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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//TKR Cable/WHSE-TV, Denial of ADI petition and Grant of carriage complaint, DA 95____//$ $/76.7 Special relief and must-carry complaint procedures $76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-2377 In re: ) ) TKR Cable Company of Elizabeth ) CSR-4524-A Elizabeth, New Jersey ) ) For Modification of Television ) Broadcast Station WHSE-TV's ADI ) ) Complaint of SKNJ Broadcasting ) CSR-4493-M Partnership against TKR Cable ) Company of Elizabeth ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1995 Released: December 5, 1995 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. TKR Cable Company of Elizabeth ("TKR"), operator of a cable television system serving Elizabeth, New Jersey and neighboring communities, has filed a petition for special relief (CSR-4524-A) seeking to delete the community of Elizabeth from the "area of dominant influence" ("ADI") of television broadcast station WHSE-TV (Channel 68), Newark, New Jersey, which station has as its market the New York ADI. TKR's petition is opposed by SKNJ Broadcasting Partnership ("WHSE-TV"), licensee of WHSE-TV. TKR has replied. 2. Also pending is a complaint filed by SKNJ against TKR for failure to carry the signal of WHSE-TV (CSR-4493-M). TKR has opposed the petition. SKNJ has replied. TKR has also filed a Supplement to Opposition to Must-Carry Complaint. WHSE-TV has opposed the Supplement and TKR has replied. WHSE-TV has filed a response to the reply. Because it is administratively efficient to do so, we will consolidate the two proceedings. BACKGROUND 3. Pursuant to Section 4 of the Cable Television Consumer Protection and Competition Act of 1992 ["1992 Cable Act"]and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, commercial television broadcast stations are 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, as defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is allocated to a market based on which home- market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air-and cable television viewing are included. 4. Under the 1992 Cable 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. In considering such requests, the 1992 Cable Act provides that: the Commission shall afford particular attention to the value of localism by taking into account such factors as - - (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; (II) whether the television station provides coverage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system in such community. 5. The legislative history of this provision indicates that: where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular communities from a television station's market consistent with Congress' objective to ensure that television stations be carried in the areas which they serve and which form their economic market. * * * * [This subsection] establishes certain criteria which the Commission shall consider in acting on requests to modify the geographic area in which stations have signal carriage rights. These factors are not intended to be exclusive, but may be used to demonstrate that a community is part of a particular station's market. 6. The Commission provided the following guidance in its Report and Order in MM Docket 92-259, supra, to aid decision making in these matters, as follows: For example, the historical carriage of the stations could be illustrated by the submission of documents listing the cable system's channel line-up (e.g., rate cards) for a period of years. To show that the station provides coverage or other local service to the cable community (factor 2), parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or other programming of interest to the community could be demonstrated by program logs or other descriptions of local program offerings. The final factor concerns viewing patterns in the cable community in cable and noncable homes. Audience data clearly provide appropriate evidence about this factor. In this regard, we note that surveys such as those used to demonstrate significantly viewed status could be useful. However, since this factor requires us to evaluate viewing on a community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 7. In adopting rules to implement this provision, the Commission indicated that requested changes should be considered on a community-by-community basis, rather than a county-by- county basis, and that they should be treated as specific to particular stations, rather than applicable in common to all stations in the market. The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage during the pendency of an ADI change request. 8. Adding communities to a station's ADI generally entitles that station to insist on cable carriage in those communities. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of its activated channel capacity to compliance with the mandatory signal carriage obligations; 2) the station is responsible for delivering a good quality signal to the principal headend of the system; 3) indemnification may be required for an increase in copyright liability resulting from carriage; and 4) the system operator is not required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried or the signals of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry the signal of only a single affiliate of a broadcast network, it is obligated to carry the affiliate from within the ADI whose city of license is closest to the principal headend of the cable system. Accordingly, based on the specific circumstances involved, the addition of communities to a station's ADI may guarantee it cable carriage and specific channel position rights, or simply provide the system operator with an expanded list of must-carry signals from which to choose, i.e., when it has used up the channel capacity mandated for broadcast signal carriage, or determined which of duplicating stations are entitled to carriage priority. ARGUMENTS OF THE PARTIES 9. TKR Cable Company of Elizabeth Petition for ADI Modification. In support of its petition, TKR argues that the application of the four statutory factors regarding market modification supports elimination of Elizabeth, New Jersey from the ADI of WHSE-TV. First, TKR states that it has never historically carried the station on its system. Second, TKR argues that the station has not shown that it provides local service in the form of public interest programming to Elizabeth. According to TKR, the community of Elizabeth is currently underserved because there isn't enough Spanish language programming available to serve the community's almost 40% Hispanic population. Because WHSE-TV's programming is in English, TKR argues that the community's needs are not being met. Moreover, according to TKR, carriage of WHSE-TV makes carriage of a Spanish-language station impossible on the channel position that would be assigned to WHSE-TV. 10. Third, according to TKR, the other must-carry stations in the ADI already carried by the system provide substantial news coverage of issues of concern to Elizabeth and provide coverage of sporting and other events of interest to the community. As an example, TKR notes that one channel serving these needs on its system is Galavision, which provides such programming as news, movies, and sporting events, all in Spanish. In addition, TKR says that Galavision and two other Spanish language stations on its system provide much needed advertising vehicles for Elizabeth's Hispanic merchants. Fourth, TKR argues that because Elizabeth has a large Hispanic population, its viewing patterns are unique and what is already a tiny viewership for the station in Union County, where Elizabeth is located, is rendered even smaller in the community itself. TKR states that the total share for Union County viewing garnered by the station in 1988-1989 was only 2%. In addition, TKR points out that the television listing in the Newark Star Ledger newspaper for April 26, 1995 does not even include WHSE-TV's off-air broadcast channel (68) in its listing. 11. Finally, TKR states that it has already agreed to carry WHSE-TV as the system implements its rebuild. According to TKR, the rebuilt portion of the system will be completed in August, 1995, with completion of the rebuild for the entire system scheduled for the end of 1996. Rebuilding will be implemented at the rate of approximately 1,300 subscribers per month. Thus, beginning in August of 1995, WHSE-TV will be added to the TKR system at the rate of approximately 1,300 subscribers per month. 12. TKR argues that its service offerings will not be disrupted if WHSE-TV is added, along with other new programming, at the time of the rebuild. According to TKR, if the station is added immediately, viewers would be confused by the programming change and substantial viewer complaints would result if the station were to replace more popular programming with WHSE-TV. Thus, TKR argues that if the Commission decides not to exclude Elizabeth from the New York ADI, it should, in the alternative, permit TKR to add WHSE-TV on its rebuild schedule. 13. In opposition to TKR, WHSE-TV contradicts TKR's assertion that it "has never been carried" by the cable system. WHSE-TV states that it was carried on the cable system in Elizabeth from 1987 through 1990. WHSE-TV also adds that subscribers value its programming because other cable systems serving northern New Jersey carry its signal. In addition, WHSE-TV argues that TKR has historically carried many other stations in the New York ADI. Regarding station coverage, WHSE-TV states that its Grade A and Grade B contours both encompass Elizabeth. WHSE-TV also argues that despite the fact that it provides predominantly a home shopping service, it does provide coverage of issues of concern to the local community and that examination of its records of ascertainment and programming conclusively demonstrate its commitment to broadcasting content responsive to those concerns. 14. Moreover, WHSE-TV argues that TKR's viewership claims are contrary to Commission precedent and fundamental First Amendment principles. WHSE-TV states that the Commission has recognized that stations with limited audiences are capable of offering desirable programming and that less weight has been given to the ratings of home shopping stations when considering modification of their must-carry markets. WHSE-TV also states that TKR's claims that the station does not have sufficient viewership or popularity to merit its carriage is contrary to the Commission's concerns that basing mandatory carriage rights on programming popularity raises First Amendment concerns. 15. WHSE-TV also argues that TKR's professed desire to provide Spanish language programming should not interfere with its right to carriage. WHSE-TV argues that TKR's demographic figures refer only to persons of Hispanic origin, not Spanish speakers. WHSE- TV says no proof is offered by TKR to show that these persons speak Spanish or to show that they do not speak English. In addition, WHSE-TV states that TKR fails to note that while WHSE-TV may have low Arbitron ratings in Union County, the same ratings provide data for only one Spanish-language channel, WXTV (Univision), and WHSE-TV garners higher ratings than that station. WHSE-TV also states that TKR may not condition its right to mandatory carriage on completion of TKR's system rebuild. WHSE-TV argues that it is entitled to carriage now and does not have to rely on TKR's promise to comply with the Commission's rules as its schedule permits. 16. In reply, TKR responds that the station was mistaken in asserting that it was carried by the cable system during 1987 through 1990. TKR states that the information contained in the Cable and Television Factbook which indicated that the station was carried during that time period was simply erroneous. With regard to viewership of WHSE-TV, TKR argues that the only reason the station used the 1988-1989 television ratings, which placed its ratings above the only rated Spanish channel, was because the latest 1992-1993 Arbitron data showed that the station had no viewership in the market at all. Moreover, TKR argues that WHSE-TV's public interest programming does not address the needs of Elizabeth residents because it is not Spanish language programming and appears to address issues which are national, rather than local, in scope. Finally, TKR argues that the public interest is ill-served by insisting upon the immediate carriage of a home shopping station with virtually no viewership, rather than TKR's alternative of graduated carriage upon completion of its system's rebuild. 17. WHSE-TV Carriage Complaint. In support of its complaint, WHSE-TV states that, as a full power commercial television broadcast station licensed to Newark, New Jersey, it is entitled to carriage on TKR's cable system, which serves communities located within WHSE- TV's New York ADI. WHSE-TV states that on August 6, 1993, it timely mailed its must- carry election letter to TKR's office in Elizabeth, New Jersey requesting mandatory carriage on Channel 68 of the system. According to WHSE-TV, by letter dated August 23, 1993, TKR responded that it would carry the station; however, it requested that the licensee agree to carriage on Channel 35 or Channel 36. Per telephone conversation between Joe Nigro, the station's Chief Engineer, and Darren P. Belick, TKR's General Manager, WHSE-TV says that it agreed to carriage on Channel 36. Accordingly, a written confirmation was mailed on October 13, 1993 in which WHSE-TV stated that it was the station's understanding that the signal was currently being carried by TKR. WHSE-TV subsequently became aware that TKR was not carrying the station. On February 16, 1995, WHSE-TV notified TKR of its failure to carry the station pursuant to the Commission's rules. WHSE-TV states that TKR did not respond within 30 days of that notification. 18. In opposition to WHSE-TV, TKR reiterates the arguments outlined above in its Petition for Special Relief to modify WHSE-TV's ADI. TKR maintains that WHSE-TV does not meaningfully serve the community of Elizabeth and fails to fulfill the four statutory factors for inclusion within the New York ADI, and must therefore be excluded from it. In reply, WHSE-TV argues that TKR is manipulating the Commission's processes by filing a Petition for Special Relief to exclude Elizabeth from the New York ADI. WHSE-TV states that TKR, by its silence, admits that the station is entitled to mandatory carriage, but seeks delay by filing the petition and simply summarizing its contents in the opposition filed to WHSE-TV's carriage complaint. 19. TKR also filed a Supplement to Opposition to Must-Carry Complaint. TKR argues that WHSE-TV's must-carry complaint was filed more than 17 months late and must be dismissed. TKR notes that no must-carry compliant filed pursuant to 76.61(a) of the Commission's rules will be accepted by the Commission if filed more than 60 days after the event in question which in this case would be denial by the cable operator of a request for carriage or channel contained in the notice required by 76.61(a)(1). According to TKR, it recognizes WHSE-TV's August 6, 1993 letter as a request for carriage or channel position under 76.7(c)(4)(iii) of the rules. According to TKR, its August 23 letter to WHSE-TV rejected WHSE-TV's request for carriage on Channel 68 and offered another channel instead. Thus, TKR states that it denied WHSE-TV's request for carriage on August 23. TKR explains that, as it understands the situation in contract terms, WHSE-TV made an offer, TKR rejected that offer, and TKR made a counteroffer. According to TKR, that counteroffer does not change the fact that it denied WHSE-TV's carriage request. TKR states that because WHSE-TV's carriage request was denied on August 23, 1993, the latest date that WHSE-TV could file its must-carry complaint was 60 days later, on October 22, 1993. Therefore, WHSE-TV's must-carry complaint filed on March 27, 1995 was filed 17 months late. TKR further argues that even if its August 23, 1993 letter did not serve to reject WHSE-TV's carriage request, WHSE-TV failed to file its complaint within 60 days of its failure to respond. As such, TKR states that in such circumstances, cable operators are given 30 days to respond to such a carriage request. TKR points out that thirty days after August 6, 1993 is September 5, 1993. WHSE-TV's complaint would thus have been due 60 days later, on November 4, 1993. Under this interpretation, because WHSE-TV did not file its complaint until March 27, 1995, its filing would thus be 16 and 1/2 months late. 20. In opposition, WHSE-TV explains that it reasonably believed that TKR was carrying the signal of WHSE-TV during the time period in dispute and that is why it did not file a complaint earlier. It says its belief was founded on WHSE-TV's certified letter to TKR dated October 13, 1993 in which WHSE-TV expressly confirmed its understanding (based on telephone conversations between the parties) that TKR was indeed carrying the signal of WHSE-TV on Channel 36 of its system. When WHSE-TV later learned that TKR was not carrying the station, it says that it notified TKR of its failure to carry the station on February 16, 1995 and timely filed the complaint within 60 days of TKR's failure to respond to that letter. 21. In reply, TKR states that WHSE-TV's delay of 17 months in filing its must-carry complaint is not excused by WHSE-TV's alleged assumption that the station was already being carried. TKR argues that WHSE-TV was unreasonable in believing that the station was being carried by TKR during any of the period from August 1993 through March 1995. According to TKR, there was never any indication given to WHSE-TV by the company, or any of its representatives, that it was carrying the station. TKR says that on several occasions after the October 13, 1993 letter, but prior to the filing of WHSE-TV's complaint, TKR's General Manager, Mr. Belick, personally disabused WHSE-TV's representatives of any notion that WHSE-TV was being carried on the system. In addition, TKR contends that in the October 12, 1993 telephone conversation referenced by the October 13, 1993 letter, Mr. Nigro, the station's Chief Engineer, consented to holding off on WHSE-TV's carriage demands with the understanding that TKR would begin carrying WHSE-TV as TKR's system rebuild is implemented. 22. In response to TKR's reply, WHSE-TV submits a declaration from Mr. Nigro referencing the October 12, 1993 conversation, in which he states that he has no recollection of consenting to TKR's delaying carriage of WHSE-TV until a rebuild of its cable system was complete. In addition, WHSE-TV states in the declaration that he could not have possibly consented to delayed carriage because it was beyond the scope of his job authority. WHSE-TV states that after learning definitely that TKR was not carrying its signal, it notified the system in writing on February 16, 1995 of its perceived unlawful action. According to another declaration from William Roller, the General Manager of the station, it was only after a viewer complaint in May 1994 that the question of non-carriage arose. According to Mr. Roller, his phone calls to TKR about the issue were not returned until October 28, 1994. During that phone call to TKR, Mr. Roller was informed that WHSE-TV's signal was not being carried but that it would be upon rebuild which was to be completed shortly. Mr. Roller called again on December 13 and twice again on December 14, 1994 to ascertain the completion date for the rebuild. At that time, Mr. Roller was informed that the signal would not be carried until sometime in 1996. Mr. Roller then responded with the February 16, 1995 letter. TKR failed to respond to the letter within 30 days and WHSE-TV argues that it timely filed its complaint on March 27, 1995, well within the 60 days from the date on which TKR's response was due. ANALYSIS AND DECISION 23. Because TKR has not provided sufficiently particularized and persuasive evidence that the communities in question are not part of WHSE-TV's market, based on the four statutory or any other relevant factors, its petition must be denied. As a preliminary matter, it must be reiterated that the ADI market change process incorporated into the Communications Act is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. Here the arguments presented by the petitioner are not such as assist in resolving whether a change is appropriate -- whether particular communities should be included or excluded from the market -- but rather appear directed more generally to whether carriage of the signal of WHSE-TV can be avoided because of its program content regardless of the specific location of the cable communities. In this regard, TKR's request is similar to requests previously denied involving similar issues. 24. With respect to the four statutory criteria set out in the 1992 Cable Act, we conclude that the petitioner has failed to meet the burden of proof necessary to obtain a waiver of our rules. With regard to historical carriage patterns, TKR states that it has never historically carried the station on its system. WHSE-TV states that this is incorrect and that the station was carried on the cable system in Elizabeth from 1987 through 1990. In response, TKR states that the Cable and Television Factbook was in error when this information was printed because the station was simply never carried on its system. Despite this dispute, we note in this instance that the 1992 Cable Act was adopted, in part, to cure past discriminatory signal carriage practices. We believe that while WHSE-TV may not have a history of carriage on TKR's system, this factor should not be given great weight in these circumstances because to interpret the Act otherwise would, in effect, prevent weaker or newer stations that cable systems had previously declined to carry, from ever being carried. 25. We also find that TKR has failed to demonstrate that WHSE-TV does not provide local coverage or service. The fact that WHSE-TV's Grade A and Grade B contours both encompass Elizabeth is persuasive evidence that it provides service to the community. The Commission has noted the importance of signal coverage in determining local service. While we recognize that WHSE-TV's local programming is limited, it does to some extent help to support its claim of local service in addition to the station's contour coverage. As we have previously stated, however, when it comes to resolving signal carriage complaints or modifying television markets under our special relief process, we are not in a position to weigh the merits of a particular station's format. 26. We also find unpersuasive TKR's argument that the community of Elizabeth is currently underserved because WHSE-TV's programming is in English and there isn't enough Spanish language programming available to serve the community's almost 40% Hispanic population. We find that TKR's arguments regarding programming diversity are irrelevant with regard to the issue of WHSE-TV's carriage rights. TKR states that it currently carries three Spanish language channels out of a total of 38 activated channels. If TKR wishes to provide additional Spanish language programming, even if it wishes to do so absent any demographic data that the community of Elizabeth is 40% Spanish-speaking, as opposed to being just of Hispanic origin, it may so proceed. If it is not feasible at the present time, TKR may wish to incorporate additional Spanish language programming into its rebuild. In any event, we believe that TKR's professed desire to provide Spanish language programming should not interfere with WHSE-TV's right to carriage. 27. We also find unpersuasive TKR's arguments regarding WHSE-TV's low ratings as a reason to deny the station carriage rights. We recognize that home shopping stations, like religious or foreign language stations ("specialty stations"), are capable of "offer[ing] desirable diversity of programming . . . ," yet typically attract limited audiences. We continue to believe, as the Commission did in its specialty station rules, that the fact that such stations attract a smaller audience share must be taken into account in determining the equities concerning a station's right to cable carriage. The Commission has more recently affirmed that home shopping stations may serve the public interest and are thus entitled to the benefits of the cable carriage rules. 28. With respect to the third statutory factor, we find TKR's argument that other stations that it carries provide substantial benefits to its subscribers does not justify exclusion of its system from the market area. TKR has not sufficiently demonstrated why it is necessary to remove itself from its own ADI, vis-a-vis WHSE-TV, yet remain in the same market with regard to the station's competitors. As WHSE-TV notes, TKR carries many other stations in the New York ADI, most notably WNJU of Newark, New Jersey, and WXTV of nearby Paterson, New Jersey. We find that TKR's petition is inconsistent with Congressional intent, which clearly states that the market modification policy was not provided as a means for cable systems to avoid their must-carry obligations. This is of particular significance where TKR is carrying many stations from the New York ADI, including one station located in the same city of license. 29. We next turn to WHSE-TV's carriage complaint against TKR. Consistent with the conclusion above with respect to the ADI market modification, we will grant WHSE-TV's carriage complaint against TKR. We begin by noting that 614(a) of the Communications Act of 1934 states that each cable operator shall carry the signals of local commercial television stations. A local commercial television station is defined as any full power broadcast television station that is within the same television market as the cable system. In this instance, TKR, in opposing WHSE-TV's carriage complaint, repeated the arguments contained in its ADI modification request. TKR argued that WHSE-TV does not meaningfully serve the community of Elizabeth and fails to fulfill the four statutory factors for inclusion within the New York ADI, and must therefore be excluded from it. Contrary to TKR's arguments, however, we note that factors such as whether a station has a history of carriage, provides local programming, or has significant viewership in cable and noncable homes may be relevant to an ADI modification request, but are not relevant in determining must-carry status. In addition, the fact that TKR may have to drop popular television broadcast stations or satellite delivered programming services that do not have mandatory carriage rights is not grounds for further delay of WHSE-TV's right to carriage. Rather, a cable operator is required to carry the signals of a commercial station unless that station fails to deliver a good quality signal to the cable system's principal headend; the station's signal substantially duplicates the signal of another local commercial station which is carried on the system; or the cable operator (with a system of more than 12 activated channels) has already allocated up to one-third of the aggregate number of its usable activated channels to other local commercial stations. 30. Moreover, we find no merit in TKR's argument that WHSE-TV's must-carry complaint was filed 17 months late and must be dismissed. As agreed between the parties, WHSE-TV's August 6, 1993 letter to the General Manager of TKR serves as both a must-carry election and a request for carriage. As such, we do not believe that TKR's August 23 letter to WHSE-TV served as a rejection letter for carriage of WHSE-TV on its system. TKR's August 23 letter acknowledges WHSE-TV's must-carry request and states that, due to technical difficulties, carriage on Channel 68 could not be offered; however, TKR's General Manager asks the station to accept an offer for carriage on Channel 35 or 36. We cannot construe this letter, as TKR requests, to be interpreted as a rejection letter. 31. We accept WHSE-TV's explanation that it reasonably believed that TKR was carrying the signal of WHSE-TV during the time period in question. It is clear from WHSE-TV's certified confirmation letter to TKR on October 13, 1993, that it believed that it was being carried on Channel 36 of TKR's system. We do not accept TKR's argument that in an October 12, 1993 telephone conversation allegedly referenced by the October 13, 1993 letter, the station's Chief Engineer consented to holding off on WHSE-TV's carriage with the understanding that carriage may be implemented upon rebuild. First, we note that while there is a telephone conversation referenced in the October 13 letter, it does not mention a specific date and it does not reference such an understanding between the parties. We have however, an affidavit, attached to TKR's Reply to Opposition to its Supplement, from the General Manager of TKR, attesting to an alleged October 12 conversation where it is his recollection that WHSE-TV consented to holding off carriage demands pending rebuild. We also have a declaration from the other party, the Chief Engineer of the station, acknowledging the conversation, but stating that he had no recollection whatsoever of any request during that conversation to hold off on TKR's carriage of the station pending a rebuild of the system. In addition, the Chief Engineer states that he could not have consented to such a request because it exceeded the scope of his authority. Because of the contradictory nature of the telephone conversations in the affidavits on this point, we conclude that we cannot rely on alleged conversations between the parties in our determination of this matter. Our rules also reference that all matters regarding carriage disputes should be reduced to writing. We believe that WHSE-TV had a right to rely on its confirmation letter of October 13, 1993 wherein it clearly stated that it believed that the station was being carried on Channel 36 of TKR's system. If WHSE-TV's October 13, 1993 letter was in error, TKR should have responded in writing to contradict that understanding. 32. Moreover, we note that according to WHSE-TV, it was not made aware of the possibility of non-carriage of the station until a viewer compliant was received in May of 1994. According to WHSE-TV, such complaints are commonplace and often are caused by outages and changes in channel positioning. WHSE-TV states that even during this time it believed the signal was being carried and submits internal must-carry reports and memoranda in order to document this claim. Nonetheless, in order to investigate this report of non-carriage, WHSE-TV's General Manager states that he placed a number of telephone calls to TKR's General Manager between May and August of 1994. It was not until these calls were returned on October 28, 1994 that WHSE-TV's General Manager learned that the station was not being carried. While WHSE-TV claims that it believed that the station was being carried during this time period, it nonetheless made an effort to contact TKR regarding the possibility that the station may not have been carried since May of 1994. Because TKR did not contact WHSE-TV during this time period, and there was an effort on WHSE-TV's part to clarify the lack of carriage matter, we believe that it is reasonable to construe this time period as a period of renewed negotiations between the two parties. Moreover, we believe that negotiations continued after the October 28 conversation when WHSE-TV's General Manager agreed to wait for carriage because rebuild would be completed shortly. As such, we believe that when WHSE-TV later learned, with certainty, that the station was not being carried, and would not be carried until 1996, it properly notified TKR regarding such failure of carriage on February 16, 1995. Upon TKR's failure to respond to that letter, it timely filed its carriage complaint. Considering our determination herein, we see no reason to discuss the possibility of carriage upon completion of TKR's rebuild. ORDER 33. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended (47 U.S.C. 534) and 76.59 of the Commission's Rules (47 C.F.R. 76.59), That the captioned petition (CSR-4524-A), filed April 27, 1995, by TKR Cable Company of Elizabeth IS DENIED. 34. IT IS FURTHER ORDERED, that the complaint filed March 27, 1995, on behalf of SKNJ Broadcasting Partnership, licensee of WHSE-TV (CSR-4493-M), IS GRANTED. 35. WHSE-TV shall notify TKR in writing of its carriage and channel position elections (76.56, 76.57, 76.64(f) of the Commission's Rules) within thirty (30) days of the release date of this Memorandum Opinion and Order. Its petition having been denied, TKR shall comply with the applicable provision of 614 of the Communications Act and with the Commission's associated rules within sixty (60) days of such notification. 36. This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau