*Pages 1--7 from Microsoft Word - 13905.doc* Federal Communications Commission DA 01- 3010 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of: Norwell Television, LLC For Modification of the Boston, Massachusetts DMA ) ) ) ) ) ) CSR- 5727- A MEMORANDUM OPINION AND ORDER Adopted: December 20, 2001 Released: December 26, 2001 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Norwell Television, LLC, licensee of television broadcast station WWDP (Ch. 46), Norwell, Massachusetts (“ WWDP”), filed the above- captioned petition for special relief seeking to modify the Boston, Massachusetts designated market area (“ DMA”) to include the AT& T Broadband (“ AT& T”) cable systems communities of Acushnet, Attleboro, Berkley, Dartmouth, Dighton, Freetown, Fairhaven, Fall River, Mansfield, Middleboro, New Bedford, North Attleboro, Norton, Raynham, Rehobeth, Seekonk, and Taunton, Massachusetts. No opposition to this petition has been received. II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues (“ Must Carry Order”), commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station’s market. 1 A station’s market for this purpose is its “designated market area,” or DMA, as defined by Nielsen Media Research. 2 A DMA is a geographic market designation that defines each television market exclusive of 1 8 FCC Rcd 2965, 2976- 1977 (1993). 2 Section 614( h)( 1)( C) of the Communications Act, as amended by the Telecommunications Act of 1996, provides that a station’s market shall be determined by the Commission by regulation or order using, where available, commercial publications which delineate television markets based on viewing patterns. See 47 U. S. C. §534( h)( 1)( C). Section 76.55( e) requires that a commercial broadcast television station’s market be defined by Nielsen Media Research’s DMAs. See Definition of Markets for Purposes of the Cable Television Broadcast Signal Carriage Rules, Order on Reconsideration and Second Report and Order, 14 FCC Rcd 8366 (1999)(“ Modification Final Report and Order”). 1 Federal Communications Commission DA 01- 3010 2 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 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. 4 In considering such requests, the 1992 Cable 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 new coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community. 5 The legislative history of the provision states that: where the presumption in favor of [DMA] carriage would result in cable subscribers losing access to local stations because they are outside the [DMA] 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 area in which they serve and which form their economic market. * *** 3 For a more complete description of how counties are allocated, see Nielsen Media Research’s Nielsen Station Index: Methodology Techniques and Data Interpretation. 4 47 U. S. C. §534( h)( 1)( C). 5 Id. 2 Federal Communications Commission DA 01- 3010 3 [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. 6 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. 7 4. In the Modification Final Report and Order, the Commission, in an effort to promote administrative efficiency, adopted a standardized evidence approach for modification petitions that requires the following evidence be submitted: (A) A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend locations, terrain features that would affect station reception, mileage between the community and the television station transmitter site, transportation routes and any other evidence contributing to the scope of the market. (B) Grade B contour maps delineating the station’s technical service area and showing the location of the cable system headends and communities in relating to the service areas. Note: Service area maps using Longley- Rice (version 1. 2. 2) propagation curves may also be included to support a technical service exhibit. 8 (C) Available data on shopping and labor patterns in the local market. (D) Television station programming information derived from station logs or the local edition of the television guide. (E) Cable system channel line- up cards or other exhibits establishing historic carriage, such as television guide listings. (F) Published audience data for the relevant station showing its average all day audience (i. e., the reported audience averaged over Sunday- Saturday, 7 a. m., or an equivalent time period) for both cable and 6 H. R. Rep. 102- 628, 102d Cong., 2d Sess. 97 (1992). 7 Must Carry Order, 8 FCC Rcd 2965, 2977 n. 139. 8 The Longley- Rice model provides a more accurate representation of a station’s technical coverage area because it takes into account such factors as mountains and valleys that are not specifically reflected in a traditional Grade B contour analysis. In situations involving mountainous terrain or other unusual geographical features, Longley- Rice propagation studies can aid in determining whether or not a television station actually provides local service to a community under factor two of the market modification test. 3 Federal Communications Commission DA 01- 3010 4 noncable households or other specific audience indicia, such as station advertising and sales data or viewer contribution records. 