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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** \$//MO&O Granting W39BQ and W30BF carriage on A-R Cable, DA-95-192//$ $/300.535 Carriage of noncommercial translator station signals/$ $/76.61 Disputes concerning carriage/$ ///newjob/// $///DA 95-192,3/3/95///$ Before the Federal Communications Commission Washington, D.C. 20554 DA-95-192 In re: ) ) Complaints of Maine Public ) CSR 4397-M Broadcasting Corporation ) CSR 4398-M against A-R Cable Services ) d/b/a Cablevision ) ) Petitions for Declaratory Ruling and ) Requests for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: February 8, 1995 Released: March 7, 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 certain noncommercial educational stations set forth in 5 of the 1992 Act became effective. On October 6, 1994, Maine Public Broadcasting Corporation ("MPBC"), licensee of noncommercial translator stations W39BQ, Lewiston, Maine, and W30BF, Bangor, Maine, (the "Stations") filed separate petitions for declaratory ruling seeking to ensure the Stations' carriage on A-R Cable Services cable systems (d/b/a Cablevision) ("A-R" or "Cablevision") serving several Maine communities. On December 13, 1994, A-R filed separate oppositions/requests for stay to these complaints. On December 23, 1994, MPBC filed separate replies to these oppositions/requests for stay. We shall jointly consider the two petitions since there is commonality between the parties and the issues. SUMMARY OF PLEADINGS 2. In its petitions for declaratory ruling, MPBC explains that it is a 501(c)(3) corporation operating noncommercial educational TV and radio stations throughout the State of Maine. MPBC further explains that W39BQ and W30BF both translate the signal of full power noncommercial educational television station WMEA-TV, Bidderford, Maine and that W39BQ operates with an effective radiated power of 9.2 kilowatts while W30BF operates with an effective radiated power of 33.65 kilowatts. MPBC asserts that both stations serve the cable operator's franchise areas and both stations are considered "local" because their communities of license are within 50 miles of Cablevision's principal headends. MPBC asserts Cablevision has acknowledged that the Stations qualify for mandatory carriage rights on its cable systems but has not yet initiated carriage for either of them. MPBC asks the Commission to issue orders requiring Cablevision to carry W30BF and W39BQ. 3. In its oppositions, Cablevision presents three arguments explaining why it should not be required to carry either W30BF or W39BQ. First, Cablevision submits that WMEA, through the Stations at issue, airs programming substantially similar to that of WCBB, another MPBC noncommercial educational television station already carried on the systems. Cablevision argues that MPBC is simply using the must carry rules to expand the coverage area of WMEA, a non-local station that otherwise would provide no service to the cable communities. Second, Cablevision asserts that granting MPBC's requests would have a significant adverse impact on Cablevision's business. Cablevision explains that carriage of the Stations would result in financial losses related to new equipment expenses, costs of notifications to subscribers, and loss of revenue due to the deletion of a cable programming service. Finally, Cablevision argues that mandatory carriage of the Station's would abridge its First Amendment rights by forcing it to add to its programming line-up "a governmentally favored class of speaker -- a noncommercial educational broadcaster -- in place of a cable programmer whom Cablevision would prefer to carry." In this regard, Cablevision, noting the Supreme Court's remand order in Turner Broadcasting System, Inc. v. FCC, asks that the Commission defer consideration of MPBC's petitions until a final determination has been made concerning whether the must carry provisions of the 1992 Cable Act comport with the First Amendment. 4. In its replies, MPBC asserts that Cablevision's arguments challenging W30BF and W39BQ's carriage rights are unpersuasive. MPBC first asserts that WCBB's programming is not duplicative of WMEA's because the former caters to a wide, prime-time audience while the latter broadcasts programming to targeted and dedicated audiences and "provides a more educational and instructional focus." As for Cablevision's argument that carriage of the Station's would negatively affect its business, MPBC asserts that the operator's expenses are "speculative and conjectural" since Cablevision fails to provide any evidence to document its figures. MPBC also argues that even if Cablevision's expenses were substantiated, the 1992 Cable Act does not take into account a cable operator's costs in determining the existence of mandatory carriage rights. Finally, MPBC argues that Cablevision's constitutional argument and request for a stay are without merit because the 1992 Cable Act's must carry provisions and the Commission's must carry rules remain in effect. MPBC also asserts that Cablevision acknowledges that the Commission cannot declare the must carry provisions unconstitutional. MPBC closes its replies by arguing that the public interest would be "substantially harmed" by delay of the Stations' carriage because Cablevision's service areas are deprived access to "unique and valuable noncommercial programming." DISCUSSION 5. We uphold the Stations' complaints against Cablevision. Initially, it is important to note that noncommercial translator stations, such as W39BQ and W30BF, have signal carriage rights. Congress determined that translators should be carried because they are particularly important to state public television networks, like MPBC, in extending television signals to rural areas that are located far from the principal communities of the main station. Based on the facts presented by MPBC, we find that W39BQ and W30BF are qualified noncommercial educational translator stations, meet the goals of Congress, and are entitled to carriage on Cablevision's systems. 6. We also agree with the Stations that their programming schedule is not substantially duplicative of WCBB, the other noncommercial station carried on Cablevision's systems. Our rules require cable systems with more than 36 usable activated channels to carry the signals of at least three qualified local NCE educational stations. However, a cable system with more than 36 channels shall not be required to carry stations whose programming substantially duplicates the programming of another qualified local NCE station. A station is deemed to substantially duplicate the programming of another station if it broadcasts the same programming, simultaneous, or non-simultaneous, for more than 50 percent of prime time, as defined in section 76.5(n) of our rules, and more than 50 percent outside of prime time over a three month period. The stations have demonstrated through the submission of detailed program logs that their programming does not substantially duplicate the programming provided by WCCB. As such, the operator cannot rightfully deny the stations' carriage requests on this basis. 7. With respect to A-R Cable Services' argument that it be excused from compliance with the applicable provisions of the law because of the expense of compliance, we note that the obligations in question are statutory requirements and that A-R Cable Services has cited no authority for the Commission to waive the statute in the manner requested. No such authority is explicitly set forth in sections 614 and 615 of the 1992 Cable Act. 8. Finally, we find that Cablevision's constitutional argument is without merit and deny the operator a stay of our signal carriage rules. The constitutionality of the must carry provisions of the 1992 Cable Act were challenged before the Supreme Court. In Turner Broadcasting Systems, Inc. v. FCC, a special three-judge panel of the District Court for the District of Columbia found the must carry provisions constitutional. On appeal, the Supreme Court vacated the decision and remanded the case back to the three judge panel for further proceedings. However, the Court did not stay the statute's must carry provisions or our rules while the case is on remand. Thus, while the case is pending, the must-carry provisions of the 1992 Cable Act remain in effect, as do the Commission's must-carry rules. We believe it would run contrary to the public interest to grant a stay and deny the stations the right to enforce their valid signal carriage rights in this instance. 9. Accordingly, the petitions filed on October 6, 1994, by Maine Public Broadcasting Corporation, ARE GRANTED, in accordance with Section 615(j)(3) (47 U.S.C. 535) of the Communications Act of 1934, as amended. A-R Cable Services IS ORDERED to commence carriage of W39BQ and W30BF on its cable systems within forty-five (45) days from the release date of this Order. 10. This action is taken pursuant to authority delegated by section O.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau