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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re:) ) Idaho Independent Television, Inc. ) CSR-4778-A Nampa, Idaho ) ) For Modification of Television ) Broadcast Station KTRV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: December 2, 1996 Released: December 5, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Idaho Independent Television, Inc., licensee of Television Broadcast Station KTRV (Fox, Channel 12), Nampa, Idaho, filed this petition asking that the Commission add the following fifteen Idaho communities to the Boise, Idaho area of dominant influence: Albion, Buhl, Burley, Castleford, Filer, Gooding, Hagerman, Hansen, Hazelton, Jerome, Kimberly, Richfield, Shoshone, Twin Falls, and Wendell. Oppositions to this request have been filed on behalf of the following parties: Continental Cablevision, Inc., d/b/a King Videocable Company ("Continental"), operator of cable television systems at Filer, Gooding, Hansen, Jerome, Twin Falls, and Wendell; Cable TV of Buhl, Inc. ("Cable TV"), operator of cable systems serving Buhl, Castleford, Hagerman, Hazelton, Richfield, and Shoshone; and jointly by Falls Broadcasting Company, licensee of Television Broadcast Station KXTF (Fox, Channel 35), Twin Falls, Idaho, and Oregon Trail Broadcasting Company, licensee of Television Broadcasting Company KPVI (ABC, Channel 6), Pocatello, Idaho ("the Stations"). Station KTRV has filed a combined reply to all the above. 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 ADI 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. In adopting rules to implement this provision, the Commission indicated that changes requested 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 Act, that a station not be deleted from carriage during the pendency of an market area change request. 7. Adding communities to a station's market area generally entitles that station to insist on cable carriage in those communities. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of its activated channel capacity to compliance with the mandatory signal carriage obligations, 2) the station is responsible for delivering a good quality signal to the principal headend of the system, 3) indemnification may be required for any increase in copyright liability resulting from carriage, and 4) the system operator is not required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried or the signals of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry the signal of only a single affiliate of a broadcast network, it is obliged to carry the affiliate from within the market whose city of license is closest to the principal headend of the cable system. Accordingly, based on the specific circumstances involved, the addition of communities to a station's market area may guarantee it cable carriage and specific channel position rights; simply provide the system operator with an expanded list of must-carry signals from which to choose, i.e., when it has used up its channel capacity mandated for broadcast signals carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority. MARKET FACTS AND PETITIONERS' ARGUMENTS 8. The fifteen communities specified above are all located within the five following Idaho Counties: Cassia, Gooding, Jerome, Lincoln, and Twin Falls. All of these Counties are located outside KTRV's Grade B contour, except for a northwestern portion of Gooding, and all of them are presently assigned to the Twin Falls, Idaho ADI, except for Cassia County, which is presently in the Idaho Falls-Pocatello, Idaho ADI. Both the Counties of Twin Falls and Gooding are located on the southeastern border of the Boise ADI, while Jerome and Lincoln are both located on the eastern border of Gooding County and Cassia County is on the eastern border of Twin Falls County. Station KTRV is only recognized as significantly viewed in Twin Falls County. 9. According to KTRV, it commenced broadcasting in 1981, and it provides a -15 dBm signal to the cable headend serving Buhl, Jerome, and Twin Falls. Station KTRV states that it has been carried by the cable system serving Hagerman (in Gooding County) for more than eleven years, while the cable systems serving Jerome (in Jerome County), and those serving Buhl, Castleford, Filer, Hansen, Kimberly, Twin Falls (in Twin Falls County), as well as the systems at Gooding and Wendell (in Gooding County) have each carried the Station for over thirteen years (factor one). Therefore, grant of the requested waiver will not disturb existing viewing patterns, KTRV notes. KTRV adds that 32 business in Twin Falls advertise on its station, and that it has 442 members in its "Kids Club" from the following 11 communities: Buhl Castleford, Filer, Gooding, Hagerman, Hazelton, Jerome, Kimberly, Shoshone, Twin Falls, and Wendell. In addition, KTRV submits a letter dated March 26, 1996, commending the station's efforts on behalf of the March of Dimes from its State Director, Barbara Fawcett. Station KTRV adds that it provides "substantial public interest programming which is responsive to the needs and concerns of the Cable Communities." Citing citizens' letters it receives praising various programs and episodes of its weekly public affairs program entitled "Focus," KTRV states that it has dealt with various topics of interest to local viewers, such as tourism, crime, literacy programs, and water resources (factor two). KTRV adds that, during the February 1996 sweep, Nielsen reported that it had a 24.3% net weekly circulation among all homes in the Twin Falls market (factor four). OPPONENTS' ARGUMENTS 10. Cable TV notes that it serves a total of 1,576 cable subscribers to its six Idaho cable systems, all of which are located in the Twin Falls ADI. Three of the systems have fewer than 66 subscribers (Castleford, Hazelton, and Richfield), while four of the systems serve fewer than 300 subscribers (Hagerman plus the systems already noted); so these four systems are not subject to mandatory signal carriage, according to Cable TV. The two remaining systems, at Shoshone and at Buhl, must carry on request commercial stations licensed to serve communities in the Twin Falls ADI, which includes KXTF, another Fox affiliate licensed to serve Twin Falls. Cable TV argues that its city of license makes it likely that KXTF's programming is more oriented toward other communities in Twin Falls County than is KTRV's. Cable TV adds that KTRV's transmitter is located about 115 miles from Twin Falls, and that outside of Buhl, Hagerman, and Castleford, where it carries KTRV, the signal is not receivable at the headends serving the other three communities (Hazelton, Richfield, and Shoshone). 11. Continental notes that it serves about half of the specified communities. Four are located in the County of Twin Falls (Filer, Hansen, Kimberly, and Twin Falls); two are in Gooding County (Gooding and Wendell); and one is in Jerome County (Jerome). According to Continental, it has limited channel capacity which should not be "filled up with blacked out programming." Continental adds that it currently carries KXTF, which switched from ABC programming to Fox programming in February 1996. Therefore, Continental speculates that after December 31, 1996, it will have to black out as much as 7 hours of programming daily because "Fox has indicated that it will not permit retransmission of KTRV's Fox programming on Continental's system after that date." Citing the Bureau's prior decision in Austin Television, Continental admits that it has been carrying KTRV pursuant to a retransmission consent agreement (the first factor) but argues that carriage of a signal for more than nine years is not sufficient reason to modify an ADI where the station does not place a Grade B contour over the subject communities. Continental adds that even though KTRV's Grade B contour does cover portions of Gooding County, it does not cover either Gooding or Wendell. Citing the Bureau's previous decision in Montgomery Cablevision, Continental notes that a station may rely upon proximity to the communities at issue to demonstrate local coverage, but Continental adds that KTRV's city of license, Nampa, is located more than 80 miles from Gooding, which is the closest community served by Continental, and that Nampa is also over 105 miles from Continental's headend. Continental adds that the "Focus" programs listed by KTRV primarily concern the Boise/Nampa area and are not of particular interest to subscribers in the communities Continental serves. Furthermore, according to Continental, none of the advertisers that KTRV lists have businesses that are located only in Twin Falls, in fact, they "[a]ll have substantial businesses in, and are targeting the Boise-area market." Continental also speculates that KXTF will also establish a "Kids Club," since the program is not solely a KTRV program, but is in fact "offered by virtue of its FOX affiliation." Continental adds that, although KTRV has staged live "Kids Club" activities in the Boise area, it has not yet scheduled any events in the Twin Falls area (the second factor). Continental concludes that KTRV has failed to demonstrate that its proposed modifications to the Boise ADI should be made, and that KTRV has not even addressed the third factor of whether or not other stations carried by Continental address the needs of the communities noted. Continental states that its channel line-ups demonstrate carriage of a plethora of stations licensed to the Twin Falls area, which provide truly local coverage, such as Television Broadcast Station KMVT (CBS, Channel 11), Twin Falls, Idaho, which broadcasts half hour newscasts at 6:00 pm and at 10:00 pm, Monday-Friday. In addition, Continental notes that it also carries live coverage of the monthly school board meetings and of the bi-weekly Twin Falls City Council meetings. 12. In their joint opposition, the Stations maintain that KTRV has failed to justify addition of the fifteen designated communities to the Boise ADI ". . . under the four prong test designed to measure whether a signal is in fact local to a particular community." According to KXTF, its programming "substantially duplicates" that of KTRV, whose city of license (Nampa) is located about 125 miles from Twin Falls, the city of license for KXTF. The Stations note that KTRV has not demonstrated a history of carriage either in Albion or in Burley (both of which are located in Cassia County), nor has KTRV shown a history of carriage either in Richfield or in Shoshone (in Lincoln County), and it has failed to demonstrate historic carriage in Hazelton (in Jerome County). The Stations also express their skepticism that KTRV's signal is of excellent viewing quality (as reported by KTRV's engineer) at the unspecified headend serving Buhl, Jerome, and Twin Falls, a distance between 90 and 115 miles away, particularly since, as KXTF notes, intervening terrain features reach heights in excess of 6,700 feet. The Stations add that none of the fifteen specified communities are located within KTRV's Grade B contour, which only covers part of Gooding County. Because only three of the communities designated, Hagerman, Gooding and Wendell (all of which are located in Gooding County) are located less than 100 miles from Nampa, the Stations argue that any claims premised on localism are baseless. In addition, the Stations also state that not one of the "Focus" programs listed by KTRV during a 2 1/2 year period was specific to Twin Falls, or to any of the other fourteen designated communities, and that KTRV did not even claim any news or sports coverage of events in any of the communities noted. The Stations add that all of the 32 advertisers listed by KTRV are either regional or national accounts, and that none are uniquely local to Twin Falls. The Stations also explain that, while KTRV did produce spots for the March of Dimes, these spots were actually aired by local radio and television stations (including KXTF), and that all of them deserve credit for promoting the event. According to the Stations, local coverage is provided by other stations licensed to Twin Falls, which are entitled to mandatory carriage in the market, including KXTF and KMVT, as well as two educational stations. The Stations add that the four letters submitted by KTRV from four of the fifteen designated communities during the past four years generally ask that KTRV add certain programs or criticize the programs that the Station already carries. Moreover, the Stations maintain that the Nielsen's share data for May 1996 shows a declining acceptance of KTRV in the Twin Falls market from 4% in May 1995, to 3% in November 1995, to 2% in February and May 1996 (when KTRV had no "in-market" share), and in the period Sunday through Saturday, 9:00am to Midnight, when KTRV received a 2% share and a 1% rating. PETITIONER'S REPLY 13. In its combined reply to the above oppositions, KTRV initially states that it will not address the opposition filed by Cable TV, because it treated KTRV's petition as a must-carry complaint, rather than a an ADI modification request," and did not rebut KTRV (TV)'s showing that it has satisfied the necessary criteria for market modification." KTRV adds that, since it is recognized as significantly viewed in the County of Twin Falls, Continental will never have to black out its programming on the systems it operates in the four designated communities that are located there (Filer, Hansen, Kimberly, and Twin Falls). Moreover, KTRV argues that Continental's carriage of KXTF is irrelevant to the issue of whether or not its request to modify the Boise ADI should be granted. Citing the Bureau's previous decision in Pulitzer Broadcasting Co., KTRV notes that the Bureau held that cable operators were free to carry more than one network affiliate and that in a market modification proceeding, such as this one, the Bureau held that it would ". . . refrain from addressing claims concerning the closest network affiliation rule and the network nonduplication rule because such issues are outside the scope of this particular proceeding." KTRV adds that the contractual arrangements concerning the carriage of Fox programming made between KTRV and Fox are not relevant in a market modification case such as this. KTRV also claims that Continental's cite of Austin Television, is inapposite since the issue of potential economic harm to the opposing party was raised in that market modification case, but it has not been raised here. However, citing prior Bureau decisions in Corporation for General Trade; Meredith Corporation; and KADN Broadcasting, Inc., KTRV states that its long history of carriage in the specified communities has been recognized as a critical factor supporting a market modification request. KTRV adds that the Bureau has held that a station can satisfy the local coverage factor, even in the absence of a Grade B contour over the designated communities, if it provides local programming to the designated communities. KTRV maintains that it "indisputably" provides a clear picture and sound to the cable system headend serving Twin Falls, Jerome, and Buhl, despite the distances between the communities and the station. KTRV adds that it has been carried for a decade or more in the six specified communities in Twin Falls County (Buhl, Castleford, Filer, Kimberly, Hansen, and Twin Falls), as well as in the three designated communities in Gooding County (Gooding, Hagerman, and Wendell), and in Jerome (in Jerome County) even prior to the enactment of the present mandatory carriage rules, which the Bureau has previously held in its decision in KTEN Television Limited Partnership, ". . . is a strong indication of interest in the signal" in those communities. KTRV also argues that ". . . local needs can be met through general as well as specific programming," again citing the Bureau's decision in Corporation for General Trade. 14. According to KTRV, its "Focus" programs do address local concerns, such as flood control measures and how to save lives in the event of a flood, and are of interest to residents of the designated communities. In addition, KTRV notes that national advertisers frequently choose to utilize KTRV so that they can reach customers located in Twin Falls, as well as in Boise, which is why businesses with locations both in Boise and in Twin Falls will also often advertise on KTRV. In addition to the generous air time that KTRV states it supplied to the March of Dimes, KTRV adds that it also hosts a telethon for the Muscular Dystrophy Association, and that as part of that activity this year the station will feature interviews with people afflicted with the disease who live in Burley, Idaho. As for coverage of local issues by other stations entitled to mandatory carriage, KTRV cites the Bureau's decision in The Chronicle Publishing Company, and notes that the Commission has repeatedly held that this criterion is only an enhancement factor, and that it is not applicable where other stations apparently do serve the specified communities. Finally, with respect to the issue of local viewing, KTRV notes that it had a 3.2% average viewing share during the period referenced by the Stations and notes that it has a 1-800 number available just for members of its "Kids Club," to which over 258 calls were made during July 1996. Likewise, according to KTRV, the viewer letters it receives, regardless of their subject matter, are indicative of strong viewer interest in the Station. KTRV concludes that it has demonstrated that it satisfies all the necessary criteria for market modification, and it requests that the Commission grant its petition and add the fifteen communities noted to the Boise ADI. ANALYSIS AND DECISION 15. Although KTRV has failed to demonstrate that the listed communities either in Cassia or in Lincoln County should be included within the Boise, Idaho ADI for purposes of mandatory signal carriage, it has satisfactorily demonstrated that the communities specified in the Counties of Gooding, Jerome, and Twin Falls are logically part of the Boise, Idaho ADI (as well as the Twin Falls Idaho ADI), pursuant to the factors specified by the 1992 Cable Act, and its petition accordingly will be partially denied and partially granted. CASSIA COUNTY COMMUNITIES 16. Station KTRV has not demonstrated historic viewing in either of the two specified communities in Cassia County, Albion and Burley (factor one). No portion of the County is adjacent to the Boise ADI, nor is any portion of the County within KTRV's Grade B contour, and KTRV is not recognized as significantly viewed in the County. In addition, the station does not indicate any advertisers either from the communities or from the County, and there are no members of its "Kids Club" either from Albion or from Burley (factor two). Station KTRV has provided no information concerning whether or not other stations eligible for mandatory carriage provide adequate news coverage or other local programming of interest to any of the designated communities (factor three). According to Nielsen's 1995 County/Coverage Study. however, KTRV had no reported viewing either off-air or on cable in the County (factor four). Therefore, in view of the totality of circumstances set out above, we will deny KTRV's requested waiver insofar as it concerns the two communities specified in Cassia County. LINCOLN COUNTY COMMUNITIES 17. Similarly, KTRV has not demonstrated historic carriage in either of the two designated communities in Lincoln County, Shoshone and Richfield (factor one). The station is not recognized as significantly viewed in the County, although a small portion of Lincoln County is adjacent to the eastern border of the Boise, Idaho ADI. Station KTRV does not place a predicted Grade B contour over any part of Lincoln County, and it has not indicated that it has any advertisers from these communities or from the County. In fact, the station only lists four members of its "Kids Club" from Shoshone and none at all from Richfield (factor two). Again, KTRV has not provided any information concerning whether or not other stations eligible for mandatory carriage provide adequate news coverage or other local programming of interest to the designated communities, but KTRV itself had no reported off-air or cable viewing in Lincoln County, according to the above Nielsen report (factor four). In view of the totality of circumstances presented, therefore, we will deny KTRV's waiver request with respect to the two designated communities in Lincoln County. GOODING COUNTY COMMUNITIES 18. By comparison, KTRV has demonstrated historic carriage in the three specified communities in Gooding County; it reports that it has been carried by the system at Hagerman for eleven years and by the systems serving Gooding and Wendell for thirteen years (factor one). In addition, KTRV's Grade B contour encompasses approximately a third of Gooding County, which also has two sides (the north side and the west side) that are adjacent to the Boise ADI. Although KTRV is not recognized as significantly viewed in Gooding County and has not noted that any of its advertisers are located in the three designated communities in Gooding County, the communities together do have 73 members of the KTRV's "Kids Club" (factor two). Station KTRV has not provided any information to determine whether or not other stations eligible for mandatory carriage do provide adequate news coverage or other local programming of interest to the designated communities (factor three). However, according to the above Nielsen report in the Sunday-Saturday, 7:00am to 1:00am daypart, KTRV received a total share of 6%, with a 9% share for cable viewing, and a 4% share for noncable viewing, and it had a 38% average total cum for the week (factor four). Therefore, considering the totality of circumstances presented above, we will grant KTRV's requested waiver insofar as it concerns the specified communities in Gooding County. JEROME COUNTY COMMUNITIES 19. Similarly, KTRV has demonstrated historic carriage in one of the two specified communities; it states that the system serving Jerome has carried it for thirteen years, but does not say anything concerning its carriage at Hazelton (factor one). Although the station does not report that it has any advertisers in the County, and no portion of KTRV's Grade B contour encompasses Jerome County, there are 106 members of its "Kids Club" who reside either in Hazelton or in Jerome (factor two). The station again has provided no information concerning whether or not other stations eligible for mandatory carriage provide adequate news coverage or other local programming of interest to the designated communities (factor three). According to the above Nielsen report, in the Sunday-Saturday, 7:00am-1:00am daypart, KTRV had no reported share of off-air viewing, but the station did have a 4% share of total viewing, with a 7% share of cable viewing in the County, and it received a 32% total average cum for the week (factor four). Based on the totality of circumstances presented, therefore, we will grant KTRV's waiver request insofar as it relates to the two designated communities in Jerome County. TWIN FALLS COUNTY COMMUNITIES 20. Finally, KTRV has demonstrated historic carriage with respect to all six specified communities in Twin Falls County (Buhl, Castleford, Filer, Hansen, Kimberly, and Twin Falls), where it states that it has been carried for thirteen years by the cable systems serving each of these communities (factor one). In addition, the station is recognized as significantly viewed in Twin Falls County, and the County is located on the western border of the Boise ADI. Moreover, although no portion of Twin Falls County is within KTRV's Grade B contour, 259 members of the station's "Kids Club" live in the six communities altogether (or 59% of its total membership), and the station notes that it has 32 advertisers from Twin Falls County (factor two). Although the station has not provided any information to determine whether or not other stations eligible for mandatory carriage provide adequate news coverage or other local programming of interest to the designated communities (factor three), we note that, according to the above Nielsen report, in the Sunday-Saturday, 7:00 am-1:00 am daypart, KTRV received a 7% total viewing share, with an 8% share of cable viewers, and a 4% share of noncable viewers in the County, and that it had a 42% average total cum for the week (factor four). Therefore, considering the totality of circumstances presented, we will grant KTRV's waiver request with respect to the six specified communities in Twin Falls County. 21. Therefore, for the purposes of determining mandatory signal carriage obligations, we shall consider the communities previously specified by KTRV in the Idaho Counties of Gooding, Jerome and Twin Falls to be part of the Boise, Idaho ADI with respect to carriage of KTRV, but we shall still consider the designated communities in Cassia County, Idaho as part of the Idaho Falls-Pocatello, Idaho ADI only and the designated communities in Lincoln County, Idaho as part of the Twin Falls, Idaho ADI only for purposes of mandatory signal carriage. ORDERING CLAUSES 22. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, (47 U.S.C. 534) and 76.56 and 76.59 of the Commission's Rules (47 C.F.R. 76.56 and 76.59), That the petition for special relief (CSR-4778-A) filed July 2, 1996, by Idaho Independent Television, Inc. IS GRANTED to the extent indicated above, and in all other respects IS DENIED. 23. IT IS FURTHER ORDERED, that this change shall be effective in accordance with the following schedule: KTRV shall notify the cable systems in question 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 Memorandum Opinion and Order. The cable systems shall come into compliance with the applicable rules within sixty (60) days of such notification. 24. 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