Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of:                | ) | CSR 5043-A                   |
|                                  |   |                              |
| Harron Cablevision of            | ) |                              |
| Massachusetts                    |   |                              |
|                                  | ) |                              |
| d/b/a Harron Communications      |   |                              |
| Corp.                            | ) |                              |
|                                  |   |                              |
| For Modification of Market of    | ) |                              |
|                                  |   |                              |
| Station WPXB-TV, Merrimack,      | ) |                              |
|                                  |   |                              |
| New Hampshire                    | ) |                              |
|                                  |   |                              |
| Application for Review           | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 26, 2001 Released: March 2, 2001**

By the Commission:

**I.** **INTRODUCTION**

1\. Paxson Boston License, Inc. (\"Paxson\"), licensee of WPXB-TV,[^1]
Merrimack, New Hampshire, has filed an Application for Review of the
Cable Services Bureau's (the \"Bureau\") Order in *Harron Cablevision of
Massachusetts, d/b/a Harron Communications Corp.* (\"*Bureau
Order*\").[^2] The *Bureau Order* granted the Petition for Special
Relief of Harron Cablevision of Massachusetts, d/b/a Harron
Communications Corp. ("Harron") pursuant to Sections 76.7(a) and
76.59(a) of the Commission\'s rules,[^3] and deleted certain communities
in Plymouth County, Massachusetts from WPXB-TV's Boston television
market for must carry purposes. [^4] Harron filed an opposition to the
application for review, and Paxson filed a reply.

**II. DISCUSSION**

2\. Section 614(h)(1)(C)(i) of the Communications Act authorizes the
Commission to add communities to, or delete communities from a
television station\'s market \"to better effectuate the purposes of this
section.\"[^5] The detailed facts, applicable law, and arguments of the
parties are set forth in the *Bureau Order* and need not be repeated
here. It is sufficient for our review to note that the Bureau granted
the petition filed by Harron requesting deletion of designated
communities in Plymouth County, Massachusetts from the Boston,
Massachusetts area of dominant influence ("ADI"),[^6] insofar as
mandatory carriage of WPXB-TV was concerned. The Bureau found that
WPXB's absence of historic signal carriage, lack of measured audience in
the cable communities, lack of significant programming relevant to the
designated communities, lack of Grade A or Grade B contour coverage,
geographic remoteness, and the provision of local service and coverage
by other local stations justified the station's exclusion.[^7]

3\. Paxson contends that the Commission should reverse the *Bureau
Order* because it fails to adequately explain how denial of WPXB's
carriage rights in the cable communities "better effectuates" the
purposes of the must carry provisions of the Cable Television Consumer
Protection and Competition Act of 1992 ("1992 Cable Act").[^8] Paxson
argues that the Bureau incorrectly defined WPXB's local market in terms
of Grade B contours or mileage rather than DMA's.[^9] Paxson asserts
that the Bureau's decision will have a devastating effect on the
station's economic and competitive market position, and undermines the
central purpose of the must carry rules.[^10] In its Opposition, Harron
argues that the *Bureau Order* properly considered the statutory factors
in evaluating the petition for market modification.[^11]

4\. After reviewing the record, we find no basis for overturning the
*Bureau Order*. The record here shows that the Bureau correctly
considered the market modification provisions. In reaching its
determination, the Bureau concluded that no single factor was outcome
determinative. Rather, the Bureau relied collectively on factors such as
the absence of any historic cable carriage or over-the-air viewing of
WPXB-TV in the communities, the provision of local services by other
area stations, the lack of WPXB-TV programming designed to serve the
designated communities, the lack of Grade B or better coverage to the
communities, and geography. We find the analysis in the *Bureau Order*
regarding these factors to be fully supported by record evidence. The
findings and conclusions of the *Bureau Order* are not only solidly
based on that record, they are fully consistent with the analysis and
application of the market modification provisions of Section 614(h) set
forth in *New York ADI Appeals*[^12] which was upheld on review in
*WLNY-TV, Inc. v. FCC*.[^13] Finally, we disagree with Paxson's
assertion that the Bureau failed to adequately explain how denial of
WPXB's carriage rights better effectuates the purposes of the must carry
requirements. The Bureau explained that:

The market change process incorporated into the Communications Act . . .
is not intended to be a process whereby cable operators may seek relief
from the mandatory signal 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 Harron's deletion petition
appears to be a legitimate request to redraw \[market\] boundaries to
make them congruous with market realities.[^14]

Modifying market boundaries to reflect market realities is the intended
purpose of Section 614(h)(1)(C) and we believe that the Bureau's
modification in this instance better effectuates the purposes of Section
614(h)(1)(C).[^15]

**III.** **ORDERING CLAUSES**

5\. Accordingly, **IT IS ORDERED**, pursuant to Sections 1, 4(i), 5(c),
405, and 614(h)(1)(C) of the Communications Act of 1934, as amended, 47
U.S.C. §§151, 154(i), 155(c), 405, 534(h)(1)(C), that the captioned
application for review **IS DENIED**.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: ^?^WPXB-TV was formerly known as WGOT-TV. *See* Public Notice,
    December 19, 1997.

[^2]: ^?^*Harron*, 12 FCC Rcd. 21996 (1997).

[^3]: ^?^47 C.F.R. §§ 76.7(a) and 76.59(a).

[^4]: ^?^The communities deleted were Pembroke, Halifax, Plympton,
    Abington, and Rockland Massachusetts.

[^5]: ^?^*See* 47 U.S.C. §534(h)(1)(C)(i).

[^6]: ^?^*Harron,* 12 FCC Rcd at 22001. An ADI is a geographic market
    designation that defines each television market exclusive of others,
    based on measured viewing patterns. Although the Commission has
    determined to switch market definitions from ADIs to Nielsen Media
    Research\'s designated market areas (\"DMAs\"), we continued use of
    Arbitron\'s *1991-1992 Television ADI Market Guide* market
    designations for the period involved in this proceeding and
    postponed the switch to Nielsen\'s DMAs until the
    must-carry/retransmission consent election that took place on
    October 1, 1999. *See Definition of Markets for Purposes of the
    Cable Television Mandatory Television Broadcast Signal Carriage
    Rules*, Report and Order and Further Notice of Proposed Rule Making,
    11 FCC Rcd 6201 (1996) (*\"Market Modification Report and Order\"*).
    For the must-carry/retransmission consent elections that took place
    on October 1, 1999, commercial television stations were required to
    make their elections based on DMAs. *See Definition of Markets for
    Purposes of the Cable Television Broadcast Signal Carriage Rules*
    ("Order on Reconsideration"), and *Modification Final Report and
    Order*, 14 FCC Rcd 8366 (1999) (Second Report and Order). Effective
    January 1, 2000, Section 76.55(e) now requires that a commercial
    broadcast television station's market be defined by Nielsen Media
    Research's DMAs.

[^7]: ^?^*Harron,* 12 FCC Rcd at 22001.

[^8]: ^?^*See* Paxson Application for Review at 9-14.

[^9]: ^?^*Id*.

[^10]: ^?^*Id.* at 14.

[^11]: ^?^*See* Harron Opposition at 4-7.

[^12]: ^?^12 FCC Rcd 12262 (1997).

[^13]: ^?^163 F. 3d 137 (2d Cir. 1998).

[^14]: ^?^*Harron,* 12 FCC Rcd at 22001.

[^15]: ^?^H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992); 47 U.S.C.
    §534(h)(1)(C)(i); *Implementation of the Cable Television Consumer
    Protection and Competition Act of 1992, Broadcast Signal Carriage
    Issues ("Must Carry Order"),* 8 FCC Rcd 2965, 2976.