$// MO&O granting KVVV carriage on some Houston systems, DA-95-103//$ $/ 76.56 Signal carriage obligations /$ $/ 76.58 Notification /$ $///DA 95-103 1/27/95///$ ///newjob/// Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 DA-95-103 In re: ) ) ) Complaint of Pray, Inc. against ) CSR-4196-M Nationwide Communications, Inc. ) TX2060 et al. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: January 20, 1995 Released:February 2, 1995 By the Cable Services Bureau: INTRODUCTION 1. On December 16, 1993, Pray, Inc., licensee of Television Broadcast Station KRTW (Ind., Channel 57), Baytown, Texas, filed a "Complaint," pursuant to 47 U.S.C. 614(d)(3) seeking carriage of the signal of its station by Nationwide Communications, Inc. d/b/a EagleVision, described as "the operator of a large number of CATV and SMATV systems in and around Houston, Texas." An "Opposition To Complaint" was filed February 15, 1994, by Nationwide Communications, Inc. KRTW replied to this opposition on March 2, 1994. SUMMARY OF PLEADINGS 2. KRTW states that it places a predicted city grade contour over virtually all of Houston, which is approximately twenty-four miles west of Baytown. Both Houston and Baytown are located in Harris County, and Baytown is in Houston's area of dominant influence (or "ADI"). However despite numerous requests, both verbal and written, EagleVision has not added KRTW to its systems, claiming that its programming substantially duplicates that of other stations entitled to mandatory carriage already retransmitted by its systems. According to KRTW, however, only one other station presently carried by EagleVision broadcasts home shopping programming similar to that transmitted by KRTW; it is Station KHSH-TV (Ind., Channel 67), Alvin, Texas. KRTW, therefore, asks the Commission to require that EagleVision add its signal immediately, and that forfeitures be imposed upon it for its willful and repeated violations of the mandatory carriage rules, pursuant to Section 503(b)(1)(B) of the Communications Act of 1934, as amended. 3. According to EagleVision, ten of its operations already devote the maximum amount of channel space required by Commission rules to be dedicated to the retransmission of local commercial television signals, pursuant to Section 76.56(b)(2) and (b)(4) of the Commission's Rules. Therefore, it is said, these operations are not required to add KRTW's signal. Moreover, EagleVision states that most of its systems already carry the signal of KHSH (Channel 67), Houston, Texas, a commercial station entitled to mandatory carriage that is an affiliate of the Home Shopping Network and which also broadcasts home shopping programming full-time. According to EagleVision, KRTW is affiliated with Value Vision which ". . . presents on a full-time basis, satellite-delivered sales presentations. . . ." and ". . . substantially duplicates the home shopping programming of KHSN for much more than 50 percent of the broadcast week." Therefore, EagleVision argues that either a literal reading or a special application of Section 76.56(b)(5) of the Commission's Rules also exempts these systems from mandatory carriage of KRTW. EagleVision is aware that one station may be selling jewelry, while the other is demonstrating pots and pans, but it maintains that there is little real difference between the two in their manner of selling or discussing their wares or in what little visual or intellectual information they present, unlike the news, drama, or comedy of other commercial stations. 4. EagleVision also notes that the burden of adding KRTW to its seven systems with fewer than 100 subscribers, or to its other eleven systems with fewer than 250 subscribers, would be particularly expensive relative to their potential revenues, because it would ". . . include addition of receiving and signal processing equipment, readjustment and purchase of new traps, and labor costs. . . ." Therefore, EagleVision requests that the Commission waive its mandatory carriage requirement for these systems, even though they may have more than the twelve activated channels specified in the Commission's present exception to its rules. Section 76.56(b)(5) of the Commission's Rules. Finally, EagleVision states that, since it will obey any Commission order, and has not denied KRTW carriage for any malicious or anti-competitive reason, but rather because of its sincere belief that the programming of KHSH and KRTW are essentially duplicative of each other, it should not be subject to forfeiture or to other Commission sanctions, citing n. 205 to the Commission's Report and Order in MM Dockets 92-259, 90-4, and 92-295, 8 FCC Rcd 2965, 2982 (1993). 5. In its reply, KRTW repeats its request for Commission sanctions against EagleVision, noting the failure of Eaglevision to comply with the substantive or procedural aspects of the rules, to present sufficient evidence to demonstrate that the rules are inapplicable, or even any attempt to quantify the cost of adding KRTW to its smaller systems. Finally, KRTW asserts that no other Houston area station broadcasts Value Vision programming, and that comparing it to the home shopping programming provided by KHSH would involve the Commission in content-based judgements, thereby compromising the Constitutionally-mandated content neutrality of its mandatory carriage rules, citing the Commission's Report and Order in MM Docket 93-8, 8 FCC Rcd 5321, 5329 (1993). DISCUSSION 6. Based on the information in its filing, sworn to under penalty of perjury by John Bailie, general manager of EagleVision based on his personal knowledge, it appears that EagleVision on its systems in Colony Oaks - TX1772, Idlewood Park - TX1986, Kempwood Village - TX1666, La Fontaine - TX1988, Napoleon Square - TX2038, Parkway - TX1780, Parkway - TX1780, Meadowridge - TX 1987, Rivertree (TX2036), Thousand Oaks - TX1787, and Westborough Crossing - TX1649 has already devoted the maximum amount of channel space to the carriage of commercial broadcast station signals that is required by the statute. Accordingly, with respect to these operations, KRTW's complaint will be denied. With respect to the other operations, however, EagleVision has not justified its failure to comply with the applicable rules and statutorily-mandated carriage provisions. EagleVision has failed to introduce any evidence, other than mere conclusory statements, to justify its request that it not be required to comply with the rules. As KRTW points out, Eagle Vision has submitted no data relative to the potential revenues versus the potential expenses which might be incurred by the smaller systems if they were required to add KRTW. 7. We also reject EagleVision's contention that programming supplied by one shop- at-home broadcast station is by its very nature, substantially duplicative of that supplied by any other shop-at-home broadcast station. The mere fact that two stations share the same format is not grounds for concluding that their programming is duplicative for purposes of the Commission's must carry rules. The Commission's standard for what constitutes duplicative programming is set forth in Section 76.56(b)(5) of the Rules, and EagleVision has failed to introduce any evidence pursuant to this rule's requirements. Furthermore, the Commission has held that it would not be in the public interest for it to base waivers of its rules upon considerations of format. FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981). ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, that the "Complaint" filed December 16, 1993, by Pray, Inc., licensee of Television Broadcast Station KRTW, IS DENIED with respect to Colony Oaks - TX1772, Idlewood Park - TX1986, Kempwood Village - TX1666, La Fontaine - TX1988, Napoleon Square - TX2038, Parkway - TX1780, Parkway - TX1780, Meadowridge - TX 1987, Rivertree (TX2036), Thousand Oaks - TX1787, and Westborough Crossing - TX1649 and otherwise IS GRANTED in accordance with Section 614(d)(3) (47 U.S.C. 534) of the Communications Act, as amended. 9. IT IS FURTHER ORDERED, That Nationwide Communications, Inc. d/b/a/ EagleVision SHALL CARRY the signal of Television Broadcast Station KVVV (Ind., Channel 57), Baytown, Texas (formerly, KRTW), in compliance with this Order within forty-five (45) days of its release date. 10. IT IS FURTHER ORDERED, That Nationwide Communications, Inc. d/b/a/ EagleVision SHALL FULLY COMPLY with Section 76.58(e) of the Commission's Rules by refiling the required notice in accordance with the provisions of Section 76.58(e) for each of the systems involved within fifteen (15) days of the release date of this Order. 11. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau