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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""San Bernardino County system.\n yO$-  xԍ We note that KHIZ also filed a must carry complaint against Marks CableVision (CSR4856M). However,  {O$-  Zthe Cable Services Bureau granted this complaint in a separate proceeding on February 24, 1997. See Complaint  {O%-of Sunbelt Television, Inc., DA 97425 (released February 27, 1997 ).  We will jointly consider these cases to resolve the signal carriage rights of KHIZ on Petitioners' cable systems. "@  ,N(N(ZZ"Ԍ X-: BACKGROUND ă  X-  #2. ` ` Pursuant to 614 of the Communications Act and implementing rules adopted by  X-  Kthe Commission in its Report and Order in MM Docket 92259,O yO4-ԍ8 FCC Rcd 2965, 29762977 (1993).O commercial television broadcast   zstations 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,  Xx-  as defined by the Arbitron audience research organization.*xX yO -  .ԍSection 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial  {OI -implementation of the mandatory carriage rules are those published in Arbitron's 19911992 Television Market Guide.* An ADI is a geographic market   designation that defines each television market exclusive of others, based on measured viewing   jpatterns. Essentially, each county in the United States is allocated to a market based on which   homemarket stations receive a preponderance of total viewing hours in the county. For purposes  X -of this calculation, both overtheair and cable television viewing are included.$  yO-  KԍBecause 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  {O-  preponderance of the audience in that county. For a more complete description of how counties are allocated, see  {O-Arbitron's Description of Methodology.   X -  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 new coverage of issues of concern to such community or provides" ,N(N(ZZ["Ԍcarriage 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.  Xv-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.  X -X` hp x (#%'0*,.8135@8:it is not intending to transform itself into a "regional `super station'," but merely is seeking   carriage on those communities within its Grade A and Grade B contours. Moreover, KHIZ   argues that the only admission it has made is that it does not place a "good quality signal" over  Xb-  <the headends of the cable systems in question. Therefore, it maintains that Petitioners' statement   that "KHIZ admits it never has placed a usable signal over the mountains" is misleading. In   Kaddition, KHIZ contends that Petitioners submit no supporting evidence to justify their argument  X-  kthat "KHIZ fails to place an actual Grade B [signal] over the Systems' communities." In any   Kevent, KHIZ states that Grade A and Grade B contours are, by definition, estimations based upon  X-  \F (50,50) curves.x yO-ԍSee Section 73.683 which states: the actual extent of service will usually be less than indicated by these estimates due to interference from other stations. Because of these factors, the predicted field strength contours give no assurance of service to any specific percentage of receiver locations within the distances indicated. In licensing proceedings these variations will not be considered. Finally, KHIZ points to the fact that the systems' headends are closer to  X-KHIZ than to the Los Angeles stations they predominantly carry.l(  {O!-ԍSee Good Companion Broadcasting, Inc., 11 FCC Rcd 4826 (1996).l  X-  X- MUST CARRY ARGUMENTS  X-  X|-  14. ` ` In its must carry complaint, KHIZ states that it initially requested carriage on   TCI's systems in letters dated September 28, 1996, which TCI received on October 3, 1996.   Subsequently, on October 14, 1996, KHIZ states that it supplemented its letter to detail the"N ,N(N(ZZ"   station's planned signal delivery system. Although TCI was required to respond by November   2, 1996, KHIZ states that TCI failed to do so. KHIZ filed the instant complaint on November 6, 1996.  X-  15. ` ` In support of its request, KHIZ states that it is a qualified local commercial   television station with respect to TCI. KHIZ notes that the communities in question are all   zlocated in the Los Angeles ADI, including Barstow, California, KHIZ's city of license. KHIZ   =further notes that it is not considered a distant signal under the cable compulsory license with   respect to TCI and that it is able to provide a good quality signal to TCI's headend. KHIZ states   that TCI's systems have from 41 to 74 activated channels, yet each system is only carrying 16   qualified local commercial television stations (12 in the case of the Redlands' system). Because   each system is carrying less than its quota of qualified local commercial television stations   required by the Commission's Rules, KHIZ argues that TCI is required to carry the station.   ?KHIZ states that it is capable of providing TCI with a good quality signal by means of a   .microwave relay from KHIZ's main transmitter in Victorville, California to an existing tower site   on Paivika Peak, from which the station's signal will be fed to TCI's systems' principal headends.   -KHIZ is willing to bear the cost of acquiring and installing the necessary equipment to implement   this signal delivery system. KHIZ further states that it has asserted its carriage rights in a timely  Xb-  \fashion, citing the Commission's Clarification Order.Db yO-ԍ8 FCC Rcd 4142, 4144 (1993).D KHIZ supplemented its petition on  XM-  November 19, 1996, noting that TCI responded to KHIZ's September 28 letter on November 9./XMX yOV-  xԍKHIZ also states that TCI responded to KHIZ's earlier notice of election of mustcarry status on November   1, 1996, stating that KHIZ's signal strength was insufficient, and provided certain signal test results on November 14, 1996./   KHIZ states that TCI's reply merely noted that KHIZ was not yet delivering a sufficient signal to TCI, without committing to carry the station once a good quality signal is delivered.  X-  16. ` ` In opposition to KHIZ, TCI first states that it did respond to KHIZ in a timely   fashion on November 1, 1996. TCI further states that at no time has TCI informed KHIZ that   it was denying carriage of the station and, in fact, has asked KHIZ to contact TCI to resolve the   station's signal strength problem. TCI argues that it need not commit to carry KHIZ until KHIZ   [provides a good quality signal to TCI. Finally, TCI states that it will seek in a separate petition   [to modify the ADI of KHIZ, on which KHIZ's claim to carriage is based, maintaining that KHIZ   =does not provide programming to meet the needs and interests of TCI's subscribers, and lacks a significant nexus to the communities.  X"-  A17. ` ` In reply to TCI, KHIZ contends that TCI's letter of November 1 merely responded   .to the station's carriage election notice and was not even sent to the signatory of the station's   demand for carriage. KHIZ states that on November 26, 1996, a day prior to the day TCI filed   its opposition, technical representatives from KHIZ and TCI met and jointly tested KHIZ's signal   /delivery system, and found that KHIZ delivered a sufficient signal (37 dBm) to TCI. KHIZ   [further states that installation and activation of the necessary equipment at TCI's headend can"!x,N(N(ZZ "   ]occur immediately. KHIZ asserts that TCI has informed KHIZ that TCI does not wish to   .preempt a nonmustcarry service to accommodate KHIZ. Accordingly, KHIZ argues that it is   entitled to a Commission order requiring TCI to commence carriage of the station once KHIZ  X-installs and activates the necessary equipment to provide a good quality signal.] {O4-ԍKHIZ cites KSLS, Inc., 11 FCC Rcd 12718 (1996).]  X-@ DISCUSSION ă  X_-  }18. ` ` We are not persuaded by the arguments raised by Petitioners herein. With regard   to the first criteria which deals with historic carriage on a cable system, we note that Section 614   of the Communications Act of 1934, as amended, was adopted in part to cure past discriminatory  X -  signal carriage practices.: Z yO% -ԍ47 U.S.C. 614.: Where, as is the case here, a petitioner seeks to delete a station from   <a relevant ADI with respect to a cable system, we believe that failure to establish historic carriage   should not, by itself, be given determinative weight. KHIZ's lack of carriage, specialty station   type programming format, and its previous inability to provide a viewable signal explain why its  X -  ratings are low in the relevant cable communities.  yOY-  ԍA.C. Nielsen indicates a 0% share of total viewing hours and a 6% net weekly circulation for KHIZ in San Bernardino County, while in Riverside County, no shares were reported. Congress could not have intended for   stations to have cable communities deleted from their markets solely because their audience  X-shares are not as significant as those of several other stations with which they compete.(#(#  Xb-  #19. ` ` Although the factors recited by Petitioners do weigh in favor of their request, we   Lfind that other factors deserve more weight. KHIZ's transmitter is located, on average, only 34   miles from the systems' headends and its predicted Grade A contour encompasses all but one of   the communities. While the San Bernardino and San Gabriel Mountains are between KHIZ and   <the cable systems in question, it does not appear from the evidence herein, including in particular   the distances involved, that they present a market barrier. The evidence before us indicate that   there are significant cultural and economic connections between KHIZ and the San Bernardino  Riverside area. With respect to KHIZ's status as a home shopping station, we note that the   kCommission has found that such stations qualify as local commercial television stations for  X-  Kpurposes of cable carriage.l B {O -ԍReport and Order in MM Docket No. 938, 8 FCC Rcd 5321 (1993).l Consequently, based upon the above, we find that Petitioners have   Lfailed to carry their burden of establishing that the public interest would be served by deleting KHIZ from the Los Angeles ADI as it relates to carriage on Petitoners's cable systems.  X7-  20. ` ` Turning to KHIZ's signal carriage complaint against TCI,=!7 yO%-ԍSee footnote 2 above.= having found that grant   >of Petitioners' petition for market modification is not warranted, we find no issue remaining. "  d !,N(N(ZZ"   LAlthough KHIZ does not yet provide a sufficient offair signal to TCI's principal headend, TCI   has conceded that it would carry KHIZ at such time as KHIZ provides a good quality signal.   KHIZ has stated that, using specialized equipment and a microwave relay system, it can deliver   signal strengths well within Commission criteria. KHIZ has stated that it will provide, at its own   xexpense, the necessary specialized equipment to ensure a good quality signal. We find, therefore,   zthat KHIZ is a qualified UHF station entitled to carriage on TCI's system serving Beaumont, Colton, East Highland, Highgrove, Redlands and Rialto, California.  X_-   XH-% ORDERING CLAUSES ă  X -  21.` ` 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 (CSR4884A) filed on behalf of Marks CableVision and TCI  X -CableVision of California, Inc. IS DENIED.  X -  }22. ` ` IT IS FURTHER ORDERED, that the complaint filed on behalf of KHIZ (CSR X-  4860M) against TCI's systems IS GRANTED. TCI Cablevision of California, Inc. IS  Xy-  ORDERED to commence carriage of KHIZ sixty (60) days after KHIZ installs the equipment   .necessary to provide a good quality signal to TCI's principal headend. KHIZ shall notify the   =relevant cable systems in writing of its carriage and channel position elections (76.56, 76.57,   and 76.64(f) of the Commission's Rules) within thirty (30) days of providing a good quality signal.  X-  23.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION  "F8 ` `  hh,William H. Johnson ` ` hh,Deputy Chief, Cable Services Bureau