9 Petitions for special relief to modify television markets that do not include the above evidence shall be dismissed without prejudice and may be re- filed at a later date with the appropriate filing fee. The Modification Final Report and Order provides that parties may continue to submit whatever additional evidence they deem appropriate and relevant. III. DISCUSSION 5. The issue before us is whether to grant WWDP’s request to include the communities of Acushnet, Attleboro, Berkley, Bartmouth, Dighton, Freetown, Fairhaven, Fall River, Mansfield, Middleboro, New Bedford, North Attleboro, Norton, Raynham, Rehobeth, Seekonk, and Taunton, Massachusetts, within its television market. WWDP is considered to be within the Boston, Massachusetts DMA, while Bristol and Plymouth Counties, Massachusetts, where the communities are located, are within the Providence, Rhode Island- New Bedford, Massachusetts DMA. 6. In support of its request, WWDP argues that the subject communities should be added to its market because it is a “specialty” station which broadcasts Spanish- language programming; it provides City Grade, Grade A and Grade B coverage to the communities; it is geographically close at an average of 16. 5 miles; AT& T carries other Boston market stations which are located farther away than WWDP; and it provides coverage of issues of concern to Hispanic and other residents in the communities which is not provided by any other station AT& T carries. 10 7. WWDP states that under its current ownership it is a full power commercial television station which primarily broadcasts Spanish- language programming provided by Telemundo. This programming consists of news, entertainment, local public affairs, children’s programming, emergency broadcasts and program- length presentations of local and national businesses and community organizations. 11 WWDP points out that the Commission previously deemed foreign- language stations “specialty stations” and promulgated must carry rules that provided these stations with special protections aimed at encouraging their carriage. 12 8. WWDP notes that there is no record that AT& T has ever carried its signal on its systems. WWDP asserts that its lack of carriage is not unexpected because WWDP and the subject communities are located in separate DMAs. 13 WWDP states, however, that it is listed in some of the local TV listings for the cable communities. 14 Specifically, WWDP states that it is listed in the TV Guides for Brockton, 9 47 C. F. R. §76.59( b). 10 Petition at 1- 2. 11 Id. at 3. 12 See Amendment of Part 76, Subparts A and D of the Commission’s Rules and Regulations Relative to Adding a New Definition for “Specialty Stations” and Amending the Appropriate Signal Carriage Rules, First Report and Order, 58 FCC 2d 442 (1976); recon. denied, 60 FCC 2d 661 (1976)(“ Specialty Station Order”). 13 Petition at Exhibit I. 14 Id. at Exhibit II. 4 Federal Communications Commission DA 01- 3010 5 Foxboro, Middleboro and Lakeville, Massachusetts. 15 While WWDP concedes that the Commission is statutorily obligated to weigh historical carriage in analyzing market modification cases, WWDP notes that the Commission has determined that “the historical carriage factor is not controlling in [specialty station] circumstances because the 1992 Cable Act would, in effect, prevent home shopping and other specialty stations which cable systems had previously declined to carry, from ever being carried.” 16 WWDP points out that the Commission has a long record of both adding to and refusing to delete communities from a specialty station’s market even in situations where the specialty station could not demonstrate historical carriage. 17 As a result, WWDP argues that its failure to demonstrate historical carriage with regard to AT& T’s communities herein should not be controlling in this instance. 9. WWDP states that, as demonstrated by signal contour coverage maps, it provides predicted City Grade, Grade A and Grade B contour coverage to each of the subject communities. 18 Moreover, WWDP states that, as demonstrated by terrain coverage maps, there are no mountains, valleys, or waterways which degrade the reception of WWDP’s signal in the communities. 19 WWDP maintains that it is also geographically close to the communities, at an average of 16. 5 miles. 20 WWDP argues that, as a general matter, Grade B coverage demonstrates local service to cable communities. 21 Further, WWDP notes that in Market Modifications and the New York Area of Dominant Influence, the Commission held that “the Bureau’s reliance on Grade B contour coverage and distance to the community, in terms of both geography and mileage, is fully supported by the [1992 Cable Act], its legislative history, and Commission precedent.” 22 WWDP maintains that the economic nexus between Norwell, its community of license, and the subject communities is supported not only by the local service that WWDP provides and the station’s geographic proximity, but also by similar population characteristics, work forces, economies and governments 23 10. WWDP points out that, according to the 2001 edition of Television & Cable Factbook, AT& T carries other Boston- market stations on each of its cable systems, all of which are farther away from the subject communities than is WWDP. 24 WWDP asserts that the fact that it is geographically closer to the communities at issue than these other Boston- market stations serves to demonstrate that WWDP has a closer nexus to the communities than do these more distant stations. 25 In addition, WWDP states that, despite the fact that its Grade B signal is much smaller in relation to these other Boston- market stations, it still must compete with them in an extremely aggressive television market. WWDP states that 15 Id. WWDP notes that the Lakeville TV Guide lists it under its previous call sign, WBPX. 16 See Nationwide Communications, Inc., 10 FCC Rcd 13050, 13053 (1995). 17 See e. g., Paxson San Jose License, Inc., 12 FCC Rcd 17520 (1997); Nationwide Communication, Inc., 10 FCC Rcd 13050 (1995); Cablevision of Cleveland, 12 FCC Rcd 15183 (1997); and Agape Church, Inc., 14 FCC Rcd 2309 (1999). 18 Petition at Exhibit III. 19 Id. at Exhibit IV. 20 Id. at Exhibit V. WWDP states that distances range from 5 to 28 miles. 21 Must Carry Order, 8 FCC Rcd 2965, 2977 (1993). 22 12 FCC Rcd 12262, 12267 (1997). 23 Petition at Exhibit VI. 24 Id. at 7 and Exhibit VII. 25 Id. at 8. 5 Federal Communications Commission DA 01- 3010 6 AT& T’s carriage of its competitors allows these stations to greatly increase their ability to compete for advertising dollars and audience in the subject communities while, at the same time, leaving WWDP at a distinct economic disadvantage in an area in which it provides local service. 26 WWDP maintains that the only way correct this is to grant its modification request. 11. WWDP concedes that it does not command high viewership ratings in the communities. 27 It argues, however, that its lack of ratings, just like its lack of historical carriage, is the direct result of its status as a small specialty station. It therefore maintains that its lack of ratings should not be determinative. 28 In any event, WWDP points out that the Spanish- language programming it provides is not carried by any other station available to the communities. 29 WWDP argues that although it currently has a limited audience in the subject communities, that audience will certainly increase once AT& T commences carriage of its signal because the Hispanic population in that area continues to grow making WWDP’s programming increasingly more important. 30 12. The Commission has recognized that specialty stations, such as WWDP, often fail to meet the historic carriage factor and often have no appreciable audience shares due the nature of their programming. Therefore, in analyzing specialty stations’ requests to modify television markets, we often look past these criteria to other factors. In this instance, WWDP argues that given its status as a foreign-language specialty station, its lack of historic carriage and viewership should be given little weight. We agree. However, while these factors are not controlling, we cannot totally disregard their presence as urged by WWDP. 13. Despite its lack of historic carriage, appreciable audience, and the general nature of its programming, we find that, in this instance, other factors deserve more relative weight. WWDP’s transmitter is located approximately 16 miles from the systems’ headends and its predicted City Grade and Grade A contours encompasses more than half of the communities requested, with the remainder falling well within the station’s predicted Grade B contour. 31 WWDP’s petition is also unopposed. Moreover, unlike a similar petition WWDP filed concurrently with this one, which would have upset the balance between the Providence and Boston television markets by granting WWDP widespread carriage in the Providence market, our action today does not have a similar result. All of the communities requested for inclusion by WWDP are located in Massachusetts on the northeasternmost edge of the Providence market closest to the Boston DMA . 32 Therefore, we find that a grant of WWDP’s request would be appropriate. 26 Id. 27 Id. at Exhibit VIII. 28 See Omnipoint Corp. v. FCC, 78 F. 3d 620, 633- 634 (D. C. Cir. 1996). 29 Petition at Exhibit IX. 30 Id. at 9. 31 See Marks CableVision and TCI CableVision of California, 12 FCC Rcd 22989 (1997); recon. denied, 15 FCC Rcd 814 (2000). 32 See Norwell Television LLC, DA 01- 2881 (released December 12, 2001); erratrum released December 14, 2001). 6 Federal Communications Commission DA 01- 3010 7 IV. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED, pursuant to Section 614( h) of the Communications Act of 1934, as amended (47 U. S. C. §534) and Section 76.59 of the Commission’s rules (47 C. F. R. §76.59), that the captioned petition for special relief (CSR- 5727- A), filed by Norwell Television, LLC IS GRANTED. 15. These actions are taken pursuant to authority delegated by Section 0.321 of the Commission’s rules. 33 FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Chief Consumer Protection and Competition Division Cable Services Bureau 33 47 C. F. R. §0.321. 7