**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of:                | *  |                              |
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| Harron Cablevision of            | ** |                              |
| Massachusetts d/b/a              |    |                              |
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| Harron Communications Corp.      | *) |                              |
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| Petition for Modification of the |    |                              |
| ADI of Television Broadcast      | *  |                              |
| Station WNDS, Derry, New         | *) |                              |
| Hampshire                        | ** |                              |
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| Application for Review           | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: August 1, 2003 Released: August 6, 2003**

By the Commission:

**I. INTRODUCTION**

1\. CTV Derry, Inc., licensee of television station WNDS (TV), Channel
50, Derry, New Hampshire ("WNDS"), has filed an Application for Review
of the decision by the former Cable Services Bureau (the "Bureau") in
*Harron Cablevision of Massachusetts* ("*Bureau Order*").[^1] In the
*Order*, the Bureau granted the petition for special relief filed by
Harron Cablevision of Massachusetts d/b/a Harron Communication
Corporation ("Harron") to exclude the communities of Pembroke, Halifax,
Plympton, Abington and Rockland, Massachusetts (the "Communities") from
the market of WNDS for the purposes of the cable television mandatory
broadcast signal carriage requirements. Harron filed an opposition to
the Application for Review. For the reasons stated below, we deny the
Application for Review.

**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.[^2]^2^ The Communications Act directs the Commission to
consider four statutory market modification factors: (1) historic
carriage of the station; (2) station coverage or other local service to
the community; (3) carriage of other stations in the community; and (4)
evidence of viewing patterns in cable and noncable households within the
community[^3]^3^ The facts, a detailed description of these market
modification provisions and the Commission's related regulations, the
arguments of the parties, and a detailed analysis of those matters are
set forth in the *Bureau Order* and need not be repeated here[^4]^4^

3\. Contending that the Bureau placed excessive emphasis on the Grade B
signal standard, WNDS argues that the Bureau improperly shifted the area
in which a station may exercise its must carry rights from the station's
economic market to its Grade B contour[^5]^5^ Harron states that the
*Bureau Order*, consistent with Congress' objective in enacting the
market modification provisions of Section 614(h), correctly recognized
that the distance between a station and a specific community, or the
presence or absence of the station's Grade B contour are relevant
factors for assessing whether a station provides local programming
coverage to a community.[^6] Harron asserts that the Bureau properly
relied on the Station's failure to provide Grade B service to any of the
Harron Communities in evaluating the modification of WNDS' market[^7]^7^
The Commission has held that the local service requirement is satisfied
if the station's Grade B contour covers the community[^8]^8^ The *Bureau
Order* found that WNDS did not deliver a Grade B, or better, signal to
any of the Harron Communities, and that the station was not
geographically close to the Communities. We find that the *Bureau Order*
gave appropriate weight to the failure of WNDS to provide a Grade B
signal to the Communities in excluding these unserved communities from
WNDS' market.

4\. WNDS argues that Harron made no demonstration that other stations
carried on the Harron system provide targeted local newscasts and public
affairs programming to the Communities[^9]^9^ Contrary to WNDS' claims,
Harron states that stations on its systems provide community dedicated
programming[^10]^10^ Because WNDS does not provide evidence indicating
its programming covers issues or events specific to the Harron
Communities, and Harron demonstrated its carriage of other broadcast
programming tailored to the Communities, we find that the *Bureau Order*
was correct in concluding that there are a number of other television
stations carried by Harron that have a nexus to the Communities and
provide local coverage.

5\. WNDS argues further that the *Bureau Order* failed to consider the
impact of WNDS' prior classification as a "distant signal" on the
station's history of cable carriage and viewership levels[^11]^11^ Under
the historic carriage factor of Section 614, WNDS contends that its
previous classification as a "distant signal" negatively affected
carriage on Harron's systems[^12]^12^ WNDS argues that in *Greater
Worcester Cablevision*, *Inc.*[^13]^13^ ("Greater Worcester") the Bureau
concluded that a station's past status as a "distant signal" precluded
that station from building a record of historic carriage or significant
viewership in the relevant cable communities and that this failure did
not weigh against the station[^14]^14^ WNDS argues that the reasoning
applied by the Bureau in *Greater Worcester* with respect to historic
carriage patterns and viewership should be controlling in the instant
case[^15]^15^ Harron asserts that WNDS' lack of historic carriage and
absence of audience share is of evidential significance when linked with
other information regarding the market, including lack of Grade B
coverage, geographical distance between the Station's city of license
and the Communities, and the absence of noncable audience share in the
Communities[^16]^16^

6\. We believe the facts of the instant case are distinguishable from
those presented in *Greater Worcester*. The significant factor
considered in the evaluation process in that case was that the deletion
of WNDS from the cable communities served by the cable operator would
effectively remove the station from Worcester, Massachusetts, one of the
market's primary population centers[^17]^17^ The Bureau concluded that
WNDS provided local service because the majority of the cable
communities' population fell within the station's predicted Grade B
contour[^18]^18^ The Bureau also concluded that WNDS' Grade B contour
sufficiently encompassed the heavily populated City of Worcester and
that WNDS placed a Grade B contour over many of the neighboring
communities[^19]^19^ Moreover, the cable communities that fell just
outside the station's Grade B contour and the communities within the
contour were part of an integrated cable system[^20]^20^ In light of
these factors and findings, the Bureau in *Greater Worcester* concluded
that the cable communities falling just outside of the station's Grade B
contour should not be removed from WNDS' market[^21]^21^

7\. In the instant case, WNDS asks that the Harron Communities be
retained in the station's market. However, the findings at the core of
the *Greater Worcester* decision are not present in this case. WNDS
fails to provide a Grade B signal to the Harron Communities. In
addition, contrary to the facts of *Greater Worcester,* no local service
is provided to the relevant communities. Moreover, the cable communities
in the *Greater Worcester* case that were located just outside the Grade
B contour were part of an inter-related cable system serving Worcester,
Massachusetts, one of the primary population centers served by the
station. Furthermore, in Greater Worcester the station placed a grade B
contour over the City of Worcester and was found to provide local
service to that community. Consequently, in Greater Worcester there was
a basis for the finding that the communities in that case were part of
the relevant station's economic market. In this instance, however, no
such finding can be made. A station's assignment to a DMA is intended,
according to the legislative history of the 1992 Cable Act, "to insure
that the television stations be carried in the areas which they service
and which form their economic market."[^22]^2^

8\. The DMA market modification process is intended to insure that a
station's economic market is fairly represented by applying the concept
of localism set forth in the four statutory factors along with any other
relevant information. In this instance, Harron has successfully shown
that WNDS' television market does not include the communities at issue.
With respect to historic carriage, WNDS has been in operation since
1983. We believe that WNDS' failure to be carried for over 17 years
reflects the lack of geographic proximity to the subject communities and
is not solely attributable to its prior status as a distant signal.
Given the circumstances here, including the lack of local service, the
failure to place a Grade B signal over the community, as well as, the
lack of historical carriage and low viewership, there is a sufficient
basis for excluding the Harron Communities from WNDS' market.

9\. Finally, WNDS argues that Harron's desire to avoid the obligation of
carrying WNDS is not sufficient reason for denying WNDS carriage in a
portion of the market in which it competes with other Boston market
stations[^23]^23^ Harron asserts that the substantial distance between
WNDS' city of license and the Communities is the type of situation that
warrants the exclusion of a station from certain communities within a
station' s designated market[^24]^24^ Harron also argues that WNDS has
never been able to deliver a viewable signal to the Communities[^25]^25^
The *Bureau Order* clearly enumerated the market modification factors
and set forth the reasons for WNDS' failure to meet each criterion. WNDS
has failed to demonstrate that such decision was based on an erroneous
analysis of the factors that shape its television market. In these
respects, the findings and conclusions of the *Bureau Order* are solidly
based on the analysis and application of the market modification
provisions of Section 614(h). Accordingly, we affirm the conclusion
reached in the *Bureau Order* that the requested market modification
will effectuate the purposes of the must carry statutory provisions and
associated Commission rules.

**III. ORDERING CLAUSES**

10\. Accordingly, **IT IS ORDERED**, PURSUANT TO Section 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), and Section 1.115 of
the Commission' s rules, 47 C.F.R. 1.115, that the captioned Application
for Review **IS DENIED.**

FEDERAL COMMUNICATION COMMISSION

Marlene H. Dortch Secretary

[^1]: 12 FCC Rcd 12096 (CSB 1997).

[^2]: ^"2^ *See* 47 U.S.C. § 534(h)(1)(C)(i).

[^3]: ^.3^ *See* 47 U.S.C. § 534(h)(1)(C)(ii).

[^4]: ^.4^ At the time the *Bureau Order* was released, Section 76.55(e)
    of the Commission's rules provided that Arbitron Areas of Dominant
    Influence (ADIs) be used for purposes of the mandatory carriage
    rules. That rule was amended in 1999 to require that commercial
    broadcast television station markets be defined by Nielsen Media
    Research's designated market areas ("DMAs" ). *See* 47 C.F.R. §
    76.55(e); *see also Definition of Markets for Purposes of the Cable
    Television Broadcast Signal Carriage Rules*, 14 FCC Rcd 8366 (1999)
    ("*Modification Final Report and Order").*

[^5]: ^.5^ WNDS Application for Review at 3.

[^6]: ^6^ Harron Opposition at 4.

[^7]: ^.7^ *Id.*

[^8]: ^.8^ *Implementation of the Cable Television Consumer Protection
    and Competition Act of 1992, Broadcast Signal Carriage Issues,* 8
    FCC Rcd 2965, 2977. The Commission has found that the local service
    requirement is also satisfied if the station "is located close to
    the community in terms of mileage. *Id.*

[^9]: ^.9^ WNDS Application for Review at 6.

[^10]: ^.10^ Harron Opposition at 7.

[^11]: ^.11^ WNDS Application for Review at 4.

[^12]: ^.12^ *Id.*

[^13]: ^,13^ 10 FCC Rcd 12569 (1995). WNDS was the station at issue in
    *Greater Worcester*. That proceeding did not involve the communities
    in the instant proceeding.

[^14]: ^.14^ WNDS Application for Review at 4-5, *citing* *Greater
    Worcester,* 10 FCC Rcd at 12572.

[^15]: ^.15^ WNDS Application for Review at 5 and 7.

[^16]: ^.16^ Harron Opposition at 9. The distances between the city of
    license for WNDS and the Communities are: Rockland - 56 miles;
    Abington - 57 miles; Pembroke - 62 miles; Halifax - 66 miles; and
    Plympton -- 69 miles.

[^17]: ^.17^ *Greater Worcester,* 10 FCC Rcd at 12572.

[^18]: ^.18^ *Id.* at 12572-73.

[^19]: ^.19^ *Id.*

[^20]: ^.20^ *Id.*

[^21]: ^.21^ *Id.*

[^22]: ^22^ H.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992); See
    Review of the Commission's Regulations Governing Television
    Broadcasting, 14 FCC Rcd 12903, 12926 (1999) ("DMAs are a better
    measure of actual television viewing patterns, and thus serve as a
    good measure of the economic marketplace in which broadcasters,
    program suppliers and advertisers buy and sell their services and
    products.")

[^23]: ^.23^ WNDS Application for Review at 3.

[^24]: ^.24^ Harron Opposition at 3.

[^25]: ^.25^ *Id.*