Before the Federal Communications Commission Washington, D



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Federal Communications Commission DA 15-1171



Before the

Federal Communications Commission

Washington, D.C. 20554



In the Matter of:
CoxCom, LLC
For Modification of the Market of WMDE, Dover, Delaware

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MB Docket No. 15-120, CSR 8909-A




MEMORANDUM OPINION AND ORDER

Adopted: October 13, 2015 Released: October 14, 2015
By the Senior Deputy Chief, Policy Division, Media Bureau:

I.INTRODUCTION

  1. 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.

II.background


  1. 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

  2. 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

    In considering such requests, the Communications Act provides that:

    the Commission shall afford particular attention to the value of localism

    by taking into account such factors as –



  1. whether the station, or other stations located in the same area, have

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



  1. whether the television station provides coverage or other local

    service to such community;



  1. whether modifying the market of the television station would promote consumers’ access to television broadcast station signals that originate in their State of residence.8



  1. 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

    provides carriage or coverage of sporting and other events of interest to the

    community;





  1. evidence of viewing patterns in cable and noncable households within

the areas served by the cable system or systems in such community.9


    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.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


  1. 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:

  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.





  1. Grade B12 contour maps delineating the station’s technical service

    area13 and showing the location of the cable system headends and communities

    in relation to the service areas.




  1. Available data on shopping and labor patterns in the local

    market.



  1. Television station programming information derived from station

    logs or the local edition of the television guide.



  1. Cable system channel line-up cards or other exhibits establishing

    historic carriage, such as television guide listings.



  1. 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.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.
  1. 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


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