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 Federal  Communications  Commission  DA  03-  1553 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 Frontier,  A  Citizens  Communications  Company 
 For  Modification  of  the  Los  Angeles,  California  DMA 


 Rancho  Palos  Verdes  Broadcasters,  Inc.  v. 
 Frontier,  A  Citizens  Communications  Company 
 Request  for  Carriage 


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 CSR-  6117-  A 
 CSR-  6069-  M 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  May  8,  2003  Released:  May  12,  2003 
 By  the  Chief,  Policy  Division,  Media  Bureau: 
 I.  INTRODUCTION 
 1.  Frontier,  A  Citizens  Communications  Company  (  Frontier)  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  KXLA  (Ch.  44),  Rancho  Palos  Verdes,  California  (  KXLA).  Specifically,  Frontier  requests  that  KXLA  be  excluded,  for  purposes  of  the  cable  television  mandatory 
 broadcast  signal  carriage  rules,  from  its  cable  system  serving  Needles,  California.  1  Rancho  Palos  Verdes  Broadcasters,  Inc.,  licensee  of  KXLA,  filed  an  opposition  to  the  petition  to  which  Frontier  replied.  In  an 
 associated  filing,  KXLA  filed  a  must  carry  complaint  against  Frontier  for  its  failure  to  carry  its  signal  on  the  Needles  cable  system.  An  opposition  to  this  petition  was  filed  on  behalf  of  Frontier  to  which  KXLA 
 replied.  We  are  consolidating  these  cases  in  order  to  determine  the  signal  carriage  rights  of  KXLA  on  the  cable  system  in  question.  For  the  reasons  stated  below,  we  grant  Frontiers  request  for  modification  and 
 dismiss  KXLAs  complaint. 
 II.  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 


 1  Frontier  notes  that  KXLAs  must  carry  complaint  also  listed  the  community  of  Lower  Mojave  Valley, 
 California.  Frontier  states  that  while  it  does  serve  Lower  Mojave  Valley,  Arizona,  that  community  is  located  outside  the  Los  Angeles  DMA  and,  as  such,  not  relevant  to  either  of  the  instant  proceedings. 
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 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.  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 
 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 
 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 


 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  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,  Order  on  Reconsideration  and  Second  Report  and  Order,  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).  6 
 Id. 
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 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  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: 
 (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  stations  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 


 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  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  (continued) 
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 (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  at  a  later  date  with  the  appropriate  filing  fee.  The 
 Modification  Final  Report  and  Order  provides  that  parties  may  continue  to  submit  whatever  additional  evidence  they  deem  appropriate  and  relevant. 


 III.  DISCUSSION 
 5.  The  issue  before  us  is  whether  to  grant  Frontiers  request  to  exclude  KXLA  from  mandatory  carriage  on  its  cable  system  serving  Needles,  California.  Needles  is  located  in  San  Bernardino 


 County,  California  which  is  considered  part  of  the  Los  Angeles  DMA.  KXLA  is  licensed  to  Rancho  Palos  Verdes,  which  is  also  located  in  the  Los  Angeles  DMA.  Considering  all  of  the  relevant  factual 
 circumstances  in  the  record,  we  believe  that  the  market  modification  petition  is  a  legitimate  request  to  redraw  DMA  boundaries  to  make  them  congruous  with  market  realities. 


 6.  The  first  statutory  factor  we  must  consider  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.  11  Frontier  states  that  it  has  never  carried  KXLA  on  its  Needles  cable  system.  12  Frontier  states  that  KXLA  has  been  historically  unable  to  deliver  a  good  quality  signal  to  the  Needles  cable  system 
 and  thus  has  never  been  a  qualified  local  station  for  must  carry  purposes.  13  Frontier  states  further  that,  according  to  the  2002  edition  of  Television  and  Cable  Factbook,  KXLA  is  not  carried  by  any  other  nearby 
 cable  systems.  14  In  response,  KXLA  states  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 


 (  continued  from  previous  page)  service  to  a  community  under  factor  two  of  the  market  modification  test. 
 10  47  C.  F.  R.  76.59(  b). 
 11  47  U.  S.  C.  534(  h)(  1)(  C). 
 12  Modification  Petition  at  Exhibit  A. 
 13  Id.  at  3,  citing  47  U.  S.  C.    534(  h)(  1)(  B)(  iii). 
 14  Id.  at  Exhibit  C. 
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 little  or  no  relevance  in  modification  cases  because,  otherwise,  such  stations  would  be  prevented  from  ever  gaining  carriage.  15  KXLA  states  that  the  Commission  has  also  recognized  that  because  of  their 
 limited  audience,  specialty  stations,  such  as  KXLA,  have  not  been  widely  carried  by  cable  operators  absent  must  carry  obligations.  16  Frontier  argues  that,  although  KXLA  claims  that  its  specialty  station 
 status  should  mitigate  the  historic  carriage  factor,  the  Commission  has  stated  repeatedly  that  the  fact  that  a  station  is  new  or  of  specialized  appeal  does  not  mean  that  its  logical  market  area  is  without  limits  or  that 
 it  should  be  exempt  from  the  Section  614(  h)  market  modification  process.  17 
 7.  Second,  we  consider  whether  the  television  station  provides  coverage  or  other  local  service  to  such  community.  18  Frontier  argues  that  KXLA  does  not  provide  any  local  programming  to  the 


 community  at  issue.  19  According  to  the  evidence,  KXLA  offers  programming  which  is  general  in  nature  and  not  geared  to  a  specific  community.  20  Frontier  points  out  that  the  Commission  has  stated  that  general 
 interest  programming  is  insufficient  to  satisfy  the  local  programming  factor  in  modification  cases.  21  Frontier  notes  that,  as  evidenced  by  the  systems  channel  line-  up  information,  it  carries  broadcast  stations 
 licensed  to  Las  Vegas,  Nevada  and  Prescott  and  Phoenix,  Arizona;  stations  that  have  a  more  direct  connection  to  Needles  than  does  KXLA.  22  Frontier  states  that  not  only  is  KXLAs  city  of  license 
 geographically  distant  at  228  miles,  but  it  fails  to  provide  a  Grade  B  signal  to  the  system.  23  Frontier  states  that  such  a  distance  precludes  any  commercial  ties  between  the  two  areas.  24  Moreover,  this  distance  is 
 greater  than  that  found  in  almost  every  market  modification  petition  brought  before  the  Commission  where  the  Bureau  determined  that  a  station  was  not  local  to  the  communities  in  question.  25  Frontier  states 
 that,  in  addition  to  distance,  Needles  and  KXLA  are  separated  by  geographic  features  such  as  the  Mojave  Desert,  several  mountain  ranges  and  the  San  Bernardino  National  Forest  as  well  as  political  boundaries.  26 
 Frontier  notes  that  the  Commission  has  repeatedly  stated  that  political  and  natural  boundaries  can  act  to 


 15  Opposition  at  4,  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). 


 16  Id.,  citing  CoxCom,  Inc.,  17  FCC  Rcd  17192,  17195  (2002). 
 17  Reply  at  6,  citing  MediaOne  of  Los  Angeles,  Inc.,  15  FCC  Rcd  19386,  19396  (2000);  Cable  Satellite  of 
 South  Miami,  Inc.,  13  FCC  Rcd  298,  306  (1998);  Rifkin/  Narragansett  South  Florida  CATV  Limited  Partnership,  d/  b/  a  Gold  Coast  Cablevision,  11  FCC  Rcd  21090,  21104  (1996),  recon.  denied,  14  FCC  13788  (1999). 


 18  47  U.  S.  C.  534(  h)(  1)(  C). 
 19  Modification  Petition  at  3. 
 20  Id.  at  Exhibit  H. 
 21  Id.  at  8,  citing  Greater  Worcester  Cablevision,  12  FCC  Rcd  17347  (1997);  TKR  Cable  Company,  12  FCC 
 Rcd  8414  (1997),  recon.  denied,  14  FCC  Rcd  9603  (1999);  Home  Link  Communications  of  Princeton,  L.  P.,  13  FCC  Rcd  1578  (1997),  recon.  denied,  14  FCC  Rcd  9603  (1999). 


 22  Id.  at  4. 
 23  Id.  at  Exhibits  D  and  E. 
 24  Id.  at  Exhibit  F. 
 25  Id.  at  6,  citing  Greater  Worcester  Cablevision,  Inc.,  13  FCC  Rcd  22220  (1998)  (39-  70  miles);  Mid-Hudson 
 Cablevision,  Inc.,  15  FCC  Rcd  5011  (2000)  (average  47  miles);  Blue  Ridge  Cable  Technologies,  Inc.,  14  FCC  Rcd  2320  (1999)  (43  miles). 


 26  Id.  at  Exhibits  F  and  G. 
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 separate  communities  from  television  stations  in  market  modification  proceedings.  27 
 8.  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.  28  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.  29  KXLA  asserts  that  it  provides  unique  locally-  focused  Asian-language 
 programming  that  Frontier  should  utilize  for  the  benefit  of  its  Asian-  American  subscribers.  30 
 9.  Frontier  argues  that  while  no  single  factor  is  outcome  determinative  in  a  market  modification  proceeding,  KXLAs  contention  that  the  Bureau  should  overlook  its  lack  of  Grade  B 


 coverage  ignores  the  Commissions  repeated  emphasis  on  this  factor  as  important  in  the  market  modification  analysis.  31  Frontier  notes  that  KXLA  also  fails  to  mention  the  vast  distance  between  its  city 
 of  license  and  Needles  or  the  fact  that  the  Commission  has  recognized  that  where  DMAs  span  very  large  geographic  distances,  as  does  the  Los  Angeles  DMA,  the  broadcast  signal  carriage  rules  were  not 
 intended  to  transform  a  station  with  a  restricted  market  and  service  area  into  a  regional  super  station  that  must  be  automatically  carried  in  every  single  community  in  an  ADI.  32  Frontier  maintains  that  this  is 
 precisely  the  type  of  situation  Congress  sought  to  address  when  it  provided  for  the  market  modification  process  to  exclude  communities  that  are  so  far  removed  from  the  station  that  [they]  cannot  be  deemed 
 part  of  the  stations  market.  33  Further,  Frontier  points  out  that  the  Commission  has  repeatedly  cited  geographic  barriers,  such  as  those  separating  KXLA  and  Needles,  in  decisions  granting  exclusion.  34 
 Finally,  Frontier  states  that  KXLA  makes  no  effort  to  show  that  its  programming  is  in  any  way  specifically  tailored  to  the  residents  of  Needles,  but  rather  relies  solely  on  its  provision  of  general  Asian- 


 27  Id.  at  7,  citing  Adelphia  Cablevision  Associates,  L.  P.,  14  FCC  Rcd  7686  (1999);  Rifkin/  Narragansett 
 South  Florida  CATV  Limited  Partnership  d/  b/  a  Gold  Coast  Cablevision,  11  FCC  Rcd  21090  (1996),  recon.  denied,  14  FCC  Rcd  13788  (1999);  Time  Warner  New  York  City  Cable  Group,  11  FCC  Rcd  6528  (1996);  Time  Warner  New 


 York  City  Cable  Group,  12  FCC  Rcd  13094  (1996),  recon.  denied,  12  FCC  Rcd  12262  (1997);  Comcast  of  Central  New  Jersey,  13  FCC  Rcd  1656  (1997). 
 28  Opposition  at  4,  citing  Suburban  Cable  TV  Co.,  Inc.,  16  FCC  Rcd  10790,  10797  (2001)  (citing  Must 
 Carry  Order,  8  FCC  Rcd  at  2977).  29 
 Id.,  citing  Fouce  Amusement  Enterprises,  Inc.,  10  FCC  RCd  668,  670  (1995).  30 
 Id.  at  5-  6  and  Exhibit  D.  31 
 Reply  at  7-  8,  citing  Adelphia  Cable  Partners,  L.  P.,  13  FCC  Rcd  4047  (1996),  recon.  denied,  14  FCC  Rcd  13783  (1999);  Dynamic  Cablevision  of  Florida,  Ltd.  et  al.,  11  FCC  Rcd  9880  (1996),  recon.  denied,  14  FCC  Rcd 


 13783  (1999);  Time  Warner  Cable,  DA  03-  824  (released  March  19,  2003)  at  para.  12.  32 
 Reply  at  8-  9,  citing  Gold  Coast  Cablevision,  11  FCC  Rcd  at  21103.  33 
 Id.  at  9,  citing  Market  Modifications  and  the  New  York  Area  of  Dominant  Influence,  12  FCC  Rcd  12262,  12268-  69  (1997). 


 34  Id.  at  9-  10,  citing  Gold  Coast  Cablevision,  11  FCC  Rcd  at  21103;  Adelphia  Cable  Associates,  L.  P.,  14 
 FCC  Rcd  7686  (1999);  Paxson  Atlanta  License,  Inc.,  13  FCC  Rcd  20087  (1998);  Time  Warner  New  York  City  Cable  Group,  12  FCC  Rcd  13094  (1996);  Time  Warner  Cable,  DA  03-  824  at  para.  12. 
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 language  programming  as  the  most  important  factor  in  this  case.  35  Such  reliance,  however,  has  been  soundly  rejected  by  the  Commission.  36  Finally,  Frontier  notes  that  only  1.4  percent  of  Needles 
 population  (or  69  people)  identify  themselves  as  Asian  as  compared  to  25.9  percent  of  Rancho  Palos  Verdes  population.  37  While  KXLA  may  well  serve  its  home  community  with  programming  of  local 
 interest,  it  has  little  relevance  to  Needles. 
 10.  The  third  statutory  factor  we  must  consider  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.  38  Frontier  states  that  numerous  nearby  stations 
 carried  on  its  system  provide  extensive  local  programming  on  a  regular  basis.  39  Frontier  states  that  these  stations  provide  news  and  local  programming  that  is  specifically  geared  to  Needles.  40  Moreover,  Frontier 
 notes  that,  unlike  KXLA,  these  stations  are  listed  in  the  Needles  Desert  Star,  a  local  paper  serving  the  subject  community,  and  the  local  edition  of  TV  Guide.  41  KXLA  argues  that  none  of  the  broadcast  stations 
 currently  carried  by  Frontier  offer  Asian-  language  programming,  despite  the  fact  that  Asian-  Americans  account  for  4.7  percent  of  the  population  in  San  Bernardino  County.  42  KXLA  points  out  that  the 
 Commission  has  recognized  that  foreign  programming  is  not  incompatible  with  local  appeal,  as  such  programming  is  of  interest  to  a  significant  number  of  Asian  viewers  who  have  strong  family,  business, 
 social,  language  and  personal  ties  to  particular  areas.  43  Finally,  KXLA  notes  that  the  geographic  distance  of  the  stations  Frontier  points  to  as  providing  local  service  ranges  from  111  to  244  miles  from  Needles.  44 
 Frontier  argues  that  KXLAs  statistics  with  regard  to  the  distances  of  the  stations  in  its  channel  line-  up  are  misleading  because  they  are  based  on  driving  mileage  and  not  air  mileage.  45  Frontier  points  out  that 
 Needles  is  an  isolated  desert  community  and  that  stations  licensed  to  Phoenix,  Las  Vegas  and  Prescott  are  the  closest  to  the  cable  system.  Not  only  do  these  stations  consider  themselves  local  to  Needles,  but  the 
 residents  of  Needles  consider  the  stations  as  local  to  them.  46 


 35  Id.  at  11. 
 36  Id.,  citing  Petition  of  Blue  Ridge  Cable  Technologies,  Inc.,  14  FCC  Rcd  2320,  2327  (1999)  (  While  3.1% 
 of  Pike  County  residents  are  of  Hispanic  origin,  this  does  not  necessarily  mean  that  WXTVs  programming  is  targeted  to  interests  that  are  specific  to  Hispanic  residents  in  the  cable  communities.). 


 37  Id.  at  Exhibit  A  (U.  S.  Census  Bureau  2000  information). 
 38  47  U.  S.  C.  534(  h)(  1)(  C). 
 39  Modification  Petition  at  9  n.  28. 
 40  Id.  at  Exhibits  I  and  K. 
 41  Id.  at  Exhibits  J  and  K. 
 42  Opposition  at  Exhibits  B,  E  &  F-  G. 
 43  Id.  at  7,  citing  Fouce,  10  FCC  Rcd  at  671. 
 44  Id.  at  5  n.  4. 
 45  Reply  at  18-  19.  Frontier  states  that  the  air  mileage  between  Needles  and  Las  Vegas,  Prescott  and 
 Phoenix,  communities  from  which  it  receives  signals,  is  96,  124  and  174  miles,  respectively;  see  also  Modification  Petition  at  Exhibits  E  and  N. 


 46  Id.  at  19.  Frontier  states  that  citizens  of  Needles  annually  donate  funds  to  maintain  translator  service  in 
 order  to  receive  Phoenix  television  broadcast  stations.  Id.  at  n.  67. 
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 11.  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.  47  Frontier  states 
 that,  according  to  a  report  prepared  by  a  marketing  and  research  consulting  firm,  KXLA  has  no  reportable  viewing  in  either  Needles  or  San  Bernardino  County.  48  In  addition,  Frontier  notes  that  KXLA  is  not 
 considered  significantly  viewed  in  San  Bernardino  County  and  it  is  not  listed  in  either  the  local  papers  or  local  edition  of  TV  Guide.  49  KXLA  states  that  because  it  has  only  been  on-  the-  air  for  only  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.  50  KXLA  maintains  that,  because  of  its 
 specialty  station  status,  the  mitigating  factors  that  apply  to  its  lack  of  historic  carriage  should  apply  equally  here.  51 


 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.  52  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.  53  In  this  matter,  KXLA  has  no  history  of  carriage  and  no  discernable  viewership  in  the 
 community  at  issue.  It  does  not  appear  that  any  proximate  cable  systems  carry  KXLA.  As  a  relatively  new  specialty  station,  we  do  not  afford  considerable  weight  to  these  deficiencies.  However,  it  is  clear  that 
 KXLA  is  geographically  distant  from  the  communities  at  228  miles,  that  its  predicted  Grade  B  contour  falls  far  short  of  Needles,  and  that  the  station  is  separated  from  Needles  by  numerous  geographic  barriers 
 such  as  the  San  Gabriel  Mountains  and  the  San  Bernardino  National  Forest.  These  factors  also  tend  to  explain  the  history  of  non-  carriage  of  the  station  on  Frontiers  cable  system  and  strongly  indicate  that 
 Needles  is  too  distant  to  properly  be  a  part  of  KXLAs  television  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.  54  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.  55  In  the  instant  matter,  KXLA  fails  to  provide  any  specific  information  or  documentation  regarding  the 
 orientation  of  its  programming  to  the  community  of  Needles. 
 13.  In  view  of  our  decision  in  the  market  modification  proceeding,  the  arguments  raised  by  KXLA  and  Frontier  in  reference  to  the  above-  described  must  carry  complaint  are  moot.  As  such, 


 47  47  U.  S.  C.  534(  h)(  1)(  C). 
 48  Modification  Petition  at  Exhibit  L. 
 49  Id.  at  13. 
 50  Opposition  at  8,  citing  Avenue  TV  Cable  Services,  Inc.,  16  FCC  Rcd  16436,  16445  (2001). 
 51  Id.,  citing  The  Chronicle  Publishing  Company,  10  FCC  RCd  9474,  9482  (1995). 
 52  47  U.  S.  C.    534(  h)(  1)(  c). 
 53  47  U.  S.  C.    534(  h)(  1)(  C)(  i). 
 54  Opposition  at  4. 
 55  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  lcoated  within  the  City  Grade  coverage  of  the  station  at  issue.  See  Fouce  Amusement,  10  FCC  Rcd  at  671. 
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 KXLAs  must  carry  complaint  is  dismissed. 
 IV.  ORDERING  CLAUSES 
 14.  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  Commissions  rules,  47  C.  F.  R.  76.59, 


 that  the  captioned  petition  for  special  relief  (CSR-  6117-  A),  filed  by  Frontier,  A  Citizens  Communications  Company  IS  GRANTED. 


 15.  IT  IS  FURTHER  ORDERED  that  the  must  carry  complaint  filed  by  Rancho  Palos  Verdes  Broadcasters,  Inc.  (CSR-  6069-  M)  IS  HEREBY  DISMISSED. 
 16.  These  actions  are  taken  pursuant  to  authority  delegated  by  Section  0.283  of  the  Commissions  rules.  56 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Steven  A.  Broeckaert  Deputy  Chief,  Policy  Division 
 Media  Bureau 


 56  47  C.  F.  R.  0.321. 
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