**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of:                | * | CSR-6117-A                   |
|                                  | * |                              |
| Frontier, A Citizens             | ) |                              |
| Communications Company           | * |                              |
|                                  | * |                              |
| Petition for Reconsideration     |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

ORDER ON RECONSIDERATION

**Adopted: August 9, 2004** **Released: August 12, 2004**

By the Deputy Chief, Media Bureau:

# introduction

1.  Rancho Palos Verdes Broadcasters, Inc., licensee of television
    broadcast station KXLA (Ch. 44), Rancho Palos Verdes, California
    ("KXLA"), has requested reconsideration of the Media Bureau's
    decision granting the market modification request of Frontier, A
    Citiziens Communication Company ("Frontier") to exclude KXLA from
    its cable system serving Needles, California.[^1] An opposition to
    this petition was filed on behalf of Frontier to which KXLA replied.

# background

2.  In its request for modification, Frontier sought to exclude the
    community of Needles from KXLA's market. Both Frontier's cable
    system and KXLA's city of license are considered to be part of the
    Los Angeles, California designated market area ("DMA"). The Bureau
    granted Frontier's request, finding that Frontier adequately met the
    four statutory market modification factors. Based on the information
    provided by Frontier, KXLA was found to be geographically distant,
    with no history of carriage, no Grade B contour, no locally-focused
    programming, and no viewership in the subject community.

# discussion

3.  In support of its request, KXLA argues that Bureau misapplied the
    market modification factors by giving priority to distance, terrain
    and coverage at the expense of local programming and population
    considerations. KXLA maintains that the *Bureau Order* failed to
    give adequate weight to the local service benefits to
    Asian-Americans in Needles, and throughout the Los Angeles market,
    provided by KXLA's unique programming.[^2] KXLA states that the
    *Bureau Order* relied instead on the coverage component as
    dispositive; an outdated approach to localism that fails to account
    for the growing multicultural population in southern California.[^3]
    While the *Bureau Order* properly recognized that KXLA's status as a
    new specialty station minimized its lack of historical carriage and
    viewership, KXLA argues that it failed to acknowledge the
    significance of the locally-focused programming that it currently
    offers.[^4] KXLA states that it offers a variety of Asian-language
    programming tailored to Asian-American residents in the Los Angeles
    market, including prime-time news broadcasts.[^5] Given the value of
    this programming, KXLA argues that the instant proceeding presents a
    situation in which the Commission should look to factors beyond the
    technical Grade B contour requirement in considering coverage and
    local service.[^6] Indeed, KXLA points out that the Commission has
    stated that although "as a general matter Grade B coverage
    demonstrates service to cable communities and serves as a measure of
    a station's natural economic market, it is not an exclusive
    test."[^7] KXLA maintains that in order to effectively promote the
    principles of localism underpinning the must carry rules, the
    Commission must not treat the signal strength contour as outcome
    determinative.[^8]

4.  KXLA argues further that emphasis on narrow geographic
    considerations is especially inappropriate where the Asian-American
    communities that serve as KXLA's audience form communities that
    cross city and county lines and transform the entire Los Angeles
    market into groups of interrelated markets.[^9] KXLA contends that
    the decision in *Fouce Amusement Enterprises, Inc.* supports this
    broader, more practical definition.[^10] KXLA also maintains that
    the Bureau's decision in *Comcast Cablevision of Danbury, Inc.,*
    where the station's lack of local programming was not treated as
    outcome determinative, should have been applied to the situation
    here.[^11] KXLA argues that its programming addresses the needs and
    interests of Korean, Vietnamese, and Japanese speaking residents in
    southern California, including Needles and that these minority
    communities are presently underserved by Frontier's cable
    system.[^12]

5.  In opposition, Frontier states that KXLA, a station whose city of
    license is located over 228 miles from Needles, is precisely the
    type of non-local station which prompted Congress to adopt the
    market modification procedures contained in Section 614(h)(1)(C) of
    the Communications Act.[^13] Although KXLA argues that the *Bureau
    Order* gave priority to distance, terrain and coverage at the
    expense of local programming, Frontier points out that the Bureau is
    not required to weigh each market modification factor equally.[^14]
    In any event, Frontier states, KXLA provided no evidence that such a
    premise was correct, particularly in the face of the lack of local
    program offerings provided by KXLA that were specifically targeted
    to Needles and the abundance of local programming received from more
    local stations currently carried by Frontier.[^15] Frontier also
    notes that in *Time Warner Entertainment/Advance Newhouse
    Partnership d/b/a Time Warner Cable* the Bureau recently ruled that
    KXLA was too remote from a much closer cable system located in the
    community of Barstow and that it did not provide meaningful or
    sustained local coverage the community.[^16] Frontier argues that
    KXLA offers no reason here to depart from the precedent set in *Time
    Warner*, especially as Needles is even farther from Rancho Palos
    Verdes than Barstow.

6.  Frontier argues further that although KXLA consistently maintains
    that the *Bureau Order* was incorrect in its holding, at no time
    does KXLA describe specifically how it serves the community of
    Needles.[^17] KXLA relies instead on sweeping statements regarding
    its allegedly "local" service to the entire vast Los Angeles DMA or
    all of San Bernardino County without once demonstrating that it
    addresses any specific local issues involving Needles which is
    located at the other end of the Los Angeles DMA and San Bernardino
    County from KXLA.[^18] Moreover, Frontier asserts that KXLA's
    contention that the *Bureau Order* relied exclusively on Grade B
    coverage, distance and geography in making its determination is
    misplaced. Frontier states that it provided demonstrations pursuant
    to all of the market modification factors designated by Congress, as
    well as additional information, that KXLA could not be considered
    "local" to Needles.[^19] More importantly, Frontier states, the
    *Bureau Order* noted the importance of a number of factors in its
    decision -- carriage history, distance, Grade B coverage, lack of
    locally-targeted programming, local service by other stations, lack
    of viewership -- and these factors represent a sizable portion of
    the Bureau's rationale in making its decision.[^20] Notwithstanding
    this, Frontier argues that Grade B coverage, distance and geographic
    barriers are crucial factors in determining whether or not to modify
    a station's DMA. Indeed, they are among the factors established by
    Congress in considering market modification petitions.[^21] Frontier
    points out that the legislative history of the 1992 Cable Act
    "reflect a recognition that the Commission may conclude that a
    community within a station's \[DMA\] may be so far removed from the
    station that it cannot be deemed part of the station's market."[^22]
    Following this congressional directive, Frontier states that the
    Commission has focused on these factors in rulemakings and in
    hundreds of market modification decisions.[^23]

7.  In reply, KXLA argues that Frontier fails to counter its arguments
    that the market modification decision should be reversed. While KXLA
    states that it does not take issue with the Bureau's discretion to
    tailor its market modification analysis to the specific facts of
    individual proceedings, it does contend that, in this instance, it
    abused its discretion by giving short shrift to KXLA's local
    programming and falling back on distance and coverage to decide the
    instant proceeding.[^24] Further, while Frontier argues that the
    *Bureau Order* properly encompassed all of the statutory factors,
    KXLA states that such argument fails to recognize that the first and
    fourth statutory factors carried little weight due to KXLA's status
    as a specialty station.[^25] The only important factors left,
    therefore, were coverage and local service and carriage of other
    local stations. KXLA does not agree with Frontier that the Bureau
    acted reasonably in basing its decision on just these factors.

8.  We agree with the arguments raised by Frontier and will deny KXLA's
    petition for reconsideration. The Commission has stated repeatedly
    that the "fact that a station is new or 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."[^26] In order to make a fair determination, we have to
    look at a combination of factors and no one factor has more
    relevance than another. We note that the Commission has recognized
    that specialty stations, such as KXLA, often fail to meet the
    historic carriage factor and often have no appreciable audience
    shares due to the nature of their programming. In analyzing market
    modification requests involving specialty stations, therefore, we
    give little weight to these factors and focus on the other factors.
    However, while to a certain extent they may not be controlling,
    taken in conjunction with a totality of factors they must be taken
    into account.

9.  We also reject KXLA's argument suggesting that regardless of the
    Section 614(h) process, it should in this instance essentially be
    guaranteed the right to carriage throughout the Los Angeles DMA
    because of its programming. The statute specifically provides that
    the Commission may, where appropriate, exclude communities from a
    station's DMA.[^27] Moreover, the must carry rules, as written, are
    content neutral. The type of programming that a station carries,
    therefore, does not influence whether a station is entitled to
    carriage under the rules. The legislative history notes that when
    making its market determination, the Commission may conclude that a
    community within a station's DMA may be "so far removed" from the
    station that it cannot be deemed to be part of the station's
    market.[^28] The Bureau correctly determined that such was the case
    in this proceeding. Further, we note that KXLA's reliance on *Fouce
    Amusement* and *Comcast Cablevision* are misplaced. In both
    instances, the stations involved, while admittedly falling short in
    meeting the local programming factor, were geographically close to
    the communities at issue providing either Grade A or Grade B
    coverage. These factors were a strong support in demonstrating the
    stations' service to the communities.

10. Finally, with respect to the local programming evidence presented by
    KXLA, we cannot conclude that a station must be considered "local,"
    as Congress intended that term to mean in Section 614 of the
    Communications Act, solely by airing programming that is not
    specifically associated with the community in question, but more
    general in nature.[^29] The programming that KXLA cites in support
    of local service appears in large part to be general interest
    programming, rather than programming focused on the community at
    issue. KXLA itself has stated that "it offers a variety of
    Asian-language programming tailored to Asian-Americans residing in
    the Los Angeles market."[^30] Indeed, the three television programs
    KXLA references "provide native language programming to the
    Korean-American and Vietnamese-American communities in San
    Bernardino, Riverside and Orange Counties."[^31] KXLA has not
    provided any examples of programming that specifically focuses on
    the community of Needles.[^32]

# ordering clause

11. Accordingly, **IT IS ORDERED** that the petition for reconsideration
    filed by Rancho Palos Verdes Broadcasters, Inc. **IS DENIED.**

12. This action is taken pursuant to authority delegated by Sections
    0.283 and 1.106 of the Commission's rules.[^33]

    FEDERAL COMMUNICATIONS COMMISSION

    William H. Johnson

    Deputy Chief

    Media Bureau

[^1]: ^?^*Frontier, A Citizens Communications Company,* 18 FCC Rcd 9589
    (2003) (*"Bureau Order"*).

[^2]: ^?^Reconsideration at 2.

[^3]: ^?^*Id.*

[^4]: ^?^*Id.* at 3.

[^5]: ^?^*Id.* at 3-4.

[^6]: ^?^*Id.* at 4.

[^7]: ^?^*Id.,* citing *Suburban Cable TV Co., Inc.,* 16 FCC Rcd 10790,
    10797 (2001) (citing *Must Carry Order,* 8 FCC Rcd 2965, 2977
    (1993)).

[^8]: ^?^*Id.* at 4.

[^9]: ^?^*Id.* at 4-5.

[^10]: ^?^*Id.* at 5, citing 10 FCC Rcd 668 (1995).

[^11]: ^?^*Id.* at 5-6, citing 18 FCC Rcd 274 (2003).

[^12]: ^?^*Id.* at 6. KXLA states that to its knowledge no station
    currently carried by Frontier offers such programming.

[^13]: ^?^Opposition at 1-2; *see also* 47 U.S.C. § 534(h)(1)(C).

[^14]: ^?^*Id.* at 2.

[^15]: ^?^*Id.*

[^16]: ^?^*Id.*, citing 18 FCC Rcd 4990 (2003).

[^17]: ^?^*Id.* at 3.

[^18]: ^?^*Id.*

[^19]: ^?^*Id.* at 4; *see also* Modification Petition at 3-15.

[^20]: ^?^*Id.*

[^21]: ^?^*Id.* at 5, citing 47 U.S.C. § 534(h)(1)(C)(ii).

[^22]: ^?^*Id.*, citing H.R. Rep. No. 628, 102d Cong., 2d Sess. 97
    (1992) (*"House Report"*).

[^23]: ^?^*Id.* at 6.

[^24]: ^?^Reply at 2.

[^25]: ^?^*Id.*

[^26]: ^?^*See e.g., MediaOne of Los Angeles, Inc.,* 15 FCC Rcd 19386,
    19396 (2000); *Cable Satellite of South Miami, Inc.,* 13 FCC Rcd
    298, 306 (1998); *Rifkin/Narragansett South Florida CATV Limited
    Partnership, d/b/a Gold Coast Cablevision,* 11 FCC Rcd 21090, 21104
    (1996), *recon. denied,* 14 FCC Rcd 13788 (1999).

[^27]: ^?^47 U.S.C. § 534(h)(1)(C)(i).

[^28]: ^?^*House Report* at 97-98.

[^29]: ^?^47 U.S.C. § 534(h)(1)(A).

[^30]: ^?^*See* Reconsideration at 3.

[^31]: ^?^*Id.* at 4. These programs are "Korean Christian," "KTE,' and
    "Little Saigon."

[^32]: ^?^*See Mediacom California LLC,* 18 FCC Rcd 16206 (2003).

[^33]: ^?^47 C.F.R. §§ 0.283 and 1.106.