$//MO&O Denying Century recon of KRCB-TV grant, DA 94-1471//$ $/300.535 Carriage of noncommercial educational television/$ $/76.61(b) Complaints regarding qualified NCE stations/$ $/1.106 Petitions for Reconsideration/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA-94-1471 In re: ) ) Complaint of Rural California ) CSR-3880-M Broadcasting Corporation against ) CA0021 Century Cable ) ) Petition for Reconsideration ) MEMORANDUM OPINION AND ORDER Adopted: December 12, 1994 Released:January 5, 1995 By the Cable Services Bureau: 1. On November 24, 1993, a petition for reconsideration and request for stay was filed, on behalf of Century Cable of Northern California, Inc. ("Century"), operator of a cable system serving San Pablo, California. Century requests that the Commission reconsider its October 25, 1993 action ordering its San Pablo system to carry Station KRCB- TV (Educ., Ch. 22), Cotati, California. A petition to deny this request was filed December 2, 1993, on behalf of KRCB-TV to which Century replied. 2. In support of its request, Century argues for the first time that it should not be required to carry KRCB-TV because the station's programming substantially duplicates that of two stations which Century currently carries: KQED (Educ., Ch. 9), San Francisco, California; and KCSM-TV (Educ., Ch. 60), San Mateo, California. Century states that after notifying KRCB-TV by letter dated September 17, 1993, it commissioned an independent firm, TV Data, to conduct a duplication study, the results of which indicate that KRCB-TV's programming is duplicative more than 50% of prime time and more than 50% outside of prime time. It maintains that 76.56 of the Commission's Rules provides that cable systems -2- with more than 36 channels, such as Century's, are not required to carry stations whose programming substantially duplicates that of a station already being carried. Further, Century argues that if it is forced to carry KRCB-TV on cable channel 22 as requested, it would require substantial time, effort and expense, and further disruption to subscribers since channel 22 is currently occupied by a premium channel and it would necessary to change out traps. 3. In its petition to deny, KRCB-TV states that Century had more than enough time prior to the adoption of the Commission's order in which to present information regarding duplication. In any event, it maintains, the study that Century relies on is based on erroneous data. KRCB-TV argues that a similar study it undertook indicates a duplication of only 28%. Finally, KRCB-TV avers that channel positioning need not be an issue. It states that as early as April 14, 1993, it indicated to Century that it was willing to discuss other channel positions for its station. Therefore, it concludes, there is no reason to delay carriage. 4. In its reply to the opposition, Century reiterates its earlier arguments regarding substantial duplication and on-channel carriage. It states that it authorized TV Data, to conduct a new study to further demonstrate the duplication and it submits this information in support. Century also indicates that in addition to Stations KQED and KCSM-TV mentioned in its reconsideration, it carries a third NCE station, KMPT (Educ., Ch. 22), San Francisco, California, on its system serving San Pablo. 5. We are not persuaded by the arguments raised by Century. The standard for determining whether noncommercial stations substantially duplicate each other is a two-part test. As stated in paragraph 19 of the Report and Order in MM Docket No. 92-259, 8 FCC Rcd 2965 (1993): First, the amount of duplicative (simultaneous or non-simultaneous) prime time weekly programming broadcast over the course of a three-month period will be calculated. The end of the three-month period must fall within 30 days prior to the date the cable system notifies the NCE station that it is denying or discontinuing carriage based on substantial duplication. Second, the amount of duplicative (simultaneous or non-simultaneous) weekly programming broadcast outside prime time over the course of the same three-month period will be determined. Only if the station duplicates more than 50 percent of the other station's weekly programming in both of these respects can it be denied carriage. Century presents summary results of a duplication study conducted by TV Data that purports -3- to compare the programming of KRCB-TV with that of KQED using data from October 17, 1993 through December 31, 1993. In addition, Century indicates that it sent KRCB-TV a letter on September 17, 1993, explaining that it was denying the station carriage based on duplicative programming. We find this study flawed for two basic reasons. First, the Order requires that the data be from a period ending prior to the notification of denial of carriage, yet TV Data's study seems to begin on the same date as the notification and uses data for future periods. Moreover, it does not cover a three-month period as required, but only 11 weeks, since it apparently started in mid-October. Second, the study appears to be for prime time and total hours, as opposed to prime time and non-prime time. Further, the supplemental information Century provided in its reply cannot be used to verify any claims either since there is no explanation from either Century or TV Data as to what is actually contained therein. We therefore cannot conclude that Century has made a sufficient showing to demonstrate substantial duplication. Finally, the issue of on-channel carriage appears to be moot as KRCB-TV has expressed its willingness to negotiate on this point. 6. In light of the above, therefore, pursuant to 0.321 and 1.106 of the Commission's Rules, the petition for reconsideration and request for stay, filed November 24, 1993, ARE DENIED and Century Cable IS ORDERED to commence carriage of Station KRCB-TV within forty-five (45) days of the date of this letter. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau