*Pages 1--11 from  Microsoft Word - 33426*
 Federal  Communications  Commission  DA  03-  3643 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of: 
 Lone  Pine  Television,  Inc. 
 Petition  For  Modification  of  the  Los  Angeles,  California  DMA 

 KVMD  Licensee  Co.,  LLC  v. 
 Lone  Pine  Television,  Inc. 
 Request  for  Carriage 
 Rancho  Palos  Verdes  Broadcasters,  Inc.  v. 
 Lone  Pine  Television,  Inc. 
 Petition  for  Reconsideration 

 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 

 CSR-  6238-  A 
 CSR-  6199-  M 

 CSR-  6043-  M 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  November  7,  2003  Released:  November  14,  2003 
 By  the  Deputy  Chief,  Policy  Division,  Media  Bureau: 
 I.  INTRODUCTION 
 1.  Lone  Pine  Television,  Inc.  (  Lone  Pine),  filed  the  above-  captioned  petition  for  special  relief  seeking  to  modify  the  Los  Angeles,  California  designated  market  area  (  DMA)  with  respect  to 

 television  broadcast  stations  KVMD,  Twentynine  Palms,  California  (  KVMD),  KXLA  (Ch.  44),  Rancho  Palos  Verdes,  California  (  KXLA),  and  KJLA  (Ch.  57),  Ventura,  California  (  KJLA).  Specifically, 
 Lone  Pine  requests  that  KVMD,  KXLA  and  KJLA  be  excluded,  for  purposes  of  the  cable  television  mandatory  broadcast  signal  carriage  rules,  from  its  cable  systems  serving  Lone  Pine  and  Alabama  Hills, 
 California.  KVMD  Licensee  Co.,  LLC,  licensee  of  KVMD,  and  Rancho  Palos  Verdes  Broadcasters,  Inc.,  licensee  of  KXLA,  filed  a  joint  opposition  to  the  petition  to  which  Lone  Pine  replied.  No  opposition  from 
 KJLA  was  received.  In  associated  filings,  KVMD  filed  a  must  carry  complaint  against  Lone  Pine  for  its  failure  to  carry  its  signal  on  the  Lone  Pine  and  Alabama  Hills  cable  systems  and  Lone  Pine  has  a  pending 
 petition  for  reconsideration  of  the  Bureaus  decision  in  Rancho  Palos  Verdes  Broadcasters,  Inc.  v.  Lone  Pine  Television,  Inc.,  which  granted  KXLAs  complaint  seeking  carriage  on  Lone  Pines  systems  in  the 
 subject  communities.  1  KVMDs  complaint  is  unopposed.  An  opposition  to  Lone  Pines  petition  for 

 1  18  FCC  Rcd  7068  (2003). 
1
 Federal  Communications  Commission  DA  03-  3643 
 2 
 reconsideration  was  filed  on  behalf  of  KXLA  to  which  Lone  Pine  replied.  We  are  consolidating  these  cases  in  order  to  determine  the  signal  carriage  rights  of  KVMD  and  KXLA  on  the  cable  systems  in 
 question.  For  the  reasons  stated  below,  we  grant  Lone  Pines  market  modification  and  dismiss  both  KVMDs  must  carry  complaint  and  Lone  Pines  petition  for  reconsideration. 

 II.  BACKGROUND 
 2.  Pursuant  to  Section  614  of  the  Act  and  the  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  stations  market.  2  A  stations  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.  Each  county  in  the  United  States  is  assigned  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  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 
 stations  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   

 (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 

 2  8  FCC  Rcd  2965,  2976-  2977  (1993). 
 3  Section  614(  h)(  1)(  C)  of  the  Communications  Act,  as  amended  by  the  Telecommunications  Act  of  1996, 
 provides  that  a  stations  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  stations  market  be  defined  by  Nielsen  Media  Researchs  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  Researchs  Nielsen  Station  Index:  Methodology  Techniques  and  Data  Interpretation. 

 5  47  U.  S.  C.    534(  h)(  1)(  C). 
2
 Federal  Communications  Commission  DA  03-  3643 
 3 
 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 
 stations  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  stations  market.  7 
 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.  8 

 4.  In  the  Market  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: 
 (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  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  stations  technical  service  area  and  showing  the  location  of  the  cable  system  headends  and  communities 
 in  relating  to  the  service  areas. 

 6  Id. 
 7  H.  R.  Rep.  102-  628,  102d  Cong.,  2d  Sess.  97  (1992). 
 8  Must  Carry  Order,  8  FCC  Rcd  at  2977  n.  139. 
3
 Federal  Communications  Commission  DA  03-  3643 
 4 
 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  refiled  at  a  later  date  with  the  appropriate  filing  fee.  The  Market 
 Modification  Final  Report  and  Order  provides  that  parties  may  continue  to  submit  whatever  additional  evidence  they  deem  appropriate  and  relevant. 

 5.  Pertinent  to  KVMD,  in  Carriage  of  Digital  Television  Broadcast  Signals  First  Report  and  Order  (  DTV  Must  Carry  Report  and  Order),  the  Commission  concluded  that  under  Section  614(  a) 
 of  the  Act,  a  digital-  only  television  station  has  mandatory  carriage  rights,  and  amended  the  rules  accordingly.  11  The  Commission  has  established  a  framework  for  analyzing  market  modifications  for 
 digital  television  stations.  12  The  Commission  stated  that  Nielsens  market  designations,  publications,  and  assignments  for  the  analog  television  market  should  continue  to  be  binding  on  broadcast  stations 
 transitioning  to  digital  television  broadcasting.  The  presumption  is  that  the  market  of  the  stations  digital  signal  is  coterminous  with  the  stations  market  area  for  its  analog  signal  during  the  transition  period.  13 

 9  The  Longley-  Rice  model  provides  a  more  accurate  representation  of  a  stations  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  See  16  FCC  Rcd  2598,  2606  (2001);  47  C.  F.  R.    76.64(  f)(  4).  The  Commission  has  held  that  a  television 
 station  may  elect  to  have  its  digital  signal  carried  in  an  analog  format  by  local  cable  systems.  The  Commission  concluded  that  for  purposes  of  supporting  the  conversion  to  digital  signals  and  facilitating  the  return  of  the  analog 

 spectrum,  a  television  station  may  demand  that  one  of  its  high  definition  digital  (  HDTV)  or  standard  definition  digital  (  SDTV)  television  signals  be  carried  on  the  cable  system  for  delivery  to  subscribers  in  an  analog  format. 
 DTV  Must  Carry  Report  and  Order,  16  FCC  Rcd  at  2630.  12 
 See  Id.  at  2635-  36.  13 
 We  note  that  in  adopting  technical  rules  for  the  digital  transmission  of  broadcast  signals,  the  Commission  attempted  to  insure  that  a  station's  digital  over-  the-  air  coverage  area  would  replicate  as  closely  as  possible  its  current 

 (continued) 
4
 Federal  Communications  Commission  DA  03-  3643 
 5 
 The  Commission  also  found  that  the  statutory  factors  in  Section  614(  h),  the  current  process  for  requesting  market  modifications,  and  the  evidence  needed  to  support  such  petitions,  will  be  applicable  to  digital 
 television  modification  petitions  during  the  transition  period  when  television  stations  broadcast  both  an  analog  signal  and  a  digital  signal.  14  The  Commission  recognized  that  the  technical  coverage  area  of  a 
 digital  television  signal  may  not  exactly  replicate  the  technical  coverage  area  of  the  analog  television  signal.  Therefore,  in  deciding  DTV  market  modification  cases,  the  Commission  stated  that  it  would  take 
 into  consideration  changes  in  signal  strength  and  technical  coverage  because  of  new  digital  television  channel  assignments  and  power  limits.  It  concluded  that  all  other  matters  concerning  the  modification 
 process  for  digital  television  signals  will  be  decided  on  a  case-  by-  case  basis.  15 
 III.  DISCUSSION 
 A.  KVMD 
 6.  KVMD  states  that  it  is  an  authorized  full  service  digital  UHF  station  whose  city  of  license  is  Twentynine  Palms,  California,  a  community  located  in  San  Bernadino  County,  California.  16 

 KVMD  further  states  that  its  DTV  facility  is  authorized  to  broadcast  on  Channel  23  and  commenced  operations,  pursuant  to  special  temporary  authority,  on  July  29,  2002.  KVMD  adds  that  on  June  1,  2003, 
 it  discontinued  analog  operations,  and  commenced  digital-  only  operations,  pursuant  to  Commission  authorization.  17  KVMD  states  that  the  Station  and  Lone  Pines  cable  systems  are  both  located  in  the  Los 
 Angeles  DMA.  KVMD  states  that  by  certified  letters  dated  May  5,  2003,  it  elected  and  sought  mandatory  carriage  on  Lone  Pines  cable  systems.  The  Station  asserts  that  Lone  Pine  failed  to  respond  to  KVMDs 
 request  within  the  required  30  days  of  receipt  pursuant  to  Section  76.61(  a)(  2)  of  the  Commissions  rules.  18  Lone  Pine  subsequently  filed  a  petition  for  special  relief  seeking  modification  of  KVMDs  market.  Lone 
 Pines  market  modification  arguments  are  set  forth  below. 
 7.  History  of  carriage.  Lone  Pine  asserts  that  KVMDs  digital  signal  has  no  history  of  carriage  on  its  cable  systems.  19  Lone  Pine  states  that  this  lack  of  carriage  is  not  surprising  considering 

 that  KVMD  is  located  over  200  miles  away  and  cannot  deliver  a  good  quality  signal  to  Lone  Pines  principal  headend.  20  In  its  response,  the  Station  asserts  that  two  other  cable  operators,  Adelphia 
 Communications  (  Adelphia)  and  Charter  Communications  (  Charter)  have  understandings  with  KVMD  to  carry  its  signal  on  their  respective  cable  systems  in  the  Los  Angeles  DMA.  21  According  to 
 KVMD,  Adelphias  and  Charters  carriage  of  its  signal  demonstrates  that  Lone  Pines  refusal  to  carry  KVMD  is  not  attributable  to  the  stations  lack  of  appeal  to  viewers  in  the  communities  or  the  location  of 

 (  continued  from  previous  page)  over-  the-  air  analog  coverage  area.  See  Sixth  DTV  Report  and  Order,  12  FCC  Rcd  14588,  14605  (1997). 
 14  See  DTV  Must  Carry  Report  and  Order,  16  FCC  Rcd  at  2636. 
 15  Id. 
 16  Twentynine  Palms  is  on  the  eastern  edge  of  the  Los  Angeles  DMA. 
 17  KVMD  Must  Carry  Complaint  at  2,  citing  KVMD(  TV),  Twentynine  Palms,  CA,  DA  03-  1481  (rel.  May  1, 
 2003).  18 
 47  C.  F.  R.    76.61(  a)(  2).  19 
 Modification  at  Exhibit  1.  20 
 Id.  at  9.  21 
 Opposition  at  7  and  Exhibit  C. 
5
 Federal  Communications  Commission  DA  03-  3643 
 6 
 the  communities  outside  the  scope  of  the  stations  market.  22  Lone  Pine  asserts  that  KVMDs  carriage  by  Adelphia  and  Charter  is  totally  irrelevant  because  the  closest  of  the  Adelphia  and  Charter  communities  is 
 well  over  100  miles  from  the  communities  at  issue.  23  Lone  Pine  states  that  this  only  supports  its  argument  that  its  communities  are  outside  of  KVMDs  market.  Finally,  Lone  Pine  argues  that  there  are 
 no  economic,  shopping  or  labor  connections  between  KVMD  and  the  communities  due  to  the  geographic  distance  between  Twentynine  Palms  and  the  communities.  24 

 8.  Local  Service.  Lone  Pine  asserts  that  KVMD  fails  to  provide  any  coverage  or  local  service  to  the  subject  communities.  25  Lone  Pine  states  its  communities  are  approximately  120  miles 
 outside  the  nearest  edge  of  KVMDs  digital  service  contour.  26  Moreover,  Lone  Pine  states  that  its  communities  are  over  200  miles  distant  from  Twentynine  Palms,  KVMDs  city  of  license,  and  the 
 Commission  has  previously  excluded  communities  in  market  modification  cases  where  the  distances  were  considerably  shorter.  27  Lone  Pine  points  out  that  the  subject  communities  are  also  separated  from  KVMD 
 by  geographic  barriers  such  as  the  Mojave  Desert,  Inyo  National  Forest,  Sequoia  National  Forest,  Red  Rock  Canyon,  and  the  Sierra  Nevada  Mountains.  28  In  response,  KVMD  states  that,  under  standards 
 developed  by  the  Commission  in  the  analog  context,  Grade  B  coverage  has  generally  been  held  to  demonstrate  a  stations  service  to  cable  communities  and  to  reflect  a  stations  natural  geographic  market.  29 
 KVMD  concedes  that  it  does  not  it  does  not  provide  digital  service  and  that  the  communities  are  more  than  100  miles  distant,  but  it  commits  to  provide,  via  alternative  means  of  signal  delivery,  41  dBu  signal 
 strength  coverage  to  the  cable  communities.  30  KVMD  adds  that,  as  evidenced  by  Adelphias  and  Charters  willingness  to  carry  its  signal,  KVMD  is  able  to  serve  Lone  Pine  with  a  good  quality  signal.  31 
 Lone  Pine  argues  that  KVMDs  ability  to  deliver  its  signal  via  satellite  does  not  negate  the  fact  that  the  subject  communities  are  so  far  removed  from  KVMDs  service  area  that  they  are  not  part  of  the  stations 
 market.  32 
 9.  Lone  Pine  argues  that  KVMD  does  not  carry  any  news,  public  affairs  or  public  service  programming  and  does  not  broadcast  programming  of  specific  interest  to  residents  of  the  cable 

 22  Id.  at  8. 
 23  Reply  at  7. 
 24  Modification  at  13. 
 25  Modification  at  9. 
 26  Id.,  citing  contour  maps  appended  to  Mediacom  California  LLC  market  modification  (CSR-  6222-  A). 
 27  Id.  at  10,  citing  Time  Warner  Entertainment/  Advance  Newhouse  Partnership,  18  FCC  Rcd  4990  (2003) 
 (105-  118  miles);  Avenue  TV  Cable  Service,  16  FCC  Rcd  16436  (2001)  (85  miles);  Greater  Worcester  Cablevision,  Inc.,  13  FCC  Rcd  22220  (1998)  (39-  70  miles);  Mid-  Hudson  Cablevision,  Inc.,  15  FCC  Rcd  5011  (2000)  (31-  70 

 miles).  28 
 Id.  at  11  and  Exhibit  K.  29 
 Opposition  at  8,  citing  First  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  16  FCC  Rcd  2598,  2977  (2001);  see  also  47  C.  F.  R.    73.622(  e). 

 30  Opposition  at  8-  9. 
 31  KVMD  states  that  Adelphia  currently  carries  its  signal  on  ten  cable  system  and  has  agreed  to  carry  it  on 
 substantially  all  of  the  Adelphias  systems  by  November  2003.  See  Opposition  at  Exhibit  C,  Declaration  of  Mr.  Ronald  L.  Ulloa,  President  of  KVMD. 

 32  Reply  at  7. 
6
 Federal  Communications  Commission  DA  03-  3643 
 7 
 communities.  33  KVMD  counters  that  its  programming  has  a  distinct  nexus  to  the  cable  communities  at  issue.  34  It  asserts  that  it  carries  a  substantial  amount  of  programming  about  horses  and  that  there  are  many 
 horse  enthusiasts  throughout  the  Los  Angeles  DMA.  35  KVMD  also  states  that  it  carries  informational  and  inspirational  local  programming  such  as  Working  Wardrobe,  This  Week  in  Garden  Grove,  City 
 Beat,  Inland  Empire  Alive  for  people  living  in  San  Bernadino  and  Riverside  Counties.  36  KVMD  adds  that  it  expects  to  launch  a  new  locally  produced  news  program  directed  at  viewers  throughout  the  Los 
 Angeles  DMA.  Lone  Pine  asserts  that  KVMD  has  not  provided  sufficient  evidence  in  the  record  to  support  its  claim  that  the  Stations  programming  serves  the  interests  of  viewers  in  the  cable 
 communities.  37 
 10.  Carriage  of  other  local  television  stations.  Lone  Pine  asserts  that  it  carries  other  Los  Angeles  DMA  television  stations  that  cover  news,  sporting  events,  and  issues  of  concern  to  the  cable 

 communities.  38  KVMD  states  that  Lone  Pine  has  made  no  showing  that  it  currently  carries  any  broadcast  television  station  that  offers  the  unique  programming  provided  by  KVMD,  or  that  promises  to  deliver  the 
 multicultural  news  and  community  interest  stories  that  the  Station  plans  to  offer  in  the  near  future.  39 
 11.  Viewing  patterns.  Lone  Pine  asserts  that  KVMDs  signal  failed  to  achieve  reportable  off-  air  viewing  in  Inyo  County,  where  the  communities  are  located.  40  Lone  Pine  asserts  that  the  dearth  of 

 viewers  is  consistent  with  the  distance  between  the  communities  and  KVMD.  KVMD  argues  that  it  should  be  treated  as  a  new  station  for  market  modification  purposes  because  it  is  under  new  ownership 
 and  because  it  is  a  new  digital-  only  station.  41  Based  on  these  facts,  KVMD  states  that  viewership  levels  should  not  be  accorded  substantial  weight  in  this  proceeding. 

 12.  Section  614(  h)(  1)(  C)  of  the  Communications  Act  authorizes  the  Commission  to  include  or  exclude  particular  communities  from  a  television  stations  market  for  the  purpose  of  ensuring  that  a 
 television  station  is  carried  in  the  areas  which  it  serves  and  which  form  its  economic  market.  42  Section  614(  h)(  1)(  C)(  i)  specifically  and  unambiguously  directs  the  Commission,  in  considering  requests  for 
 market  modification,  to  afford  particular  attention  to  the  value  of  localism  by  taking  such  matters  into  account.  43  These  principles  apply  to  all  television  stations  without  regard  to  the  mode  in  which  the  station 
 broadcasts.  KVMD  urges  us  to  adopt  a  new  paradigm  for  market  modification  cases  involving  digital  television  stations.  It  asks  us  to  abandon  precedent  and  order  a  cable  operator  to  carry  a  digital  television 
 signal  if  a  subject  television  station  promises  to  provide  a  good  quality  signal  to  the  cable  systems  principal  headend.  KVMDs  proposal  is  directly  contrary  to  Section  614(  h). 

 33  Modification  at  11. 
 34  Opposition  at  11  and  Exhibits  D-  F. 
 35  Id. 
 36  Id. 
 37  Reply  at  8. 
 38  Modification  at  12. 
 39  Opposition  at  15. 
 40  Modification  at  Exhibit  N. 
 41  Opposition  at  15-  16. 
 42  47  U.  S.  C.    534(  h)(  1)(  C). 
 43  47  U.  S.  C.    534(  h)(  1)(  C)(  i). 
7
 Federal  Communications  Commission  DA  03-  3643 
 8 
 13.  Furthermore,  the  Commission  has  found  that  the  statutory  factors  in  Section  614(  h),  the  current  process  for  requesting  market  modifications,  and  the  evidence  needed  to  support  such  petitions, 
 are  applicable  to  digital  television  modification  proceedings  during  the  transition  period.  44  KVMDs  proposal  ignores  the  directives  the  Commission  established  over  two  years  ago.  KVMD  did  not  petition 
 the  Commission  to  reconsider  its  conclusions  on  the  application  of  Section  614(  h)  to  digital  television  stations.  It  is  inappropriate  for  KVMD  to  attempt  to  do  so  here,  or  in  other  market  modification 
 proceedings. 
 14.  Lone  Pine  has  presented  evidence  in  the  record  to  support  its  request.  In  this  matter,  KVMD  has  no  history  of  carriage  and  no  discernable  viewership  in  the  communities  at  issue.  The  record 

 evidence  also  indicates  that  KVMDs  analog  signal,  when  it  was  broadcasting,  was  not  carried  and  did  not  have  viewership  in  the  cable  communities.  Although  KVMD  claims  to  have  carriage 
 understandings  in  place  with  Adelphia  and  Charter,  KVMD  only  provides  a  projected  commencement  schedule  for  Adelphia  that  indicates  carriage  of  KVMD  in  various  communities  in  the  Los  Angeles  DMA 
 beginning  in  August  2003  and  ending  in  November  2003.  45  It  is  not  clear  whether  or  where  such  carriage  has  actually  commenced.  Moreover,  none  of  the  Adelphia  communities  listed  appears  to  be  adjacent,  or 
 geographically  proximate,  to  the  Lone  Pine  communities.  It  is  also  evident  that  KVMD  is  geographically  distant  from  the  communities,  that  its  digital  coverage  area  falls  far  short  of  the  cable  communities,  and 
 that  the  Station  is  separated  from  the  communities  by  mountain  ranges,  desert,  and  political  boundaries.  KVMD  has  also  failed  to  rebut  Lone  Pines  showing  with  sufficient  evidence  that  its  programming  has  a 
 distinct  nexus  to  the  cable  communities.  Moreover,  we  cannot  credit  KVMDs  promised  future  local  programming  for  purposes  of  the  instant  modification  proceeding.  Lone  Pine  has  shown,  however,  that 
 there  are  numerous  local  television  stations  that  it  currently  carries  that  provide  specific  programming  of  interest  to  the  cable  communities.  46  In  conclusion,  relying  on  case  precedent  for  analog  television  station 
 market  modifications,  the  grant  of  Lone  Pines  market  modification  request  would  effectuate  the  purposes  of  Section  614(  h)  of  the  Act.  Because  we  find  that  KVMD  is  not  local  for  mandatory  carriage  purposes, 
 its  must  carry  complaint  is  dismissed  as  moot. 
 B.  KXLA  and  KJLA 
 15.  History  of  Carriage.  Lone  Pine  states  that  neither  KXLA  nor  KJLA  have  a  history  of  carriage  on  the  systems.  47  Lone  Pine  asserts  that  this  is  not  surprising  since  KXLA  is  located 

 approximately  200  miles  away  and  KJLA  approximately  175  miles  precluding  either  station  from  delivering  a  good  quality  signal.  48  In  opposition,  KXLA  argues  that  it  has  only  been  operating  for 
 approximately  two  years  and  the  Commission  has  repeatedly  held  with  respect  to  new  stations  that  lack  of  historical  carriage  is  of  little  or  no  relevance  in  modification  cases  because,  otherwise,  such  stations 
 would  be  prevented  from  ever  getting  carriage.  49  KXLA  states  that  the  Commission  has  also  recognized  that  because  of  their  limited  audience,  specialty  stations,  such  as  KXLA,  have  not  been  widely  carried 

 44  See  DTV  Must  Carry  Report  and  Order,  16  FCC  Rcd  at  2636. 
 45  See  Opposition  at  Exhibit  C. 
 46  See  Modification  at  12. 
 47  Modification  at  Exhibits  A  and  P. 
 48  Id.  at  3  and  15. 
 49  Opposition  at  17,  citing  Time  Warner  Entertainment  Co.,  L.  P.,  12  FCC  Rcd  22069,  22077  (1997); 
 Horizon  Broadcasting  Corporation,  12  FCC  Rcd  11634,  11638  (1997);  Time  Warner  Cable,  11  FCC  Rcd  8047,  8053-  54  (1996). 
8
 Federal  Communications  Commission  DA  03-  3643 
 9 
 by  cable  operators  absent  must  carry  obligations.  50  KXLA  maintains  that  not  only  does  Lone  Pines  carriage  of  other  stations  broadcasting  from  the  same  geographic  area  as  its  station  (i.  e.,  Mt.  Wilson) 
 weigh  in  favor  of  KXLAs  carriage  in  the  communities,  but  the  situation  is  analogous  to  that  described  in  Comcast  Cablevision  of  Danbury,  Inc.,  where  the  Commission  denied  a  request  for  exclusion  because  the 
 station  in  question  was  part  of  the  hub  of  the  New  York  DMA.  51  KXLA  asserts  that  both  Mt.  Wilson  and  its  community  of  license,  Rancho  Palos  Verdes,  can  be  considered  hubs  of  the  City  of  Los  Angeles. 
 Lone  Pine  argues  in  reply  that  the  Commission  previously  rejected  KXLAs  hub  argument  in  its  decision  in  Time  Warner  Entertainment/  Advance-  Newhouse  Partnership  d/  b/  a  Time  Warner  based  on 
 geographic  distance,  lack  of  Grade  B  coverage,  multiple  geographic  barriers  and  no  carriage  of  any  other  station  licensed  to  Rancho  Palos  Verdes.  52  In  this  instance,  Lone  Pine  states  that  along  with  the  other 
 factors  enumerated,  the  distances  between  the  communities  are  even  greater.  53 
 16.  Local  Service.  Lone  Pine  asserts  that,  because  of  the  extreme  distance  of  the  stations,  KXLA  and  KJLA  do  not  provide  any  coverage  or  local  service  to  the  subject  communities.  54  Lone  Pine 

 points  out  that  the  Commission  has  repeatedly  emphasized  that  the  failure  to  provide  Grade  B  coverage  is  an  important  factor  in  a  market  modification  analysis.  55  Lone  Pine  states  that  its  communities  are 
 approximately  120  and  125  miles,  respectively,  outside  the  nearest  edge  of  KXLAs  and  KJLAs  Grade  B  contours.  56  Lone  Pine  states  that,  in  addition  to  mileage,  its  communities  are  separated  from  Rancho 
 Palos  Verdes  and  Ventura,  California  by  geographic  barriers  such  as  the  San  Gabriel  Mountains,  Tehachapi  Mountains,  Mojave  Desert,  Inyo  National  Forest,  Red  Rock  Canyon,  Angeles  National  Forest, 
 Sequoia  National  Forest,  Desert  Tortoise  National  Area,  Antelope  Valley,  the  Sierra  Nevada  Mountains  and  the  City  of  Los  Angeles.  57  KXLA  argues  that  the  instant  proceeding  presents  a  situation  in  which  the 
 Commission  must  look  to  factors  beyond  the  technical  Grade  B  contour  requirement  in  considering  coverage  and  local  service.  It  points  out  that  the  Commission  has  stated  that  while  as  a  general  matter 
 Grade  B  coverage  demonstrates  service  to  cable  communities  and  serves  as  a  measure  of  a  stations  natural  economic  market,  it  is  not  an  exclusive  test.  58  KXLA  maintains  that  an  emphasis  on  narrow 
 geographic  considerations  is  inappropriate  here  where  the  Asian-  American  communities  that  serve  as  KXLAs  audience  form  communities  that  cross  city  and  county  lines,  transforming  the  entire  Los 
 Angeles  market  into  groups  of  interrelated  markets.  59  Lone  Pine  argues  that  the  insurmountable  distance 

 50  Id.,  citing  CoxCom,  Inc.,  17  FCC  Rcd  17192,  17195  (2002). 
 51  Id.  at  17-  18,  citing  18  FCC  Rcd  274,  278  (2003). 
 52  Reply  at  3,  citing  18  FCC  Rcd  4490  (2003). 
 53  Id.  Lone  Pine  points  out  that  in  Time  Warner  the  distances  were  105-  118  miles  while  here  the  distance  is 
 200  miles.  54 
 Modification  at  4  and  15.  55 
 Id.,  citing  Dynamic  Cablevision  of  Florida,  11  FCC  Rcd  9880  (1992);  Rancho  Palos  Verdes  Broadcasters,  Inc.,  18  FCC  Rcd  9589  (2003). 

 56  Id. 
 57  Id.  at  5  and  16. 
 58  Opposition  at  21,  citing  Suburban  Cable  TV  Co.,  Inc.,  16  FCC  Rcd  10790,  10797  (2001)  (citing  Must 
 Carry  Order,  8  FCC  Rcd  at  2977).  59 
 Id.,  citing  Fouce  Amusement  Enterprises,  Inc.,  10  FCC  Rcd  668,  670  (1995). 
9
 Federal  Communications  Commission  DA  03-  3643 
 10 
 and  geographic  barriers  in  this  case  cannot  be  disregarded.  60 
 17.  Lone  Pine  argues  that  KXLA  and  KJLA  do  not  carry  any  news,  public  affairs  or  public  service  programming  and  do  not  broadcast  programming  of  specific  interest  to  the  residents  of  the  cable 

 communities.  61  Lone  Pine  also  argues  that  there  is  no  commercial  connection  between  the  cable  communities  and  Rancho  Palos  Verdes  and  Ventura.  62  KXLA  argues  that,  in  addition  to  daily  childrens 
 programming,  it  provides  unique  locally-  focused  Asian-  American  language  programming  that  Lone  Pine  should  utilize  for  the  benefit  of  its  Asian-  American  subscribers.  63  Lone  Pine  states  that  KXLA  offers  no 
 evidence  that  it  carries  programming  that  is  tailored  to  the  subject  communities.  64  Lone  Pine  argues,  however,  that  KXLA  reliance  on  its  Asian-  American  programming  is  irrelevant  in  this  case  because, 
 according  to  2000  Census  data,  Asians  constitute  a  mere  1  percent  of  Lone  Pines  population  which  is  far  below  the  10.9  percent  figure  for  the  rest  of  California.  65 

 18.  Carriage  of  other  local  television  stations.  Lone  Pine  states  that  it  carries  many  other  Los  Angeles  DMA  television  stations  that  carry  programming  that  covers  news,  sporting  events  and 
 issues  of  concern  to  the  communities.  66  KXLA  states  that  Lone  Pine  has  made  no  showing  that  it  currently  carries  any  broadcast  television  stations  that  offer  the  unique  programming  provided  by 
 KXLA.  67 
 19.  Viewing  Patterns.  Lone  Pines  asserts  that  KXLAs  and  KJLAs  signals  failed  to  achieve  any  reportable  off-  air  viewing  in  Inyo  County,  where  the  communities  are  located.  68  Lone  Pine  argues 

 that  the  dearth  of  viewers  is  consistent  with  the  distance  between  the  communities  and  the  stations.  KXLA  states  that  because  it  has  only  been  on-  the-  air  for  two  years  it  is  still  in  the  process  of  building  its 
 viewership.  The  Commission  has  recognized  that  it  normally  takes  up  to  3  years  for  a  station  to  build  viewership  within  its  licensed  area.  69  KXLA  maintains  that,  because  of  its  specialty  station  status,  the 
 mitigating  factors  that  apply  to  its  lack  of  historic  carriage  should  apply  equally  here.  70 
 20.  With  regard  to  KXLA  and  KJLA,  Lone  Pine  has  presented  evidence  to  support  its  request.  KXLA  and  KJLA  have  no  history  of  carriage  and  no  discernable  viewership  in  the  communities 

 at  issue.  It  does  not  appear  that  any  proximate  cable  systems  carry  either  KXLA  or  KJLA.  In  the  case  of  KXLA,  as  a  relatively  new  specialty  station,  we  do  not  afford  considerable  weight  to  this  deficiency. 
 However,  it  is  clear  that  KXLA,  as  well  as  KJLA,  are  geographically  distant  from  the  communities  at  200  and  175  miles,  respectively;  that  their  predicted  Grade  B  contours  fall  far  short  of  the  communities;  and 

 60  Reply  at  4. 
 61  Modification  at  5-  6  and  17. 
 62  Id.  at  8  and  19. 
 63  Opposition  at  22  and  Exhibit  K. 
 64  Reply  at  5. 
 65  Id.  at  Exhibit  A. 
 66  Modification  at  7  and  18. 
 67  Opposition  at  22-  23. 
 68  Modification  at  Exhibits  G  and  V. 
 69  Opposition  at  24,  citing  Avenue  TV  Cable  Services,  Inc.,  16  FCC  Rcd  16436,  16445  (2001). 
 70  Id.,  citing  The  Chronicle  Publishing  Company,  10  FCC  Rcd  9474,  9482  (1995). 
10
 Federal  Communications  Commission  DA  03-  3643 
 11 
 that  the  stations  are  separated  from  the  communities  by  numerous  geographic  barriers  such  as  the  San  Gabriel  Mountains  and  the  Inyo  National  Forest.  These  factors  also  tend  to  explain  the  history  of  non-carriage 
 of  the  stations  on  Lone  Pines  cable  systems  and  strongly  indicate  that  Lone  Pine  and  Alabama  Hills  are  too  distant  to  properly  be  a  part  of  KXLAs  and  KJLAs  market.  KXLA  has  argued  that  all  of 
 these  factors  are  irrelevant  because  of  the  fact  that  it  provides  Asian-  language  programming  for  the  benefit  of  the  Asian-  American  population  throughout  the  Los  Angeles  DMA  and  it  cites  Fouce 
 Amusement  in  support.  71  However,  in  Fouce  Amusement,  the  Commission  noted  that  the  station  in  question  provided  the  only  locally-  produced  programming  of  particular  appeal  to  the  Asian  community.  72 
 In  the  instant  matter,  KXLA  fails  to  provide  any  specific  information  or  documentation  regarding  the  orientation  of  its  programming  to  the  communities  of  Lone  Pine  and  Alabama  Hills.  Because  we  find  that 
 KXLA  is  not  local  for  mandatory  carriage  purposes,  Lone  Pines  petition  for  reconsideration  of  the  Bureaus  grant  of  KXLAs  must  carry  complaint  against  Lone  Pine  is  dismissed  as  moot.  In  addition,  the 
 Bureaus  action  granting  KXLAs  complaint  against  Lone  Pine  for  carriage  in  Lone  Pine  and  Alabama  Hills  is  rescinded. 

 IV.  ORDERING  CLAUSES 
 21.  Accordingly,  IT  IS  ORDERED,  pursuant  to  Section  614(  h)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    534(  h),  and  Section  76.59  of  the  Commissions  rules,  47  C.  F.  R.   

 76.59,  that  the  captioned  petition  for  special  relief  (CSR-  6238-  A),  filed  by  Lone  Pine  Television,  Inc.,  IS  GRANTED. 

 22.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  614  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    534,  and  Section  76.61  of  the  Commissions  rules,  47  C.  F.  R.    76.61,  that 
 the  must  carry  complaint  filed  by  KVMD  Licensee  Co.,  LLC  (CSR-  6199-  M)  IS  DISMISSED. 
 23.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  1.106  of  the  Commissions  rules,  47  C.  F.  R.    1.106,  that  the  petition  for  reconsideration  filed  by  Lone  Pine  Television,  Inc.  (CSR-  6043-  M)  IS 

 DISMISSED. 
 24.  IT  IS  FURTHER  ORDERED,  that  the  Bureaus  April  11,  2003  action  (DA  03-  1154)  granting  the  must  complaint  of  Rancho  Palos  Verdes  Broadcasters,  Inc.  (CSR-  6043-  M)  IS  HEREBY 

 RESCINDED. 
 25.  These  actions  are  taken  pursuant  to  delegated  authority  pursuant  to  Section  0.283  of  the  Commissions  rules.  73 

 FEDERAL  COMMUNICATIONS  COMMISSION 
 Steven  A.  Broeckaert  Deputy  Chief,  Policy  Division 
 Media  Bureau 
 71  Opposition  at  21. 
 72  The  Commissions  ruling  in  Fouce  Amusement  was  not  decided  on  the  issue  of  foreign-  language 
 programming.  In  that  matter,  inter  alia,  the  cable  communities  were  located  within  the  City  Grade  coverage  of  the  station  at  issue.  See  Fouce  Amusement,  10  FCC  Rcd  at  671. 

 73  47  C.  F.  R.    0.283. 
11