Federal Communications Commission	DA 19-256


Before the
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554


In the Matter of

Stephens County, Georgia

Petitions for Modification of the Satellite Television Markets of WSB-TV, WGCL, WAGA, and WXIA-TV, 
Atlanta, Georgia
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MB Docket No. 18-358
CSR No. 8967-A

MB Docket No. 18-359
CSR No. 8968-A

MB Docket No. 18-360 
CSR No. 8969-A

MB Docket No. 18-361
CSR 8970-A

MEMORANDUM OPINION AND ORDER

Adopted:  April 3, 2019	Released:  April 4, 2019             

By the Senior Deputy Chief, Media Bureau, Policy Division:

I. INTRODUCTION
1. Stephens County, Georgia (Petitioner or the County), with the support of its residents, has filed four market modification petitions to make four Georgia television stations (collectively, the Stations or the Atlanta Stations) available to satellite subscribers in the County.  For historical and geographic reasons, residents in the County generally receive only South Carolina and North Carolina television stations, limiting their access to Georgia-specific news, sports, weather, and politics.  With this Memorandum Opinion and Order (Order), the Media Bureau grants all four Petitions in full.  
2. Petitioner filed the above-captioned Petitions seeking to modify the local satellite carriage television markets of the Stations to include Stephens County, currently assigned to the Greenville-Spartanburg-Asheville-Anderson Designated Market Area (DMA). See Stephens County, Georgia Petition for Special Relief for Modification of the Television Market of Station WSB-TV (ABC), (Channel 2) Atlanta, Georgia with Respect to DISH Network and DIRECTV, MB Docket 18-358 (filed December 3, 2018) (WSB-TV Petition); Stephens County, Georgia Petition for Special Relief for Modification of the Television Market of Station WGCL (CBS), (Channel 46), Atlanta, Georgia with Respect to DISH Network and DIRECTV, MB Docket 18-359 (filed December 3, 2018) (WGCL Petition);  Stephens County, Georgia Petition for Special Relief for Modification of the Television Market of Station of Station WAGA (FOX), (Channel 5),  Atlanta, Georgia with Respect to DISH Network and DIRECTV, MB Docket 18-360 (filed December 3, 2018) (WAGA Petition); Stephens County, Georgia Petition for Special Relief for Modification of the Television Market of Station of Station WXIA (NBC), (Channel 11), Atlanta, Georgia with Respect to DISH Network and DIRECTV, MB Docket 18-361 (filed December 3, 2018) (WXIA Petition) (collectively, the Petitions).  The Media Bureau placed the Petitions on public notice and sought comment.  Special Relief and Show Cause Petitions, Public Notice, Report No. 0475 (MB Dec. 7, 2018) (Public Notice).
  The Stations, all of which are located in the Atlanta, Georgia DMA, are: WSB-TV (ABC) (Facility ID No. 23960), Atlanta, Georgia, WGCL (CBS) (Facility ID No. 72120), Atlanta, Georgia, WAGA (FOX) (Facility ID No. 70689), Atlanta, Georgia, and WXIA-TV (NBC) (Facility ID No. 51163), Atlanta, Georgia. Petitions at 1, 5.
  Prior to filing the Petitions, Stephens County reached out to both DBS carriers. Id. at 2-3 and Exhibits A and B.
  In response, DISH Network LLC (DISH) and DIRECTV, LLC (DIRECTV) filed Certifications regarding the technical and economic feasibility of the proposed modifications. Id. at Exhibit A (DISH Network L.L.C. STELAR Feasibility Certification Market Modification Pre-Filing Coordination Letter for Franklin County, Georgia (dated June 27, 2016) (DISH Certification)); Petition at Exhibit B (Letter from DIRECTV to Beth Thomas, Franklin County Manager (dated Aug. 2, 2016) (DIRECTV Certification)).
  DIRECTV states that its spot beams cover all current zip codes in Stephens County and DISH states that it is unaware of any factors, at this time, that would render carriage of the stations technically infeasible. Id.
  Neither carrier opposed the Petitions.  A Joint Opposition was filed against all four Petitions by local network affiliates in North and South Carolina (collectively, the Opposing Stations). Joint Opposition to Petition for Special Relief, MB Docket Nos. 18-358, 18-359, 18-360, and 18-361 (filed Dec. 27, 2018) (Joint Opposition).  The Opposing Stations are: WYFF Hearst Television Inc., licensee of NBC affiliate WYFF(TV), Greenville, South Carolina (WYFF); Meredith Corporation, licensee of FOX affiliate WHNS(TV), Greenville, South Carolina (WHNS); Nexstar Broadcasting, Inc., licensee of CBS affiliate WSPA-TV, Spartanburg, South Carolina (WSPA); and WLOS Licensee LLC, licensee of WLOS(TV), Asheville, North Carolina (WLOS).
  Each Petition has been reviewed on its individual merits.  However, because the Petitions were filed simultaneously and are effectively identical, and because the Stations are identically situated with respect to the feasibility of their carriage into the County, we have consolidated our decisions into this single Order for the sake of administrative efficiency.  We also note that, for purposes of our analysis in this case, the situation in Stephens County is virtually identical to those in its neighboring Georgia counties, Hart and Franklin.  Our analysis below reflects the same approach taken in our orders granting the market modification petitions of those counties. We note that Stephens, Hart, and Franklin Counties are contiguous, and we have granted the Petitions for Modifications filed by Hart and Franklin.  Hart County, Georgia Petition for Modification of the Satellite Television Markets of WSB-TV, WAGA, WXIA and WGCL, Atlanta, Georgia, MB Docket No. 18-250, Memorandum Opinion and Order, DA 18-1048, 33 FCC Rcd 9879  (MB Oct. 12, 2018), Application for Review filed Nov. 13, 2018;  Franklin County, Georgia Petitions for Modification of the Satellite Television Markets of WSB-TV, WAGA, WXIA and WGCL, Atlanta, Georgia, MB Docket Nos. 18-158, 18-159, 18-160, and 18-161, Memorandum Opinion and Order, 33 FCC Rcd 8742 (MB 2018), Application for Review filed Nov. 13, 2018.

II. BACKGROUND
3. Section 338 of the Communications Act authorizes satellite carriage of local broadcast stations into their local markets, which is called “local-into-local” service. 47 U.S.C. § 338(a)(1).
  A satellite carrier provides “local-into-local” service when it retransmits a local television signal back into the local market of that television station for reception by subscribers.” 47 CFR § 76.66(a)(6).  Pursuant to section 338, satellite carriers are not required to carry local broadcast television stations; however, if a satellite carrier chooses to carry a local station in a particular DMA in reliance on the local statutory copyright license, it generally must carry any qualified local station in the same DMA that makes a timely election for retransmission consent or mandatory carriage.  See 17 U.S.C. § 122.  Satellite carriers have a statutory copyright license under the 1999 Satellite Home Viewer Improvement Act (SHVIA) for carriage of stations to any subscriber within a station’s local market (Satellite Home Viewer Improvement Act of 1999 (SHVIA), Pub. L. No. 106-113, 113 Stat. 1501 (1999).  See also 47 U.S.C. § 338(a)(1); 47 CFR § 76.66(b)(1).  This is commonly referred to as the “carry one, carry all" requirement.
  Generally, a television station’s “local market” is defined by the Designated Market Area (DMA) in which it is located, as determined by the Nielsen Company (Nielsen). See 17 U.S.C. § 122(j)(2); 47 CFR § 76.66(e) (defining a television broadcast station’s local market for purposes of satellite carriage as the DMA in which the station is located).
  DMAs describe each television market in terms of a group of counties and are defined by Nielsen based on measured viewing patterns. The Nielsen Company delineates television markets by assigning each U.S. county (except for certain counties in Alaska) to a market based on which home-market stations receive a preponderance of total viewing hours in the county.  For purposes of this calculation, Nielsen includes both over-the-air and multichannel video programming distributor (MVPD) viewing.

4. The STELA Reauthorization Act of 2014 (STELAR) added satellite television carriage to the Commission’s market modification authority, which previously applied only to cable television carriage. The STELA Reauthorization Act of 2014, § 102 Pub. L. No. 113-200, 128 Stat. 2059, 2060-62 (2014) (STELAR) (adding 47 U.S.C. § 338(1)).  “STELA” refers to the Satellite Television Extension and Localism Act of 2010, Pub. L. No. 111-175.  See also Consolidated Appropriations Act of 2019, Pub. L. No. 116-6 (Feb. 15, 2019); Conference Report (H. Rept. 116-9) at 673 (noting that “despite the reforms made in STELAR, many communities continue to struggle with market modification petitions,” and directing the Commission to continue to “provide a full analysis to ensure decisions on market modification are comprehensively reviewed and STELAR’s intent to promote localism is retained” and “adhere to statutory requirements and congressional intent when taking administrative action under STELAR.”).
  Market modification, which long has existed in the cable context, provides a means for the Commission to modify the local television market of a commercial television broadcast station and thereby avoid rigid adherence to DMAs.  Specifically, to better reflect market realities, STELAR permits the Commission to add communities to, or delete communities from, a station’s local television market for purposes of satellite carriage, following a written request.  In the Commission’s 2015 STELAR Market Modification Report and Order, the Commission adopted satellite television market modification rules that provide a process for broadcasters, satellite carriers, and county governments to request changes to the boundaries of a particular commercial broadcast television station’s local television market to include a new community located in a neighboring local market. Amendment to the Commission’s Rules Concerning Market Modification; Implementation of Section 102 of the STELA Reauthorization Act of 2014; MB Docket No. 15-71, Report and Order, 30 FCC Rcd 10406 (2015) (STELAR Market Modification Report and Order) (revising 47 CFR § 76.59).  A community is defined as a county for purposes of the satellite market modification rules.  47 CFR § 76.5(gg)(2).
  The rules enable a broadcast television station to be carried by a satellite carrier in such a new community if the station is shown to have a local relationship to that community. 
5. By extending the market modification process to satellite television, Congress sought to address the so-called “orphan county” problem.  An orphan county is a county that, as a result of the structure of the local television markets, is served exclusively, or almost exclusively, by television stations coming from a neighboring state. STELAR Market Modification Report and Order, 30 FCC Rcd at 10408, para. 3.
  Satellite television subscribers residing in an orphan county often are not able to access their home state’s news, politics, sports, emergency information, and other television programming.  Providing the Commission with a means to address this problem by altering the structure of, and therefore the stations located within, a local market was a primary factor in Congress’ decision to extend market modification authority to the satellite context. See generally Report from the Senate Committee on Commerce, Science, and Transportation accompanying S. 2799, 113th Cong., S. Rep. No. 113-322 (2014) (Senate Commerce Committee Report).

6. Section 338(l) of the Act, added by the STELAR, creates a satellite market modification regime very similar to that already in place for cable television, while adding provisions to address the unique nature of satellite television service, particularly issues of technical and economic feasibility that  are specific to satellite operations. See 47 U.S.C. §§ 338(l), 534(h)(1)(C) (providing factors the Commission must take into account when considering satellite market modification requests).  The Commission may determine that particular communities are part of more than one television market.  47 U.S.C. § 338(l)(2)(A).  When the Commission modifies a station’s market to add a community for purposes of carriage rights, the station is considered local and is covered by the local statutory copyright license and may assert mandatory carriage (or pursue retransmission consent) with the applicable satellite carrier in the local market.  Conversely, if the Commission modifies a station’s market to delete a community, the station is considered “distant” and loses its right to assert mandatory carriage (or retransmission consent) on the applicable satellite carrier in the local market.
  The STELAR carves out an exception to carriage obligations See supra note 8 (describing the “carry one, carry all” satellite carriage requirement).
 resulting from a market modification that would be technically or economically infeasible for a satellite carrier to implement.  The statute provides that a market modification “shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.” 47 U.S.C. § 338(l)(3)(A).
  In enacting this provision, Congress recognized that the unique nature of satellite television service may make a particular market modification difficult for a satellite carrier to effectuate using its satellites in operation at the time of the determination and thus exempted the carrier from the resulting carriage obligation under those circumstances. Senate Commerce Committee Report at 11 (recognizing “that there are technical and operational differences that may make a particular television market modification difficult for a satellite carrier to effectuate.”).
  This exception applies only in the satellite context. In the cable context, if review of the factors and other evidence demonstrates that a community is part of a station’s market, the modification is granted without reference to issues of technical and economic feasibility.  As explained in the STELAR Market Modification Report and Order, Congress recognized “the inherent difference between cable and satellite television service” by adopting certain “provisions specific to satellite,” including 47 U.S.C. § 338(l)(3)(A)’s feasibility exception.  30 FCC Rcd at 10408, n.6.

7. In the STELAR Market Modification Report and Order, the Commission concluded that the satellite carrier has the burden to demonstrate that the carriage resulting from a market modification is infeasible. STELAR Market Modification Report and Order, 30 FCC Rcd at 10435, para. 38 (observing that, as a practical matter, only the satellite carriers have the specific information necessary to determine if the carriage contemplated in a market modification would not be technically and economically feasible by means of their satellites in operation).
  The Commission requires different demonstrations of infeasibility depending on whether the claim of infeasibility is based on insufficient spot beam coverage or some other basis. Id. at 10435-6, 10438, paras. 39, 42.
  Satellite carriers use spot beams to offer local broadcast stations to targeted geographic areas. Id. at 10430, n.162 (quoting DIRECTV to explain that “[s]pot-beam technology divides up a portion of the bandwidth available to a satellite into beams that cover limited geographic areas” and that “[d]oing so allows particular sets of frequencies to be reused many times.  This spectral efficiency unlocked the potential for satellite carriers to offer local broadcast signals in the late 1990s, and it enables satellite carriers to offer local service today.”)  This is in contrast to a “CONUS” beam, which provides coverage to the entire continental United States and generally carries signals that are available and accessed by subscribers throughout that entire area).
  With respect to claims of “spot beam coverage infeasibility,” the Commission concluded that “it is per se not technically and economically feasible for a satellite carrier to provide a station to a new community that is, or to the extent to which it is, outside the relevant spot beam on which that station is currently carried.” Id. at 10429-30, para. 30.  This is because the only available options to implement the market modification would be: (1) to put the signal on the satellite provider’s CONUS beam (using spectrum that could otherwise be deployed for signals available to subscribers throughout the entire continental U.S.); (2) to reorient existing spot beams (which are already oriented to most efficiently serve the largest number of subscribers); or (3) to carry the same signal on an additional spot beam (using twice as much overall spectrum for the channel at issue as for other channels, which are carried on a single spot beam whenever possible).  The Commission found each of these options infeasible.  Id. at 10431-32, para. 32.  The Commission allows satellite carriers to demonstrate spot beam coverage infeasibility by providing a detailed and specialized certification, under penalty of perjury.  Id. at 10435-36, para. 39.
  With respect to other possible bases for a carrier to assert that carriage would be technically or economically infeasible, such as costs associated with changes to customer satellite dishes to accommodate reception from different orbital locations, the Commission determined that it will review infeasibility claims on a case-by-case basis. Id. at 10438, para. 42.  To demonstrate such infeasibility, the Commission requires carriers to provide detailed technical and/or economic information to substantiate its claim of infeasibility.  Id.; see also id. at 10434-35, para. 36 (requiring satellite carriers to demonstrate infeasibility for reasons other than insufficient spot beam coverage “through the submission of evidence specifically demonstrating the technical or economic reason that carriage is infeasible”).
 
8. Once the threshold issue of technical and economic feasibility is resolved, section 338(l) provides that the Commission must afford particular attention to the value of localism in ruling on requests for market modification by taking into account the following five factors:
(1) whether the station, or other stations located in the same area—(a) have been historically carried on the cable system or systems within such community; and (b) have been historically carried on the satellite carrier or carriers serving such community;
(2) whether the television station provides coverage or other local service to such community; 
(3) whether modifying the local market of the television station would promote consumers’ access to television broadcast station signals that originate in their State of residence;
(4) whether any other television station that is eligible to be carried by a satellite carrier 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
(5) evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community. 47 U.S.C. § 338(l)(2)(B)(i)-(v).

The five statutory factors are not intended to be exclusive.  Each factor is valuable in assessing whether a particular community should be included in or excluded from a station’s local market.  The importance of particular factors will vary depending on the circumstances of each case.  The Commission may also consider other relevant information. Section 338(h)(1)(C)(ii) of the Act directs the Commission to “afford particular attention to the value of localism by taking into account such factors as” those described above (emphasis added).  47 U.S.C. § 338(h)(1)(C)(ii).  The Commission must also consider other relevant information, however, when necessary to develop a result that will “better effectuate the purposes” of the law.  See 47 U.S.C. § 338(l)(1); Definition of Markets for Purposes of the Cable Television Broadcast Signal Carriage Rules, CS Docket No. 95-178, Order on Reconsideration and Second Report and Order, 14 FCC Rcd 8366, 8389, para. 53 (1999) (Cable Market Modification Second Report and Order).

9. Significantly, in the STELAR, Congress added the new statutory factor three quoted above, requiring consideration of access to television stations that are located in the same state as the community considered for modification. See 47 U.S.C. §§ 338(l)(2)(B)(iii), 534(h)(l)(C)(ii)(III).
  This new factor and the legislative history reflect Congress’s intent to promote consumer access to in-state and other relevant television programming.  Indeed, the legislative history expresses Congress’s concern that “many consumers, particularly those who reside in DMAs that cross State lines or cover vast geographic distances,” may “lack access to local television programming that is relevant to their everyday lives” and indicates Congress’s intent that the Commission “consider the plight of these consumers when judging the merits of a [market modification] petition …, even if granting such modification would pose an economic challenge to various local television broadcast stations.” Senate Commerce Committee Report at 11.

10. In the STELAR Market Modification Report and Order, the Commission determined that a satellite market modification petition must include specific evidence describing the station’s relationship to the community at issue.  This standardized evidence approach was based on the existing approach for cable market modifications. See STELAR Market Modification Report and Order, 30 FCC Rcd at 10421-22, para. 20.
  Accordingly, the rules require that the following evidence be submitted:
(1) A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend or satellite carrier local receive facility 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;
(2) Noise-limited service contour maps delineating the station’s technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas;
(3) Available data on shopping and labor patterns in the local market; 
(4) Television station programming information derived from station logs or the local edition of the television guide;
(5) Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings;
(6) 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.-1 a.m., or an equivalent time period) for both multichannel video programming distributor (MVPD) and non-MVPD households or other specific audience information, such as station advertising and sales data or viewer contribution records; and
(7) If applicable, a statement that the station is licensed to a community within the same state as the relevant community. 47 CFR § 76.59(b)(1)-(7). 
 
Petitions for special relief to modify satellite television markets that do not include the above evidence may be dismissed without prejudice and may be re-filed at a later date with the appropriate filing fee. STELAR Market Modification Report and Order, 30 FCC Rcd at 10424, para. 22.
  The Bureau may waive the requirement to submit certain evidence for good cause shown, particularly if it is in a position to resolve the petition without such evidence. Tobacco Valley Communications, 31 FCC Rcd 8972, 8976 n.22 (MB 2016); 47 CFR § 1.3.
  Parties may submit whatever additional evidence they deem appropriate and relevant. Id.  We note that although not required by section 76.59(b), detailed information about programming is extremely important in the orphan county context.  Because geographic proximity tests have less significance in orphan county cases than in other market modification cases, programming information has increased importance in consideration of factor two, and it is essential in determining how much weight to give to factor three.  We therefore strongly encourage and expect petitioners seeking addition of an orphan county, whether they are broadcasters or the counties themselves, to provide information about specific programming, sports, events, and news stories relevant to the community at issue that have been broadcast by the station(s) at issue, and, if relevant, also demonstrate that such programming is not regularly broadcast by any station currently serving the county.

11. In the instant proceeding, the County filed four Petitions seeking modification of the local television markets of Atlanta Stations WSB-TV, WGCL, WAGA, and WXIA-TV to include Stephens County, Georgia.  During the pre-filing coordination process, the satellite carriers each filed Feasibility Certifications.  The DISH Certification states that its current satellites and spot beam configurations render carriage technically feasible, but asserts that carriage may become economically infeasible due to additional costs associated with retransmission consent fees. DISH Certification at 1-2.
  The DIRECTV Certification says that HD and SD service to all zip codes in the County is currently feasible. DIRECTV Certification (“Form of Certification Regarding Spot Beam Coverage” for WSB-TV, WGCL, WAGA, and WXIA-TV).
  The Commission received supportive comments from Georgia’s United States Senators, Johnny Isakson and David Perdue, Congressman Doug Collins of Georgia’s Ninth District, as well as Michelle Ivester, Chairman of the Stephens County Board of Commissioners, and the Georgia Association of Broadcasters. See Letter from Senators Johnny Isakson and David Perdue and Congressman Doug Collins to Ajit Pai, Chairman, FCC (May 19, 2017) (Petition at Exhibit L); Letter from Michelle Ivester, Chairman of the Stephens County Board of Commissioners to Ajit Pai, Chairman, FCC (Nov. 27, 2018) (Petition at Exhibit L); and Letter from Bob Houghton, President, Georgia Association of Broadcasters to Ajit Pai, Chairman, FCC (Nov. 27, 2017) (Petition at Exhibit L).
  The County also provided resident comments in support of the Petitions. Petitions at Exhibit M.
  A single Joint Opposition was filed by the Opposing Stations. See Joint Opposition.

12. The Commission must make two determinations with respect to the Petitions: (1) whether the carriage of a station resulting from a proposed market modification is technically and economically feasible for each of the satellite carriers; and (2) if so, whether the petitions demonstrate that a modification to the station’s television market is warranted, based on the five statutory factors and any other relevant information. See 47 U.S.C. § 338(l); see also 47 CFR § 76.59.

III. DISCUSSION
13. For the reasons set forth below, we find that it is feasible for both DISH and DIRECTV to carry WSB-TV, WGCL, WAGA, and WXIA-TV throughout the County.  We further conclude that the evidence weighs in favor of expanding the markets for each of the Stations to include the County.  We therefore modify the markets of the Stations to include Stephens County, Georgia.
14. As an initial matter, we waive certain of the evidentiary requirements of section 76.59(b) 47 CFR § 76.59(b).
 pursuant to the County’s request. Petitions at 9.
  Specifically, we grant Petitioner’s request to waive the requirement to file MVPD channel line-up cards and published audience data. Id.; 47 CFR §§ 76.59(b)(5) and (6).  
  The County requests a waiver of the MVPD channel line-up cards because “there has not been historic carriage of the Station in the County by satellite carriers.” Id. at 9.
  The County requests a waiver of the published audience data because “given the lack of historical carriage of the station in the County, Nielsen rating or other audience data would not be helpful in evaluating this Petition.” Id. 
  We find good cause to waive these evidentiary requirements, as well as the requirement to file Grade B contour maps, 47 CFR §§ 76.59(b)(2).  See infra note {68}, discussing the maps filed by Petitioner.
 because we have ample evidence to render our decision without them.  However, to minimize the danger of a dismissal due to insufficient evidence, we strongly encourage future Petitioners to closely coordinate with the stations at issue in order to provide a full and complete record. STELAR Market Modification Report and Order, 30 FCC Rcd 10406 at 10418, para. 14.

A. Technical and Economic Feasibility
15. We find that it is technically and economically feasible for both DISH and DIRECTV to provide each of the Stations to the entirety of the County.  In their Feasibility Certifications, both satellite providers indicate that there is no “spot beam infeasibility,” and that relevant spot beam(s) cover all of the County.  DIRECTV states that delivery of the signal to all of the current zip codes in Stephens County in both SD and HD is feasible. DIRECTV Certification.
  DISH states that, at this time, it is unaware of any factors that would make carriage of the Stations technically infeasible; however, it asserts that it “reserves the right to amend this Feasibility Certification at any time due to, among other things, a satellite equipment failure or a different satellite being brought into service for the area that includes the County which has different coverage capabilities than the satellite(s) currently being used.” DISH Certification.
  DISH has not amended its certification.  However, DISH contends that if any of the Stations elects retransmission consent and it is unable to reach an agreement with a given Station, then it would not be possible to provide that Station’s signal into the County.  DISH then asserts that, in such circumstances, it “may be either technically or economically infeasible, or both, for DISH to launch a customer offering with only the remaining stations that did grant retransmission consent.” Id. at 1.
  We clarify that the results of private retransmission consent negotiations play no part in the Commission’s technical and economic feasibility analysis and are not a proper basis for infeasibility.  Therefore, we disregard DISH’s arguments on this issue. Id.

16. The Opposing Stations challenge the Feasibility Certifications submitted by DIRECTV and DISH because they were addressed to Franklin County, which obtained them on behalf of Franklin, Elbert, Hart, and Stephens Counties for a review of their market status, but “do not separately reference Stephens County” and are “more than two years old.” Joint Opposition at 11-12.  
  As a result, the Opposing Stations argue that, particularly with regard to DISH which reserved the right to amend its response, the Petitions should be denied or, alternatively, should be required to be supplemented with new certifications from both DISH and DIRECTV. Id. at 11-12.  We note that parties are responsible for the continuing accuracy and completeness of all information and supporting authority furnished to the Commission.  See 47 CFR § 76.6(a)(6).
  The Opposing Stations cite no supporting authority for their argument, and we find it unavailing.
B. Orphan County Status
17. Stephens is an “orphan county” with insufficient access to in-state programming.  The County is assigned to the Greenville-Spartanburg-Asheville-Anderson DMA, which includes four Georgia counties, 14 counties in North Carolina, and 10 South Carolina counties.Katz Radio Group, Greenvll-Spart-Ashevll-And DMA  Overview, http://www.krgspec.com/MarketSearch.aspx?DMAID=191 (last visited Mar. 29, 2019).
  The Petitioner asserts that Stephens County residents who subscribe to satellite television service have been deprived of the ability to receive preferred in-state Georgia television broadcast stations and instead are relegated to local broadcast content oriented to North and South Carolina. Petitions at 1, 5.  
  The Petitioner argues that residents of the County are currently underserved by the broadcast stations in the current DMA because they are deprived of in-state news, politics, sports, and weather. Id. at 10.
  This claim is supported by comments from County residents and their representatives. See supra notes 36 and 37 and accompanying text.
  
18. With the STELAR’s revisions to the market modification process, and its addition of a satellite market modification process, Congress expressly intended to address orphan county situations like that of Stephens County. The “core purpose of this [market modification] provision of the STELAR [is] to promote consumer access to in-state and other relevant programming.”  STELAR Market Modification Report and Order, 30 FCC Rcd at 10415, para. 12.  See also supra para. 5.
  Indeed, the legislative history observes that “many consumers, particularly those who reside in DMAs that cross State lines or cover vast geographic distances,” may “lack access to local television programming that is relevant to their everyday lives” and instructs us to “consider the plight of these consumers when judging the merits of a [market modification] petition …, even if granting such modification would pose an economic challenge to various local television broadcast stations.” Senate Commerce Committee Report at 11.
  As we observed in the STELAR Market Modification Report and Order, “each petition for market modification will turn on the unique facts of the case,” and there is no single universal way to weight the statutory factors. STELAR Market Modification Report and Order, 30 FCC Rcd at 10421, para. 18.
  In order to best effectuate the goals of the STELAR, we place a strong emphasis on Congress’ concern about orphan county situations in analyzing the factors in this case.  We therefore will give substantial weight to the local and in-state programming a petitioner proposes to bring to the orphan counties, as well as to government official and consumer comments supporting a proposed market modification. Id. at 10417, n.61. 
  In this case, grant of the market modification request would bring much desired in-state programming to Stephens County and the request is supported by many comments from government officials and local residents.
C. Market Modification Analysis Because the Petitions are substantively identical, the Stations are identically situated with respect to carriage into Stephens County, and the Joint Opposition does not distinguish among the Stations in its arguments, we consider them collectively in our analysis below.

19. Historic Carriage.  The first factor we must consider is “whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; or have been historically carried on the satellite carrier or carriers serving such community.” 47 U.S.C. § 338(l)(2)(B)(i).
  Petitioner offers no evidence with respect to historic MVPD carriage other than to concede that there has been no historic satellite carriage, Petitions at 9.
 but argues that “a lack of historical carriage…should [not] weigh against” the Petitions. Id. at 7.
  The Opposing Stations assert that this factor should weigh against the requested market modification because the Atlanta Stations have not been historically carried in the County and the North and South Carolina in-market local affiliates have been carried on the cable and satellite systems in Stephens County for many years. Joint Opposition at 15 and Exhibits A through D. 
  The carriage of the Opposing Stations is not relevant to our analysis, but given the undisputed statement that the Atlanta Stations have no history of carriage in Stephens County, we agree that this factor should weigh against the proposed market modification.
20. Local Service.  Second, we consider “whether the television station provides coverage or other local service to the community.” 47 U.S.C. § 338(l)(2)(B)(ii).  To show that a station provides coverage or other local service to communities at issue in a market modification petition, parties must provide “noise-limited service contour maps … delineating the station’s technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas.”  47 CFR § 76.59(b)(2).  A station’s broadcast of programming specifically targeted to the community at issue may also serve as evidence of local service.  See, e.g., Jones Cable TV Fund 12-A, Ltd., 14 FCC Rcd 2808, 2818, at para. 24 (CSB 1999) (Jones Cable).  Additional examples of ways to demonstrate local service beyond coverage and programming are noted above.  
  Such “local service” can include, for example, the presence of a high quality over-the-air signal; shopping and labor connections between the local community and the station’s community of license; support by the local community for service from the station; and programming, including news or sports coverage, specifically about or addressing the community.  The Petitioner does not demonstrate the presence of high quality over-the-air signals for the Stations and overall geographic proximity measures do not enhance the County’s case. Stephens argues that the Atlanta Stations provide some over-the air coverage of the County, but submit no evidence in support of this claim.  Petitions at 8.  Each Petition includes an Exhibit E, “Summary of Distance to Transmitters from All Channels” and an Exhibit F, “Contour Map.”  Exhibit E does not support Petitioners’ claims, however, and the Opposing Parties correctly note that Exhibit F is “not a contour map at all, but a map showing driving distances between Toccoa, Georgia (the Stephens County seat), and Atlanta.”  Joint Opposition at 18. 

21. However, the County supports its Petition with evidence concerning local shopping and labor patterns.  Specifically, it states that “[b]ased on a survey of Northeast Georgia Orphan County residents, including Stephens County, over 91% of respondents stated that they shop locally or within the state of Georgia.” Petitions at 8, Exhibit G.          
  Additionally, the Petitioner submits that “[o]ver 97% of respondents seek services such as healthcare and arts/entertainment locally or within the state of Georgia.” Id.  In response to seeking healthcare and other services, the results were Local (46.00%), Georgia (51.20%), and South Carolina (2.80%).
  The survey also asked respondents “Would you be interested in receiving in-state television broadcast (Atlanta stations)?” and 94.7% said “Yes.”  The survey also asked: “What is the main reason you are interested in switching to in-state television broadcasts?” and the results were Sports (2.00%), News (14.70%), Politics (1.90%), and All of the Above (81.40%). Id.
  The Opposing Stations argue that the Petitioner has not demonstrated a sufficient nexus between the Atlanta Stations and Stephens County regarding shopping patterns and that the survey shows that the largest percentage of respondents do their shopping locally. Joint Opposition at 23.
  Further, the Opposing Stations assert that the survey lacks any scientific validity because it “fails to provide any information about sample selection or other methodology and no evidence of statistical significance.” Id.
  Overall, the Opposing Stations contend that the evidence does not demonstrate that a substantial number of citizens commute to Atlanta for work or rely on Atlanta for shopping and other services that might demonstrate a geographic nexus to Stephens County. Id. at 23-24.
  While not dispositive, we find that the survey does support the Petition, particularly the avid interest of Stephens County residents in receiving the Atlanta Stations
22. In determining the extent of local service provided by the Stations, we also consider the support for the modifications from local residents and their official representatives.  As the STELAR Market Modification Report and Order made clear, such comments are enormously helpful in demonstrating a nexus between the stations and the local community. 30 FCC Rcd at 10417, n.61 (“[L]ocal government and consumer comments in a market modification proceeding can help demonstrate a station’s nexus to the community at issue.”). 
  In this case, dozens of supportive comments urge a grant of this orphan county market modification request, and we find that these comments merit substantial weight under this factor. Supportive comments were received from Members of Congress as well as from local officials and the Georgia Association of Broadcasters.  See supra para. 11 and note 37.  See also generally consumer comments submitted with the Petitions at Exhibit L.  See, e.g., David Faucette Comments (“I support getting the Atlanta market stations.”); Delane Farmer Comments (“We should be able to hear political views... and local and national news from Atlanta stations.”); Melissa Holcomb Comments (“We need to see the political ads that pertain to our races.  We need traffic and weather for our area.); Rebecca M. Shaver Comments (“Since we travel to Atlanta frequently, it is good to know about traffic situations and the weather there …”); Beth Rider Comments (“We need to travel [to] Atlanta for events…. Therefore, the Atlanta news concerning traffic conditions are helpful in planning our route.”); Roberta Faucett Comments (“I need to know the weather forecast for my area.  South Carolina rarely reports about the Stephens County, GA weather/warnings.”); Richard M. Staley Comments (“Keeping informed with issues and events within the greater [Atlanta] Metropolitan Area, such as news, weather and the seasonal political goings on is important …”); Paula Duley Comments (“I am in favor of having access to the Atlanta Stations for Georgia news”); Sharon Pitts (“The Atlanta channels are more informative since we live in Georgia!  We are able to keep up with the political races if we can pick up the Atlanta stations.”); Randall Davis Comments (“It would be nice to have access to Atlant[a] highway traffic information for our trips to Atlanta”). 

23. With regard to local programming, the Petitioner submits multi-day programming lineups for the Stations for both DISH and DIRECTV and asserts that the Stations broadcast “local news programs[s] with Georgia news, sports, and weather several times a day.” Petitions at 9; Exhibits H and I.   
  However, as the Opposing Stations note, the Petitions appear to rely on “Atlanta programming of ‘Georgia’ news” to demonstrate local service. Joint Opposition at 20-21.  The Opposing Stations assert that Congress never intended for programming of statewide interest to be a proxy for localized programming specifically targeted to the local community; and, there was no intention for evidence of statewide programming, by itself, to be sufficient to satisfy the second factor.  Id. at 20-21.    
  We do not find Petitioner’s submissions to constitute compelling evidence that the Stations provide regular programming specifically about or addressing Stephens County.
24. As discussed above, evidence related to geographic proximity is not determinative in the consideration of a market modification request involving an orphan county, and we generally expect to look more to evidence of community support or relevant programming than to evidence of proximity in orphan county cases. See supra para. 18. 
  In the instant case, the Petitioner has not demonstrated that the Stations offer a significant amount of local programming targeted to Stephens County, but it has offered evidence of community support for access to the Stations as well as evidence of shopping and labor links between Stephens County and Atlanta.  Based on the overall evidence, we find that, on balance, the second statutory factor weighs in favor of the requested modification.
25. Access to In-State Stations.  The third factor we consider is “whether modifying the local market of the television station would promote consumers’ access to television broadcast station signals that originate in their State of residence.” 47 U.S.C. § 338(l)(2)(B)(iii). 
  This factor is satisfied by introduction of an in-state station to a community, but weighs more heavily in favor of modification if the petitioner shows that the involved station provides programming specifically related to subscribers’ state of residence, and may be given even more weight if subscribers in the new community have little (or no) access to such in-state programming. STELAR Market Modification Report and Order, 30 FCC Rcd at 10420, para. 18.  
  The Petitioner states that Stephens County residents “feel disenfranchised and disadvantaged by the lack of access to Atlanta programming, and want to receive news, as well as educational, sports, and other programming from [their] own state capitol.” Petitions at 5 and Exhibit L.
  According to the Petitioner, “Stephens County residents do not have access to specific public affairs programming such as televised debates of gubernatorial candidates, Congressional candidates, candidates for State office, or statewide ballot issues, which compromises their ability to be well informed and well educated as to issues affecting them as citizens of Georgia.” Id.

26. Petitioner also asserts that sports fans in the County have had insufficient opportunities to enjoy their home state Atlanta Falcons and the inaugural season of the Atlanta United Major League Soccer team, as well as University of Georgia collegiate sporting events. Id. at 1, 11.  The Petitioner asserts that in the recent past, Georgia’s sports teams filled national headlines.  The County notes that while the inaugural season of the Atlanta United Major League Soccer team broke multiple records for attendance, due to the lack of sports coverage in Stephens County, participation in youth soccer programs decreased while there was a 37% average increase in participation in the rest of the State.  Regarding professional football, the Petitioner contends that “our residents are forced to watch the Carolina Panthers over their in-state team, Atlanta Falcons.”  In addition, the Petitioner asserts that the University of Georgia (UGA) is a short 45 mile ride from the County seat and some of the County’s high school students attend a dual enrollment program there (“Move on When Ready”), yet during UGA’s path to the National Championship game in the 2017 season, the local broadcasts were filled with Clemson news and sports updates. Id. at 11-12.       
  Petitioner further notes the importance of in-state weather reports and that “the County is at a disadvantage for seeing the incoming weather from the other portions of [the] state.” Id. at 1-2.
  In addition, with regard to in-state programming, Petitioner asserts, citing multichannel lineup cards for DISH and DIRECTV, that the Atlanta Stations broadcast “local news program[s] with Georgia news, sports, and weather several times a day.” Id. at 9-9, Exhibits H and I.  
  The Opposing Stations do not refute the Petitioner’s assertion, but they argue that they already provide sufficient coverage of “local news, weather, sports, issues, and events of interest” to Stephens County and that factor three should therefore be given no additional weight. Joint Opposition at 25-28 and Exhibits A through D.  
  Although the Opposing Stations demonstrate that they provide some coverage of in-state news and sporting events, it is clear from the comments supporting the modification that Stephens County residents consider this coverage to be inadequate. See supra notes 37 and {76}.  
  Based on the record before us, we therefore give this third statutory factor the greatest possible weight in favor of the requested modification.
27. Other Local Stations.  Fourth, we consider “whether any other television station that is eligible to be carried by a satellite carrier 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.” 47 U.S.C. § 338(l)(2)(B)(iv).
  In general, the Commission has interpreted this factor as enhancing a station’s market modification petition if other stations do not sufficiently serve the communities at issue; however, other stations’ service to the communities rarely has counted against a petition. See, e.g., Petition for Modification of Dayton, OH Designated Mkt. Area with Regard to Television Station WHIO-TV, Dayton, OH, Memorandum Opinion and Order, 28 FCC Rcd 16011, 16019, para. 22 (MB 2013); Petition of Tennessee Broad. Partners for Modification of the Television Market for WBBJ-TV/DT, Jackson, Tennessee, Memorandum Opinion and Order, 23 FCC Rcd 3928, 3947, para. 49 (MB 2008).
  The Petitioner states that it is “unaware of another in-state local broadcast station that is carried by a satellite provider in the County that offers Atlanta- and Georgia-oriented news coverage of issues of concern to residents of the County.” Petitions at 7-8.
  This is a misreading of factor 4, however, which is not concerned with the “in-state” location or focus of the existing eligible stations.  Instead, under this factor we look only for the presence of locally-relevant content in the news and events coverage of the existing in-market stations.  The Opposing Stations provide evidence of at least some “news coverage of issues of concern” to Stephens County, and carriage or coverage of at least some “sporting and other events of interest” to the County. Joint Opposition at 25-28 and Exhibits A through D.  
  This is sufficient for us to find that this factor weighs neither against nor in favor of the Petitions, and therefore we consider it to be neutral in our consideration of the Petition.
28. Viewing Patterns.  Finally, we consider “evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community.” 47 U.S.C. § 338(l)(2)(B)(v).
  We do not expect to find strong evidence of regular viewing in orphan counties, and Petitioner offers no evidence relevant to this factor. Petitions at 9 (“[G]iven the lack of historical carriage of the station[s] in the County, Nielsen rating[s] or other audience data would not be helpful in evaluating the Petitions.  Therefore, to the extent necessary, we respectfully request a waiver of this item.”).
  By way of explanation, Petitioner notes that “[b]ecause the County has long been assigned by Nielsen to an out-of-state DMA, STELAR’s market modification provision marks the first opportunity for the County to receive the Station[s]’ signal over satellite.  Given this lack of carriage, residents of the County have had scant opportunity to develop any viewing patterns for the Station[s].” Id. at 7.
  The Opposing Stations argue that, based on their review of Nielsen data that they have not submitted into the record, viewers in Stephens County simply “prefer the In-Market Stations over the Atlanta Stations.” Joint Opposition at 28.  
  Although there is no firm evidence of viewing patterns in the record, Petitioner concedes that “audience data would not be helpful” to its case even if it had been provided. Petitions at 9.
  We therefore hold that this factor weighs against the market modification request. See, e.g., Genesee County Video Corp. and Tri-County Cablevision, Inc. For Modification of the Jamestown, New York ADI, Memorandum Opinion and Order, 12 FCC Rcd 13792 at 13800 (CSB 1997) (“While WNYB's apparent lack of audience share is not outcome determinative, it weighs in favor of deletion.”).  See also California-Oregon Broadcasting, Inc. D/B/A Crestview Cable Communications For Modification of the DMA for Stations: KFXO, NPG of Oregon, Inc., Bend, OR; KOHD, Three Sisters Broadcasting LLC, Bend, OR; KVTZ, NPG of Oregon, Inc., Bend, OR., Memorandum Opinion and Order, 29 FCC Rcd 3833 at 3841(MB 2014) (“Crestview has failed to supply the evidence we requested, nor was its filing complete …Given this conflicting information on KOHD, we assume that … KOHD's carriage history is not extensive and remains unsubstantiated”).

29. Non-statutory Factors.  The Opposing Stations argue that the Petitioner has not established the intent of the Atlanta Stations to authorize carriage of their signals in Stephens County or that the programming the Stations would provide in the future would be specifically targeted to viewers in Stephens County even if the Petitions are granted. Joint Opposition at iii-iv, 7-8, 19.
  The Commission has encouraged county petitioners to “enlist the aid and cooperation of the [stations] they wish to bring to their county.” STELAR Market Modification Report and Order, 30 FCC Rcd at 10418, para. 14.
  Even if they do not, however, our rules do not require the participation or support of the stations, much less commitments with respect to their future programming.  As the Commission has indicated, the active opposition of a station might be a relevant consideration, at least for the county seeking the modification, Id.
 but none of the four Atlanta Stations has opposed the Petition.  We therefore give no weight to these arguments by the Opposing Stations.
IV. CONCLUSION
30. The issue before us is whether to grant Petitioner’s requests to modify the local satellite carriage markets of WSB-TV, WGCL, WAGA, and WXIA-TV, all of which are located in the Atlanta, GA DMA, to include Georgia’s Stephens County, which is currently assigned by Nielsen to the Greenville-Spartanburg-Asheville-Anderson DMA.  Section 338(l) permits the Commission to add or exclude communities from a station’s local television market to better reflect market realities and to promote residents’ access to local programming from broadcasters located in their State. STELAR Market Modification Report and Order, 30 FCC Rcd at 10412-13, para. 7.
  Under this statutory provision, the Commission must afford particular attention to the value of localism. Id.

31. With respect to each of the Stations, we are persuaded by the overall strength of the evidence that a sufficient market nexus exists between the Station and Stephens County.  As the foregoing analysis indicates, this is a close case.  In such circumstances, we believe that the outcome that best serves the intent of Congress in enacting section 338(l) is to provide the petitioning orphan county with the access to in-state programming it is requesting. See supra para. 18.
  We accordingly grant the requests for market modification, and order the addition of Stephens County to the local markets of WSB-TV, WGCL, WAGA, and WXIA on both DISH and DIRECTV. We remind WSB-TV, WGCL, WAGA, and WXIA of their individual obligations to elect retransmission consent or mandatory carriage with respect to Stephens County within 30 days of the release of this Order.  We also remind DISH and DIRECTV of their obligation to commence carriage within 90 days of that election, unless the station(s) have elected retransmission consent and the parties have not agreed to carriage.  47 CFR § 76.66(d)(6).

V. ORDERING CLAUSES
32. Accordingly, IT IS ORDERED, pursuant to section 338 of the Communications Act, as amended, 47 U.S.C. § 338, and section 76.59 of the Commission’s rules, 47 CFR § 76.59, that the captioned petition for special relief (MB Docket No. 18-358, CSR No. 8967-A) filed by Stephens County, Georgia with respect to WSB-TV, Atlanta, Georgia (Facility ID No. 23960) IS GRANTED.
33. IT IS FURTHER ORDERED, pursuant to section 338 of the Communications Act, as amended, 47 U.S.C. § 338, and section 76.59 of the Commission’s rules, 47 CFR § 76.59, that the captioned petition for special relief (MB Docket No. 18-359, CSR No. 8968-A) filed by Stephens County, Georgia with respect to WGCL, Atlanta, Georgia (Facility ID No. 72120) IS GRANTED.
34. IT IS FURTHER ORDERED, pursuant to section 338 of the Communications Act, as amended, 47 U.S.C. § 338, and section 76.59 of the Commission’s rules, 47 CFR § 76.59, that the captioned petition for special relief (MB Docket No. 18-360, CSR No. 8969-A) filed by Stephens County, Georgia with respect to WAGA, Atlanta, Georgia (Facility ID No. 70689) IS GRANTED.
35. IT IS FURTHER ORDERED, pursuant to section 338 of the Communications Act, as amended, 47 U.S.C. § 338, and section 76.59 of the Commission’s rules,47 CFR § 76.59, that the captioned petition for special relief (MB Docket No. 18-361, CSR No. 8970-A) filed by Stephens County, Georgia with respect to WXIA-TV, Atlanta, Georgia (Facility ID No. 51163) IS GRANTED.
36. This action is taken pursuant to authority delegated by section 0.283 of the Commission’s Rules. 47 CFR § 0.283.


FEDERAL COMMUNICATIONS COMMISSION



						


Steven A. Broeckaert
Senior Deputy Chief, Media Bureau, Policy Division

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