$//MO&O Granting KRCA carriage on MultiVision Cable, DA-95-86//$ $/300.543 Carriage of local commercial television signals/$ $/76.61 Disputes concerning carriage/$ ///newjob/// $///DA 95-86,1/23/95///$ Before the Federal Communications Commission Washington, D.C. 20554 DA-95-86 In re: ) ) Complaint of KRCA(TV), ) Fouce Amusement Enterprises, Inc, ) CSR-4232-M against MultiVision Cable TV ) ) Request for Carriage ) ) In re: ) ) MultiVision Cable TV ) CSR-4201-M ) For Modification of Station ) KRCA(TV)'s ADI ) MEMORANDUM OPINION AND ORDER Adopted: January 19, 1995 Released: January 27, 1995 By the Cable Services Bureau: Introduction 1. On January 25, 1994, ML Media Partners, L.P., trading as MultiVision Cable TV ("MultiVision") filed a "Petition for Emergency Special Relief" from section 75.56 of the Commission's must-carry rules seeking to exclude Fouce Amusement Enterprises, Inc., licensee of commercial television station KRCA(TV)(Ind., Channel 62, Riverside, California)("KRCA") from must-carry status on MultiVision's Hermosa Beach/Manhattan Beach cable system (the "System"). (CSR-4201-M). An opposition to this petition was filed February 24, 1994, on behalf of KRCA, to which MultiVision replied on March 7, 1994. 2. On March 14, 1994, in a separate but related proceeding, KRCA filed a complaint to enforce the Commission's cable must-carry rules and to require the carriage of KRCA by MultiVision on the System. (CSR-4232-M). An opposition to this complaint was filed by MultiVision on April 20, 1994. On April 12, 1994, KRCA filed a reply to MultiVision's opposition. Background 3. Pursuant to 4 of the Cable Television Consumer Protection and Competition Act of 1992 ["1992 Cable Act"] and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, a commercial television broadcast station is 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. 4. This section of the 1992 Cable Act also 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. 5. 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 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. 6. The Commission provided guidance in MM Docket 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 demonstrated 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. Id. at 2977 (emphasis in original). 7. In adopting rules to implement this provision, the Commission indicated that changes requested 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. Facts and Arguments of the Parties 8. KRCA is a commercial television station licensed to Riverside, California. Riverside, Hermosa Beach, and Manhattan Beach are all within the Los Angeles ADI. MultiVision's Hermosa Beach and Manhattan Beach, California System has approximately 50 channels in operation, of which fewer than 17 are in use for the retransmission of other local commercial television stations. See Exh. A to Complaint. 9. In its complaint, KRCA contends that MultiVision has violated section 76.56 of the Commission's Rules by refusing to commence carriage of KRCA as a local commercial television station on the System. KRCA maintains that on April 30, 1994, the System refused KRCA's initial request for carriage, citing signal quality problems and potential copyright liability. See Exh. B to Complaint. KRCA argues that it has complied with all prerequisites for mandatory carriage of its signal on the System. KRCA contends that when the Commission adopted the Report and Order in MM Docket 93-207, it specifically added Riverside to the Los Angeles hyphenated market, thereby eliminating any potential copyright liability for carriage of KRCA. See Exhibit C to Complaint. KRCA notes that it informed MultiVision on December 9, 1993, of the implications of the Report and Order. KRCA states that on December 23, 1993, it requested a meeting with the System to resolve the last remaining issue of signal quality, and that on January 11, 1994, signal strength was tested at MultiVision's Hermosa Beach and Manhattan Beach headend as +14 dbmv [-35dBm] on MultiVision's existing antenna system. KRCA emphasizes that +14 dbmv [-35dBm] is in excess of the minimum signal strength required for a station to qualify for carriage pursuant to the Commission's must-carry rules. See Exh. E to Complaint. Finally, KRCA contends that on January 12, 1994, it again requested carriage on the System but that MultiVision failed to respond to the request. Instead, it states, MultiVision filed a Petition for Emergency Special Relief from section 75.56 of the commission's must carry rules (CSR-4201-M) on January 15, 1994, which is also the subject of this Order. 10. MultiVision's response to KRCA's complaint contends that prior to the Commission's decision adding Riverside to the Los Angeles hyphenated market, it filed a petition seeking emergency special relief from the must-carry rules as applied to its Hermosa Beach/Manhattan Beach cable system. MultiVision argues that during the pendency of its petition, the and Commission rules require it to maintain the status quo with regard to signal carriage. MultiVision maintains, therefore, that contrary to KRCA's allegations, it has not violated Section 76.56 of the Commission's Rules by refusing to carry the station. In support of its contention that KRCA's complaint should be dismissed, MultiVision relies on the arguments it made in its Petition for Emergency Special Relief (CSR-4201-M). In that Petition, MultiVision contends that the System should be exempt from the must-carry requirements because Riverside is a distinct community with different needs and interests from the market served by the System. See  12-13, supra. 11. In its reply to MultiVision's opposition, KRCA contends that MultiVision fails to dispute that KRCA meets all current prerequisites for mandatory carriage on its system, and therefore, MultiVision must comply with the Commission's must- carry requirements. KRCA also notes that MultiVision's Opposition is based on its misperception that the Commission's Report and Order in Docket 93-207 modified the Los Angeles ADI by adding Riverside to the hyphenated market, when in fact, the Report and Order only modified the Section 76.51 designation of the Los Angeles hyphenated market, which, at the time of the Commission's order, had the effect of eliminating KRCA's copyright liability. 12. As stated previously, in MultiVision's January 25, 1994 Petition, MultiVision references the Commission's December 7, Report and Order, which added Riverside to the Los Angeles hyphenated market, in support of its contention that KRCA's complaint should be dismissed, stating that "[p]ursuant to this order, KRCA(TV) would ordinarily become eligible for must-carry status with MultiVision's Hermosa Beach/Manhattan Beach cable system ... thirty days after publication of notice in the Federal Register..." MultiVision argues that the Commission's order also gave MultiVision the right to petition to defeat the must-carry status of KRCA. Citing 58 Fed. Reg. 67694 at  5 (Dec. 22, 1993). 13. In support of its petition, MultiVision argues that the System should be exempt from the must-carry requirements or otherwise relieved of its obligation to carry KRCA because such requirements are "contrary to the concept of localism on which the must-carry rights established by Congress are based." Petition at 4. In addition, it argues that because the System's "maximum technical channel capacity" is being utilized, it would be forced to carry the "less desirable" programming of KRCA over programming requested by MultiVision's subscribers. Petition at 3. MultiVision also contends that because KRCA is programming in a foreign language format it "provides no meaningful local coverage or service to the community." Id. at 4. Furthermore, MultiVision states that, as shown by the survey of MultiVision's subscribers, there is no demonstrated demand for KRCA's programming. See Attachment A to Petition. Finally, MultiVision argues that the First Amendment requires the grant of this petition because "[t]he application of the must-carry rules to KRCA(TV)'s status on MultiVision's Hermosa Beach/Manhattan Beach cable system would clearly inhibit the exercise by MultiVision of editorial discretion consistent with its status as a First Amendment-protected speaker. " Petition at 6. 14. In response, KRCA argues that MultiVision does not justify excluding KRCA from must-carry status on MultiVision's cable systems. KRCA maintains that in accordance with the Commission's regulations it provides local service to the Hermosa Beach/ Manhattan Beach cable communities by placing a predicted City Grade signal over the communities. See Exhibit 1. In addition, KRCA asserts that it provides service to these communities through its Asian-language news and entertainment programming, and its English-language public affairs and children's programs; and the fact that a station broadcasts "general issue-responsive" rather than "community specific" programming cannot support deleting a local same-ADI community from the station's market. Furthermore, KRCA contends that MultiVision has failed to meet its burden of proving the necessity of a waiver of the Commission's must-carry rules with regard to KRCA. In addition to failing to provide support for its assertion that KRCA provides no meaningful local coverage or service, KRCA asserts that the evidence MultiVision has provided to show subscriber's lack of desire for KRCA to be added to carriage is misrepresented, flawed, and incomplete. Finally, KRCA notes that MultiVision's assertion that the petition should be granted on First Amendment grounds is without merit. KRCA cites Turner Broadcasting System, Inc. v. FCC, 819 F. Supp. 32 (D.D.C. 1993), in which the court rejects the argument that the Commission's must-carry rules violated the First Amendment. Opposition at 8. 15. In its March 7, 1994 Reply, MultiVision contends that KRCA conceded that it can not meet the standards set out by the Commission regarding historical carriage and viewing patterns. MultiVision argues that a change in programming format, as claimed by KRCA, should not excuse KRCA from the Commission's standards regarding the provision of service which is of interest to MultiVision's Hermosa Beach and Manhattan Beach subscribers. Analysis and Decision 16. We shall grant KRCA's complaint and request to enforce the Commission's must-carry rules, and deny MultiVision's petition for emergency special relief from Section 75.56 of the Commission's must-carry rules. 17. Given, that KRCA has adequately shown that it is a local commercial television station delivering a good quality signal over the system's principal headend, whose programming does not substantially duplicate the signal of another local commercial television station that is carried on the cable system, and because KRCA is located within the Los Angeles ADI (as determined by reference to Arbitron's 1991-92 Television Market Guide), KRCA is entitled to carriage on that portion of MultiVision's system located in the relevant ADI. Accordingly, as the party seeking a modification of the Los Angeles ADI, MultiVision bears the burden of showing that "the public interest would be served by the grant . . . of the request." 47 C.F.R.  76.79(f). 18. Rather than provide evidence disputing the validity of KRCA's must-carry claim or evidence that it has met its must- carry obligations, MultiVision instead relies upon its Petition for Special Relief from the Commission's must carry requirements. In light of the fact that Riverside is located within the Los Angeles ADI, we will treat MultiVision's Petition as a request for a modification of the station's ADI. As stated in KRCA's Opposition to MultiVision's Petition, MultiVision is wrong in its assertion that the Report and Order in Docket 93- 207 added Riverside to the Los Angeles ADI. Riverside has always been in the Los Angeles ADI, along with Hermosa Beach and Manhattan Beach. The only effect of the Report and Order was to change the Commission's 1972 designation of the market, which, at the time of the Commission's order was largely relevant to the issue of copyright liability. 19. The Cable Act allows the Commission to include or exclude particular communities from a television station's market to ensure that a television station is carried in the areas which it serves and which form its economic market. Apart from a subscriber survey which is out of date and does not adequately represent the viewing habits/desires of the citizens of the subject communities, MultiVision has introduced no evidence which would warrant KCRA's deletion from the Los Angles ADI. The survey submitted by MultiVision was from 1992, rather than a more recent period, and KRCA's format has changed significantly since that point in time. MultiVision's survey is, therefore, not probative with regard to KRCA's current programming. In addition, the survey only reflects the opinions of MultiVision's subscribers. The subscribers do not yet receive KRCA and are, therefore, unable to form an opinion regarding the programming provided by KRCA. The Commission has specifically stated that a measure of the viewing patterns in the cable community includes both cable and noncable homes. Moreover MultiVision has failed to introduce any evidence regarding the remaining criteria setout in paragraph 4 above. 20. Although it does not bear the burden in this instance, KRCA has introduced evidence reflecting the local nature of its service to the communities at issue. First, as indicated by the January 12, 1994 letter to MultiVision (attached to Complaint as Exh. E) and the March 1993 contour map (attached to KRCA's Opposition to Petition for Emergency Special Relief at Exh. 1), the signal strength testing conducted at MultiVision's Hermosa Beach and Manhattan Beach headend was recorded at +14 dbmv, equating to a City Grade signal. This signal strength is in excess of the signal strength required for "must carry" status. In addition, despite arguments to the contrary presented by MultiVision, KRCA has shown that it does provide service to these communities through its programming. See Exh. 2, attached to KRCA's Opposition to Petition for Emergency Special Relief. 21. Consequently, we find that KRCA is entitled to must carry rights on MultiVision's cable system. Furthermore, we also find that KRCA's deletion from the Los Angles ADI with respect to its carriage on MultiVision's cable system is not in the public interest. 22. Accordingly, IT IS ORDERED, that the Petition for Special Relief filed by MultiVision Cable TV (CSR-4201-M) IS DENIED. 23. IT IS FURTHER ORDERED, that the complaint filed by KRCA (CSR-4232-M) IS GRANTED. 24. IT IS FURTHER ORDERED, that MultiVision Cable TV SHALL CARRY the signal of Station KRCA in compliance with this Order within forty-five (45) days of its release date on its system serving Hermosa Beach and Manhattan Beach, California. 25. This action is taken pursuant to authority delegated by Section 0.283 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau