[Federal Register Volume 69, Number 15 (Friday, January 23, 2004)]
[Rules and Regulations]
[Pages 3268-3270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1408]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket 00-1; DA 00-1337]


Amendment of List of Major Television Markets Designated 
Communities

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document amends the Commission's rules to add the 
communities of Merced and Porterville, California to the Fresno-
Visalia-Hanford-Clovis hyphenated television market (``Fresno-Visalia'' 
market). The Communications Act requires that the Commission make 
revisions needed to update the list of top 100 television markets and 
their designated communities. The Commission's rules enumerates the top 
100 television markets and the designated communities within those 
markets. In addition to permitting broadcast territorial exclusivity, 
television stations that are part of a hyphenated market may assert 
network non-duplication rights and syndicated programming exclusivity 
against other television stations throughout the hyphenated market. 
Market hyphenation helps equalize competition among stations in a 
market. This document concludes that there is sufficient evidence 
demonstrating commonality between the two communities to be added to 
the Fresno-Visalia hyphenated market.

DATES: Effective February 23, 2004.

ADDRESSES: Federal Communications Commission, Office of the Secretary, 
445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Sonia Greenaway-Mickle, Media Bureau, 
202-418-1419.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (R&O) in CS Docket No. 00-1, DA 00-1337, adopted June 14, 
2000 and released June 20, 2000. The complete text of the R&O is 
available for inspection and copying during normal business hours in 
the FCC Reference Information Center, Courtyard Level, 445 12th Street, 
SW., Washington, DC. The text may also be purchased from the 
Commission's copy contractor, Qualex

[[Page 3269]]

International, Portals II, 445 12th Street, SW., CY-B4202, Washington, 
DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail 
[email protected].

Synopsis of the Report and Order

Introduction

    1. Before the Commission is the Notice of Proposed Rule Making 
(``Notice'') in the captioned proceeding, issued in response to a joint 
petition 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''). The Notice 
proposed to amend Sec.  76.51 of the Commission's rules to add the 
communities of Merced and Porterville, California to the Fresno-
Visalia-Hanford-Clovis hyphenated television market (``Fresno-Visalia'' 
market). The Notice also sought comment on the petition for amendment 
or waiver of section 76.51 with respect to the community of Merced that 
was filed by Capital Cities/ABC, Inc. (``CC/ABC''). In response to the 
Notice, three comments were filed with the Commission, all of which 
were in favor of the action requested by the petitioners.

Background

    2. Section 4 of the Cable Television Consumer Protection and 
Competition Act of 1992 (the ``1992 Act'') added section 614 to the 
Communications Act of 1934. Section 614 requires that the Commission 
make revisions needed to update the list of top 100 television markets 
and their designated communities. Section 76.51 of the Commission's 
rules enumerates the top 100 television markets and the designated 
communities within those markets. Among other things, the top 100 
market list is used to determine territorial exclusivity rights under 
Sec.  73.658(m) of the Commission's rules and helps define the scope of 
compulsory copyright license liability for cable operators. In addition 
to broadcast territorial exclusivity, television stations that are part 
of a hyphenated market may assert network non-duplication rights and 
syndicated programming exclusivity against other television stations 
throughout the hyphenated market. A hyphenated television market, a 
television market that consists of more than one named community, is 
based upon the premise that stations licensed to any of the named 
communities therein compete with all stations licensed to such 
communities. Market hyphenation ``helps equalize competition'' 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.
    3. In evaluating past requests for hyphenation of a market, the 
Commission has considered the following factors as relevant to its 
examination: (i) The distance between the existing designated 
communities and the community or communities proposed to be added to 
the designation; (ii) whether cable carriage, if afforded to the 
subject station, would extend to areas beyond its Grade B signal 
coverage area; (iii) the presence of a clear showing of a 
particularized need by the station requesting the change of market 
designation; and (iv) an indication of benefit to the public from the 
proposed change. These factors help the Commission evaluate the 
individual market conditions consistent ``with the underlying 
competitive purpose of the market hyphenation rule'' which is to 
delineate areas where stations compete.

Discussion

    4. A ``hyphenated market'' has been described by the Commission as 
a television market that contains more than one major population center 
supporting all stations in the market, with competing stations licensed 
to different cities within the market area. Market hyphenation helps to 
equalize competition among stations in a 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. Pappas and Fisher 
Broadcasting Incorporated (``Fisher'') state that the factors 
indicating that the communities of Merced and Porterville should be 
added to the Fresno-Visalia market that are cited in the original joint 
petition are even more true today. At the time that the joint 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. Pappas and Fischer 
maintain that the new stations licensed to Merced and to Porterville 
compete with other television stations licensed to communities in the 
Fresno-Visalia market. In addition, the commenters argue that 
advancements in technology and in alternate delivery systems make the 
grant of syndicated exclusivity and network non-duplication rights 
imperative to stations licensed to those communities.
    5. With regard to the distance between communities in the Fresno-
Visalia market and the communities of Merced and Porterville, the first 
factor for evaluating market hyphenation requests, commenters Gary M. 
Cocola (``Cocola''), licensee of KGMC(TV), and Paxson Communications 
License Company, LLC (``Paxson''), licensee of television station KPXF, 
state that the communities of Merced and Porterville have long been an 
integral part of the Fresno-Visalia market. Specifically, Cocola and 
Paxson state that the City of Fresno lies at the geographic center of 
the Fresno-Visalia market and that Merced is approximately 50 miles 
north of Fresno and that Porterville is approximately 70 miles south of 
Fresno. Cocola and Paxson note that, in similar proceedings, the 
Commission has concluded that communities separated by greater 
distances can form the same television market. The commenters argue 
that, because of their geographic proximity, Merced and Porterville 
share a common social, cultural, and economic bond with communities in 
the Fresno-Visalia market that is based on the local agribusiness 
economy. Cocola and Paxson further note that Merced and Porterville are 
included in Nielsen's Fresno-Visalia ``designated market area'' or DMA 
and, prior to that designation, were included in Arbitron's Fresno-
Visalia ``area of dominant influence'' or ADI.
    6. We find that the distance between the existing designated 
communities and the communities of Merced and Porterville, 50 miles and 
70 miles respectively, indicates that the communities are sufficiently 
proximate to be deemed part of the Fresno-Visalia hyphenated market. In 
the Notice, the Commission noted the well-defined topography of the 
Fresno-Visalia market including the Coast Ranges Mountains marking its 
western border and the Sierra Nevada Mountains marking the eastern 
border. In addition, we note that the Fresno-Visalia market is bounded 
by the Sacramento-Stockton-Modesto television market to the north and 
the Bakersfield television market to the south. Thus, the Fresno-
Visalia market consists predominately of farming communities located 
within the central San Joaquin Valley floor which indicates commonality 
among the communities.
    7. With regard to the second factor for evaluating market 
hyphenation requests, we find that cable carriage, if afforded

[[Page 3270]]

to television station KNSO on a hyphenated market basis, would extend 
beyond its Grade B signal coverage area. Merced station KNSO does not 
provide Grade B coverage over the communities in the Fresno-Visalia 
market. In contrast, Porterville station KPXF does place a Grade B 
contour over the communities in the Fresno-Visalia market. However, 
Joint Petitioners point out that all of the stations currently in the 
Fresno-Visalia market, with the exception of KMPH, place a predicted 
Grade B contour over Merced. Joint Petitioners further maintain that 
KMPH has a significant viewership in Merced County and that KMPH, as 
well as the other television stations in the market, are carried on the 
cable system serving Merced. TCI Cablevision of California, which 
provides cable service to communities in the Fresno-Visalia market and 
to Merced, carries independent television station KMPH as well as the 
network affiliates KFSN, KJEO, and KSEE.
    8. Commenters maintain that the Joint Petitioners have shown a 
particularized need to be added to the Fresno-Visalia market because 
incumbent Fresno-Visalia market stations actually compete with new 
stations KNSO and KPXF. Cocola and Paxson state that Merced station 
KNSO and Porterville station KPXF compete with stations in the Fresno-
Visalia market such as KGMC(TV), a station licensed to Fresno. The 
commenters further state that residents of Merced and of Porterville 
are served by the same television stations as residents of the named 
communities in the Fresno-Visalia market, namely, KFSN-TV (ABC 
affiliate), KJEO(TV) (CBS affiliate), and KSEE (NBC affiliate). In 
addition, Cocola and Paxson state that viewers in the Fresno-Visalia 
market receive WB programming from Merced station KNSO and PAXTV 
programming from Porterville station KPXF. Thus, commenters maintain 
that ``for many years, television stations throughout the Fresno-
Visalia Market have acquired programming with the expectation that they 
would serve the market that has been defined consistently by Arbitron, 
Nielsen, and actual viewing patterns of residents in the area.'' The 
addition of the communities of Merced and Porterville to the Fresno-
Visalia market would permit incumbent stations to protect their 
investments in programming and promotion through the assertion of 
network non-duplication and syndicated exclusivity rights. Thus, 
commenters argue that the Commission's rules should reflect market 
reality.
    9. It appears from the record that television stations licensed to 
Merced and to Porterville compete for programming, audience, and 
advertisers in the proposed combined market area, and that sufficient 
evidence has been presented to demonstrate commonality between the two 
communities to be added and the market as a whole. In addition, the 
record indicates that the addition of the two communities to the 
Fresno-Visalia market will benefit the public by equalizing competition 
among stations, which will improve advertising revenues for those 
stations and programming options for residents. Thus, the Commission 
finds that a particularized need has been demonstrated to support the 
unopposed addition of Merced and Porterville to the Fresno-Visalia 
market. Based on the facts presented here, we believe that a case for 
redesignation of the subject market has been set forth and that the 
request to add Merced and Porterville to the Fresno-Visalia market 
should be granted.
    10. This proceeding is not intended to address the specific 
mandatory cable carriage, syndicated exclusivity or network non-
duplication obligations of individual cable systems. Redesignation of 
the television market reflects in the Commission's rules the general 
competitive situation that exists in the local area, allowing the 
application of the more specific rules, including those governing 
market modification, to be addressed from the perspective of a properly 
defined market.

Ordering Clauses

    11. Pursuant to section 614 of the Communications Act of 1934, as 
amended, 47 U.S.C. 614, Sec.  76.51 of the Commission's rules, 47 CFR 
76.51, is amended, effective thirty (30) days after publication in the 
Federal Register, to include Merced and Porterville, California.
    12. This proceeding is terminated.

Paperwork Reduction Act

    The requirements in this Report and Order have been analyzed with 
respect to the Paperwork Reduction Act of 1995 and do not impose new or 
modified information collection requirements on the public.
    OMB Approval: None.
    Regulatory Flexibility Analysis: We certify that the Regulatory 
Flexibility Act of 1980 does not apply to this proceeding because there 
will not be a significant economic impact on a substantial number of 
small business entities, as defined by section 603 of the Regulatory 
Flexibility Act. A few cable television system operators will be 
affected by the rule amendment.
    A. Need for, and Objectives of, the Order: We undertake this 
proceeding to add the communities of Merced and Porterville, California 
to the Fresno-Visalia-Hanford-Clovis television market.
    The addition will help equalize competition in that hyphenated 
market.
    B. Description and Estimate of the Number of Small Entities 
Impacted: None.
    C. Reporting, Recordkeeping, and Other Compliance Requirements: 
There are no additional reporting and recordkeeping requirements.
    D. Significant Alternatives Which Minimize the Impact on Small 
Entities and Are Consistent with Stated Objectives: There is no 
significant impact on small entities.
    E. Report to Congress: The Commission will send a copy of the R&O 
in a report to be sent to Congress pursuant to the Congressional Review 
Act. A copy of the R&O will also be published in the Federal Register.

List of Subjects in 47 CFR Part 76

    Cable Television Service.

    Federal Communications Commission.
Marlene H. Dortch,
Secretary.


0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 76 as follows:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
1. The authority citation for part 76 continues to read as follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 
307, 308, 309, 312, 317, 325, 338, 339, 503, 521, 522, 531, 532, 
533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 
556, 558, 560, 561, 571, 572, and 573.


0
2. Section 76.51 is amended by revising paragraph (a)(72) to read as 
follows:


Sec.  76.51  Major television markets.

* * * * *
    (a) * * *
    (72) Fresno-Visalia-Hanford-Clovis-Merced-Porterville, California.
* * * * *
[FR Doc. 04-1408 Filed 1-22-04; 8:45 am]
BILLING CODE 6712-01-P