both technical service and programming service. With regard to technical service, the Commission has stated in its 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 coverage contour over the cable community or is located close to the community in terms of mileage. We focus here more heavily on technical service as evidenced by WOAC's Grade B coverage contour to provide evidence of the market boundaries of the television station. The record shows that the communities served by MediaOne's Elyria and Mentor systems lie within the fringe of WOAC's predicted Grade B contour. In Cablevision of Cleveland, L.P. and V Cable, Inc. ("Cablevision of Cleveland"), the Commission declined to exclude from WOAC's market certain communities which were located within the fringe of the television station's Grade B contour. 19. The third statutory factor, whether other stations eligible to be carried serve the relevant cable communities, is given greater weight where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities and it is clear that the station is not providing local service to those communities. In this instance, MediaOne argues that it provides carriage to numerous stations that provide local service to subscribers in the cable communities at issue. WOAC maintains that this factor should be given little weight in this proceeding. We find that WOAC has provided evidence of its local service through its Grade B contour coverage and its fringe. 20. With regard to viewing patterns, statutory factor four, MediaOne has presented evidence to show that WOAC has no significant viewership in the cable communities at issue. In Cablevision of Cleveland, the Commission noted that WOAC's programming format consists largely of home shopping and that these types of specialty stations typically attract limited audiences. Thus, the weight of this factor is mitigated by WOAC's programming format. 21. We have carefully considered each statutory factor and other relevant factors in the context of the circumstances presented here. We are under no obligation to give particular weight to any one of the several factors under consideration. However, given the difficulties of relying exclusively on the statutory factors of historical carriage and viewing patterns, which could severely narrow the carriage rights of stations even within what is their local market area, we find it necessary to focus more heavily on factors other than one and four, i.e., those that are not influenced by the type or age of the stations involved or historical carriage. We have, however, considered WOAC's carriage on cable systems nearby MediaOne's Mentor system. We have also taken into consideration MediaOne's carriage of several television stations licensed to Cleveland and two stations licensed to Akron, Ohio, a city which is less than 10 miles from WOAC. In this case, we find that the cable communities served by MediaOne's Elyria and Mentor systems lie within the fringe of WOAC's Grade B contour. Considering the record as a whole, we find that MediaOne has failed to demonstrate that the requested exclusion of the communities served by its Elyria and Mentor cable systems from the television market of WOAC will better effectuate the purposes of the must-carry statutory provisions. With regard to the communities served by MediaOne's Peru system, we find that MediaOne has demonstrated that those communities are not part of WOAC's television market. Accordingly, we grant MediaOne's request to exclude those communities from WOAC's television market. 22. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended, 47 U.S.C.  534, and Sction 76.59 of the Commission's rules, 47 C.F.R.  76.59, that the Petition for Special Relief [CSR-5371-A] filed by MediaOne of Ohio, Inc., with regard to the communities of Bellevue (OH0030), Lyme (OH0459), Clyde (OH0031), York (OH0458), Green Creek (OH0460), Green Springs (OH1044), Riley (OH1959), Townsend (OH1960), Sandusky (OH2058), Freemont (OH2284), Ballville (OH2506), Bellevue (OH2508), Adams (OH1040), Green Springs (OH1045), Thompson (OH1046), Milan (OH0191), Erie (OH0192), Milan (OH0462), Milan (OH0872), Oxford (OH2006), Monroeville (OH0036), Norwalk (OH0038), Huron (OH0193), Norwalk (OH0461), Ridgefield (OH0463), Bronson (OH2004), Hartland (OH2005), Peru (OH2007), New Haven (OH0037), Plymouth (OH0039), Willard (OH0043), Greenwich (OH1251), Greenwich (OH1252), North Fairfield (OH1253), Fairfield (OH1254), Ripley (OH1255), Richmond (OH2010), Norwich (2011), Greenfield (OH2057), Plymouth (OH2057), Shiloh (OH0762), Plymouth (OH0881), and Cass (OH2009), which are served by MediaOne's Peru cable system, IS GRANTED. 23. IT IS FURTHER ORDERED that the petition with regard to the communities of Eastlake (OH0699), Mentor (OH0740), Willoughby (OH0770), Willoughby Hills (OH0801), Wickliffe (OH0802), Lakeline (OH0803), Grand River (OH0879), Painesville (OH0880), Timberlake (OH0987), Fairport Harbor (OH0996) which are served by MediaOne's Mentor cable system and the communities of Bay Village (OH0739), Elyria (OH0693), North Ridgeville (OH0696), Elyria (OH0737), Amherst (OH0831), Avon Lake (OH0988), Carlisle (OH0989), Amherst (OH1029), South Amherst (OH1112), Eaton (OH2287), New Russia (OH2307), North Ridgeville (OH1694) which are served by MediaOne's Elyria cable system IS DENIED. 24. IT IS FURTHER ORDERED that television station WOAC shall notify MediaOne of its carriage and channel position elections pursuant to Sections 76.56, 76.57, and 76.64(f) of the Commission's rules, 47 C.F.R.  76.56, 76.57, and 76.64(f), within 30 days of the release of this Order. MediaOne shall comply with the applicable rules within 60 days of such notification from WOAC. 25. This action is taken pursuant to authority delegated by Section 0.321 of the Commissions rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief Cable Services Bureau