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Court Dismisses Challenge to Ohio TV Market Modification

The U.S.  Court of Appeals for the Sixth Circuit has dismissed, and out of hand, a 2013 challenge to the FCC's decision to grant Cox's (now Apollo's) CBS affiliate WHIO Dayton, Ohio, must-carry rights in a nearby county, saying there was no injury to the broadcasters who brought the challenge so they had no standing to challenge it. 

Editor's note: The story initially said it was the FCC denying the petition, but it was in fact the FCC announcing the court decision. 

After a 2013 Nielsen change to the DMA, which the FCC uses to determine TV station markets, WHIO-TV lost must carry rights in Auglaize County, Ohio, which is between Dayton and Lima, Ohio. The Nielsen DMA reassigned WHIO to the Lima market and Cox petitioned the FCC to modify the FCC's Dayton market to include WHIO. The FCC can, and does, do so on a case by case basis.  

In this case, the FCC's Media Bureau found that there was good cause for the modification and granted it. “'Given the station’s history of carriage, its provision of local programming, and the meaningful viewership shares garnered by WHIO in these communities,' the Bureau [has] granted Cox’s petition to modify its local market, thereby giving WHIO must-carry rights with cable systems in Auglaize County," the FCC said at the time. 

Block Communications had initially sought to block the move, asking the FCC to reconsider its decision and essentially reading it the riot act, saying the decision was "arbitrary, capricious, and an abuse of discretion; violates federal law, including, but not limited to, the Communications Act of 1934, as amended, and FCC regulations, policies and/or procedures promulgated thereunder; is unsupported by the facts or substantial evidence; and is otherwise contrary to law.”  

Block was looking to block the move because it programs a digital affiliate in Dayton with CBS programming, and said it and was concered that MVPDs might drop it in favor of WHIO because, as a low-power station, it has no must-carry rights on MVPDs, the FCC said. 

The full Commission upheld the Media Bureau decision, though it took until 2018 to make that call. Block then petitioned the court to review its 2018 decision. It is that petition that was denied Tuesday (April 6) for lack of standing. 

The court points out that since the move of WHIO back to Dayton, cable systems in Auglaize County have continued to carry Block's programming. Because Block Communications has failed to demonstrate an injury attributable to the FCC order including the Auglaize County communities in WHIO’s television market, we dismiss the case for lack of standing."