CoxCom, LLC, (the “Petitioner” or “Cox”), filed the above-captioned Petition seeking to modify the television market of WMDE (Channel 5) (Facility ID No. 189357), Dover, Delaware (“WMDE” or the “Station”) and exclude the cable communities that Cox serves in Fairfax County, Virginia (the “Communities”).1 The Petitioner states that Nielsen recently assigned the Station, but not its city of license, to the Washington, DC (Hagerstown, MD) Designated Market Area (“DMA”) at the Station’s request.2 The Petition is opposed by Western Pacific Broadcast, LLC (“Western Pacific”), the licensee of WMDE. Cox filed a Reply. Western Pacific later filed a Submission for the Record. Cox filed a Motion for Leave to File Reply to Unauthorized Pleading and a Reply to Unauthorized Pleading.3 For the reasons stated below, we grant Cox’s Petition.
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.4 A station’s market for this purpose is its “designated market area,” or DMA, as defined by Nielsen Media Research.5 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.6
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.7
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.10
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
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:
as station advertising and sales data or viewer contribution records.14
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. The Modification Final Report and Order provides that parties may continue to submit whatever additional evidence they deem appropriate and relevant.
In the Carriage of Digital Television Broadcast Signals First Report and Order (“DTV Must Carry Report and Order”), the Commission concluded that under Section 614(a) of the Act, digital-only television stations had mandatory carriage rights, and amended its rules to reflect this revision.15 The Commission also clarified its framework for analyzing market modifications for digital television stations.16 It found that the statutory factors in Section 614(h), the current process for requesting market modifications, and the evidence needed to support such petitions, would be applicable to digital television modification petitions.17 While the Commission presumed the market of a station’s digital signal would be coterminous with that station’s market area for its prior analog signal, it recognized that the technical coverage area of a digital television signal may not exactly replicate the technical coverage area of its former analog television signal.18 Therefore, in deciding DTV market modifications, the Commission would take changes in signal strength and technical coverage into consideration, on a case-by-case basis.19