10 FCC Red No. 14 Federal Communications Commission Record DA 95-1340
Before the
Federal Communications Commission
Washington, D.C. 20554
In re:
Burnham Broadcasting Company CSR-3948-A
Bakersfield, California
For Modification of Station KBAK-TV's ADI
MEMORANDUM OPINION AND ORDER
Adopted: June 14,1995; Released: June 26, 1995
By the Cable Services Bureau:
INTRODUCTION
1. Burnham Broadcasting Company, a Limited
Partnership ("Burnham"), licensee of Station KBAK-TV
(ABC, Channel 29), Bakersfield, California, has filed a
petition for special relief seeking to modify its Area of
Dominant Influence ("ADI") to establish mandatory car
riage rights on the cable systems serving Tulare, Visalia,
and Porterville in Tulare County, California and Corcoran
in Kings County California. Continental Cablevision of
Sierra Valleys, Inc. ("Continental") serves the communities
of Tulare, Visalia, and Corcoran. Oppositions to this peti
tion were filed on behalf of Retlaw Enterprises, Inc.
("Retlaw"), licensee of KJEO-TV (CBS, Channel 47), Fres-
no, California and Continental. In addition, Comments to
KBAK-TV's petition were filed on behalf of Pappas Tele
casting Incorporated, licensee of KMPH-TV (Fox, Channel
26) Visalia, California. Burnham filed a consolidated reply
to the oppositions and the comments.
BACKGROUND
2. Pursuant to §4 of the Cable Television Consumer
Protection and Competition Act of 1992 ["1992 Cable
Act"] 1 and implementing rules adopted by the Commission
in its Report and Order in MM Docket 92-2S9,2 a commer
cial television broadcast station is entitled to assert man
datory carriage rights on cable systems located within 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.3 An ADI 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 1992 Cable Act, however, the Commission
is also directed to consider changes in ADI areas. Section
614(h) provides that the Commission may:
with respect to a particular television broadcast sta
tion, include additional communities within its tele
vision market or exclude communities from such
station's television market to better effectuate the
purposes of this section.
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 eli
gible to be carried by a cable system in such commu
nity in fulfillment of the requirements of this section
provides news coverage of issues of concern to such
community or provides carriage or coverage of sport
ing and other events of interest to the community;
and
(IV) evidence of viewing patterns in cable and
noncable households within the areas served by the
cable system or systems in such community.5
4. The legislative history of this provision indicates that:
where the presumption in favor of ADI carriage
would result in cable subscribers losing access to
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
communities from a television station's market con
sistent with Congress' objective to ensure that televi
sion stations be carried in the areas which they serve
and which form their economic market.
1 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
2 8 FCC Red 2965, 2976-2977 (1993).
3 Section 4 of the 1992 Cable Act specifies that a commercial
broadcasting station's market shall be determined in the man
ner provided in §73.3555(d)(3)(i) of the Commission's Rules, as
in effect on May 1, 1991. This section of the rules, now
redesignated §73.3555(e)(3)(i), refers to Arbitron's ADI for pur
poses of the broadcast multiple ownership rules. Section
76.55(e) of the Commission's Rules provides that the ADIs to be
used for purposes of the initial implementation of the man
datory carriage rules are those published in Arbitron's
1991-1992 Television Market Guide.
4 Because of the topography involved, certain counties are
divided into more than one sampling unit. Also, in certain
circumstances, a station may have its home county assigned to
an ADI even though it receives less than a preponderance of the
audience in that county. For a more complete description of
how counties are allocated, see Arbitron's Description of Meth
odology.
5 47 U.S.C. §534(h)(l)(C)(ii).
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DA 95-1340 Federal Communications Commission Record 10 FCC Red No. 14
* * * * *
[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 station's market.6
5. The Commission provided guidance in the Report and
Order, supra, to aid decision making in these matters, as
follows:
For example, the historical carriage of the station
could be illustrated by the submission of documents
listing the cable system's channel line-up (e.g., rate
cards) for a period of years. To show that the station
provides coverage or other local service to the cable
community (factor 2), parties may demonstrate that
the station places at least a Grade B coverage contour
over the cable community or is located close to the
community in terms of mileage. Coverage of news or
other programming of interest to the community
could be demonstrated by program logs or other
descriptions of local program offerings. The final fac
tor concerns viewing patterns in the cable commu
nity in cable and noncable homes. Audience data
clearly provide appropriate evidence about this fac
tor. In this regard, we note that surveys such as those
used to demonstrate significantly viewed status could
be useful. However, since this factor requires us to
evaluate viewing on a community basis for cable and
noncable homes, and significantly viewed surveys
typically measure viewing only in noncable house
holds, such surveys may need to be supplemented
with additional data concerning viewing in cable
homes.7
6. In adopting rules to implement this provision, the
Commission indicated that changes requested 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 ap
plicable in common to all stations in the market.8 The
rules further provide, in accordance with the requirements
of the 1992 Cable Act, that a station not be deleted from
carriage during the pendency of an ADI change request.9
7. Adding communities to a station's ADI generally en
titles that station to insist on cable carriage in those com
munities. However, this right is subject to several
conditions: 1) a cable system operator is generally required'
to devote no more than one-third of the system's activated
channel capacity to compliance with the mandatory signal
carriage obligations; 2) the station is responsible for
delivering a good quality signal to the principal headend of
the system; 3) indemnification may be required for any
increase in copyright liability resulting from carriage; and
4) the system operator is not required to carry the signal of
any station whose signal substantially duplicates the signal
of any other local signal carried, or the signal of more than
one local station affiliated with a particular broadcast net
work. If, pursuant to these requirements, a system operator
elects to carry the signal of only one such duplicating
signal, the operator is obliged to carry the station from the
ADI whose city of license is closest to the principal
headend of the cable system. 10 Accordingly, based on the
specific circumstances involved, the addition of commu
nities to a station's ADI may guarantee it cable carriage
and specific channel position rights, or may simply provide
the system operator with an expanded list of must-carry
signals from which to choose (i.e., when the system has
used up its channel capacity mandated for broadcast signal
carriage, or determined which of duplicating network affili
ated stations are entitled to carriage priority).
MARKET FACTS AND ARGUMENTS OF THE PARTIES
8. KBAK-TV is a full power commercial television sta
tion licensed to Bakersfield, California, in Kern County
West, and located in the Bakersfield ADI. Continental
Cablevision notified KBAK that the station will be dropped
from its cable system serving Tulare and Visalia, and from
its system serving Corcoran. Tulare, Visalia, and Porterville
in Tulare County, California and Corcoran in Kings Coun
ty, California are located in the Fresno-Visalia ADI. Using
the reference points in §76.53 of the Commission's Rules,
Bakersfieid is located 67.5 miles from Visalia, 60.2 miles
from Tulare, 58.3 miles from Corcoran, and 47.6 miles
from Porterville. 11
9. In support of its petition, Burnham argues that
KBAK-TV has been historically carried on Continental and
other cable systems serving Tulare, Visalia, and Corcoran,
and on the Falcon cable system serving Porterville.
Burnham also maintains that the station is close to all of
the communities and that Bakersfield is a "natural urban
center to which residents of Tulare. Visalia, Porterville and
Corcoran come and a corridor through which residents
pass." In addition, Burnham contends that KBAK-TV's
over-the-air signal is "well-received" in Tulare, Visalia, and
Corcoran, and that its Grade B contour encompasses the
community of Porterville and extends into both Tulare and
Kings County where the other communities are located.
Furthermore, Burnham asserts that it has traditionally re
ported news and events regarding the communities. In
support, Petitioner submits excerpts from its news coverage
logs showing news and public affairs programming, includ
ing "29 Closeup" a public affairs program that airs twice
weekly, which it argues are of interest to the residents of
the communities. The station notes that only one commer
cial television station is licensed to Visalia KMPH, a Fox
network which does not provide regularly-scheduled pub
lic affairs programming; that the only station licensed to
Porterville KKAK, an independent station has no news
or public affairs programming, nor is it carried on the
Continental system serving Porterville; and that no stations
are licensed to Tulare or Corcoran. Petitioner also asserts
that companies have historically aired advertisements on
6 H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992).
7 Id. at 2977 (emphasis in original).
8 Report and Order, 8 FCC Red at 2977, 2977 n.139.
9 47 C.F.R. §76.59.
10 Report and Order, 8 FCC Red at 2981.
11 See Retlaw comments at 4. Retlaw notes that for the com
munities that are not listed in §76.53, the reference points are
taken from The National Gazetteer of the United States of Amer
ica, U.S. Geological Survey (1990).
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10 FCC Red No. 14 Federal Communications Commission Record DA 95-1340
the station targeting the residents of Tulare, Visalia, and
Porterville. Finally, Burnham maintains that KBAK-TV has
a long history of both cable and noncable viewing in the
communities, noting its historical carriage on the cable
systems and arguing that it has been significantly viewed in
noncable households in both Tulare and Kings County for
more than two decades.
10. In its comments on the petition, Pappas, licensee of
station KMPH-TV, Visalia, California, states that it supports
Burnham's request on the basis that the Fresno and Ba-
kersfield "television markets substantially overlap as do the
economic, political and societal activities of the commu
nities of Bakersfield, Porterville, Visalia, Tulare, Corcoran
and Fresno." 12 Pappas contends that it filed a similar re
quest, which Burnham opposed, that Bakersfield be in
cluded in its ADI, and that in support it submitted
information and documentation essentially identical to that
presented by Burnham in the instant proceeding.
11. In its opposition. Continental requests that we deny
Burnham's petition as it relates to Tulare, Visalia and
Corcoran.13 Continental begins by noting that both its Cor
coran system and its Tulare/Visalia system are engineered
for 42 cable channels and that neither system has any
available channel capacity. Accordingly, it argues that it
would have to drop satellite cable programming to make
room for any new broadcast stations. This is apparently
what happened when, on June 2, 1993, the Commission's
must carry rules went into effect and Continental, required
to add two stations from the Fresno ADI, dropped KBAK-
TV and one other station from its systems serving Tulare,
Visalia and Corcoran. Continental argues that it made, the
decision to drop these channels because the programming
substantially duplicated the programming of the affiliates
from the Fresno ADI. 14
12. Continental further maintains that Burnham has
failed to meet its evidentiary burden. First, Continental
contends that although it has carried KBAK-TV on its
Tulare/Visalia cable system, it has never carried the station
on its Corcoran system. Second, Continental argues that
the limited number of stories that KBAK-TV aired regard
ing the subject communities "seem[s] to indicate that the
station orients itself significantly more toward coverage of
news in Bakersfield ..'.," and that the "29 Closeup"
program listed by Burnham is aired at odd hours and is
not supported by a topics list showing the subject matter of
the programs. In contrast, Continental asserts that the sev
eral major stations licensed to the Fresno ADI and Con
tinental itself adequately cover the important issues and
events of Tulare, Visalia, and Corcoran, and provide sub
stantially more local programming than KBAK-TV. Re
garding signal coverage, Continental asserts that not only
does KBAK-TV not cast a Grade B signal over any portion
of the Tulare/Visalia cable television system or over Cor
coran, but that contrary to Burnham's arguments, KBAK-
TV's signal quality is significantly lower than the Fresno
stations and lower than any other Bakersfield station. Fi
nally, Continental maintains that Burnham has failed to
show sufficient viewership in Tulare, Visalia or Corcoran
to justify expansion of the station's ADI. This is so, Con
tinental argues, because with regard to Tulare and Visalia,
Petitioner relies on its significantly viewed status which is a
measure of viewership only in noncable households. With
regard to Corcoran, Continental argues that KBAK-TV's
viewership is so insubstantial that in some time slots it
cannot even be calculated. 15 Continental asserts that KFSN-
TV, the ABC affiliate in Fresno received a 12.2 rating and
a 21 share in primetime in all television households during
February 1993, while KBAK-TV received only a .7 rating
and a 1 share in primetime in all television households
during the same period. 16
13. In addition to Continental, Retlaw, licensee of station
KJEO-TV, Fresno, California opposed the petition on the
grounds that it exceeds the scope of the applicable Com
mission rule and because the Fresno market stations cur
rently provide the subject communities with sufficient local
service. First, Retlaw argues that Burnham seeks to extend
its ADI beyond its "natural service area," "extending into
communities that are uniquely part of the Fresno market. .
. ," 17 In addition, Retlaw contends that KBAK-TV fails to
place a Grade B signal over Visalia, Tulare, or Corcoran,
and that KBAK is a significant distance from the subject
communities,18 demonstrating that the communities are
well within the Fresno ADI and not fringe communities to
the Bakersfield market. In addition, Retlaw asserts that the
petition fails to mention the significant local television
service provided to the communities by the Fresno-Visalia
ADI television stations. Retlaw notes that eight Fresno
stations provide at least Grade B coverage to Visalia and
Tulare, at least three Fresno stations provide Grade B
coverage to Corcoran, and at least two Fresno stations
provide Grade B coverage to Porterville.19 Finally, Retlaw
argues that Burnham's petition shows very little local cov
erage and that the list of programming lacks specificity.
14. In its consolidated response, Burnham reiterates and
provides additional support for its arguments that it has
met the statutory requirements for modification of its ADI,
noting that not only has it been carried on the cable
systems serving Tulare, Visalia and Porterville, but that it
has also been carried on the cable systems serving many of
the communities surrounding Corcoran.20 In addition,
12 Pappas comments at 2.
13 Continental states that it does not serve the community of
Porterville, and therefore, is only opposed to Burnham's peti
tion as it relates to these three communities.
14 Continental argues that during the week of August 14-20,
1993, KBAK-TV's programming simultaneously duplicated that
of KFSN-TV, the ABC affiliate from the Fresno ADI, for 73 of
132 hours, or 55.3 percent of the time. Continental opposition at
3, n.4.
15 Continental states that Monday through Friday, 6:00 to 7:00
p.m., when its local news programming is running, KBAK-TV's
viewership is so low it cannot be calculated. Continental opposi
tion at 19.
16 Continental opposition at 15-16, n.14, citing Nielsen Media
Research, Total Activity Report, February 1993 for Fresno, CA.
17 Retlaw opposition at 3.
18 In contrast, Retlaw notes that Fresno, KJEO's community of
license is located just 39.3 miles from Visalia, 44 miles from
Tulare, 46.5 miles from Corcoran, and 48.8 miles from
Porterville (approximately equidistant with Bakersfield). See
paragraph 8, supra, for the distance between Bakersfield and the
subject communities.
19 See Television and Cable Factbook, Stations Volume 61, at
A-110, A-116 to A-122 (1993).
20 Burnham concedes that Continental has not carried KBAK-
TV on its Corcoran system but argues, that because of its
over-the-air coverage of Corcoran and the local service it has
provided the community, must-carry status is appropriate.
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DA 95-1340 Federal Communications Commission Record 10 FCC Red No. 14
Burnham asserts that contrary to the objectors' arguments.
KBAK-TV has always been received over the air in the
subject communities, and since at least 1972, has obtained
significantly viewed status in the counties where these com
munities are located. Furthermore, regarding the frequency
and nature of its local programming, Burnham argues that
the evidence it submitted shows a greater emphasis on the
communities of Porterville and Tulare than the news sto
ries submitted by Continental regarding KFSN-TV.'s pro
gramming, and that unlike Continental. Burnham listed no
stories originating with a wire service. Finally, Petitioner
reasserts its contention that it enjoys significant viewership
in Tulare and Kings County.21
DISCUSSION
15. Burnham has not provided sufficient evidence to
justify its market modification request with respect to the
communities of Tulare, Visalia, or Corcoran. However.
Burnham has shown that the community of Porterville is
logically part of its television market. Accordingly, its peti
tion will be denied in part and granted in part.
16. With respect to the communities of Tulare, Visalia.
and Corcoran, we find that Burnham has met only one of
the four statutory factors specified in the 1992 Cable Act -
the historical carriage requirement, and only for Tulare
and Visalia. In Corcoran, Burnham has failed to show that
it meets any of the statutory factors. Burnham demonstrates
that KBAK-TV has been carried on Continental and other
cable systems serving Tulare and Visalia since as early as
1987. While this factor is entitled to considerable weight, it
does not by itself and in the absence of satisfactory evi
dence satisfying the other factors, demonstrate that a
change in its market boundary is warranted.
17. With respect to local coverage, the second statutory
factor, we have stated that parties may demonstrate that the
station places at least a Grade B coverage contour over the
cable communities.22 Although Burnham attempts to argue
that its over-the-air signal is well received in Tulare,
Visalia, and Corcoran, the communities actually lie outside
of KBAK-TV's Grade B signal. In fact, it appears as if the
stations's signal does not cover any portion of Kings Coun
ty where Corcoran is located. However, failure to place a
Grade B contour over the communities does not automati
cally warrant a denial of a station's ADI modification
petition where the station can show geographic proximity
and programming which serves the interests of the commu
nities in question. We find that Burnham has also failed to
show that KBAK-TV is any closer to the communities than
the Fresno stations,23 or that it provides programs of inter
est to the communities of Tulare, Visalia, or Corcoran.
First, as stated supra, Bakersfield is significantly farther
from the subject communities than is Fresno. In addition,
the evidence submitted by KBAK-TV regarding its local
programming is not sufficiently specific to determine
whether it truly addresses issues of interest and concern to
the residents of the communities.
18. While KBAK-TV presented little evidence regarding
whether any other must-carry stations serve the commu
nities, the record shows that in addition to other stations,
KFSN, the ABC affiliate in the Fresno-Visalia ADI, and
KMPH, the Fox affiliate from the ADI both serve the
communities with local programming. We do not believe
that Congress intended the third criterion to operate as a
bar to a station's ADI claim whenever other stations could
also be shown to serve the communities at issue. Rather,
we believe that this criterion was intended to enhance a
station's claim where it could be shown that other stations
do not serve the communities at issue. However, the pres
ence of other stations which serve the communities does
not permit us to weigh this factor in favor of KBAK-TV's
petition.
19. Finally, KBAK-TV's evidence relating to viewing pat
terns in the communities in question also does not suggest
a close association with KBAK-TV or that the market
structure should be revised. The most current survey in
formation from Arbitron's 1993-94 Television County Cov
erage: California indicates that KBAK-TV is not widely
viewed. In Tulare County, KBAK-TV earned a four share
and a 34 net weekly circulation. In comparison, KFSN, the
ABC affiliate in the Fresno-Visalia ADI, earned a 15 share
and a 73 net weekly circulation. In Kings County, KBAK-
TV's viewership is even lower - earning a one share and a
five net weekly circulation. This is in comparison to KFSN,
the ABC affiliate from the Fresno-Visalia ADI, which
earned a 15 share and 73 net weekly circulation in Tulare
County and an 18 share and 82 net weekly circulation in
Kings County. In addition, KBAK's viewership in both
Tulare and Kings County is lower than all the network
affiliates in the ADI. While the Commission has not adopt
ed a minimum level of acceptable share or net weekly
. circulation for satisfying the fourth statutory factor, KBAK-
TV's numbers, when compared with those of other stations
in both Tulare and Kings Counties, do not show that its
viewership in cable and non-cable homes in the two coun
ties rises to a level which demonstrates that the commu
nities therein form part of KBAK-TV's economic
marketplace, especially given the findings herein that
KBAK-TV has failed to show that the station meets the
second and third statutory requirements for ADI modifica
tion. We find, therefore, that Burnham's failure to satisfy
all but one of the statutory factors outweighs its showing of
historical carriage and does not merit grant of its request
with respect to Tulare, Visalia, or Corcoran.24
20. The factors as applied to Porterville are somewhat
different. Burnham has shown that KBAK-TV has been
carried on the Falcon cable system serving Porterville since
as early as 1987. In addition, Porterville is within the
station's Grade B signal contour. We note that Porterville
is farther south from Fresno, and therefore, closer to
KBAK-TV's city of license than the other three subject
communities. Burnham's showing for Porterville with re
spect to the first and second factors, the evidence relating
to the importance of KBAK-TV as an advertising medium
for local business, and its geographic proximity to Bakers-
21 In addition, Burnham replies that the vehemence of the two
parties opposing the petition,'in light of the number of parties
affected who did not oppose the petition, shows that the two
parties are more interested in protecting their own economic
interest than in promoting public service.
22 Report and Order, 8 FCC Red at 2977.
23 See paragraph 8 and footnote 19, supra.
24 We note that under § 76.56(b)(5) of our Rules, Continental
would not otherwise have been required to carry KBAK if, as
claimed by Continental, Petitioner's programming substantially
duplicates that of KFSN, the closer ABC affiliate.
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10 FCC Red NO. 14 Federal Communications Commission Record DA 95-1340
field outweigh its low viewership in Tulare County, as
noted in paragraph 19. supra, and warrants a grant of
Burnham's petition with respect to the community of
Porterville. Accordingly, for purposes of determining man
datory signal carriage obligations, we shall consider the
community of Porterville, California to be part of KBAK-
TV's ADI. This determination is subject to all generally
applicable limitations on signal carriage rights, including
copyright liability, signal quality, channel capacity, and
program duplication. See paragraph 7, supra.
ORDER
21. Accordingly, IT IS ORDERED, pursuant to §614 of
the Communications Act of 1934, as amended (47 U.S.C.
§534), and §76.59 of the Commission's Rules (47 C.F.R.
§76.59), that the petition for special relief filed June 8,
1993 by Burnham Broadcasting Company, IS GRANTED
to the extent indicated in paragraph 20, supra, and in all
other respects IS DENIED. This change shall be effective
in accordance with the following schedule: Burnham
Broadcasting Company shall notify the cable systems in
question in writing of its carriage and channel position
election (§§76.56, 76.57, and 76.64(f) of the Commission's
Rules) within 30 days of the release date of this Memoran
dum Opinion and Order. The affected cable systems shall
come into compliance with the applicable rules within 60
days of the above notice.
22. This action is taken pursuant to authority delegated
by §0.321 of the Commission's rules.
FEDERAL COMMUNICATIONS COMMISSION
William H. Johnson
Deputy Chief, Cable Services Bureau
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