******************************************************** 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: ) ) Complaint of Pappas Telecasting of Concord, Inc.) CSR-4950-M against TCI Cablevision of California, Inc.) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: July 18, 1997 Released: July 23, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Pappas Telecasting of Concord, Inc ("Pappas"), licensee of Television Broadcast Station KFWU, Fort Bragg, California, has filed a must-carry complaint requesting that the Commission order TCI Cablevision of California, Inc. ("TCI of California"), operator of cable television systems serving the communities listed below to commence carriage of full power commercial television station KFWU. TCI of California filed an opposition to the complaint, and Pappas filed a reply. BACK GROUND 2. Pursuant to Section 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. THE PLEADINGS 3. Pappas states that TCI of California denied its request for carriage on the grounds that KFWU is not in the San Francisco ADI. Pappas says TCI of California took this position because Arbitron's 1991-1992 Television Market Guide lists KFWU as a station in the Chico-Redding ADI and not in the San Francisco ADI. Pappas asserts that denial of carriage for that reason is erroneous, since Arbitron included KFWU in the list of Chico-Redding stations only because the station was a satellite of Station KRCR, Redding, California when the 1991-1992 Television Market Guide was published. Pappas claims Arbitron reported KFWU's ratings in 1991-1992 Television Market Guide in association with its parent station as Chico/Redding market information, and argues that such market information reporting is irrelevant to the current must carry rights of full power station KFWU. 4. Pappas claims KFWU is in the San Francisco ADI because the 1991-1992 Television Market Guide indirectly identifies KFWU as a San Francisco ADI station. Pappas states that KFWU's city of license, Fort Bragg, is identified in the 1991-1992 Television Market Guide as a city of license within the San Francisco ADI. Pappas contends that this listing of KFWU's city of license within the San Francisco ADI is controlling and places KFWU in the San Francisco ADI. 5. Pappas argues that TCI of California erroneously based its denial of carriage of KFWU on the "home county" exception set forth in Section 76.55(e)(4) of the rules and on Costa De Oro Television, Inc., 10 FCC Rcd 9468 (CSB 1995) ("Costa De Oro"). Pappas distinguishes the present case from Costa De Oro, pointing out that the station involved in Costa De Oro placed a Grade B signal contour over the community located in the other ADI to which the station was assigned in the 1991-1992 Television Market Guide. Pappas notes that KFWU does not place a Grade B signal contour over either Chico or Redding. Pappas also argues that Costa De Oro was wrongly decided. 6. Pappas also rejects TCI of California's suggestion that the "home county" exception demonstrates Commission intent that a station listed in an out-of-county ADI have that out-of-ADI market and the home county as its ADI market. Pappas argues that the exception has no application here, because Arbitron's listing of KFWU with stations in the Chico/Redding ADI stemmed solely from KFWU's former role as a satellite of station KRCR-TV, which is located in the Chico-Redding ADI, and not because Arbitron considered KFWU to be in that ADI. According to Pappas, the Commission intended for the exception to apply only to stand alone stations that are separately programmed and not to stations listed out-of-market because of their satellite status. 7. Pappas says its complaint is largely about KFWU's statutorily mandated right to be carried on its regular position on Channel 8 on all of these cable systems. Pappas notes that TCI of California is currently carrying KFWU on cable systems serving eighteen of the thirty two identified communities, on various channel positions as Station KTNC, Concord, California, which retransmits KFWU's signal. Pappas argues that since Station KTNC is retransmitting the signal of KFWU, KFWU as the parent station is entitled to its regular channel position on all of TCI of California's systems, an entitlement which is being ignored by TCI of California. Pappas contends it is undisputed that KFWU is a full power commercial television station or that the station places a good quality signal over the headends of TCI of California's cable systems by means of retransmission of KFWU's signal by KTNC. Pappas claims that KFWU and the TCI of California's cable systems are all located in the San Francisco ADI, and KFWU is therefore entitled to carriage on those cable systems on its assigned Channel 8. Pappas argues that the inclusion of statutory and regulatory provisions for complaints based solely on failure of cable operators to meet their channel position obligations demonstrates that its concern here about channel position is not a trivial matter. 8. TCI of California in opposition disputes Pappas' assertion that KFWU is in the San Francisco ADI, asserting in essence that the listing in the 1991-1992 Television Market Guide of KFWU in the Chico-Redding ADI is controlling. TCI of California argues that the Commission, in Costa De Oro, confirmed that a station may be physically located in one ADI but assigned to another, and that a station's market is determined for must carry purposes by the ADI to which it is assigned in the 1991-1992 Television Market Guide. TCI of California argues that Pappas failed to distinguish Costa De Oro, noting that KFWU, in addition to not placing a Grade B contour over either Redding or Chico, also does not place a Grade B contour over any of the named communities in the San Francisco ADI. It also argues that Pappas failed to demonstrate that Costa De Oro was wrongly decided. 9. TCI of California also disputes as flawed Pappas' contention that the "home county" exception has no application to this case. It contends that Pappas failed to prove that KFWU is listed out- of-market, i.e., in the Chico-Redding ADI, only because of its former satellite status. TCI of California argues that nothing in the Commission's rules excludes satellite stations from the exception. It argues further that the 1991-1992 Television Market Guide's listing of KFWU in the Chico-Redding ADI instead of the San Francisco ADI is not changed by the fact that Pappas now claims KFWU is located in the San Francisco ADI. If the failure of KFWU's Grade B contour to reach Chico or Redding establishes that KFWU is not in the Chico-Redding ADI as Pappas contends, then, TCI of California asserts, KFWU likewise cannot be considered to be in the San Francisco ADI, because KFWU's Grade B contour falls even further from the San Francisco Bay area. TCI of California also contends that must carry rights in this case belong to KTNC, the station retransmitting KFWU's signal, and not to KFWU, and that KFWU cannot properly claim channel position rights on its cable systems that presently carry KTNC. 10. In reply, Pappas reasserts the arguments made in the complaint. It also provided statements of two former Arbitron executives. Pappas asserts that the statements of these former Arbitron executives establish that, under the concept of ADIs as implemented in the 1991-1992 Television Market Guide, ADIs consist of geographic areas (cities and counties) and not stations. Based on the geographic methodology of the ADI concept, these former Arbitron executives stated that Arbitron considered KFWU to be assigned to the San Francisco ADI. Pappas further asserts the former Arbitron executives' statements confirm also that, although the audience data of KFWU as a satellite of KRCR-TV was reported in conjunction with KRCR-TV, that reporting process was considered irrelevant to the question of which ADI Arbitron considered KFWU to be in. In this connection, Pappas emphasizes that KFWU's city of license, Fort Bragg, is shown in the San Francisco ADI. DISCUSSION AND ANALYSIS 11. KFWU is a full power commercial television broadcast station licensed to Fort Bragg, California, which is located in Mendocino County, California. Mendocino County is located in the far northern portion of the San Francisco ADI, and adjacent to the Chico-Redding ADI. Despite being physically located in the San Francisco ADI, KFWU is listed in the 1991-1992 Television Market Guide as a station assigned to the Chico-Redding ADI. Pursuant to 47 U.S.C.  534, a commercial television broadcast station is entitled to assert mandatory carriage rights on cable systems located within the station's market. As noted earlier, Section 76.55(e)(1) of the Commission's Rules defines a commercial television station's market as its ADI, and the ADIs to be used for purposes of implementing the mandatory carriage rules are those published in Arbitron's 1991-1992 Television Market Guide. Since the 1991-1992 Television Market Guide lists KFWU as a station in the Chico-Redding ADI, we find that KFWU is in the Chico-Redding ADI for must carry purposes. As such, KFWU is not a "local commercial television station" with respect to the cable systems located in the San Francisco ADI at issue in this proceeding within the meaning of 47 U.S.C.  534(h)(1)(A). Therefore, KFWU is not entitled to carriage on TCI of California's cable systems serving the identified communities. 12. The circumstances of this case are similar to that addressed in Costa De Oro. There, must carry rights on cable systems located in the Los Angeles ADI were denied to KSTV-TV, located in Ventura County, California, although Ventura County is in the Los Angeles ADI, because the 1991-1992 Television Market Guide assigned the station to the adjacent Santa Barbara-Santa Maria-San Luis Obispo ADI. This case also parallels the case of KNTV, San Jose, noted in the Must Carry Order, where the 1991-1992 Television Market Guide assigned KNTV to the Salinas-Monterrey ADI, although KNTV's home county of Santa Clara is physically within the geographic boundaries of the San Francisco ADI. Our review of the 1991-1992 Television Market Guide shows that Arbitron assigned KFWU to the Chico- Redding ADI in the same fashion that KSTV-TV was assigned to the Santa Barbara-Santa Maria-San Luis Obispo ADI discussed in Costa De Oro and in the same fashion that KNTV was assigned to the Salinas- Monterrey ADI discussed in the Must Carry Order. Because we resolve this case based on the precedent cited, we need not reach other issues raised by the parties. 13. As we stated in Costa De Oro, parties are entitled to rely on the 1991-1992 Television Market Guide for determining a station's market for signal carriage purposes. Section 614(h) of the Communications Act contains a specific mechanism for revising Arbitron assignments where the propriety of a station's television market is called into question. Because a specific mechanism for revising market assignments are available, it is inappropriate to address here the request made in the alternative by Pappas for waiver of Section 76.55(c) of the rules to permit KFWU to obtain carriage rights on TCI of California's cable systems at issue. We note in this connection that Pappas has not presented with its waiver request the kinds of information that usually accompanies a petition for special relief seeking to invoke the specific mechanisms for revising market assignments. We do not address here whether such a revision of KFWU's market would be appropriate. ORDERING CLAUSES 14. For the foregoing reasons, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C. 534), that the complaint of Pappas Telecasting of Concord, Inc. in File No. CSR-4950-M IS DENIED. 15. This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau