Federal Communications Commission Record 10 FCC Red No

DA 95-554 Federal Communications Commission Record 10 FCC Red No. 7

stations Dimension would otherwise potentially be required Before the to carry be deemed nonlocal as to those communities.2 On Federal Communications Commission June 23, 1993, Trinity Christian Center of Santa Ana, Inc., Washington, D.C. 20554 d/b/a Trinity Broadcasting Network ("Trinity"), licensee of KTBN-TV, Santa Ana, California, filed an opposition to In Re CCC's petition. An opposition was also filed, on July 22, 1993, by KMEX License Partnership, G.P. ("KMEX"), li COMMUNITY CSR-3865-A censee of KMEX-TV, Los Angeles, California. On Septem ber 9, 1993, Rancho Palos Verdes Broadcasters, Inc. CABLEVISION ("RPV"), permittee of KRPA-TV, Rancho Palos Verdes, COMPANY d/b/a California, also filed an opposition. On September 17, DIMENSION CABLE SERVICES 1993, CCC filed a response to RPV's opposition. On Janu Los Angeles, California ary 5, 1994, KSLS, Inc. ("KSLS"), licensee of station KSCI- TV, San Bernardino, California, filed an opposition.3 Petition for Modification of Los Angeles ADI BACKGROUND 2. Pursuant to Section 4 of the Cable Television MEMORANDUM OPINION AND ORDER Consumer Protection and Competition Act of 1992 ["1992 Cable Act"]4 and implementing rules adopted by the Com Adopted: March 20, 1995; Released: March 24, 1995 mission in its Report and Order in MM Docket 92-2S9,5 a commercial television broadcast station is entitled to assert mandatory carriage rights on cable systems located within By the Cable Services Bureau: the station's market. A station's market for this purpose is its "area of dominant influence," or ADI, as defined by the Arbitron audience research organization.6 An ADI is a INTRODUCTION geographic market designation that defines each television 1. Community Cablevision Company ("CCC"), d/b/a Di market exclusive of others, based on measured viewing mension Cable Services ("Dimension"), operator of a cable patterns. Essentially, each county in the United States is television system serving portions of Los Angeles, Califor allocated to a market based on which home-market stations nia, has filed the captioned petition for special relief. CCC receive a preponderance of total viewing hours in the requests that its cable system in the Los Angeles ADI be county. For purposes of this calculation, both over-the-air exempted from the Commission's rules governing the num and cable television viewing are included.7 ber of eligible broadcast stations that must be carried on 3. This section of the 1992 Cable Act also provides that the system, (i.e., 47 C.F.R. §§ 76.56(a)(l)(iii), 76.56(b)(2)), the Commission may: or, that CCC be granted a limited waiver of the rules until CCC completes its system rebuild, and that it should not be required to carry any more local commercial or with respect to a particular television broadcast sta noncommercial stations than the system is currently carry tion, include additional communities within its tele ing. 1 Alternatively, CCC requests that the communities vision market or exclude communities from such served by Dimension be excluded, for purposes of the station's television market to better effectuate the must-carry rules, from the television markets of those com purposes of this section. mercial stations that Dimension would otherwise poten tially be required to carry, and that the noncommercial

1 CCC states that its system rebuild, which is currently in of our interest in resolving the case on a complete record. See, progress, should be completed by mid-1995; that, by then, CCC e.g., Complaint of Central Virginia Educational Telecommunica would have the capacity for a minimum of 60 channels, with tions Corporation against District Cablevision Limited Partner network architecture utilizing extensive fiber optics; and, that as ship, 8 FCC Red 5252 (1993). of June 2, 1993, approximately 6% of the rebuild has already 4 Pub. L. No. 102-385, 106 Stat. 1460 (1992). been completed. 5 8 FCC Red 2965, 2976-2977 (1993). 2 CCC lists the following stations: KBBL. KEEP, KHIZ, KLCS, 6 Section 4 of the 1992 Cable Act specifies that a commercial KMEX, KRCA, KRPA, KSCI. KSTV, KTBN, KVCR, KVEA, broadcasting station's market shall be determined in the man KVMD, KWHY, KZKI. ner provided in § 73.3555(d)(3)(i) of the Commission's Rules, as 3 CCC's .petition appeared on public notice on July 2, 1993. in effect on May 1, 1991. This section of the rules, now RPV's opposition was filed on September 9, 1993 and KSLS filed redesignated § 73.3555(e)(3)(i), refers to Arbitron's AD! for pur its opposition on January 5, 1994, both of which were more poses of the broadcast multiple ownership rules. Section than twenty days after CCC's petition appeared on public no 76.55(e) of the Commission's Rules provides that the ADls to be tice. Accordingly, pursuant to 47 C.F.R. § 76.7(d), these opposi used for purposes of the initial implementation of the man tions are late-filed. KSLS has filed a Motion for Acceptance of datory carriage rules are those published in Arbitron's the opposition, claiming, among other things, that it was un 1991-1992 Television Market Guide. aware of the request to remove the Orange County commu 7 Because of the topography involved, certain counties are nities served by Dimension from KSCI's market for purposes of divided into more than one sampling unit. Also, in certain the must-carry requirements. In its response, CCC requests that circumstances, a station may have its home county assigned to a RPV's and KSLS's oppositions be dismissed because they were separate ADI of its own, even though stations from another not timely filed. While we caution all parties of the need to market have a preponderance of the audience in that county. meet our procedural filing requirements, we will grant KSLS' For a more complete description of how counties are allocated, motion, and we will accept all pleadings filed in this matter, out see Arbitron's Description of Methodology.

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In considering such requests, the 1992 Cable Act provides the station places at least a Grade B coverage contour that: over the cable community or is located close to the community in terms of mileage. Coverage of news or the Commission shall afford particular attention to other programming of interest to the community the value of localism by taking into account such could be demonstrated by program logs or other factors as~ descriptions of local program offerings. The final fac tor concerns viewing patterns in the cable commu (I) whether the station, or other stations located in nity in cable and noncable homes. Audience data the same area, have been historically carried on the clearly provide appropriate evidence about this fac cable system or systems within such community; tor. In this regard, we note that surveys such as those (II) whether the television station provides coverage used to demonstrate significantly viewed status could or other local service to such community; be useful. However, since this factor requires us to evaluate viewing on a community basis for cable and (III) whether any other television station that is eli noncable homes, and significantly viewed surveys gible to be carried by a cable system in such commu typically measure viewing only in noncable house nity in fulfillment of the requirements of this section holds, such surveys may need to be supplemented provides news coverage of issues of concern to such with additional data concerning viewing in cable community or provides carriage or coverage of sport homes. 10 ing and other events of interest to the community; and 6. In adopting rules to implement this provision, the (IV) evidence of viewing patterns in cable and Commission indicated that changes requested should be noncable households within the areas served by the considered on a community-by-community basis rather cable system or systems in such community.8 than on a county-by-county basis, and that they should be treated as specific to particular stations rather than ap 4. The legislative history of this provision indicates that: plicable in common to all stations in the market." The rules further provide, in accordance with the requirements where the presumption in favor of ADI carriage of the 1992 Cable Act, that a station not be deleted from would result in cable subscribers losing access to carriage during the pendency of an ADI change request.12 local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular MARKET FACTS AND ARGUMENTS OF THE PARTIES communities from a television station's market con 7. According to CCC, Dimension serves 42.292 custom sistent with Congress' objective to ensure that televi ers in the cities of Newport Beach, Irvine, Tustin, and sion stations be carried in the areas which they serve Orange, California; the University of California, Irvine; and and which form their economic market. the Marine Corps Air Stations in Tustin and El Toro, all of which are located in Orange County in the southwestern ***** portion of the Los Angeles ADI. Dimension states that it carries eight and one-half local commercial stations and two local noncommercial educational stations, and that [This subsection] establishes certain criteria which the under the must-carry rules it is required to add four and Commission shall consider in acting on requests to one-half commercial broadcast signals and possibly up to modify the geographic area in which stations have three more noncommercial stations. 13 CCC claims that, in signal carriage rights. These factors are not intended order to accommodate these must-carry channels, Dimen to be exclusive, but may be used to demonstrate that sion will have to delete or reduce more popular national a community is part of a particular station's market.9 cable network programming, both entertainment program ming and news and public affairs, "the core of speech 5. The Commission provided guidance in MM Docket protected by the First Amendment," as well as reduce 92-259, supra, to aid decision making in these matters, as community affairs information carried on the local origina follows: tion channel, "all to the dissatisfaction of the overwhelm ing majority of Dimension's subscribers." CCC claims that Dimension will be forced to delete The Movie Channel and For example, the historical carriage of the station Continuous Hits 1, and to reduce to part-time carriage a could be illustrated by the submission of documents number of public service oriented programming, such as listing the cable system's channel line-up (e.g., rate the local origination channel, C-SPAN, and The Weather cards) for a period of years. To show that the station Channel, as well as other entertainment programming. provides coverage or other local service to the cable community (factor 2), parties .may demonstrate that

47 U.S.C. §534(h)(l)(C)(ii). Section 76.62(a) requires cable operators to carry the entirety of H.R. Rep. 102-628, L02d Cong., 2d Sess. 97 (1992). the program schedule of any television station carried unless Id. at 2977 (emphasis in'original). carriage of specific programming is prohibited, and other pro MM Docket 92-259, S FCC Red at 2977, 2977 n.139. gramming authorized to be substituted, under section 76.67 or 47 C.F.R. § 76.59. subpart F of Part 76 of the rules. CCC explains that Dimension carries approximately one-half of the programming of KWHY and that it would be forced to carry the rest under Section 76.62(a) of the Commission's rules.

3275 DA 95-554 Federal Communications Commission Record 10 FCC Red No. 7

8. In support of its petition, CCC has submitted results of channels for carriage of qualified commercial stations. Be consumer surveys it conducted in the relevant cable mar cause it would be deprived of nearly 50% of its channel ket designed to "measure the desirability to its subscribers capacity (and even more once its leased access, and public, of the four and one-half signals (KMEX, KSCI, KTBN, educational, and governmental access requirements are KVEA. and KWHY) that it currently plans to add to fulfill considered) before it has the opportunity to exercise any its must-carry obligations." CCC claims that the results of editorial discretion over how best to serve the needs of its the surveys show a very low interest in these signals, espe subscribers, CCC believes that the must-carry rules as ap cially in comparison with the cable programming that they plied in this instance are inconsistent with the First would displace. According to CCC, to its knowledge, none Amendment. of these stations has sizable off-air viewership within the 11. In its opposition, Trinity first disputes CCC's ar communities served by Dimension, none is significantly gument that its First Amendment rights have been in viewed, and none has been historically carried on Dimen fringed. Trinity notes that in Turner Broadcasting System, sion's cable system. CCC argues that, since Dimension is Inc. v. FCC, 819 F. Supp. 32 (D.D.C. 1993), the court currently carrying local programming,u in addition to the upheld the Cable Act against near identical constitutional local programming available on the eight and one-half arguments, stating that "the must carry provisions are es local commercial and two local noncommercial educa sentially economic regulation designed to create competi tional stations, there is ample opportunity for subscribers tive balance in the video industry as a whole, and to to have access to a very wide variety of local programming. redress the effects of cable operators' anti-competitive prac CCC believes that by granting the relief requested, the tices." Id. at 40. Specifically, notes Trinity, in Orange Commission would be furthering the goals of Congress in County, Dimension's monopoly power prevents KTBN-TV the 1992 Cable Act by promoting the availability of a from reaching the majority of KTBN-TV's community of diversity of views and information, citing Section 2(b) of license, Santa Ana, because over 50% of the television the Cable Act. households in Santa Ana have cable service, and when the 9. CCC also argues that, as applied to this case, the cable goes in, the consumer's receive antenna is removed must-carry rules "inhibit the exercise by Dimension of or disabled. Trinity also points out that the programming editorial discretion consistent with its status as a First that Dimension wishes to continue is The Movie Channel Amendment-protected speaker." According to CCC, and Continuous Hits 1, which channels do not provide unique programming of local interest and concern. Fur [bjecause carriage of the broadcast stations in ques ther, the five signals that Dimension would add upon tion on Dimension's system would not further the deletion of these services (KTBN, KSCI, KWHY, KMEX, goal of increasing programming of truly local con and KVEA) are diverse and would increase the quantity of cern and interest to the vast majority of Dimension's services and speech available to the public. audience, and will reduce the amount of national 12. Trinity also criticizes CCC's use of the survey results news and public affairs programming and local com as evidence in support of its petition. First, Trinity points munity affairs and weather information available to out that KWHY, a station devoted to business information, Dimension's subscribers, there is no reason to inter was not included in the survey. Further, KRCA-TV, despite fere with Dimension's First Amendment rights by receiving the lowest ratings in the survey, will be carried, requiring Dimension to carry the speech of these while KTBN-TV, with higher results, will not be carried. 15 must-carry stations. 13. Trinity maintains that Dimension's claims that denial of its request would injure its right to communicate under CCC maintains that, because there is no compelling or the constitution is counter-balanced by the individual sta substantial state interest in limiting Dimension's speech, tions' corresponding right to communicate as guaranteed there can be no justification for applying the must-carry by the Cable Act. Because interference with statutorily rules in this instance. protected rights of expression constitutes irreparable injury, 10. CCC also claims that the must-carry obligations are argues Trinity, granting CCC's requested relief would cause particularly onerous in large television markets such as the irreparable injury to KTBN-TV. 16 Los Angeles ADI, especially for systems, such as Dimen 14. In its opposition, KMEX first notes that nothing in sion's, with channel capacities of "just barely over the 37 the Communications Act permits the Commission to channel threshold requiring carriage of all nonduplicative exempt CCC from the rules or to grant it a waiver. Fur noncommercial stations that request carriage." CCC states ther, KMEX argues that, under its alternative proposal, that the Los Angeles ADI contains 21 commercial broad CCC would discriminate against KMEX by excluding cast stations and five noncommercial educational stations, KMEX from carriage on its system while continuing to and that Dimension would potentially be required to carry carry other stations licensed to the same Los Angeles com three more noncommercial stations and to set aside 13 munity. KMEX maintains that this discrimination is espe-

14 CCC asserts that Dimension carries the following additional programming such as live coverage of the City Council meetings local programming: (1) Orange County News, a 24-hour per day of Irvine, Newport Beach, and Tustin, and local community cable channel which provides coverage of stories of local inter events such as University of California, Irvine basketball games. est; (2) 24:/54:, a joint venture between KCAL, the Orange 15 Trinity notes that although KTBN-TV has not been on County Edition of The Los Angeles Times, and most local Dimension's system and is thus probably unknown to its sub Orange County cable operators, that provides five minute in scribers, it received a 15% interest rating. serts of news of local interest to Orange County residents dur 16 Trinity cites Vol. 7, Pt. 2 Moore's 31 (1992, 93 Cum. Supp.) ing CNN Headline News; and, (3) local origination and Arcamuzi v. Continental Air Lines, Inc.. 819 F.2d 935, 939 (9th Cir. 1987).

3276 10 FCC Red No. 7 Federal Communications Commission Record DA 95-554 cially troublesome because KMEX is a Spanish-language Further, CCC does not even maintain that the listed sta station that serves a substantial minority Hispanic popula tions do not provide coverage or other local service to their tion. In addition, argues KMEX, CCC's "minimal showing communities, but rather merely complains that it will have is far from adequate to warrant denial of must carry status to delete cable programming that, according to CCC, pro to KMEX under the criteria enumerated in the Commis vides public affairs and news programs, and will have to sion's Report and Order." reduce community affairs information carried on the local 15. In its opposition, RPV explains that, as it is not yet origination channel. With respect to evidence of viewing on the air, it is not yet in a position to demand carriage on patterns in cable and noncable households in the cable Dimension's cable system. RPV does oppose, however, communities, CCC has not provided the Commission with CCC's attempt to keep KMEX-TV off the system and ob any information, other than that, again, "to its knowledge" jects to CCC's "anti-minority attitude." 17 In its response, none of the stations has sizable off-air viewership within CCC claims that RPV's opposition provides no new in the communities served by Dimension and that none is formation, improperly mischaracterizes CCC's accurate use significantly viewed. of data, and objects to RPV's baseless accusations of racism. 16. In its opposition, KSLS argues that the Commission lacks authority to exempt cable systems from the statutory ORDER requirement that it carry up to one-third of its capacity 19. In view of the foregoing, we find that grant of the with local commercial stations. KSLS also argues that CCC petition is not in the public interest. has failed to show that compliance with its must carry 20. Accordingly, it IS ORDERED, pursuant to Section obligations would result in hardship, and that, in any case, 614(h) of the Communications Act of 1934, as amended, a showing of hardship is irrelevant. 47 U.S.C. § 534, and Section 76.59 of the Commission's Rules, 47 C.F.R. § 76.59, that the captioned petition for special relief filed on June 2, 1993 by Community ANALYSIS AND DECISION Cablevision Company d/b/a Dimension Cable Services IS 17. First, we will deny CCC's request for a waiver or an DENIED. Its petitions having been denied, CCC shall com exemption. Whereas the Commission may waive its rules, ply with the applicable provisions of the Section 614 of the it may not generally waive a provision of the statute. 18 CCC Communications Act and the associated rules within sixty has not set forth arguments here justifiying such an action (60) days of the release of this Order. CCC shall also notify with specific citations to the applicable statutory provisions all of the stations listed in its Petition of the outcome of and judicial precedents. We also note that the constitu this decision within fifteen (15) days of the release of this tionality of the must-carry rules was upheld by a special Order. three-judge panel of the District Court for the District of 21. This action is taken pursuant to authority delegated Columbia.19 On appeal, the Supreme Court vacated the by §0.321 of the Commission's Rules, 47 C.F.R. §0.321. decision and remended the case back to the District Court for further proceedings.20 While the case is pending, the FEDERAL COMMUNICATIONS COMMISSION must-carry provisions of the 1992 Cable Act remain in effect, as do the Commission's must-carry rules. Because this issue is currently being resolved by the court, no challenge to the constitutionality of these rules is appro priate here. William H. Johnson 18. With respect to CCC's request for modification of the Deputy Chief, Cable Services Bureau Los Angeles ADI, we find that CCC has provided insuffi cient evidence to support granting that request. The Cable Act allows the Commission to include or exclude particu lar communities from a television station's market to en sure that a television station is carried in the areas which it serves and which form its economic market. In the Report and Order, the Commission noted that it would permit joint filings by a group of stations or a single request from a cable operator for changes for more than one station licensed to the same community, "as long as the submitted information demonstrates that each station is entitled to have its market modified."21 CCC has failed to provide documented evidence regarding each particular television station for which it requests a market modification. CCC merely states that "to its knowledge" none of the stations had been historically carried on Dimension's cable system.

17 KMEX-TV provides full-time Spanish language program ming and KRPA-TV intends to provide programming of special Turner Broadcasting Systems, Inc. v. FCC, 114 S. Ct. 2445 interest to Asian Americans. (1994). 18 Johnson v. Robinson, 415 U.S. 361, 368 (1974). 21 Report and Order at 1 47 n.139.' 19 Turner Broadcasting System, Inc. v. FCC, 819 F. Supp. 32

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