Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | * | CSR 5559-A                   |
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| Brownwood Cable Television       | ) |                              |
| Service, Inc.                    | * |                              |
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| Modification of Television       |   |                              |
| Market of Television Station     | * |                              |
| KCPB(TV), Snyder, Texas          | * |                              |
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| Petition for Reconsideration     | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** **February 8, 2001 Released: February 13, 2001**

By the Deputy Chief, Cable Services Bureau:

# introduction

1.  Prime Time Christian Broadcasting, Inc. ("PTCB"), licensee of
    television station KCPB(TV), Channel 17, Snyder, Texas, ("KCPB") has
    filed a petition for reconsideration of the Memorandum Opinion and
    Order in *Brownwood Cable Television Service, Inc.*[^1] An
    opposition to the petition was filed by Brownwood Cable Television
    Service, Inc. ("Brownwood"), operator of cable systems in Brownwood,
    Bangs, Clyde, Cross Plains, Rising Star, and Santa Ana, Texas (the
    "Communities"), and PTCB filed a reply to the opposition.

# Discussion

2.  Section 614(h)(1)(C)(i) of the Communications Act authorizes the
    Commission to add communities to, or delete communities from a
    television station\'s market \"to better effectuate the purposes of
    this section.\"[^2] The facts, a detailed description of these
    market modification provisions and the Commission\'s related
    regulations, the arguments of the parties, and a detailed analysis
    of those matters are also set forth in the *Brownwood Order* and
    need not be repeated here.

## Procedural Matters

3.  PTCB argues that existing carriage on a cable system is a
    prerequisite for the submission of the petition for relief
    considered in the *Brownwood Order*. We reject this argument. There
    is no requirement in either the statutory must carry provisions or
    the Commission's regulations implementing those provisions that
    requires existing carriage on a cable system as a procedural
    prerequisite for filing a request for modification of a station's
    market pursuant to Section 614(h)(1)(C), as PTCB claims.[^3]
    Certainly, nothing cited from the *Must Carry Order* suggests such a
    prerequisite.[^4] A review of the Commission's decisions pursuant to
    the market modification provisions of Section 614 reveals that
    existing carriage of a station on a cable system has never been
    deemed a prerequisite for the filing of a market modification
    petition.[^5]

4.  We also reject PTCB's argument that the *Brownwood Order* was
    procedurally defective because Brownwood failed to show compliance
    with a previously issued carriage order that was not stayed.[^6]
    Maintenance of the status quo by the cable operator during
    consideration of this market modification case is consistent with
    Commission practice.[^7]

## Substantive Matters

5.  PTCB faults conclusions reached in the *Brownwood Order* on the four
    statutory factors considered in market modification cases. PTCB
    disputes the finding that KCPB has no history of carriage in any of
    the relevant Communities, noting that the station is being carried
    on other cable systems serving other communities, some of which are
    in the same counties as the communities served by Brownwood.[^8] The
    *Brownwood Order* found that KPCB does not provide a Grade B signal
    over the Communities, that the distances from KPCB to the
    Communities (from 85 to 133 miles) preclude a conclusion that
    Brownwood serves as a bottleneck denying KPCB access to the
    Communities, and that these factors tend to explain the history of
    non-carriage in the Communities.[^9] PTCB contends that the relevant
    test is not whether KPCB provides a Grade B signal over the
    Communities. Instead, PTCB claims credit for local service to the
    Communities on the basis of signal strength study results showing
    that KPCB's translator station K58FZ delivers a good quality must
    carry signal to Brownwood cable systems' headends.[^10] The ability
    of a station to deliver a good quality signal to a cable system
    headend by means of a translator is an acceptable method of
    demonstrating that a station is "local" for purposes of establishing
    must carry status for the station under Section 614(h)(1)(B)(iii).
    However, the *Brownwood Order* correctly held that translator
    coverage of a community does not lessen the relevance of the failure
    of the parent full power station to directly serve the subject cable
    communities and may not be used for the purpose of establishing a
    station's market under the market modification procedures set forth
    in Section 614(h)(1)(C)(ii).[^11]

6.  The *Brownwood Order* found that all of PTCB's licensed stations
    located in Texas and New Mexico, including KPCB, carry the same
    programming, and concluded that KPCB's programming is directed more
    toward PTCB's multi-station audience than toward the Communities
    served by Brownwood. The *Brownwood Order* further noted that the
    Commission has consistently declined to deem a station "local" for
    these purposes by airing the minimal amount of programming
    associated with the communities in question shown on the
    record.[^12] PTCB's petition makes no attempt to establish that
    additional programming beyond that considered in the *Brownwood
    Order* is directed toward the Communities at issue. Instead, PTCB
    argues for different conclusions from that reached in the *Bureau
    Order* with respect to the programming previously considered. In
    support of this argument, PTCB emphasizes that KCPB has lived up to
    programming commitments made in its original operating applications.
    It also emphasizes the religious and Spanish language content of its
    programming as meeting needs not met by area commercial stations.
    These aspects of KPCB's programming may be relevant to the station's
    and its sister stations' obligations to present programming in the
    public interest for station licensing purposes.[^13] However, their
    relevance, weight, and decisional significance under the statutory
    coverage and local service factor set forth in Section 614, is
    substantially lessened by the fact that this programming is directed
    to the audiences of all PTCB stations, as noted in the *Brownwood
    Order*.[^14]

7.  PTCB submitted with the petition a large packet of letters
    requesting that KCPB be carried. Those letters fail to show that a
    different result is required. Most of the letters simply state the
    author's desire for PTCB "to be carried locally so I can watch it,"
    and state that the station provides programming other stations do
    not provide.[^15] That information does not bear on the coverage and
    local service factor, namely whether programming is directed to the
    relevant local communities.[^16] On the other hand, the statements
    that PTCB should be carried "so I can watch it" undermine PTCB's
    claim that KCPB is substantially viewed in the communities from
    which such statements originate.

8.  Finally, PTCB points out that the amount certain programmers are
    willing to pay stations for presentation of their programming
    depends on the size of audience reached by the station carrying the
    programming.[^17] We see nothing within the ambit of the statutory
    four factors considered in market modification cases that requires
    communities, otherwise shown to be beyond a station's market, to be
    deemed part of a station's market for purposes of enhancing a
    station's marketability in the manner suggested by PTCB.

9.  In summary, we find the analysis in the *Brownwood Order* regarding
    historic carriage of the station and carriage of other stations in
    the community, station coverage and local service to the community,
    coverage of the communities by other stations, and station audience
    share, to be fully supported by substantial evidence of record. The
    findings and conclusions of the *Brownwood Order* are solidly based
    on that analysis and fully consistent with the Commission's analysis
    and application of the market modification provisions of Section
    614(h) in *New York ADI Appeals Memorandum Opinion and Order*,
    (\"*New York ADI Order*\").[^18] The Commission's findings and
    conclusions in the *New York ADI Order* were upheld on judicial
    review in *WLNY-TV, Inc., et al. v. FCC*.[^19] We have examined the
    additional evidentiary materials provided in the reconsideration
    petition by PTCB and are not persuaded that a reconsideration of the
    result reached in the *Brownwood Order* is required. Accordingly, we
    reaffirm the conclusions reached in the *Brownwood Order* that the
    requested market modification will effectuate the purposes of the
    must carry statutory provisions and associated Commission rules.

# orders clauses

10. Accordingly, **IT IS ORDERED**, pursuant to Sections 1, 4(i), 5(c),
    405, and 614(h)(1)(C) of the Communications Act of 1934, as amended,
    47 U.S.C. §§151, 154(i), 155(c), 405, 534(h)(1)(C), that the
    captioned petition for reconsideration **IS DENIED**.

11. This action is taken pursuant to authority delegated by Section
    0.321 of the Commission's rules.[^20]

    FEDERAL COMMUNICATIONS COMMISSION

    William H. Johnson

    Deputy Chief, Cable Services Bureau

[^1]: DA 00-2296, released by the Cable Services Bureau on October 10,
    2000 ("*Brownwood Order*").

[^2]: ^?^*See* 47 U.S.C. §534(h)(1)(C)(i).

[^3]: Petition at 3.

[^4]: *See Implementation of the Cable Television Consumer Protection
    and Competition Act of 1992, Broadcast Signal Carriage Issues*, 8
    FCC Rcd 2965 (1993) ("*Must Carry Order*").

[^5]: *See e.g., Petition of Armstrong Utilities, Inc.*, 13 FCC Rcd
    2498, 2506-07 (CSB 1997); *Armstrong Utilities, Inc., d/b/a
    Armstrong Cable Services*, 14 FCC Rcd 10454, 10462 (CSB 1999).

[^6]: *See Prime Time Christian Broadcasting, Inc. v. Brownwood
    Television Cable Services, Inc.*, 15 FCC Rcd 7872, (CSB 2000).

[^7]: *See Must Carry Order* at 2977.

[^8]: *Brownwood Order* at ¶ 13.

[^9]: *Brownwood Order* at ¶ 13. PTCB submitted information (Petition at
    9-11 & Exhibits 12-21) showing that the predicted Grade B contours
    of three Abilene stations carried by Brownwood do not reach all of
    the systems' headends, contrary to findings in the *Brownwood Order*
    at ¶ 13. That information nonetheless shows that the Grade B
    contours of the Abilene stations reach much closer to the
    Communities at issue than does the Grade B contour of KPCB. In any
    event, the carriage rights of the Abilene stations are not at issue
    at this proceeding. Moreover, the *Brownwood Order* did not classify
    the Abilene stations as "local" as PTCB suggests (Petition at 8),
    but instead declined to accord their carriage by Brownwood any
    credit under the local community service factor. *Brownwood Order*
    at ¶ 15.

[^10]: Petition at 9-14.

[^11]: *Dynamic Cablevision of Florida, Ltd., et al.*, 12 FCC Rcd 9952
    (1997); *See also KBL Cablesystems of the Southwest, Inc. d/b/a
    Paragon Cable*, 12 FCC Rcd 21923 (CSB 1997). Petitioner's Exhibits
    25 through 32 show only that KPCB is listed in some unidentified
    television guide publication. Those listings do not establish that
    KPCB is viewable off-the-air in the Communities at issue here as
    PTCB claims. Moreover, evidence of monetary contributions for
    station operations, without more, is not evidence of viewership.
    Petition at 15 & Exhibit 33.

[^12]: *Brownwood Order* at ¶ 14.

[^13]: *See* 47 U.S.C. § 309(a); 47 C.F.R. § 73.3591(a)(4).

[^14]: *Brownwood Order* at ¶ 14.

[^15]: Petition at 6 & Exhibit 10.

[^16]: 47 U.S.C. § 534(h)(1)(C)(ii)(IV).

[^17]: Petition at 15-17.

[^18]: 12 FCC Rcd 12262 (1997).

[^19]: 163 F. 3d 187 (2d Cir. 1998).

[^20]: 47 C.F.R. § 0.321.