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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//MO&O denying KLXV carriage by Viacom Cable , DA 96-261//$ $/76.7 Special relief and must-carry complaint procedures./$ $/76.61 Disputes concerning carriage./$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 DA 96-261 In re: ) ) ) Complaint of Paxson San Jose ) CSR 4629-M License, Inc. against Viacom Cable ) ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: February 28, 1996 Released: March 7, 1996 By the Deputy Chief, Cable Services Bureau: 1. Paxson San Jose License, Inc., licensee of commercial television broadcast station KLXV (channel 65), San Jose, California, has requested that the Commission order Viacom Cable ("Viacom") to commence carriage of KLXV on its Pittsburg, Napa, Healdsburg and Marin, California cable systems pursuant to 76.7 and 76.61 of the Commission's Rules. Viacom filed an opposition to this complaint, to which KLXV has replied. 2. KLXV explains that on May 3, 1993, it wrote a letter to Viacom requesting carriage on the operator's Pittsburg, Napa and Marin systems. On May 4, 1993, KLXV states that it wrote a separate letter to Viacom requesting carriage on the operator's Healdsburg system. However, on April 30, 1993, Viacom notified KLXV by letter that the station "may not be entitled to carriage" because KLXV did not deliver a good quality signal to the systems' headends. The letter from the Healdsburg system also stated that KLXV may not be entitled to carriage because such action would result in increased copyright liability for that system. 3. KLXV explains that it improved the quality of its signal shortly after it was purchased by Paxson Communications Corp in June of 1995. KLXV then wrote to Viacom on August 15, 1995, stating that the station could provide a good quality signal to the Marin, Pittsburg and Napa systems' headends and reiterated its carriage request on these systems. KLXV wrote to the Healdsburg system on August 23, 1995, stating that the station could provide a good quality signal to that system's headend and requested carriage on that system as well. KLXV stated further that if its signal was inadequate at any of Viacom's headends, it would provide the equipment necessary to improve its signal. On September 29, 1995, Viacom declined the requests to test the station's signal at the systems' principal headends because KLXV did not file a must-carry complaint with the Commission within sixty days from May 3, 1993, the date KLXV was initially notified that it failed to provide a good quality signal to the systems' headends. Viacom also stated that must-carry disputes must "be raised at the outset of the election period." 4. Viacom asserts that it notified KLXV on April 30, 1993, that it failed to meet the Commission's standards for delivery of a good quality signal to each of its systems' headends. Viacom contends that it heard nothing further from KLXV until August 15, 1995, when the station again requested carriage on the Marin and Pittsburg and Napa systems and on August 23, 1995, when the station again requested carriage on the Healdsburg system. On September 29, 1995, Viacom advised KLXV that the requests for carriage were untimely and declined to consider the requests further until the next must carry/retransmission consent election period. Viacom therefore requests that the Commission dismiss KLXV's complaint as untimely filed. 5. In reply, KLXV argues that, contrary to Viacom's assertion, the station did act to challenge Viacom's allegations of inadequate signal quality. KLXV states that shortly after Paxson purchased the station, it took measures to improve the station's signal quality; by August, 1995, the station's signal was improved so that a good quality signal could be provided to the systems' headends and it therefore requested carriage on Viacom's systems at that time. KLXV concludes by claiming that its must-carry complaint with the Commission is timely because it was filed within 60 days of the date of Viacom's September 29, 1995 letter denying carriage for KLXV on the requested systems. 6. For the reasons described below, we will dismiss KLXV's must-carry complaint. We view KLXV's complaint as untimely, though for a different reason than the one offered by Viacom. According to Viacom, KLXV failed to file a complaint within the mandated 60 day period after the station was informed that it would not be carried. Viacom premises its timeliness argument on the allegation that its letter of April 30, 1993 constituted a refusal of carriage. We believe that this characterization is legally untenable because Viacom's letter was required by our rules. By May 3, 1993, cable operators were required to notify all local television stations that might not be entitled to carriage because of signal quality problems or possible increased copyright liability to the cable system. 7. In this instance, a broadcast station is under no obligation to respond to such a letter to preserve its must-carry rights. Rather, the mandatory signal carriage complaint process commences when the station formally requests carriage on a cable operator's system. KLXV did just this through its original request for carriage on Viacom's systems in May, 1993. Having requested carriage on Viacom's system, KLXV was required to file a complaint with the Commission when Viacom failed to respond to the request after 30 days. KLXV did not file a complaint at that time and took no further steps to preserve its must carry rights. Moreover, after requesting carriage on Viacom's systems in May, 1993, KLXV did not communicate with Viacom again until the station was sold to Paxson Communications, over two years later. Shortly after the purchase, KLXV improved the quality of its signal and again requested carriage on Viacom's systems. In those August, 1995 carriage request letters, KLXV states "[i]n the past, your system refused to carry . . . KLXV"; this statement indicates that the new licensees were well aware of the prior licensee's carriage request and Viacom's letters concerning signal quality. Contrary to KLXV's claim, the sale of the station to Paxson did not start a new must carry election cycle as it assumed control of the station subject to actions, or in this instance, non-actions, taken by the prior licensees. Here, the previous licensees failed to preserve the station's must carry rights and Paxson is bound by that course of action. 8. Our rules setting forth must carry complaint procedures are quite clear. "No must carry complaint filed pursuant to 76.61 will be accepted by the Commission if filed more than sixty (60) days after the . . . denial by a cable television system operator of a request for carriage or the failure [of the operator] to respond to such notice within [30 days] . . .." KLXV's complaint was filed on November 28, 1995, more than 30 months after it had originally requested carriage on Viacom's systems. Moreover, although KLXV included the August, 1995 letters sent to Viacom requesting carriage on its systems, it did not include the earlier, May, 1993, carriage request letters. Again our rules are straightforward in this matter: "Must carry complaints . . . shall be accompanied by the notice from the complainant to the cable television system operator . . .." KLXV's complaint must therefore be dismissed. ORDERING CLAUSE 9. Accordingly, IT IS ORDERED, that the complaint (CSR-4629-M) filed November 28, 1995, by Paxson San Jose License, Inc. IS DISMISSED as incomplete and untimely filed. 10. This action is taken pursuant to authority delegated by  0.312 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau