******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Petition of: ) ) Costa de Oro Television, Inc. CSR-5096-A) ) For Modification of Market ) of Station KSTV-TV ) MEMORANDUM OPINION AND ORDER Adopted: February 20, 1998Released: February 25, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Costa de Oro Television, Inc. ("Costa de Oro"), permittee of Station KSTV-TV (Channel 57), Ventura, California has filed a petition to add certain communities located in Los Angeles and Orange Counties, California to KSTV-TV's market for purposes of mandatory carriage of the station. Oppositions were filed by Comcast Cablevision of Seal Beach, Inc., Comcast Cablevision of Santa Ana, Inc., Comcast Cablevision of Newport Beach, Inc. and Comcast Cablevision of North Orange Inc. ("Comcast Cable Operators" or "Comcast"); by Coxcom, Inc., d/b/a Cox Communications Orange County, and Cox Communications Palos Verdes ("Cox Cable Operators" or "Cox"); by Time Warner Cable ("TWC Cable Operators" or "TWC"); by Time Warner Entertainment-Advance/Newhouse Partnership ("TWEAN Cable Operators" or "TWEAN"); and by Century Cable of Southern California, Century Southwest Cable Television, Inc., Multivision Cable TV, Multivision ("Century"); Charter Communications Entertainment II L.P., Long Beach Acquisition Corp. ("Charter"); Jones Growth Partners II L.P. ("Jones"); Marcus Cable ("Marcus"); MediaOne of Los Angeles, Inc., American Cablesystems of South Central Los Angeles, Inc., d/b/a MediaOne, MediaOne of Harbor, Inc., MediaOne of Lakewood, Inc., King Videocable Company, d/b/a MediaOne, MediaOne of Costa Mesa, Inc., MediaOne of Cypress, Inc. ("MediaOne"); and TCI Cablevision of California, d/b/a TCI of Los Angeles County, and TCI Cablevision of California, d/b/a TCI of East San Fernando Valley ("TCI") (collectively "Consolidated Cable Operators"), to which Costa de Oro filed a consolidated Reply. BACKGROU ND 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, 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 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 requested changes should be considered on a community-by-community basis rather than on a county-by-county basis, and that they should be treated as specific to particular stations, rather than applicable in common to all stations in the market. The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage during the pendency of an ADI change request. MARKET FACTS AND THE PARTIES' ARGUMENTS 7. Station KSTV-TV is licensed to Ventura, California, which is in Ventura County, California. Although Ventura County is in the Los Angeles ADI, KSTV-TV is assigned to the Santa Barbara ADI and has must carry rights in its home county of Ventura, as well as the communities in the Santa Barbara ADI but not in the Los Angeles ADI. The 60 communities that KSTV-TV seeks to add to its television market are in the Los Angeles ADI. Forty-six communities are in Los Angeles County, which is adjacent to Ventura County, and fourteen are in Orange County, which is adjacent to Los Angeles County on its southeastern border. KSTV-TV's transmitter is located on South Mountain near Santa Paula in Ventura County. 8. In the instant Petition, Costa de Oro contends that the first statutory factor, historic carriage, is not relevant because the station began operations in 1990 when there were no must- carry rules. Costa de Oro concedes that virtually none of the cable systems have ever carried KSTV-TV, but asserts that this should not be dispositive in light of the decision in Maranatha Broadcasting Co. that stations that have lacked the opportunity to build a historic carriage record for reasons unrelated to the geography of the market should not be preventing from ever obtaining carriage rights. Costa de Oro argues that its recently upgraded transmission facilities provide an additional reason to discount the station's lack of historic carriage. Costa de Oro further argues that Nielsen includes KSTV-TV in the Los Angeles Designated Market Area ("DMA") and that once the Commission begins using the DMA designations for local market determinations in 1999, KSTV-TV will have must-carry rights in all of the cable communities covered by its Petition. Costa de Oro states that the Commission has recognized that the Nielsen DMA market assignments "provide the most accurate method for determining the areas served by local stations," and contends that the Commission should rely on KSTV-TV's DMA assignment to satisfy the fourth statutory factor, local viewing patterns. 9. To address the second and third statutory factors, Costa de Oro asserts its commitment to the bilingual Hispanic audience in the Los Angeles market and notes that it is in the process of moving KSTV-TV's studio and offices to Los Angeles. Costa de Oro states that KSTV-TV, which is "100 percent Hispanic owned" provides 11 hours of bilingual programming per week, five and one-half hours of which is locally produced. Costa de Oro asserts that its bilingual programming containing both Spanish and English segments in the same program is unique in the area and that KSTV-TV also provides educational children's programming for Spanish-only and bilingual children. Costa de Oro contends that this programming is aimed specifically at viewers, particularly Hispanic viewers, in the Los Angeles area, as exemplified by "Santana Live (En Vivo)," a call-in talk show. Costa de Oro points to other regularly scheduled, locally produced public affairs and sports programs said to be related to activities in Los Angeles and Orange County as further evidence of KSTV-TV's local service to the communities it seeks to add. 10. Costa de Oro provides a coverage map for the station that depicts the predicted Grade B contour after completion of the transmitting facility from which KSTV-TV began broadcasting in July, 1997. Costa de Oro notes that KSTV-TV is a more powerful station, now at 5 Megawatts, than the station considered in the previous must-carry proceedings. Costa de Oro asserts that all of the requested cable systems in Los Angeles County are served in whole or in part by KSTV-TV's over-the-air signal and that those Orange County systems outside the predicted Grade B contour are "just a few miles outside." Costa de Oro notes that the Commission recently relied on Grade B contour coverage as a "sound indicator of the economic reach" of a station's signal and asserts that the distance from the station's transmitting tower, 70 miles or less from all the cable systems it seeks to include, is another indication of its connection to the Los Angeles market. 11. TWC's Los Angeles Division operates cable systems in six of the communities that Costa de Oro seeks to include in its market and opposes the Petition on the bases of lack of historic carriage, geographical distance, and lack of measurable audience. TWC argues that KSTV-TV's lack of historic carriage is significant because it demonstrates that the station lacks programming appeal to the Los Angeles market that would have prompted the cable systems to carry the station voluntarily. TWC further notes that the station has been broadcasting for a period of some time and still lacks a measurable viewing audience in the Los Angles market and that the station is not listed in the Los Angeles Times or the Los Angeles edition of TV Guide. TWC disputes Costa de Oro's contention that KSTV-TV's assignment to the Los Angeles DMA is dispositive. TWC contends that the Commission's analysis is similar whether KSTV-TV is seeking to add the cable communities to its ADI or the cable systems are seeking to exclude their communities from KSTV-TV's market. In either case, TWC asserts, "KSTV is not a local signal for the TWC Communities and its carriage by Time Warner Cable would not enhance the value of localism that underlies the mandatory carriage rules." TWC asserts that KSTV-TV is not a local signal because its communities are 40 to 65 miles from Ventura and both terrain and the city of Los Angeles separate Ventura from the TWC cable communities. TWC acknowledges that its six cable communities fall within KSTV-TV's predicted Grade B contour but speculates that KSTV-TV's signal strength will be insufficient at the cable systems' headends. TWC disputes Costa de Oro's contention that it provides locally oriented programming and asserts that "Santana Live!" offers subjects of general interest to Hispanic viewers but not directly relevant to residents of Los Angeles. TWC also notes that each of its systems currently carries the "Inside Los Angeles Arts & Entertainment News" program that KSTV-TV carries and offers as evidence of its local interest programming. TWC further notes that three stations currently carried by its cable systems offer Spanish or bilingual programming and provide local news. TWC argues that, therefore, adding KSTV-TV would not augment local programming options for subscribers in the TWC communities. 12. TWEAN, which is also operated by TWC's Los Angeles Division, filed a separate Opposition with respect to cable systems serving the City of Orange and certain unincorporated areas of Orange County. TWEAN also makes the general arguments made by TWC and asserts further that its communities are 75-80 miles from Ventura, outside KSTV-TV's predicted Grade B contour, and separated from Ventura by several mountain ranges and the City of Los Angeles. TWEAN notes that KSTV-TV is not included in the television listings in the Orange County Register. 13. CoxCom and Comcast also filed separate Oppositions to the Petition that raised similar arguments. CoxCom filed with respect to its cable systems serving communities in and near Palos Verdes in Los Angeles County and serving southern Orange County. Comcast specifically opposes Costa de Oro's request to add the communities of Buena Park, Santa Ana, Seal Beach, and Newport Beach to KSTV-TV's market. CoxCom asserts that its communities are 62 to 90 miles from Ventura and an average of more than 54 to 90 miles from KSTV-TV's transmitter, which is at the opposite end of the Los Angeles market, that there is no history of carriage, and that the Orange County communities are outside KSTV-TV's predicted Grade B contour. Comcast similarly asserts that KSTV-TV has no historic carriage on it systems, despite seven years of broadcasting. Comcast states that its communities are 66 to 91 miles from KSTV-TV's city of license, 66 to 79 miles from its transmitter, and at the very fringe of KSTV-TV's predicted Grade B contour and argues that such distance, especially in light of the presence of Los Angeles between Ventura and the Comcast communities, has been the basis for excluding cable communities from a station's market for must-carry purposes. CoxCom and Comcast, like TWC and TWEAN, state that their systems carry three stations that provide news, sports and entertainment programming targeted to the Hispanic population. In response to Costa de Oro's assertion that the Palos Verdes communities are within KSTV-TV's predicted Grade B contour, CoxCom states that it measured KSTV-TV's signal strength at its Palos Verdes system's headend and found that the signal was not strong enough to be measured, and argues therefrom that the predicted Grade B contour should be discounted. Comcast, likewise, contends that it performed signal tests in October, 1997 at each of its headend locations and detected no signal for KSTV-TV. 14. CoxCom and Comcast also assert that KSTV-TV's Spanish and bilingual programming may be of interest to Hispanic viewers in general but is not specifically targeted to the Hispanic viewers in their communities, and note that only 3.3% of the station's weekly programming is locally-produced bilingual programming. CoxCom further argues that KSTV-TV does not offer programming targeted to viewers in its Palos Verdes communities and notes that these communities would logically be excluded from the station's market due to the small Hispanic population (4.5% in contrast to 42.6% for Los Angeles County as a whole). CoxCom also notes that one local program upon which KSTV-TV relies, Inside Los Angeles Arts & Entertainment News, is available on another station carried by its Palos Verdes and Orange County systems, thus duplicating programming already offered. CoxCom and Comcast contend that KSTV-TV's only unique locally-produced program, Santana Live, often focuses on issues of general interest to some Hispanic viewers but not of specific interest to viewers in their communities. CoxCom notes that its cable systems in the relevant communities carry 19 broadcast stations, 3 of which provide Spanish or bilingual programming and garner high ratings. Moreover, CoxCom states that two of these three stations provide daily local news in Spanish and contends that KSTV-TV does not provide local news or traffic for either the Hispanic or non-Hispanic audience. Comcast also argues that its cable systems carry three stations that provide Spanish or bilingual programming, including local newscasts, in addition to the satellite Spanish-language cable network, Galavision. Comcast also notes that these stations have closer ties to the Los Angles market and higher ratings than KSTV-TV, which has no measurable ratings. Finally, CoxCom and Comcast note that KSTV-TV has no measurable audience in their communities and argue that assignment to the Los Angeles DMA is but one indication of local service and does not alone support modification of the station's ADI. 15. Consolidated Cable Operators voice many of the same arguments raised in the other Oppositions to the Petition. They, too, note that KSTV-TV's lack of historic carriage is significant because no one prevented the cable systems from carrying the station had the systems believed that the station's programming targeted the local communities. Consolidated Cable Operators also note that their systems in Orange County are beyond KSTV-TV's predicted Grade B contour and assert that KSTV-TV does not provide a good quality signal to the cable systems' headends. The Consolidated Cable Operators further argue that lack of signal quality at the headends suggest that over-the-air reception of KSTV-TV's signal in individual homes in the community is also likely to be inadequate. Consolidated Cable Operators also state that their communities average 70 miles from Ventura and note that these distances are greater than those used to exclude stations in must-carry cases. They contend that KSTV- TV's programming consists primarily of syndicated programming and reruns and has no specific relevance to their communities. They argue further that the station's Hispanic programming may be of general interest but does not provide coverage of local matters and is not unique. Consolidated Cable Operators assert that their cable systems currently carry three stations that provide Spanish and bilingual programming, including local news, and which have significant audiences in the Los Angeles County communities. They contrast these stations with KSTV-TV, which, they assert, does not provide local news and has no appreciable audience. 16. In its Reply to the Oppositions, Costa de Oro argues that in previous decisions, no station has been denied carriage when it is adjacent to the core of the market, places a predicted Grade B contour over the systems and provides local programming. Costa de Oro further asserts that the cases cited as support in each of the Oppositions are inapposite here because they each lack one of these critical factors, all of which KSTV-TV meets. Costa de Oro notes that the cases cited involved distances well in excess of 120 miles, in contrast to KSTV-TV's proximity to the communities it seeks to add. Costa de Oro argues that its transmitter is 24 miles from the nearest Los Angeles community it seeks to add and 75 miles from the nearest Orange County community and reiterates that it is in the process of moving its studio to Los Angeles. Costa de Oro emphasizes that, in contrast to many of the cases cited in the Oppositions, the communities it seeks to add are not in a different state, and most are in the adjacent county and within the station's predicted Grade B contour. It further argues that residents of Ventura drive to Los Angeles and Orange Counties to work and shop. Costa de Oro disputes the contention that signal quality at the headend is relevant to a market modification proceeding and contends that, ". . . the predicted Grade B contour is important as defining the market to which a station normally looks for revenue, and nothing more. Once KSTV is successful in obtaining must-carry rights on these systems, KSTV will be obligated to provide a signal in conformance with FCC standards to the headends in order to obtain carriage." Costa de Oro asserts that KSTV-TV's predicted Grade B contour describes the area that the Commission has licensed it to serve, and its "must-carry zone" must be modified to match that area. 17. Costa de Oro also disputes the contention in the Opposition that KSTV-TV does not provide local programming. It distinguishes the cases cited in the Oppositions as representing instances where the station in question provided programming of general interest. KSTV-TV, Costa de Oro contends, produces "substantial local public affairs programming, much of it in prime time, which focuses on Los Angeles and Orange county residents." Costa de Oro distinguishes its programming from the general interest Hispanic programming cited in the Oppositions by noting that in the cases cited, the station in question provided programming from a network feed, rather than locally produced programming. Costa de Oro asserts that KSTV-TV is Hispanic-owned and produces prime-time, live programs discussing issues of importance to the Hispanic community. It further asserts that discussions of Mexico-US relations are not merely "general interest" but of key concern to local residents. Costa de Oro further emphasizes that KSTV-TV should receive substantial credit in consideration of its Petition for "Inside Los Angeles Arts & Entertainment News" even though it is aired on other stations that are carried by the cable systems in question. Costa de Oro states that the program is produced by KSTV-TV and provides information about local entertainment venues in prime time. It contends that KSTV-TV's involvement with this program "directly demonstrates its ties to the communities served by the Opposers." Moreover, Costa de Oro argues that when a station is seeking to be included in a market, whether the cable systems carry other stations with comparable programming is irrelevant because this is a factor used to enhance arguments for deletion rather than to determine whether addition is warranted. Costa de Oro further asserts that the cable systems' carriage of two fulltime and one part time Spanish language station plus one Spanish language cable network still represents less than ten percent of the cable channels to serve the 43 percent of the Los Angeles County population that is Hispanic. Costa de Oro further emphasizes the importance of its bilingual programming for Hispanic viewers who want programming in both languages and of relevance to their heritage. 18. Costa de Oro also contends that historic carriage is meaningless where, as here, the lack of carriage is relevant to the cable systems' judgments on the value of the station's programming rather than the fact of its location in the market. Similarly, Costa de Oro argues that the lack of audience ratings is of little relevance to consideration of specialty stations that provide programming to underserved audiences, such as the bilingual Hispanics here targeted. Costa de Oro further notes that its historic lack of ratings was attributable to lack of cable carriage plus a weak over-the-air signal and asserts that its recent increase in power output to five megawatts has expanded its coverage and will result in an increased audience reported by Nielsen. Finally, Costa de Oro reiterates the significance of its placement in the Los Angeles DMA and argues that the Commission acknowledged the usefulness of DMA designations in market modification determinations. ANALYSIS AND DECISION 19. Based on our analysis of the record relating to the four statutory and other relevant factors, we will grant in part and deny in part KSTV-TV's petition. A. Historic Signal Carriage 20. Statutory factor one is "whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community." There is no evidence in this proceeding that KSTV-TV has ever been carried on any cable system in any of the communities involved in this proceeding or in any adjoining or nearby communities. There is also no evidence that any other station licensed in the same general area as KSTV-TV, such as KADY-TV which operates from the same transmitter site and has been on the air since 1985, has ever been carried on any cable system in any of the communities involved in this proceeding or in any adjoining or nearby communities. However, although KSTV-TV has been in operation since 1990, it only began broadcasting with its current more powerful facilities in July of 1997. B. Station Coverage of Communities 21. Statutory factor two is "whether the television station provides coverage or other local service to such community." This factor incorporates both technical service and programming service as well as geography (mileage and topographical features). With regard to technical service, the Commission has stated in its Report and Order in MM Docket 92-259 that "to show that the station provides coverage or other local service to the cable communities, parties may demonstrate that the station places at least a Grade B coverage contour over the cable community, or is located close in term of mileage." 22. KSTV-TV has submitted a coverage map that includes the predicted city grade, Grade A, and Grade B contours of the new facilities from which it is now operating to demonstrate that it provides coverage to the communities in question. Its predicted Grade B contour covers all of the communities involved that are in Los Angeles County except Hacienda Heights and none of the communities in Orange County. The Cable Operator Oppositions include information that is intended to demonstrate that, notwithstanding the predicted service, the station fails to actually provide service that can be acceptably received over-the-air in the communities. Measurements were taken at a number of close in and more distant headend locations. At many of these locations the measurements were taken at heights far above where an ordinary consumer antenna would typically be located (including, for example, antennas at 180, 60, or 55 feet). The KSTV-TV signal was found in most situations to be absent, undetectable, or at a strength below that defined as acceptable. KSTV-TV responded only that it "has also undertaken preliminary measurement[s] and found that, at least as to the closer Los Angeles systems, the signal level is well above the requisite for carriage." 23. KSTV-TV asserts further that its programming satisfies the second statutory factor because it provides local programming service to the communities it seeks to add. The Cable Operators acknowledge that KSTV-TV provides programming of interest to Hispanic viewers but argue that it is only of general interest and not specifically aimed at the viewers in their communities. We note that it is not possible to ascertain from the materials presented that, for example, "Santana Live," which is put forward as exemplifying the programming service provided by KSTV-TV, reflects service specifically directed to the cable communities in question. The programs in question are described as covering matters such as "Discussion of latest Mexican elections with emphasis on Chiapas uprising," "Working of the US Justice system in relation to various economic and racial groups in Southern California," and "Alternatives to classical medicine - natural medicine practices and prevention." KSTV-TV argues strongly that these programs "address the issues of importance to the Hispanic community." While that is not disputed, it does not link KSTV-TV specifically to the cable communities since the described target audience is Hispanic viewers not specifically Los Angeles Hispanic viewers. Moreover, the fact that the identical programs are broadcast on other outlets in the market suggests, because broadcast programming is generally sold on an exclusive basis, that, for program purchase and sales purposes, two separate markets exist. 24. Geographic proximity or distance is also a factor that is weighed in market modification proceedings. The communities in question here are, according to KSTV-TV, between 24 and 75 miles from its transmitter site. However, it provides no listing of the distances in terms of the specific communities involved. Moreover, KSTV-TV does not dispute the opposition statement that "Los Angeles is physically separated from Ventura County by the Santa Monica Mountains, Simi Hills and Santa Susana Mountains that extend north and west from the California coastline and set-off Ventura County from Los Angeles County." C. Coverage of News, Sporting Events, or Other Events of Interest by Other Stations Entitled to Carriage 25. Statutory factor three is "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." It is argued in opposition, that cable systems in the relevant communities carry as many as 19 broadcast stations licensed to closer communities than KSTV-TV, three of which provide Spanish or bilingual programming. Two of these three stations are said to provide daily local news in Spanish. We note that in modification cases such as this, in which a station seeks to add communities, the fact that the cable system carries other stations that provide similar programming or address similar local needs is not reason alone to deny modification. Rather, this third factor is relevant to enhance a station's argument for carriage when it can be shown that there are no other stations that serve the community in question. We also note that it is inappropriate for us to consider the content of the programming to determine whether these Los Angeles County communities have "enough" Hispanic programming in light of the demographics that show that over 40% of the Los Angeles County population is Hispanic. D. Station Audience in Communities Served by Cable System 26. Statutory factor four is "evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community." There is no evidence that KSTV-TV has any audience either in cable or noncable households within any of the cable communities in question. Nielsen data from July of 1997 reveal 82 broadcast stations or cable programming services with audience in the Los Angeles market but KSTV-TV is not included on this list. However, Nielsen data also fail to reflect any KSTV-TV audience in Ventura County which is its home county and the location of its transmitter. E. Other Considerations 27. The factors specified in Section 614(h) do not purport to be exclusive and thus other evidence may be considered that is helpful in defining the scope of the markets of the stations involved. One such additional factor involves whether local newspaper or other listings of station programming that have circulation in the cable communities include the programming of the stations in question. It is not contended by KSTV-TV that such program listings are included in program listings directed toward the cable community populations in question. In opposition, it is affirmatively stated that such listing are not included in the Los Angeles Times, the Los Angeles edition of TV Guide or the Orange County Register. F. Summary 28. With respect to the cable communities that are outside of the predicted Grade B service area of KSTV-TV, no significant evidence has been presented that suggests that KSTV-TV is in any sense local or that it is in the same market as these cable communities such that extension of its existing market would "better effectuate the purposes" of Section 614. None of the statutory factors have been met and such other evidence as is available tends to weigh against grant of the request. 29. With respect to the remaining communities, the issue is more difficult. First, as KSTV- TV itself indicates, the cable communities involved are "in the heart of the Los Angeles television market, not on the fringe." In the usual case this would weigh against rather than in favor of the petition. The mandatory carriage rules are based on a series of discrete markets. While the Commission has the authority under Section 614(h) to make changes with respect to particular stations and communities, where a station from one market is proposing to obtain mandatory carriage rights in the core of another market, an extra measure of caution is required to avoid changing the fundamental proposition that markets are discrete and non-overlapping. Here, however, as is reflected in earlier decisions relating to KSTV-TV, there is ambiguity as to which market KSTV-TV is properly assigned; Arbitron having assigned it to the Santa Barbara market and Nielsen having assigned it to the Los Angeles market. Moreover, there is another station transmitting from the same antenna site which has not joined in this request and which appears to accept Santa Barbara as its market. Although the rules at this time make use of the Arbitron-defined ADI markets, a transition to Nielsen-defined DMA markets is in process and the Commission has stated that: "information regarding DMAs could be useful in deciding individual [Section 614(h)] cases" and has invited petitioners to "include information regarding the DMA assignment" in market modification petitions. Thus, this concern with respect to service from one market into another's core, has less significance here than it might in other cases. 30. The second difficulty involved is related to the presence of the Santa Monica Mountains, Simi Hills and Santa Susana Mountains between Ventura and the cable communities and between KSTV- TV's transmitter and the cable communities. In a proceeding of this type, where an effort is being made to include additional communities within the market of a station, the burden is on the requesting party to provide evidence supporting the change. KSTV-TV has attempted to demonstrate local coverage through a prediction of its contour. The cable operators have generally sought to rebut this prediction of service with information as to actual service at their headends. Although the information provided is typically of poor quality, it cannot be entirely discounted. The Grade B service prediction process presumes an antenna 30 feet above ground level. The absence of any usable signal at the higher points where measurements were taken at cable system headends strongly suggests that reception may be difficult for individual viewers in the community. Moreover, the operator's data is largely unrebutted, with KSTV-TV stating only that it "has also undertaken preliminary measurement[s] and found that, at least as to the closer Los Angeles systems, the signal level is well above the requisite for carriage."(emphasis added). Thus, KSTV-TV has implicitly conceded that its signal level is below the requisite for carriage at least in some undisclosed number of the communities where it is seeking to demonstrate local coverage. The Commission has stated, in a somewhat different context, that Grade B contour coverage, in the absence of other determinative information, is an efficient tool to adjust market boundaries. The Commission stated, however, that it would use this tool only "where there is no clear proof that the contour fails to reflect actual coverage or where there is a terrain obstacle such as a mountain range or a significant body of water." 31. The existing state of the record in this proceeding is thus far from ideal. Taking all of the factors together and given its concession as to signal availability, it appears that KSTV-TV has justified a market modification only with respect to "the closer Los Angeles systems." It does not define this phrase, but we believe it may appropriately be defined for purposes of this decision as including only those communities within the predicted Grade A contour of the station. Although, given the mountainous terrain involved, there may also be reception problems even within the Grade A contour, a market modification with respect to the closer communities is justified based on geographic proximity as well technical service. The other factors relied on in the oppositions, in the circumstances herein, provide little insight into the appropriate shape of KSTV-TV's market. Nielsen reports show no audience for KSTV-TV in its home county so that the absence of ratings elsewhere in the Los Angeles market is not necessarily a reflection of a lack of technical service, a lack of programming service, or the lack of an economic market connection. Both the lack of historical carriage and the lack of audience must also be reviewed in light of the fact that KSTV-TV only recently commenced operation with much improved technical facilities. 32. In light of the poor state of the record in this proceeding and the importance of the issues involved, we would not object, notwithstanding the usual constraints associated with reconsideration petitions, to parties in petitions for reconsideration filing more complete and accurate information with respect to the question of where KSTV-TV's signal is technically available. ORDERING CLAUSES 33. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended (47 U.S.C. 534) and 76.59 of the Commission's Rules (47 C.F.R. 76.59) that the petition for special relief (CSR-5096-A), filed September 23, 1997, on behalf of Costa de Oro Television, Inc. IS GRANTED with respect to the communities of Agoura Hills, Calabasas, Canyon Country, East San Fernando Valley, Glendale, Hermosa Beach, Hidden Hills, Los Angeles (Eaglerock, Hollywood-Wilshire, Santa Monica, Sherman Oaks, South-central, West Hollywood, Western), Malibu, Redondo Beach, San Fernando, Santa Clarita, Sunland, and West San Fernando Valley (Canoga Park, Tarzana and Woodland Hills) and IS DENIED in all other respects. KSTV-TV 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. 34. 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