Federal Communications Commission DA 96-413

llerore lhe l•'ederal Communicalions Commission Washington, D.C. 20554

In the Matter of: ) ) Petition of of ) CSR 4557-A Monmouth County Et Al. ) ) For Modification of the ADI of Television ) Broadcast Station WTBY, ) Poughkeepsie, )

MEMORANDUM OPINION AND ORDER

Adopted: March 21, 1996 Released: April 4, 1996

By the Deputy Chief, Cable Services Bureau:

INTRODUCTION

1. Comcast Cablevision of Monmouth County et al. (Comcast), an operator of systems serving portions of , has filed the above captioned petition for special relief seeking to delete certain communities served by Comcast's cable systems from the "area of dominant influence" of WTBY (Ch. 54, Poughkeepsie, NY), a commercial television station assigned to the New York ADI. The petition is filed on behalf of Comcast Cablevision of Northwest New Jersey, Comcast Cablevision of Ocean County, Comcast Cablevision of the Plainfields, Comcast Cablevision of the Meadowlands, Comcast Cablevision of Central New Jersey, Comcast· Cablevision of Jersey City and Comcast Cablevision of New Jersey (See Appendix for specific communities). The petition is opposed by Trinity Broadcasting of New York, Inc., licensee of WTBY (WTBY).

BACKGROUND

2. Pursuant to §614 of the Communications Act and implementing rules adopted by the Commission in its Repon and Order in MM Docket 92-259,1 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

1 8 11cc ftcd 2965. 2976 2977 (1993).

4183 Federal Communications Commission DA 96-413 as defined by the Arbitron audience research organization.2 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 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

3. Under the Act, however, the Commission is also directed to consider changes in ADI areas. Section 614(h)(l)(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;

(Ill) 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

-- ··-·---·------2 Seclion 76.55(e} or Lhe Commission's Rules provides lhal lhe ADls lo be used ror purposes or lhe initial implemenlalion or lhe mandalory carriage rules are lhose published in Arbilron's 1991-1992 lelension Jlarlret Cvicle

3 Because or lhe topography involved, certain counties are divided inlo more lhan one sampling uniL Also. in certain circumslances. a slalion may have ils home counly assigned Lo an ADI even lhough il receives less Lhan a preponderance or Lhe audience in lhal county. [•'or a more complete descriplion or how counties are allocated . .s~eArbilron's /Jescription ofJlet/Joclolog_y.

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(IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community.4

4. The ~egislative 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 ·

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 c:ontour 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

4 Communicalions Acl or 1934. as amended. §614(h)(l)(C)(ii). 47 U.S.C. §534(h)(l)(C)(ii).

5 11.R. Rep. No. 628. 102d Cong .. 2d Sess. 97 (1992).

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measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6

6. As for deletions of communities from a station's ADI, the legislative histocy 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 pennitted 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

7. In adopting rules to implement this provision, the Commission indicated that changes requested should be considered on a community-by-conimunity 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. 8 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 market area change request.9

MARKET FACTS AND ARGUMENTS OF THE PARTIES

8. Comcast states that WTBY's city of license, Poughkeepsie, New York is located in the northern portion of the New York City ADI and is between 63 and 113 miles from Comcast's New Jersey cable television systems, which are also located within the New York ADI. Accordingly, the·station is entitled to assert mandatocy carriage rights on these systems. See 41 C.F.R.§ 76.55. The station has never been carried on any of the cable systems in question since it started broadcasting in 1981, and does not deliver an over-the-air signal of acceptable quality

-··· ·---··-·--·----- 6 8 rec Red al 2977 (emphasis in original}.

7 /dal 97 ·98.

8 8 rec Red al 2977 n.139. Viewership dala ciled herein is counly dala. ralher lhan communily-·specific dala. llowever. absenl evidence lhal such dala is nol fairly refleclive of viewing in lhe aclual communilies in question. we accepl such dala as probalive in cases of lhis lype.

9 47 c.r.R. s76.59.

4186 Federal Communications Commission DA 96-413 to any of the system' headends. Id. WTBY has notified Comcast that the station plans to deliver its signal to Comcast's headends via satellite or fiber optic cable. Petitioner contends that WTBY does not qualify as a local television station in the communities served by its New Jersey cable systems, and that the Commission should exclude these communities from WTBY's market because the requirement to cany the station does not further the policies underlying the mandatory carriage rules. Moreover, absent the requested relief, Comcast argues that allowing WTBY to artificially exten.d its coverage by the use of fiber optic cable would seriously abridge Comcast's First Amendment rights without advancing the policy of localism which underlies the mandatory carriage rules.

9. In support of its arguments and contentions, Comcast states that application of the four statutory factors in §4 of the 1992 Cable Act, codified at §614(h)(l)(C) of the Communications Act of 1934, as amended, fully supports the requested modification of the New York ADI for WTBY. Comcast contends that WTBY fails to satisfy any of the four market factors set forth in the 1992 Cable Act and the Commission's rules.

10. With regard to historic carriage, Comcast states that its systems have never offered WTBY to its subscribers, nor have any of the twelve cable systems serving neighboring New Jersey communities. In addition, Comcast states that it has not carried other stations from the same area of upstate New York on its New Jersey cable systems. As for statutory factor two, local coverage, Comcast states that Poughkeepsie, WTBY's city of license, is geographically distant from the communities which Comcast seeks to exclude from WTBY's market. Since the station's transmitter is located 63 to 113 miles from the systems in question, petitioner states that the station provides no coverage of local news or public affairs that would be of any significance or interest to subscribers of the systems. Comcast argues that WTBY offers a few hours of locally produced programming each week which focuses on issues of interest to the Poughkeepsie and , Kingston areas of upstate New York, and that the station's program lists do not include a single program that would be of interest to a viewer served by the New Jersey cable systems. In addition, Comcast states that all the communities it seeks to exclude are outside of the station's Grade B contour. Turning to the third statutory factor, Cablevision argues that each of the communities it seeks to exclude from WTBY's television market receives extensive coverage of local issues .from the systems' carriage of a number of local television stations. According to Comcast, each of its systems carries the New Jersey NetWork, a channel devoted to the coverage of New Jersey public affairs, news and sports. In addition, the systems also cany WWOR-TV, Secaucus, New Jersey, which devotes half of its news coverage to New Jersey news, and that six other local New Jersey stations are carried to some degree on the systems in question. Additionally, each of Comcast's systems cany at least six New York City stations which provide news and public affairs programming of interest to the New Jersey communities in question. Finally, with regard to local viewing, Comcast claims that WTBY's audience ratings and local television listings do not reflect. a significant audience share in the New York ADL and that the station does not have a sufficient audience share to qualify as a "reportable station" in Nielsen

4187 Federal Communications Commission DA 96-413

Media Research's ratings book for the New York City Designated Market Area. Comcast provides the Commission with documentation to support the above contentions.

11. In opposition, WTBY contends that the petition is discriminatory and that Comcast has failed to show that the communities it serves should be deleted from WTBY's market. WTBY argues that Comcast does not request deletion of communities from many other stations licensed in the New York ADI and that the petition is the type which Congress explicitly stated is contrary to the intent of the 1992 Cable Act, in that Comcast is using the Commission's processes to subvert the congressional mandate to extend the mandatory carriage rights of local television stations. WTBY emphasizes that Congress' purpose in establishing the market waiver policy was to add, rather than delete, communities from a station's market. WTBY argues that the problem of discrimination "appears obvious" in this case because Comcast has singled out for deletion the one station licensed to the New York ADI which provides predominantly religious programming. WTBY also contends that Comcast's request interferes with its statutorily protected rights of expression and results in irreparable injury to the station.

12. WTBY also argues that Comcast has failed to make a case for deleting the communities under the four statutory market modification factors. The station argues that the denial of Comcast's petition will remove the historical discrimination against WTBY in regard to carriage of the station on the systems in question. WTBY also argues that the station's signal strength and distance to the communities are "essentially irrelevant." In addition, WTBY argues that it provides many programs which are of substantial interest to the subscribers in Comcast's service area and that it airs 11 ~ hours of local non-entertainment programs per week, specifically intended to serve the local needs and interests of the communities within the New York ADI. WTBY argues that this programming has included the appearance of leaders from various New Jersey communities, discussing issues of import to those communities. The station also claims that it has broadcast a significant amount of "high quality children's programming."

13. In reply, Comcast argues that WTBY generally fails to address the facts raised in the petition, and that its opposition appears to "grounded in the meritless claim that the legislative history of the must carry rules prohibits the Commission from deleting communities from a station's market." Petitioner contends that although the ADI standard was adopted by Congress to define a market in most cases, the instant matter is precisely the type of situation Congress contemplated when providing for excluding communities from a station's market. In support of this contention, Comcast refers to the House Report accompanying H.R. 4850, which states, "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." H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992). Petitioner continues that the programming that WTBY has attempted to characterize as local, is in fact, generic programming which has no relevance to any specific local community. Comcast contends that a scrutiny of program logs supplied by the station reveals that general interest

4188 Federal Communications Commission DA 96-413

programming is claimed by WTBY to be of local interest only beca~se of appearances of guests on the programs who happen to reside in New Jersey. Petitioner concludes that WTBY has failed to substantiate that it provides any local coverage, which is the only factor of the four statutory factors that the station has attempted to satisfy. Comcast also stresses that nothing in the "geography or geo-political nature of the Poughkeepsie region ... suggests that the residents of the affected communities associate themselves with the Poughkeepsie area or vice-versa."

ANALYSIS AND DECISION

14. Based on the four statutory ~d other relevant factors, Comcast'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. "1° Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements.11 The ADI market change process incoiporated 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. Comcast'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 New Jersey communities in question are sufficiently removed from WTBY 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 WTBY, distinguishes the various New Jersey communities from Poughkeepsie, New York and persuades us that the action requested would "better effectuate the purposes" of Section 614 of the 1992 Cable Act. We believe Congress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly rectified through the special relief process.

15. At the outset, the evidence suggests the WTBY. does not provide local service to the communities in question. WTBY does not place either a Grade A or Grade B contour over the

10 11.R. Rep. 102 628, 102d Cong .. 2d Sess. 97 (1992).

11 47 U.S.C. §534(h).

4189 Federal Communications Commission DA 96-413 cable communities.12 In addition, we do not believe that it has been shown that WTBY carries programming of specific local interest or import for cable viewers in the relevant New Jersey· communities. The WTBY schedule information provided indicates programming of potential. general interest but without specific ties to any of the New Jersey communities at issue in this matter. The station also has no reported audience in the counties where the cable communities are located and it has no history of carriage. Moreover, Poughkeepsie, New York, WTBY's city of license, is 63 to ll3 miles from the relevant cable communities. The distance involved attenuates the local ties the station might have to the cable communities and helps explain why the station's viewership is too low to be reported.

16. We also believe that Comcast'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 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 case there are several television stations carried by Comcast's systems, such as WWOR-TV, the six New York City stations, the six New Jersey stations, and the New Jersey Network, that have a closer nexus to the New Jersey communities and provide more focused local programming than WTBY.

17. Comcast also demonstrates the WTBY has no historical carriage on the cable systems in question and has no audience in the counties in which the cable systems are located. Because WTBY is a specialized format station, these facts are not determinative, in and of themselves, of the relationship between the cable communities 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 and the particular distances involved, particularly where a station has been broadcasting since 1981 and has no noncable audience share in the relevant New Jersey counties. In these circumstances, we cannot discount WTBY's existing carriage and audience as proper indicators of the scope of its market area.

18. This is not a situation where the carriage pattern suggests that a station is logically part of the market for carriage pmposes but has not been carried for competitive reasons. Nor do we believe that the operator has impermissibly singled out WTBY from among other similarly situated stations as the sole station it has declined to carry.

12 We have held lhal lhe local service requiremenl is salisfied if lhe slalion's Grade 13 conlour covers lhe communily. See8 l•'CC lkd al 2981.

4190 Federal Communications Commission DA 96-413

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.

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-4557-A) filed July 6, 1995 by Comcast Cablevision of Monmouth County, et al. 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.

FEDERAi:. COMMUNICATIONS COMMISSION

William H. Johnson · Deputy Chief, Cable Services Bureau

4191 Federal Communications Commission DA 96-413

APPENDIX

Comcast Cablevision of Monmouth County Shrewsbwy Borough Shrewsbwy Township Fair Haven Tinton Falls Red Bank Long Branch Hazlet Atlantic Highlands Loch Arbour Deal Fort Monmouth Monmouth Beach Highlands West Long Branch Sea Bright Oceanport Middletown Freehold Borough Allenhurst Holmdell Eatontown Little Silver Rumson

Comcast Cablevision of Northwest New Jersey Mansfield Township Independence Township Califon Liberty Township Hackettstown Belvidere Oxford Washington Township (Warren County) Washington Borough Hampton Glen Gardner High Bridge Mt. Olive

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Franklin Township Lebanon Township Washington Township (Morris County) White Township

Comcast Cablevision of Ocean County Brick Point Pleasant Borough Point Pleasant Beach Mantoloking Bay Head

Comcast Cablevision of the Plainfields Plainfield South Plainfield North Plainfield

Comcast Cablevision of the Meadowlands Wallington Kearny East Newark North Arlington Lyndhurst Rutherford East Rutherford Carlstadt

Comcast Cablevision of Central New Jersey Cranbury Township East Brunswick Township East Windsor Township Helmetta Borough Hightstown Borough Jamesburg Borough Monroe Township (Middles~x County) Plainsboro Township Roosevelt Borough South Brunswick Township Spotswood Borough West Windsor Township

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Comcast Cablevision of Jersey City Jersey City

Comcast Cablevision of New Jersey Belleville Township Berkely Heights Township Bloomfield Township Caldwell Township Carteret Borough Clark Township East Orange City Essex Fells Township Fairfield Borough Fanwood Borough Garwood Borough Glen Ridge Borough Township Harrison Township Hillside Township Irvington Township Kenilworth Borough Linden City Livingston Township Maplewood Township Millburn Township Montclair Township Mountainside Borough New Providence Borough Orange Township City Perth Amboy City Rahway City Roseland Borough Roselle Borough Roselle Park Borough Scotch Plains Township Secaucus Township South River Borough Springfield Township Summit City Union Township Verona Township West Caldwell Township

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Westfield Township Winfield Township Woodbridge Township

4195