******************************************************** 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: ) ) Complaints of Costa de Oro CSR-4879-M) Television, Inc. CSR-4880-M) CSR-4887-M) CSR-4888-M) CSR-4889-M) CSR-4890-M) CSR-4891-M) CSR-4892-M) CSR-4898-M) CSR-4899-M) CSR-4901-M) Requests for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 24, 1997 Released: April 28, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Costa de Oro Television, Inc., permittee of Station KSTV (Channel 57), Ventura, California, has filed the eleven captioned signal carriage complaints against various cable television systems serving communities located in Los Angeles, Riverside, San Bernardino, and Inyo Counties, California all of which are in the Los Angeles ADI. The subject cable television systems generally oppose KSTV's complaints, and KSTV has replied. We are consolidating these cases because the issues raised are essentially identical in each proceeding. BACKGROUND 2. Pursuant to 614 of the Communications 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 purposes of the existing rules, 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. However, there are certain instances where a station primarily serves an ADI other than the ADI in which the station's county of license happens to be located. This is the basis for the Commission's "home county" exception to the standard ADI designation. In this circumstance, the station may assert signal carriage rights in its county of license as well as in the ADI to which the station is assigned by Arbitron. ARGUMENTS OF THE PARTIES 3. In each complaint, KSTV states that it requested carriage on the relevant cable systems, which serve communities located within the Los Angeles ADI, and that in each case KSTV's carriage request was rejected. KSTV acknowledges that the Commission has previously found that KSTV had been assigned to the Santa Barbara-Santa Maria-San Luis Obispo, California ADI by Arbitron, but argues that the assignment was erroneous and that the Commission's determinations were in error. This is demonstrated, KSTV claims, by a specific notice in Arbitron's Television Market Reports for February 1991 through November 1993 for the Santa Barbara-Santa Maria-San Luis Obispo ADI, which states: "KSTV-TV, Ventura, Ca is located in the Los Angeles ADI; KSTV-TV has chosen to be reported in the Santa Barbara-Santa Maria-San Luis Obispo market for reporting purposes only." KSTV argues in addition that as a new station, it should not be bound by a database created in 1991-92, years before the station initiated service. KSTV notes that Nielsen considers KSTV to be part of the Los Angeles "designated market area," or DMA, and argues that this should be controlling today. Finally, with respect to Consolidated Signal Corporation d/b/a Liberty Cable's ("Liberty") rejection of KSTV's carriage request based in part upon Liberty's declaration of bankruptcy (CSR-4880-M), KSTV argues that Commission actions are not stayed by a filing for bankruptcy. 4. The subject cable systems all note that the Commission has confirmed that KSTV is assigned to the Santa Barbara-Santa Maria-San Luis Obispo ADI by Arbitron, and thus cannot claim carriage rights in the Los Angeles ADI outside of Ventura County. Several systems challenge KSTV's description of itself as a new station, given its record since at least 1995 of seeking carriage rights in the Los Angeles ADI. These systems cite this history to assert that KSTV is abusing the Commission's processes with frivolous petitions, and is deserving of Commission sanctions. Buenavision Telecommunications, Inc. ("Buenavision") argues in addition that KSTV's signal strength is insufficient for the station to qualify as a must-carry station. 5. In reply, KSTV denies that it is filing frivolous requests and petitions, but is simply seeking to assert and preserve its carriage rights in the Los Angeles ADI for the most recent carriage election cycle, in the anticipation of a reversal of the Commission's prior decisions finding the station not to be in that ADI. KSTV claims that it never sought treatment from Arbitron as anything other than a Los Angeles ADI station. KSTV states that it did not subscribe to Arbitron publications nor had any lawful way to access them, so the station could not correct Arbitron's error. KSTV cites Panhandle Telecasting Co. to argue that Nielsen DMA assignments constitute persuasive evidence of a station's actual market. KSTV cites to the text of 614(h)(1)(C)(i) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, which no longer mandates use of Arbitron data, but states generally that "a broadcasting station's market shall be determined by the Commission by regulation or order using, where available, commercial publications which delineate television markets based on viewing patterns . . . ." KSTV also contends that the data Buenavision submits does not comport with Commission standards for signal strength tests. ANALYSIS AND DECISION 6. We will dismiss KSTV-TV's must carry complaints. The legal disputes that are at issue in the captioned complaints have been ruled on previously by the Bureau in its decisions in Complaint of Costa De Oro Television, Inc. against Copley/Colony Cablevision, 11 FCC Rcd 505 (1995); Complaint of Costa De Oro Television, Inc. against United Cable Television of East San Fernando Valley, Inc., 11 FCC Rcd 503 (1995); and Costa De Oro Television, Inc., 10 FCC Rcd 9468 (1995). Petitions for reconsideration of those decisions are under active review but have not yet been decided. Until such time as these decisions are reconsidered or reversed on review they reflect the Bureau's understanding of the law and will be followed. 7. The essential question presented is whether a station is entitled to carriage in the ADI in which its community of license is physically located or whether is it entitled to carriage in the ADI market to which it has been assigned in the Arbitron 1991-92 Television ADI Market Guide. It has previously been held that KSTV is not entitled to carriage on cable systems in the Los Angeles ADI because the 1991-1992 Television ADI Market Guide, the controlling text in market designations, assigned the station to the Santa Barbara-Santa Maria-San Luis Obispo ADI and not to the Los Angeles ADI. The fact that Arbitron recognizes that KSTV's city of license is physically located in Ventura County which is located in the Los Angeles ADI, does not affect the assignment of KSTV to the Santa Barbara-Santa Maria-San Luis Obispo ADI. KSTV therefore is not a "local station" to the communities in question under the Commission's definition of the term since it is not within the same television market with respect to the cable systems in question. As all parties recognize, we have previously addressed this identical question vis-a-vis KSTV and the station has provided no argument unique to the current controversy to warrant a different conclusion. With respect to the contention that KSTV's filings are frivolous and abusive, we find no substance to this charge. It is appropriate that KSTV file to protect its legal rights until such time as the legal issues in dispute are finally resolved. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, That the complaints filed by Costa de Oro Television, Inc. on December 13, 1996 (CSR-4879-M, CSR-4880-M), on December 20, 1996 (CSR- 4887-M, CSR-4888-M, CSR-4889-M, CSR-4890-M, CSR-4891-M, CSR-4892-M), and on December 30, 1996 (CSR-4898-M, CSR-4899-M, CSR-4901-M) ARE DISMISSED. 10. 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