*Pages 1--8 from  Microsoft Word - 32208*
 Federal  Communications  Commission  DA  03-  3161 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 Time  Warner  Cable 
 Petition  For  Modification  of  the  Television  Market  of  Television  Station  KHIZ  (TV),  Barstow, 
 California 


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 CSR-  6173-  A 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  October  8,  2003  Released:  October  14,  2003 
 By  the  Deputy  Chief,  Policy  Division,  Media  Bureau: 
 I.  INTRODUCTION 
 1.  Time  Warner  Cable  (  Time  Warner)  filed  the  above-  captioned  petition  for  special  relief  seeking  to  modify  the  Los  Angeles,  California  designated  market  area  (  DMA)  with  respect  to  television 


 broadcast  station  KHIZ  (Ch.  64),  Barstow,  California  (  KHIZ).  KHIZ  is  licensed  to  Sunbelt  Television,  Inc.  Specifically,  Time  Warner  requests  that  certain  communities  in  the  Los  Angeles  DMA  (  cable 
 communities),  1  where  it  operates  cable  television  systems,  be  excluded  from  the  television  market  of  KHIZ  for  the  purposes  of  the  cable  television  mandatory  broadcast  signal  carriage  rules.  KHIZ  filed  an 
 opposition  to  which  Time  Warner  replied.  For  the  following  reasons,  we  grant  Time  Warners  petition. 
 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 


 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 


 1  Time  Warner  lists  the  following  communities  which  it  seeks  to  exclude  from  the  television  market  of 
 station  KHIZ:  San  Fernando,  Santa  Clarita,  unincorporated  areas  of  Los  Angeles  County,  Stevenson  Ranch,  and  discrete  areas  of  the  City  of  Los  Angeles  known  as  Canoga  Park,  Chatsworth,  Encino,  Granada  Hills,  Northridge, 


 Reseda,  Sepulveda,  Sherman  Oaks,  Tarzana,  Van  Nuys,  West  Hills  and  Woodland  Hills  (the  Chatsworth  System);  Gardena,  Hawthorne,  El  Segundo,  Lawndale,  Torrance,  and  North  Torrance  (the  Gardena  System);  South 
 Pasadena  and  San  Marino  (the  South  Pasadena  System);  and  Orange,  Orange  County,  Garden  Grove,  Los  Alamitos,  Huntington  Beach,  Westminster,  Stanton,  Fountain  Valley,  Rossmoor,  Midway  City,  and  Cypress  (the 
 Orange  System).  Petition  at  2.  2 
 8  FCC  Rcd  2965,  2976-  1977  (1993). 
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 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 


 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 
 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). 
 6  Id. 
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 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 
 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 
 (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. 


 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  service  to  a  community  under  factor  two  of  the  market  modification  test. 
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 (5)  Cable  system  channel  line-  up  cards  or  other  exhibits  establishing  historic  carriage,  such  as  television  guide  listings. 
 (6)  Published  audience  data  for  the  relevant  station  showing  its  average  all  day  audience  (i.  e.,  the  reported  audience  averaged  over 
 Sunday-  Saturday,  7  a.  m.-  1  a.  m.,  or  an  equivalent  time  period)  for  both  cable  and  noncable  households  or  other  specific  audience  indicia,  such 
 as  station  advertising  and  sales  data  or  viewer  contribution  records.  10 
 Petitions  for  special  relief  to  modify  television  markets  that  do  not  include  the  above  evidence  shall  be  dismissed  without  prejudice  and  may  be  re-  filed  with  a  filing  fee.  The  Modification  Final  Report  and 
 Order  provides  that  parties  may  continue  to  submit  additional  evidence  that  they  deem  appropriate. 
 III.  DISCUSSION 
 5.  The  issue  before  us  is  whether  to  grant  Time  Warners  request  to  exclude  KHIZ  from  mandatory  carriage  on  its  cable  systems  serving  the  cable  communities.  11  The  cable  communities  are 


 located  in  the  Los  Angeles  area  of  the  Los  Angeles  DMA.  KHIZ  is  licensed  to  Barstow,  California,  which  is  also  located  in  the  Los  Angeles  DMA.  12  Considering  the  relevant  facts  in  the  record,  we  believe 
 that  Time  Warners  market  modification  petition  is  a  proper  request  to  redraw  DMA  boundaries  to  make  them  congruous  with  market  realities. 


 6.  In  support  of  its  petition,  Time  Warner  states  that  KHIZ  has  never  been  carried  by  its  cable  systems  in  the  cable  communities.  13  Time  Warner  also  explains  that  the  cable  communities  are 
 located  79  to  102  miles  from  Barstow,  mountain  ranges  exist  between  KHIZ  and  the  cable  communities,  and  that  KHIZ  fails  to  provide  a  good  quality  signal  to  the  cable  communities.  In  support  of  the  last 
 claim,  Time  Warner  provided  an  engineering  study  that  it  states  reflects  that  KHIZ  did  not  provide  a  Grade  B  signal  to  the  cable  communities  except  for  a  small  portion  of  the  City  of  Orange,  and  a  Longley-Rice 
 propagation  study  that  indicates  that  none  of  the  cable  communities  receive  a  Grade  B  signal.  14  Time  Warner  finally  argues  that  there  is  no  nexus  between  KHIZ  and  the  cable  communities.  Time 
 Warner  claims  that  the  lack  of  connection  is  illustrated  by  KHIZs  lack  of  programming  directed  toward  the  cable  communities,  lack  of  reportable  audience  in  these  areas,  no  carriage  on  nearby  cable  systems, 
 and  omission  from  principal  local  television  program  listings.  15 
 7.  In  its  opposition,  KHIZ  states  that  the  Commission  has  denied  two  similar  requests  to  exclude  KHIZ  from  cable  systems  in  the  Los  Angeles  area.  16  KHIZ  also  asserts  that  the  Los  Angeles 


 10  47  C.  F.  R.  76.59(  b). 
 11  Petition  at  1. 
 12  Id.  at  3. 
 13  Id.  at  6. 
 14  Id.  at  7-  11,  and  Attachment  7.  It  is  estimated  that  the  closest  KHIZs  Grade  B  signal  comes  to  the  edge  of 
 the  cable  communities  based  on  Time  Warners  Longley-  Rice  study  ranges  from  approximately  15  miles  for  the  Chatsworth  system  to  40  miles  for  the  Gardena  system. 


 15  Id.  at  11-  13. 
 16  Opposition  at  2  n.  5,  citing  Comcast  Cablevision  of  Inland  Valley,  12  FCC  Rcd  6461  (1997);  Marks 
 Cablevision  and  TCI  Cablevision  of  California,  12  FCC  Rcd  22989  (1997). 
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 market  has  unique  characteristics,  such  as  special  geographic,  social  and  economic  attributes,  which  need  to  be  considered  in  market  modification  proceedings.  For  example,  KHIZ  explains  that  there  are 
 significant  cultural  and  economic  connections  between  KHIZ  and  the  cable  communities,  and  that  Barstow  area  residents  commute  to  jobs  in  the  cable  communities  and  vice  versa.  17  KHIZ  further  states 
 that  a  stations  lack  of  historic  carriage  on  a  cable  system  is  not  determinative  of  whether  a  community  should  be  deleted  from  a  stations  market,  that  KHIZ  is  carried  on  other  cable  systems  in  the  area,  and 
 that  Time  Warner  carries  two  television  stations  that,  like  KHIZ,  are  located  in  the  eastern  part  of  the  Los  Angeles  DMA.  18  KHIZ  also  asserts  that  it  provides  at  least  fringe  coverage  to  the  cable  communities 
 because  they  are  within  11  to  16  miles  of  KHIZs  predicted  Grade  B  contour,  and  that  its  transmitter  is  located  on  the  average,  only  73  miles  from  the  cable  communities.  19  With  regard  to  local  programming, 
 KHIZ  explains  that  it  provides  programs  specifically  geared  to  the  cable  communities  and  plans  to  increase  this  programming  in  the  future.  According  to  KHIZ,  its  current  local  programs  are  Money 
 Matters,  The  Macabre  Theatre,  and  Community  Calendar.  20  Finally,  KHIZ  states  that  it  is  listed  as  a  local  channel  in  various  newspapers  distributed  in  the  cable  communities,  and  is  in  the  process  of 
 rebuilding  its  viewership  base  [in  these  communities]  after  its  financial  troubles  in  the  late  1990s.  21 
 8.  In  its  reply,  Time  Warner  discusses  the  two  cases  that  KHIZ  cited  as  similar  to  the  present  situation  where  the  Commission  denied  requests  to  exclude  KHIZ  from  cable  systems  in  the  Los 


 Angeles  DMA.  Time  Warner  distinguishes  the  cases  by  explaining  that  one  decision,  The  Comcast  decision,  concerned  cable  systems  in  San  Bernardino  County,  Barstows  home  county,  located  at  an 
 average  distance  of  only  35  miles  from  KHIZ,  all  of  which  with  but  one  exception  are  encompassed  within  KHIZs  Grade  A  contour.  Virtually  the  same  factors  were  present  in  the  Marks  CableVision  and 
 TCI  Cablevision  case  cited  by  Sunbelt.  22  With  regard  to  KHIZs  assertion  that  the  Los  Angeles  DMA  has  unique  characteristics  and  is  geographically,  socially  and  economically  integrated,  Time  Warner 
 states  that  the  Commission  does  not  share  Sunbelts  [KHIZ]  views  as  to  the  solidarity  of  the  Los  Angeles  DMA  [as]  is  graphically  evidenced  by  the  number  of  instances  in  which  in-  market  cable  communities 
 have  been  excluded  from  the  television  markets  of  stations  assigned  to  the  Los  Angeles  DMA.  23 
 9.  Time  Warner  also  addresses  in  its  reply  KHIZs  claim  that  it  is  carried  on  other  cable  systems  in  the  area  by  explaining  that  its  closest  cable  community  is  19  and  28  miles  away  from  the  cable 


 systems  carrying  KHIZ.  24  Concerning  KHIZs  claim  that  Time  Warner  carries  other  television  stations  located  in  the  eastern  portion  of  the  Los  Angeles  DMA,  Time  Warner  states  that  these  stations  are 
 considerably  closer  to,  and  provide  at  least  a  predicted  Grade  B  coverage  over  the  cable  communities.  25  Although  Time  Warner  submitted  a  Longley-  Rice  study  indicating  that  KHIZs  Grade  B  signal  did  not 
 come  close  to  the  cable  communities,  Time  Warner  responded  to  KHIZs  claim  that  is  should  be  carried 


 17  Opposition  at  3-  5. 
 18  Id.  at  8-  9. 
 19  Id.  at  10-  12.  and  Attachment  1. 
 20  Id.  at  13-  16. 
 21  Id.  at  19. 
 22  Reply  at  3  (footnotes  omitted). 
 23  Id.  at  4. 
 24  Id.  at  5. 
 25  Id.  at  5-  6. 
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 in  the  cable  communities  because  it  provides  fringe  coverage  beyond  its  predicted  Grade  B  contour.  Time  Warner  indicates  that  allowing  fringe  areas  to  be  included  within  KHIZs  market  would  result  in 
 the  cable  communities  as  effectively  being  located  within  the  Grade  B  contour  for  purposes  of  market  modification  analysis,  and  that  the  decisions  relied  upon  by  Sunbelt  [KHIZ]  to  support  its  position  are 
 readily  distinguishable  from  those  involved  in  this  proceeding.  26  For  example,  according  to  Time  Warner,  in  one  case  cited  by  KHIZ  in  support  of  its  fringe  argument,  the  Commission  stated  that  the 
 stations  Grade  A  contour  covered  almost  all  of  the  cable  communities,  and  none  of  the  four  exceptions  [where  there  was  possible  fringe  coverage]  were  located  more  that  five  miles  beyond  the  Grade  B 
 contour.  27  Finally,  Time  Warner  answers  KHIZs  claim  that  it  provides  local  programming  and  is  listed  in  newspapers  distributed  in  the  cable  communities  by  stating  that  a  general  interest  financial  advice 
 program,  a  weekly  monster  movie  show  and  a  DMA-  wide  bulletin  board  of  community  events  fail  to  establish  any  nexus  between  KHIZs  programming  and  residents  of  the  TWC  communities,  and  that 
 KHIZs  programs  are  not  listed  in  the  markets  major  newspapers.  28  Regarding  possible  future  KHIZ  programs  of  local  interest,  Time  Warner  states  programs  of  this  nature  remain  speculative  at  this  time.  29 
 Time  Warner  concludes  its  reply  by  asserting  that  KHIZ  acknowledges  that  it  has  no  off-  air  viewing  in  the  cable  communities.  30 


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


 The  Macabre  Theatre,  which  it  states  are  locally  produced  and  geared  to  the  interest  of  local  residents.  The  former  appears  to  be  a  general  interest  financial  advice  program  and  the  letter  is  a  weekly  horror 


 26  Id.  at  7. 
 27  Id. 
 28  Id.  at  9-  10,  11  n.  37. 
 29  Id.  at  10. 
 30  Id.  at  10-  11. 
 31  Opposition  at  Exhibit  J. 
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 movie.  KHIZ  states  that  it  also  broadcast  a  community  calendar  several  times  a  day.  This  program  covers  events  across  the  Los  Angeles  DMA,  including  some  events  within  the  cable  communities.  KHIZ 
 also  indicates  that  it  intends  to  increase  local  programming  in  the  future.  The  Communications  Act,  however,  requires  the  Commission  to  base  its  market  modification  decisions  on  whether  a  station 
 provides  local  service  to  a  community  and  not  on  promises  of  future  programming.  32 
 12.  KHIZ  acknowledges  that  it  does  not  provide  a  predicted  Grade  B  signal  to  the  cable  communities.  Time  Warner,  moreover,  has  provided  a  service  area  map  for  KHIZ,  using  Longley-  Rice 


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


 13.  KHIZ  argues  that  the  Los  Angeles  area  is  a  single  market,  and  that  Barstow  area  residents  commute  to  jobs  in  the  cable  communities  and  vice  versa.  However,  KHIZ  did  not  provide  significant 
 data  or  statistics  in  support  of  this  claim.  The  Los  Angeles  DMA  in  terms  of  territory  and  population  is  vast  and  varied.  At  the  western  edge,  there  is  the  Pacific  Ocean  and  large  population  centers,  including 
 the  City  of  Los  Angeles,  in  the  central  area  of  the  DMA  there  are  mountains,  and  on  the  eastern  edge,  there  is  desert  extending  to  the  Arizona  border  and  sparse  population.  The  Commission  has  explained 
 that  where  a  DMA  covers  a  large  geographic  area,  the  mandatory  broadcast  signal  carriage  rules  do  not  transform  a  station  serving  a  portion  of  the  DMAs  market  and  service  area  into  a  regional  super  station 
 that  must  be  carried  by  cable  systems  throughout  the  DMA.  35  Thus,  the  second  statutory  factor  supports  Time  Warners  petition  to  modify  the  Los  Angeles  DMA. 


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


 32  47  U.  S.  C.  534(  h)(  1)(  C)(  II);  Cablevision  of  Cleveland,  16  FCC  Rcd  15575,  15577  (2001). 
 33  See,  e.  g.,  Comcast  Cablevision  of  Danbury,  18  FCC  Rcd  274,  279  (2003). 
 34  See,  e.  g.,  Frontier,  A  Citizens  Communications  Company,  18  FCC  Rcd  9589,  9594  (2003). 
 35  Id. 
 36  See,  e.  g.,  Great  Trails  Broadcasting  Corp.,  10  FCC  Rcd  8629  (1995);  Paxson  San  Jose  License,  Inc.,  12 
 FCC  Rcd  17520  (1997). 
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 Federal  Communications  Commission  DA  03-  3161 
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 15.  The  fourth  statutory  factor  concerns  evidence  of  viewing  patterns  in  cable  and  noncable  households  within  the  areas  served  by  the  cable  system  or  systems  in  such  community.  There  is  no 
 evidence  that  KHIZ  has  significant  off-  air  viewing  in  the  cable  communities.  The  above  factors  tend  to  explain  the  history  of  KHIZs  lack  of  carriage  in  Time  Warners  cable  communities,  and  strongly  indicate 
 that  the  communities  are  too  distant  to  properly  be  part  of  KHIZs  television  market. 
 IV.  ORDERING  CLAUSE 
 16.  Accordingly,  IT  IS  ORDERED,  pursuant  to  Section  614(  h)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.  534,  and  Section  76.59  of  the  Commissions  rules,  47  C.  F.  R.  76.59, 


 that  the  captioned  petition  for  special  relief  (CSR-  6173-  A),  filed  by  Time  Warner  Cable,  IS  GRANTED. 
 17.  These  actions  are  taken  pursuant  to  authority  delegated  by  Section  0.283  of  the  Commissions  rules.  37 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Steven  A.  Broeckaert  Deputy  Chief,  Policy  Division 
 Media  Bureau 


 37  47  C.  F.  R.  0.283. 
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