******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) MediaOne, Inc.CSR-5012-A ) ) For Modification of the ADI of ) Station WNGM-TV ) ) Complaint of Whitehead Media ofCSR-4990-M) Georgia, Inc. ) against ) MediaOne, Inc. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: August 15, 1997Released: August 20, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1.Whitehead Media of Georgia, Inc. ("WNGM-TV"), licensee of Station WNGM-TV (Ind., Channel 34), Athens, Georgia, has filed the above-captioned signal carriage complaint (CSR-4990-M) against MediaOne, Inc. ("MediaOne"), operator of a cable television system serving Atlanta, Georgia, several adjacent communities, as well as unincorporated areas of Bartow, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Fulton, Gwinnett, Henry, Newton, and Rockdale Counties, Georgia. These communities and Athens, WNGM-TV's city of license, are located in the Atlanta, Georgia "area of dominant influence." MediaOne has opposed WNGM-TV's complaint, and WNGM-TV has replied. In addition, MediaOne has filed the above-captioned petition (CSR-5012-A) to modify the market of WNGM-TV, to remove the communities MediaOne serves from the station's market. WNGM-TV has opposed MediaOne's petition, and MediaOne has replied. In addition, the Board of Commissioners of Rockdale County, Georgia, has filed comments in support of MediaOne's petition. We are consolidating these cases for processing to determine the signal carriage rights of WNGM-TV in the communities MediaOne serves. BACKGROUND 2.Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket No. 92-259, 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 "area of dominant influence," or ADI, as defined by the Arbitron audience research organization. An ADI 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.Under the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(l)(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. 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 news 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. 4.The legislative history of this provision indicates that: where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI 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 areas 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. 5.The Commission provided guidance in its Report and Order in MM Docket No. 92-259, supra, to aid decision making in these matters, as follows: For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel line-up (e.g., rate cards) for a period of years. To show that the station provides coverage or other local service to the cable community (factor 2), parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or other programming of interest to the community could be demon- strated by program logs or other descriptions of local program offerings. The final factor concerns viewing patterns in the cable community in cable and noncable homes. Audience data clearly provide appropriate evidence about this factor. In this regard, we note that surveys such as those used to demonstrate significantly viewed status could be useful. However, since this factor requires us to evaluate viewing on a community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6.As for deletions of communities from a station's market, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI 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. 7.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. 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 an ADI change request. ARGUMENTS OF THE PARTIES 8.Signal Carriage Complaint (CSR 4990-M). WNGM-TV states that its city of license and the communities MediaOne serves are all located in the Atlanta ADI, and that WNGM-TV is thus entitled to carriage on MediaOne's cable systems. WNGM-TV further states that it provides a good quality signal to MediaOne's headends, that carriage of WNGM-TV will not result in increased copyright fees to MediaOne, and that the station's signal does not substantially duplicate that of any other local commercial station that MediaOne carries. WNGM-TV states that MediaOne, by letter dated February 3, 1997, following months of discussions, formally denied WNGM-TV's carriage request. Accordingly, WNGM-TV requests that the Commission now order MediaOne to commence carriage of WNGM-TV's signal. 9.In response to WNGM-TV, MediaOne argues that WNGM-TV's complaint should be dismissed as procedurally defective because it does not specifically allege the manner in which the cable operator has failed to meet its obligations. MediaOne states that WNGM-TV is an affiliate of the Infomall TV Network, as is WTLK-TV (Channel 14), Rome, Georgia, another station which MediaOne currently carries. MediaOne further states that, pursuant to 76.56(b)(5) of the Commission's rules, it need not carry more than one affiliate of a particular broadcast network. MediaOne notes that it informed WNGM-TV of this in rejecting the station's carriage request, but that WNGM-TV makes no mention of this in its carriage complaint. MediaOne argues, therefore, that WNGM-TV's complaint does not state all pertinent facts fully and precisely, and must be dismissed. 10.Substantively, MediaOne argues that a "broadcast network" is defined for purposes of the must-carry rules as "an entity that offers programming on a regular basis for 15 or more hours per week to at least 25 affiliates in 10 or more states." MediaOne states that the Infomall TV Network is owned by Paxson Communications Corporation ("Paxson"), and, according to Paxson's home page on the World Wide Web, the Infomall TV Network provides programming on a regular basis to thirty-seven affiliates located in twenty states, the District of Columbia, and Puerto Rico. MediaOne also submits sample program schedules for WNGM-TV and WTLK-TV, which show that WNGM-TV broadcasts approximately forty- eight and one-half hours of Infomall TV Network programming per week, while WTLK-TV broadcasts approximately thirty-four and one-half hours of such programming. MediaOne notes that a Paxson subsidiary, Paxson Communications of Atlanta-14, Inc. ("Paxson Atlanta"), is the licensee of WTLK-TV, which MediaOne carries on all of its cable systems. In addition, MediaOne submits a copy of a Time Brokerage Agreement between Paxson Atlanta and WNGM-TV. MediaOne states that pursuant to this agreement, Paxson has programmed virtually all of WNGM-TV's air time since May 1996. Finally, MediaOne notes that it is submitting a petition to modify the ADI of WNGM-TV, to delete the communities MediaOne serves from the station's ADI. MediaOne states that this petition will show that not only is WNGM-TV not a local signal for the communities MediaOne serves, but also that WNGM-TV's programming is in fact harmful to the public. 11.In reply, WNGM-TV argues that its petition was properly filed. WNGM-TV states that it has stated in its petition how MediaOne has failed to meet its obligations under the must-carry rules, and the basis for these allegations. WNGM-TV further states that it is not a network affiliate within the meaning of 76.56(b)(5) of the Commission's rules. WNGM-TV argues that in adopting this rule, the Commission intended only to treat as networks those entities considered "traditional national networks," pursuant to 73.3613(a)(1) of the Commission's rules. This rule defines a network as "any person, entity, or corporation which offers an interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more states . . . ." WNGM-TV argues that the Commission recognized in March 1996 that the only entities which meet this definition are ABC, CBS, Fox, and NBC. In addition, WNGM-TV contends that because Infomall TV Network's programming "typically consists of home shopping episodes and program-length commercials," and does not provide entertainment programming or traditional major network sports and news coverage," the Infomall TV Network cannot therefore be considered a traditional national network. Moreover, WNGM-TV states that although the network definition in 76.56(b)(5) of the Commission's rules uses the word "programming", while the definition in 73.3613(a)(1) of the Commission's rules uses the phrase "interconnected program service." the Commission did not articulate any reason for this word change in adopting the Part 73 definition for purposes of the Part 76 must-carry rules. WNGM-TV argues, therefore, that the Part 73 requirement of interconnectivity is implicit in the Part 76 definition. WNGM-TV notes that stations receiving Infomall TV Network programming receive the programming by means of pre-recorded videotapes, and not via satellite distribution. WNGM-TV maintains accordingly that the Infomall TV Network is not a network within the meaning of 76.56(b)(5) of the Commission's rules. WNGM-TV argues in addition that it is not an affiliate of a network, because it has no affiliation agreement with the Infomall TV Network or any network. Finally, WNGM-TV contends that MediaOne's opinion of WNGM-TV's programming is not relevant to this proceeding. 12.MediaOne, in response to WNGM-TV's reply, argues that the Infomall TV Network clearly satisfies the applicable definition of a network, which is that found in 76.56(b)(5) of the Commission's rules. MediaOne notes that WNGM-TV does not dispute that the Infomall TV Network offers more than fifteen hours per week of programming to thirty-seven affiliates located in twenty states, the District of Columbia, and Puerto Rico. MediaOne states that it is not relevant whether, as WNGM-TV argues, the Infomall TV Network meets the definition of a network contained in 73.3613(a)(1) of the Commission's rules. MediaOne further states that the Commission in fact rejected this definition in choosing to define a network for purposes of the must-carry rules. MediaOne contends that both Congress and the Commission sought to ensure that the must-carry rules did not force cable operators to carry duplicative commercial broadcast network signals, which is a different goal than that underlying the Part 73 rules which seek to guard against anticompetitive activity by potentially dominant broadcast networks. MediaOne maintains, therefore, that the definitions of a network in each of the rules are properly different and distinct. MediaOne argues that whether the Infomall TV Network is considered a traditional network is also irrelevant, for in adopting 76.56(b)(5) of the Commission's rules the Commission stated that, for purposes of implementing the must-carry rules contained in the Communications Act, it was specifically adopting are rule "flexible enough to accommodate the changing video marketplace." Accordingly, the Infomall TV Network need only meet the specific criteria of 76.56(b)(5) of the Commission's rules to qualify as a network for purposes of the must-carry rules. MediaOne notes that the Home Shopping Network has been found to meet this definition. MediaOne argues that WNGM-TV's claim that interconnectivity is implicit in the definition contained in 76.56(b)(5) of the Commission's rules is not supported by any evidence. In any event, MediaOne states that WNGM-TV has not shown that satellite delivery is necessary for a network to be interconnected. 13.MediaOne further argues that WNGM-TV is an affiliate of the Infomall TV Network, even though the station asserts that it carries programming pursuant to a Time Brokerage Agreement rather than an affiliation agreement. Citing Adell Broadcasting Corp., supra, MediaOne argues that the title of a station's contract with a network is irrelevant to the station's status as an affiliate of that network. MediaOne contends that it is the policy underlying 614(b)(5) of the Act and 76.56(b)(5) of the Commission's rules -- that cable systems should not be required to carry duplicative signals -- which should control. MediaOne notes that the Commission's rules formerly contained a definition of an affiliate which stated: Affiliated station means a station having a regular affiliation with one of the three national television networks, under which it serves as that network's primary outlet for the presentation of its programs in a market. It includes any arrangement under which the network looks primarily to this station rather than other stations for the presentation of its programs and the station chiefly presents the programs of this network rather than another network. MediaOne states that the Commission found this definition persuasive in Adell Broadcasting Corp., supra, and that this definition describes the relationship between WNGM-TV and Infomall TV Network today. MediaOne states that WNGM-TV is the Infomall TV Network's primary affiliate in the Athens, Georgia market and seeks to become a duplicative Infomall TV Network affiliate on MediaOne's systems in the Atlanta, Georgia market. MediaOne notes that 69% of the Infomall TV Network programming in question -- 33.5 hours per week -- is simulcast on both WNGM-TV and WTLK-TV, and at least another 8.5 hours per week is duplicated on a non-simulcast basis on the two stations, for a total of at least 42 hours per week (87% of the Infomall TV Network programming). MediaOne further contends that Paxson not only holds an option to acquire WNGM-TV, and currently owns the Infomall TV Network, but also advertises and promotes the station as one of Paxson's owned or operated Infomall TV Network affiliates. MediaOne argues that this arrangement gives Paxson even greater control over WNGM-TV than would an arms-length network/affiliate relationship, and is akin to a network's control over an owned and operated affiliate. 14.Market Modification Petition (CSR-5012-A). In its market modification petition, MediaOne argues that television stations are entitled to mandatory carriage only in "areas which they serve and which form their economic market" and that a station must satisfy both these tests. MediaOne states that it has never carried WNGM-TV on any cable system in the Atlanta metropolitan area, nor has the station been carried on any other cable system in the proximate area. MediaOne notes that the communities it serves are located from 33 to 91 miles from Athens, WNGM-TV's city of license, the average distance being approximately 60 miles. MediaOne states that prior to May 1996, WNGM-TV did not place a viewable signal over most of MediaOne's communities. MediaOne acknowledges that after WNGM-TV moved its transmitter and modified its transmission facilities in May 1996, the station has encompassed some of MediaOne's communities with a Grade A contour and many more communities -- but not all -- with a Grade B contour. MediaOne maintains that a station's Grade A contour is a far better presumptive measurement of a station's signal reach than its Grade B contour. In any event, MediaOne argues that WNGM-TV historically has failed and continues to fail to provide any meaningful local service to MediaOne's communities. MediaOne states that 151.5 of WNGM-TV's 168 weekly broadcast hours -- more than 90% -- are comprised of program-length commercials. These commercials are largely from Paxson's Infomall TV Network, and 95 hours per week -- approximately two-thirds of this programming -- duplicates the programming of WTLK-TV, which MediaOne already carries. MediaOne argues that the Infomall TV Network and other program-length commercials do not constitute local service. MediaOne further notes that most of WNGM-TV's remaining programming -- 15.5 hours of 16.5 hours per week -- is religious programming, at least 10 hours of which is nationally or regionally syndicated paid programming with no nexus to MediaOne's communities. All but 3 hours of WNGM-TV's religious programming, MediaOne states, duplicates programming already carried by MediaOne on WTLK-TV; WATC (Channel 57), Atlanta, Georgia; and Atlanta Interfaith Broadcasters, which is provided over a local cable channel. Most of the nonduplicative programming is produced by organizations in Athens, Buford, and Oakwood, Georgia, and Spartanburg, South Carolina, which MediaOne states are not of local concern. MediaOne notes that only a single half-hour program, "Bright Star Church," is produced by a local community organization in Douglasville, Georgia, which MediaOne serves, but that this is generic programming not directed to any local concern. With regard to WNGM-TV's remaining programming, MediaOne states that this programming -- consisting of one hour of children's programming, one hour of syndicated informational programming, and one hour of public affairs programming -- is not directed to local concerns or interests, and is already available to MediaOne's subscribers via Stations WTLK-TV and WATC. 15.MediaOne additionally argues that WNGM-TV's programming is affirmatively harmful to viewers and the public. As examples of this programming, MediaOne points to educational children's programming cited by WNGM-TV as having been broadcast in satisfaction of the station's children's programming obligation. MediaOne cites the November 14, 1996 broadcast of "Worship for Kids," which presented the "fun fact" that, according to the Bible, people can live to be over 900. MediaOne also cites the November 15, 1996 broadcast of "Just for Kids," which stated that adding chocolate chips, marshmallow cream, and jelly to a peanut butter sandwich would make it more nutritious, as would adding popcorn and ice cream. MediaOne argues that WNGM-TV's paid religious program "Shepherd's Chapel" has purveyed racist dogma, citing comments by the program's minister on November 13 and 15, 1996 that "Not all races can come from Adam and Eve," that "God created different races . . . and that's the way he wanted us to stay," and that the Biblical flood "was to destroy those [of different races] who had intermixed." MediaOne further argues that many program-length commercials broadcast by WNGM-TV are false, misleading, and fraudulent. Among the instances MediaOne cites are: (1) the program "William J. McCorkle's Secrets of Success," noting that Mr. McCorkle is the subject of state lawsuits for unfair and deceptive advertising, and that the State of Texas has shut down Mr. McCorkle's real estate investment seminars; (2) a program sponsored by the Financial Freedom Report, which has been fined by the division of consumer protection in the Utah Department of Commerce and has been charged by the Federal Trade Commission with misrepresentation; and (3) the program "Trudeau Marketing Group," which constitutes a pyramid scheme, for which the program's sponsor and host, Kevin Trudeau, has been fined by several states, and who has previously been convicted of felony larceny and felony credit card fraud. MediaOne also notes that WNGM- TV's public affairs program-length commercials "A Closer Look" frequently use Mr. Trudeau as an interviewer, and have promoted, among other products, a filtration system to remove "poison fluoride" from tap water and an "ozone treatment" to cure AIDS. MediaOne also states that WNGM-TV repeatedly broadcasts a program-length commercial for the "Psychic Friends Network." MediaOne describes this programming as false, fraudulent, and affirmatively harmful, with no public interest or local benefit. 16.MediaOne notes that it carries several Atlanta licensees that provide local news coverage, sports coverage, and public interest programming addressing local issues of concern. MediaOne states that the seven Atlanta commercial stations alone, collectively offer approximately 106 hours of local news programming each week, as well as additional public interest programming. These stations also carry local sports programming, including Atlanta Hawks basketball (WATL) and Atlanta Braves baseball (WTBS). MediaOne further argues that WNGM-TV has no audience in the communities in question, noting that Nielsen reports that the station has no viewership share even in Gwinnett and Rockdale Counties, the counties closest to WNGM-TV's city of license in which MediaOne serves subscribers. MediaOne states that Nielsen data since 1992 reveal no viewing of WNGM-TV in the communities MediaOne serves. 17.MediaOne argues that not only do the four statutory criteria support its petition to modify WNGM-TV's ADI, but also that Athens, Georgia -- the station's city of license -- and Clarke County, Georgia -- the station's home county -- form the hub of a local economic market which is separate and distinct from the Atlanta, Georgia metropolitan market which MediaOne serves. MediaOne notes that Athens is approximately 60 miles from Atlanta. MediaOne states that Athens and Clarke County are part of Georgia's Eleventh Congressional District, while Atlanta and most of the Atlanta metropolitan area served by MediaOne are contained within Georgia's Third, Fourth, Fifth, Sixth, and Seventh Congressional Districts. MediaOne argues that Athens and Clarke County are culturally and commercially separate from the Atlanta metropolitan area, having two local daily newspapers (the Athens Daily News and the Athens Banner- Herald), two weekly newspapers, four local commercial AM radio stations, three local commercial FM radio stations, and three local noncommercial FM radio stations. MediaOne states that the combined daily circulation of the Athens Daily News and the Athens Banner-Herald in Athens and Clarke County is nearly three times as large as that of the Atlanta Journal and the Atlanta Constitution. MediaOne submits computer-generated maps from Claritas, Inc., a market research service, which MediaOne states demonstrate that the Atlanta metropolitan market is a heavily concentrated area of population and economic activity -- analyzed by population density, number of retail businesses, number of total businesses, retail sales volume, and total sales volume -- that is separated by a substantial intervening distance of comparatively low population and economic activity from the smaller concentration of population and economic activity that constitutes the Athens/Clarke County market. In addition, MediaOne submits statements from Atlanta area advertising agencies and businesses which indicate that the agencies do not consider WNGM-TV to be part of the Atlanta market and that WNGM-TV has not contacted these businesses for advertising. MediaOne notes that the United States Census Bureau treats Athens as a separate Metropolitan Statistical Area from Atlanta, as has the Federal Communications Commission. 18.In opposition to MediaOne, WNGM-TV states that it is decisionally significant that its current Grade B contour covers the vast majority of the areas MediaOne serves. In addition, WNGM-TV states that its transmitter site is now at a mean distance of only 42.2 miles from MediaOne's communities. In view of these recent improvements, WNGM-TV contends that its inability to demonstrate a history of carriage in the communities in question should not be accorded decisional weight. WNGM-TV states that several Atlanta-area cable operators carry the station, including those operating in counties where MediaOne currently serves subscribers. WNGM-TV argues that this should be taken into account in analyzing the station's history of carriage. In addition, WNGM-TV asserts that MediaOne's carriage of WGTV, the other Athens licensee, but not WNGM-TV, is the kind of discriminatory treatment Congress sought to prevent through passage of the must-carry provisions of the Communications Act. WNGM-TV notes that its transmitter and that of WGTV are both located northeast of Atlanta, both stations' signals cover much of the Atlanta metropolitan area, and both stations' main offices are located in the Atlanta area. WNGM-TV asserts that it provides locally oriented programming that addresses the communities' needs. WNGM-TV states that "Athens Community Forum" frequently addresses issues of interest to the Atlanta area and features guests from Atlanta or neighboring communities such as College Park, Decatur, East Point, Ellenwood, Marietta, and Stockbridge. WNGM-TV also notes that "Daybreak" has aired several programs about organizations or events of interest to MediaOne's communities. WNGM-TV argues that it is unquestionably part of the Atlanta television market, which is the only market specified by Congress for signal carriage purposes, and not metropolitan statistical areas, trading areas, or Congressional districts. WNGM-TV states that the relevant industry sources, Arbitron and Nielsen, both treat Athens as part of the Atlanta television market, and the Commission has recognized Nielsen market assignments as "the most accurate method for determining the areas served by local stations." WNGM-TV further states that as a result of its modifying its facilities and increasing the coverage of the station's Grade B contour, WNGM-TV has had to modify its syndication contracts so as not to conflict with Atlanta stations' syndication contracts. In addition, WNGM-TV states that it sells program-length and some spot advertisements to at least three dozen Atlanta area businesses, and submits a list of these businesses. 19.WNGM-TV argues that while MediaOne may carry other ADI licensees which provide local service to the communities in question, this fact is not relevant in evaluating MediaOne's request to delete its communities from WNGM-TV's ADI. WNGM-TV states that this factor may be of some weight where the station seeking carriage does not provide local service to the communities, but that this is not the case in the instant situation. WNGM-TV also contends that because of the station's recent technical upgrade and specialized programming format, WNGM-TV's low ratings should not count against it, particularly in view of the program diversity and important service that stations such as WNGM-TV bring to the public. WNGM-TV also notes that MediaOne has a 67% penetration level in the Atlanta market, effectively denying its subscribers access to two-thirds of the station's audience. WNGM-TV argues that the essence of MediaOne's complaint is that MediaOne disagrees with WNGM-TV's format and programming selections. WNGM-TV maintains that MediaOne's value judgments concerning the station's programming cannot constitute a basis for deleting MediaOne's communities from WNGM-TV's ADI. WNGM-TV also notes that it has not carried advertisements for the "Psychic Friends Network" since its current licensee acquired the station in February 1996. 20.In reply, MediaOne argues that WNGM-TV's history of lack of cable carriage must be considered without regard to the station's format. MediaOne contends that only five of the forty-seven communities cited by WNGM-TV as having cable systems that carry the station actually are neighboring communities of those served by MediaOne, and that WNGM-TV has no history of carriage in these communities, but only recent carriage. MediaOne states that the only area in which WNGM-TV has an actual history of carriage is in the Athens/Clarke County area. MediaOne further argues that its carriage of WGTV does not constitute discrimination against WNGM-TV. MediaOne notes that WGTV is a noncommercial station, and thus does not compete with WNGM-TV for advertising dollars or programming. In addition, noncommercial stations' carriage rights are predicated upon the stations' Grade B service contours and 50-mile mileage zones, and not upon ADIs. MediaOne argues that for a commercial station such as WNGM-TV, a Grade B contour is but one of several criteria the station must meet in an ADI modification analysis. MediaOne contends that this is particularly so with respect to WNGM-TV, which only recently increased its Grade B contour coverage and provides no meaningful local programming service to MediaOne's communities. MediaOne maintains that Paxson underwrote WNGM-TV's facilities upgrade to extend the station's broadcast and must-carry reach, which is not a public interest goal in view of the station's lack of programming serving the Atlanta metropolitan area. MediaOne argues that the relevant distance considerations are not based upon the station's transmitter location, but upon the distance between MediaOne's communities and Athens. MediaOne states that these distances -- an average distance of 61 miles, a mean distance of 62.5 miles, and a median distance of 63.2 miles -- demonstrate that Athens is not part of the Atlanta market. 21.MediaOne argues that the examples of local programming cited by WNGM-TV were not even included in the station's public file, and some had not even been broadcast , at the time the station requested carriage. MediaOne contends that belated attempts to upgrade a station's record should not be considered as they are not part of the broadcast licensing proceedings. In any event, MediaOne argues that local service is measured not by where program guests happen to reside, but by the local relevance of the issues discussed. MediaOne states that the issues cited by WNGM-TV on "Athens Community Forum" are of no specific relevance to the Atlanta metropolitan area, but focus predominantly on the Athens and Clarke County area. MediaOne reiterates that it carries Atlanta licensees that do provide substantial amounts of programming responsive to the needs of MediaOne's communities, and that in these circumstances, this should be afforded greater weight. MediaOne disputes WNGM-TV's assertion that its lack of viewership in the Atlanta ADI is irrelevant because the station is new and targets special audiences. MediaOne notes that the station went on-the-air in April 1989, and that the station's program-length commercials are designed for general audiences. MediaOne also notes that WNGM-TV's ratings are low even in its home of Clarke County: a total share of 2, a share of 1 in cable households, and a share of 3 in noncable households. MediaOne also disputes WNGM-TV's claim that it provides an important service to the public. MediaOne contends that unlike home shopping services, which showcase a variety of products much like video catalogues and to which WNGM-TV likens its programming, WNGM-TV in fact provides program-length commercials about single products. MediaOne further contends that fraudulent and misleading programming does not serve the public interest. 22.MediaOne notes that WNGM-TV does not dispute MediaOne's analysis of the station's local market, but rather simply maintains that Arbitron's ADI assignment is decisive. MediaOne argues, however, that it has demonstrated that WNGM-TV is not properly part of the Atlanta ADI, and that therefore the station's ADI should be modified as provided for in 614 of the Communications Act. MediaOne contends that its submitted evidence is relevant to a market modification analysis, and notes that Paxson has itself presented such data on behalf of its licensees in other ADI modification cases. MediaOne also notes that Rand McNally has determined that Athens and Clarke County are at the center of an Athens/Clarke County Basic Trading Area, which is separate and distinct from the Atlanta Basic Trading Area. In addition, MediaOne states that Athens and Clarke County are on the border that separates the Atlanta ADI (and the Atlanta DMA) from the Greenville-Spartanburg, South Carolina ADI (and DMA) immediately adjacent to the northeast. MediaOne describes the Atlanta ADI as very large, approximately 170 miles long and 150 miles wide, encompassing 52 counties in three states (Georgia, Kentucky, and Alabama). MediaOne contends that the Commission has previously cited the extreme size of an ADI in determining whether to delete core ADI communities from the ADI of a station located at the ADI's edge. MediaOne argues that WNGM-TV provides no support for its statement concerning the need to modify program syndicators' contracts because of the station's upgrade, and notes that the primary result of WNGM-TV's upgrade was the removal of entertainment programming from the station's lineup to make room for program-length commercials. MediaOne also states that it has contacted nineteen of the thirty-six businesses WNGM-TV listed as advertisers in its opposition. MediaOne states that most of the nineteen businesses contacted no longer advertise on WNGM-TV, or never advertised on WNGM-TV. 23.Finally, MediaOne argues that the content of WNGM-TV's fraudulent and harmful programming is as relevant as is WNGM-TV's claimed specialty programming format. MediaOne contends that the Constitution does not protect false and deceptive advertising. In addition, MediaOne argues that while WNGM-TV's violations of its public interest obligations might be more appropriately examined in the context of a license renewal or revocation proceeding, neither MediaOne nor any other cable operator should be forced to challenge a station's license renewal or to petition to revoke a station's license. MediaOne states that this is particularly so as MediaOne is not part of the Athens market which WNGM-TV is licensed to serve. 24.In reply to MediaOne's allegations concerning the station's advertisers, WNGM-TV submits videotapes from William A. Owens, the owner and operator of Good Faith Productions ("Good Faith"), which has purchased time on WNGM-TV to air a program entitled "Extreme Championship Wrestling." Mr. Owens states in an attached declaration that Good Faith has produced commercials which have aired on MediaOne's and other area cable systems, as well as on WNGM-TV and on other television stations. WNGM-TV states that the videotaped episodes include advertisements from various Atlanta area businesses. WNGM-TV also submits redacted billing records from Atlanta area advertisers. WNGM-TV also submits a channel selection guide from Smyrna Cable TV which shows that this system carries WNGM-TV. 25. The Board of Commissioners of Rockdale County, Georgia, a franchising authority for an area that MediaOne serves, states that the Board of Commissioners does not consider WNGM-TV to be a local station to Rockdale County or the Atlanta metropolitan market. The Board of Commissioners further states that WNGM-TV does not provide a locally oriented service to Rockdale County or the Atlanta market. The Board of Commissioners states that it does not believe that WNGM-TV's programming would be of benefit to Rockdale County citizens, and the Board of Commissioners opposes having WNGM-TV's programming carried on cable in Rockdale County. ANALYSIS AND DECISION 26.We will deny both WNGM-TV's carriage complaint and MediaOne's market modification petition. Although MediaOne has failed to demonstrated that WNGM-TV is not "local" in the cable communities involved for purposes of 614(h) of the Communications Act, we also conclude that the programming of WNGM-TV is exempt from mandatory carriage by virtue of the provisions of 614(b)(5) of the Communications Act and 76.56(b)(5) of the Commission's rules. 27.With respect to the market modification issue, MediaOne has made an excellent case as to the historical separateness of WNGM-TV from the Atlanta area cable communities that MediaOne serves. WNGM-TV is not now nor has it in the past been carried on cable systems in these communities nor, as demonstrated by MediaOne, has it been carried on systems in nearby communities, save for Smyrna, Georgia, to the northwest of Atlanta. WNGM-TV has been in operation since 1989 so that this carriage pattern is not a reflection of the recent origin of the station. The evidence also reveals that WNGM-TV has not specifically targeted its programming toward Atlanta or the cable communities more generally. There are, however, a number of stations broadcasting in Atlanta that do broadcast programming more targeted to these communities. There is no evidence that WNGM-TV receives any audience ratings in these communities. 28.Moreover, there are other indicia indicating that the cable communities have not historically been regarded as within the WNGM-TV market area. Demographic information confirms that Atlanta and Athens are separated by a substantial intervening distance of comparatively low population and are separate economic market areas. Athens is a separate Metropolitan Statistical Area. 29.Although these are strong arguments, WNGM-TV has recently moved its transmitter to a site much closer to Atlanta, located only a mean distance of some 42 miles to the northeast of the Atlanta area cable communities. From this site WNGM-TV provides a Grade A signal over most of Atlanta and over all of Gwinnett, Rockdale, and DeKalb Counties. Its Grade B contour encompasses all of Cobb, Henry, and Rockdale Counties, most of Clayton County, and substantial portions of Fayette and Douglas Counties. The Commission has expressed considerable reluctance to delete communities within an ADI that are within the broadcast service contours of the stations involved. In this instance, the great majority of communities at issue here are encompassed by WNGM-TV's Grade A or B contours with a small number of remaining communities located on WNGM-TV's Grade B contour. These communities are apparently integrated with the other communities. Additionally, not only are many of the communities receiving Grade A or B service but MediaOne is carrying the signal of another Athens station (WGTV) that MediaOne itself has characterized as operating "essentially as an Atlanta station." There are no indications of unique terrain or reception problems involved that would negate the presumption of service suggested by the predicted contours. In these circumstances the historic facts do not outweigh the current reality as to the structure of the market and the market modification request will accordingly be denied. We decline in this proceeding to consider or evaluate the program content of WNGM-TV raised by MediaOne's allegations of fraud and harm to the public interest from the programming of WNGM-TV. This is not a proper proceeding for the consideration of such issues. 30.Having resolved the market modification matter, the only issue that remains with respect to WNGM-TV's complaint seeking carriage on the MediaOne systems is the question of signal duplication. Section 614 of the Communications Act, which contains the cable television mandatory signal carriage requirement, provides at paragraph (b)(5) that, notwithstanding the general carriage obligations: a cable operator shall not be required to carry the signal of any local commercial television station that substantially duplicates the signal of another local commercial television station which is carried on its cable system, or to carry the signals of more than one local commercial television station affiliated with a particular broadcast network (as such term is defined by regulation). Section 76.56(b)(5) of the Commission's implementing regulations provides in pertinent part that: A cable operator is not required to carry the signal of any local commercial television station that substantially duplicates the signal of another local commercial television station that is carried on its cable system, or to carry the signals of more than one local commercial television station affiliated with a particular broadcast network, as defined in 76.55(f). However, if a cable operator declines to carry duplicating signals, such cable operator shall carry the station whose community of license reference point, as defined in 76.53, is closest to the principal headend of the cable system. For purposes of this paragraph, substantially duplicates means that a station regularly simultaneously broadcasts the identical programming as another station for more than 50 percent of the broadcast week. 31.WNGM-TV in its original demand for carriage sent to MediaOne stated that the signal of WNGM-TV did not substantially duplicate the signal of another local commercial station carried on the systems. In its complaint to the Commission this statement is repeated without elaboration, although MediaOne had indicated, in declining to carry the station, that it was declining in part because the programming of WNGM-TV duplicated that of WTLK-TV, which was already being carried. MediaOne, in its opposition to WNGM-TV's carriage complaint, again contends that the programming of WTLK-TV and WNGM-TV is duplicative and that both stations are affiliated with the same broadcast network and that therefore the signal of WNGM-TV need not be carried. Both stations are associated with the Infomall TV Network which according to MediaOne meets the network definition in the rules (76.55(f)) because it is an entity that far exceeds the definitional benchmarks: i.e., "an entity offering programming on a regular basis for 15 or more hour per week to at least 25 affiliates in 10 or more states." It is offering programming on a regular basis for at least 48 hours per week to at least 37 affiliates in 20 different states plus the District of Columbia and Puerto Rico. 32. In response, WNGM-TV does not dispute that if it were duplicative of or an affiliate of the same network as WTLK-TV, MediaOne would have a valid defense to the carriage complaint. It also does not dispute that it carries Infomall TV Network programming for 36 hours per week. It does, however, deny that the Infomall TV Network is a "network" within the meaning of the rules, or that WNGM-TV is a "network affiliate." WNGM-TV states that it acquires the bulk of its programming via a time brokerage agreement with WTLK-TV and that WTLK-TV sells some of this time to the Infomall TV Network. With respect to the network issue, it does not seem to be disputed that the Infomall TV Network is an "entity" offering programming "on a regular basis for 15 or more hours per week to at least 25 affiliated television licensees in 10 or more states . . . ." It is contended, however, that only "traditional" networks (ABC, CBS, NBC, and Fox) are covered by the rule and that a network must be an "interconnected program service" in order to be covered by the rules. Neither of these argument appear to have merit. In adopting the network definition in its Report and Order in MM Docket No. 92-259, the Commission stated that it was seeking: a definition that not only includes entities that traditionally have been considered national television networks, but is also flexible enough to accommodate the changing video marketplace. Thus, the Commission was clearly reaching out to cover entities beyond ABC, CBS, NBC, and Fox in order to accomplish the intended purpose of this statutory provision, which is to avoid duplicative carriage obligations. Moreover, it is not disputed that the Infomall TV Network offers, on a regular basis, more than 15 hours a week of programming and has more than 25 affiliates in more than 10 states, which is the standard set forth in the rules to define a network. Similarly, although the phrase "interconnected program service" appears in other Commission definitions of the term "network," such as in 73.3613(a)(1), it does not appear in 76.55(f), which is the applicable definition for purposes of this provision of the mandatory carriage rules. 33. In addition to the Infomall TV Network not being a network, WNGM-TV also contends that it is not itself a network "affiliate" because the station receives its Infomall TV Network programming via a time brokerage agreement with WTLK-TV. We find no support, however, for the proposition that for purposes of this rule an affiliate is other than a station which broadcasts the output of a television network. Whether that takes place through a conventional affiliation contract, a retransmission consent agreement, a local marketing agreement, or in some other creative fashion would not seem to matter in terms of the specific purposes of the statutory and rule provisions regarding the cable carriage of duplicative networks. Accordingly, based on the requirements of 47 U.S.C. 614(b)(5) and 47 C.F.R. 76.56(b)(5) and the existing carriage of the signal of WTLK-TV by MediaOne, the complaint filed by WNGM-TV will be denied. ORDERING CLAUSES 34.Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534, and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief (CSR-5012-A) filed May 16, 1997 by MediaOne, Inc. IS DENIED. 35.IT IS FURTHER ORDERED, that the complaint (CSR-4990-M) filed April 4, 1997 by Whitehead Media of Georgia, Inc. IS DENIED. 36.This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau APPENDIX MEDIAONE ATLANTA AREA CABLE COMMUNITIES BY SYSTEM ATLANTA Atlanta, Fort McPherson CLAYTON COUNTY Clayton County, Forest Park, Fort Gillem, Hapeville, Henry County (Northern), Jonesboro, Lake City, Lovejoy, Morrow, Riverdale COBB COUNTY/MARIETTA Acworth, Austell, Bartow County, Cobb County, Dobbins AFB, Douglas County, Kennesaw, Marietta, Powder Springs DeKALB COUNTY/DECATUR Avondale Estates, Clarkston, Decatur, DeKalb County, Lithonia, Pine Lake, Stone Mountain DOUGLAS COUNTY Douglas County, Douglasville, Fairfield Plantation, Fulton County (West), Lithia Springs EAST POINT College Park, East Point FAYETTE COUNTY Brooks, Coweta County, Fayette County, Fayetteville, Fulton County (South), Peachtree City, Tyrone, Woolsey GWINNETT COUNTY Berkeley Lake, Duluth, Grayson, Gwinnett County, Lilburn, Loganville, Norcross, Snellville ROCKDALE COUNTY Conyers, Newton County, Rockdale County