Before the Federal Communications Commission Washington D.C. 20554 In re: ) DA 95-675 ) Complaint of Bridgeways Communications) CSR- 4218-M Corporation Against Comcast Cablevision) of Danbury ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: March 30, 1995 Released: By the Cable Services Bureau: INTRODUCTION 1. Pending in the captioned proceeding is a complaint filed by Bridgeways Communications Corporation, licensee of television station WHAI, Bridgeport, Connecticut, ("WHAI") against Comcast Cablevision of Danbury ("Comcast") seeking carriage on Comcast's cable television system serving Danbury, Connecticut and associated communities. Comcast has filed an opposition to this complaint. BACKGROUND 2. Pursuant to 4 of the Cable Television Consumer Protection and Competition Act of 1992 and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, a commercial television broadcast station is entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence," or ADI. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Cable systems with more than twelve usable activated channels may be required to carry the signals of local commercial television station only up to one-third of the aggregate number of usable activated channels on the system. 3. Under the Act, however, the Commission is also directed to consider changes in ADI areas. Section 614(h) provides that the Commission may: with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section. Section 614(h)(C)(iii) further provides that "A cable operator shall not delete from carriage the signal of a commercial television station during the pendency of any proceeding pursuant to [Section 614(h)." ARGUMENTS OF THE PARTIES 4. WHAI, in its complaint, states that both it and the cable operator are located in the New York ADI. WHAI complains that despite agreeing to provide the operator with a sufficient signal and to indemnify it for any copyright liability, its signal is still not being carried. WHAI states that it duly sought carriage but the operator refused to honor the request because "the Danbury system has 40 channels, and our must-carry obligations have been met at 13 channels." According to WHAI, the operator maintains that it was meeting its must carry obligations by carrying stations from outside of the New York ADI. In addition, WHAI asserts that the operator promised to provide a channel line-up card, but to date, has not done so. WHAI argues that the operator's failure to provide the channel line- up card constituted a denial by the system to carry the station and that it has timely filed its complaint within 60 days of this denial. WHAI requests that the Commission declare that Comcast is required to carry its signal. 5. Comcast in opposition argues that it is currently carrying the requisite number of channels pursuant to the Commission's rules. Comcast states that the Danbury cable system has 40 activated channels and thus is required to carry 13 local commercial stations to fulfill its must carry obligations. The system carries eight local commercial stations from the New York ADI. In addition, Comcast states it is legally obligated to continue carrying five stations from Connecticut by virtue of various petitions that have been filed seeking to alter the ADI markets of the Connecticut stations. Comcast relies on Section 76.59 (c) of the Commission's rules for support of the principle that a cable operator is not permitted to "delete from carriage the signal of a commercial television station during the pendency of any proceeding [to modify the station's market]." 6. Comcast also argues that it would not be expedient for it to carry WHAI's signal only to discontinue it again if the various petitions have been granted. Comcast additionally claims that it did provide WHAI with a channel line-up card and has made every attempt to cooperate with WHAI's request for channel line-up information. ANALYSIS AND DECISION 7. WHAI's has not established that Comcast Cablevision of Danbury has violated the mandatory broadcast signal carriage rules and its complaint must accordingly be denied. WHAI is located in the same ADI as Comcast's Danbury system, has agreed to provide an adequate signal to the Danbury principal headend, and has agreed to indemnify Comcast for any additional copyright expenses incurred. WHAI is thus eligible to exercise mandatory signal carriage rights with respect to the Danbury system. Nevertheless, according to undisputed evidence in this proceeding, the system in question is carrying enough local commercial stations to satisfy its signal carriage requirement under the requirements of Section 614 of the Communications Act. Under Section 614, cable operators with more than twelve usable activated channels must devote up to one-third of this capacity to the carriage of local commercial television stations. In this case, Comcast is only required to carry 13 local commercial television stations and is already doing so. Thus, it is not required at this time to carry any additional must carry signals, including WHAI's. 8. Comcast's count of channels required to be carried under the rules includes eight signals from the New York market and five Hartford-New Haven ADI stations that are the subject of pending market modification requests or that are now subject to carriage as the consequence of market modification requests that have previously been acted on. Danbury is within the market area of WTNH, New Haven, as a consequence of the decision in Cook Inlet Communications, Inc., (CSR-3827-A), DA 95-541 (released March 24, 1995). WTXX, channel 20, Waterbury, Connecticut is not subject to deletion as a consequence of the pendency of the proceeding in CSR-3839, commenced by Counterpoint Communications, Inc., the licensee of WTXX. WTIC, Hartford, is not subject to deletion as a consequence of the pendency of the proceeding in CSR-4047, commenced by 61 Licensee, Inc., the licensee of WTIC. WVIT, New Britain, Connecticut and WFSB, Hartford, (as well as WTNH, WTXX, and WTIC) are the subject of similar proceedings in CSR-3885 and CSR-3989 commenced by the Attorney General of the State of Connecticut and the State of Connecticut Department of Public Utility Control. Although disputes are pending regarding the standing of the governmental entities involved to file the referenced petitions, given the status of these filings and the requirement that the cable operator is not permitted to delete a commercial television station signal during the pendency of a market modification proceeding, it cannot be concluded that Comcast Cablevision of Danbury is in violation of the mandatory broadcast signal carriage rules at this time. Upon resolution of these proceedings, WHAI may reassert its carriage rights as may be appropriate at that time. ORDER 9. Accordingly, IT IS ORDERED, pursuant to 614 of the Communications Act of 1934, as amended (47 U.S.C. 534), and 76.61 of the Commission's Rules (47 C.F.R. 76.61), that the complaint filed on January 24, 1994 by Bridgeways Communications Corporation IS DENIED. 10. This action is taken pursuant to authority delegated by 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau