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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:>(*t(jBBjjvHH}j<<<@jHHHH((>><WC;X XW  p7sQXARC;X5pXRo=  x7.QXXP(1(#X5h1  P7jQhPR&HHHX,hH6X@DQh@7PC2XL DXP\  P6QXPdddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L2T@NAT"5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddndddddddxxxJxxxxJxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx8xxx8xxx8xxx8xxxxxxxxxxxxxxfi]f]oJiAlJ{SxJ8.uJo]]{JoSxJxf`SfSSiJxJofx]fffxi{8SxxxfJffffz88SSSSx{SSSxxxf8`SJ8Muu]daqqZZnn{{xu{{M{aZZ5M5M҅P?k2T c-   $/76.59 Modification of television markets, DA95712//$ $/76.61 Disputes concerning carriage//$ $/300.534 Carriage of local commercial television signals//$ $///DA 95712 4/4/95///$ ///newjob///  c_-  Before the  cL- FEDERAL COMMUNICATIONS COMMISSION T  c9- Washington, D.C. 20554  _& -x` `  hh@hpp  xxDA95712  c -In re:x` `  hh@) x` `  hh@)  c -Kansas City Cable Partners d/b/ahh@)hppCSR4109A  c-American Cablevision of Kansas City@)  c-Kansas City, Missouri,et al.hh) x` `  hh@)  cW-For Modification of the Kansas City,@)h  c@-Missouri ADI hh@) x` `  hh  c- MEMORANDUM OPINION AND ORDER  c-x` ` Adopted: March 29, 1995@hppReleased:April 5, 1995 By the Cable Services Bureau:  cq- INTRODUCTION ă x1. In the captioned proceeding, Kansas City Cable Partners d/b/a American Cablevision of Kansas City ("American Cablevision") has requested modification of the Kansas City, Missouri Area of Dominant Influence (ADI) insofar as it involves carriage of the signal of television station KMCI(TV), Channel 38, Lawrence, Kansas. Specifically, American Cablevision requests that the 44 communities served by its cable systems described as being in Clay, Jackson, Platte and Cass Counties, Missouri and Wyandotte, Johnson and Leavenworth Counties, Kansas ("Kansas City systems") be excluded from KMCI(TV)'s television market, which are considered part of the Kansas City, Missouri ADI, for the  c#-purpose of the cable television mandatory broadcast signal carriage rules.. # X&<ԍ #Xw PE37 DXP#The communities involved are Kansas City, Missouri; North Kansas City, Missouri; Mission Woods, Kansas; Mission Hills, Kansas; Westwood Hills, Kansas; Liberty, Missouri; Houston Lake, Missouri; Riverside, Missouri; Avondale, Missouri; Northmoor, Missouri; Claycomo, Missouri; Pleasant Valley, Missouri; Glenaire, Missouri; Wyandotte County,"(0*0*0*(" Kansas; Kansas City, Kansas; Gladstone, Missouri; Smithville, Missouri; Village of Oaks, Missouri; Oakview, Missouri; Oakwood Park, Missouri; Parkville, Missouri; Platte County, Missouri; Lake Waukomis, Missouri; Weatherby Lake, Missouri; Kearney, Missouri; Bonner Springs, Kansas; Desoto, Kansas; Gardner, Kansas; Belton, Missouri; Grandview, Missouri; Lees Summit, Missouri; Edwardsville, Kansas, Leavenworth County, Kansas; Leavenworth, Kansas; Lansing, Kansas; Fort Leavenworth, Kansas; Platte City, Missouri; and Tracy, Missouri (collectively, "American Communities"). Although the text of its request initially references only Clay and Jackson Counties, Missouri and Wyandotte and Leavenworth Counties, Kansas, the caption of the document also references Platte and Cass Counties, Missouri and Johnson County, Kansas. Reference within the American Cablevision filings is also made to "Clayton" County, Missouri which appears to mean "Clay" County. Numerous other cable television systems operate within this seven county area. The petition, however, only addresses American Cablevision system communities.. This petition was"#e 0*0*0*$" opposed by Miller Broadcasting Inc ("Miller")., licensee of KMCI(TV) on November 12, 1993 and American Cablevision replied on November 30, 1993. Letters supporting the request were received from the City of North Kansas City, the City of Smithville, the City of Edwardsville, and the City of Parkville.  Yv-  BACKGROUND ă x2. Pursuant to 4 of the Cable Television Consumer Protection and Competition Act  Y2-of 1992 ["1992 Cable Act"]|2|  Y_-ԍ #XR  P7jQ=9XP#Pub. L. No. 102385, 106 Stat. 1460 (1992).| and implementing rules adopted by the Commission in its  Y -Report and Order in MM Docket 92259,r -  Y-ԍ #XR  P7jQ=9XP#8 FCC Rcd 2965, 29762977 (1993).r 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  Y -defined by the Arbitron audience research organization.a   Yg-Ѝ #XR  P7jQ=9XP#Section 4 of the 1992 Cable Act specifies that a commercial broadcasting station's market shall be determined in the manner provided in 73.3555(d)(3)(i) of the Commission's Rules, as in effect on May 1, 1991. This section of the rules, now redesignated 73.3555(e)(3)(i), refers to Arbitron's ADI for purposes of the broadcast multiple ownership rules. Section 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial implementation of the mandatory carriage rules are those published in  Y"-Arbitron's 19911992 Television Market Guide.Ļ 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 "|0*0*0*"Ԍon which homemarket stations receive a preponderance of total viewing hours in the county.  Y-For purposes of this calculation, both overtheair and cable television viewing are included.  Yb-Ѝ#XR  P7jQ=9XP# Because of the topography involved, certain counties are divided into more than one sampling unit. Also, in certain circumstances, a station may have its home county assigned to an ADI even though it receives less than a preponderance of the audience in that county. For a more complete description of how counties are allocated, see Arbitron's  Y-Description of Methodology. x3. Under the Act, however, the Commission is also directed to consider changes in ADI areas. Section 614(h) provides that the Commission may: xwith respect to a particular television broadcast station, include additional xcommunities within its television market or exclude communities from such xstation's television market to better effectuate the purposes of this section. In considering such requests, the Act provides that: xthe Commission shall afford particular attention to the value of localism by xtaking into account such factors as x(I) whether the station, or other stations located in the same area, have xbeen historically carried on the cable system or systems within such xcommunity; x(II) whether the television station provides coverage or other local service xto such community; x(III) whether any other television station that is eligible to be carried by a cable xsystem in such community in fulfillment of the requirements of this section xprovides news coverage of issues of concern to such community or provides xcarriage or coverage of sporting and other events of interest to the community; xand x x(IV) evidence of viewing patterns in cable and noncable households within the  Ye-xareas served by the cable system or systems in such community.e  Y5"-ԍ#XR  P7jQ=9XP# 47 U.S.C. 534(h)(1)(C)(ii). As Congress recognized, "[t]hese factors are not intended to be exclusive . . . ." H.R. Rep. 102628, 102d Cong., 2d Sess. 97 (1992). x4. The legislative history of this provision indicates that: XxThe 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"0*0*0* " 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  Y_-be deleted from the station's television market._  Y-#Xw PE37=9XP#э H.R. Rep. 102628, 102d Cong., 2d Sess. 9798 (1992).  x  Y1-x5. The Commission provided guidance in MM Docket 92259, supra, to aid decision making in these matters, as follows: xFor example, the historical carriage of the station could be illustrated by the  Y -xsubmission of documents listing the cable system's channel lineup (e.g., rate xcards) for a period of years. To show that the station provides coverage or xother local service to the cable community (factor 2), parties may demonstrate xthat the station places a Grade B coverage contour over the cable community xor is located close to the community in terms of mileage. Coverage of news or xother programming of interest to the community could be demonstrated by xprogram logs or other descriptions of local program offerings. The final  Y8-xfactor concerns viewing patterns in the cable community in cable and noncable xhomes. Audience data clearly provide appropriate evidence about this factor. xIn this regard, we note that surveys such as those used to demonstrate xsignificantly viewed status could be useful. However, since this factor xrequires us to evaluate viewing on a community basis for cable and noncable xhomes, and significantly viewed surveys typically measure viewing only in xnoncable households, such surveys may need to be supplemented with  Y-xadditional data concerning viewing in cable homes.|y  Y-ԍ #XR  P7jQ=9XP#MM Docket 92259, 8 FCC Rcd at 2977.|  Yk-x6. In adopting rules to implement this provision, the Commission indicated that changes requested should be considered on a communitybycommunity basis rather than on a countybycounty basis and that they should be treated as specific to particular stations rather  Y&-than applicable in common to all stations in the market. &,  Y#-ԍ #XR  P7jQ=9XP#MM Docket 92259, 8 FCC Rcd at 2977, 2977 n.139. The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage  Y-during the pendency of an ADI change request.e   Y&-ԍ #XR  P7jQ=9XP#47 C.F.R. 76.59.e "! 0*0*0*""Ԍ X- c%ARGUMENTS ă x7. In its petition and in a reply pleading, American Cablevision argues the KMCI(TV) is a commercial station that is predominantly utilized for the transmission of sales presentations or program length commercials and that it fails to present programming tailored to the local needs and interests of the particular communities serviced by its systems. It accordingly seeks to be relieved of the obligation to carry KMCI(TV)'s signal. Imposition of a carriage obligation, it is said, will cause the systems to remove some service from the expanded basic tier and possibly some service from the basic tier lineup. Although this station has been operating since 1988, its signal has never been carried on the systems in question since the station provides no significant local programming and thus there was no incentive for its signal to be carried. It is said that "only one other major cable system in the [Kansas City] ADI carries KMCI." x x8. KMCI(TV), it is contended, has virtually given over its right to broadcast to the Home Shopping Club. In contrast to the alleged paucity of local programming on KMCI(TV), American Cablevision states that several Kansas City area stations that are carried on its systems provide extensive local programming throughout each day. The system itself is also said to offer a number of channels dedicated to local affairs and/or local origination programming. The station's "Issues/Programming Quarterly Report" and "Children's Programming Quarterly Report" are said to reveal only minimal amounts of such programming. Such programming as is run is said to consist of short spots, lasting between 30 seconds and five minutes rerun over and over throughout the day. x9. With respect to audience in the area, it is said that KMCI(TV), after operation for approximately five years, is not even counted by Arbitron in terms of the market's daypart ratings and shares and is not "significantly viewed" in a single county in Kansas or Missouri. x10. In reply, Miller argues that American's petition is simply an effort to avoid carriage of a home shopping station in competition with a home shopping channel contemplated by Time Warner, the system's owner, in conjunction with Spiegel, Inc. Miller contends that the ADI modification procedures contained in the Act and the factors referenced therein were intended principally to facilitate inclusion rather than exclusion of communities in stations' markets. Miller disputes the assertion that its public affairs programming denotes a lack of commitment to the local community. In this regard it notes the station's issues programs list is, by virtue of the Commission's rules (Section 73.3526), intended to be illustrative only and contain the station's most significant treatment of community issues rather than to be inclusive. KMCI(TV), it is said, broadcasts a regular program "Viewpoint" that provides public affairs programming addressing a wide range of topics responsive to local interests and concerns and that it broadcasts syndicated children's programming consistent with the Commission's recognition "that local needs can be satisfied  YQ%-through the presentation of programming which is not locally produced." With respect to viewership, Miller argues that the use of Arbitron ratings as a benchmark is inappropriate and that a more appropriate measuring stick for its viewership is club membership. KMCI(TV) is said to have "tens of thousands of club members." x"( 0*0*0*0*"Ԍ Y-( DISCUSSION ă  Y-x11. Because American Cablevision has not pointed to particularized and persuasive evidence that the communities in question are outside of KMCI(TV)'s market, based on an analysis the four specific statutory or any other relevant factors, its petition will be denied. We note as a preliminary matter, that the ADI market change process incorporated into the Communications Act is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. Here the arguments presented are generally not such as assist in resolving whether a change is appropriate whether one community rather than another should be included or excluded from the market but rather appear directed to whether the signal of KMCI(TV) should be carried regardless of the specific location of the cable communities. x x12. The 44 communities here in question are located in Kansas City and surrounding communities in Clay, Jackson, Platte and Cass Counties, Missouri and Wyandotte, Johnson and Leavenworth Counties, Kansas, all of which are within the Kansas City, Missouri ADI. Lawrence, Kansas, KMCI(TV)'s city of license, is considered by Arbitron to be a part of the same ADI and is approximately 35 miles west of Kansas City which is the core of the market and which contains the major population concentration in KMCI(TV)'s existing market area. The rest of the communities in question are between 35 and 54 miles from Lawrence and the 7 counties together contain some threequarters of the television households in the market. Given the general structure of the market, including the fact that Lawrence is only 35 miles distant from the center of the market, its location not only within the ADI of the market but within the same standard metropolitan statistical area, the Grade A signal coverage by KMCI(TV) of the core of the market, and the high degree of overlap between the service areas of KMCI(TV) and all of the other stations licensed to Kansas City, it appears at the outset that KMCI(TV) is logically part of this ADI as are the cable communities in question. x13. Focusing on the specific factors referenced in the statute, we are unable to conclude that American Cablevision's arguments distinguish these cable communities from the rest of the market. With respect to the question of historical carriage patterns, there is no dispute that the signal of KMCI(TV) has not been carried on the systems in question. The 1992 Cable Act was adopted, however, in part to cure past discriminatory signal carriage practices. Thus, the absence of historical carriage cannot by itself be used to justify a refusal of carriage in the future. Rather, carriage patterns are useful insofar as they provide insight into structure of the market involved. Here the carriage pattern appears, based on petitioner's own comments, to be more related to judgments as to the value of the  Y"-station's programming, than to its location within the market. "  Y%-#Xw PE37=9XP#э American Cablevision itself specifically points out the absence of carriage by other major cable systems in the ADI. x14. Petitioner has also failed to demonstrate that KMCI(TV) does not provide local coverage or service to the Kansas City systems. The fact that KMCI(TV) places a principal"R%b 0*0*0*&" city contour over many of the communities and a Grade A or Grade B contour over the remaining communities where American Cablevision's subscribers are located is persuasive evidence that is provides service to these communities. The Commission has noted the importance of such contour coverage in determining local service. With regard to the content of KMCI(TV) programming, the Commission has found that home shopping formats are not incompatible with local appeal and has recognized that such specialized programming traditionally has drawn smaller audiences. The Commission has specifically affirmed that home shopping stations may serve the public interest because, among other reasons, they provide "an important service to viewers who either have difficulty obtaining or do not  Y1-otherwise wish to purchase goods in a more traditional manner." 1  Y -ԍ #Xw PE37=9XP#See Home Shopping Station Issues, 8 FCC Rcd 5321, 5327 (1993),  Y -reconsideration pending.#c PE37P# x15. We also find petitioner's arguments regarding KMCI(TV)'s lack of audience ratings to be unpersuasive. The Commission has previously recognized that stations with limited audiences, once referred to as specialty stations, are nevertheless capable of "offer[ing] desirable diversity of programming . . . ," yet typically attract limited  Y -audiences. f  Y-ԍ #Xw PE37=9XP#First Report and Order in Docket 20553, 58 FCC 2d 442, 452 (1976), recon.  Y-denied, 60 FCC 2d 661 (1976).#x6X@`7>FX@# The fact that speciality stations, and those akin to them such as home shopping  Y-stations, attract smaller audience shares, is properly taken into account in determining the equities concerning a station's right to cable carriage. As with the historical carriage issue, audience information is useful if it distinguishes one geographic or market area from another but the information provided by American Cablevision, because it suggests that KMCI(TV) has no audience ratings anyplace, is of no assistance in this regard. x16. Finally, we do not believe that American Cablevision's carriage of other local stations is sufficient to justify exclusion of its system from the above referenced  Y-communities.6x  Y-#Xw PE37=9XP#э That other ADI licensees do in fact provide coverage of and service to the communities in question is not to the contrary. We do not believe that Congress intended this criterion to operate as a bar to a station's ADI claim whenever other stations could also be shown to serve the communities at issue, but rather that this criterion was intended to  YH -enhance a station's claim where it could be shown that other stations do not serve the communities at issue.6 American Cablevision has not sufficiently demonstrated why it is necessary to remove itself from its own ADI, visavis KMCI(TV), yet remain in the same market with regard to the station's competitors. We find that American Cablevision's petition is inconsistent with Congressional intent which clearly states that the market modification policy  Y|-was not provided as a means for cable systems to avoid their must carry obligations.|[  Y&-ԍ #Xw PE37=9XP#H.R. Rep. No. 102628, 102d Cong. 2nd Sess. at 97. #x6X@`7>FX@#Ѱ  YN-x17. In conclusion, because American Cablevision has not pointed to particularized  Y7-evidence that the communities it serves are not part of KMCI(TV)'s market, based on the"7 0*0*0*L" four specific statutory factors or any other relevant factors, we find that grant of its petition is not in the public interest.  Y- x:ORDER ă x x18. 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 captioned petition for special relief, filed October 4, 1993, on behalf of Kansas City Cable Partners d/b/a American Cablevision of Kansas City, IS DENIED. Its petitions having been denied, Kansas City Cable Partners shall comply with the applicable provisions of the Section 614 of the Communications Act and the associated rules within sixty (60) days of the release of this Order. x19. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. x` `  hh FEDERAL COMMUNICATIONS COMMISSION x` `  hh William H. Johnson x` `  hh Deputy Chief, Cable Services Bureau$kU# $