Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of:                | * | CSR-5451-A                   |
|                                  | * |                              |
| Mid-Hudson Cablevision, Inc.     | ) |                              |
|                                  | * |                              |
| Petition for Modification of the | * |                              |
|                                  |   |                              |
| ADI Market of Station WYPX,      | * |                              |
|                                  | * |                              |
| Channel 55                       | ) |                              |
|                                  | * |                              |
| Amsterdam, New York              | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+
|                                  |   |                              |
+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: March 9, 2000 Released: March 13, 2000**

By the Deputy Chief, Cable Services Bureau:

# I. INTRODUCTION

#  1. Mid-Hudson Cablevision, Inc. ("Mid-Hudson") has filed a petition with the Commission pursuant to Sections 76.7 and 76.59 of the Commission's rules[^1] which seeks to delete certain communities served by Mid-Hudson from the television market of WYPX, (Channel 55), Amsterdam, New York. Specifically, Mid-Hudson requests that the communities served by its Catskill, New York headend be excluded from WYPX's television market. The communities include Ashland, Athens (Town), Athens (Village), Bethlehem, Cairo, Catskill (Town), Catskill (Village), Claverack, Coeymans, Coxsackie (Town), Coxsackie (Village), Gallatin, Greenport, Greenville, Hudson, Livingston, New Baltimore, Philmont, Prattsville, Ravena, Stockport, Westerlo, and Windham. WYPX did not file an opposition. 

# 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*"),[^2] commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "designated market area," or DMA, as defined by Nielsen Media Research.[^3] 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.[^4]

3\. Under the Act, however, the Commission is also directed to consider
changes in market areas. Section 614(h)(1)(C) provides that the
Commission may:

> with respect to a particular television broadcast station, include
> additional communities within its television market or exclude
> communities from such station's television market to better effectuate
> the purposes of this section.[^5]

4\. In considering such requests, the 1992 Cable Act provides that:

> the Commission shall afford particular attention to the value of
> localism by taking into account such factors as --
>
> \(I\) whether the station, or other stations located in the same area,
> have been

historically carried on the cable system or systems within such
community;

> \(II\) whether the television station provides coverage or other local
> service to such community;
>
> \(III\) whether any other television station that is eligible to be
> carried by a cable system in such community in fulfillment of the
> requirements of this section provides new coverage of issues of
> concern to such community or provides carriage or coverage of sporting
> and other events of interest to the community; and
>
> \(IV\) evidence of viewing patterns in cable and noncable households
> within the areas served by the cable system or systems in such
> community.[^6]

5\. The legislative history of the provision states that:

> where the presumption in favor of \[DMA\] carriage would result in
> cable subscribers losing access to local stations because they are
> outside the \[DMA\] in which a local cable system operates, the FCC
> may make an adjustment to include or exclude particular communities
> from a television station's market consistent with Congress' objective
> to ensure that television stations be carried in the area in which
> they serve and which form their economic market.
>
> \* \* \* \*
>
> \[This subsection\] 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.[^7]

6\. Recently, in the *Modification Final Report and Order,* the
Commission, in an effort to promote administrative efficiency, adopted a
standardized evidence approach for modification petitions that requires
the following evidence be submitted:

(A) A map or maps illustrating the relevant community locations and
    > geographic features, station transmitter sites, cable system
    > headend locations, terrain features that would affect station
    > reception, mileage between the community and the television
    > station transmitter site, transportation routes and any other
    > evidence contributing to the scope of the market.

> \(B\) Grade B contour maps delineating the station's technical service
> area and showing the location of the cable system headends and
> communities in relation to the service areas.
>
> Note: Service area maps using Longley-Rice (version 1.2.2) propagation
> curves may also be included to support a technical service
> exhibit.[^8]
>
> \(C\) Available data on shopping and labor patterns in the local
> market.
>
> \(D\) Television station programming information derived from station
> logs or the local edition of the television guide.
>
> \(E\) Cable system channel line-up cards or other exhibits
> establishing historic carriage, such as television guide listings.
>
> \(F\) Published audience data for the relevant station showing its
> average all day audience (i.e., the reported audience averaged over
> Sunday-Saturday, 7 a.m., or an equivalent time period) for both cable
> and noncable households or other specific audience indicia, such as
> station advertising and sales data or viewer contribution records.[^9]

Petitions for special relief to modify television markets that do not
include the above evidence shall be dismissed without prejudice and may
be re-filed at a later date with the appropriate filing fee. Parties may
continue to submit whatever additional evidence they deem appropriate
and relevant.

7\. With respect to deletions of communities from a station's market,
the legislative history of this provision states that:

> The provisions of \[this subsection\] reflect a recognition that the
> Commission may conclude that a community within a station's \[DMA\]
> may be so far removed from the station that it cannot be deemed part
> of the station's market. It is not the Committee's intention that
> these provisions be used by cable systems to manipulate their carriage
> obligations to avoid compliance with the objectives of this section.
> Further, this section is not intended to permit a cable system to
> discriminate among several stations licensed to the same community.
> Unless a cable system can point to particularized evidence that its
> community is not part of one station's market, it should not be
> permitted to single out individual stations serving the same area and
> request that the cable system's community be deleted from the
> station's television market.[^10]

8\. In adopting rules to implement this provision, the Commission
indicated that requested changes should be considered on a
community-by-community basis rather than on a county-by-county basis,
and that they should be treated as specific to particular stations
rather than applicable in common to all stations in the market.[^11] The
rules further provide, in accordance with the requirements of the 1992
Cable Act, that a station not be deleted from carriage during the
pendency of a modification request.[^12]

# iii. discussion

9\. The issue before us is whether to grant Mid-Hudson's request to
exclude the communities served by its Catskill headend from the
television market of WYPX. WYPX is licensed to Amsterdam, New York,
which is deemed to be part of the Albany-Schenectady-Troy DMA.[^13] The
Mid-Hudson Communities are also located within the
Albany-Schenectady-Troy DMA.[^14] 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 carriage
obligations apart from the question of whether a change in the market
area is warranted. When viewed against this backdrop and considering all
of the relevant factual circumstances in the record we believe that,
with one exception, Mid-Hudson's deletion petition appears to be a
legitimate request to redraw DMA boundaries to make them congruous with
market realities.

10\. In support of its request, Mid-Hudson states that WYPX does not
meet any of the statutory factors necessary to justify carriage on its
system.[^15] First, Mid-Hudson asserts that WYPX does not have a history
of carriage in the Communities despite being on-the-air since 1987.[^16]
Mid-Hudson maintains that, because of the lack of historical carriage,
removing the Communities from WYPX's market would not disrupt
established viewing patterns or deprive WYPX of any existing cable
audience.[^17]

11\. With regard to the statutory factor of local coverage, Mid-Hudson
submits a Longley-Rice signal coverage map illustrating the reach of
WYPX's predicted Grade B contour.[^18] Mid-Hudson notes that the
Longley-Rice study demonstrates that nearly all of the communities at
issue are located beyond WYPX's Grade B contour reach. Specifically,
Mid-Hudson states that 12 of the communities at issue located in Greene
County and 11 of the communities at issue located in Albany and Columbia
Counties are located outside of WYPX's Grade B contour.[^19] In
addition, Mid-Hudson states that the remaining three communities at
issue fall within the fringe of WYPX's Grade B contour.[^20] We have
reviewed the Longley-Rice coverage map and we find that, with respect to
the community of Bethlehem, WYPX provides Grade B coverage.

12\. Mid-Hudson maintains that the Communities are geographically
distant from WYPX's city of license. Mid-Hudson states that the
distances range from 31 miles (Bethlehem) to approximately 70 miles
(Gallatin) and that the average distance is 47 miles.[^21] Mid-Hudson
argues that those distances are similar to or exceed the distances that
the Commission has found to justify prior market modification
requests.[^22] In addition, Mid-Hudson maintains that, based upon
studies of WYPX's signal strength, it is unlikely that WYPX provides an
adequate off-air signal to each of the communities at issue or even to
individual households in those communities.[^23]

13\. Mid-Hudson states that WYPX does not provide any local programming
to the Communities as shown by WYPX's program listings.[^24] Mid-Hudson
further states that there is no evidence of WYPX\'s local programming in
the *Hudson Valley Newspapers*, the local newspaper serving the
Communities*.*[^25] Mid-Hudson argues that the lack of local programming
provides further evidence that WYPX does not provide local coverage to
the communities at issue.

14\. Mid-Hudson states that its system serving the Communities carries
several stations licensed to Albany and surrounding communities that
provide Grade B coverage, an actual off-air signal, and extensive
coverage of local news and sporting events.[^26] For example, Mid-Hudson
states that it carries television stations WRGB(CBS), WTEN(ABC),
WNYT(NBC), WXXA (FOX), and WRNN, each of which airs several local
newscasts on a daily basis.[^27] Thus, Mid-Hudson argues that, in light
of the stations that it currently carries, any local programming
provided by WYPX would not provide any special benefits to the
Communities.

15\. With regard to the last statutory factor, audience viewing
patterns, Mid-Hudson states that WYPX has no significant viewership in
the Communities.[^28] Mid-Hudson commissioned a study conducted by Media
Strategies to indicate the level of ratings for WYPX in cable and
non-cable households in the Communities. The study indicates that WYPX
has no ratings in either cable or non-cable households in Albany,
Columbia, or Greene Counties where the communities at issue are
located.[^29]

16\. We have considered each of the statutory factors in connection with
the evidence submitted by Mid-Hudson and conclude that the deletion of
the Communities from the television market of WYPX will better
effectuate the underlying purpose of the market modification statute by
ensuring that television stations are carried in areas which they serve
and which form their economic market. We find that the evidence
submitted in the record complies with the standardized evidence approach
prescribed in the *Modification Final Report and Order*. We further find
that the evidence is persuasive with regard to the deletion of the each
of the communities at issue, except the community of Bethlehem, from the
television market of WYPX. We deny Mid-Hudson's request with respect to
Bethlehem because of the Grade B coverage provided by WYPX and the
proximity of Bethlehem to Mid-Hudson's principal headend**.** We note
that WYPX did not oppose Mid-Hudson's request for market modification.

**IV. ORDERING CLAUSES**

17\. Accordingly, **IT IS ORDERED**, pursuant to Section 614(h) of the
Communications Act of 1934, as amended, 47 U.S.C. § 534(h), and Section
76.59 of the Commission's rules, 47 C.F.R. § 76.59, that the petition
for special relief filed by Mid-Hudson Cablevision, Inc., **IS GRANTED**
and the television market of television broadcast station WYPX, Channel
55, Amsterdam, New York, **IS MODIFIED** to delete the following
communities: Ashland, Athens (Town), Athens (Village), Cairo, Catskill
(Town), Catskill (Village), Claverack, Coeymans, Coxsackie (Town),
Coxsackie (Village), Gallatin, Greenport, Greenville, Hudson,
Livingston, New Baltimore, Philmont, Prattsville, Ravena, Stockport,
Westerlo, and Windham.

> 18\. **IT IS FURTHER ORDERED** that Mid-Hudson's market modification
> request with respect to the community of Bethlehem **IS DENIED**.
>
> 19\. This action is taken pursuant to authority delegated by Section
> 0.321 of the Commission's rules, 47 C.F.R. § 0.321.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson Deputy Chief, Cable Services Bureau

[^1]: 47 C.F.R. §§ 76.7 and 76.59.

[^2]: 8 FCC Rcd 2965, 2976-2977 (1993).

[^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, commerical publications which delineate television
    markets based on viewing patterns. *See* 47 U.S.C. §534(h)(1)(C).
    Until January 1, 2000, Section 76.55(e) of the Commission's rules
    provided that Arbitron's "Areas of Dominant Influence," or ADIs,
    published in the *1991-1992 Television Market Guide,"* be used to
    implement the mandatory carriage rules. Effective January 1, 2000,
    however, Section 76.55(e) now requires that a commercial broadcast
    television station's market be defined by Nielsen Media Research's
    DMAs. For the must-carry/retransmision 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 Second Report and
    Order, 14 FCC Rcd 8366 (1999)(*"Modification Final Report and
    Order"*).

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

[^5]: 47 U.S.C. §534(h)(1)(C).

[^6]: *Must Carry Order,* 8 FCC Rcd 2965, 2976 (1993).

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

[^8]: The Longley-Rice model provides a more accurate representation of
    a station's technical coverage area because it takes into account
    such factors as mountains and valleys that are not specifically
    reflected in a traditional Grade B contour analysis. In situations
    involving mountainous terrain or other unusual geographical
    features, Longley-Rice propagation studies can aid in determining
    whether or not a television station actually provides local service
    to a community under factor two of the market modification test.

[^9]: 47 C.F.R. §76.59(b).

[^10]: H.R. Rep. 102-628, 102d Cong., 2d Sess. 97-98 (1992).

[^11]: 8 FCC Rcd 15 2977 n. 139.

[^12]: 47 C.F.R. §76.59.

[^13]: Petition at 1. The Commission's change of market definitions for
    must-carry purposes from ADIs to DMAs did not result in a change in
    the communities considered to be part of the Albany-Schenectady-Troy
    television market. *See Modification Final Report and Order*, 14 FCC
    Rcd 8366 at Appendix B.

[^14]: *Id.* at 2 , *see also Complaint of Paxson Albany License, Inc.*,
    DA 99-2804 (CSB rel. Dec. 16, 1999) in which WYPX was granted
    must-carry status on Mid-Hudson's cable system serving communities
    in the Albany-Schenectady-Troy ADI.

[^15]: Petition at 2.

[^16]: *Id*. at 3. Mid-Hudson attaches its channel line-up at Exhibit 3.

[^17]: *Id*.

[^18]: Petition at 4 and Exhibit 4.

[^19]: *Id*.

[^20]: *Id*.

[^21]: Petition at 4 and Exhibit 1.

[^22]: *Id*. *citing Greater Worcester Cablevision, Inc.,* DA 98-2262
    (1998) (39 to 70 miles), *Greater Worcester Cablevision*, 12 FCC
    Rcd. 17347 (1997) (38 to 61 miles), *Time Warner Cable*, DA 97-1009
    (1997), *Time Warner Cable*, 11 FCC Rcd Rcd. 13149 (1996)(45 miles)
    and *Cablevision of Cleveland, L.P. and V Cable Inc. d/b/a/
    Cablevision of Ohio*, 11 FCC Rcd. 18034 (1996) (41 miles).

[^23]: Petition at 5 and Exhibit 5.

[^24]: Petition at 5 and Exhibit 6.

[^25]: Petition at 6 and Exhibit 7.

[^26]: Petiton at 6 and Exhibits 3 and 8.

[^27]: *Id*.

[^28]: *Id*. at 7.

[^29]: Petition at 7 and Exhibit 10.