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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 the Matter of: ) ) Comcast Cablevision of Santa Maria, Inc. ) CSR-5293-A ) For Modification of the ADI Market of ) Station KJLA, Ventura, California ) MEMORANDUM OPINION AND ORDER Adopted: December 18, 1998 Released: December 22, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Comcast Cablevision of Santa Maria, Inc. ("Comcast"), filed the above-captioned petition seeking to modify the market of television station KJLA (Channel 57), Ventura, California. Specifically, Comcast requests that the Area of Dominant Influence (ADI) of KJLA be modified to exclude the communities located in the western portion of Santa Barbara County, California served by Comcast's cable systems (the "systems") for purposes of the cable television mandatory broadcast signal carriage rules. Costa de Oro Television, Inc., permitee of KJLA ("Costa") has filed an opposition to this petition to which Comcast has replied. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in its Implementation of the Cable Television Consumer Protection and Competition Act of l992, Broadcast Signal Issues ("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 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 in 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 Must Carry Order, 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 demon- strated 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. As for deletions of communities from a station's market, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 7. 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 ADI change request. MODIFICATION ARGUMENTS 8. The communities served by Comcast's systems are located in the western portion of Santa Barbara County, California, and are part of the Santa Barbara-Santa Maria-San Luis Obispo ADI. Ventura, California, KJLA's city of license, is also part of the same ADI and is, on average, 62 miles from the cable communities. 9. In support of its modification request, Comcast argues that KJLA should be excluded from carriage on its systems because the station does not satisfy any of the four statutory market modification factors. First, the station has a limited record of historic carriage. Comcast states that the station began operation in l990, but has been carried by the systems only since l997 because of the "artificial demands of must carry." Comcast contends that the Commission has rejected such a short period of time as representing historic carriage for modification purposes. In addition, Comcast states that the station has not been carried on its systems since May l998 because of KJLA's failure to provide an adequate off-air signal to the systems' headends. Secondly, Comcast maintains that KJLA does not provide local coverage for its system due to the following: a) Ventura, California, KJLA's city of license is 52 miles from the closest cable community, Santa Ynez, and 79 miles from the most distant cable community, Santa Maria; b) KJLA's Grade B contour does not cover any of the cable communities, and c) KJLA does not carry any programming providing "local coverage" of the system's communities. Third, Comcast asserts that its systems carry "a host of stations," licensed in and around Santa Barbara County, which provide Grade B contour coverage, actual off-air signals, and extensive coverage of local news and sporting events. In addition, Comcast states that the systems carry a local government access channel, which provides programming by and for the cable communities local governments. Finally, Comcast argues that since KJLA is unable to deliver a predicted Grade B or actual off-air signal to the cable communities, the station has no significant viewership in the communities. 10. In opposition, Costa states that KJLA was carried by Comcast's systems from early l994 until June l997, when the station was dropped from the microwave system which delivered the station's signal to Comcast's headends. In addition, Costa states that it has constructed a microwave system, completed in June l998, to deliver the station's signal to Comcast and other systems, and that it has also upgraded its translator in Santa Maria to ensure a good quality signal in that area. Costa argues that KJLA delivers live prime-time bilingual programming, as well as a mix of programming designed to meet the growing Hispanic population in the Los Angeles area, and that Comcast's carriage of the major network affiliates does not reach the same audience and cover the same issues as does KJLA. Costa argues that specialty stations such as KJLA cannot be expected to garner the same viewership as traditional networks, and that the fact that the station has some ratings indicates that there is an audience in the Santa Barbara market which the station is reaching. Costa argues that the Commission has ruled in favor of other station's must-carry rights where the cable communities were located farther from the stations than is the case here. Costa also emphasizes in its opposition that "by any rationale measure," KJLA serves the Los Angeles market, and that its 10 hours of locally produced programming focuses on the Hispanic Community in and around Los Angeles. Costa also states that it will be placed in the Los Angeles market as of January 1, 2000, based on the Nielsen Market Research ("Nielsen") designation of the market. 11. In reply, Comcast argues that rather than attempt to rebut its showing that KJLA overwhelmingly fails the four part statutory test for market modifications, Costa devotes half of its opposition to arguing for carriage in the Los Angeles ADI. Comcast contends that such arguments only serve to underscore the lack of local nexus between KJLA and the cable communities in question. Comcast argues that Costa cannot state that it provides Grade B coverage to any of the cable communities, or that it is not geographically remote from those communities. Comcast distinguishes the cases cited by Costa to establish its claim for carriage in the communities, and argues that the fact that KJLA does not provide Grade B coverage and is geographically distant from the cable communities strongly favors Comcast's request for modification. In addition, Comcast states that KJLA has failed to provide an adequate signal to Comcast's headends since May 1998, nor has it provided an adequate off-air signal, and argues that KJLA's failure to deliver such a signal reveals an inability to serve the cable communities. Comcast also argues that Costa fails to identify any programming specifically tailored to the specific cable communities, but rather states that its programming is aimed at the Hispanic community in and around Los Angeles, and not to the communities in question in the western and northern areas of the Santa Barbara-Santa Maria-San Luis Obispo ADI. Comcast contends that Costa's argument that it offers bilingual programming not offered by other stations carried on the cable systems is immaterial to this proceeding, and that the relevant factor is that KJLA does not provide any significant local service while other stations carried on the systems do provide extensive local programming. Comcast argues that although KJLA has been in operation for nine years, its viewership ratings in the cable communities are "nearly immeasurable," and that even though the Commission has previously granted specialty stations some degree of leniency of the significance of ratings, such a preference should not be extended to a station that expressly disclaims its intention to serve a particular market. DISCUSSION 12. We grant Comcast's modification request. Based on geography and other relevant information, we believe that the cable communities herein are sufficiently removed from KJLA that they ought not be deemed part of the station's market for mandatory carriage purposes. 13. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they service and which form their economic market." Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements. The market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that Comcast's deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. We do not believe that Comcast's actions reflect an intention to skirt its signal carriage responsibilities under the 1992 Cable Act and the Commission's Rules, nor do they evidence a pattern of discriminatory conduct against the station. 14. The task in this proceeding involves reflecting the statutory factors in our decision while at the same time recognizing the difficulties of applying these factors to stations of more specialized formats. A decision based strictly on the four statutory modification factors -- historical carriage, service, other stations' presence, and audience data -- would simply exclude Comcast's communities from KJLA's market. However, even taking into account the difficulties of applying these factors to stations with specialized formats, there is no supporting evidence demonstrating that Comcast's communities warrant inclusion. The fact that a station is of specialized appeal does not mean that its logical market area is without limits or that it should be exempt from the Section 614(h) market modification process. Given the difficulty of direct reliance on the statutory factors (which demonstrate only limited connections between the cable communities and KJLA), we focus here more heavily on basic geographic and technical features, such as mileage and Grade B contour, that provide the best available alternative evidence of the market boundaries of the station subject to deletion here. 15. KJLA has been in operation since l990, but lacks any significant measured audience (cable and non-cable) and has limited historic carriage in the cable communities that Comcast has requested be deleted. These communities are outside of KJLA's Grade B contour, and the communities served by Comcast's systems are from 52 to 79 miles from the station. While the programming offered by KJLA may be considered to be of general interest to the ADI as a whole, it cannot be considered to be relevant to the instant communities. It is also generally undisputed that the cable communities receive local news, sports, and public affairs broadcasts from other closer stations. 16. We also note that as of January 1, 2000, KJLA will be designated as part of the Los Angeles Designated Market Area (DMA), and will accordingly have must-carry rights in that market and not in its current ADI. In determining that Nielsen DMAs, rather than the Arbitron ADIs, will define future markets for must-carry purposes and market modification requests, in Definition of Markets for Purposes of the Cable Television Mandatory Television Signal Carriage Rules, the Commission stated: For the time-being, the Commission will rely on market modifications determined pursuant to Section 614(h) to refine market boundaries to account for changes in viewing patterns and market conditions. In this regard, we recognize that DMA market designations are one way to determine local stations and are mindful that information regarding DMAs could be useful in deciding individual cases. We believe that KJLA's future designation in the Los Angeles DMA is of probative rather than dispositive value in the instant matter. It does, however, weigh in favor of Comcast's request for modification, particularly where the station is not currently being carried. A contrary decision would most probably alter Comcast's carriage requirements only for the current ADI designation, thereby creating unnecessary burdens for the cable operator and confusion for subscribers. 17. Given the evidence as to the statutory factors, the lack of evidence concerning technical service to the communities in question, the lack of specific programming service to these communities, and KJLA's DMA designation in the Los Angeles market, we conclude that it is logical and consistent with the objective of Section 614 of the Communications Act to delete Comcast's systems from the KJLA market for mandatory carriage purposes. ORDERING CLAUSES 18. 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-5293-A) filed on behalf of Comcast Cablevision of Santa Maria, Inc. IS GRANTED. 19. 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