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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//Denial of Urban Broadcasting Corporation, Inc.'s, must-carry petition, DA 96-273 //$ $?76.7 Special Relief and must-carry complaint procedures/$ $/Carriage of local commercial television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 DA 96-273 In re: ) ) ) Complaint of ) Urban Broadcasting Corporation ) CSR-4611-M Against ) Prestige Cable TV, Inc. ) ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: February 29, 1996 Released: March 11, 1996 By the Cable Services Bureau: INTRODUCTION 1. On October 30, 1995, Urban Broadcasting Corporation, ("Urban"), licensee of television broadcast station WTMW-TV (Channel 14), Arlington, Virginia, filed the captioned complaint (CSR-4611-M) requesting mandatory carriage of its signal on cable systems operated by Prestige Cable TV, Inc. ("Prestige Cable") in the communities of Spotsylvania, Stafford County, and Warrenton, Virginia (the "Communities"). On December 4, 1995, Prestige Cable filed an opposition to the complaint. BACKGROUND 2. Pursuant to 614 of the Communications 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. SUMMARY OF PLEADINGS 3. In support of its complaint, Urban states that television broadcast station WTMW is a full-power local commercial television station and that it delivers the minimum signal strength required under Section 76.55(c)(3) of our rules. Urban further states that Prestige Cable's system has more than 300 subscribers and more than 12 activated channels but Prestige Cable has not fulfilled the requirement to provide one-third of its channel space to local television stations. Urban argues that its entitlement to carriage is not in dispute as evidenced by the fact that Prestige Cable commenced carriage of WTMW in the Communities following Urban's initial carriage request contained in two letters to Prestige Cable, both of which are dated August 13, 1993. 4. As a condition of carriage, Prestige Cable required Urban to enter into an indemnification agreement to cover the costs of any distant signal copyright liability the Prestige Cable might incur as a result of carrying WTMW-TV. Urban states that while it provided the required indemnification agreement, it believed that it was not subject to any copyright liability based on a separate agreement between Urban and the Home Shopping Club, Inc. ("HSC"), the copyright holder of Urban's programming broadcast on WTMW-TV. Urban states that that agreement named all cable systems in WTMW-TV's ADI as third-party beneficiaries and gave those systems a license to retransmit HSC programming. In April, 1994, pursuant to the indemnification agreements, Prestige Cable began demanding indemnification from Urban for copyright liability attributable to Prestige Cable's carriage of WTMW-TV. Urban, based on its agreement with HSC, refused to indemnify Prestige Cable. Subsequently, on June 30, 1994, Prestige Cable stopped carrying WTMW-TV on its cable systems. 5. Urban asserts that enactment of the Satellite Home Viewer Act of 1994 ("Satellite Act") obviated the need to provide indemnification of copyright liability to cable operators by local broadcasters. In essence, Urban argues that the issue is now moot. After enactment of the legislation, Urban sent several letters to Prestige Cable requesting recommencement of carriage for WTMW-TV in the Communities. On August 30, 1995, Prestige Cable stated that it would not carry WTMW-TV until Urban reimbursed Prestige Cable for past copyright liability. 6. In its opposition, Prestige Cable argues that Urban's complaint should be dismissed on procedural grounds. Prestige Cable states that it provided written notification to Urban that, during the period July 1 through December 31, 1993, Prestige Cable incurred over $67,000 in copyright fees due to carriage of WTMW-TV on its Spotsylvania and Warrenton systems. Prestige Cable further states that Urban never responded to its request for reimbursement of those fees and that, as a result, Prestige Cable discontinued carriage of WTMW-TV effective June 30, 1994. As a result, Prestige Cable concludes that Urban's complaint for carriage was untimely filed because it was not filed within the 60-day statute of limitations contained in Section 76.7(c)(4)(iii) of our rules. According to Prestige Cable, the event which should have triggered Urban's complaint was when WTMW-TV was dropped from Prestige Cable's systems on June 30, 1995. If, as Prestige Cable alleges, the triggering event occurred on June 30, 1995, then Urban would have been required to file its complaint no later than September 30, 1995. Further, Prestige Cable asserts that Urban did not preserve its legal rights after Prestige Cable discontinued carriage of WTMW-TV by notifying Prestige Cable that Urban believed that such an act would violate the 1992 Cable Act. 7. In the alternative, Prestige Cable argues that passage of the Satellite Act is inapposite in this case because of the untimeliness of Urban's complaint. Prestige Cable asserts that Urban's complaint was filed more than eight months after its request for recommencement of WTMW-TV on Prestige Cable's systems which occurred on February 2, 1995. Prestige Cable further asserts that our rules provide a cable operator with 30 days within which to respond to a request for carriage and, after expiration of that period of time, the 60-day period within which broadcasters may file a complaint with the Commission begins to run. Prestige Cable argues that given those time frames, Urban should have filed its complaint no later than May 9, 1995. Therefore, Prestige Cable requests that we dismiss Urban's complaint as untimely. DISCUSSION 8. We are persuaded by the arguments raised by Prestige Cable in its opposition with regard to the timeliness of Urban's complaint. Under Section 76.7(c)(4)(iii) of our rules we state, in relevant part, that "[m]ust-carry complaints filed pursuant to  76.61(a) ... should affirmatively state the specific event upon which the complaint is based, and shall establish that the complaint is being filed within sixty (60) days of such specific event. With respect to such must-carry complaint filed pursuant to 76.61(a), the specific event shall be ...[t]he denial by a cable television system operator of a request for carriage .. or [t]he failure to respond to such notice within the time period allowed by 76.61(a)(2)." Prestige Cable argues that the specific event triggering the 60-day complaint window is its discontinuance of carriage of WTMW-TV, which occurred on June 30, 1994 or, in the alternative, its failure to respond to Urban's first request, dated February 2, 1995, for recommencement of carriage following passage of the Satellite Act. We find that in either case, Urban's complaint is untimely. By letter dated May 9, 1994, Prestige Cable notified Urban that, with regard to carriage of WTMW-TV, "we must have letters of credit to cover expected copyright charges if you want us to continue carrying WTMW after June 30, 1994." Urban never responded to Prestige Cable's letter and, as stated above, Prestige Cable discontinued carriage. Prestige Cable's action is considered a "triggering event" which, under our rules, starts the time running within which to file a complaint. Urban, therefore, should have filed its complaint by September 30, 1994, not thirteen months later. 9. Prestige Cable's discontinuance of carriage was based upon a dispute with Urban involving the issue of indemnification of copyright liability. Urban has stated that, even without considering the impact of the Satellite Act, its programming provided to Prestige Cable was not subject to copyright liability. Urban, however, could have reasonably believed that the modification of the definition of "local service area" contained in the Satellite Act finally settled its ongoing dispute with Prestige Cable on this issue. Nevertheless, Prestige Cable's failure to respond to Urban's renewed request for carriage effectively denied that request and, arguably, provided another triggering event. Urban filed its complaint on October 30, 1995, seven months after Prestige Cable's failure to respond and five months after the statute of limitations for Urban's complaint had tolled. Accordingly, whether the triggering event is considered to be Prestige Cable's discontinuance of carriage or to be its failure to respond, Urban's complaint is untimely and must be dismissed. ORDER 10. Accordingly, IT IS ORDERED, that the petition (CSR-4611-M) filed October 30, 1995 by Urban Broadcasting Corporation IS DISMISSED as untimely filed. 11. 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