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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""mandatory broadcast signal carriage rules, from its cable systems serving Loma Linda City,   Rancho Cucamonga City, Highland City, Grand Terrace City, Fontana City, Ontario City, San   Bernardino City, Upland City, Montclair City and unincorporated areas of San Bernardino   zCounty, California. KHIZ filed an opposition to this petition to which Comcast replied. In a   separate but related proceeding, KHIZ filed a must carry complaint against Comcast for carriage   jon Comcast's San Bernardino County systems. We will jointly consider these cases to resolve the signal carriage rights of KHIZ on Comcast's cable systems.  X"-: BACKGROUND ă  X$-  #2. ` ` Pursuant to 614 of the Communications Act and implementing rules adopted by"$,N(N(ZZ#"  X-  -the Commission in its Report and Order in MM Docket 92259,O yOy-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,  X-  as defined by the Arbitron audience research organization.*X yO-  .ԍSection 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial  {O-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  Xa-of this calculation, both overtheair and cable television viewing are included.$a 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  {OT-  preponderance of the audience in that county. For a more complete description of how counties are allocated, see  {O-Arbitron's Description of Methodology.   X3-  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 carriage or coverage of sporting and other events of interest to the community; and " ,N(N(ZZ["Ԍ(IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community.  X-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:and does not garner sufficient viewership to be reported in the 1996 Nielsen Station Index.  X-  Comcast states in addition that KHIZ is not listed in either local area papers or the Los Angeles  X{-  edition of TV Guide. Comcast concludes that grant of its modification request, therefore, would  Xd-be consistent with Commission decisions in other similar requests.(d  {O-  hԍSee, e.g., Time Warner Cable, DA 961694 (released October 15, 1996); AR Cable Services, Inc., DA 962015  {O-(released December 5, 1996); and Cablevision of Cleveland, L.P., DA 96867 (released June 3, 1996).(  X6-  10. ` ` In its opposition, KHIZ states that because it has determined that it is able to  X-  jprovide a good quality signal to Comcast's headends, as required by 76.55(c)(3) of the rules,L  yO"-  ԍKHIZ states that this is through the establishment of a television relay system and a microwave system on Paivika Peak.   the filing of Comcast's modification request is clearly an attempt to avoid its must carry   obligations and should be rejected. It argues that since 76.55(e)(3) defines a station's market   as not only its ADI, but the county in which it is located and since Comcast's cable systems and   KHIZ's city of license are all located within San Bernardino County, even if Comcast's request   to delete its communities "from the ADI of KHIZ" was granted it would still be required to carry",N(N(ZZp"   KHIZ since the station is still part of Comcast's defined "market." In any event, KHIZ states that   !it provides coverage and local service to Comcast's communities. KHIZ points out that   Comcast's Ontario headend is only 43.78 miles from the station's transmitter site at Victorville,   California, while the system's Grand Terrace headend is only 39.87 miles away. Moreover,   NKHIZ points out that the communities of Fontana, San Bernardino, Loma Linda, Rancho   .Cucamonga, Grand Terrace and Highland all fall within KHIZ's predicted Grade A contour and   the communities of Montclair, Ontario and Upland fall within the station's predicted Grade B   contour. KHIZ asserts that the Commission has stated that "Grade B service demonstrates service  XH-  Lto cable communities and serves as a measure of a station's natural economic market."H {O -  ԍSee, Rifkin/Narragansett South Florida, CATV Limited Partnership, DA 962016 (released December 5, 1996) at n. 59. KHIZ  X1-  [argues that the San Gabriel Mountains1" yO -ԍKHIZ indicates that Comcast mistakenly identifies them as the San Bernardino mountains. do not pose either a geographic or economic "barrier"   and therefore are no basis for exclusion. KHIZ maintains that the Inland Valley and "High   yDesert" regions are connected by interstate highways, that both the communities of Victorville  X -  and Barstow are considered to be part of the "Inland Empire,"|X  yOO-  ԍKHIZ states that according to Ronald Rector, General Manager of the High Desert Regional Economic   hDevelopment Authority, the "High Desert" corrider, consisting of Apple Valley, Hesperia, Victorville, Adelanto and Barstow, is considered part of the "Inland Empire" which also includes the instant communities.|numerous radio stations serve both   xregions, "High Desert" residents make principal use of Riverside and San Bernardino newspapers,   .are dependent on those same areas for jobs and up to 98,000 motorists travel between the two regions daily.  Xy-  11. ` ` With regard to historical carriage, KHIZ argues that the Commission has   previously stated that the fact that a station has not been carried is not determinative and the 1992   xCable Act was designed to remedy past discriminatory signal practices. In any event, KHIZ avers   <that its lack of carriage should not be construed as due to the station's location, but rather simply   xdue to the fact that, until recently, it could not technically provide an adequate overtheair signal.   KFurther, KHIZ argues that Comcast does not provide any evidence to support its claim that KHIZ   Kdoes not provide an offair signal. However, KHIZ points to evidence submitted in an associated  X-  kmodification petitionsX yO[-  hԍSee Attachment 7 of the "Petition for Special Relief" filed on behalf of Marks Cablevision and TCI Cablevision   of California, Inc. (CSR4884A) in which Howard Rosenblum, President of Media Strategies states that "KHIZ accounts for less than 1% of the viewing to [San Bernardino County] households."s which indicates that its signal does indeed have offair viewership in   Comcast's community market area. While KHIZ admits that this viewership is not large, it   maintains that it was not Congress' intention to delete stations from their home markets solely   because of low viewership. In addition, KHIZ avers that any weight that can be attributed to   Comcast's carriage of other local stations is minimal since KHIZ is providing service to the   system communities as evidenced by coverage of its Grade A and Grade B contours and the   programming that it provides which is responsive to the needs and interests of residents"N ,N(N(ZZ"  X-throughout San Bernardino County.UX yOy-  <ԍKHIZ states that it covers stories that affect the entire County such as: a train derailment in Cajon Pass; a   <discussion of child abuse with the San Bernardino County Sheriff's Office; complete County election returns; and the San Bernardino County Fair, among others.U  X-  $12. ` ` Comcast argues in reply that KHIZ ignores the relevant geography of the Los   1Angeles market, factors such as its station's poor signal quality and the fact that the  X-  Communications Act clearly allows the Commission the ability to grant ADI modifications which   exclude communities located in the same county as a station where the circumstances indicate that  Xv-  Kstation is not truly "local". v yO -  iԍComcast states for instance that if this were not so, particularly in a county such as San Bernardino which is   approximately 51,961 square kilometers, the Commission would lack the authority to exclude the carriage of a TV   >station in Needles, California from carriage in Ontario, California, even though the two communities are approximately 230 miles apare and have little, if anything, in common.  In any event, Comcast states that it is not merely requesting deletion   of its systems from KHIZ's ADI, but also modification of KHIZ's market. Comcast states that   KHIZ's reliance on the "home county" exception, therefore, is not absolute and represents nothing   more than a presumption that communities located within the same county as a television station   are also located within that station's economic market. Comcast argues that while this is one   factor that the Commission considers in making a market modification determination, it is not   determinative, particularly where, as here, all four factors support exclusion. Moroever, KHIZ's   claim that its past failure to provide an adequate signal does not "reflect a judgment as to the   Zgeography of the market involved" is misplaced. Comcast argues that neither cable operators nor   jsubscribers are likely to consider a station local when they cannot receive its signal offtheair.   In addition, Comcast continues that while KHIZ provides evidence of its programming being   relevant to San Bernardino County in general, it shows no programming which is targeted   specifically to Comcast's communities. Moreover, Comcast adds that while KHIZ questions the   claim that Comcast's subscribers are unable to receive its signal, it does not question the evidence  X4-  that, apparently, none of Comcast's viewers watch KHIZ. 4 yO-  ԍComcast states that on February 18 and 19, 1997, it conducted signal strength surveys of KHIZ at its Blue   Mountain and Ontario headends over a twohour period and found readings of 73.55 dBm and 8315 dBm,   ;respectively, which fall far below the level that can achieve must carry status and indicate a signal too weak for offair viewing. Finally, Comcast argues that KHIZ's   Lexhaustive efforts to explain the interest of "High Desert" residents in the Inland Valley region   are decidedly onesided as it fails to explain why coverage of events in the "High Desert" region would be of interest to the residents of Inland Valley.  X- MUST CARRY ARGUMENTS  X-  X-  13. ` ` In its must carry complaint, KHIZ states that it initially requested carriage on   Comcast's systems in letters of November 1995 and January 1996, but that KHIZ withdrew its   zrequests in April 1996, after it was determined that KHIZ did not at that time provide a good   quality offair signal to the systems' headends. On September 28, 1996, KHIZ states that it"N ,N(N(ZZ"   renewed its carriage requests in letters which Comcast received on October 3, 1996.   zSubsequently, on October 16, 1996, KHIZ states that it supplemented its letters to detail the   station's planned signal delivery system. Although Comcast was required to respond by   November 2, 1996, KHIZ states that Comcast failed to do so. KHIZ filed the instant complaint on November 6, 1996.  Xv-  14. ` ` In support of its request, KHIZ states that it is a qualified local commercial   television station with respect to Comcast. KHIZ notes that the communities in question are all   Mlocated in the Los Angeles ADI, of which Barstow, Calfornia KHIZ's city of license is a   part. KHIZ further notes that it is not considered a distant signal under the cable compulsory   license with respect to Comcast, and states that it is able to provide a good quality signal to   >Comcast. KHIZ states that Comcast's Loma Linda/San Bernardino system has 62 activated   [channels, but that the system is only carrying 14 qualified local commercial television stations.   KHIZ further states that the Ontario system has 57 activated channels, but is also carrying only   [14 activated channels. Because the Loma Linda/San Bernardino system is required to carry up   =to 21 qualified local commercial television stations, and the Ontario system is required to carry   yup to 19 such stations, KHIZ argues that Comcast is required to carry the station. KHIZ states   that it is capable of providing Comcast 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 Comcast's principal headends. KHIZ is willing to   bear the cost of acquiring and installing the necessary equipment to implement this signal delivery   Zsystem. KHIZ also states that it has timely asserted its mustcarry rights, citing the Commission's  X-Clarification Order.D yO-ԍ8 FCC Rcd 4142, 4144 (1993).D  X-  215. ` ` In opposition to KHIZ, Comcast argues that KHIZ has yet to deliver an adequate   >signal to Comcast's headends. Comcast notes that tests conducted from February 27, 1996   through September or October 1996 consistently demonstrated that KHIZ failed to deliver an   adequate signal. Comcast states that it is not aware of any subsequent tests conducted utilizing   a microwave relay path, nor has KHIZ contacted Comcast to arrange for access to Comcast's   headend sites to conduct such a test, which is the only way for KHIZ to obtain access to those   sites. Comcast further states that on November 15, 1996 Comcast tested KHIZ's signal strength   Land found it to be 81.0 dBm at Comcast's Blue Mountain headend and 81.5 dBm at Comcast's   Brooks Street headend, in each case well short of the statutory minimum strength of 45 dBm.   Comcast contends that KHIZ has not addressed any of the logistical issues involved in placing   any necessary signal reception equipment at Comcast's sites, nor has KHIZ demonstrated that it has the requisite microwave licenses to operate its system.  X!-  a16. ` ` In reply to Comcast, KHIZ claims that Comcast, having failed to respond to  X"-  KHIZ's carriage requests, should not now be heard to raise objections.V"X {O&-ԍKHIZ cites the Must Carry Order at 2994.V KHIZ states that it has"",N(N(ZZ!"   .offered to install, at its own expense, the equipment necessary to deliver a good quality signal   to Comcast, and that Comcast has failed to demonstrate that installation of this equipment would   place an extraordinary burden on Comcast or that Comcast's existing towers lack room for this   {equipment. Accordingly, KHIZ argues that it is entitled to a Commission order requiring   Comcast to commence carriage of the station once KHIZ installs and activates the necessary  X-equipment to provide a good quality signal.] {O-ԍKHIZ cites KSLS, Inc., 11 FCC Rcd 12718 (1996).]  X_-@ DISCUSSION ă  X1-  17. ` ` We are not persuaded by the arguments raised by Comcast 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. yO+-  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  Xb-shares are not as significant as those of several other stations with which they compete.(#(#  X4-  ~18. ` ` Although the factors recited by Comcast do weigh in favor of their request, we   Lfind that other factors deserve more weight. KHIZ's transmitter is located, on average, only 33   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  Xe-  =purposes of cable carriage.leB {OX"-ԍReport and Order in MM Docket No. 938, 8 FCC Rcd 5321 (1993).l Consequently, based upon the above, we find that Comcast has   failed to carry its burden of establishing that the public interest would be served by deleting KHIZ from the Los Angeles ADI as it relates to carriage on Comcast's cable systems.  X -  19. ` ` Turning to KHIZ's signal carriage complaint, having found that grant of Comcast's   zpetition for market modification is not warranted, we find no issue remaining. Although it is" ,N(N(ZZZ"   undisputed that KHIZ does not yet provide a sufficient offair signal to Comcast, KHIZ has stated   that, using specialized equipment and microwave relay equipment, it can deliver signal strengths   \well within Commission criteria. KHIZ has stated that it will provide, at its own expense, the   necessary specialized equipment to ensure a good quality signal. We find, therefore, that KHIZ   is a qualified UHF station entitled to carriage on Comcast's systems serving the communities in question.  X_-% ORDERING CLAUSES ă  X1-  20.` ` 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 (CSR4911A) filed on behalf of Comcast Cablevision of Inland  X -Valley, Inc. IS DENIED.  X -  }21. ` ` IT IS FURTHER ORDERED, that the complaint filed on behalf of KHIZ (CSR X -  4861M) against Comcast's systems IS GRANTED. Comcast Cablevision of Inland Valley, Inc.  X-   IS ORDERED to commence carriage of KHIZ sixty (60) days after KHIZ installs the equipment   necessary to provide a good quality signal to Comcast's principal headends. KHIZ shall notify   zthe 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-  22.` ` 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  "F6  ` `  hh,William H. Johnson ` ` hh,Deputy Chief, Cable Services Bureau