Before the Federal Communications Commission Washington, D.C. 20554 In re Petition of: ) ) Agape Church, Inc. ) CSR-5310-A ) For Modification of Station KVTJ (TV)'s ADI) MEMORANDUM OPINION AND ORDER Adopted: January 25, 1999 Released: February 3, 1999 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Agape Church, Inc. ("Agape"), licensee of Station KVTJ (TV), Jonesboro, Arkansas, ("KVTJ" or "the Station"), Jonesboro, Arkansas has filed a petition to add certain communities located in Cross, St. Francis, Woodruff, Crittenden, Poinsett, and Mississippi Counties, Arkansas; Dunklin County, Missouri; and Shelby and Tipton Counties, Tennessee to KVTJ's area of dominant influence (or "ADI") insofar as mandatory carriage of the station is concerned. Time Warner Entertainment Company, L.P., dba Time Warner Cable ("TWC") filed an opposition to this petition, and Agape has replied. The City of West Memphis, Arkansas ("City") filed comments in opposition to Agape's petition. Agape filed a "Motion for Leave to File Out of Time" and replied to the City's opposition. BACKGROUND 2. Pursuant to  614 of the Communications Act of 1934, as amended (the "Act"), and implementing rules adopted by the Commission in In the Matter of Implementantion of the Cable Television Consumer Protection and Competition Act of 1992 (Report and Order in MM Docket 92-259)("Must-Carry Order"), a commercial television broadcast station is 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 purpose of this section. In considering such request, 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 non-cable 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. The factors are 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 Must Carry Order 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 non-cable 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 non-cable homes, and significantly viewed surveys typically measure viewing only in non-cable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6. 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 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. MARKET FACTS AND THE PARTIES ARGUMENTS 7. Station KVTJ is licensed to Jonesboro, Arkansas, which is in Craighead County, Arkansas, and in the Jonesboro ADI. The communities at issue in this proceeding are located in Dunklin County, Missouri, which is in the Paducah-Cape Girardeau-Harrisburg-Marion ADI; Cross, St. Francis, Woodruff, Crittenden, Poinsett, and Mississippi Counties, Arkansas; and Tipton and Shelby Counties, Tennessee, are located in the Memphis ADI. KVTH has been operating since June 26, 1998. 8. In support of its petition, KVTJ argues that its current ADI does not accurately reflect the extent of its actual television market. KVTJ notes that, although its must-carry status is limited to the Arkansas counties north and west of its transmitter, its primary area of service also extends into the counties to the south and east of its transmitter site, including all the communities at issue. 9. KVTJ points out that its signal provides Grade B service to all the communities in question, and notes that it provides Grade A or, in some instances, City Grade service to many of those communities. KVTJ states that the Commission has routinely found in market modification cases that stations with a Grade B or better over-the-air signal provide local service to communities. 10. KVTJ contends that it is broadcasting programming of local interest or import to the cable viewers in the instant communities. KVTJ argues that a weekly public affairs program called "Our Town" and another program called "Arkansas Alive," which combines Christian teaching with live interviews, indicate the Station's commitment to providing programming responsive to local interest. 11. KVTJ maintains that another evidence of the Station's impact on the communities at issue is the interest that viewers have expressed in its bi-monthly magazine Victory Report. KVTJ submitted a list of names of viewers who purportedly have requested the magazine. Such requests, KVTJ asserts, show the extent of the Station's market and that its over-the-air signal reaches those individuals. 12. KVTJ acknowledges that it has no history of cable carriage in the instant communities, but points out that the "Commission routinely has discounted the absence of a history of carriage for new stations such as KVTJ(TV)." Notwithstanding the lack of historical carriage, KVTJ points out that Triax Cablevision USA's Gosnell (Mississippi County, Arkansas) system, and Friendship Cable in Leachville and Manila (Mississippi County, Arkansas) systems, and Cardwell and Arbyrd (Dunklin County, Missouri) systems have voluntarily begun to carry KVTJ. KVTJ argues that this voluntary carriage is also an indication of the interest that viewers in the areas in question have in the Station and of KVTJ's links with those communities. KVTJ maintains that the fact that KAIT(TV), another station licensed to Jonesboro, "has been carried continuously on many of the cable systems in the [communities at issue] for several decades" supports granting the instant Petition. 13. KVTJ concedes that it has not established measurable viewing patterns within the communities in question, but points out that the Commission has determined that viewing patterns can take up to three years to be established. KVTJ asserts that because of its youth, its lack of viewing patterns in the communities at issue should not carry much weight in deciding this Petition. KVTJ maintains that there are other factors the Commission can consider in determining whether the instant communities should be added to KVTJ's television market. KVTJ argues that its extensive signal coverage and the voluntary carriage of the Station's signal by certain cable systems in the areas in question, establishes that its market includes those communities. 14. In opposition, TWC argues that KVTJ does not qualify as a local station in the communities served by the TWC systems because the TWC communities are distant from Jonesboro, TWC notes that those communities are separated from Jonesboro by the Mississippi River. TWC asserts that not all of the communities in question are within KVTJ's Grade B contour, stating that Memphis, Barlett and Mason lie outside of the Station's Grade B contour. 15. TWC maintains that KVTJ has not shown that there is a strong interest in, or connection with the TWC communities. TWC claims that the interest of two cable operators and a handful of communities located near Jonesboro should not be interpreted as an indication of general interest throughout all of the communities in question. TWC points out that the cable systems that have voluntarily agreed to carry KVTJ are located within 15 to 20 miles from Jonesboro. TWC contends that carriage of Station KAIT by certain communities does not establish a connection between the TWC communities and Jonesboro. TWC asserts that there is no history of KAIT carriage by the TWC systems and explains that only its Parkin, Arkansas system has ever carried KAIT. TWC contends that KVTJ fails to demonstrate that KAIT and KVTJ are similarly situated or that there is a connection between Jonesboro and the TWC communities. 16. TWC maintains that "KVTJ currently airs no programming tailored specifically to the interests of residents in any of the TWC Communities." Finally, TWC acknowledges that as a new station, KVTJ has not established viewing patterns to meet the statutory criteria. TWC maintains, however, that the evidence shows that the TWC communities are remote from Jonesboro. KVTJ's remoteness, according to TWC, is further demonstrated by the lack of presence of KVTJ in the local television guides. 17. TWC disagrees with KVTJ's "claim that the provision of Grade B or better coverage weighs heavily in favor of granting the Petition," and points out that the "Bureau has expressly rejected a pure Grade B market determination standard, but has decided each case on its own facts." In support, TWC cites Avenue TV Cable Service, Inc. and Smith Television of New York, Inc., where the Bureau held that "grade B contours ... are not to be used as an absolute measure of the scope of the station's market." TWC notes that even in areas where KVTJ provides a Grade B signal, the Station fails to show that it airs local programming "which has a distinct tie or is tailored to the residents of the TWC Communities." In that regard, TWC maintains that KVTJ's purported local programming consists only of promises of future local programming and on the fact that the Station monitors the communities at issue for the Emergency Alert System. 18. TWC argues that occasional viewer requests for KVTJ's magazine is insufficient to establish local ties or nexus to the TWC communities. TWC maintains that KVTJ "implicitly concedes that these requests do not accurately measure KVTJ's market when it notes that KVTJ even receives a number of requests from viewers that live in communities outside of KVTJ's Grade B contour." 19. In reply, KVTJ argues that the TWC communities are within the Station's Grade B contour and some, such as Parkin, Earle, and most of Crittenden County are within KVTJ's City Grade contour, while Sunset, Marion and most of West Memphis are within the Station's Grade A contour. KVTJ maintains that TWC's arguments about the distance between KVTJ and the TWC communities are irrelevant because of the proximity of KVTJ's transmitter to those communities, which lie within KVTJ's Grade B contour. 20. KVTJ asserts that it has shown that it, as well as Jonesboro, have a strong connection with the TWC communities. KVTJ argues that the voluntary carriage of the Station by other cable operators demonstrates that "local viewers and cable operators recognize a strong nexus" between KVTJ(TV) and the areas in question. It maintains that the carriage of other stations licensed to Jonesboro, the viewers request of its magazine, and it promises for future programming directed at the residents of the communities at issue also establish a connection with Jonesboro. 21. KVTJ contends that TWC's admission that its Parkin system carries station KAIT, is evidence that the TWC communities should be considered part of KVTJ's television market. It argues that "[t]he failure to include these communities would perpetuate a competitive imbalance intended to be leveled by enactment of the 1992 Cable Act." KVTJ notes that the Memphis TV guide introduced by TWC lists two other Jonesboro stations as demonstrating an "ample nexus between Jonesboro and the TWC Communities." 22. KVTJ asserts that it has fulfilled its commitment to produce local programming addressed to the viewers in the TWC communities. It points out that it has recently completed taping two episodes of "Our Town," that focused on issues of interest to the residents of West Memphis. KVTJ argues that because it already produces a measurable amount of programming directed to the TWC Communities, its situation is easily distinguishable from that in Budd Broadcasting Company, Inc. 23. KVTJ argues that another example of the connection between TWC communities and Jonesboro is the reaction from viewers in those areas in response to a week-long telethon KVTJ conducted in October, 1998. According to KVTJ, it received "at least 26 pledges and requests from viewers in the TWC Communities for copies of `The Victory Report'." The response from these individuals, KVTJ asserts, is only an indication that the Station's "unique brand of religious programming is responsive to their issues of concern." 24. In opposition, the City of West Memphis, Arkansas, ("City") asserts that KVTJ does not have local ties to the City because Jonesboro is distant from West Memphis. The City notes that KVTJ's programming consists of inspirational and religious Christian programs and that it has no programming directed to the residents of West Memphis. It also points out that the City's local newspapers do not list KVTJ in their television programming listing. The City is concerned because any changes in TWC's programming as a result of granting the instant petition may detrimentally affect the residents of West Memphis. 25. In reply, KVTJ contends that the City's distance argument should be rejected because the Station provides Grade A coverage to a substantial part of West Memphis and Grade B contour coverage to all of the City. KVTJ points out that West Memphis is only 40 miles from its transmitter site. 26. KVTJ, citing Erie County Cablevision, Inc. and Nationwide Communications, Inc., maintains that its religious programming should not be an impediment in this proceeding. According to KVTJ, in those cases, "the Commission unequivocally has prohibited cable systems from discriminating against local television stations simply because they broadcast religious or other special interest programming." 27. KVTJ reiterates that the reaction from viewers in the communities at issue is another example of the nexus between West Memphis and KVTJ. It asserts that viewers in West Memphis and other communities nearby have pledged monetary support to the Station and have requested copies of The Victory Report. KVTJ contends that it has, and will continue to produce and broadcast programming directed at the residents of the various communities it seeks to add to its television market. ANALYSIS AND DECISION 28. Based on our analysis of the record relating to the four statutory and other relevant factors, we grant in part and deny in part Agape's petition for market modification. The evidence submitted persuades us that the communities KVTJ seeks to add are considered part of the Station's ADI, with the exception of those communities located outside KVTJ's Grade A contour in Crittenden, Shelby and Tipton Counties, which form the core or hub of the Memphis ADI. 29. With regard to the first statutory factor, we note that historical carriage is not by itself controlling in this particular circumstance. If it were, new stations, such as KVTJ, would, contrary to the policy of the statute, be prevented from ever being entitled to carriage. Thus, because KVTJ is a new station, we find that historic carriage is of little assistance in determining the correct scope of KVTJ's market. For like reasons, the fourth statutory factor, ratings data, also does not sufficiently define KVTJ's market area because, as we have previously noted, viewing patterns can take up to three years to establish in the case of new stations. Moreover, we recognize that "specialty stations" (home shopping, religious, or foreign language stations) are capable of "offer[ing] desirable diversity of programming ..." yet typically attract limited audiences. The third statutory factor requires us to analyze whether other stations eligible to be carried serve the communities in question. In general, we believe that Congress did not intend this third criterion to operate as a bar to a station's ADI claim whenever other stations could also be shown to serve the communities 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. 30. Accordingly, we place greatest reliance, given the facts of this proceeding, upon the second statutory factor, whether the television station provides coverage or other local service to the community. 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 the proximity of the station to the subject communities. The Commission has also taken Grade B or stronger (Grade A or City Grade) service into consideration in determining whether a station serves a community. This is particularly true in instances where market deletions are requested but is also of some relevance in addition cases like this where evidence regarding historic carriage and audience share provide little guidance in making a determination of a market's structure. In these circumstances, Grade B coverage can play a role in guiding our determination. In the instant case, however, we have a countervailing factor to consider. On its eastern border, KVTJ's Grade B contour encroaches into the core or hub of the Memphis ADI. In granting the Commission authority to modify market areas to better effectuate the purpose of Section 614, Congress manifested no intent for us to alter the basic structure of ADI markets. Just as the Station's Grade B contour weighs in our decision, the importance of maintaining the integrity of the basic structure of an ADI market is also a prime concern. We believe that based upon the record in this proceeding, the goal of protecting the integrity of a market is best served by denying KVTJ must-carry status for those communities located in KVTJ's Grade B contour in the counties of Crittenden, Shelby, and Tipton, which form the core of the Memphis ADI. Absent more persuasive evidence, we believe that inclusion of the communities at issue would modify the basic nature and competitive relationships within the core area of the Memphis ADI and conflict with Congress' objective of carriage of television stations in the economic market areas they serve. Consequently, we will grant KVTJ's petition in part as indicated below. ORDERING CLAUSES 31. Accordingly, IT IS ORDERED, pursuant to  614(h) of the Communications Act of 1934, as amended and  76.59 of the Commission's Rules that the petition for special relief , CSR-5310-A, filed September 11, 1998, on behalf of Agape Church, Inc. IS GRANTED with respect to the communities of Cherry Valley, Hickory Ridge, Parkin, Wynne, and Cross County (the areas served by Friendship Cable of Arkansas, Inc.'s Cherry Valley System), located in Cross County, Arkansas; Caldwell, Forrest City, Hughes, Madison, Colt, Counton, St. Francis County (the areas served by Independence County Cable TV, Inc./Curtis Cable TV's Caldwell system), and Widener County (the areas served by Friendship Cable of Arkansas, Inc.'s Madison System), located in St. Francis County, Arkansas; McCrory located in Woodruff County, Arkansas; Crawfordsville, Crittenden, Turrell, West Memphis (the areas served by TWC), West Memphis (the areas served by West Memphis Cablevision Corp.) Sunset, Crittenden County (the areas served by TWC's Parkin system), Crittenden County (the areas served by TWC's West Memphis system), Earle, Gilmore, and Marion, located in Crittenden County, Arkansas; Lake Poinsett, Lepanto, Poinsett County (the areas served by Friendship Cable of Arkansas, Inc.'s Harrisburg System), Weiner, Fisher, Waldenburg, Harrisburg, Truman, Tyronza, and Marked Tree, in Poinsett County, Arkansas; Basset, Keiser, Leachville, Luxora, Mississippi County (the areas served by Blytheville Cable Co.'s Blytheville System, the areas served by Friendship Cable of Arkansas Inc.'s Manila and Osceola Systems), Blytheville, Dell, Dyess, Gosnell, Joiner, Manila, Osceola, Eaker AFB, and Wilson in Mississippi county, Arkansas; and Cardwell, Arbyrd, Hornersville, Pemiscot County the areas served by the Cardwell System) and Senath, located in Dunklin County, Missouri, and IS DENIED in all other respects. KVTJ 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 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. 32. This action is taken pursuant to authority delegated by  0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau