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For purposes of this calculation, both overtheair and cable television  S`-viewing are included."`D yOD -  KԍCertain counties are divided into more than one sampling unit because of the topography involved. 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. Refer to Arbitron's Description of Methodology handbook for a more complete description of how counties are allocated.  S-  ~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:  ~Xwith 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:  BXthe Commission shall afford particular attention to the value of localism by taking into account such factors as   X(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;   X(II) whether the television station provides coverage or other local service to such community;   `X(III) whether any other television station that is eligible to be carried by a cable system  Cin 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   pX(IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community.   S-4.` ` The legislative history of this provision indicates that:  Xwhere the presumption in favor of ADI carriage would result in cable subscribers losing". ,_(_(II"  Baccess 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  pfrom 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.  * * * * *  nX[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  Sp-community is part of a particular station's market.^p yO -ԍH.R. Rep. No. 102628, 102d Cong., 2d Sess. 97 (1992).^   S -  5.` ` The Commission provided guidance in its Report and Order in MM Docket No. 92259,  S -supra, to aid decision making in these matters, as follows:  ~XFor example, the historical carriage of the station could be illustrated by the submission  S - Qof documents listing the cable system's channel lineup (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  obe demonstrated by program logs or other descriptions of local program offerings. The  S- pfinal factor concerns viewing patterns in the cable community in cable and noncable  homes. Audience data clearly provide appropriate evidence about this factor. In this  nregard, we note that surveys such as those used to demonstrate significantly viewed status  Dcould 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  nmeasure viewing only in noncable households, such surveys may need to be supplemented  S-with additional data concerning viewing in cable homes.QX yO-ԍ8 FCC Rcd at 2977 (emphasis in original).Q   SX-  6.` ` In adopting rules to implement this provision, the Commission indicated that requested   changes 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 than applicable in common  S-  .to all stations in the market." yOh!-  ,ԍ8 FCC Rcd at 2977 n.139. Viewership information cited herein is county data, rather than communityspecific   ydata. However, absent evidence that such data is not fairly reflective of viewing in the actual communities in  {O"-  xquestion, we accept such data as probative in cases of this type. See, e.g., RKZ Television, Inc., 8 FCC Rcd 8008, 8010 (1993). The rules further provide, in accordance with the requirements of the Act,  S-that a station not be deleted from carriage during the pendency of an ADI change request.<  yO*&-ԍ47 C.F.R. 76.59.< "b ,_(_(II"Ԍ S-  MARKET FACTS AND THE PARTIES' ARGUMENTS lU  S-  7.` ` Station KLXVTV is licensed to San Jose, which is in Santa Clara County and is part of   zthe San FranciscoOaklandSan Jose, California ADI. The specified cable communities in San Benito,   Santa Cruz, and Monterey Counties are all assigned to the SalinasMonterey, California ADI. Santa Clara   County is adjacent to Santa Cruz County, on Santa Clara's southwestern border. Adjacent to Santa Cruz   County is Monterey County, which is on Santa Cruz's southern border, and San Benito County is adjacent  S-  to Santa Clara County's southern border. According to Nielsen's 1995 County/Coverage Study KLXVTV   yhad no reported viewing shares, either offair or on cable, in any of the three counties where the specified   cable communities are located. However, KLXVTV's transmitter is located twenty miles South of San   Jose in the Santa Cruz Mountains, so its Grade A contour covers all of the cable communities in Santa   Cruz County, and it places a Grade B or better contour over the remaining cable communities in San Benito and Monterey Counties.  S -  8.` ` Citing the Bureau's decision in KSBW License, Inc.,?  yO:-ԍ11 FCC Rcd 2368 (1996).? KLXVTV contends that its   circumstances are virtually identical to those of KSBW, which was granted permission to add eleven   Lspecified cable communities located in Santa Clara County, California to its SalinasMonterey California   .ADI for mustcarry purposes. Like KLXVTV, KSBW also transmits from the Santa Cruz Mountains,   and its service contour is similar to that of KLXVTV. According to KLXVTV, it actually places a City   Grade contour over all the designated communities in Santa Cruz County, and the rest of the specified   zcable communities receive a Grade B or better signal, which is sufficient under Commission precedent  S-  .to establish that it provides local service to the designated cable communities.h X {O-ԍChannel 56 of Orlando, Inc., 12 FCC Rcd 4071, 4081 (1997).h Station KLXVTV adds   that it and KSBW contend for viewers and for advertising revenue from the same potential audience.   LKLXVTV notes that, as an NBC affiliate, KSBW has been able to attract significant ratings and carriage   outside its ADI, but that the Bureau has previously held that the ability of other local stations entitled to   assert mandatory carriage rights to provide coverage or other local service to the specified cable   communities ought not to preclude another station's petition to add those communities to its market, citing  S-  =Panhandle Telecasting Co.C  yOV-ԍ12 FCC Rcd 884, 888 (1997).C and Channel 56 of Orlando, Inc.; z yO-ԍ12 FCC Rcd at 4081.; Given KLXVTV's unique programming  S-  format,   yOP -  xԍThe station states that it broadcasts programlength presentations by business and community organizations   between 8:00 am and 10:00 pm; between 10:00 pm and 7:00 am daily, the station airs religious programs; it carries   children's programs from 7:00 am to 7:30 am Monday through Saturday; and it broadcasts Persian language programming between 6:00 pm and 10:00 pm Sunday. the station contends that the Bureau ought to discount the fact that it has not had historic carriage   yin the cable communities, because this is the type of station that Congress intended to protect from cable   systems' adverse carriage decisions by enacting the mustcarry provisions. Similarly, KLXVTV argues   {that the Bureau previously has recognized that home shopping and specialty format stations have  S-  traditionally had smaller audiences, so ratings are of little probative value in cases like this, citing Channel" ,_(_(II\"  S-  /56 of Orlando, Inc.; yOh-ԍ12 FCC Rcd at 4081.; According to KLXVTV, forty percent of its program length presentations are   purchased by organizations and by businesses in communities where the station has carriage rights.   Noting that 43% of San Benito County is Hispanic, as well as 32% of Monterey County and 18.3% of   Santa Cruz County, KLXVTV adds that it airs a program length presentation in Spanish concerning how   ito operate computers. During the ski season, KLXVTV states that it also broadcasts a "Mountain Report"  S:-  on conditions each Thursday between 6:30 pm and 7:00 pm, while it airs a "Tahoe Report" between 7:30   am and 8:00 am Thursdays in the summer. Other recent episodes of its weekly series "Bay Area Profile"   [included programs on Ebonics, adult illiteracy, and medicinal marijuana (which featured a women's group   from Santa Cruz). The station's other weekly series, "Stuff," recently featured programs concerning   Nwomen's selfdefense, the California Home School Network, bilingual education in California, and   Proposition 209 (relative to ending affirmative action in California for State funded programs). According   to KLXVTV, its programming establishes a diverse, independent voice of substantial value in the local   media market; it adds that grant of its ADI addition request will enable it to devote additional resources   to developing program content targeted specifically to meet the needs of its entire television market, including the specified cable communities.  S -  9.` ` In response, the Operators distinguish the Bureau's prior decision in KSBW License, Inc.   ynoting that in that case, the station had significant ratings, as well as a long history of carriage in the cable   /communities at issue. The Operators state that in the present case, KLXVTV's lack of viewing and   @carriage since it began operations in 1986 is because its programming is not attractive to those   communities and because it has been assigned to a different ADI. In addition, the Operators note that   initial strength studies at their Santa Cruz headend in Scotts Valley on July 22, 1997 indicated that it is   unlikely that KLXVTV provides a good quality offair signal to any of the communities served by that   jheadend. Similarly, another signal study performed on July 20, 1997 indicated that FM microwave links   would be necessary to provide an adequate and consistent picture quality between the station's transmitter   and the Operators' pick up site across Monterey Bay. The Operators add that the station provides no   programming with any specific nexus to the cable communities. Instead, they say, KLXVTV uses the   same infomercial format as do all of Paxson's other stations nationwide. The Operators contend that even   the station's "Bay Area Profile" series appears actually to focus on the San Francisco area North of San   zJose, while the other series, "Stuff," focuses on the northern California region. Likewise, the seasonal   "Tahoe Report"and "Mountain Report" concern geographic areas that are located about 200 miles from   the specified cable communities. In addition, the programs only amount to one percent of KLXVTV's   /broadcast day, which is insufficient to satisfy the local coverage factor in any event, according to the  S-  Operators.JX {O-ԍTCI of Illinois, DA 971002.J The Operators also note that KLXVTV has not explained the relevance of its Persian  S-  language programming to the designated cable communities, and the Operators contend that it is   undisputed that they currently carry other stations that provide local programming to the designated cable   ]communities. Therefore, KLXVTV is not entitled to any benefit as an enhancement criterion for   providing a service that other local stations do not, according to the Operators. Moreover, the Operators   argue that, at the very least, if a decision is made to modify KLXVTV's ADI based on its Grade B   .contour which results from placing its antenna twenty miles South of its city of license, then the station   jshould also be required to relinquish any retransmission or mustcarry rights outside its Grade B contour in the San FranciscoOaklandSan Jose ADI. "t#,_(_(II%"Ԍ S-  210.` ` Noting that Scotts Valley is at the base of the Santa Cruz Mountains, KLXVTV submits   signal strength measurements taken August 1, 1997 in support of its assertion that it has a consistent, high   quality signal in the City of Santa Cruz, as well as in other portions of Santa Cruz County. The station   also notes that KSBW's transmitter is in the same vicinity as KLXVTV's transmitter, and that Salinas   is KSBW's city of license, so it is obviously considered to be a local station there. In addition, KLXV  TV submits more signal strength measurements taken August 4, 1997 in support of its contention that   residents in Monterey County also receive a consistent, high quality signal from it. The station adds that   it places a City Grade contour over the majority of the specified cable communities in Monterey County,   and it notes that no precedent has been cited in which the Commission denied a market modification   .request to a station having City Grade signal quality overtheair in a community. According to KLXV  TV, the relevant issue in this proceeding is its service to the cable communities, not its signal quality at   the cable systems' headends. The station contends that it provides a diverse range of programming geared   toward the communities it serves, and that it also offers a costeffective platform for local businesses and   kcommunity and minority organizations to communicate with area residents. The station adds that no   0minimum local programming requirement for mandatory carriage has ever been established by the   Commission. In addition, KLXVTV notes that 78% of television households subscribe to cable in the   LMontereySalinas designated market area (or "DMA"), so that offair ratings are not very relevant there.   Finally, KLXVTV contends that by granting KSBW carriage rights in Santa Clara County, the   LCommission has already effectively determined that the cable communities at issue herein are part of the   same economic market. Therefore, denying KLXVTV mandatory carriage and the chance to compete   for revenues and for viewership in these areas would violate the highly diverse, procompetition goals that  S-  the mustcarry rules were designed to promote. Citing the Bureau's decision in Horizon Broadcasting  S-  Corporation,M yO-ԍDA 971655 (released August 4, 1997).M KLXVTV also notes that there is no support either in the Commission's rules or in the   kCommunications Act which even suggests that a station's carriage rights within its own ADI could be   adversely impacted by the outcome of a separate market modification proceeding, such as the instant case.  S-   S-W  ANALYSIS AND DECISION ĐlU  S-  B11.` ` We shall grant KLXVTV's petition for market modification. The evidence submitted,   evaluated pursuant to the four statutory and other relevant factors, persuades us that the communities   herein are properly considered part of the station's ADI. With regard to the first statutory factor, we note   =that historical carriage is not by itself controlling in this particular circumstance, because if it were found   to be controlling that would, in effect, prevent newer or weaker stations from ever being entitled to carriage, contrary to the policy of the statute.  S-  12.` ` With respect to the second statutory factor, we note that a station's local service to cable   communities can be measured, among other ways, by the coverage of its contour, as well as by the   proximity of the station to the subject communities. The fact that KLXVTV's Grade A contour currently   Lencompasses all of the specified cable communities in Santa Cruz County, and that its Grade B or better   contour covers the remaining designated cable communities in San Benito and in Monterey Counties is  S!-  compelling evidence that KLXVTV provides service to the specified cable communities.E!X {O%-ԍSee 5, supra.E Moreover,   .we note that home shopping formats are not incompatible with local appeal, and we recognize that such   specialty programming traditionally has drawn smaller audiences. The Commission has specifically noted"t#,_(_(II%"   ythat home shopping stations may serve the public interest because, among other things, they provide "an   important service to viewers who either have difficulty obtaining or do not otherwise wish to purchase  S-  goods in a more traditional manner."r {O-ԍReport and Order in MM Docket No. 938, 8 FCC Rcd 5321, 5327 (1993).r Also, as we have previously stated, when it comes to resolving   signal carriage complaints or modifying television markets under our special relief process, we are not in  S`-  a position to weigh the merits of a particular station's format.Z`Z {OZ-ԍParagon Cable, 10 FCC Rcd 9462, 9466 (1995).Z We also note that KLXVTV's transmitter   {site is actually located in the same approximate geographic area as is Salinas station KSBW's, thus indicating that the market served by both stations is, in fact, essentially the same.  S-  n 13.` ` With regard to the third statutory factorwhether other stations eligible to be carried serve   the communities in questionin general, we do not believe that Congress intended this third criterion to   {operate as a bar to a station's ADI claim whenever other stations could also be shown to serve the   kcommunities at issue. Rather, we believe that this criterion was intended to enhance a station 's claim where it could be shown that other stations do not serve the communities at issue.  S -  14.` ` Although KLXVTV has no measurable viewing in the specified cable communities, we   are not convinced that negligible ratings provide reason enough to deny its market modification request.   LWe recognize that home shopping stations, such as KLXVTV, like religious or foreign language stations   M(specialty stations), are capable of "offer[ing] desirable diversity of programming . . . ," yet typically  S0-  attract limited audiences.0 {O-  ԍFirst Report and Order in Docket No. 20553, 58 FCC 2d 442, 452 (1976), recon. denied, 60 FCC 2d 661 (1976). We continue to believe, as the Commission did in its specialty station rules,   Lthat the fact that such stations attract a smaller audience share must be taken into account in determining the equities concerning a station's right to cable carriage.  S-  Q15.` ` Thus, considering the totality of facts and circumstances in this case, we are convinced   jthat KLXVTV's television market should be modified to included the cable communities specified in the   California Counties of San Benito, Santa Cruz, and Monterey. Previous decisions relating to broadcast   service in this area, including both the adoption of the "home county" exception to the ADI carriage  S-  criteria discussed with relation to San Jose station KNTV(TV) by the Commission in its Report and Order  S-  Mimplementing the carriage rulesF {O-  ԍSee Report and Order in MM Docket 92259, 8 FCC Rcd at 2975, note 108 (1993), and Memorandum Opinion  {Oz-and Order in MM Docket 92259, 9 FCC Rcd 6723, 672628 (1994). and the Bureau's decision relating to carriage of KSBW(TV), Salinas  S-  in Santa Clara County (involving a mirror image of the facts in this proceeding)Q {O!-ԍKSBW License, Inc., supra, note 10.Q strongly support grant of the requested relief.  S*-   16.` ` The suggestion that, if KLXVTV is granted additional carriage rights in the Salinas  Monterey ADI, it should lose its retransmission and carriage rights in the San FranciscoOaklandSan Jose ADI is not a matter that can be addressed in the context of this proceeding. "4 ,_(_(II-"Ԍ S-'1 ORDERING CLAUSES lU  S-  A 17.` ` 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 (CSR5032A), filed June 13, 1997, on behalf of Paxson San Jose   LLicense, Inc. IS GRANTED. KLXVTV shall notify the relevant cable systems in writing of its carriage   and channel position elections ( 76.56, 76.57, 76.64(f) of the Commission's Rules), within thirty (30)   days of the release date of this Order. The affected cable systems shall come into compliance with the applicable rules within sixty (60) days of such notification.  Sp-18.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION ` `  hh,VWilliam H. Johnson  S -` `  hh,VDeputy Chief, Cable Services Bureau# &a\  P6G; 0&P#