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 Federal  Communications  Commission  DA  01-  375 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 Brownwood  Cable  Television  Service,  Inc. 
 Modification  of  Television  Market  of  Television 
 Station  KCPB(  TV),  Snyder,  Texas 


 Petition  for  Reconsideration 


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 CSR  5559-  A 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  February  8,  2001  Released:  February  13,  2001 
 By  the  Deputy  Chief,  Cable  Services  Bureau: 
 I.  INTRODUCTION 
 1.  Prime  Time  Christian  Broadcasting,  Inc.  (  PTCB),  licensee  of  television  station 
 KCPB(  TV),  Channel  17,  Snyder,  Texas,  (  KCPB)  has  filed  a  petition  for  reconsideration  of  the 
 Memorandum  Opinion  and  Order  in  Brownwood  Cable  Television  Service,  Inc.  1  An  opposition  to  the 
 petition  was  filed  by  Brownwood  Cable  Television  Service,  Inc.  (  Brownwood),  operator  of  cable  systems 
 in  Brownwood,  Bangs,  Clyde,  Cross  Plains,  Rising  Star,  and  Santa  Ana,  Texas  (the  Communities),  and 
 PTCB  filed  a  reply  to  the  opposition. 


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


 A.  Procedural  Matters 
 3.  PTCB  argues  that  existing  carriage  on  a  cable  system  is  a  prerequisite  for  the  submission 
 of  the  petition  for  relief  considered  in  the  Brownwood  Order.  We  reject  this  argument.  There  is  no 
 requirement  in  either  the  statutory  must  carry  provisions  or  the  Commissions  regulations  implementing 
 those  provisions  that  requires  existing  carriage  on  a  cable  system  as  a  procedural  prerequisite  for  filing  a 
 request  for  modification  of  a  stations  market  pursuant  to  Section  614(  h)(  1)(  C),  as  PTCB  claims.  3 


 1  DA  00-  2296,  released  by  the  Cable  Services  Bureau  on  October  10,  2000  (  Brownwood  Order). 
 2  See  47  U.  S.  C.  534(  h)(  1)(  C)(  i). 
 3  Petition  at  3. 
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 Certainly,  nothing  cited  from  the  Must  Carry  Order  suggests  such  a  prerequisite.  4  A  review  of  the 
 Commissions  decisions  pursuant  to  the  market  modification  provisions  of  Section  614  reveals  that  existing 
 carriage  of  a  station  on  a  cable  system  has  never  been  deemed  a  prerequisite  for  the  filing  of  a  market 
 modification  petition.  5 


 4.  We  also  reject  PTCBs  argument  that  the  Brownwood  Order  was  procedurally  defective 
 because  Brownwood  failed  to  show  compliance  with  a  previously  issued  carriage  order  that  was  not  stayed.  6  Maintenance  of  the  status  quo  by  the  cable  operator  during  consideration  of  this  market 


 modification  case  is  consistent  with  Commission  practice.  7 
 B.  Substantive  Matters 
 5.  PTCB  faults  conclusions  reached  in  the  Brownwood  Order  on  the  four  statutory  factors 
 considered  in  market  modification  cases.  PTCB  disputes  the  finding  that  KCPB  has  no  history  of  carriage 
 in  any  of  the  relevant  Communities,  noting  that  the  station  is  being  carried  on  other  cable  systems  serving 
 other  communities,  some  of  which  are  in  the  same  counties  as  the  communities  served  by  Brownwood.  8  The 
 Brownwood  Order  found  that  KPCB  does  not  provide  a  Grade  B  signal  over  the  Communities,  that  the 
 distances  from  KPCB  to  the  Communities  (from  85  to  133  miles)  preclude  a  conclusion  that  Brownwood 
 serves  as  a  bottleneck  denying  KPCB  access  to  the  Communities,  and  that  these  factors  tend  to  explain  the 
 history  of  non-  carriage  in  the  Communities.  9  PTCB  contends  that  the  relevant  test  is  not  whether  KPCB 
 provides  a  Grade  B  signal  over  the  Communities.  Instead,  PTCB  claims  credit  for  local  service  to  the 
 Communities  on  the  basis  of  signal  strength  study  results  showing  that  KPCBs  translator  station  K58FZ 
 delivers  a  good  quality  must  carry  signal  to  Brownwood  cable  systems  headends.  10  The  ability  of  a  station 
 to  deliver  a  good  quality  signal  to  a  cable  system  headend  by  means  of  a  translator  is  an  acceptable  method 
 of  demonstrating  that  a  station  is  local  for  purposes  of  establishing  must  carry  status  for  the  station 
 under  Section  614(  h)(  1)(  B)(  iii).  However,  the  Brownwood  Order  correctly  held  that  translator  coverage  of 
 a  community  does  not  lessen  the  relevance  of  the  failure  of  the  parent  full  power  station  to  directly  serve  the 


 4  See  Implementation  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992,  Broadcast 
 Signal  Carriage  Issues,  8  FCC  Rcd  2965  (1993)  (  Must  Carry  Order). 
 5  See  e.  g.,  Petition  of  Armstrong  Utilities,  Inc.,  13  FCC  Rcd  2498,  2506-  07  (CSB  1997);  Armstrong  Utilities,  Inc., 


 d/  b/  a  Armstrong  Cable  Services,  14  FCC  Rcd  10454,  10462  (CSB  1999). 
 6  See  Prime  Time  Christian  Broadcasting,  Inc.  v.  Brownwood  Television  Cable  Services,  Inc.,  15  FCC  Rcd  7872, 


 (CSB  2000). 
 7  See  Must  Carry  Order  at  2977. 


 8  Brownwood  Order  at    13. 
 9  Brownwood  Order  at    13.  PTCB  submitted  information  (Petition  at  9-  11  &  Exhibits  12-  21)  showing  that  the 
 predicted  Grade  B  contours  of  three  Abilene  stations  carried  by  Brownwood  do  not  reach  all  of  the  systems 
 headends,  contrary  to  findings  in  the  Brownwood  Order  at    13.  That  information  nonetheless  shows  that  the 
 Grade  B  contours  of  the  Abilene  stations  reach  much  closer  to  the  Communities  at  issue  than  does  the  Grade  B 
 contour  of  KPCB.  In  any  event,  the  carriage  rights  of  the  Abilene  stations  are  not  at  issue  at  this  proceeding. 
 Moreover,  the  Brownwood  Order  did  not  classify  the  Abilene  stations  as  local  as  PTCB  suggests  (Petition  at  8), 
 but  instead  declined  to  accord  their  carriage  by  Brownwood  any  credit  under  the  local  community  service  factor. 
 Brownwood  Order  at    15. 
 10  Petition  at  9-  14. 
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 subject  cable  communities  and  may  not  be  used  for  the  purpose  of  establishing  a  stations  market  under  the 
 market  modification  procedures  set  forth  in  Section  614(  h)(  1)(  C)(  ii).  11 


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


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


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


 11  Dynamic  Cablevision  of  Florida,  Ltd.,  et  al.,  12  FCC  Rcd  9952  (1997);  See  also  KBL  Cablesystems  of  the 
 Southwest,  Inc.  d/  b/  a  Paragon  Cable,  12  FCC  Rcd  21923  (CSB  1997).  Petitioners  Exhibits  25  through  32  show 
 only  that  KPCB  is  listed  in  some  unidentified  television  guide  publication.  Those  listings  do  not  establish  that 
 KPCB  is  viewable  off-  the-  air  in  the  Communities  at  issue  here  as  PTCB  claims.  Moreover,  evidence  of  monetary 
 contributions  for  station  operations,  without  more,  is  not  evidence  of  viewership.  Petition  at  15  &  Exhibit  33. 
 12  Brownwood  Order  at    14. 


 13  See  47  U.  S.  C.    309(  a);  47  C.  F.  R.    73.3591(  a)(  4). 
 14  Brownwood  Order  at    14. 
 15  Petition  at  6  &  Exhibit  10. 
 16  47  U.  S.  C.    534(  h)(  1)(  C)(  ii)(  IV). 
 17  Petition  at  15-  17. 
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 9.  In  summary,  we  find  the  analysis  in  the  Brownwood  Order  regarding  historic  carriage  of 
 the  station  and  carriage  of  other  stations  in  the  community,  station  coverage  and  local  service  to  the 
 community,  coverage  of  the  communities  by  other  stations,  and  station  audience  share,  to  be  fully 
 supported  by  substantial  evidence  of  record.  The  findings  and  conclusions  of  the  Brownwood  Order  are 
 solidly  based  on  that  analysis  and  fully  consistent  with  the  Commissions  analysis  and  application  of  the 
 market  modification  provisions  of  Section  614(  h)  in  New  York  ADI  Appeals  Memorandum  Opinion  and 
 Order,  ("  New  York  ADI  Order").  18  The  Commissions  findings  and  conclusions  in  the  New  York  ADI 
 Order  were  upheld  on  judicial  review  in  WLNY-  TV,  Inc.,  et  al.  v.  FCC.  19  We  have  examined  the  additional 
 evidentiary  materials  provided  in  the  reconsideration  petition  by  PTCB  and  are  not  persuaded  that  a 
 reconsideration  of  the  result  reached  in  the  Brownwood  Order  is  required.  Accordingly,  we  reaffirm  the 
 conclusions  reached  in  the  Brownwood  Order  that  the  requested  market  modification  will  effectuate  the 
 purposes  of  the  must  carry  statutory  provisions  and  associated  Commission  rules. 


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


 11.  This  action  is  taken  pursuant  to  authority  delegated  by  Section  0.321  of  the  Commissions 
 rules.  20 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 William  H.  Johnson 
 Deputy  Chief,  Cable  Services  Bureau 


 18  12  FCC  Rcd  12262  (1997). 
 19  163  F.  3d  187  (2d  Cir.  1998). 
 20  47  C.  F.  R.    0.321. 
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