WPC86 2MBVRKZ3|j @7jC:,qXj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP4Si; LPT1; Rm. 907_1HPLAS4SI.PRSXj\  P6G;\ W@XP2EK3|j U X-#Xj\  P6G;yoXP#"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""designation;&"] yO* -  lԍxThe method for defining markets is somewhat circular. Both Arbitron and Nielsen markets base their  x,determinations on cable and noncable viewing. Consequently, the determination of future carriage requirements are  {O - xLinfluenced by past cable carriage. Notice, 11 FCC Rcd 1905 n. 9; Small Cable Business Association ("SCBA") Comments at 67. (2) many formerly independent stations now being affiliated with the United  x<Paramount and Warner Brothers networks; and (3) changes in ownership and network affiliations  X_- xin recent years.F'_] yO-ԍxNAB Comments at 78. F In addition, ALTV states that the Commission has already considered DMAs  XH- x"Nielsen's equivalent to the Arbitron ADI" in a number of situations.(Hf ] yO_-  LԍxALTV cites the use of DMA information for Section 614(h) market modifications and analyses of broadcast ownership issues under Section 73.3555(e)(1) of the rules. ALTV Comments at 710. United Communications  xCorporation ("United") and Hearst Corporation ("Hearst") point out that the existing rule applies  X - xZDMAs outside the 48 contiguous states.b) ] yO-ԍxUnited Comments at 2; Hearst Reply Comments at 6.b For these reasons, commenters argue that DMAs also  xxshould replace ADIs for regulatory purposes to ensure that carriage rights are applied in the areas  X -currently served by stations.* N ] {O-  yԍxSee, e.g., Christian Network Comments at 34; Evening Post Comments at 24; Diversified Communications ("Diversified") Comments at 5.  X - ` Px22.` ` A number of broadcasting interests comment that the Commission should update  xthe market designations as it originally planned when Section 76.55 was adopted by substituting  X- xDMAs for ADIs in order to track the definitions used by the affected industries.+] {O-ԍxSee, e.g., Press Comments at 3; DeSoto Comments at 45; NAB Reply Comments at 3. A few  xcommenters argue that market definitions are in a constant state of flux and that the switch to  Xb- xDMAs with triennial updates would provide an automatic system that reflects changing markets.,b:] yOM#-  ԍxUnited Comments at 34; Press Comments at 2; Golden Empire Television Corporation ("Golden Empire") Reply Comments at 3..  xAccording to NAB, ALTV, and Hearst this would be consistent with the concept adopted by the  xCommission three years ago, and there does not appear to be any compelling reason to adopt a"4 ,,-(-(ZZ"  X- xdifferent approach.-X] yOy-  \ԍxNAB Comments at 7; ALTV Comments at 14; Hearst Reply Comments at 4. ALTV also states that any  xconcern about county shifts based on either transitory changes in audience or statistical quirks is ameliorated by the triennial process that reflects enduring shifts, rather than annual transitory shifts. ALTV Comments at 16. NAB also argues that the Commission's experience with other rules, some  X- xusing updated market designations.] {O-  ԍxE.g., Section 73.3555(e)(i), the rule referenced in the statute applicable to mustcarry rights and the prime time access rule ("PTAR"), Section 73.658(k) and Note 1, which will be repealed effective August 30, 1996. and others that rely on set designations,/B] yO-  ԍxSection 76.51, the top 100 market list based on Arbitron's 1970 prime time household rankings and Section 76.54, designation of stations considered significantly viewed based on a 1971 Arbitron viewing survey. provides evidence  X- x[that periodic updating is preferable.F0] yO -ԍxNAB Comments at 911.F It contends that as a market list becomes more outdated  xit becomes more difficult and disruptive to undertake the procedures necessary to reflect current  X- xjmarket realities.C1* ] {O-ԍxId. at 11. C Similarly, Christian Network and Evening Post state that it has cost stations,  x/cable systems, and the Commission time and money to adjust the 1971 list of "significantly  Xv- xviewed" stations to reflect current market reality.m2v ] yO-ԍxChristian Network Comments at 5; Evening Post Comments at 5.m Furthermore, KTEN Television Limited  x-Partnership ("KTEN") and Diversified Communications ("Diversified") state that the Commission  xxshould not postpone a switch to DMAs until 1999 because broadcasters already use these market  X1-designations and no transition period is needed.31L ] yO.-  zԍxKTEN Comments at 67; Diversified Comments at 67. DeSoto adds that there is no reason to postpone the inevitable. DeSoto Comments at 34.  X - ` x23.` ` On the other hand, Post Company ("Post") states that the process of changing  xymarket designations every three years is a waste of time and wastes the resources of licensees,  X - xcable operators, and the Commission without benefit to the public.4 ] {O*-ԍxPost Comments at 2. See also Cole, Raywid & Braverman ("Cole") Reply Comments at 4. Cox believes that the  xKcontinued use of the 19911992 ADI list ensures continuity of service to television audiences and  X - xjthe orderly carriage of local stations.E5 6] yO -ԍxCox Comments at 23.E The potential disruption resulting from updating would  xKbe exacerbated where the updating can be accomplished only by switching to an alternate ratings  xjcompany, and the differences are more likely to result from that switch than from the difference  Xb- x.in markets from one period to another.n6Xb] yO$-  \ԍxCole Comments at 3. In its reply, Cole notes that NAB does not quantify how many of the 126 markets  xthat would be affected by a switch to DMAs result from market evolutions and how many are due to the methodological differences between Arbitron and Nielsen. Cole Reply Comments at 2.n Great Trails Broadcasting ("Great Trails") states that,  xin 1993, the Commission did not contemplate that the first update would result in over half of"K 6,-(-(ZZ"  xall markets being changed, not because of viewing pattern shifts, but because of the differences  X- xin the way Arbitron and Nielsen "crunched the numbers."|7] {Ob-ԍxGreat Trails Reply Comments at 5. See also Cole Reply Comments at 2.| As NCTA and Great Trails note, in  xthe past the Commission has avoided such disruptions by freezing market designations, such as  X- xjthe top 100 list and the list of "significantly viewed" stations.f8Z] yO-ԍxNCTA Comments at 4; Great Trails Reply Comments at 5.f However, Great Trails believes  xthat using ADIs for this year's election and switching to DMAs for subsequent elections would  xlend stability to the process and foster a graceful transition since stations will be on notice that  Xv- x<a change will occur in three years.p9v] yO -ԍxGreat Trails Comments at 78; Great Trails Reply Comments at 5.p Post, while favoring the continued use of the ADI list, states  xthat if a change to DMAs is needed it should be postponed until 1999 to avoid the problems  XH-associated with a last minute switch and to permit parties to file for market modifications.L:Hz] yOs-ԍxPost Reply Comments at 23.L  X - ` 3x24.` ` The Commission specifically sought information on whether DMAs provide a  xsystematically better methodology for determining signal carriage rights, as opposed to their use  x/for other purposes. Commenters do not submit data to support the contention that DMAs  x-generally provide a better definition of stations' service areas than ADIs. A number of individual  x/station licensees claim that they would benefit from a switch to DMA market designations.  xSeveral commenters support the use of DMAs because they would be able to increase the  xjgeographic area in which they could insist on mustcarry rights: United, licensee of KEYCTV,  Xy- xMankato, Minnesota;H;y ] yO4-ԍxUnited Comments at 45.H Fouce Amusement Enterprises ("Fouce"), licensee of KCRA, Riverside,  Xb- xCalifornia;G<b] yO-ԍxFouce Comments at 23.G the Christian Network, which owns six stations and operates the Worship Network,  XK- xNan interactive ministry, with 125 broadcast and cable affiliates;S=K* ] yO&-ԍxChristian Network Comments at 12.S Blackstar of Ann Arbor  X4- x("Blackstar"), licensee of WBSX(TV), Ann Arbor, Michigan;Q>4 ] yO-ԍxBlackstar Reply Comments at 68.Q and KPNX, licensee of a Phoenix  X-station.J?J ] yO"-ԍxKPNX Reply Comments at 3.J  X- ` x25.` ` Withers Broadcasting Company of Texas ("Withers"), licensee of KAVUTV,  xVictoria, Texas, prefers the separate market designation given its smaller market. It believes that  xit is unfair to lump small market stations into larger markets and for that reason supports the use" ?,-(-(ZZ"  X- xof current DMAs which will benefit it.9@X] yOy-  >ԍxWithers Comments at 13, 6. Commenter notes that, in 1994, Arbitron combined Victoria with the San  xhAntonio market, although they remain separate DMAs. However, according to the 19911992 market list, Victoria is a separate market.9 DeSoto is the licensee of WBSVTV, Venice Florida,  X- xMpart of a separate Sarasota ADI market.FA] yO-ԍxDeSoto Comments at 1.F Nielsen includes Sarasota in the larger TampaSt.  xPetersburg market. DeSoto states that it would benefit by being part of the larger market and  X-gaining mustcarry rights on an increased number of cable systems.BBx] {O -ԍxId. at 56.B  X- ` x26.` ` Other petitioners claim specific problems with Arbitron's assignments. SL, a  xpetitioner seeking authority from the Commission to commence operation of a new UHF station  x[in Blanco, Texas, believes that under the Arbitron market designations it would be assigned to  xthe San Antonio market. SL Communications ("SL") states that Blanco County historically has  X1- xhad closer ties to Austin, which is reflected in the current DMA assignments.YC1 ] yO-  \ԍxSL Comments at 56. We note that on the 19911992 ADI list, Blanco County is assigned to the Austin  xJmarket. In addition, SL submits that new stations should be entitled to mustcarry treatment that reflects television  xviewing at the time they commence operations and to ensure this, the DMAs should be adopted. Alternatively, SL  xYproposes that a station be allowed to rely on any differences between the most recent DMAs and the ADIs, with the DMA market definition prevailing. Y Costa de Oro  x Television ("Costa"), licensee of KSTV(TV), Ventura, California, asserts that the 19911992  xKguide includes a note that states that the station requested assignment to the Santa Barbara ADI,  X - x[rather than the Los Angeles market where Ventura is located.GD ] yOW-ԍxCosta Comments at 56.G Costa states that neither it nor  xArbitron have a record of this request, but the Commission has denied KSTV(TV) carriage in Los  X - xAngeles based on this note.E J ] {O-ԍxId. at 56. A reconsideration of the Cable Services Bureau denial of carriage is pending. Costa asserts that a switch to the DMA market list will resolve its problem without further action by the Commission.  Xy- ` nx27.` ` However, there are television stations that support retaining ADIs, at least for the  x1996 election period. Great Trails states that the Commission must consider the impact of any  x\change in mustcarry zones, since the changes could lead to the loss of key local service to  xtelevision stations, especially those served by outlying stations, such as WHAGTV, Hagerstown,  X- xowned by Great Trails.NFZ] yO#-  ԍxGreat Trails Comments at 23. Great Trails also asserts that the Commission should retain the closest  xYaffiliate rule, Section 76.56(b)(5). Under this rule, cable systems must carry the closest geographic affiliate, thereby  xmaximizing the potential for cable subscribers to receive local news and informational programming of specific  xinterest to them. Without this rule, a cable operator could replace a station, such as WHAGTV, with a stronger or  xilarger city station, such as WRCTV from Washington, D.C., which is assigned to the same market. Great Trails"&E,-(-('"  {O- xComments at 67; Great Trails Reply Comments at 67. See also NAB Reply Comments at 56; United Reply  xComments at 5. Section 76.56(b)(5) of the rules implements a statutory requirement and is not subject to change in this proceeding or otherwise. Section 614(b)(2)(B), 47 U.S.C. 534(b)(2)(B).N Post, licensee of KIFI, Idaho Falls, Idaho, notes that market boundaries" F,-(-(ZZ)"  x[are likely to change due to the transitory nature of audience levels, especially in the West, and  X-that continued use of the ADIs is preferable.DG] yO-ԍxPost Comments at 2.D  X- ` x28.` ` Cox, the operator of a cable system in Phoenix, provides an example of the effect  x of using DMAs instead of ADIs in its market. It states that Flagstaff is part of the Phoenix  xDMA, but not the Phoenix ADI. Flagstaff is over 120 miles from Phoenix, yet its stations would  xbe entitled to carriage if a DMA standard was adopted. Cox claims that it would have to drop  xcable programming to add the Flagstaff stations that do not provide local service for the Phoenix  xarea and that this would be detrimental to its subscribers. It states that the only beneficiaries of  X1-this shift would be the Flagstaff stations that might increase their advertising revenues.H1z] yO\-  ԍxCox Comments at 56. Cox states that it has already received carriage requests from the Flagstaff stations  {O$-that are anticipating a shift to a DMA based scheme. Id.  X - ` Rx29.` ` In addition to ADI market designations, the rules provide a "home county"  xexception to the standard ADI designation. Under this rule, which applies in a limited number  xof instances, a station that primarily serves and has been assigned by Arbitron to a market other  xthan the ADI in which the station's county of license happens to be located is entitled to assert  X - xmustcarry rights in that "home county."pI ] {O,-ԍxSee 8 FCC Rcd at 2975 39; 47 C.F.R. 76.55(e)(3).p In response to the request in the Notice for comment  xxon whether a change of market designations would affect this rule, NAB and Hearst conclude that  X{- xthere appears to be no reason to change this "home county" rule.cJ{f ] yO-ԍxNAB Comments at 1112; Hearst Reply Comments at 3.c Cox, however, states that a  Xd-switch to DMAs would raise questions about the applicability of this rule.CKd ] yO -ԍxCox Comments at 4.C  W6<x ` ` 3. Effect on Cable Systems and Their Subscribers   X- ` x30.` ` A cable operator would be required to carry a different set of local mustcarry  xstations if the county where its system is located shifts from one market to another as a result of  xa DMA assignment which is different from the existing ADI market list. In response to a request  xfor or election of mandatory signal carriage from a station, a cable operator must determine  X- x\whether the station provides a good quality signalL ] yO%-ԍxSection 614(h)(1)(B)(iii), 47 U.S.C. 534(h)(1)(B)(iii); 47 C.F.R. 76.55(c)(2). or would result in additional copyright"L,-(-(ZZ"  X- xliability being incurred.M] yOy-ԍxSection 614(h)(1)(B)(ii), 47 U.S.C. 534(h)(1)(B)(ii); 47 C.F.R. 76.55(c)(3). If the cable operator finds that the station  xjdoes not place a good quality signal over its system's headend or that a compulsory copyright  xliability would result from the signal's carriage, the operator must inform the licensee. The  xbroadcaster then must decide whether to take the steps necessary to provide a good quality signal  xto the headend or whether it will indemnify the cable operator to obtain mustcarry rights. In  x-addition, a station requesting mustcarry status is entitled to request a channel position, selected  Xv-from several statutorily mandated options.sNvX] yO -ԍxSection 614(b)(6), 47 U.S.C. 534(b)(6); 47 C.F.R. 76.57.s  XH- ` Px31.` ` Cable operators state that they would face significant administrative burdens and  x<costs if markets were designated using DMAs and they were required to undertake these various  X - xadministrative requirements of the mustcarry rules.OX ] yO-  /ԍxSCBA Comments at 46; NCTA Comments at 5, 9; Cole Comments at 4. ALTV and NAB dispute these  xZclaims and argue that there is no factual basis for them. ALTV Reply Comments at 4; NAB Reply Comments at 45. NCTA and Cox assert that a change to  x-DMAs also would affect the established relationships between broadcasters and cable operators  x=that are based on the present ADI designations. NCTA states that changing to DMAs would  xrequire broadcasters and cable operators to start anew in their dealings on signal carriage issues.  X - x<It argues that there will be no public benefit from upending such established relationships.DP ] yOw-ԍxNCTA Comments at 5.D Cox  x{observes that many retransmission agreements were for more than three years and these  xarrangements were entered into assuming that a station's market would not change much in the  Xy- xfuture. A switch to DMAs would frustrate those expectations.CQy] yO-ԍxCox Comments at 4.C Furthermore, Post asserts that  xjcable operators are only now beginning to stabilize their lineups following the adoption of the  XK- x=provisions of the 1992 Cable Act and 1994 Satellite Act.RK( ] yO$-ԍxIt notes that market modification and complaints are still being resolved. Post Comments at 2. Post claims that cable operators are  xjjust beginning to provide some level of continuity of service to cable viewers, especially those  xyin outlying areas that depend heavily on cable carriage of area stations, and subscribers would  X-be disserved by destabilizing cable carriage lineups again.;S ] {Oo!-ԍxId. ;  X- ` x32.` ` The Small Cable Business Association ("SCBA") states that mustcarry compliance  xLrepresents a significant source of administrative burdens and costs for small cable systems. It  xclaims that any wholesale changes made to the market definition standards and procedures will  x<increase the burdens and costs of compliance and the small cable operators and their subscribers"J S,-(-(ZZ"  X- xwill shoulder a disproportionate share of these burdens and costs.DT] yOy-ԍxSCBA Comments at 1.D SCBA contends that changing  xthe method of defining television markets will alter many market boundaries, especially in fringe  X- xareas between contiguous markets that are most likely served by small cable companies.@UX] {O-ԍxId. at 3.@ In  xmany cases, small cable systems need to hire outside professional assistance to administer these  X- xundertakings.FV] yO? -ԍxSCBA Comments at 46.F Moreover, SCBA notes that the 1992 Cable Act requires the Commission to  xreduce the burdens and costs of rate regulations on small operators. It argues that retaining the  Xv-existing market definition will continue to serve this policy.@Wvz] {O -ԍxId. at 2.@  XH- ` x 33.` ` GTE Service Corporation ("GTE") adds that many new market entrants, such as  x.local exchange carriers ("LECs"), are planning to operate cable systems under Title VI or open  xvideo systems ("OVSs") under rules to be promulgated shortly. They are beginning the process  xof determining their potential mustcarry obligations and likely channel lineups for initial service  xrollout. They argue that altering the market designations of local broadcast stations for purposes  xKof the mustcarry rules would only frustrate the efforts of these new providers to effectively enter  X -and compete in local cable markets.IX ] yO{-ԍxGTE Reply Comments at 2.I  X- ` Rx!34.` ` While the recent United States Copyright Office of the Library of Congress  x("Copyright Office") policy decision clarifies that stations that obtain mustcarry rights through  xMa change in market designation will not incur additional copyright liability for the system or  xstation, the continued carriage of other stations, such as former mustcarry signals, might result  X4- xMin a copyright liability.Y4] yO-  ԍxUnder the retransmission consent provisions, a cable operator can continue to carry former mustcarry signals as long as the broadcaster grants consent. Cole, Raywid & Braverman filing on behalf of cable operators and  xjcable associations ("Cole"), Cox, and NCTA explain that if the Commission changes to DMAs,  xcurrent mustcarry stations now treated as local for copyright purposes could become distant  X- xZsignals.qZ ] yO!-ԍxCole Comments at 45; Cox Comments at 67; NCTA Comments at 89.q Then cable operators would have to choose whether to incur further copyright fees for  x/carriage of these stations or risk subscriber dissatisfaction over dropping stations they are  X- xaccustomed to viewing that are no longer entitled to mustcarry status.^[ ] yO$-ԍxNCTA Comments at 9; Cole Reply Comments at 3.^ Commenters state that  xicable operators and broadcasters would have to reevaluate copyright liability for every station on  xevery cable system nationwide. Post states that a change in the definition of local for copyright"[,-(-(ZZ"  xpurposes also will lead to a large number of petitions being filed with the Commission in order  X- xZto maintain existing carriage without copyright payments. \@] yOb-  MԍxPursuant to Section 76.54, 47 C.F.R. 76.54, a station can petition the Commission for a declaration of  x;"significantly viewed" status. A station is considered significantly viewed if, on the basis of audience surveys of off xiair (noncable) viewing, it meets the audience criteria specified in Section 76.5(i) of the rules, 47 C.F.R. 76.5(i).  xYA station that is considered significantly viewed is treated as local in many instances. In particular, the Commission  xnotes that the number of petitions for significantly viewed status has decreased substantially recently. Prior to  xpassage of the 1994 Satellite Act, a station located in the same ADI as the cable system, but beyond the boundaries  xof the 1976 mustcarry zones that were based in large part on mileage, sought significantly viewed status to be considered local for copyright purposes.  However, NAB asserts that there will  xybe no disruption to copyright liability as the Copyright Office will use the Commission's market  X-list, pursuant to its policy decision.G]] yO< -ԍxNAB Comments at 1213.G  X- ` x"35.` ` Post, GTE, and a number of cable interests address the impact of switching to  xDMAs on cable subscribers. They state that new market designations will result in the  X_- xyreshuffling of cable carriage lineups with no apparent benefit to the public.^_` ] {Op-ԍxSee, e.g.,Post Comments at 1; Cox Comments at 23; GTE Reply Comments at 2. They assert that  xKa switch would disrupt viewing patterns of cable subscribers and would subject them to needless  X1- xZchannel changes and confusing channel realignments.s_1 ] yO-ԍxCox Comments at 56; Cole Comments at 2; NCTA Reply Comments at 2.s Cole further argues that the Commission  x previously recognized the importance of minimizing disruption (e.g., when it required cable  X - x.operators to maintain the status quo during the pendency of a market modification petition).D` ] yO6-ԍxCole Comments at 4.D  xNCTA states that, in adopting the mustcarry rules, the Commission recognized the importance  X - xxof "certainty of service and minimal disruption" for subscribers.a ] {O-ԍxNCTA Comments at 3, citing Report and Order in MM Docket No. 92259, 8 FCC Rcd 2995 124. The Cable Telecommunications  xAssociation ("CATA") states that implementation of the numerous provisions of the 1992 Cable  X - xAct has caused a considerable degree of subscriber confusion, which is bad for business.Db ] yO-ԍxCATA Comments at 2.D  xKCATA, NCTA, and SCBA argue that a switch to a DMA standard will require changes in channel  Xy- x\lineups and channel positions that cause unnecessary disruptions for cable subscribers.jcy4] {O^"-ԍxId. at 3; NCTA Comments at 23; SCBA Comments at 6.j  xHowever, United disputes the cable operators' claims and asserts that they frequently change line xups based on subscriber preferences and arrangements between cable operators and programming  X4-networks.zd4] {O&-ԍxUnited Reply Comments at 34. See also ALTV Reply Comments at 23.z "4Xd,-(-(ZZ"Ԍ W<ԙ x` ` 4. Effect on Section 614(h) Market Modification Process  X-  X- ` x#36.` ` In the Notice, the Commission requested comment on the effect that changing from  xxan ADI to a DMA standard would have on the numerous cases revising market areas with respect  X- xto particular stations or cable communities which have already been processed.>e] yO-  ԍx A few commenters state that this process must be retained to ensure that individual stations and  xcommunities and other interested parties are not harmed by designated boundaries which do not accurately reflect  xviewing patterns or other relevant factors in a given geographic area. KTEN Comments at 66; Diversified  xjComments at 67. As the Commission is required to consider such petitions under the Act, no change to this provision was contemplated. > Commenters  xMsupporting a switch to DMAs favor keeping in force the previously decided Section 614(h)  Xx- xmarket modifications.fxx] yO -  =ԍxNAB Comments at 1112; ALTV Comments at 17; KTEN Comments at 67; Diversified Comments at 67.  {Oi -See also Great Trails Comments at 3 ALTV and Great Trails note that these market modifications have been  xxdecided irrespective of market definition and the factors upon which the modifications were based  XJ- xshould not change if DMAs are used instead of ADIs.igJ] yO-ԍxALTV Comments at 17; Great Trails Reply Comments at 23.i NAB and others contend that if a station  xhas obtained a determination that a cable system in a specific community is part of its market,  xsuch determination should prevail regardless of its DMA assignment where the community is  X - xlocated.h b ] yO-  ԍxNAB Comments at 1112; Pulitzer Broadcasting Company Reply Comments at 23; Great Trails Reply Comments at 3. Moreover, KTEN and Diversified state that this approach will avoid rehearing  xZarguments previously presented and preserve the resources of both the Commission and affected  X - xZpartiesci ] yOB-ԍxKTEN Comments at 67; Diversified Comments at 67.c In addition, Great Trails recommends that the Commission state that parties would have  X - xto present compelling evidence to overturn a prior decision and that we would not conduct a de  X -novo review in such situations.Lj J ] yO-ԍxGreat Trails Comments at 5.L  X- ` x$37.` ` Several of the commenters that support the continued use of existing ADI markets  xargue that the use of the Section 614(h) is preferable to a switch to DMAs. Post, SCBA, Cole,  xand Great Trails state that the Section 614(h) process is a better means to finetune market  xLboundaries than wholesale changes that do not take into account the particular circumstances  X#- xxpresent and this process can accommodate any entities disserved by current market definitions.k#] yO#-ԍxPost Comments at 23; SCBA Comments at 7; Cole Comments at 5; Great Trails Comments at 3.  xkCole and NCTA state that most cable operators and broadcasters who believe that a market  xshould be modified either because of shifts in viewing patterns or changes in local coverage are"jk,-(-(ZZ"  X- xlikely to have already filed the appropriate petitions for special relief.flX] yOy-  ԍxCole Reply Comments at 4; NCTA Reply Comments at 3. Moreover, stations are now guaranteed a time x: certain review process and expedited treatment for their requests for market modifications, pursuant to the amendment of Section 614(h) by the 1996 Act. NCTA Reply Comments at 4.f In addition, Cole argues  xthat this process provides a relatively simple means to adjust the existing list without triggering  x<wholesale changes inherent in a switch to the Nielsen list. Moreover, Cole contends that the fact  x-that the number of requests for market modifications has not been overwhelming is evidence that  X- xLthe ADI list is not an inappropriate source for initial market designations.Dm] yO= -ԍxCole Comments at 5.D NCTA states that  xchanging from one market definition system to another may be inconsistent with the Section  x614(h) modifications and could be detrimental to market areas that have already been revised.  X_-Further, it would throw into question the continued validity of previous rulings.Dn_x] yO -ԍxNCTA Comments at 7.D  X1- ` x%38.` ` Commenters disagree whether there will be increased administrative burdens on  xthe Commission, stations, and cable systems with respect to Section 614(h) market modification  x.petitions if market designations were to be based on DMAs. Several commenters state that, if  xthe more current and widely used DMAs are not adopted, many broadcasters will be required to  xundertake the timeconsuming Section 614(h) petition process to protest ADI boundaries that do  X - xnot reflect current viewing patterns.PoZ ] {Ow-  zԍxSee, e.g., ALTV Comments at 17; KTEN Comments at 5; Diversified Comments at 5; United Comments  xat 34; DeSoto Comments at 4; Hearst Reply Comments at 6; WRNNTV Associates Limited Partnership ("WRNNTV") Reply Comments at 3; NAB Reply Comments at 4.P Alternatively, Great Trails, NCTA, and Cole contend that  xkchanging to DMAs would start a whole new cycle of Section 614(h) petitions, with stations  X- xxattempting to regain counties lost between the different methodologies of Arbitron and Nielsen.vp* ] yOk-ԍxGreat Trails Comments at 8; NCTA Comments at 9; Cole Comments at 56.v  xCole observes that the Commission already faces a tremendous administrative burden  ximplementing the 1996 Act and it would be difficult to resolve the increased volume of market  XK- xmodification cases in a timely fashion.JqK ] yO-ԍxCole Reply Comments at 5.J NCTA argues that the Commission will have to  xallocate substantial resources to handle all the new petitions arising from a change in market  xdesignation under the 120 day statutory requirement and that there is no definitive evidence that  X- xsuch a change will benefit audiences.JrJ ] yO#-ԍxNCTA Reply Comments at 5.J Great Trails also argues that this will further complicate  xkretransmission consent negotiations. NCTA states that the Commission is likely to have to  xrespond to additional complaints and requests for clarifications, with no assurance that the switch  X-to DMAs provides a better approach.Ds] yOL'-ԍxNCTA Comments at 9.D "js,-(-(ZZ"Ԍ X-ř xB.` ` DISCUSSION  X- ` x&39.` ` The Commission concludes that Nielsen's DMA market assignments provide the  x\most accurate method for determining the areas served by local stations. We recognize the  xbenefits of switching to a market definition based on DMAs. DMAs have become the television  X- x-market standard for commercial purposes in the absence of any alternative.Ot] {O-ԍxSee 21 supra.O They represent the  xactual market areas in which broadcasters acquire programming and sell advertising. We also  xrecognize that over time the ADI market list will become outdated and we are aware of the  XH- xMproblems associated with freezing a list of market designations.uHZ] yOS -  ԍxFor example, the Commission compared the Section 76.51 list of top 100 markets with the 19871988  xmarket designations and found that 11 markets on the list were no longer in the top 100, 23 other designated  xxcommunities on the original list had changed and in 18 cases where the market names differed, the Section 76.51  {O - xilist included communities not included in Arbitron's 19871988 list. NAB Comments at 10 citing Further Notice  {Ou-of Proposed Rulemaking in MM Docket No. 8724, 3 FCC Rcd 6171, 6176 (1988) 36.  Moreover, in general, we  xcontinue to believe that our 1993 decision to use updated market designations for each election  xcycle to account for changing markets is appropriate. Nielsen provides the only generally  x<recognized source for information on television markets that would permit us to retain this policy.  xThus, we conclude that the DMA market designations will provide the best method of  X -"delineat[ing] television markets based on viewing patterns"v ] yO-ԍxSection 614(h)(1)(C), 47 U.S.C. 534(h)(1)(C), as amended by the 1996 Act. over the long term.  X - ` x'40.` ` Cable interests claim that any change in market designations would result in  xxadministrative burdens on cable operators and disruption of service to subscribers, although they  Xy- x-fail to quantify the extent of these burdens and disruptions.wy] yO-   ԍxNCTA, in particular, notes that during the implementation of the signal carriage provisions of the 1992  xjCable Act, subscribers were subjected to extensive channel realignments and service changes, as littlewatched  xhstations exercised their newlyacquired mustcarry rights and cable operators had to drop popular cable programming  xservices to accommodate them. NCTA states that many subscriber were frustrated and directed their complaints at their local cable operators, franchise authorities, and the Commission. NCTA Comments at 4. We observe that a shift to a DMA  x.standard could result in some stations now available being replaced, some other programming  xservices (i.e., cable networks) being dropped to accommodate situations where the number of  xstations entitled to carriage increases, and some channel lineups needing to be reconfigured to  xaccommodate the channel positioning requests of new mustcarry signals. Under the framework  xMestablished in 1993 to use updated market lists for each election, such changes would have  xoccurred in at least some markets due to the redesignation of counties among ADIs by Arbitron.  xWhile the impact on stations, systems, and subscribers may be somewhat greater from a switch  xto a DMA based definition than from an update of the ADI market list, we do not find sufficient  xgrounds to conclude that potential burdens and disruptions would outweigh the benefits of using  xMa more current market list, particularly when over time, the 19911992 market list will become an even less accurate measure of television markets. "|N w,-(-(ZZ"Ԍ X- ` @ԙx(41.` ` Commenters supporting the continued use of ADIs also have not demonstrated that  xLa DMA standard will prevent subscribers from receiving the appropriate local stations. In this  xjregard, they fail to recognize that DMA market designations are based on viewing in cable and  xnoncable homes. Thus, any reassignment of a county from one market to another will take into  x.account current cable carriage of local stations and the size of the audience that such stations receive in cable households.  X_- ` x)42.` ` In addition, a number of commenters claim that a switch to DMAs will require a  xreevaluation of compulsory copyright liability for numerous stations. The 1994 Satellite Act,  xhowever, eliminates the potential for conflicts between the area where a station is local for signal  xcarriage purposes and where it is local for copyright purposes since that act incorporates the  xCommission's definition of a local market. A recent policy decision by the Copyright Office,  X - xLon December 18, 1995, while this proceeding was pending, further clarifies this policy._x ] yOe -ԍx60 Fed. Reg. 65072, 6507374 (Dec. 18, 1995), _ In its  xcomments, the Copyright Office states that cable systems now determine a station's local service  xarea for copyright purposes according to either the 1976 mustcarry rules or Section 76.55(e),  X - xwith modifications made under Section 76.59, whichever results in a larger service area.y X] yO-  ԍxCopyright Office Comments at 23. Section 76.59 is the rule implementing the Section 614(h) market modification process.  xLAccordingly, as the Copyright Office points out in its comments, any decision made regarding  xLchanges in local markets for signal carriage purposes will be applied to the compulsory license  Xb- xjprocess.Rzb] yO-ԍxCopyright Office Comments at 45.R With respect to local stations now carried which will no longer be considered local  x/under a revised definition, cable operators will have the option of obtaining retransmission  xconsent for continued carriage from the broadcaster and any issues relating to copyright liability can be negotiated as part of such agreements. x  X- ` x*43.` ` Accordingly, we believe that DMA market designations, updated for each election  xcycle, provide the best method of ensuring local stations access to the consumers they are licensed  xto serve and to provide cable subscribers with the stations best suited to their needs and interests.  xiWe are concerned, however, about potential problems that might result from an immediate change  xof market definitions. From the data provided in the record, it is clear that a greater number of  xstations, cable systems, and cable subscribers would be affected by a switch to DMAs than would  xbe affected by simply using an updated ADI market list, as the rules had contemplated. In  xparticular, we are concerned about the impact of changing the market definition in certain types  xkof situations, such as cases where the differences in methodology and procedures between  xArbitron and Nielsen result in significant changes in market areas (e.g., when one service  xcombines a smaller market with a larger market and the other service lists them separately). With  xthe exception of a few individual cases described in the record, the available evidence prevents  xa complete assessment of possible problems that might arise as a result of changes in  xbroadcasters' mustcarry rights due to a shift from an ADI market definition to the current DMA" @z,-(-(ZZ"  xmarket list. Similarly, the statements of costs and burdens put forth by the cable operators do  xnot provide a means to determine whether there are potential problems associated with a change  xin definition that could be ameliorated in some manner through transitional procedures. Further,  xwhile some cable subscribers will be affected by changing signal carriage requirements resulting  xfrom a switch to a DMA standard, there may be ways to minimize the disruptions to their service.  Xv- ` x+44.` ` The Commission also is concerned about the impact of changing the market  xdefinition on the Section 614(h) market modification decisions already in force. Commenters  xsimply provide a consensus that decisions made by the Commission for market modifications  xshould remain in force. However, it is unclear whether cable operators could face conflicting  xyobligations or be subject to carriage of signals from multiple markets based on a revised market  xjstandard when these modifications are considered in conjunction with a new market definition.  xWe did not receive any information regarding the effect that such decisions in conjunction with  x=a change to a DMA standard would have on the mustcarry obligations of cable operators. In  xaddition, without extensive evidence, we are unable to determine the burden on the Commission  xjto remedy such conflicts that might result from an immediate switch to DMAs. The complexity  xof such situations and administrative burden on the Commission and others to unravel them also would disrupt the orderly provision of local television service to subscribers.  XK- ` O x,45.` ` Based on these considerations, the Commission concludes that we should postpone  xthe switch in market designation until the mustcarry/retransmission consent election that will  xoccur in 1999 to ensure that any potential transitional problems can be resolved. This approach  xwill avoid the problems associated with the continued use of a specified market list indefinitely,  xyet it will provide the Commission and affected parties an opportunity to consider measures that  xwill lead to a smooth transition from an ADI to a DMA market designation standard for signal  xxcarriage purposes. In particular, this phasedin approach will assuage commenters who expressed  xiconcerns that a switch in market definition will cause significant administrative burdens and costs  X- xLfor cable operators, including small cable operators,W{] {O -ԍxSee 3132 supra.W and will impede the entry of new market  xentrants, such as local exchange carriers planning to operate cable systems under Title VI or the  Xe- x=OVS provisions.O|eZ] {Op-ԍxSee 33 supra.O During this interim period, we will be able to consider whether to establish  xtransitional procedures to minimize any burdens, costs, or disruptions that might be caused by a  X7- xchange in market designation standard.U}7] {O!-ԍxSee 50 infra.U Thus, the Commission decides to continue to use 1991 x1992 ADI market list for the 1996 election and to establish a framework that uses updated DMA  xmarket lists for the 1999 and subsequent elections. In addition, the home county exception is  xretained in order to ensure that a station is carried in its home county in the limited instances  X- x<where the station is assigned to a market that does not include its home county.z~~] {O '-ԍxSee 29 supra. See also 8 FCC Rcd at 2975 39.z Thus, in such"~,-(-(ZZ"  x=cases, the station is entitled to elect mustcarry or retransmission consent rights in the county  xwhere its community of license is located and in the counties assigned to the same market as the station, i.e., its ADI for the next election cycle and its DMA for subsequent cycles.  X- ` x-46.` ` For the timebeing, the Commission will rely on market modifications determined  xxpursuant to Section 614(h) to refine market boundaries to account for changes in viewing patterns  xand market conditions. In this regard, we recognize that DMA market designations are one way  xto determine local stations and are mindful that information regarding DMAs could be useful in  xdeciding individual cases. We note that ALTV points out that the Cable Services Bureau has  xZconsidered DMA assignments in a number of cases involving market modifications. In particular,  xyit notes that the Bureau relied in part on Schuyler County, New York's assignment to the Elmira  X - x\DMA when it was added to the Elmira ADI for signal carriage purposes. ] {O| -ԍxALTV Comments at 12 citing Smith Television of New York, 10 FCC Rcd 7127, 7131 (C.S. Bur. 1995). Similarly, ALTV  xstates that the Bureau considered DMA assignments as "additional support for the conclusion" to  X - xKinclude the City of Grenada, Mississippi, in the GreenwoodGreenville, Mississippi ADI. Z] {O-ԍxALTV Comments at 12 citing Greenville Television, Inc., 10 FCC Rcd 6491, 6493, n. 11 (C.S. Bur. 1995). Thus,  xpetitioners are invited to include information regarding the DMA assignments in their petitions  xLunder Section 614(h) along with information that demonstrates local service as required by the  X-Act .  Xb- ` nx.47.` ` We believe that this action is consistent with Section 614 as amended by the 1996  xAct. The revised statutory language substitutes the specific reference to Arbitron's ADI with a  X4- xymore general requirement that markets be determined on the basis of "a commercial publication  x/which delineates television markets based on viewing patterns." A number of commenters  x.suggest that the revised language of Section 614 clearly refers to Nielsen's DMA publications  xsince they are the principal television market references remaining following the discontinuation  X- xof Arbitron's television service."] {Ou-  kԍxSee, e.g., DeSoto Comments at 1; Fouce Comments at 2; SL Comments at 7; Costa Comments at 7, n. 2;  xHearst Reply Comments at 3. Costa and Blackstar argue that it was Congress' intent that the Commission use  xZDMAs, but that it did not specify them as it is possible that Nielsen will cease publication of market designations in the future. Costa Reply Comments at 23; Blackstar Reply Comments at 5. We find nothing in the revised statutory language defining a  xlocal market nor in the associated legislative history that would require the Commission to  X- xsubstitute DMAs for ADIs.] yO1!-  ԍxA number of cable interests concur with this assessment. They argue that the change in statutory language  xgives the Commission discretion to rely on an alternative ratings service, but also is entirely consistent with a  xcontinued reliance on Arbitron's existing ADI list and observe that Congress had the option of specifically  xdesignating Nielsen as the source of these market designations, as well as specifying that the market assignments be  yOQ$-continually updated, but did not. Cole Comments at 23; NCTA Reply Comments at 5. The revised language simply directs the Commission to use a  xcommercially available publication. We conclude that the existing ADI list meets this test. The  xDMA market listings or any other widely available commercially published source also could  xsatisfy this requirement. Accordingly, we conclude that our decision to continue to use Arbitron's"e ,-(-(ZZ"  xADIs for the 1996 election and adopt Nielsen's DMAs for future election cycles is fully consistent with the requirements of the Act.  X- `  x/48.` ` Accordingly, Section 76.55 of the rules is amended to provide that local markets  xfor signal carriage purposes will be determined on the basis of the ADI designations specified in  X- xzArbitron's 19911992 ADI Television Market Guide for the 1996 mustcarry/retransmission  Xx- xconsent election and Nielsen's DMA Market and Demographic Rank Report will be used for the  Xc- x1999 election, which becomes effective on January 1, 2000.+c] yO-  ԍxIn addition to the market definition changes in Section 76.55, we have revised herein the general authority citation for Part 76 of the rules to correct the citation format and to revise and correct the authority citations. + For subsequent elections, the  xrevised rule will provide for the use of updated DMA market lists. In addition, to assess the  xypotential problems associated with a switch to a DMA standard and to determine the impact of  X - xthis change on Section 614(h) market modification decisions, we also adopt a Further Notice of  X - xProposed Rulemaking to solicit additional information. We want to identify any possible  xproblems associated with our decision to shift to the DMA market list in the future and to  xconsider whether transitional procedures that could minimize the disruptions to affected parties would be appropriate. x  X- IV.xFURTHER NOTICE OF PROPOSED RULEMAKING  Xj- ` x049.` ` In this Further Notice of Proposed Rulemaking, we seek comment on mechanisms  xfor facilitating the transition from a market definition system based on ADIs to one based on  xDMAs. We believe it useful to consider means of easing the difficulties that may be associated  x[with what, as the comments indicate, will be changes in the carriage requirements applicable to  xmany cable operators and broadcasters. These changes potentially affect mandatory carriage  xrights, channel positioning obligations, retransmission consent negotiations, copyright payments,  xthe expectations of cable subscribers, programming contracts, and even the physical layout and  xconstruction of cable plant and operations. The comments in this proceeding, however, only  xaddressed most of these issues on a highly generalized basis and have not provided information  xLon what, if any, steps might be taken to facilitate a more orderly transition process to a revised definition of local market for mustcarry/retransmission consent elections.  XX- ` 3x150.` ` By this Further Notice, we seek specific suggestions that would assist in this  x\process. Commenters are asked to consider whether special provisions should be made for  xyparticular types of stations or systems (e.g., smaller market stations or systems with fewer than  xya specified number of subscribers) to minimize the disruptions that could occur due to a switch  xito DMAs. Are any special transitional procedures needed for stations that receive carriage rights  xunder the home county exception in addition to the general local market definition? Further,  xNielsen indicates that the DMA assignments of certain stations are based on considerations other"  ,-(-(ZZ"  X- xthan viewing patterns.] yOy-  ԍxNielsen generally assigns a station to the DMA in which its city of license is located. However, it also  {OA- xprovides an opportunity for stations to petition to change their market assignments.  See Nielsen Media Research,  {O - xNielsen Station Index: Methodology Techniques and Data Interpretation, 199495 at 35. Moreover, Nielsen's  {O- xdecisions regarding the creation of separate DMAs can be based on considerations other than viewing patterns. Id.  {O-at 2. See also n. 23 supra. We request comment on such situations, their effect on stations' must xMcarry rights and cable systems' signal carriage obligations, and whether additional rules are  xLneeded to provide for such cases, either as a transition mechanism or once the DMA standard becomes effective.  X- `  x251.` ` We are particularly concerned about the effect of changing to a DMA market  xdefinition on previous Section 614(h) decisions and decisions that will be made during the  x0election cycle beginning on January 1, 1997, while we continue to use an ADI standard.  xSpecifically, we request commenting parties to address the consequences of a shift in definitions  x[on the more particularized market boundary redefinition process contained in Section 614(h) of  xthe statute, the decisions that have been made under that section, and the proceedings under it that  xwould result from shifting market definitions. We are concerned that a number of parties  xLcommenting in this proceeding simply endorse a change to DMA definitions in their particular  xsituations without taking account of the potential for such changes being subject to review and  xreversal under Section 614(h). Such cases appear particularly likely to occur in those situations  x=where Nielsen has combined previously separate markets or stations on the fringes of markets  X- xhave significantly revised market areas. One such example, which was referenced in the Notice  xin this proceeding and in the comments, involves the combination of the Washington, D.C., and  x<Hagerstown, Maryland, markets. In markets of this type, some broadcast stations could be either  xLsignificantly benefited through increased carriage or potentially injured through an increase in  xmajor market broadcast station competition into what has been a smaller television market. In  X- xeither case, however, the changes involved could be challenged through the ad hoc process and  xindeed it seems likely, given the distances, services areas, and historical carriage patterns  xinvolved, all of which are specifically referenced in the Section 614(h) decisional criteria, that  x=some effects of the market change would be undone through the individual review process. If  xsuch a process appears likely as a result of a change in definitions, it is imperative that every effort be made to minimize the difficulties associated with that process.  X- ` Ax352.` ` We seek specific comment on what changes in the modification process might be  x=warranted given that administrative resources available to process Section 614(h) requests are  x!limited and the 1996 Act establishes a 120day time period for action on these petitions.  x>Accordingly, if instead of market boundaries stabilizing as the existing cases are decided, a  xcontinuing flow of modification requests is filed, new techniques will be needed to increase the  xefficiency of the decision making process. Under the existing process, a party is free to make  x<its case using whatever evidence it deems appropriate. One means of expediting the modification  xlprocess might be to establish more focused and standardized evidentiary specifications.  xTherefore, we propose to establish specific evidentiary requirements in order to support market" ,-(-(ZZ"  X- xzmodification petitions under Section 614(h) of the Act and Section 76.59 of the rules.@] yOy-  ԍxWRNNTV suggests that the Commission explicitly state that in determining modification of markets,  xstations that otherwise qualify for mustcarry and pledge to provide concrete amounts of public interest programming  xreceive added preferences to full marketwide carriage irrespective of any other factors in the market modification  xanalysis. WRNNTV Reply Comments at 56. The statutory factors that must be considered when evaluating market  xmodifications include consideration of programming of local interest along with other information. The Commission  xdoes not believe that it is appropriate to state that one factor is more important than any other as each is valuable  x.in assessing whether a particular community should be included as part of a station's local market. However, commenters are invited to address this proposal. We  xrequest comment on the following specific information submission requirements and seek  x.alternatives that parties believe will assist the Commission in its review of individual requests. In particular, we propose to require that each filing include exhibits that show:  X- ` Bx` ` The relevant community locations and geographic features, disclosing station  ` transmitter sites, cable system headend locations and terrain features that would  ` 2affect station reception and transportation and other local factors influencing the  ` Cshape of the economic market involved. Relevant mileage would be clearly disclosed;(#`  X - ` _x` ` Historical cable carriage, illustrated by the submission of documents, such as rate cards, listing the cable system's channel lineups for a period of several years;(#`  X - ` x` ` Coverage provided by the stations, including maps of the areas in question with  ` the universe of involved broadcast station contours and cable system franchise  ` ~areas clearly delineated with the same level of specificity as the maps filed with the Commission for licensing proceedings;(#`  XK- ` x` ` Information regarding coverage of news or other programming of interest to the  ` 4community as demonstrated by program logs or other descriptions of local  ` program offerings, such as detailed listings of the programming provided in a  ` #typical week that address issues of importance in the community in question and not the market in general;(#`  X- ` ~x` ` Other information that demonstrates a nexus between the station and the cable community, including data on transportation, shopping, and labor patterns; and(#`  X|- ` x` ` Published audience data for the relevant stations showing their average all day  ` `audience (i.e., the reported audience averaged over SundaySaturday, 7 a.m.1  ` a.m., or an equivalent time period) for both cable and noncable households over a period of several years.(#`  X - ` x453.` ` A second potential means of increasing the efficiency of the decision making  xprocess with respect to market modification petitions would be to alter to some extent the burden",-(-(ZZ"  xof producing the relevant evidence. Thus, for example, Section 614(h) establishes four statutory  X- xfactors to govern the ad hoc market change process, including historical carriage, local service,  xxservice from other stations, and audience viewing patterns. These factors are intended to provide  xevidence as to a particular station's market area, but they are not the only factors considered.  xThese factors must be considered in conjunction with other relevant information to develop a  xyresult that is designed to "better effectuate the purposes" of the mustcarry requirements. The  xprocess could perhaps be expedited by permitting the party seeking the modification to establish  Xa- xa prima facie case based on historical carriage, technical signal coverage of the area in question,  xand offair viewing. Such factors track the statutory provision and are relatively free from factual  X5- x-dispute. The presentation of such a prima facie case could then trigger an obligation on the part  xiof any objecting entity to complete the factual record by presenting conflicting evidence as to the  xactual economic market involved. This could include, for example, programming information  xand other evidence as to the local advertising market involved. Dividing the obligations in this  xyfashion, if it were to be effective, would require that the parties with the best access to relevant  x>information disclose that information at the earliest possible point in the process. We seek comment on how this might be accomplished.  X-3 V.xADMINISTRATIVE MATTERS  XQ-xA.` ` Regulatory Flexibility Analysis  X:-  W#<x` ` 1. Final Regulatory Flexibility Analysis for the Report and Order   X- ` x554.` ` Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 60112, the  X-Commission's final analysis with respect to the Report and Order is as follows: 3  X- ` x655.` ` Need and Purpose of this Action: This action is necessary because the procedure  xfor determining local television markets for signal carriage purposes relies on a market list no longer published by the Arbitron Ratings Company.  XX- ` `x756.` ` Summary of Issues Raised by the Public in Response to the Initial Regulatory  XC- x.Flexibility Analysis: There were no comments submitted in response to the Initial Regulatory Flexibility Analysis.  X- ` ^x857.` ` Significant Alternatives Considered and Rejected. The Commission proposed three  X- xalternatives in itsNotice and comments were submitted that addressed the administrative burdens  x=of each alternative. In order to minimize the administrative burdens on broadcasters and cable  xjoperators, the decision contained herein retains the existing market definitions and the existing  xmarket modification process for the 1996 mustcarry/retransmission consent election cycle. This  xdecision postpones a change in market definition from Arbitron's ADI to Nielsen's DMA until  xjthe 1999 election in order to provide an opportunity for the Commission and affected parties to  xconsider transitional mechanisms that could minimize the effects of changing market definitions on broadcasters and cable operators, including small business entities. "5',-(-(ZZ%"Ԍ W< Lv` ` 2. Initial Regulatory Flexibility Analysis for the Further Notice of Proposed  W<Rulemaking (#   X- : $958.` ` Pursuant to Section 603 of the Regulatory Flexibility Act, the Commission has  &prepared the following initial regulatory flexibility analysis ("IRFA") of the expected impact of  &yvthese proposed policies and rules on small entities. Written public comments are requested on  &the IRFA. These comments must be filed in accordance with the same filing deadlines as  X_- &comments on the rest of the Further Notice, but they must have a separate and distinct heading  XJ- &designating them as responses to the IRFA. The Secretary shall cause a copy of the Further  X5- &Notice, including the IRFA, to be sent to the Chief Counsel for Advocacy of the Small Business  &Administration in accordance with Section 603(a) of the Regulatory Flexibility Act, Pub.L.No.  X -96354, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).  X - &MObjectives. The objective of the Further Notice is to solicit comments on ways to ease the  &transition to a revised market definition of local television markets based on Nielsen's DMAs for  &mustcarry/retransmission consent elections beginning in 1999. We request information that will  &permit us to develop transitional mechanisms to minimize problems that could result from  &-changing market designations on broadcasters' mustcarry rights, cable operators' signal carriage  Xl- &obligations, and the availability of local television service to cable subscribers. The Further  XW- &?Notice also seeks comment on requirements intended to make the Section 614(h) market  XB-modification process more efficient.  X- &.Legal Basis. Authority for this proposed rulemaking is contained in Sections 4(i), 4(j) and 614  &of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j) and 534, and in Section 301 of the Telecommunications Act of 1996, Pub.L.No. 104104 (1996).  X- &Description, Potential Impact and Number of Small Entities Affected. Changing from a market  &definition based on ADIs to one based on DMAs could affect the area in which certain small  &commercial broadcast television stations are entitled to elect mustcarry/retransmission consent rights and change the signal carriage obligations of certain small cable systems.  X`- &jThe Further Notice requests proposals to minimize the impact on such small entities as well as other stations and cable systems.  X-Reporting, Recordkeeping and Other Compliance Requirements. None.  X-Federal Rules which Overlap, Duplicate or Conflict with these Rules. None.  V!- &Any Significant Alternatives Minimizing Impact on Small Entities and Consistent with Stated  X"-Objectives. None. "#,-(-(ZZe""Ԍ X- B. ` ` Initial Paperwork Reduction Act of 1995 Analysis  X-  X- : A:59.` ` This Report and Order and Further Notice of Proposed Rulemaking (Order and  X- &Further Notice) may contain either proposed or modified information collections. As part of its  &!continuing effort to reduce paperwork burdens, we invite the general public to take this  X- &opportunity to comment on the information collections contained in this Order and Further  X|- &zNotice, as required by the Paperwork Reduction Act of 1995, Pub. L. No. 10413. Public and  Xg- &agency comments are due at the same time as other comments on the Further Notice. Comments  &Lshould address: (a) whether the proposed collection of information is necessary for the proper  &=performance of the functions of the Commission, including whether the information shall have  &practical utility; (b) ways to enhance the quality, utility, and clarity of the information collected;  &land (c) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.  X - C. ` ` Procedural Provisions  X- : ;60.` ` Ex parte Rules NonRestricted Proceeding. This is a nonrestricted notice and  &{comment rulemaking proceeding. Ex parte presentations are permitted, except during the  &ZSunshine Agenda period, provided that they are disclosed as provided in the Commission's rules.  XW-See generally, 47 C.F.R. Sections 1.1202, 1.1203, and 1.1206(a).  X+- : <61.` ` Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the  X- &zCommission's rules, interested parties may file comments on or before October 31, 1996, and  &=reply comments on or before November 15, 1996. To file formally in this proceeding, you must  &file an original plus six copies of all comments, reply comments, and supporting comments. If  &you would like each Commissioner to receive a personal copy of your comments and reply  &comments, you must file an original plus 11 copies. You should send comments and reply  &comments to the Office of the Secretary, Federal Communications Commission, 1919 M Street,  &N.W. Washington, D.C. 20554. Comments and reply comments will be available for public  &inspection during regular business hours in the FCC Reference Center, Room 239, Federal Communications Commission, 1919 M Street N.W., Washington D.C. 20554.  X.- : 3=62.` ` Written comments by the public on the proposed and/or modified information  X- &collections are due October 31, 1996 . In addition to filing comments with the Secretary, a copy  &iof any comments on the information collections contained herein should be submitted to Dorothy  &Conway, Federal Communications Commission, Room 234, 1919 M Street, N.W., Washington, DC 20554, or via the Internet to dconway@fcc.gov.  X"- D. ` ` Ordering Clauses  Xv$- : >63.` ` ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 4(i), 4(j) and 614  &0of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j) and 534, and  &Section 301 of the Telecommunications Act of 1996, Pub. L. No. 104104 (1996), Part 76 IS"H&,-(-(ZZ$"  &MAMENDED as set forth in Appendix B, effective thirty days after publication in the Federal Register.  X- : ~?64.` ` IT IS FURTHER ORDERED that, the Secretary shall send a copy of this Report  X- &and Order and Further Notice of Proposed Rulemaking, including the Regulatory Flexibility  &KAnalysis, to the Chief Counsel for Advocacy of the Small Business Administration in accordance  &with paragraph 603(a) of the Regulatory Flexibility Act. Pub. L. No. 96354, 94 Stat. 1164, 5  Xc-U.S.C.  601 et seq. (1981).  ` ` ,FEDERAL COMMUNICATIONS COMMISSION ` ` ,William F. Caton  X -` ` ,Acting Secretary ccpp " ,-(-(ZZN "  X-~ APPENDIX A   X-Z[LIST OF COMMENTERS Đd  X-Initial Comments Association of Local Television Stations, Inc. Cable Telecommunications Association Christian Network, Inc. Cole, Raywid & Braverman on behalf of Antietam Cable, Charter Communications, Inc., XGreater Media, Inc., Colorado Cable Television Association, Cable Television Association of Georgia, Indiana Cable Television Association, Cable Television Association of Maryland, Delaware and the District of Columbia, Michigan Cable Telecommunications Association, Pennsylvania Cable and Telecommunications Association, South Carolina Cable Television Association, Tennessee Cable Television Association, and Wisconsin Cable Communications Association (# Costa de Oro Television, Inc. Cox Communications, Inc. DeSoto Broadcasting, Inc. Diversified Communications Evening Post Publishing Co., Hubbard Broadcasting, Inc., Paxson Communications Corporation and Wabash Valley Broadcasting Corporation Fouce Amusement Enterprises Great Trails Broadcasting KTEN Television Limited Partnership National Association of Broadcasters National Cable Television Association Post Company Press Broadcasting Company, Inc. Roberts Broadcasting Company and Whitehead Media, Inc. SL Communications, Inc. Small Cable Business Association United Communications Corporation United States Copyright Office of the Library of Congress Withers Broadcasting Company of Texas ",-(-(ZZ"  X-Reply Comments Association of Local Television Stations, Inc. Blackstar of Ann Arbor, Inc. Cole, Raywid & Braverman on behalf of Antietam Cable, Charter Communications, Inc., XGreater Media, Inc., Colorado Cable Television Association, Cable Television Association of Georgia, Indiana Cable Television Association, Cable Television Association of Maryland, Delaware and the District of Columbia, Michigan Cable Telecommunications Association, Pennsylvania Cable and Telecommunications Association, South Carolina Cable Television Association, Tennessee Cable Television Association, and Wisconsin Cable Communications Association (# Costa de Oro Television, Inc. Golden Empire Television Corporation Great Trails Broadcasting Corp. GTE Service Corporation Hearst Corporation KPNX Broadcasting Company National Association of Broadcasting National Cable Television Association Post Company Pulitzer Broadcasting Company United Communications Corporation WRNNTV Associates Limited Partnership " ,-(-(ZZ7"  X-~ APPENDIX B ă Part 76 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows: PART 76 CABLE TELEVISION SERVICE  X_-1.` ` The authority citation for Part 76 is revised to read as follows:  X1- & AUTHORITY: Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309,  &312, 315, 317, 325, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 558, 560, 561, 571, 572, 573.  X -2.` ` Section 76.55 is amended by revising paragraph (e) to read as follows:   X - 76.55 Definitions applicable to the mustcarry rules  X-  (#For purposes of the mustcarry rules set forth in this subpart, the following definitions apply: * * * * *   X-(e) Television market.   : X(1) Until January 1, 2000, a commercial broadcast television station's market,  : unless amended pursuant to Section 76.59, shall be defined as its Area of  : Dominant Influence (ADI) as determined by Arbitron and published in the  X- : Arbitron 19911992 Television ADI Market Guide, as noted below, except that for  : `areas outside the contiguous 48 states, the market of a station shall be defined  : using Nielsen's Designated Market Area (DMA), where applicable as published  XR- : in the Nielsen 199192 DMA Market and Demographic Rank Report, and that  : oPuerto Rico, the U.S. Virgin Islands, and Guam will each be considered a single market;   (#X(2) Effective January 1, 2000, a commercial broadcast television station's market, unless  (#amended pursuant to Section 76.59, shall be defined as its Designated Market Area  X - (#(DMA) as determined by Nielsen Media Research and published in its DMA Market and  X!-Demographic Rank Report or any successor publication, as noted below;(#  : oX(3) A cable system's television market(s) shall be the one or more ADI markets  : in which the communities it serves are located until January 1, 2000, and the one or more DMA markets in which the communities it serves are located thereafter;  "D&!,-(-(ZZ$"Ԍ : oX(4) In addition, the county in which a station's community of license is located will be considered within its market.   (#XNote: For the 1996 mustcarry/retransimission consent election, the ADI assignments  X- (#mspecified in the 19911992 Television ADI Market Guide, available from the Arbiron  (#2Ratings Co., 9705 Patuxent Woods Drive, Columbia, MD, will apply. For the 1999  (#election, which becomes effective on January 1, 2000, DMA assignments specified in the  Xa- (#1199798 DMA Market and Demographic Rank Report, available from Nielsen Media  (#Research, 299 Park Avenue, New York, NY, shall be used. The applicable DMA list for the 2002 election will be the 20002001 list, etc. (#  X -