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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 re: ) ) Adelphia Cable Communications ) CSR-5014-A Ocean County, New Jersey ) ) For Modification of ) Station WXTV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: October 8, 1997 Released: October 14, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Clear Cablevision, Inc. and Manchester Cablevison, Inc., both d/b/a Adelphia Cable Communications ("Adelphia"), operator of cable television systems serving various communities in Ocean County, New Jersey, filed a petition seeking to delete these communities from the New York, New York area of dominant influence (or "ADI"), insofar as mandatory carriage of Station WXTV (Channel 41), Paterson, New Jersey, is concerned. No opposition to this petition was filed. BACKGROUND 2. Pursuant to  614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, 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. Under the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) provides that the Commission may: with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section. In considering such requests, the Act provides that: the Commission shall afford particular attention to the value of localism by taking into account such factors as -- (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; (II) whether the television station provides coverage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community. 4. The legislative history of this provision indicates that: where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular communities from a television station's market consistent with Congress' objective to ensure that television stations be carried in the areas which they serve and which form their economic market. * * * * * [This subsection] establishes certain criteria which the Commission shall consider in acting on requests to modify the geographic area in which stations have signal carriage rights. These factors are not intended to be exclusive, but may be used to demonstrate that a community is part of a particular station's market. 5. The Commission provided guidance in its Report and Order in MM Docket 92-259, supra, to aid decision making in these matters, as follows: For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel line-up (e.g., rate cards) for a period of years. To show that the station provides coverage or other local service to the cable community (factor 2), parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or other programming of interest to the community could be demonstrated by program logs or other descriptions of local program offerings. The final factor concerns viewing patterns in the cable community in cable and noncable homes. Audience data clearly provide appropriate evidence about this factor. In this regard, we note that surveys such as those used to demonstrate significantly viewed status could be useful. However, since this factor requires us to evaluate viewing on a community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6. 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 a market change request. MARKET FACTS AND ADELPHIA'S ARGUMENTS 8. WXTV is licensed to Paterson, New Jersey, which is part of the New York ADI. The communities in Ocean County are also all presently assigned to the New York ADI. While the designated communities in Ocean County are located in central New Jersey, about fifty miles South of New York City, WXTV's city of license, Paterson, is located in Passaic County, New Jersey, which forms part of New Jersey's northern border and is located approximately twenty miles North of New York City. According to Nielsen's 1995 County/Coverage Study, WXTV had no reported viewing shares, either off-air or on cable in Ocean County. WXTV's Grade B contour covers none of the specified New Jersey communities. 9. According to Adelphia, WXTV in fact is not a local station with respect to the noted cable communities, and the system argues, therefore, that it ought not to be obliged to carry the station. Adelphia adds that it has never carried WXTV, even though it would have done so had there been any local subscriber demand for the station. However, there was none, Adelphia states, because WXTV does not provide any significant local programming. Adelphia adds that its headend is located over 63 miles from Paterson, WXTV's city of license, and that the specified cable communities are all located beyond WXTV's Grade B contour. Adelphia notes that the vast majority of WXTV's programming is Spanish language, which is not tailored to the needs and interests of Adelphia's subscribers. According to Adelphia, none of WXTV's programs have any particular nexus to the cable communities. Adelphia maintains that various other ADI waiver requests have been granted previously to communities located at similar distances from stations initially entitled to mandatory carriage by the cable systems serving those communities. Noting that Ocean County is about equidistant from New York City and from Philadelphia, Pennsylvania, Adelphia states that its subscribers receive plenty of local programming from other stations licensed to serve those cities which the system already carries. Adelphia adds that neither the local TV Guide in Ocean County, nor the local newspaper, lists WXTV's programming, and that the station has not been recognized as significantly viewed in any New Jersey county. Finally, Adelphia notes that in Nielsen's 1996 County/Coverage Study, only 1% of television households viewed WXTV a quarter hour during the average day in the cable communities, and only 2% of television households in the cable communities viewed WXTV at least a quarter hour during the course of a week. ANALYSIS AND DISCUSSION 10. In the absence of any objection from WXTV, we will grant Adelphia's request. 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. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, including the lack of any opposition by WXTV, 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. 11. Turning to the statutory factors, we note that WXTV has no history of cable carriage on the systems subject to the modification request, despite the fact that the station has been in operation for almost thirty years. The evidence also suggests that WXTV does not provide local service to the communities in question. The station does not place either a Grade A or Grade B contour over the cable communities. In addition, WXTV's city of license is geographically distant from Adelphia's cable communities. As the cable operator notes, Paterson is located approximately 63 miles from Adelphia's Ocean County headend, and we cannot ignore distance as a significant factor in this particular instance. 12. We also believe that Adelphia's carriage of other local television stations provides support for the action requested in this particular case. 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 service 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. In this particular instance, there is another television station licensed to a community that has a closer economic nexus to Adelphia's viewers than does WXTV, which can also provide them with Spanish language programming, WNJU. These market facts, coupled with the distance between the cable communities and WXTV, support Adelphia's argument under the third factor. 13. The distances involved in this situation, together with the lack of a Grade B or better contour, further attenuate the local ties that the station might otherwise have to the cable communities and help explain why the station's viewership is too low to be reported in Ocean County. We conclude, therefore, that when considered with WXTV's lack of opposition to Adelphia's deletion request, and other information regarding the market and the particular distances involved, the dearth of audience is of evidentiary significance. In these circumstances, we cannot discount the absence of viewership as an indication of the scope of WXTV's market area. 14. In view of the above, we will grant Adelphia's request to delete the designated communities in Ocean County from the New York ADI insofar as mandatory carriage of WXTV is concerned. ORDERING CLAUSES 15. Accordingly, IT IS ORDERED, pursuant to 614(c) 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-5014-A) filed May 29, 1997, by Adelphia Cable Communications IS GRANTED. 16. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau