$//MO&O Granting KRCA carriage in Cerritos, CA, DA 95-15//$ $/300.534 Carriage of local commercial televison signals/$ $/76.61 Disputes concerning carriage/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA-95-15 In re: ) ) ) Complaint of Fouce Amusement Enterprises, Inc. ) CSR-4266-M against Apollo CableVision, Inc. ) CA1450 ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: December 31, 1994 Released: January 13, 1995 By Cable Services Bureau: INTRODUCTION 1. On May 31, 1994, Fouce Amusement Enterprises, Inc., licensee of Television Broadcast Station KRCA (Ind., Channel 62), Riverside, California, filed a "Complaint" against Apollo Enterprises, Inc. ("Apollo"), operator of a cable television system serving Cerritos, California. Apollo filed an "Opposition" to this complaint on July 7, 1994, in response to which, KRCA filed its "Reply Of KRCA (TV) To Complaint and Request for Expedited Action" on July 18, 1994. SUMMARY OF PLEADINGS 2. According to KRCA, it is a commercial television broadcast station entitled to mandatory carriage by the cable system serving Cerritos, pursuant to Section 76.55 of the Commission's Rules, since both Riverside and Cerritos are within the Los Angeles, California area of dominant influence (or "ADI"). KRCA adds that the Cerritos system presently transmits only 11 other commercial stations entitled to must-carry status and that, since it has at least 42 activated channels, it is able to add KRCA immediately. However despite numerous requests, Apollo has not done so, claiming that to do so, would be ". . .at the expense of breaching a contract with another programmer or at the expense of 'kicking off' of our line-up some other programming which is well-loved by our subscribers." KRCA states that this is not a valid basis for denying a local commercial station its right to mandatory signal carriage. 3. In response, Apollo states that it is actually limited to using 39 channels on the Cerritos system, pursuant to its lease with GTE Telephone, although it adds that the system has 78 channels, including 3 which are utilized by the City of Cerritos itself. Apollo states that all its channels are presently in use, but that it had anticipated that it would be able to accommodate several carriage requests, including KRCA's, because it had planned to acquire Channels 40-79 from GTE, pursuant to their prior contractual arrangements. However, Apollo notes that ". . .intervening civil and FCC proceedings had forestalled that expansion of capacity." Therefore, Apollo urges that the Commission defer carriage of KRCA, pending resolution of GTE's tariff proposals (Transmittals No. 873 and 874), or at least until December 31, 1994. 4. In reply, KRCA asks that the Commission require Apollo add its station to the system no later than September 1, 1994, since it presently only transmits 11 local commercial stations, although the system's channel line-up as of January 5, 1994, demonstrated that it has, in fact, 42 useable activated channels, and it is therefore required to devote up to 14 local channels to carriage of local commercial stations. KRCA adds that the 3 channels utilized by the City of Cerritos count as part of the system's activated capacity, pursuant to Sections 76.5(nn) and (oo) of the Commission's Rules, so that even if, as Apollo claimes, it can only use 39 of the system's 78 channels, it still is required to carry up to 13 local commercial stations. DISCUSSION 5. When the Commission adopted its Report and Order in MM Dockets No. 92-259, 90-4, and 92-295, 8 FCC Rcd 2965, 2972 (1993), it specifically addressed the issue of inadequate activated channel capacity and noted: "(i.e.: a cable operator without a sufficient number of available channels may be required to drop a non-must-carry station or cable programming service to fulfill its must-carry obligations)." In addition, Section 76.56(b)(2) of the Commission's Rules, requires that cable systems with more than 12 useable activated channels devote up to 1/3 of them to retransmission of local commercial television broadcast signals. In n. 78 to its Report and Order, 8 FCC Rcd at 2972, the Commission explained that systems are allowed to round to the nearest whole number to determine how many channels must be devoted to the transmission of local commercial signals, in addition to any noncommercial signals that systems must also transmit. According to Apollo, it has a 39 channel system, including the 3 channels which it says are reserved for the exclusive use of the City of Cerritos. Therefore, as KRCA notes, the Commission's Rules require that up to 13 of Apollo's channels must be devoted to the transmission of local commercial signals, although KRCA's unrefuted allegation is that Apollo actually only carries 11 local commercial signals at present, and Apollo's own letter of May 3, 1993 indicated that it then only transmitted nine such signals. Consequently, we conclude that Apollo is not currently utilizing the required 1/3 of its capacity for the carriage of must-carry stations. Also, as noted above, the fact that Apollo may have to drop television broadcast stations or satellite delivered programming services that do not have mandatory carriage rights is not grounds to deny KRCA its right to mandatory carriage. ORDERING CLAUSES 6. In view of the foregoing, we find that grant of KRCA's complaint is in the public interest. 7. Accordingly, IT IS ORDERED, That the "Complaint" (CSR-4266-M), filed May 31, 1994, by Fouce Amusement Enterprises, Inc. IS GRANTED in accordance with Section 614(d)(3) (47 U.S.C. 534) of the Communications Act of 1934, as amended. 8. IT IS FURTHER ORDERED That Apollo Enterprises, Inc. SHALL CARRY the signal of KRCA on its cable television system serving Cerritos, California, in compliance with this Order, within forty-five (45) days of its release date. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Cable Services Bureau