$//MO&O Granting WPTO carriage on TCI Cablevision, DA-95-77//$ $/300.534 Carriage of local commercial television signals/$ $/76.61 Disputes concerning carriage/$ ///newjob/// $///DA 95-77,1/27/95////$ Before the Federal Communications Commission Washington,D.C. 20554 DA-95-77 In re: ) ) Complaint of Greater Dayton ) CSR-4168-M Public Television against ) CSR-4169-M TCI Cablevision of Ohio ) CSR-4170-M ) CSR-4171-M Request for Carriage and ) CSR-4172-M Channel Positioning ) MEMORANDUM OPINION AND ORDER Adopted: January 19, 1995 Released: Febraruary 1, 1995 By the Cable Services Bureau: INTRODUCTION 1. On October 5, 1992, the Cable Television Consumer Protection and Competition Act of 1992 (1992 Cable Act) became law. On December 4, 1992 the 1992 Cable Act's requirements for mandatory carriage of noncommercial educational (NCE) stations set forth in Section 5 of the 1992 Act became effective. On December 10, 1993 Greater Dayton Public Television (GDPT), licensee of station WPTO (Educ., Channel 14), Oxford, Ohio filed five complaints seeking to ensure WPTO's carriage on channel 14 of TCI Cablevision of Ohio, Inc.'s (TCI) system serving Golf Manor, Middletown, Wilmington, Fairfield, and Hamilton. On January 11, 1994, TCI filed a consolidated opposition to these complaints. GDPT filed a reply to this opposition on February 14, 1994. SUMMARY OF PLEADINGS 2. WPTO maintains that, despite its status as a qualified, local NCE broadcast station, TCI refuses to honor WPTO's channel-election. Pursuant to the Commission's must-carry rules, a qualified NCE is entitled to carriage on the cable operator's system and may choose a channel position based on either its on-air channel or the channel on which it was carried as of July 19, 1985. WPTO has elected its on-air channel, channel 14, as its channel position on respondent's systems. 3. TCI does not dispute that WPTO is a qualified NCE entitled to carriage on its systems, nor does respondent dispute that, ordinarily, WPTO would be entitled to elect a channel based on its on-air channel. However, respondent contends that to locate WPTO on channel 14 would require TCI to switch one of its pay services to another channel. To effectuate complainant's request would also, according to TCI, require the removal and retrapping of positive and negative traps of almost 27,000 subscribers. The estimated cost of this effort is $307,000. TCI acknowledges that the Commission has stated that "inconvenience, marketing problems, the need to reconfigure the basic tier or the need to employ additional traps or make technical changes" are not enough to bar fulfillment of an operator's must-carry obligations; nonetheless, TCI believes that to require compliance in this instance is well- beyond what the Commission envisioned and thus WPTO's request should be denied. 4. TCI states that it offered to carry WPTO on channel 15 and that "it makes no sense to spend over $300,000 to move WPTO a mere one channel down the television dial." Respondent states that complainant also refused its offer to educate viewers about an alternative channel position, and that WPTO has failed to explain why placement on channel 15 or channel 4 (which TCI allegedly offered as a second alternative) is significantly different than channel 14. 5. TCI concludes by requesting that, if WPTO's complaint is granted, respondent be given twelve (12) weeks beyond the standard 45 days in which to comply. TCI bases this request on its estimates regarding the number of traps that can be produced per week and the installation time. WPTO requests that the Commission reject this extension of time. DISCUSSION 6. We find that TCI is required to carry WPTO on channel 14. Section 615(g)(5) of the 1992 Cable Act permits a NCE to elect its over-the-air channel number as its channel position on a cable system, and WPTO has properly chosen its over-the-air channel. There is no requirement in the Act or our rules that a broadcaster explain why the operator's on- channel preference is less suitable than the broadcaster's stautorily-based channel election. Further, cable operators must comply with the channel positioning requirements absent a compelling technical reason. The Commission specifically held that the need to replace traps, or to reconfigure the basic tier, or to make technological changes are generally not grounds for waiver. Nevertheless, in adopting the on-channel carriage rules, the Commission recognized that there well might be certain circumstances where the compliance costs incurred by a cable operator would be so compelling as to warrant a waiver. To obtain such a waiver, a petitioner must first submit detailed evidence demonstrating the compliance costs. The petitioner must then demonstrate how such costs would substantially impact the cable system. TCI has failed to make these necessary showing. 7. Accordingly, the petition filed on December 8, 1993, by Greater Dayton Public Television IS GRANTED, in accordance with Section 615(g)(5) (47 U.S.C. 535) of the Communications Act of 1934, as amended, and TCI Cablevision of Ohio, Inc. IS ORDERED to commence carriage of WPTO on cable channel 14 in accordance with the above decision twelve weeks (12) from the release date of this Order. 8. This action is taken authority delegated by Section O.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau