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Complaint of Costa De Oro Television, Inc. against Copley/ Colony Cablevision; Request for Signal Carriage

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Released: January 19, 1996




Before
the

FEDERAL COMMUNICATIONS COMMISSION



Washington, DC 20554



DA 95-2469


In re:





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)







)
Complaint of Costa De Oro Television, Inc. ) CSR-4605-M
against Copley/Colony Cablevision

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)







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Request for Signal Carriage


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MEMORANDUM OPINION AND ORDER



Adopted: December 12, 1995 Released: January 19, 1996

By the Deputy Chief, Cable Services Bureau:

INTRODUCTION


1. Costa De Oro Television, Inc., permittee of Station KSTV (Channel 57), Ventura,
California, has filed a "Complaint," along with a later supplement and a motion for leave to file
it, pursuant to §614(d) of the Communications Act of 1934, as amended, and §§76.7 and 76.61
of the Commission's Rules, seeking carriage of its signal by Copley/Colony Cablevision of
Cypress, Inc., Copley/Colony Cablevision of Los Angeles County, Inc., and Copley/Colony
Harbor Cablevision, Inc. (collectively, "CCC"), operator of cable television systems located in
Los Angeles County, California. CCC has filed an opposition to this "Complaint," after which
KSTV filed a reply to it, along with a second supplement and a motion for leave to file it.1

PARTIES'

ARGUMENTS



2. According to KSTV, because its community of license, Ventura, California, is in the
Los Angeles, California "area of dominant influence" (or "ADI"), it is entitled to mandatory
carriage on CCC's systems, pursuant to §76.56(b) of the Commission's Rules. In support of this

1 Recognizing that Commission rules do not contemplate the filing of supplements, KSTV asks
the Commission to accept them, because they will afford a more complete record upon which to
base a decision, and because they address issues which the station could not have done previously.



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claim, KSTV submits letters from Arbitron which it says confirm its belief that it was included in
the Los Angeles ADI, when the 1991-1992 Television ADI Market Guide was published,
although the letters also mention that KSTV chose to be included in the Santa Barbara-Santa
Maria-San Luis Obispo ADI for "reporting purposes." KSTV denies that it ever made such a
choice and states that CCC's systems have between 46 and 60 activated channels, and that they
are required to devote up to one-third of these channels to the transmission of local commercial
broadcast stations, pursuant to §76.56(b)(2), which they have not yet done. Initially, KSTV said
that it was a Spanish language station, and that it advised CCC that it planned to seek mandatory
carriage by letter dated December 6, 1994. Thereafter, CCC informed KSTV that it would
commence carriage of the station October 3, 1995. However, by letter dated September 21,
1995, KSTV was informed that CCC would not carry it, so the station filed this complaint within
sixty days, pursuant to §76.7(c)(4)(iii) of the Commission's Rules. The station adds that it has
already incurred $12,000.00 in expenses to improve its signal, including modifying the zoning
and installing equipment at CCC's headend and arranging with Pacific Bell Fiber Optics to install
a fiber optic link between CCC's headend and KSTV's transmitter. In its supplement, KSTV
states that economic circumstances forced it to switch from an independent Spanish language
format to an independent English language format as of November 1, 1995, but that if it is
granted mandatory carriage on cable systems in the Los Angeles area, it should be able to reach
enough homes to enable it to revert to Spanish programming.2


3. CCC also notes that KSTV no longer has a Spanish format and contends that there is
no inconsistency between the station's physical location in Ventura County, which is in the Los
Angeles, California ADI, and its assignment for other purposes to the Santa Barbara-Santa
Maria-San Luis Obispo, California ADI. Citing the Commission's prior decision concerning
this very issue in Complaints of Costa De Oro Television, Inc.,3 CCC adds that this "Complaint"
merely constitutes an abuse of Commission processes.


4.. KSTV argues in reply that it did not abuse Commission processes since it had to
preserve its carriage rights in the event that it eventually prevails in another case that is presently
on review with the Commission.4 KSTV adds that it ". . . has never chosen to serve the Santa
Barbara ADI/DMA. It has always chosen to serve the Los Angeles ADI/DMA and its large
Spanish speaking market." According to KSTV, Arbitron can find no records in its files that
KSTV ever requested being assigned to the Santa Barbara ADI,5 and therefore, any assignment

2 With its supplement, KSTV also submitted eight letters deploring its format change, including
several from local educators, such as the Instructional Dean of Ventura College, Dr. Jaime Casillas.
3 10 FCC Rcd 9468, 9472 (1995).
4 Ibid.
5 In support of this assertion, KSTV submits a "Declaration" signed by Arbitron's Manager of
Radio Database Quality, James Alvey, that the company has not retained any of the files sought by



2


to that ADI by Arbitron was errorneous and cannot justify any Commission action on that basis.


DISCUSSION


5. Initially, we note that we will accept KSTV's supplements for the reasons given by the
station. However, §76.55(e) of the Commission's Rules clearly specifies that the market of a
commercial television broadcast station, such as KSTV, is the ADI assigned by Arbitron's 1991-
1992 Television ADI Market Guide, whether or not this is the same market that the station itself
would choose if asked, and a commercial station is only entitled to request mandatory carriage
on any cable system operating either in its assigned ADI or in its home county, pursuant to
§§76.56(b) and 76.55(e)(3) of the Commission's Rules. As the Commission explained when it
adopted these rules: ". . . ADI designations will be set for a three-year period designed to
coincide with the three-year election time frame for the must-carry/retransmission consent
election. We believe that this procedure will allow us to take into account changing markets
while at the same time providing stability for the affected parties."6 We have also indicated
before that: ". . . parties are entitled to rely on the 1991-1992 Television ADI Market Guide for
determining a station's television market for signal carriage purposes."7 KSTV is located for
must-carry purposes in the Santa Barbara-Santa Maria-San Luis Obispo, California ADI, and it
has carriage rights in that ADI, as well as in its home county, Ventura, California.8 Therefore,
KSTV is not entitled to mandatory carriage by CCC's systems in Los Angeles, California,
pursuant either to §76.55(a)(3) or to §76.56(b) of the Rules.9

ORDERING

CLAUSES




6. Accordingly, IT IS ORDERED, That the "Complaint" (CSR-4605-M) filed October
16, 1995, by Costa De Oro Television, Inc., licensee of Station KSTV (Channel 57), Ventura,
California, IS DISMISSED in accordance with §614(d)(3) of the Communications Act of 1934,
as amended (47 U. S. C. §534) and 47 CFR §76.61(b) (2).

KSTV ". . . due to the fact that Arbitron shut down its television sevice as of October of 1993 . . . ."
6 See, Report and Order in MM Dockets No. 92-259, 90-4, and 92-295, 8 FCC Rcd 2965, 2975
(1993).
7 We note that Arbitron assigned KSTV to the same ADI in its 1992-1993 Television ADI Market
Guide
as it did in the 1991-1992 Guide.
8 In situations such as this where a station's home county is located outside its assigned ADI, the
Commission has specifically recognized the station's carriage rights in both places. Report and
Order,
8 FCC Rcd at 2975.
9 See, Complaints of Costa De Oro Television, Inc., supra, recon. pending.



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7. 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







4

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