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Thpp)CSR 5087A  S-dba PARAGON CABLEThpp)  Si-Thpp)  SA-For Modification of Market of Thpp)  S -Station KTRG(TV), Del Rio, Texashh@hpp)  S -T T  S - MEMORANDUM OPINION AND ORDER TP  SQ -X` hp x (#%'0*,.8135@8:(>(II|"Ԍ `  XxX` ` (IV) evidence of viewing patterns in cable and noncable households  ` within the areas served by the cable system or systems in such  S-community.G yO-ԍ47 U.S.C. 534(h)(l)(C)(ii).Gx`  S`-x4.` ` The legislative history of this provision indicates that:  Xxwhere the presumption in favor of ADI carriage would result in cable subscribers losing  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.  $ * * * * *  n  [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  S0-community is part of a particular station's market.Z0X yO(-ԍH.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).Z     S- ` nx5.` ` The Commission provided guidance in its Report and Order in MM Docket 92259, supra, to aid decision making in these matters, as follows:   A  For example, the historical carriage of the station could be illustrated by the submission of  SB-  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 be demonstrated by program logs or other   descriptions of local program offerings. The final factor concerns viewing patterns in the cable  ST-  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   Btypically measure viewing only in noncable households, such surveys may need to be  S-supplemented with additional data concerning viewing in cable homes.i  {O#-ԍMustCarry Order, 8 FCC Rcd at 2977 (emphasis in original).i     S>- ` x6.` ` In adopting rules to implement this provision, the Commission indicated that changes  xyrequested should be considered on a communitybycommunity basis rather than on a countybycounty  xbasis and that they should be treated as specific to particular stations rather than applicable in common" z ,>(>(IIt""  S- xto all stations in the market.v Z {Oh- xMԍMustCarry Order, 8 FCC Rcd at 2977 n.139. Viewership data cited herein is county data rather than  xcommunityspecific data. However, absent evidence that such data is not fairly reflective of viewing in the actual communities in question, we accept such data as probative in cases of this type.v 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 a market modification request.?  yOb-ԍ47 C.F.R. 76.59(c).?  S- MARKET FACTS AND ARGUMENT ă  S8- ` ox7.` ` Paragon's petition seeks an order pursuant to the provisions of Section 614(h)(1)(C) of  x the Act deleting San Antonio, Texas and the other listed Bexar County, Texas communities from the  x\television market of KTRG(TV), a commercial television station licensed to Del Rio, Texas. Paragon  xasserts that Ortiz, recognizing that KTRG(TV) cannot deliver a qualifying signal for direct offtheair pick xup in San Antonio, retransmits KTRG(TV)'s programming over a translator station K52EATV located  xat San Antonio. Paragon states that it filed the instant market modification petition for the purpose of  xobtaining a ruling that KTRG(TV) would not be converted into a "local" station entitled to mustcarry by means of a translator station located at San Antonio that rebroadcasts the programming of KTRG(TV).  S - ` x8.` ` In support of the petition, Paragon asserts that KTRG(TV) has never been carried on its  x=cable system, is geographically distant from and fails to provide a Grade B signal over any portion of its  S - xcable system,  z yO- xԍParagon states that the distance between Del Rio and San Antonio is approximately 140 miles, the station's  xGrade B contour coverage is limited and falls approximately 115 miles short of San Antonio, and the area between  xhDel Rio and San Antonio is scarcely populated, factors that precludes any significant community of interest between the two communities. fails to broadcast any programming of specific local interest to residents of the relevant  xBexar County communities, and fails to achieve any measurable viewing audience in Bexar County.  xParagon also asserts that its cable system carries eight San Antonio television stations that provide ample  xcoverage of news and issues of concern to the communities served by its cable system. Paragon points  S- xLout that San Antonio's daily newspaper, the Express News, contains no listing for KTRG(TV), nor does  S- xjthe San Antonio edition of TV Guide. For those reasons, Paragon argues that KTRG(TV) fails to satisfy the criteria established by Congress in Section 614(h)(1)(C)(ii) for carriage on its cable system.  SD- ` x9.` ` Paragon argues that the Commission's market modification decisions provide settled  xprecedent that governs where a television station is separated by large distances from a community served  S- xMby a cable system and fails to provide local service to that community. ^b  {O - x;ԍParagon cites Market Modification and the New York Area of Dominant Influence, FCC 97285 (released August  {O!- x13, 1977) ("New York ADI"); Dynamic Cablevision of Florida, Ltd., et al., 12 FCC Rcd 9952 (1997) ("Dynamic");  {O"-and TCI Cablevision of Texas, Inc., DA 971711 (Cable Serv. Bur. released August 13, 1997) ("TCI") Paragon contends that such  x.circumstances are shown to exist in this case, requiring deletion of the distant communities served by its  xcable system from the market of KTRG(TV) for mustcarry purposes. Paragon also contends that the  xreliance by KTRG(TV) on a translator station, K52EATV, located in San Antonio for the purpose of  xovercoming the distance and remoteness of the KTRG(TV) from the San Antonio area does not lessen the  xstation's failure to place a Grade B signal over the subject cable communities or serve to convert the", ,>(>(II{"  S- xkdistant station into a "local" station for market modification analysis purposes.a {Oh-ԍParagon cites New York ADI and Dynamic.a Paragon argues that  xcommercial translators, such as K52EATV, are classified as secondary services which have no  S- xindependent carriage rights and do not impact on the Commission's market modification analysis.7Z {O-ԍId.7  x[Paragon also points out that eight of the ten television stations carried on its cable system are licensed to  xSan Antonio and that those stations provide its subscribers with a wide range of local English and Spanish  xllanguage news, public affairs and public service coverage designed to meet their specific needs and  S-interests.? yO -ԍPetition, Attachment 8.?  S- ` Ax10.` ` Ortiz states in opposition that it obtained a license for KTRG(TV) on May 1, 1997, only  xthree and a half months before Paragon filed its petition, and admits that KTRG(TV) has not been carried  xon Paragon's cable system. However, Ortiz asserts that lack of carriage stems from its recent licensing,  x=and for that reason lack of historic carriage of KTRG(TV) does not provide a basis for granting the relief  xLrequested by Paragon. Ortiz argues that precluding carriage of a recently licensed station because of lack  xof historic carriage disproportionately hurts minority and small business startup stations and is contrary  x.to public policy. Regarding the statutory factor concerning coverage and local service, Ortiz admits that  x!KTRG(TV) is located approximately 140 miles from San Antonio. He contends, however, that a  xkcommonality between Del Rio and San Antonio is shown by the encompassing of both Del Rio and a  xportion of San Antonio by the 23rd U. S. Congressional District, by their large Hispanic communities, by  xthe similar ages of their respective populations, by the presence of several military installations within the  x/San Antonio television market that provide employment opportunities to both communities, and by  xchamber of commerce data showing that average Del Rio area shoppers visit San Antonio at least once a month.  Sh- ` ~x11.` ` With regard to the factor concerning programming to cover issues and events of interest  xto the community, Ortiz asserts that seventeen local programs a week are produced and aired on  x\KTRG(TV). Ortiz provided descriptions of several of those programs and states that many of these  xprograms are produced in a satellite studio located in San Antonio and deal with issue of concern to San  S- x-Antonio residences in several ways. Ortiz states also that KTRG(TV) serves the large Hispanic population  xof San Antonio with 11 hours per week of Spanish language programming. Ortiz identifies KTRG(TV)  xas one of only a few 100% minority owned television stations licensed in the country. Noting its minority  xownership, Ortiz seeks a level playing field and argues that allowing large cable systems like Paragon to  xdelete small, minority broadcasters from their markets without allowing them time to build up a following  xand develop measurable rating would be inconsistent with stated national policy that encourages minority ownership of broadcast properties.  S- ` x12. ` ` Ortiz contends that KTRG(TV) should be credited, in this market modification proceeding,  xzfor the local services made available in San Antonio by means of translator station K52EA TV, which  xrebroadcasts KTRG(TV)'s programming and provides a city grade signal to the San Antonio principal  xOheadend of Paragon's cable system serving the communities in issue. Ortiz notes also that the  S - xCommission in the Must Carry Order established that a translator station may be utilized for delivering  xa good quality signal of a commercial television station to a cable system headend. Ortiz argues that"!|,>(>(IIU#"  xrecent Commission rulings in market modification cases involving translators contain no indication that  S-its position on translators announced in the MustCarry Order has been overturned or reversed.  S- DISCUSSION AND ANALYSIS ă  S:- ` x13.` ` As we consider the merits of Paragon's request that San Antonio, Texas and the Bexar  S- x=County, Texas communities served by Paragon's cable system be excluded from KTRG(TV)'s television  S- xmarket for mustcarry purposes, yOR- x<ԍKTRG(TV) is a commercial television station licensed to operate on Channel 10 at Del Rio, Texas, which is located on the U.S.Mexico border. we take special notice of the fact that KTRG(TV) is located some 140  xmiles from San Antonio, Texas and the other Bexar County, Texas communities served by Paragon's cable  xLsystems. Because of such great distance, KTRG(TV) cannot deliver a Grade B or better signal to any of  x.these relevant communities. In fact, KTRG(TV)'s Grade B signal reaches eastward toward San Antonio  xonly to the western edges of Uvalde and Zavala counties and falls approximately 115 miles short of the  S" - xzrelevant communities.S"  {O-ԍSee, Petition, p. 3 and Attachment 2.S Such separation of KTRG(TV)'s technical service area from the communities  xjserved by Paragon must be given significant and substantial weight in the context of the statutory factors  xwe are commanded to consider in market modification cases. The scope of a local station's market may  xbe measured through geographic means by examining the distance between the station and the cable  x.communities subject to the deletion request and by taking into account basic geographic features such as  xthe extensive unpopulated area involved here as evidence of the market boundaries of the relevant station.  S2- xIn this regard the Commission has explicitly noted the relevance of Grade B contours.2 yO- x<ԍAs a general matter, Grade B coverage demonstrates service to cable communities and serves as a measure of  {OL- xa station's natural economic market. See MM Docket No. 92259, 8 FCC Rcd at 2977. See also Amendment of  {O- xSection 76.51 (OrlandoDaytona Beach, Melbourne, and Cocoa, Florida), 102 FCC 2d 1062, 1070 (1984) ("We  xLbelieve that television stations actually do or logically can rely on the area within their Grade B contours for  {O-economic support."). See also New York ADI at  12 Along with other  xinformation, station service contours provide at least one objective measure of the scope of a station's local market.  S- ` x14. ` ` The record contains no evidence that KTRG(TV) is viewed in San Antonio. The lack of  x=evidence of such viewing may be attributed as much to the station's recent commencement of operations  SB- x[as to its distance from the communities at issue.Bh  yOJ- xԍKTRG(TV)'s Grade B contour does not extend beyond the western edges of Uvalde and Zavala counties located approximately 115 miles from San Antonio. For these reasons, we give little weight to the absence  xof viewing of KTRG(TV) in the communities served by Paragon's cable system. However, we cannot  xoverlook the fact that the geographic location of the station precludes carriage of KTRG(TV) programming on Paragon's cable system absent use of additional facilities such as a local translator station.  Sz- ` bx15.` ` Ortiz identifies a significant amount of programming carried on KTRG(TV) and  xrebroadcast on K52EATV that is specifically directed toward the needs and interests of the communities  xserved by Paragon. Although such programming is available in the San Antonio area solely through its  xrebroadcast on K52EATV, Ortiz argues that KTRG(TV) should receive credit in this market modification" ,>(>(II\"  xyproceeding for providing coverage of issues and events of interest and concern to the San Antonio market  S- xarea.A {O@-ԍSee  11, above.A We reject this argument. The Commission, in the MustCarry Order, pointed out that Section  S- x614 (h)(1)(C) specifically excludes translators from the definition of a local commercial station.Z {O- x<ԍSee MustCarry Order, 8 FCC Rcd 2965, 2973 (1993). A station otherwise entitled to mustcarry may use a translator signal to deliver its signal to the principal headend of a cable system. More  S- xrecently in Dynamic, the Commission pointed out that translators are a secondary service explicitly not  Sd- xkentitled to carriage in their own right and held that translator coverage of the Miami, Florida area does  xnot lessen the relevance of the failure of the parent full power station to directly serve the subject cable  S- x=communities.DZ {Oh - xԍSee Dynamic, 12 FCC Rcd at 995758. Full power station WEYS, which is located in Key West, Florida more  xthat 125 mile from the nearest cable system headend, failed to place at least a Grade B signal over the Miami area cable communities at issue.D The instant case involving cable communities separated by an even greater distance over  S- xLa very sparsely populated portion of southwest Texas presents a more compelling reason than Dynamic  xfor not permitting translator station K52EATV to be used to establish KTRG(TV)'s television market for  xpurposes of Section 614(h)(1)(C). While public interest benefits may well flow from KTRG(TV)'s  xminority ownership and Spanish language programming, the geographic separation of KTRG(TV) from  xthe communities at issue precludes crediting KTRG(TV) for such programming in this market modification proceeding.  S - ` x16. ` ` Finally, Ortiz points to indicators of commonality between Del Rio and San Antonio  S - xstemming from the location of both Del Rio and a portion of San Antonio within the 23rd U. S.  xCongressional District, the large Hispanic population of both communities, the similar ages of their  xrespective populations, the presence of several military installations within the San Antonio television  xMmarket that provide employment opportunities to both communities, and chamber of commerce data  x=showing that average Del Rio area shoppers visit San Antonio at least once a month. These factors may  xzwell indicate a minimum level of economic interchange between Del Rio, KTRG(TV)'s city of license,  xand San Antonio. However, we cannot ignore that KTRG(TV)'s signal reaches only to the western edges  S- xof Uvalde and Zavala counties and falls approximately 115 miles short of the relevant communities.S {O -ԍSee, Petition, p. 3 and Attachment 2.S The  xsparsely populated area between Del Rio and San Antonio serves as a natural barrier tending to remove  SF- xzthose communities from one another.SZFh  yON- xԍThe combined 4,200 square mile area of Kinney, Uvalde, and Medina counties lying between Del Rio and Bexar  {O - xCounty contains a total population of only 56,200. See Rand McNally, 1994 Commercial Atlas & Marketing Guide, 125th Edition, p. 52021.S For these reasons, we believe the record fails to establish that  xKTRG(TV) actually does or logically could rely on San Antonio and the other Bexar County communities  xat issue for economic support, or that these communities rely on KTRG(TV) for television services to any  S-degree.  yO$- x-ԍAs pointed out in this connection earlier, KTRG(TV) obtains no credit for the communities' reliance on and economic support of KTRG(TV)'s translator station. ",>(>(II"Ԍ S- 1SUMMARY ă  S-  S- ` x17.` ` Section 614(h)(1)(C) of the Communications Act authorizes the Commission to include  xkor exclude particular communities from a television station's market for the purpose of insuring that a  x\television is carried in the areas which it serves and which form its economic market. We believe that  xthe requested exclusion of San Antonio, Texas and other Bexar County, Texas communities served by  xParagon's cable system from KTRG(TV)'s television market will better effectuate the purposes of the  xmustcarry statutory provisions. In reaching this conclusion, we have considered the statutory factors  xunder which the value of KTRG(TV) to San Antonio area localism is to be tested and found it to be  S- xlacking. The record shows that San Antonio's daily newspaper, the Express News, contains no listing for  Sr- xKTRG(TV), nor does the San Antonio edition of TV Guide. It also shows that KTRG(TV) is located  xapproximately 140 miles from the San Antonio area. Although KTRG(TV) offers programming  x=specifically for the San Antonio and Bexar County, it provides no overthe air signal coverage of the San  xAntonio and Bexar County area, and its programming reaches these relevant communities solely by means  xzof a translator station explicitly not entitled to must carry rights. On this record, we find particularly  xpersuasive KTRG(TV)'s geographic separation by a large and sparsely populated area from the  xcommunities in question. For the foregoing reasons, we conclude that the communities at issue are not  x-part of KTRG(TV)'s television market and that a grant of TCI's petition will better effectuate the purposes of the mustcarry statutory provisions.  S- <ORDER ă  S- ` "x18.` ` Accordingly, IT IS ORDERED , pursuant to Section 614(h)(1)(C) of the Communications  x>Act of 1934, as amended, 47 U.S.C. 534(h)(1)(C), and Section 76.59 of the Commission's Rules, 47  xC.F.R. 76.59, that the petition for special relief filed on August 29, 1997 by KBL Cablesystems of the  S-Southwest, Inc., dba Paragon Cable in File No. CSR5087A IS GRANTED .  S- ` _x19.` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William H. Johnson x` `  hh@Deputy Chief, Cable Services Bureau