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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: ) ) West Valley Cablevision Industries, Inc.)CSR-4980-A West San Fernando Valley, California) ) For Modification of Television ) Broadcast Station KZKI's ADI ) ) Complaint of Paxson Los Angeles License, Inc.)CSR-4981-M against West Valley Cablevision Industries, Inc.) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: August 14, 1997 Released: August 19, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1.West Valley Cablevision Industries, Inc. ("CVI"), operator of a cable television system serving San Fernando and other southern California communities, has filed a petition for special relief asking the Commission to modify the Los Angeles area of dominant influence ("ADI"). CVI seeks to exclude KZKI (Ch. 30), San Bernardino, CA from these market communities so that it is under no mandatory obligation to carry this station. KZKI's licensee, Paxson Los Angeles License, Inc., filed an opposition to this request and CVI has filed a reply. In a separate, but related proceeding, KZKI filed a must-carry complaint against CVI for carriage on the above cable system. CVI filed an opposition to the complaint to which KZKI filed a reply. We will jointly consider these cases to resolve KZKI's signal carriage rights on CVI's system. 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, commercial television broadcast stations 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 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. 3.Under the Act, however, the Commission is also directed to consider changes in market areas. Section 614(h)(1)(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 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. 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 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. 5.The Commission provided guidance in its Report and Order 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. 6.As for deletions of communities from a station's market, the legislative history of this provision indicates that: The 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 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 be deleted from the station's television market. 7.In adopting rules to implement this provision, the Commission indicated that requested changes 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 a market change request. MARKET MODIFICATION ARGUMENTS 8.KZKI is licensed to serve San Bernardino, California, which is part of the Los Angeles, California ADI. The cable communities are all located in Los Angeles County, California and are all presently assigned to the Los Angeles, California ADI. In support of its request, CVI notes that the closest cable community is about 64 miles from KZKI's city of license, San Bernardino, which is also located about 74 miles from CVI's headend at Chatsworth. According to CVI, this distance combined with the fact that the specified cable communities in the San Fernando Valley are surrounded by the Simi Hills to the west, the Verdugo Mountains to the east, the Santa Monica Mountains to the south, and the Santa Susana Mountains, as well as the San Gabriel Mountains, to the north and to the northeast, prevents CVI from obtaining a good quality off-air signal from KZKI, despite the fact that the station does place a Grade B signal over the cable communities. The poor signal quality is one reason why CVI has never carried KZKI, even though it has been operational since early 1994. Another reason for KZKI's lack of carriage is the station's infomercial format, which CVI contends has no particular interest or appeal to its subscribers, who have access to eleven closer Los Angeles broadcast stations that are carried by CVI, and that provide news, public affairs, sports, and public service programming designed to meet subscribers' specific needs and interests. CVI adds that it is unlikely that KZKI broadcasts any meaningful local news or public affairs programming and notes that KZKI has no reported off-air viewing in Los Angeles County. According to CVI, KZKI also is not listed in the Los Angeles edition of TV Guide or in the Sunday TV magazine section of the Los Angeles Times, the Daily News, or The Sun. CVI notes that the Commission has previously modified ADI markets where the distances involved were in the 64-74 mile range, as in this case, particularly where the presence of natural phenomena including valleys, waterways, and mountains also separate the cable communities involved from the television station concerned. 9.In its opposition, KZKI argues that Congress rejected factors such as terrain, geographic distance, and failure to provide an over-the-air signal in the cable community as being dispositive of television stations' must-carry rights. KZKI notes that both it and the specified cable communities are located in the Los Angeles ADI. KZKI contends that it is entitled to carriage in those communities unless the cable operator, which it notes has the burden of proof, can demonstrate that the purposes of the must- carry rules will be better effectuated by grant of the requested market modification. According to KZKI, CVI has failed to do this. KZKI notes that the Commission added San Bernardino to the Los Angeles- Corona-Fontana-Riverside television market in its list of hyphenated television markets. KZKI contends that this demonstrates that the Commission found stations in these communities to be competitors ". . . for economic support and thus these communities form an economic market." 10.Addressing the four statutory market modification factors, KZKI states that Congress did not intend the lack of historical cable carriage to count against small, independent stations seeking to enforce their must-carry rights, because this would prevent weaker stations from ever being carried. KZKI adds that this reasoning is particularly apt in the present circumstance where it remained dark for two years before returning to the air in 1994. According to KZKI, it does provide programming targeted to the needs and interests of the residents in the twelve communities specified, and it contends that the must-carry rules do not specify a minimum amount of local programming a station must broadcast in order to be entitled to mandatory carriage. KZKI notes that it airs programming by community organizations and by businesses during the day, and that during the night, it broadcasts nineteen hours weekly of religious programming. KZKI states that it has broadcast programs from local hair salons, auto dealers, and medical doctors, as well as a weekly talk show called "Talk Town" and a public affairs program entitled "Southern Exposures." KZKI adds that it is negotiating to provide both Spanish and Korean language programming, and it states that cable carriage throughout its ADI will provide both the viewers and the financial base necessary to ensure its viability and to enhance its ability to expand its offering of local programming. With respect to the quality of its signal, KZKI states that it has already spent over $10,000 to deliver a good quality signal to CVI's principal headend by means of a "fiber feed." KZKI also claims that mandatory carriage of local broadcast stations enhances the diversity of programming available to cable subscribers and therefore that a cable operator should not ". . . bolster its request to delete communities from a station's television market whenever it could show that other stations in the market serve the cable community." Citing the Bureau's prior decision in Greater Worcester Cablevision, KZKI adds that viewing ratings are also of no probative value when a cable operator seeks.to delete a struggling independent station. This is especially true in the case of new stations, according to KZKI, which adds that it may take up to three years for them to establish viewership patterns. 11.In its reply, CVI notes that it never carried KZKI, even though the station returned to the air in early 1994. CVI emphasizes that the Commission considered the competitive structure of the local television market when it decided to add San Bernardino to the hyphenated Los Angeles television market. However, the instant issue is whether or not the specified cable communities, which are separated by mountainous terrain, by geographic distance, and by numerous other population centers, in fact are located beyond KZKI's service area. CVI adds that KZKI has not cited any events or issues it has broadcast which were of particular concern or interest to subscribers in the designated communities and contends that KZKI's future programming plans are too uncertain to be factored into the market modification equation. CVI also notes that KZKI has attained no measurable viewing share in the specified cable communities. According to CVI, KZKI's infomercial-dominated format has little relevance or appeal to CVI's subscribers, who receive all the sports, local news, public affairs, and public service programming they need from the other Los Angeles stations CVI already carries. CVI argues that, despite its Grade B contour, the designated cable communities are actually located outside KZKI's "local service" area. 12.In its carriage complaint, KZKI states that it initially elected must-carry status on CVI's system commencing January 1, 1997, by letter dated October 1, 1996. Receiving no response to this letter, KZKI sent CVI a formal written carriage request on February 11, 1997, in which KZKI outlined its eligibility for carriage on CVI's system, as well as its commitment to delivering a good quality signal to CVI's principal headend. CVI, however, failed to respond to KZKI's letter, and thereafter KZKI filed this complaint within sixty days, pursuant to  76.7(c)(4)(iii)(B) of the Commission's rules. KZKI notes that it is assigned to the same ADI as the specified cable communities, and that CVI will not owe any additional copyright fees as a result of KZKI's carriage. Citing the Bureau's prior decision in Cablevision Systems Corp., KZKI notes that the use of fiber optic cable has been specifically authorized and that it uses this technology to deliver a good quality signal to CVI's principal headend. 13.In its opposition, CVI asks that the Bureau consider the above must-carry complaint and its market modification petition together. CVI adds that KZKI has no off-air viewing in the Los Angeles market, and that the station provides no local broadcast programming service to the communities CVI serves. CVI contends that KZKI actually is not a "local" station to the designated cable communities, and that CVI's subscribers' requirements for local news, sports, public affairs and public service programming are being met by the numerous other stations CVI already carries from Los Angeles. 14.In reply, KZKI notes that CVI does not dispute the fact that the station is in the same ADI as are each of the specified cable communities, or that KZKI delivers a good quality signal to CVI's principal headend. KZKI adds that CVI also has not explained its lack of response to KZKI's carriage request. Instead, CVI filed a market modification request, which KZKI contends has no merit. According to KZKI, CVI's attempt to postpone its legitimate carriage obligations should not be countenanced any longer. ANALYSIS AND DISCUSSION 15.We are not persuaded by CVI's arguments with respect to the market modification request and will therefore deny the deletion request. This result is consistent with the Bureau's determination in Chronicle Publishing Company. In that Memorandum Opinion and Order, the Bureau denied the cable operator's request to delete Thousand Oaks, Fillmore, Moorpark, Newbury Park, Westlake Village, Agouras Hills, Oak Park, and Calabasas from KZKI's market. All of the Chronicle communities are in the Los Angeles ADI are further away from KZKI than the San Fernando Valley communities at issue here. 16.Like the cable operator in Chronicle, CVI focuses on the four factors specifically referenced in the statute and presses the argument that KZKI is not entitled to carriage for the following reasons: 1) it has not been carried historically; 2) it has no audience in the communities; 3) it provides no programming specifically for the communities; and 4) the communities receive service from, and the systems carry the signals of, other stations that do provide coverage of issues of concern to the communities. Because to some extent the exclusionary factors pointed to by CVI apply throughout the entire Los Angles ADI, their application in the manner suggested generally does not help to identify the shape of the market for KZKI. These factors are of relevance as a means to distinguish among communities within a market -- to define the boundaries of the market -- not to excuse specific cable systems from compliance with the rules. 17.While the information submitted relating to these factors provides some guidance as to the market of the station in question, it does not sweep as broadly as petitioner argues. Historical carriage should not be given great weight because to do so would tend to defeat the underlying purposes of the carriage requirements, unless carriage patterns for KZKI serve to delineate the shape of its market. KZKI's carriage patterns do not indicate the shape of the market because it ceased operations for two years prior to 1994, and as a result, was not providing service to, or being carried by operators in, communities clearly within its Grade B contour. The interruption in broadcasting, and attendant lack of cable carriage, may also explain the station's lack of reported viewership in the relevant cable communities. Congress could not have intended for stations to have cable communities deleted from their markets where broadcasters efforts to attain carriage on systems within their Grade B contours were derailed by circumstances not contemplated in Section 614 and that resulted in particular station's audience shares being less significant than those of several other stations with which they compete. 18.Moreover, we find that the station's Grade B contour coverage of the communities satisfies the local service element. Grade B contour coverage guides us in the market modification analysis because it is a reliable indicator of the economic reach of a particular television station's signal. The Commission recognized this approach in its Broadcast Signal Carriage Report and Order, when it stated that "to show that the station provides coverage or other local service to the cable communities, 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." In addition, KZKI is not as geographically distant as CVI argues. In this case, the station's transmitter atop Sunset Ridge is no more than 52 miles away from Canoga Park, the furthest cable community at issue, and Sherman Oaks, the closest cable community to the transmitter, is no more than 40 miles away. Finally, unlike the Chronicle decision where the Santa Monica mountains were a delineating geographic factor dividing the eastern and western portions of Ventura County for must carry purposes, an analysis of the terrain in this case does not persuade us that there is a basis for distinguishing the communities in the San Fernando Valley from the rest of the Los Angeles market. 19.Another factor to consider in deletion cases is the availability of other broadcasters in the market. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, and it is clear that the station is not providing local service to those communities, the issue of local coverage by other stations becomes a factor to which we will give greater weight than in cases where a party is seeking to add communities. A cable operator's deletion request will not automatically be granted "whenever" it can show that it carries other local stations. Rather, carriage of other local stations may be used as an enhancement factor to support a cable operator's deletion request when there is other evidence in the record that the communities at issue are outside of the station's market. We find that the presence of other stations does not weigh in favor of granting the deletion request because it is clear that KZKI covers the cable communities with a Grade B contour; thus, the station is providing local service. In this case, the third statutory factor and the evidence presented in the record, actually work to the detriment of the operator. The TV Guide listing CVI attaches as an exhibit to its pleading shows that it is carrying KSCI and KDOC, two television stations broadcasting from Sunset Ridge, the same transmitter site that KZKI broadcasts from. The carriage of these similarly situated small independent UHF stations, but not KZKI, is contrary to Congress' stated policy that cable operators should not be permitted to use the market modification process to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 20.Having determined that deletion of the communities in question from KZKI's market area, we will also will grant KZKI's signal carriage complaint. KZKI is still part of the Los Angeles ADI vis-a-vis CVI's cable communities and the station is committed to providing a good quality signal to operator's principal headend. We find that KZKI is a qualified UHF television station entitled to carriage on CVI's system serving the specified communities. ORDERING CLAUSES 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 (CSR-4980-A) filed March 25, 1997 on behalf of West Valley Cablevision Industries, Inc. IS DENIED. 22.IT IS FURTHER ORDERED, that the complaint filed March 25, 1997 (CSR-4981-M) by Paxson Los Angeles License, Inc. IS GRANTED in accordance with  614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C.  534) and 47 C.F.R.  76.56(b). West Valley Cablevision Industries, Inc. IS ORDERED to commence carriage of KZKI sixty (60) days after the release date of this Order. KZKI shall notify the relevant cable system 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 the release date of this Order. 23.This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau