[Federal Register Volume 65, Number 31 (Tuesday, February 15, 2000)]
[Proposed Rules]
[Pages 7481-7483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2618]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket 00-1; DA 00-12]


Amendment of List of Major Television Markets and Their 
Designated Communities

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document requests comment on a proposal to amend the 
Commission's rules which list the major television markets and their 
designated communities by adding the communities of Merced and 
Porterville, California to the hyphenated market of Fresno-Visalia-
Hanford-Clovis, California (the ``Fresno-Visalia market''). A joint 
petition was filed on March 16, 1988 and at least one of the 
petitioners has expressed continued interest in the Commission acting 
on this petition. The joint petitioners seek to add Merced and 
Porterville to the Fresno-Visalia market apparently to be able to 
assert network non-duplication rights and syndicated programming 
exclusivity on a hyphenated market basis. The requested action would 
also permit the acquisition of broadcast territorial exclusivity rights 
against television stations operating in Merced and in Porterville. In 
a related proceeding, Capital Cities/ABC, Inc. (``CC/ABC''), licensee 
of television station KFSN, Fresno, California, filed a request for 
amendment or waiver of Sec. 76.51 of the Commission's rules to add the 
community of Merced to the Fresno-Visalia market. We address both 
petitions in this proceeding.

DATES: Comments are due on or before February 7, 2000 and reply 
comments are due on or before February 22, 2000.

ADDRESSES: Federal Communications Commission, Office of the Secretary, 
445 12th Street, SW, Room TW-A325, Washington, DC 20554. Comments may 
be filed using the Commission's Electronic Comment Filing System (ECFS) 
or by filing paper copies. See Electronic Filing of documents in 
Rulemaking Proceedings, 63 FR 24, 121 (Friday, January 2, 1998). 
Comments filed through the ECFS can be sent as an electronic file via 
the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only 
one copy of an electronic submission must be filed. In completing the 
transmittal screen, commenters should include their full name, Postal 
Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit an electronic comment by Internet e-
mail. To get filing instructions for e-mail comments, commenters should 
send an e-mail to [email protected], and should include the following words 
in the body of the message, ``get form your e-mail addresses.>'' A 
sample form and directions will be sent in reply.

FOR FURTHER INFORMATION CONTACT: Carolyn Fleming at (202) 418-7200 or 
via Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Notice of Proposed Rule Making, DA 00-12, CS Docket No. 00-1, adopted 
January 4, 2000 and released January 7, 2000 (``Notice''). The full 
text of this Notice is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room CY-A257), 445 
12th Street, SW, Washington, DC 20554, or may be purchased from the 
Commission's copy contractor, International Transcription Service 
(``ITS'), (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036, 
or may be reviewed via Internet at http://www.fcc.gov?Bureaus/Cable/
News__Releases/2000/nrcb8022.html. For copies in alternative formats, 
such as Braille, audio cassette or large print, please contact Sheila 
Ray at ITS. This proceeding will be treated as a ``permit-but-
disclose'' proceeding subject to the ``permit-but-disclose'' 
requirements under Sec. 1.1206(b) of the Commission's rules. (47 CFR 
1.1206(b), as revised). Ex parte presentations are permissible if 
disclosed in accordance with Commission rules, except during the 
Sunshine Agenda period when presentations, ex parte or otherwise, are 
generally prohibited. Persons making oral ex parte presentations are 
reminded that a memorandum summarizing a presentation must contain a 
summary of the substance of the presentation and not merely a listing 
of the subjects discussed. More than a one or two sentence description 
of the views and arguments presented is generally required. (See 47 CFR 
1.206(b)(2), as revised.) Additional rules pertaining to oral and 
written presentations are set forth in 47 CFR 1.1206(b).

Synopsis of Notice of Proposed Rule Making

Introductory Background

    1. In this proceeding, we respond to a petition for rulemaking 
filed by Pappas Telecasting Incorporated (``Pappas''), licensee of 
television station KMPH(TV), Visalia, California, Retlaw Enterprises, 
Inc. (``Retlaw''), licensee of television station KJEO(TV), Fresno, 
California, and San Joaquin Communications Corp. (``San Joaquin''), 
licensee of television station KSEE(TV), Fresno, California, 
(collectively, the ``Joint Petitioners'') to amend Sec. 76.51 of the 
Commission's rules to add the communities of Merced and Porterville to 
the ``Fresno-Visalia'' market. (See 47 CFR 76.51). In a related 
proceeding, Capital Cities/ABC, Inc. (``CC/ABC''), licensee of 
television station KFSN, Fresno, California, filed a request for 
amendment or waiver of Sec. 76.51 of the Commission's rules to add the 
community of Merced to the Fresno-Visalia market. In this proceeding, 
we also address CC/ABC's petition and consider it a request for 
amendment of the applicable rules as it raises the same issue raised by 
the Joint Petitioners with regard to the community of Merced. At the 
time the petition was filed, there were applications on file with the 
Commission to commence television service in the communities of Merced 
and Porterville. Subsequent to the filing of the joint petition, 
television station KNSO, Channel 51, was licensed to Merced and 
television station KPXF, Channel 61, was licensed to Porterville.
    2. Section 76.51 of the Commission's Rules enumerates the top 100 
television markets and the designated communities within those markets. 
Among other things, this market list is used to determine territorial 
exclusivity rights under Sec. 73.658(m) and helps define the scope of 
compulsory copyright license liability for cable operators. (See 47 CFR 
73.658) Certain cable television syndicated exclusivity and network 
non-duplication rights are also determined by the presence of broadcast 
station communities of license on this list. Some markets consist of 
more than one named community (a ``hyphenated market''). Such 
``hyphenation'' of a market is based on the premise that stations 
licensed to any of the named communities in the hyphenated market do, 
in fact, compete with all stations licensed to such communities. (See 
CATV-Non-Network Agreements, 46 FCC 2d 892, 898 (1974). Market 
hyphenation ``helps equalize competition'' where portions of the market 
are located beyond the Grade B

[[Page 7482]]

contours of some stations in the area yet the stations compete for 
economic support. (See Cable Television Report & Order, 36 FCC 2d 143, 
176 (1972).
    3. In their petition, Joint Petitioners argue that the communities 
of Merced and Porterville are geographically and economically part of 
the Fresno-Visalia market. The communities are part of the Fresno-
Visalia ``area of dominant influence'' or ADI and the Fresno-Visalia 
``designated market area'' or DMA. Joint Petitioners maintain the 
communities in the Fresno-Visalia ADI consist of farming communities 
and the local agri-business results in a common social, cultural, and 
commercial market among them.
    4. Joint Petitioners further argue that Porterville is served by 
television stations KMPH and KSEE, both of which place a Grade A signal 
over the community. Joint Petitioners maintain that the proposed 
television station would place a predicted Grade B signal over the 
communities of Clovis and Sanger and a significant portion of Fresno, a 
Grade A signal over Hanford, and a City Grade signal over Visalia. 
Joint Petitioners further state that each of the Fresno-Visalia 
commercial television stations, except KMSG-TV, Sanger, is carried on 
the Porterville cable system and all are received off-air by the 
system. Thus, the Joint Petitioners argue that the proposed television 
station belongs in the Fresno-Visalia market and would necessarily 
compete with other Fresno-Visalia stations for programming, advertising 
revenues, and audience share.
    5. Similarly, with regard to Merced, Joint Petitioners state that 
the proposed television station would compete with television stations 
in the Fresno-Visalia market. The Joint Petitioners state that the 
proposed television station would place a predicted Grade A signal over 
a significant portion of the communities of Fresno and Clovis and would 
place a predicted Grade B signal over the community of Sanger and the 
remaining portion of Fresno. The Joint Petitioners concede that the 
Grade B signal would not cover the communities of Hanford and Visalia 
but maintain that the propagation characteristics of the terrain 
permits a strong signal in those communities. The Joint Petitioners 
further state that each of the television stations in the Fresno-
Visalia market places a predicted Grade B signal over Merced, with the 
exception of KMPH. With regard to KMPH, the Joint Petitioners assert 
that the station evidences significant viewership in Merced because it 
has a net weekly circulation of over 50 percent in Merced County. The 
Joint Petitioners further assert that the three network affiliates, 
KFSN-TV, KJEO, and KSEE, and indpendent station KMPH, are carried on 
the Merced cable systems and are received off-air. Thus, the Joint 
Petitioners conclude that the proposed television station would be part 
of the Fresno-Visalia market and would compete with other Fresno-
Visalia market stations for programming, advertising revenues, and 
audience share.

CC/ABC'S Petition

    6. In this proceeding, we also address the petition filed by CC/
ABC. CC/ABC, licensee of television station KFSN, Fresno, California, 
requests that the Commission add the community of Merced to the Fresno-
Visalia market for, among other reasons, purposes of the network non-
duplication and syndicated exclusivity rules. CC/ABC maintains that 
Merced is geographically part of the greater Fresno area and shares 
common social, cultural, trade, and economic interests with other 
Fresno-Visalia market communities. UA Cable Systems of California 
(``UA'') filed an opposition to CC/ABC's petition arguing that Merced 
is 55 miles southeast of Fresno and thus geographically distant, and 
that Merced is not in the same market as Fresno-Visalia. To support its 
assertion that Merced and Fresno are in different markets, UA states 
that the two communities are in different areas according to data from 
the Metropolitan Statistical Areas (``MSAs'') and the Rand McNally Map 
of Trading Areas (``Trading Areas''). UA further states the television 
stations in the two communities do not compete for advertising revenues 
as evidenced by the fact that the Merced Sun-Star television update, 
which covers the community of Merced, did not include any 
advertisements for Fresno for the week of January 2 through January 8, 
1993. Conversely, UA states that, KFSN's quarterly reports, which 
summarizes the Fresno station's newscasts, did not identify any 
newscast which specifically mentions issues or programs related to the 
community of Merced for the two year period 1990 through 1992 and does 
not serve the area.
    7. In the Notice, the Commission states its belief that a 
sufficient case for redesignation of the subject market has been set 
forth so that the proposal should be tested through the rulemaking 
process, including the comments of interested parties. In addition, the 
Commission states that the proposal and CC/ABC's request appears to be 
consistent with the Commission's policies regarding redesignation of a 
hyphenated television market.

Paperwork Reduction Act

    The requirements proposed in this Notice have been analyzed with 
respect to the Paperwork Reduction Act of 1995 (the ``1995 Act'') and 
do not impose new or modified information collection requirements on 
the public.
    OMB Approval: None.
    Title: In the Matter of Amendment of Sec. 76.51 of the Commission's 
Rules to include Merced and Porterville, California in the Fresno-
Visalia-Hanford-Clovis Television Market.
    Type of Review: None.
    Initial Regulatory Flexibility Analysis: We certify that the 
Regulatory Flexibility Act of 1980 does not apply to this rulemaking 
proceeding because if the proposed rule amendment is promulgated, there 
will not be a significant economic impact on a substantial number of 
small business entities, as defined by Sec. 603 of the Regulatory 
Flexibility Act. A few cable television system operators will be 
affected by the proposed rule amendment. The Secretary shall send a 
copy of this Notice, including the certification, to the Chief Counsel 
for Advocacy of the Small Business Administration in accordance with 
paragraph 603(a) of the Regulatory Flexibility Act. Public Law 96-354, 
94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).
    A. Reasons Why Agency Action Is Being Considered. We undertake this 
proceeding to address the proposal by the Joint Petitioners to add the 
communities of Merced and Porterville, California to the Fresno-
Visalia-Hanford-Clovis television market. The proposal, if granted, 
could help equalize competition in that hyphenated market where 
portions of the market are located beyond the Grade B contours of some 
stations in the area yet the stations compete for economic support.
    B. Legal Basis. The authority for the action proposed for this 
rulemaking is contained in Secs. 4(i)-(j), (f), (g), and (r), and 
309(j) of the Communications Act of 1934, as amended.
    C. Description and Estimate of the Number of Small Entities 
Impacted. None.
    D. Reporting, Recordkeeping, and Other Compliance Requirements. The 
Commission is not proposing to impose additional reporting or 
recordkeeping requirements.
    E. Significant Alternatives Which Minimize the Impact on Small 
Entities and Are Consistent With Stated Objectives. The Notice 
certifies that there is no significant impact on small entities.

[[Page 7483]]

    F. Federal Rules Which Overlap, Duplicate, or Conflict With the 
Commission's Proposal. None.
    G. Report to Congress. The Commission shall send a copy of this 
IRFA along with this Notice in a report to Congress pursuant to the 
Small Business Regulatory Enforcement Fairness Act of 1998, codified at 
5 USC 801(a)(1)(A). A copy of this IRFA will also be published in the 
Federal Register.

Ordering Clauses

    Pursuant to Secs. 4(i)-(j) of the Communications Act of 1934, as 
amended, 47 USC 154(i)-(j), 303(c), (f), and (r), and 309(j), notice is 
hereby given of the proposed amendment to Part 76 of the Commission's 
rules, in accordance with the proposals, discussions, and statements of 
issues contained in this Notice of Proposed Rulemaking, and that 
comment is sought regarding such proposals, discussions, and statements 
of issues. It is further ordered that the Commission's Office of Public 
Affairs, Reference Operations division, shall send a copy of this 
Notice of Proposed Rulemaking, including the Initial Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of Small 
Business Administration, in accordance with paragraph 603(a) of the 
Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164, 5 USC 601 
et seq. (1981).

    Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-2618 Filed 2-14-00; 8:45 am]
BILLING CODE 6712-01-U