Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of:                | * | CSR-6173-A                   |
|                                  | * |                              |
| Time Warner Cable                | ) |                              |
|                                  | * |                              |
| Petition For Modification of the | * |                              |
| Television Market of Television  |   |                              |
| Station KHIZ (TV), Barstow,      | * |                              |
|                                  | * |                              |
| California                       | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: September 16, 2004** **Released: September 22, 2004**

By the Deputy Chief, Media Bureau:

# INTRODUCTION

1.  Time Warner Cable ("Time Warner") filed the above-captioned petition
    for special relief seeking to modify the Los Angeles, California
    designated market area ("DMA") with respect to television broadcast
    station KHIZ (Ch. 64), Barstow, California ("KHIZ"). KHIZ is
    licensed to Sunbelt Television, Inc. Specifically, Time Warner
    requested that certain communities in the Los Angeles DMA ("cable
    communities"),[^1] where it operates cable television systems, be
    excluded from the television market of KHIZ for the purposes of the
    cable television mandatory broadcast signal carriage rules. In the
    *Bureau Order*[^2] addressing Time Warner's petition for special
    relief, we granted the petition and excluded the cable communities
    from KHIZ's market. KHIZ subsequently filed a petition for
    reconsideration of the *Bureau Order,* which is now before us. An
    opposition to this petition was filed by Time Warner. For the
    reasons explained below, we deny KHIZ's petition for
    reconsideration.

# background

2.  Pursuant to Section 614 of the Communications Act[^3] and
    implementing rules adopted by the Commission in *Implementation of
    the Cable Television Consumer Protection and Competition Act of
    1992, Broadcast Signal Carriage Issues ("Must Carry Order")*,[^4]
    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
    "designated market area," or DMA, as defined by Nielsen Media
    Research.[^5] A DMA 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.[^6]

3.  Section 614 of the Act also directs the Commission to consider
    changes in market areas, and provides guidance regarding factors to
    take into consideration in reviewing requests to alter a station's
    market for must carry purposes. These factors were discussed in the
    *Bureau Order*.[^7] The *Bureau Order* also discussed how these
    factors applied to Time Warner's request to modify the Los Angeles
    DMA to exclude its cable systems in the cable communities from the
    television market of KHIZ for the purpose of the cable television
    mandatory broadcast signal carriage rules, and why we granted Time
    Warner's request.[^8]

# DISCUSSIOn

4.  KHIZ in its petition for reconsideration requests that the Media
    Bureau reverse its decision, and include the cable communities in
    its television market. KHIZ claims that the *Bureau Order* prevents
    it from competing fairly within its own market because the station
    is faced with paying Los Angeles DMA costs without the opportunity
    to earn Los Angeles DMA revenue.[^9] KHIZ also explains that KHIZ
    lack of past carriage in the cable communities should not be a
    factor because the must carry rules were intended to cure the
    traditional failure to carry small television stations.[^10]^0^ With
    regard to the carriage of KHIZ on cable systems in Palmdale and
    Acton, KHIZ claims that this indicates it should be granted must
    carry rights on other cable systems in the same DMA.[^11]^1^
    Further, KHIZ asserts that it is now carried on cable systems
    throughout the Los Angeles DMA and on numerous systems near Time
    Warner's cable communities.[^12]^2^ In addition to these cable
    systems, KHIZ states it is carried by the DirecTV and Dish Network
    satellite systems that serve the entire Los Angeles area.[^13]^3^
    KHIZ also repeats arguments contained in its pleadings that were
    addressed by the *Bureau Order*, namely, that it broadcast programs
    that provide local service in the cable communities such as Money
    Matters, and that the Bureau should take into consideration its
    future programming plans to address local issues.[^14]^4^

5.  Time Warner in its opposition states that KHIZ's petition for
    reconsideration should be denied by the Bureau because it only
    debates issues already resolved by the Bureau, and does not present
    new facts or indicate a material error or omission in the *Bureau
    Order*.[^15]^5^ With regard to KHIZ's claim that the *Bureau Order*
    prevents it from competing fairly within its market, Time Warner
    asserts that KHIZ did not cite any precedent, and that the
    Commission in resolving market modification cases does not take into
    consideration "the impact of a market modification on the subject
    station's competitive position in the market."[^16]^6^ Time Warner,
    furthermore, states that the *Bureau Order* properly distinguished
    between the carriage of KHIZ on cable systems in Palmdale and Acton
    ("Grade B coverage and geographic proximity to KHIZ") and the
    situation involving Time Warner's cable systems in the cable
    communities.[^17]^7^ Time Warner also questions KHIZ's claim that it
    is carried by cable systems throughout the Los Angeles DMA and on
    systems near the cable communities. For example, Time Warner
    explains that websites for the cable systems in Anaheim and Beverly
    Hills do not list KHIZ as a station carried on the cable systems.
    Further, Time Warner indicates that some of its cable systems are
    not close to cable systems carrying KHIZ, and that where the cable
    systems are close, this "does not offset KHIZ's lack of nexus to the
    Orange System communities as evidenced by the host of other factors
    recognized by the Media Bureau in the *Order*."[^18]^8^ Time Warner,
    moreover, claims that KHIZ's programs such as "Money Matters" are
    general interest programs and do not have "a distinct nexus between
    the originating television station and a particular cable
    community."[^19]^9^ Concerning KHIZ's assertion that the Bureau
    should consider its plans for future programs, Time Warner states
    "\[i\]n sole support of its position, Sunbelt relies upon a 1996
    decision in which the former Cable Bureau recognized a station's
    planned future programming in its analysis of the coverage and other
    local service factors. The holding is readily distinguishable,
    however, if for no other reason than the cable communities involved
    were located within the subject station's 'regular predicted service
    coverage area.'"[^20]^0^ Time Warner concludes that KHIZ does not
    contest the Bureau's finding that it lacks "off-air viewing" in the
    cable communities, and instead relies on potential cable and
    satellite viewership to support its claim that it now serves the Los
    Angeles DMA without providing any "specific viewership
    data."[^21]^1^

6.  We deny KHIZ's petition for reconsideration. In doing so, we uphold
    the *Bureau Order* granting Time Warner's request to modify the Los
    Angeles, California DMA. We find the *Bureau Order* was correct in
    concluding that KHIZ lacked historic cable carriage, coverage by its
    television signal and local service, and off-air viewing in the
    cable communities.[^22]^2^ The *Bureau Order* explained that:

    \[t\]he Los Angeles DMA in terms of territory and population is vast
    and varied. At the western edge, there is the Pacific Ocean and
    large population centers, including the City of Los Angeles, in the
    central area of the DMA there are mountains, and on the eastern
    edge, there is desert extending to the Arizona border and sparse
    population. The Commission has explained that where a DMA covers a
    large geographic area, the mandatory broadcast signal carriage rules
    do not transform a station serving a portion of the DMA's market and
    service area into a regional "super station" that must be carried by
    cable systems throughout the DMA.[^23]^3^

    The conclusions in the *Bureau Order* are consistent with Section
    614 of the Communications Act, the Commission's implementing rules,
    and the interpretation of these provisions by the United States
    Court of Appeals.[^24]^4^

7.  On reconsideration, KHIZ argues that we should take into
    consideration that KHIZ is carried by satellite television systems
    that serve the entire Los Angeles DMA. This, however, is simply
    indicative of the nature of satellite television service because
    satellites provide service to an entire DMA. Satellite carriage does
    not necessarily reflect local interest in a station within various
    or different regions of a market. KHIZ also argued that the Bureau
    should take into consideration its plans to provide programs in the
    future that address local issues in the cable communities, and cites
    a Bureau Order in support of its position. KHIZ is correct that in
    *Time Warner Cable v. Group H Broadcasting Corporation* the Bureau
    in 1995 stated "WYED has sufficiently demonstrated that its current
    and planned programming is in fact designed to serve the needs and
    interests of the communities in question."[^25]^5^ We believe that
    the relevant reference was to WYED's "current" programming and that
    the reference to "planned" programming was dictum, and not essential
    to the Bureau's decision. More importantly, the Commission in 2001
    stated "Section 614(h)(1)(C)(II) \[of the Communications Act\]
    requires that market modification decisions be made on the basis of
    whether a television station provides local service to a community
    and not on promises of future programming."[^26]^6^ Because this is
    a recent holding by the Commission, as opposed to a Bureau decision,
    it is entitled to greater precedential value.

8.  Finally, with regard to KHIZ's assertion that it is carried on cable
    systems throughout the Los Angeles DMA, including cable systems near
    Time Warner's cable communities, Time Warner responds, in part, that
    the websites for two of the cable systems listed by KHIZ do not
    reflect that their cable systems carry KHIZ. We recently checked the
    websites for these cable systems in Anaheim and Beverly Hills, and
    while they may not have listed KHIZ as a carried station when Time
    Warner filed its opposition to KHIZ's reconsideration petition, the
    websites currently list KHIZ. We note that most of the cable systems
    indicated by KHIZ as carrying its programming and located near Time
    Warner are in close proximity to only one of the four Time Warner
    cable systems involved in this proceeding, namely, the Orange County
    system. While the carriage of KHIZ on cable systems near Time
    Warner's Orange County system is a factor in favor of the station's
    petition for reconsideration, we believe that other factors
    discussed above and in the *Bureau Order* out weigh this, and are
    controlling.

# IV. ORDERING CLAUSE {#iv.-ordering-clause .unnumbered}

9\. Accordingly, **IT IS ORDERED,** that the petition for
reconsideration filed by television broadcast station KHIZ (Ch. 64),
Barstow, California **IS DENIED**.

10\. This action is taken pursuant to authority delegated by Section
0.283 of the Commission's rules.[^27]^7^

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson

Deputy Chief

Media Bureau

[^1]: ^?^Time Warner listed the following communities which it sought to
    exclude from the television market of station KHIZ: San Fernando,
    Santa Clarita, unincorporated areas of Los Angeles County, Stevenson
    Ranch, and discrete areas of the City of Los Angeles known as Canoga
    Park, Chatsworth, Encino, Granada Hills, Northridge, Reseda,
    Sepulveda, Sherman Oaks, Tarzana, Van Nuys, West Hills and Woodland
    Hills (the "Chatsworth System"); Gardena, Hawthorne, El Segundo,
    Lawndale, Torrance, and North Torrance (the "Gardena System"); South
    Pasadena and San Marino (the "South Pasadena System"); and Orange,
    Orange County, Garden Grove, Los Alamitos, Huntington Beach,
    Westminster, Stanton, Fountain Valley, Rossmoor, Midway City, and
    Cypress (the "Orange System"). Petition For Modification at 2.

[^2]: ^2^ ^2^*Time Warner Cable v. KHIZ (TV), Barstow, California*, 18
    FCC Rcd 20536 (2003) ("*Bureau Order*").

[^3]: ^3^ ^3^47 U.S.C. §534.

[^4]: ^4^ ^4^8 FCC Rcd 2965, 2976-7 (1993).

[^5]: ^5^ ^5^Section 614(h)(1)(C) of the Communications Act, as amended
    by the Telecommunications Act of 1996, provides that a station's
    market shall be determined by the Commission by regulation or order
    using, where available, commercial publications which delineate
    television markets based on viewing patterns. *See* 47 U.S.C.
    §534(h)(1)(C). Section 76.55(e) requires that a commercial broadcast
    television station's market be defined by Nielsen Media Research's
    DMAs. 47 C.F.R. §76.55(e); *see Definition of Markets for Purposes
    of the Cable Television Broadcast Signal Carriage Rules,*14 FCC Rcd
    8366 (1999)(*"Modification Final Report and Order"*).

[^6]: ^6^ ^6^For a more complete description of how counties are
    allocated, *see* Nielsen Media Research's *Nielsen Station Index:
    Methodology Techniques and Data Interpretation.*

[^7]: ^7^ ^7^18 FCC Rcd at 20537-9.

[^8]: ^8^ ^8^*Id.* at 20541-3.

[^9]: ^9^ ^9^Petition for Reconsideration at 2.

[^10]: ^1^ ^10^*Id.* at 4.

[^11]: ^1^ ^11^*Id.* at 4-5.

[^12]: ^1^ ^12^According to KHIZ, the communities where it is carried on
    cable systems include Diamond Bar, Anaheim and surrounding Orange
    County, Buena Park, Santa Ana, Seal Beach, Santa Monica, Beverly
    Hills, Ventura, Fulleton, and Newport Beach. *Id.* at 2, 5-6, and
    attached affidavit and map.

[^13]: ^1^ ^13^*Id.* at 8.

[^14]: ^1^ ^14^*Id.* at 6-7.

[^15]: ^1^ ^15^*Opposition* at 2.

[^16]: ^1^ ^16^*Id*. at 3-4.

[^17]: ^1^ ^17^*Id.* at 4.

[^18]: ^1^ ^18^*Id.* at 5-6.

[^19]: ^1^ ^19^*Id.* at 6.

[^20]: ^2^ ^20^*Id.* at 6-7 (footnotes omitted).

[^21]: ^2^ ^21^*Id.* at 7.

[^22]: ^2^ ^22^18 FCC Rcd at 20541-3.

[^23]: ^2^ ^23^*Id.* at 20542, citing *Frontier, A Citizens
    Communications Company,* 18 FCC Rcd 9589, 9594 (2003).

[^24]: ^2^ ^24^*WLNY-TV, Inc. et al. v. FCC*, 163 F. 3d 137 (2^nd^ Cir.
    1998).

[^25]: ^2^ ^25^10 FCC Rcd 962, 964 (C. S. B. 1995).

[^26]: ^2^ ^26^*Cablevision of Cleveland, L.P. and V Cable, Inc, d/b/a
    Cablevision of Ohio*, 16 FCC Rcd 15575, 15577 (2001). In this market
    modification case, the television station raised an argument similar
    to an argument made by KHIZ, namely, that it was charged higher
    programming prices because it is located in a major DMA. The
    Commission in its decision responded "When viewed against the
    overall relevant factual circumstances, we believe the *Bureau
    Order* properly gave minimal weight to this evidence in determining
    whether WGGN-TV carries programming of specific local interest or
    import for cable viewers in the Communities at issue." *Id.*

[^27]: ^2^ ^27^47 C.F.R. §0.283.