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                       | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: October 8, 2003** **Released: October 14, 2003**

By the Deputy Chief, Policy Division, 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
    requests 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. KHIZ
    filed an opposition to which Time Warner replied. For the following
    reasons, we grant Time Warner's petition.

# background

2.  Pursuant to Section 614 of the Communications Act 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"),* commercial
    television broadcast stations are entitled to assert mandatory
    carriage rights on cable systems located within the station's
    market.[^2] A station's market for this purpose is its "designated
    market area," or DMA, as defined by Nielsen Media Research.[^3] 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.[^4]

3.  Under the Act, however, the Commission is also directed to consider
    changes in market areas. Section 614(h)(1)(C) provides that the
    Commission may:

    with respect to a particular television broadcast station, include
    additional

    communities within its television market or exclude communities from
    such

    station's television market to better effectuate the purposes of
    this section.[^5]

    In considering such requests, the 1992 Cable Act provides that:

    the Commission shall afford particular attention to the value of
    localism

    by taking into account such factors as --

```{=html}
<!-- -->
```
(I) whether the station, or other stations located in the same area,
    have

    been historically carried on the cable system or systems within such
    community;

(II) whether the television station provides coverage or other local

     service to such community;

(III) whether any other television station that is eligible to be
      carried by a

      cable system in such community in fulfillment of the requirements
      of this

      section provides news coverage of issues of concern to such
      community or

      provides carriage or coverage of sporting and other events of
      interest to the

      community;

(IV) evidence of viewing patterns in cable and noncable households
     within

> the areas served by the cable system or systems in such community.[^6]

The legislative history of the provision states that:

where the presumption in favor of \[DMA\] carriage would result in cable

subscribers losing access to local stations because they are outside the

\[DMA\] in which a local cable system operates, the FCC may make an

adjustment to include or exclude particular communities from a
television

station's market consistent with Congress' objective to ensure that

television stations be carried in the area in which they serve and which

form their economic market.

\* \* \* \*

\[This subsection\] establishes certain criteria which the Commission
shall

consider in acting on requests to modify the geographic area in which

stations have signal carriage rights. These factors are not intended to
be

exclusive, but may be used to demonstrate that a community is part of a

particular station's market.[^7]

The Commission indicated that requested changes should be considered on
a community-by-community basis rather than on a county-by-county basis,
and that they should be treated as specific to particular stations
rather than applicable in common to all stations in the market.[^8]

4.  In the *Modification Final Report and Order,* the Commission, in an
    effort to promote administrative efficiency, adopted a standardized
    evidence approach for modification petitions that requires the
    following evidence be submitted:

```{=html}
<!-- -->
```
(1) A map or maps illustrating the relevant community locations and

    geographic features, station transmitter sites, cable system headend
    locations,

    terrain features that would affect station reception, mileage
    between the

    community and the television station transmitter site,
    transportation routes

    and any other evidence contributing to the scope of the market.

(2) Grade B contour maps delineating the station's technical service

    area and showing the location of the cable system headends and
    communities

    in relation to the service areas.

    Note to Paragraph (b)(2): Service area maps using Longley-Rice

    (version 1.2.2) propagation curves may also be included to support

    a technical service exhibit.[^9]

(3) Available data on shopping and labor patterns in the local market.

(4) Television station programming information derived from station

    logs or the local edition of the television guide.

(5) Cable system channel line-up cards or other exhibits establishing

    historic carriage, such as television guide listings.

(6) Published audience data for the relevant station showing its

    average all day audience (i.e., the reported audience averaged over

    Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for
    both

    cable and noncable households or other specific audience indicia,
    such

    as station advertising and sales data or viewer contribution
    records.[^10]

    Petitions for special relief to modify television markets that do
    not include the above evidence shall be dismissed without prejudice
    and may be re-filed with a filing fee. The *Modification Final
    Report and Order* provides that parties may continue to submit
    additional evidence that they deem appropriate.

# DISCUSSIOn

5.  The issue before us is whether to grant Time Warner's request to
    exclude KHIZ from mandatory carriage on its cable systems serving
    the cable communities.[^11]^1^ The cable communities are located in
    the Los Angeles area of the Los Angeles DMA. KHIZ is licensed to
    Barstow, California, which is also located in the Los Angeles
    DMA.[^12]^2^ Considering the relevant facts in the record, we
    believe that Time Warner's market modification petition is a proper
    request to redraw DMA boundaries to make them congruous with market
    realities.

6.  In support of its petition, Time Warner states that KHIZ has never
    been carried by its cable systems in the cable communities.[^13]^3^
    Time Warner also explains that the cable communities are located 79
    to 102 miles from Barstow, mountain ranges exist between KHIZ and
    the cable communities, and that KHIZ fails to provide a good quality
    signal to the cable communities. In support of the last claim, Time
    Warner provided an engineering study that it states reflects that
    KHIZ did not provide a Grade B signal to the cable communities
    except for a small portion of the City of Orange, and a Longley-Rice
    propagation study that indicates that none of the cable communities
    receive a Grade B signal.[^14]^4^ Time Warner finally argues that
    there is no nexus between KHIZ and the cable communities. Time
    Warner claims that the lack of connection is illustrated by KHIZ's
    lack of programming directed toward the cable communities, lack of
    reportable audience in these areas, no carriage on nearby cable
    systems, and omission from principal local television program
    listings.[^15]^5^

7.  In its opposition, KHIZ states that the Commission has denied two
    similar requests to exclude KHIZ from cable systems in the Los
    Angeles area.[^16]^6^ KHIZ also asserts that the Los Angeles market
    has unique characteristics, such as special geographic, social and
    economic attributes, which need to be considered in market
    modification proceedings. For example, KHIZ explains that there are
    significant cultural and economic connections between KHIZ and the
    cable communities, and that Barstow area residents commute to jobs
    in the cable communities and vice versa.[^17]^7^ KHIZ further states
    that a station's lack of historic carriage on a cable system "is not
    determinative of whether a community should be deleted from a
    station's market," that KHIZ is carried on other cable systems in
    the area, and that Time Warner carries two television stations that,
    like KHIZ, are located in the eastern part of the Los Angeles
    DMA.[^18]^8^ KHIZ also asserts that it provides at least fringe
    coverage to the cable communities because they are within 11 to 16
    miles of KHIZ's predicted Grade B contour, and that its "transmitter
    is located on the average, only 73 miles from the" cable
    communities.[^19]^9^ With regard to local programming, KHIZ explains
    that it provides programs specifically geared to the cable
    communities and plans to increase this programming in the future.
    According to KHIZ, its current local programs are "Money Matters,"
    "The Macabre Theatre," and "Community Calendar."[^20]^0^ Finally,
    KHIZ states that it is "listed as a local channel in various
    newspapers distributed in the" cable communities, and "is in the
    process of rebuilding its viewership base \[in these communities\]
    after its financial troubles in the late 1990's."[^21]^1^

8.  In its reply, Time Warner discusses the two cases that KHIZ cited as
    similar to the present situation where the Commission denied
    requests to exclude KHIZ from cable systems in the Los Angeles DMA.
    Time Warner distinguishes the cases by explaining that one decision,
    "The *Comcast* decision," concerned cable systems "in San Bernardino
    County, Barstow's home county, located at an average distance of
    only 35 miles from KHIZ, all of which with but one exception are
    encompassed within KHIZ's Grade A contour. Virtually the same
    factors were present in the *Marks CableVision and TCI Cablevision*
    case cited by Sunbelt."[^22]^2^ With regard to KHIZ's assertion that
    the Los Angeles DMA has unique characteristics and is
    geographically, socially and economically integrated, Time Warner
    states that "the Commission does not share Sunbelt's \[KHIZ\] views
    as to the solidarity of the Los Angeles DMA \[as\] is graphically
    evidenced by the number of instances in which in-market cable
    communities have been excluded from the television markets of
    stations assigned to the Los Angeles DMA."[^23]^3^

9.  Time Warner also addresses in its reply KHIZ's claim that it is
    carried on other cable systems in the area by explaining that its
    closest cable community is 19 and 28 miles away from the cable
    systems carrying KHIZ.[^24]^4^ Concerning KHIZ's claim that Time
    Warner carries other television stations located in the eastern
    portion of the Los Angeles DMA, Time Warner states that these
    stations are considerably closer to, and provide at least a
    predicted Grade B coverage over the cable communities.[^25]^5^
    Although Time Warner submitted a Longley-Rice study indicating that
    KHIZ's Grade B signal did not come close to the cable communities,
    Time Warner responded to KHIZ's claim that is should be carried in
    the cable communities because it provides "fringe" coverage beyond
    its predicted Grade B contour. Time Warner indicates that allowing
    "fringe" areas to be included within KHIZ's market would result in
    the cable communities "as effectively being located within the Grade
    B contour for purposes of market modification analysis," and that
    "the decisions relied upon by Sunbelt \[KHIZ\] to support its
    position are readily distinguishable from those involved in this
    proceeding."[^26]^6^ For example, according to Time Warner, in one
    case cited by KHIZ in support of its "fringe" argument, the
    Commission stated that "the station's Grade A contour covered
    'almost all' of the cable communities, and none of the four
    exceptions \[where there was possible fringe coverage\] were located
    more that five miles beyond the Grade B contour."[^27]^7^ Finally,
    Time Warner answers KHIZ's claim that it provides local programming
    and is listed in newspapers distributed in the cable communities by
    stating that "a general interest financial advice program, a weekly
    monster movie show and a DMA-wide bulletin board of community events
    fail to establish any nexus between KHIZ's programming and residents
    of the TWC communities," and that KHIZ's programs are not listed in
    "the market's major newspapers."[^28]^8^ Regarding possible future
    KHIZ programs of local interest, Time Warner states programs of this
    nature "remain speculative at this time."[^29]^9^ Time Warner
    concludes its reply by asserting that KHIZ acknowledges that it has
    no off-air viewing in the cable communities.[^30]^0^

10. In granting Time Warner's petition to modify its DMA to exclude the
    cable communities from the television market of KHIZ for the
    purposes of the mandatory broadcast signal carriage rules, we find
    that Time Warner meets the statutory criteria for market
    modification. As explained above, the first statutory factor is
    "whether the station, or other stations located in the same area,
    have been historically carried on the cable system or systems within
    such community." KHIZ has no history of carriage by cable systems in
    the cable communities. Further, although Time Warner carries two
    television stations licensed in the eastern part of the Los Angeles
    DMA, the cities of license, Riverside and San Bernadino, are
    considerably closer to the cable communities than KHIZ's city of
    license, Barstow. In addition, the two stations appear to provide at
    least predicted Grade B coverage to the cable communities. Although
    KHIZ states that it is carried by other cable systems in the Los
    Angeles DMA, namely, Palmdale and Action, there are a number of
    differences between these cities and the cable communities. The
    cities are located on the eastern edge (the same side as KHIZ) of
    mountains which divide the DMA and separate these cities from the
    cable communities. The cities are considerably closer to KHIZ's city
    of license than Time Warner's cable communities, and the cities
    appear to be included within KHIZ's predicted Grade B coverage
    area.[^31]^1^ Cable carriage of KHIZ in these cities, therefore,
    does not overcome the fact that KHIZ is not carried in or near the
    cable communities. Accordingly, we find that Time Warner meets the
    requirements of the first statutory factor.

11. The second statutory factor is "whether the television station
    provides coverage or other local service to such community." As
    discussed above, KHIZ lists two programs, "Money Matters" and "The
    Macabre Theatre," which it states are locally produced and geared to
    the interest of local residents. The former appears to be a general
    interest financial advice program and the letter is a weekly horror
    movie. KHIZ states that it also broadcast a community calendar
    several times a day. This program covers events across the Los
    Angeles DMA, including some events within the cable communities.
    KHIZ also indicates that it intends to increase local programming in
    the future. The Communications Act, however, requires the Commission
    to base its market modification decisions on whether a station
    provides local service to a community and not on promises of future
    programming.[^32]^2^

12. KHIZ acknowledges that it does not provide a predicted Grade B
    signal to the cable communities. Time Warner, moreover, has provided
    a service area map for KHIZ, using Longley-Rice propagation curves,
    which reflects that KHIZ does not provide Grade B service to any of
    the cable communities. As discussed above, the Commission accepts
    service area maps based on the Longley-Rice model because
    Longley-Rice provides an accurate representation of a station's
    technical coverage area by taking into account such factors as
    mountains and valleys that are not specifically reflected in
    traditional predicted Grade B contour analysis.[^33]^3^ Thus, in
    areas such as the Los Angeles DMA, where there are distinctive
    geographical features, Longley-Rice propagation studies are an
    especially important aid in determining whether a television station
    provides local service to a community. KHIZ's argument that the
    Commission should, in effect, disregard its lack of Grade B coverage
    in analyzing whether it provides service to local communities is
    contrary to the Commission's consistent emphasis on the significance
    of this factor in its market modification analysis.[^34]^4^

13. KHIZ argues that the Los Angeles area is a single market, and that
    Barstow area residents commute to jobs in the cable communities and
    vice versa. However, KHIZ did not provide significant data or
    statistics in support of this claim. The 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.[^35]^5^ Thus, the second statutory factor supports Time
    Warner's petition to modify the Los Angeles DMA.

14. The Third statutory factor is "whether any other television station
    that is eligible to be carried by a cable system in such community
    in fulfillment of the requirements of this section provides news
    coverage of issues of concern to such community or provides carriage
    or coverage of sporting and other events of interest to the
    community." In general, we believe that Congress did not intend this
    third criterion to operate as a bar to a request to modify a DMA
    when other stations could be shown to serve the communities at
    issue. Rather, we believe this criterion was intended to enhance a
    station's claim where it could be shown that other stations do not
    serve the communities at issue.[^36]^6^ In this case, because other
    stations serve the communities in question, this enhancement factor
    is not applicable.

15. The fourth statutory factor concerns "evidence of viewing patterns
    in cable and noncable households within the areas served by the
    cable system or systems in such community." There is no evidence
    that KHIZ has significant off-air viewing in the cable communities.
    The above factors tend to explain the history of KHIZ's lack of
    carriage in Time Warner's cable communities, and strongly indicate
    that the communities are too distant to properly be part of KHIZ's
    television market.

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

16\. Accordingly, **IT IS ORDERED,** pursuant to Section 614(h) of the
Communications Act of 1934, as amended, 47 U.S.C. §534, and Section
76.59 of the Commission's rules, 47 C.F.R. §76.59, that the captioned
petition for special relief (CSR-6173-A), filed by Time Warner Cable,
**IS GRANTED.**

17\. These actions are taken pursuant to authority delegated by Section
0.283 of the Commission's rules.[^37]^7^

FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Deputy Chief, Policy Division

Media Bureau

[^1]: ^?^Time Warner lists the following communities which it seeks 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 at 2.

[^2]: ^?^8 FCC Rcd 2965, 2976-1977 (1993).

[^3]: ^?^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"*).

[^4]: ^?^For a more complete description of how counties are allocated,
    *see* Nielsen Media Research's *Nielsen Station Index: Methodology
    Techniques and Data Interpretation.*

[^5]: ^?^47 U.S.C. §534(h)(1)(C).

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

[^7]: ^?^H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992).

[^8]: ^?^*Must Carry Order,* 8 FCC Rcd 2965, 2977 n.139.

[^9]: ^?^The Longley-Rice model provides a more accurate representation
    of a station's technical coverage area because it takes into account
    such factors as mountains and valleys that are not specifically
    reflected in a traditional Grade B contour analysis. In situations
    involving mountainous terrain or other unusual geographical
    features, Longley-Rice propagation studies can aid in determining
    whether or not a television station actually provides local service
    to a community under factor two of the market modification test.

[^10]: ^?^47 C.F.R. §76.59(b).

[^11]: ^1^ ^11^Petition at 1.

[^12]: ^1^ ^12^*Id.* at 3.

[^13]: ^1^ ^13^*Id.* at 6.

[^14]: ^1^ ^14^*Id.* at 7-11, and Attachment 7. It is estimated that the
    closest KHIZ's Grade B signal comes to the edge of the cable
    communities based on Time Warner's Longley-Rice study ranges from
    approximately 15 miles for the Chatsworth system to 40 miles for the
    Gardena system.

[^15]: ^1^ ^15^*Id.* at 11-13.

[^16]: ^1^ ^16^Opposition at 2 n.5, citing *Comcast Cablevision of
    Inland Valley*, 12 FCC Rcd 6461 (1997); *Marks Cablevision and TCI
    Cablevision of California*, 12 FCC Rcd 22989 (1997).

[^17]: ^1^ ^17^Opposition at 3-5.

[^18]: ^1^ ^18^*Id.*at 8-9.

[^19]: ^1^ ^19^*Id.* at 10-12. and Attachment 1.

[^20]: ^2^ ^20^*Id.* at 13-16.

[^21]: ^2^ ^21^*Id.* at 19.

[^22]: ^2^ ^22^Reply at 3 (footnotes omitted).

[^23]: ^2^ ^23^*Id.* at 4.

[^24]: ^2^ ^24^*Id*. at 5.

[^25]: ^2^ ^25^*Id.* at 5-6.

[^26]: ^2^ ^26^*Id*. at 7.

[^27]: ^2^ ^27^*Id*.

[^28]: ^2^ ^28^*Id.* at 9-10, 11 n.37.

[^29]: ^2^ ^29^*Id*. at 10.

[^30]: ^3^ ^30^*Id.* at 10-11.

[^31]: ^3^ ^31^Opposition at Exhibit J.

[^32]: ^3^ ^32^47 U.S.C. §534(h)(1)(C)(II); *Cablevision of Cleveland*,
    16 FCC Rcd 15575, 15577 (2001).

[^33]: ^3^ ^33^*See, e.g., Comcast Cablevision of Danbury*, 18 FCC Rcd
    274, 279 (2003).

[^34]: ^3^ ^34^*See, e.g., Frontier, A Citizens Communications Company*,
    18 FCC Rcd 9589, 9594 (2003).

[^35]: ^3^ ^35^*Id.*

    ^36^*See, e.g., Great Trails Broadcasting Corp.*, 10 FCC Rcd 8629
    (1995); *Paxson San Jose License, Inc.,* 12 FCC Rcd 17520 (1997).

[^36]: ^3^

[^37]: ^3^ ^37^47 C.F.R. §0.283.