Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5623-A                   |
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| TCI Cablevision of New Mexico,   | ) | CSR-5598-M                   |
| Inc.                             | * |                              |
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| For Modification of the          |   |                              |
| Albuquerque-Santa Fe, New Mexico | * |                              |
| DMA                              | * |                              |
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| Prime Time Christian             | * |                              |
| Broadcasting, Inc. v. TCI        | * |                              |
| Cablevision of New Mexico, Inc.  |   |                              |
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| Request for Carriage             | * |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: February 7, 2001** **Released: February 9, 2001**

By the Chief, Consumer Protection and Competition Division, Cable
Services Bureau:

# introduction

1.  TCI Cablevision of New Mexico, Inc. ("TCI") filed the
    above-captioned petition for special relief seeking to modify the
    Albuquerque-Santa Fe, New Mexico DMA relative to television
    broadcast station KRPV (Ch. 27) ("KRPV" or the "Station"), Roswell,
    New Mexico. Specifically, TCI requests that KRPV be excluded, for
    purposes of the cable television mandatory broadcast signal carriage
    rules, from the communities served by four of its cable systems.[^1]
    An opposition to this petition was filed on behalf of Prime Time
    Christian Broadcasting, Inc. ("Prime Time"), licensee of Station
    KRPV. In addition, Prime Time, Inc. has filed a must carry complaint
    against TCI for its failure to carry KRPV's signal on its Raton, Red
    River, Santa Fe and Springer cable systems (the "subject
    communities"). TCI has filed an opposition to this complaint and
    Prime Time has replied.[^2] We are consolidating these cases in
    order to determine the signal carriage rights of KRPV in the
    communities in question.

# 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.[^3] A station's market for this purpose is it "designated
    market area," or DMA, as defined by Nielsen Media Research.[^4] 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 viewings are
    included.[^5]

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.[^6]

4.  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 factor as --

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(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 new 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.[^7]

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5.  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.

    \* \* \* \*

    \[this section\] 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 intended to
    be

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

    particular station's market.[^8]

6.  Recently, 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:

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(A) 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(ies) and the television station transmitter site,
    transportation routes

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

(B) 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: Service area maps using Longley-Rice (version 1.2.2)
    propagation

    curves may also be included to support a technical service
    exhibit.[^9]

(C) Available data on shopping and labor patterns in the local

    market.

(D) Television station programming information derived from station

    logs or the local edition of the television guide.

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

    carriage, such as television guide listings.

(F) 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., 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 at a later date with the appropriate filing fee.
    Parties may continue to submit whatever additional evidence they
    deemed appropriate and relevant.

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7.  With respect to deletion of communities from a station's market, the
    legislative history of the provision states that:

    The provisions of \[this subsection\] 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. It is not the Committee's intention that
    these provisions be used by cable systems to manipulate their
    carriage obligations to avoid compliance with the objectives of this
    section. Further, this section is not intended to permit a cable
    system to discriminate among several stations licensed to the same
    community. Unless a cable system can point to particularized
    evidence that its community is not part of one station's market, it
    should not be permitted to single out individual stations serving
    the same area and request that the cable system's community be
    deleted from the station's television market.[^11]

8.  In adopting rules to implement this provision, 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.[^12]
    The rules further provide, in accordance with the requirements of
    the 1992 Cable Act, that a station not be deleted from carriage
    during the pendency of a modification request.[^13]

# Discussion

## Market Modification

9.  The issue before us is TCI's request to exclude Roswell television
    station KRPV from mandatory carriage in the subject communities.
    TCI's communities are located in the New Mexico counties of Colfax,
    Taos and Santa Fe, which are deemed to part of the Albuquerque-Santa
    Fe DMA. KRPV is licensed to Roswell, Chavez County, New Mexico,
    which is also considered to be part of the Albuquerque-Santa Fe DMA.

10. In support of its request, TCI states that although Roswell is in
    the same DMA as the Systems, KRPV has no local nexus with nor does
    it serve the subject communities. TCI notes that KRPV is
    geographically remote from the subject communities, as Roswell is
    located more than 200 miles away.[^14] TCI argues that the exclusion
    of KRPV is necessary to better effectuate market realities.[^15] In
    that regard, TCI notes that the Commission has observed that "the
    broadcast signal carriage rules were not intended to transform an
    otherwise local station into a regional 'super station' that must be
    automatically carried in every single community in a \[DMA\]
    ..."[^16] TCI maintains that denying the instant petition, and
    requiring it to carry KRPV, would limit TCI's ability to provide the
    programming and services its subscribers desire.[^17] TCI points out
    that even though KRPV has been on the air for more than 14 years, it
    has no history of carriage in the subject communities.[^18] In
    addition, TCI notes that KRPV has no local ratings, and argues that
    removing the subject communities from the Station's DMA would be
    consistent with congressional intent because there "would be no
    disruption to established viewing patterns, nor would the requested
    action deprive the Station of any existing cable audience."[^19] TCI
    argues that in previous decisions the Commission has considered
    stations and communities as close as 38 miles apart to be in
    different markets.[^20] TCI indicates that not only does KRPV's
    Grade B contour fail to encompass any of the communities, but the
    Station does not provide any local programming tailored to the
    subject communities.[^21] TCI maintains that KRPV's failure to
    provide local programming is not mitigated by the fact that it
    provides a "specialized" format. It points out that the Cable
    Services Bureau, in a recent decision in a similar case, stated,
    "\[w\]e are not convinced that \[KRPV's\] programming, while of
    potential general interest, is the kind that suggests that the
    subject communities, in total, are a particular focus of the station
    or are in any sense served in a manner that establishes a specific
    market connection."[^22]

11. TCI maintains that KRPV's lack of nexus to the subject communities
    is evidenced by the fact that the Station's programming is not
    listed in television programming guides available in the *Raton
    Range* or the local edition of *TV Guide*.[^23] In addition, TCI
    notes that the distance between Roswell and Raton (280 miles), Red
    River (311 miles), Santa Fe (191 miles) and Springer (261 miles)
    establish further the lack of nexus between KRPV and the subject
    communities. TCI argues that its cable communities already receive
    ample local programming addressing their interests and concerns from
    stations which it currently carries.[^24] TCI contends that this
    factor strongly favors the modification of KRPV's television market
    to exclude the communities in question.[^25] Further, TCI points out
    that a study conducted by Media Strategies showed that KRPV has no
    ratings whatsoever in either cable or non-cable households in
    Colfax, Santa Fe or Taos counties where the communities at issue are
    located. In view of the above, TCI requests that its petition for
    exclusion be granted.

12. In opposition, Prime Time argues that TCI's justifications for its
    request for exclusion are either irrelevant or incorrect in weighing
    KRPV's mandatory carriage rights in the subject communities.[^26]
    Prime Time maintains that other cable systems will carry KRPV as of
    December 31, 2000.[^27] Prime Time points to a letter from Adelphia
    Cable, which shows a startup date of January 15, 2001 to start
    carrying KRPV on four of its systems serving Enchanted, South Santa
    Fe, Tesuque and Pojoaque, New Mexico.[^28] Hence, Prime Time argues
    that it should be credited with "voluntary historical carriage" and
    cable viewing on the four Adelphia cable systems and other 25 cable
    systems within the Santa Fe 30 mile-ring.[^29] Prime Time asserts
    that KRPV is carried on three cable systems serving Red River, New
    Mexico.[^30] In addition, it notes that there are no off-air
    television signals available to TCI's cable systems because the
    Grade B contour of none of the stations TCI carries reaches Red
    River, Raton or Springer.[^31] Prime Time notes that pursuant to a
    retransmission consent agreement, Adelphia's Angel Fire, Colfax
    County, New Mexico system has carried KRPV since Summer 2000.[^32]
    Prime Time points out that the Commission has long held that a
    station's inability to establish historical carriage is not entitled
    to great weight, especially, as here, where a religious "specialty"
    station is involved.[^33] Prime Time requests that the Commission
    should not give any weight to the historical criterion. It requests
    further that the Commission ignore the fact that TCI is
    discriminatorily not carrying KRPV, and that it presume, for
    purposes of this proceeding, that TCI has carried KRPV since
    1986.[^34]

13. Prime Time maintains that the distance between Roswell and the
    subject communities should not make any difference because the KRPV
    signal will be available to TCI's headend via satellite
    transmission, at the Station's expense, to ensure a good quality
    signal.[^35] Prime Time maintains that the Commission's listing of
    delivery mechanisms is not intended to be exclusive and should
    therefore include satellite feeds such as it proposes. Prime Time
    believes that such delivery can supersede the Commission's
    historical view that "\[a\]s a general matter, Grade B coverage
    demonstrates service to cable communities and serves as a measure of
    a station's natural economic market."[^36] Prime Time maintains that
    the "local-into-local" provisions of the Satellite Home Viewer
    Improvement Act of 1999 ("SHVIA") modified the meaning of "other
    local service, and thus, support Prime Time's view.[^37] Prime Time
    argues that in evaluating the "local signal" criterion, the
    Commission should conclude that a television signal delivered via
    satellite, as KRPV proposes to deliver its signal to TCI, should be
    treated as if it were an off-air Grade B signal delivered to a cable
    system's headend.[^38]

14. Prime Time argues that TCI mistakenly attempts to minimize the
    significance of KRPV's religious programming by asserting that none
    of the programming is specifically targeted to the subject
    communities and that other currently carried stations provide local
    programming. Prime Time maintains that its religious format
    specifically fulfills an important community programming need in the
    communities at issue.[^39] According to Prime Time, TCI does not
    meet the specific religious needs of all the subject communities
    because KCHF, a religious broadcaster, is carried only by TCI's
    Santa Fe cable system, and not by the Raton, Red River or Springer
    systems.[^40] Prime Time, however, contends that KRPV would offer
    each community, as it does in other communities where KRPV is
    carried, five 30-minute segments, seven days a week, in which all
    local churches would have television access for their public
    announcements, promotional spots and interviews.[^41] As an example,
    Prime Time points out that it recently broadcast a New Mexico Teen
    Challenge Fund Drive live for two hours, something that could not
    have happened otherwise because other local stations would not give
    more than 10-15 minutes of free television airtime.[^42] Moreover,
    according to Prime Time, KRPV specifically targets Spanish-speaking
    viewers in the subject communities by offering "many" hours of
    Hispanic religious programming every week; something that no other
    local station does.[^43] In support of this contention, Prime Time
    points out that KCHF only provides a weekly 30-minute
    Spanish-language program.[^44] In addition, Prime Time explains that
    the absence of KRPV listings in *TV Guide* is simply because *TV
    Guide* does not list any religious stations in its New Mexico
    publication.[^45] Finally, Prime Time maintains that the record
    shows that KRPV offers sufficient local programming and programming
    of local interest for the subject communities, and argues that TCI
    has failed to meet is burden of proof to establish the need for a
    market modification.[^46]

15. Prime Time acknowledges that KRPV has no Nielsen ratings, but argues
    that it is because the Station does not pay Nielsen for rating its
    program schedule because KRPV does not sell commercial airtime.[^47]
    Prime Time, however, notes that its public files are filled with
    viewer letters thanking it for providing religious-educational
    programming, which is also free of commercial advertising.[^48] In
    addition, Prime Time argues that "it is simply too soon" for
    Nielsen's ratings to include KRPV.[^49] It points out that the
    February and May, 2000 audience viewership sweeps in the communities
    in question were missed because TCI was not carrying KRPV as Prime
    Time had requested in September 1999.[^50] According to Prime Time,
    by the time it completed the installation and testing of the
    equipment in the Adelphia systems, the August 2000 sweeps period had
    passed.[^51] Prime Time notes that the first Nielsen sweeps period
    for US Cable's Espanola system was conducted in November 2000, and
    that other systems will start carrying KRPV either in December 2000
    or January 2001.[^52] Prime Time argues that granting TCI's petition
    to exclude KRPV from its cable systems in the Santa Fe ZIP
    Code (87501) would be an injustice to Prime Time and to local cable
    subscribers, since Adelphia Cable will be carrying it on all six of
    its Northern New Mexico cable systems.[^53] Prime Time contends that
    if the instant petition is granted, KRPV would be deprived of access
    to the households in the subject communities, and KRPV would be
    paying a regulatory fee not based on the total number of television
    households in the DMA as the Commission has established.
    Consequently, it argues that KRPV be given access to all of the
    television households if it is going to pay a regulatory fee based
    on all households.[^54]

16. In reply, TCI maintains that Prime Time has failed to establish that
    it has local nexus with the subject communities.[^55] TCI argues
    that the Commission cannot ignore or give no weight to the
    historical carriage requirement, as Prime Time requests. It points
    out that the historical carriage requirement is statutory in nature
    pursuant to Section 614(h)(1)(ii)(I) of the Communications Act.[^56]
    TCI points out that Prime Time offers no legal authority for its
    position that it should be credited with voluntary "historic
    carriage."[^57] TCI states that as far as it knows, the four
    Adelphia systems Prime Time indicated would carry KRPV in Enchanted,
    Pojoaque Valley, South Santa Fe and Tesuque Pueblo, were not
    carrying the Station even after January 15, 2001.[^58] In this
    regard, TCI filed a Supplement, in which it refers to Prime Time's
    assertion that four Adelphia cable systems would start carrying KRPV
    as of January 15, 2001, and notes that those four systems are now
    owned by Comcast Cable Communications, Inc. ("Comcast").[^59] With
    its Supplement, TCI submitted a Declaration from Comcast's Area
    Manager for the northern New Mexico area. In his Declaration, dated
    January 22, 2001, Comcast's Area Manager states that the Enchanted,
    Pojoaque Valley, South Santa Fe and Tesuque Pueblo systems are not
    carrying KRPV, and notes that Comcast intends to file petitions for
    special relief to remove these communities from KRPV's market.[^60]

17. TCI further notes the geographical distances between KRPV's
    transmitter and the communities at issue, indicating that the
    closest community (Santa Fe) is about 150 miles from the outermost
    reaches of KRPV's Grade B contour.[^61] TCI asserts that Prime Time
    incorrectly argues that the SHVIA and the Commission modified the
    meaning of "other local service" in Section 614. Moreover, TCI
    points out, SHVIA only applies to satellite carriers, not cable
    operators.[^62] Finally, TCI reiterates its earlier argument that
    KRPV offers no local programming specifically targeted to the
    System's communities, and maintains that the local stations it
    carries provide the type of local programming envisioned by
    Congress.[^63]

18. In response to TCI's Supplement, Prime Time filed a Supplement
    Response in which it restated its argument that "immediate vicinity"
    carriage is highly probative in market modification cases and "that
    such 'immediate vicinity' carriage may be demonstrated by cable
    carriage on other systems in the ZIP code."[^64] Thus, it argues,
    the Commission should use a ZIP code as the common denominator to
    measure "whether a TV station is carried by cable systems in that
    'community' or 'area.'"[^65] Prime Time restates that it is being
    carried by Adelphia's Taos, Questa, Angel Fire, Las Vegas and Pecos
    cable systems, and by US Cable's Arroyo Seco. [^66] Prime Time
    points out that Nielsen's Media audience ratings for KRPV in the
    Albuquerque-Santa Fe DMA for the November sweeps period show that
    the Station received a 1.9 % cume in the DMA with 10,830
    households.[^67] Thus, Prime Time contends that the November 2000
    audience ratings results shows that it has an audience share in
    Colfax, Santa Fe and Taos Counties.[^68]

19. As an initial matter, we note that, according to the legislative
    history of the 1992 Cable Act, the use of \[DMA\] market areas is
    intended "to ensure that television stations be carried in the areas
    which they service and which form their economic market."[^69] The
    DMA market change process incorporated into the Communications Act,
    however, is neither intended to be a process whereby cable operators
    may seek relief from the mandatory signal carriage obligations apart
    from the question of whether a change in the market area is
    warranted, nor is it a vehicle for broadcast stations to reach
    service areas that otherwise could not serve. When viewed against
    this backdrop, and considering all of the relevant factual
    circumstances in the record, we believe that TCI's exclusion
    petition appears to be a legitimate request to redraw DMA boundaries
    to make them more harmonious with market realities. TCI's actions do
    not reflect an intention to skirt its signal carriage
    responsibilities under the Communications Act and the Commission's
    rules, nor do they evidence a pattern of discriminatory conduct
    against KRPV.

20. **Historic Carriage**. As Prime Time indicates, KRPV began operation
    in September 1986. However, despite being on the air for 14 years,
    the Station has no history of carriage on TCI's cable systems. In
    this regard, we disagree with Prime Time's argument that the Cable
    Services Bureau should give no weight to this criterion and presume,
    for purposes of this proceeding, that TCI has carried KRPV
    since 1986. Historical carriage is a factor that the enabling
    statute requires the Commission to consider when giving value to
    localism.[^70] Therefore, it cannot be ignored or waived by a simple
    request that the Commission give credit for "voluntary carriage"
    that is not there. Given the statutory directive, consideration must
    be given to this factor, bearing in mind that the objective of the
    Section 614(h) process is to "better effectuate the purposes" of the
    broadcast signal carriage scheme. Thus, with respect to the question
    of historical carriage patterns, attention must be paid to the
    circumstances from which such patterns developed. Some stations have
    not had the opportunity to build a record of historical carriage for
    specific reasons that do not necessarily reflect a judgment as to
    the geography of the market involved. Therefore, the historical
    carriage factor -- to the extent such lack of carriage is reflective
    of factors outside of the shape of the market -- is not by itself
    controlling in these circumstances. Such an implementation of the
    1992 Cable Act would, in effect, prevent weaker stations, that cable
    systems had previously declined to carry, from ever obtaining
    carriage rights. In this instance, however, we note that, along with
    KRPV, which is a specialty station, no other station licensed to
    Roswell has ever been carried on TCI's cable systems, nor,
    apparently, on any other cable systems within the communities at
    issue. Even with the supplemental information submitted, Prime Time
    cannot establish historical carriage of KRPV in the subject
    communities. The new information appears to show, however, that KRPV
    has carriage of recent origin on three non-contiguous cable systems,
    including Adelphia's Angel Fire system, which began carriage in
    June 2000. This information is not enough to tip the balance in
    favor of Prime Time. Moreover, based on the recent information
    Comcast gave TCI, it appears that Prime Time's assertions that KRPV
    would be carried on four systems close to the Santa Fe area were
    premature. TCI's failure to carry other similarly situated stations
    demonstrates a lack of nexus between KRPV and the subject cable
    communities.

21. **Grade B Coverage/Local Service**. A station's local service to
    cable communities is one of the relevant factors to consider. The
    type or age of the station involved or historical carriage does not
    influence consideration of this factor. Service may be measured
    through geographic means: by examining the distance between the
    station and the cable communities subject to the deletion request
    and taking into account natural phenomena such as waterways,
    mountains and valleys which tend to separate communities. A
    station's broadcast of local programming, which has a distinct nexus
    to the cable communities, is evidence of local service. Also, a
    station's Grade A or Grade B contour coverage is an additional
    indicator of local service and we will weigh the presence or absence
    of such technical coverage accordingly.[^71] In the instant case,
    KRPV does not satisfy any of the local coverage elements we find
    important in the market modification analysis. KRPV cites no
    examples of programming specifically directed to the subject
    communities, but instead contends that its religious format provides
    valuable programming services to the communities. We find that
    although the Station's programming may be of potential general
    interest, it has no specific ties to the communities in question. It
    is true that KRPV offers Spanish programming. That programming,
    however, is also not specifically addressed to the communities in
    total. Thus, we find that KRPV's programming does not serve the
    communities in a manner that establishes a specific market
    connection. Without that local market connection, being in the same
    DMA is not enough to require TCI to begin carrying KRPV in the cable
    systems at issue. In that regard, we note that the cable communities
    in question lie outside of KRPV's Grade B contour and are, on
    average, approximately 260 miles from KRPV's city of license. As TCI
    points out, the Bureau has observed that "the broadcast signal
    carriage rules were not intended to transform an otherwise local
    station into a regional 'super station' that must be automatically
    carried in every single community in a \[DMA\]."[^72] Finally, we
    point out that the enabling statute and Commission's rules require
    us to look at communities, not at ZIP codes when dealing with must
    carry and DMA issues. In the instant case, KRPV has not shown that
    the ZIP code it submitted encompasses the disputed communities.

22. **Carriage of Other Stations**. We also believe that TCI's carriage
    of other local television stations provides support for the action
    requested. Where a cable operator is seeking to delete a station's
    mandatory carriage rights in certain communities, the issue of local
    coverage by other stations becomes a factor to which we will give
    greater weight than in cases where a party is seeking to add
    communities. In this case, we find that the Albuquerque stations TCI
    carries have a closer nexus to the cable systems herein than does
    KRPV. These market facts, coupled with the distance between the
    cable systems and KRPV, support TCI's modification under the third
    factor.

23. **Viewership**. Nielsen's *2000 County/Coverage Study* fails to
    indicate any viewership for KRPV in the counties in which the
    subject cable communities are located. The supplemental information
    Prime Time filed recently shows that KRPV has some viewership in the
    Albuquerque-Santa Fe DMA. The audience ratings of 1.9 % cume,
    however, is not community or County specific. Rather, it is
    DMA-wide, and consequently, is of little probative value. Thus,
    although viewership is generally not relevant to specialty stations,
    this dearth of viewership is of evidentiary significance when tied
    with the lack of historical carriage and Grade B coverage.

24. After carefully considering each statutory factor in the context of
    the circumstances presented here, as well as other relevant
    information, we grant TCI's petition for market modification. Based
    on geography, we believe that the cable communities at issue are
    sufficiently removed from KRPV that they ought not to be deemed part
    of KRPV's market for mandatory carriage purposes.[^73] According to
    the legislative history of the 1992 Cable Act, the use of DMA market
    areas is intended "to ensure that television stations be carried in
    the areas which they service and which form their economic
    market."[^74] The Commission may make changes to market areas "to
    better effectuate the purposes" of the mandatory carriage
    requirements.[^75] Moreover, given the evidence as to the lack of
    Grade B coverage, the lack of viewership in the cable communities at
    issue, the lack of historical carriage, and the absence of evidence
    indicating that KRPV provides local programming, we conclude that
    deletion of Santa Fe, Red River, Springer and Raton, from KRPV's
    market for mandatory carriage purposes effectuates the purposes of
    Section 614 of the Communications Act.

25. Finally, we note that KRPV's obligation to pay a regulatory fee for
    its designation as part of the Albuquerque-Santa Fe market is a
    matter which is separate from any market modification
    proceedings.[^76] If KRPV thinks that it is paying an unfair fee, it
    may seek relief pursuant to the Commission's rules.

## Must Carry Complaint

26. In view of our decision in the instant petition, the arguments
    raised by Prime Time and TCI in reference to the above-described
    must carry complaint are now moot. As such, Prime Time's must carry
    complaint is dismissed.

# ordering clauses

27. 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-5623-A), filed by TCI
    Cablevision of New Mexico, Inc. **IS GRANTED**.

28. **IT IS FURTHER ORDERED**, that the must carry complaint
    (CSR-5598-M) filed September 27, 2000, on behalf of Prime Time
    Christian Broadcasting, Inc. **IS DISMISSED**.

29. These actions are taken pursuant to authority delegated by Section
    0.321 of the Commission's rules.[^77]

    FEDERAL COMMUNICATIONS COMMISSION

    Deborah E. Klein, Chief

    Consumer Protection and Competition Division

    Cable Services Bureau

[^1]: The cable systems at issue are located in Raton, Red River, Santa
    Fe and Springer, New Mexico. Petition at 1.

[^2]: In addition, TCI filed a Supplement to Reply to Opposition to
    Petition for Special Relief ("Supplement") and Prime Time filed a
    Supplement to Opposition to Petition for Special Relief ("Supplement
    Response").

[^3]: 8 FCC Rcd 2965, 2976-2977 (1993).

[^4]: Section 614(h)(1)(C) of the Communications Act, as amended by the
    Telecommunications Act of 1996, provides that a station's market 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).
    Until January 1, 2000, Section 76.55(e) of the Commission's rules
    provided that Arbitron's "Areas of Dominant Influence," or ADIs,
    published in the *1991-1992 Television Market Guide*, "be used to
    implement the mandatory carriage rules." Effective January 1, 2000,
    however, Section 76.55(e) requires that Nielsen Media Research's
    DMAs define a commercial broadcast television station's market. For
    the must carry/retransmission consent elections that took place on
    October 1, 1999, commercial television stations were required to
    make their selections based on DMAs. *See Definition of Markets for
    Purposes of the Cable Television Broadcast Signal Carriage Rules*,
    Order on Reconsideration and Second Report and Order, 14 FCC Rcd
    8366 (1999)("*Modification Final Report and Order*").

[^5]: For a more complete description of how counties are allocated,
    *see* Nielsen Media Research's *Nielsen Station Index: Methodology
    Techniques and Data Interpretation*.

[^6]: 47 U.S.C. § 534(h)(1)(C).

[^7]: *Must Carry Order*, 8 FCC Rcd 2965, 2976 (1993).

[^8]: H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992).

[^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 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]: H.R. Rep.102-628, 102d Cong., 2d Sess. 97-98 (1992).

[^12]: *Must Carry Order*, 8 FCC Rcd 2965, 2977 n. 139.

[^13]: 47 C.F.R. § 76.59.

[^14]: Petition at 2.

[^15]: In support, TCI cites *Comcast Cablevision of New Mexico, Inc.*,
    15 FCC Rcd 7922 (2000), where the Commission granted an analogous
    petition modifying KRPV's market to exclude similarly distant cable
    communities. Petition at 2-3.

[^16]: Citing *Time Warner Entertainment-Advance/Newhouse Partnership*,
    11 FCC Rcd 6541, 6553-54 (1996), *Id*. at 3.

[^17]: *Id*.

[^18]: *Id*.

[^19]: *Id*. at 3-4.

[^20]: Citing, *Greater Worcester Cablevision, Inc.*, 13 FCC Rcd 2220
    (1998)(39 to 70 miles); *Greater Worcester Cablevision, Inc.*, 12
    FCC Rcd 17347 (1997)(38 to 61 miles); *Time Warner Cable*, 12 FCC
    Rcd 23,249 (1997)(42 50 58 miles, where the Commission stated that
    the "station's lack of Grade B coverage and \[the station's\]
    geographic distance from the cable communities, although not
    conclusive of themselves ... strongly indicated that the Communities
    served by Time Warner Cable are not part of \[the station's\]
    market."); *Time Warner Cable*, 11 FCC Rcd 13149 (1996) (45 miles);
    and *Cablevision of Cleveland, L.P. and V Cable, Inc. d/b/a
    Cablevision of Ohio*, 11 FCC Rcd 18034 (1996)(41 miles). Petition at
    4-5.

[^21]: *Id*. at 5.

[^22]: Citing, *Comcast Cablevision of New Mexico, Inc.*, 15 FCC Rcd
    7922, 7929-7930 (2000); Petition at 5.

[^23]: *Id*. at Exhibit 8 and Exhibit 9.

[^24]: TCI notes that it carries "Stations KRQE (CBS), KOAT (ABC) and
    KOB (NBC), which air local newscasts Monday through Friday at 5:00
    a.m., 12:00 noon, 5:00 or 5:30 p.m., 6:00 p.m. and 10:00 p.m., that
    cover news and events concerning the subject communities." In
    addition, TCI states that the Santa Fe system carries a local
    station, KCHF, which provides religious programming to the residents
    of that community. *Id*. at 6. *See* Petition at Exhibits 4 and 8.

[^25]: Petition at 7.

[^26]: Opposition at 2.

[^27]: *Id*. at 3.

[^28]: *Id*. at 3 and Exhibit 4.

[^29]: *Id*. at 3 and Exhibit 5.

[^30]: Opposition at 4. According to Prime Time, Adelphia's Taos and
    Questa, New Mexico systems, and US Cable's Arroyo Seco system carry
    KRPV.

[^31]: *Id*.

[^32]: *Id*.

[^33]: *See e.g. Time Warner Cable*, 10 FCC Rcd 936, 938 (1995), citing
    *Amendment of Part 76, Subparts A and D of the Commission's Rules
    and Regulations Relative to Adding a New Definition for "Specialty
    Stations" and "Specialty Format Programming" and Amending the
    Appropriate Signal Carriage Rules*, First Report and Order, 58 FCC
    2d 442, 452 (1976), *recon. denied*, 60 FCC 2d 661 (1976).

[^34]: Opposition at 6.

[^35]: *Id*.

[^36]: *Id*. at 7, citing *Rifkin/Narragansett South Florida*, 11 FCC
    Rcd 21090, 21104 n. 59 (1996).

[^37]: Opposition at 6; *see* P.L. 106-113, § 1000(9), 113 Stat. 1501
    (1999).

[^38]: Opposition at 7.

[^39]: *Id*. at 7-9.

[^40]: *Id*. at 7.

[^41]: *Id*. at 7-8.

[^42]: *Id*. at 8.

[^43]: *Id*. at 9.

[^44]: *Id*.

[^45]: *Id*.

[^46]: *Id*. at 10.

[^47]: *Id*.

[^48]: *Id.*

[^49]: *Id*. at 11.

[^50]: *Id*. at 10-11.

[^51]: *Id*.

[^52]: *Id*. at 11.

[^53]: *Id*.

[^54]: *Id*. at 12.

[^55]: Reply at 2.

[^56]: *Id*. at 3.

[^57]: *Id*. at 4.

[^58]: *Id*.

[^59]: Supplement at 1.

[^60]: Declaration at 1-2.

[^61]: Reply at 6.

[^62]: *Id*. at 8.

[^63]: *Id*. at 10-11.

[^64]: Supplement Response at 2.

[^65]: *Id.*

[^66]: *Id*. at 3.

[^67]: *Id*. at 4.

[^68]: *Id*.

[^69]: H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992).

[^70]: 47 U.S.C. § 534(h)(1)(C)(ii)(I).

[^71]: As a general matter, Grade B coverage demonstrates service to
    cable communities and serves as a measure of a station's natural
    economic market. *See Must Carry Order*, 8 FCC Rcd at 2977*. See
    also Amendment of Section 76.5d1 Orlando-Daytona Beach-Melbourne,
    and Cocoa, Florida*, Report and Order, 102 FCC 2d 1062, 1070
    (1985)("We believe that television stations actually do or logically
    can rely on the area within their Grade B contours for economic
    support.")

[^72]: *Time Warner Entertainment-Advance/Newhouse Partnership*, 11 FCC
    Rcd 6541, 6553-6554 (1996).

[^73]: H.R. Rep. 102-628, 102d Cong., 97-98 (1992).

[^74]: *Id*. at 97.

[^75]: 47 U.S.C. § 534(h).

[^76]: *See Texas Partners, L.P. d/b/a Paragon Cable*, 2000 WL 1610320
    (2000).

[^77]: 47 C.F.R. § 0.321.