Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-7007-A                   |
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| Gray Television Licensee, Inc.   | ) |                              |
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| For Modification of the          | * |                              |
| Harrisonburg,                    |   |                              |
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| Virginia DMA                     | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: July 28, 2006** **Released: August 4, 2006**

By the Deputy Chief, Policy Division, Media Bureau:

# INTRODUCTION

1.  Gray Television Licensee, Inc., licensee of station WHSV-TV (ABC),
    Harrisonburg, Virginia ("WHSV-TV"), filed the above-captioned
    petition for special relief seeking to modify the Harrisonburg,
    Virginia designated market area ("DMA") to include the communities
    of Berryville, Boyce, Frederick, Middletown, Stephens City,
    Winchester, Front Royal and Warren, Virginia. An opposition was
    filed on behalf of ACC Licensee, Inc., licensee of station WJLA-TV
    (ABC), Washington, D.C. ("WJLA-TV"). A joint opposition was also
    filed on behalf of Washington, D.C. broadcasters: NBC Telemundo
    License Co., licensee of station WRC-TV; Fox Television Stations,
    Inc., licensee of stations WTTG and WDCA; Detroit Free Press, Inc.,
    licensee of WUSA; and WBDC Broadcasting, Inc., licensee of station
    WBDC-TV (collectively ("DC Broadcasters"). WHSV-TV filed a reply to
    these oppositions. For the reasons stated above, we grant its
    request.

    **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 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.  The Act also directs the Commission to consider changes in market
    areas in the interest of localism, and provides statutory factors to
    guide the Commission when it considers modifying a market. 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
    requirement 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;

    \(IV\) 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
    the 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.[^6]

    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.  The Commission, moreover, in its *Modification Final Report and
    Order,* adopted rules [^8] to promote administrative efficiency by
    requiring standardized evidence in petitions to modify markets. The
    following evidence is required to be submitted:

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(1) 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.

(2) Grade B contour maps delineating the station's technical service

    area and showing the location of the cable system headends and
    communities

    in relation to the service areas.

    Note to Paragraph (b)(2): Service area maps using Longley-Rice

    (version 1.2.2) propagation curves may also be included to support

    a technical service exhibit.[^9]

(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 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

    cable and noncable households or other specific audience indicia,
    such

    as station advertising and sales data or viewer contribution
    records.[^10]

    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 with a filing fee.[^11] The *Modification Final
    Report and Order* provides that parties may continue to submit
    additional evidence that they deem appropriate.

    **III. Discussion**

    5\. The issue before us is whether to grant WHSV-TV's request to
    include the cable communities to its television market. Inclusion of
    these communities in its market would allow it to assert mandatory
    carriage rights on Adelphia's cable systems serving the cable
    communities.[^12] WHSV-TV is licensed to Harrisonburg, Virginia,
    which is in the Harrisonburg, Virginia DMA. The cable communities
    are located in Clarke, Frederick and Warren Counties, Virginia, and
    are located in the Washington, D.C. DMA.[^13]^4^

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5.  The first statutory 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."[^14]
    WHSV-TV asserts that it has been carried on the cable systems
    serving the communities on its over-the-air channel, Channel 3,
    since the inception of cable service in the area.[^15]^5^ WHSV-TV
    states that the Commission has consistently concluded that history
    of carriage "demonstrates that the relevant cable subscribers value
    the station and that the subscribers in these communities have been
    associated with the market of the station as viewers for a
    considerable period of time."[^16] WHSV-TV argues that the requested
    market modification is necessary to ensure that cable subscribers in
    the subject communities have continued access to a station to which
    they have become accustomed. Finally, WHSV-TV notes that Adelphia
    also carries another station licensed to the Harrisonburg DMA, WVPT
    (PBS, Ch. 15), Staunton, Virginia.[^17] WHSV-TV argues that such
    carriage further demonstrates that both Adelphia and its subscribers
    consider the subject communities to be part of their market.[^18]

6.  Second, we consider "whether the television station provides
    coverage or other local service to such community."[^19] WHSV-TV
    states that it places a predicted Grade A or Grade B signal over the
    communities at issue.[^20] Moreover, WHSV-TV states that a
    Longley-Rice analysis confirms that its signal provides coverage to
    all of the communities, despite the generally mountainous terrain in
    the Shenandoah Valley region.[^21] In addition, WHSV-TV states that
    it airs a wide variety of programming of local interest to the
    subject communities.[^22] WHSV-TV points out that its commitment to
    local service will be increasing dramatically through a new
    Winchester-based daily news service created by WHSV-TV in
    partnership with Shenandoah University.[^23] Further, WHSV-TV argues
    that it is geographically proximate to the communities as all are
    located within 47 miles of WHSV-TV's transmitter site and are
    situated along the Interstate 81 corridor.[^24] WHSV-TV asserts that
    these distances are well within the range that the Commission has
    found acceptable in adding communities to stations' markets.[^25]
    WHSV-TV also states that Rockingham County, where its city of
    license is located, is geographically and economically linked to the
    cable communities via the Interstate 81 corridor and other major
    highways.[^26] Moreover, WHSV-TV states that counties in the
    Harrisonburg DMA and Winchester are linked by common community
    characteristics, history and demographics.[^27] Finally, WHSV-TV
    states that its station is listed in major television viewing guides
    that are distributed in the communities, including *The Winchester
    Star* (serving Frederick County), the *Northern Virginia Daily*
    (serving Frederick, Clarke and Warren Counties), and Zap2it.com, a
    popular Internet site that contains local broadcast listings.[^28]

7.  The third statutory factor we must consider is "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
    provide carriage or coverage of sporting events of interest to the
    community."[^29] WHSV-TV argues that it need not establish that
    other stations carried on cable systems serving the communities fail
    to provide local programming.[^30] It points out that the Commission
    has found that "this criterion was intended to enhance a station's
    claim where it could be shown that other stations do not serve the
    communities at issue" and is relevant only in proceedings where the
    station seeking modification does not provide any local
    service.[^31]

8.  The fourth statutory factor concerns "evidence of viewing patterns
    in cable and noncable households within the areas served by the
    cable system or systems in such community."[^32] WHSV-TV argues that
    Nielsen data confirms that residents in Clarke and Frederick
    Counties turn to WHSV-TV as a source of local programming.[^33]
    WHSV-TV maintains that this data far exceeds viewership figures that
    the Commission has previously found sufficient to weigh in favor of
    a grant of market modification.[^34]

9.  WJLA-TV argues in opposition that WHSV-TV's petition seeks to
    circumvent marketplace realities by stripping the must carry rights
    of WJLA-TV in communities that clearly constitute part of WJLA-TV's
    natural economic market.[^35] WJLA-TV states that the Media Bureau
    has made it clear that the market modification process cannot be
    used in this manner except in very rare instances presenting
    exceptional circumstances; none of which are present here. WJLA-TV
    points out that in *Guy Gannett Communications, Inc.*, *Pacific and
    Southern Company, Inc.*, and *Harron Communications Corp.*,[^36] the
    Bureau denied Portland stations' requests to add Boston DMA
    communities to their market, despite the fact that, respectively,
    the stations met all of the market modification criteria.[^37]
    WJLA-TV states that the petitions were denied because the Portland
    stations' communities of license were geographically closer to the
    subject communities than were the in-market Boston affiliates
    already carried on the cable systems and a grant would have stripped
    the Boston affiliates of their must carry rights.[^38] WJLA-TV
    asserts that the *Portland Decisions* govern this proceeding.
    WHSV-TV's community of license - Harrisonburg, Virginia -- is closer
    to the two headends of the Adelphia cable systems that serve the
    subject communities than WJLA-TV's community of license --
    Washington, D.C.[^39] Moreover, WJLA-TV states that, unlike the
    *Portland Decisions*, the communities sought for inclusion are not
    even contiguous to WHSV-TV's DMA; WHSV-TV has not historically
    maintained a local bureau in the requested communities; or broadcast
    the extent of targeted local programming considered in the *Portland
    Decisions*.[^40] Finally, WJLA-TV argues that factors supporting
    exceptions to the *Portland Decisions* are not present here \--
    WHSV-TV does not provide a Grade A signal to all of the cable
    communities.[^41]

10. WJLA-TV argues further that no significant circumstances favor
    WHSV-TV over WJLA-TV. For instance, the relative distances between
    the stations and the cable communities in this case fit squarely
    into the *Portland Decisions* precedent because WHSV-TV is not
    appreciably closer to any of the communities at issue than is
    WJLA-TV.[^42] None of the cable communities at issue are located on
    the "fringe" of the Washington, D.C. DMA nor are the communities
    adjacent to the Harrisonburg DMA.[^43] Indeed, WJLA-TV notes that
    Warren and Clarke Counties are designated by Nielsen as "Metro
    Counties" for the Washington, D.C. DMA.[^44] Moreover, WJLA-TV
    states that, unlike WHSV-TV, it is significantly viewed in all three
    counties involved in this petition.[^45] In addition, WJLA-TV argues
    that objective viewership levels in the cable communities do not
    demonstrate a preference for the out-of-market affiliate.[^46]
    WJLA-TV states that viewership comparisons demonstrate that cable
    subscribers in the subject communities prefer both WJLA-TV's
    newscasts and its programming to that of WHSV-TV.[^47] Finally,
    WJLA-TV notes that while WHSV-TV makes much of its future plans to
    create a local news program devoted to the Winchester/Berryville and
    Front Royal areas, this programming is not yet in place and cannot
    be relied upon as a basis upon which to grant the requested market
    modification.[^48]

11. The DC Broadcasters argue that WHSV-TV's petition is an
    inappropriate attempt to use the market modification procedure to
    carve up the Washington, D.C. television market and threaten its
    integrity for all the stations in that market.[^49] The DC
    Broadcasters state that WHSV-TV proposes to create two separate,
    noncontinguous must carry markets for itself by trying to include
    communities that lie more than 30 miles from the border of the
    Harrisonburg DMA.[^50] The DC Broadcasters argue that WHSV-TV's
    evidence that the cable communities and Harrisonburg are part of the
    same business, geographic and economic market is incomplete and
    unpersuasive.[^51] If anything, the DC Broadcasters assert, the
    subject communities' nexus is with the Washington, D.C. market and,
    as the Washington D.C. metro area continues to expand westward, the
    communities at issue will be even more fully integrated into that
    market.[^52] Indeed, a comparison of commuting patterns in the
    communities indicates that far more people commute to Washington,
    D.C. than to Harrisonburg.[^53] Moreover, the United States Census
    Bureau includes Frederick, Clarke and Warren Counties as part of the
    Washington-Baltimore-Northern Virginia Combined Statistical
    Area.[^54] The DC Broadcasters argue further that the local
    residents in the subject communities still overwhelmingly look to
    Washington, D.C. television stations, and not WHSV-TV, for their
    local news and other programming.[^55] The DC Broadcasters conclude,
    therefore, that WHSV-TV's petition should be denied.

12. In a reply to both oppositions, WHSV-TV argues that it is a station
    that satisfies all of the statutory criteria for market modification
    and none of the essential facts demonstrating WHSV-TV's local
    service to the communities has been contested.[^56] Moreover,
    despite WJLA-TV's claims, WHSV-TV states that grant of its request
    would simply maintain the *status quo* in the cable communities by
    ensuring that WHSV-TV can continue to deliver its services to
    communities it has served without interruption for decades.[^57]
    WHSV-TV asserts that both WJLA-TV and the DC Broadcasters attempt to
    characterize the instant request as a dangerous and "unprecedented"
    intrusion into the Washington, D.C. market, relying primarily upon
    the *Portland Decisions* in support of their contentions.[^58]
    WHSV-TV argues, however, that the outcome of one market modification
    request does not compel the same outcome in another proceeding as,
    by law, each case must be judged on its own merits.[^59] WHSV-TV
    maintains that the apparent "prohibition" set forth in the *Portland
    Decisions* is belied by the Commission's decision in *Diversified
    Broadcasting, Inc.*, which granted a request from an ABC affiliate
    in Gainesville to add communities located in a different DMA.[^60]
    In granting *Diversified*, WHSV-TV states that the Bureau expressly
    rejected the Tallahassee affiliate's argument that its carriage on
    local cable systems would be endangered since Gainesville was closer
    to the cable headends than Tallahassee.[^61] Efforts by the
    Tallahassee station to overturn *Diversified* were rejected by the
    Commission which held in *Media Ventura Management, Inc.* that
    "\[a\]though the must carry status of network affiliates within
    their markets is a factor to be considered in market modification
    proceedings, this consideration does not preclude modifications
    where the underlying factors warrant such action."[^62]

13. WHSV-TV argues further that, although WJLA-TV claims that the
    *Portland Decisions* are controlling in this instance, the
    fundamental facts and policy considerations that were present in
    those cases are not present here.[^63] For instance, in each of the
    Portland cases, the Bureau found that the in-market affiliate's
    coverage of the communities was equal to or greater than the
    coverage provided by the out-of-market affiliate.[^64] In this
    instance, however, WHSV-TV maintains that its coverage of the
    communities is superior to WJLA-TV's coverage, which is nearly
    nonexistent because of terrain barriers.[^65] Because of the
    terrain, WHSV-TV states that it is the only source of over-the-air
    ABC programming in the entire tri-county region.[^66] Again, unlike
    the *Portland Decisions*, substantial geopolitical boundaries
    separate WJLA-TV from the communities in the form of the Blue Ridge
    Mountains which completely bisect the Washington, D.C. DMA, forming
    eastern and western political boundaries.[^67] WHSV-TV notes that
    the Commission has long recognized that such geopolitical boundaries
    can form a natural barrier separating specific communities from a
    station's economic market.[^68] In addition, WHSV-TV points out that
    the two major population centers in the tri-county area are
    substantially closer to its facilities than to WJLA-TV's
    facilities.[^69] While the *Portland Decisions* were premised on the
    potential for an out-of-market station to adversely affect
    competition among the in-market stations, WHSV-TV argues that that
    is not the situation here.[^70] The Washington DMA spans 33 counties
    in four states and contains more than 2.2 million households.[^71]
    WHSV-TV states that it seeks to add only 54,590 households (little
    more than 2 percent) of all the market households and it is
    inconceivable that such an insignificant number of households could
    adversely impact WJLA-TV or the DC Broadcasters' ability to
    compete.[^72] Finally, WHSV-TV points out that, unlike Portland, it
    is the only commercial station licensed to the Harrisonburg
    DMA.[^73]

14. WHSV-TV also disagrees with WJLA-TV's argument that the Commission
    must give preference to "network-affiliate relations" over the
    specific market modification criteria set forth by Congress.[^74]
    WHSV-TV states that, by statute, the Commission is directed to
    "afford particular attention to the value of localism" and this view
    is supported in the Commission's decision in *Media Venture
    Management*.[^75] WHSV-TV finds it telling that, in a review of
    WJLA-TV's reported local programming, the majority of its focus was
    on communities in or near the core of the Washington DMA.[^76]
    Indeed, WHSV-TV states that it could find only one story related to
    one of the communities at issue between April 2002 and December
    2005.[^77] Moreover, WHSV-TV argues that there is no evidence that
    WJLA-TV has ever elected must carry on the cable systems in the
    tri-county area nor, apparently, on any cable system located
    anywhere in the Washington DMA.[^78] In any event, WHSV-TV asserts,
    it is unlikely that a major network affiliate such as WJLA-TV is at
    risk of being removed from the cable systems serving the
    communities. Those cable systems have carried WJLA-TV for years and
    there is nothing that remotely suggests that it would not continue
    to be carried in the future.[^79] To eliminate any possible concern
    about WJLA-TV's future status, however, WHSV-TV states that it
    consents to a waiver of Section 76.55(b)(5) of the Commission's
    rules that requires a cable operator to carry the closer of two
    duplicating stations, leaving it up to the cable operator to choose
    which affiliate to carry.[^80]

15. In a response to WHSV-TV's reply, WJLA-TV argues that the
    *Diversified* decisions are factually and legally inapposite to the
    situation here and do not support WHSV-TV's market modification
    request.[^81] WJLA-TV states that, unlike the situation here,
    *Diversified* involved the expansion of an ABC affiliate into
    communities on the very fringe of its market whose cable systems had
    ceased carrying their in-market ABC affiliate.[^82] WJLA-TV has
    always been carried in the communities at issue and the communities
    are not on the fringe of the DC market.[^83] In any event, WJLA-TV
    maintains, the *Media Venture* decision, which attempted to overturn
    *Diversified,* did not overturn the *Portland Decisions* as the
    circumstances involved in *Media Venture* and *Diversified* were
    totally dissimilar.[^84] WJLA-TV argues that, although WHSV-TV
    expresses surprise that WJLA-TV, or any of the DC stations, would be
    concerned over the potential loss of must carry rights within their
    own market, it should be pointed out that it was the Bureau, and not
    the Boston stations in the *Portland Decisions* which expressed
    concern over the possible upset to the Boston DMA's
    network/affiliate relationships.[^85] Moreover, despite WHSV-TV's
    claims, WJLA-TV argues that it is abundantly clear that it currently
    serves the communities herein, in contrast to WHSV-TV's vague future
    promises.[^86]

16. WHSV-TV argues in a surreply that *Media Venture* and *Diversified*
    are on point and support the situation at issue here.[^87] Indeed,
    WHSV-TV states that in an even more recent case, *Withers
    Broadcasting Company of West Virginia,* the Bureau granted a West
    Virginia CBS affiliate's request to add communities from the
    Pittsburgh DMA, despite the objections of the Pittsburgh CBS
    affiliate, which also cited the *Portland Decisions*.[^88] WHSV-TV
    maintains that the *Withers* case was consistent with the
    Commission-level decision in *Diversified*.[^89] Finally, WHSV-TV
    argues that the programming logs supplied by WJLA-TV as evidence of
    its commitment to serving the subject communities lists only 2 news
    reports over a two-year period that related to Frederick County,
    Virginia, while none are listed for either Clarke or Warren
    County.[^90]

17. After reviewing the record in this proceeding and taking into
    consideration and weighing all factors, we conclude that the
    statutory factors previously discussed favor granting WHSV-TV's
    petition to include the subject communities in its television
    market. WHSV-TV has a long history of carriage on the cable systems
    serving the communities. WHSV-TV provides predicted Grade A service
    to a number of the communities at issue and predicted Grade B
    coverage to the remainder despite the fact that the communities at
    issue are not immediately contiguous to the Harrisonburg DMA.
    WHSV-TV has shown that it provides local programming to the
    communities and is taking steps to increase that coverage. Finally,
    WHSV-TV attains a significant level of viewership in the
    communities.

18. While both WJLA-TV and the DC Broadcasters have argued that
    WHSV-TV's market modification request will severely impact the
    Washington DMA network affiliate agreements and the must carry
    rights of WJLA-TV in particular, we do not agree.[^91] WJLA-TV has
    been carried on the cable systems serving the communities for at
    least as long as WHSV-TV. It is evident from WJLA-TV's long-term
    carriage that its programming is vitally important to the
    communities. It is true that WHSV-TV's city of license is
    geographically closer to some of the communities than is WJLA-TV,
    but upon review it appears that WHSV-TV and WJLA-TV are, in general,
    equidistant from the communities herein, with some slightly closer
    to Washington and others slightly closer to Harrisonburg. In any
    event, WHSV-TV has offered to waive any advantage it might have with
    regard to carriage rights, should the issue ever arise. Further
    evidence of WJLA-TV's importance to the communities lies in the fact
    that, according to Nielsen's 2005 County/Coverage Survey, WJLA-TV's
    viewership far exceeds that of WHSV-TV in all three counties where
    the communities are located.[^92]

19. It is apparent that WHSV-TV has a strong presence in the communities
    at issue, despite the fact that it is in a neighboring DMA. It is
    also apparent from the evidence that WJLA-TV, the in-market network
    affiliate, has a strong presence. However, given the size of the
    Washington, D.C. DMA, as well as the geographical boundaries
    separating WJLA-TV and the communities, WHSV-TV is in a unique
    position to provide programming focused narrowly on the Shenandoah
    Valley area. Given the relatively small number of subscribers
    affected by this request, when compared to total number of
    subscribers within the Washington, D.C. DMA, and WHSV-TV's history
    of long-term carriage, we believe that the market modification
    factors favor a grant of WHSV-TV's request.

    **IV. ORDERING CLAUSES**

    20\. Accordingly, **IT IS ORDERED,** pursuant to Section 614(h) of
    the Communications Act of 1934, as amended, and Section 76.59 of the
    Commission's rules,[^93]^4^ that the petition for special relief,
    filed by Gray Television Licensee, Inc., licensee of station
    WHSV-TV, to include the communities of Berryville, Boyce, Frederick,
    Middletown, Stephens City, Winchester, Front Royal and Warren,
    Virginia **IS GRANTED.**

    21\. This action is taken pursuant to authority delegated by Section
    0.283 of the Commission's rules.[^94]^5^

    FEDERAL COMMUNICATIONS COMMISSION

    Steven A. Broeckaert

    Deputy Chief, Policy Division

    Media Bureau

[^1]: ^2^ ^2^8 FCC Rcd 2965, 2976-1977 (1993).

[^2]: ^3^ ^3^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. 47 C.F.R. §76.55(e); *see Definition of Markets for Purposes
    of the Cable Television Broadcast Signal Carriage Rules,*14 FCC Rcd
    8366 (1999)(*"Modification Final Report and Order"*).

[^3]: ^4^ ^4^For a more complete description of how counties are
    allocated, *see* Nielson Media Research's *Nielsen Station Index:
    Methodology Techniques and Data Interpretation*.

[^4]: ^5^ ^5^47 U.S.C. §534(h)(1)(C).

[^5]: ^6^ ^6^*Id*.

[^6]: ^7^ ^7^H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992).

[^7]: ^8^ ^8^*Must Carry Order*, 8 FCC Rcd 2965, 2977 n.139.

[^8]: ^?^*Supra* n. 3 , 47 C.F.R. §76.59(b).

[^9]: ^?^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.

[^10]: ^?^47 C.F.R. §76.59(b); *see e.g., Time Warner
    Entertainment-Advance/Newhouse Partnership*, 20 FCC Rcd 5213 (2005).

[^11]: ^?^47 C.F.R. §76.59(c). WDTV previously submitted a petition
    requesting the same market modification. This petition was dismissed
    without prejudice because WDTV did not provide sufficient evidence
    and information to enable the Commission to adequately evaluate its
    request. 20 FCC Rcd 17890 (2005). WDTV's current petition is a
    resubmission of that petition with additional information.

[^12]: ^?^Modification at 1.

[^13]: ^1^ ^14^*Id.* at 2.

[^14]: ^?^47 U.S.C. § 534(h)(1)(C).

[^15]: ^1^ ^15^Modification at 5. WHSV-TV notes that the Commission's
    1972 list of significantly viewed signals lists WHSV-TV as
    significantly viewed in Warren County, where two of the cable
    communities are located.

[^16]: ^?^*Id.* at 6, citing *News Press and Gazette,* 10 FCC Rcd 10331,
    10333 (1995); *News Presss and Gazette,* 10 FCC Rcd 10-327, 10329
    (1995).

[^17]: ^?^*Id.* at Exhibit 2.

[^18]: ^?^*Id.*, citing *MediaOne of Ohio, Inc.,* 14 FCC Rcd 9346,
    9355-56 (1999) (order denying request to delete communities where
    the cable operator voluntarily carried several other stations
    located near the station at issue).

[^19]: ^?^47 U.S.C. § 534(h)(1)(C).

[^20]: ^?^Modification at Exhibit 6.

[^21]: ^?^*Id.; see also Mid-Hudson Cablevision, Inc.,* 15 FCC Rcd 5011,
    5014 n.8 (2000); *Paxson Atlanta License, Inc.,* 13 FCC Rcd 20087,
    20103 (1998); *MediaOne of Los Angeles, Inc. and MediaOne Group,
    Inc.,* 15 FCC Rcd 19386 (2000).

[^22]: ^?^Modification at 8-12 and Exhibits 4, 7, and 8-12.

[^23]: ^?^*Id.*

[^24]: ^?^*Id.* at Exhibits 14 and 15.

[^25]: ^?^*Id.* at 14, citing *KNTV License, Inc.,* 16 FCC Rcd 6785
    (2001) (35-55 miles); *Paxson Atlanta License, Inc.,* 13 FCC Rcd
    20087 (1998) (50 miles); *Burnham Broadcasting, Inc.,* 10 FCC Rcd
    7117 (1997) (48 miles).

[^26]: ^?^*Id.* at Exhibit 15.

[^27]: ^?^*Id.* at Exhibit 16.

[^28]: ^?^*Id.* at Exhibit 17.

[^29]: ^?^47 U.S.C. § 534(h)(1)(C).

[^30]: ^?^Modification at n.45.

[^31]: ^?^*Id.*, citing *Pappas Telecasting, Inc.,* 11 FCC Rcd 6102,
    6107 (1996); *Bradenton Broadcast Television,* 11 FCC Rcd 21044,
    21049 (1996); *Good Companion Broadcasting, Inc., d/b/a Channel 68
    Broadcasting, Inc.,* 11 FCC Rcd 4826, 4835-36 (1996); *Smith
    Television of New York, Inc.,* 10 FCC Rcd 7127, 7130 (1995).

[^32]: ^?^47 U.S.C. § 534(h)(1)(C).

[^33]: ^?^Modification at Exhibit 13. WHSV-TV states that Nielsen data
    for viewers in Clarke and Frederick Counties in 2003, 2004 and
    indicate that, between 7 a.m. and 1 a.m. Sunday-Saturday, WHSV-TV
    achieved average weekly cumes of 13 (Frederick) and 6 (Clarke), 13
    and 11, and 17 and 21, respectively.

[^34]: ^?^*Id.* at 13, citing *Seal Rock Broadcasters, LLC,* 18 FCC Rcd
    16262 (2003); *Ackerley Media Group, Inc.,* 18 FCC Rcd 16199 (2003);
    *KSBW License, Inc.,* 11 FCC Rcd 2368, 2371 (1996).

[^35]: ^?^WJLA-TV Opposition at 1.

[^36]: ^?^13 FCC Rcd 23470 (1998), *recon. denied,* 15 FCC Rcd 10762
    (2000) (*"Guy Gannett"*); 14 FCC Rcd 4558 (1999) (*"Pacific and
    Southern"*); 14 CC Rcd 4547 (1999) (*"Harron"*) (collectively, the
    *"Portland Decisions"*).

[^37]: ^?^WJLA-TV Opposition at 2-3.

[^38]: ^?^*Id.* at 3.

[^39]: ^?^*Id.* at 4. Adelphia's Winchester headend is 64 miles from
    Harrisonburg and 66 miles from Washington, while the Front Royal
    headend is 48 miles from Harrisonburg and 64 miles from Washington.

[^40]: ^?^*Id.* at 5.

[^41]: ^?^According to WJLA-TV, WHSV-TV's predicted Grade A contour
    appears to reach about one-half of Warren County, but not Clarke or
    Frederick Counties. The Longley-Rice analysis of WHSV-TV's signal
    indicates that the station provides a Grade A signal to just 2 of
    the 6 incorporated cable communities. The great majority of
    Frederick County, as well as portions of Clarke and Warren Counties
    receive at best a Grade B signal from WHSV-TV, while significant
    portions of Frederick County receive less than a Grade A signal.
    *See* WJLA-TV Opposition at 7, citing Modification at Exhibit 6, and
    Opposition at 8 (Figure 1).

[^42]: ^?^*Id.* at 9-10.

[^43]: ^?^*Id.* at 10.

[^44]: ^?^*Id.*, citing *Broadcasting and Cable Yearbook 2006* at B-211
    (2005).

[^45]: ^?^*Id.* at 11.

[^46]: ^?^*Id.* at 12.

[^47]: ^?^*Id.* at 12-14.

[^48]: ^?^*Id.* at 14.

[^49]: ^?^DC Broadcasters' Opposition at 1.

[^50]: ^?^*Id.* at 2.

[^51]: ^?^*Id.* at 3.

[^52]: ^?^*Id.*

[^53]: ^?^*Id.* at 3-4.

[^54]: ^?^*Id.* at 5.

[^55]: ^?^*Id.* at 5-7. The DC Broadcasters note that in Warren County,
    WHSV-TV earns no measurable ratings and in both Frederick and Clarke
    Counties, WHSV-TV's ratings are dwarfed by those of the Washington,
    D.C. stations.

[^56]: ^?^Reply at 2.

[^57]: ^?^*Id.* at 3.

[^58]: ^?^*Id.* at 8.

[^59]: ^?^*Id.*

[^60]: ^?^*Id.* at 8-9, citing 13 FCC Rcd 22331 (1998). WHSV-TV notes
    that, much like the case here, the Gainesville station generally
    provided Grade B coverage to the added communities (with the
    exception of 2). However, in that instance, the Gainesville station
    was not significantly viewed and there was no evidence that either
    the local residents preferred the Gainesville station over the
    Tallahassee station or that Gainesville was located substantially
    closer to the cable communities than was Tallahassee.

[^61]: ^?^*Id.* at 9, citing 13 FCC Rcd at 22339.

[^62]: ^?^*Id.* at 10, citing *Media Venture Management, Inc.,* 15 FCC
    Rcd 24552 (2000); *app for rev denied,* 18 FCC Rcd 16065, 16067-68
    (2003).

[^63]: ^?^*Id.* at 12.

[^64]: ^?^*Id.*, citing *Guy Gannett,* 13 FCC Rcd at 23478; *Pacific and
    Southern,* 14 FCC Rcd at 4556; *Harron,* 14 FCC Rcd at 4566.

[^65]: ^?^*Id.* at 12-14. WHSV-TV states that while Longley-Rice
    indicates that it provides at least Grade B service to substantially
    all of Frederick, Warren and Clarke Counties, in addition to some
    City Grade and Grade A coverage, WJLA-TV's signal effectively "drops
    dead" along the entire length of the Blue Ridge mountains.

[^66]: ^?^*Id.* at 15.

[^67]: ^?^*Id.* at 16 n.29.

[^68]: ^?^*Id.,* citing *Comcast Cable Communications, Inc.,* 19 FCC Rcd
    5245, 5252 (2004); *Avenue TV Cable Service, Inc.,* 18 FCC Rcd
    23823, 23830-31 (2003); *Lone Pine Television, Inc.,* 18 FCC Rcd
    23955, 23962 (2003); *Frontier, A Citizens Communications Company,*
    18 FCC Rcd 9589. 9596 (2003); *Cablevision Corporation et al.,* 17
    FCC Rcd 9332, 9342-43 (2002); *Avenue TV Cable Service, Inc.,* 16
    FCC Rcd 16436 (2001).

[^69]: ^?^*Id.* at 17. WHSV-TV states that Winchester is 51 km from
    WHSV-TV's transmitter and 96 km from WJLA-TV's. Front Royal is 71 km
    from WHSV-TV's facilities and 93 km from WJLA-TV's.

[^70]: ^?^*Id.* at 18.

[^71]: ^?^*Id.* at n.35.

[^72]: ^?^*Id.*

[^73]: ^?^*Id.*

[^74]: ^?^*Id.* at 19.

[^75]: ^?^*Id.,* citing 15 FCC Rcd at 24557.

[^76]: ^?^*Id.* at 21. WHSV-TV states that the reports also included
    numerous stories related to communities in several other nearby DMAs
    as well.

[^77]: ^?^*Id.*

[^78]: ^?^*Id.* at 23. WHSV-TV states that it reviewed copies of the
    must carry/retransmission letter for the election periods in 1996,
    1999, 2002, and 2005 from WJLA-TV's public inspection file. Every
    letter indicates that WJLA-TV invoked its right to bar
    retransmission of its signal on cable systems in the Washington, DC
    DMA, without express written consent.

[^79]: ^?^*Id.*

[^80]: ^?^*Id.* at 24-25.

[^81]: ^?^Response at 1-2.

[^82]: ^?^*Id.* at 2, citing *Diversified Broadcasting, Inc.,* 13 FCC
    Rcd 22331, 22338 (1998).

[^83]: ^?^*Id.* at 2.

[^84]: ^?^*Id.* at 3.

[^85]: ^?^*Id.*

[^86]: ^?^*Id.* at 4 and Attachment 1.

[^87]: ^?^*Id.* at 2-3.

[^88]: ^?^*Id.* at 4, citing DA 06-1089 (rel. 5/25/06).

[^89]: ^?^*Id.* at 5.

[^90]: ^?^*Id.* at 7-8.

[^91]: ^?^None of the DC Broadcasters argued that their carriage on the
    cable systems was in jeopardy.

[^92]: ^?^For Clarke County, WJLA-TV's viewership numbers are 7/67 while
    those of WHSV-TV are 0/21. WJLA-TV attains a viewership of 15/62 in
    Frederick County as opposed to WHSV-TV's viewrship of 4/17. And in
    Warren County, WJLA-TV's viewership is 0/49 as compared to that of
    WHSV-TV which is 0/0.

[^93]: ^4^ ^44^47 U.S.C. §534(h), 47 C.F.R. §76.59(c).

[^94]: ^4^ ^45^47 C.F.R. §0.283.