NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** 1.$//Grant of KLTJ's must carry complaint DA 96-306//$ $/300.534 Carriage of local commercial television signals/$ $/76.7 Must-carry complaint procedures/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 96-306 In re Complaint of: ) ) GO, Inc. (KLTJ(TV)) ) CSR-4613-M Galveston, TX ) ) For Carriage on Prime Cable of Fort Bend ) and ) Prime Cable Income Partners, L.P. ) MEMORANDUM OPINION AND ORDER Adopted: March 4, 1996 Released: March 20, 1996 By the Deputy Chief, Cable Services Bureau: 1. GO Inc., licensee of television station KLTJ(TV)(Ch. 22), Galveston, Texas, filed a must carry complaint against Prime Cable of Fort Bend, L.P. and Prime Cable Income Partners, L.P., asking the Commission to enforce its signal carriage rights on the operator's cable systems serving several communities in the Houston television market. Prime Cable filed an opposition to this must carry complaint to which KLTJ(TV) filed a reply. 2. KLTJ(TV) states that the instant filing arises out of Prime Cable's refusal to carry the station's signal in the above referenced communities notwithstanding KLTJ(TV)'s must carry status and despite KLTJ(TV)'s August 7, 1995 letter request for carriage. KLTJ(TV) recites the following factual information pertinent to its must carry complaint: (1) the station is licensed to Galveston, Texas, which is located approximately 45 miles southeast of Houston (center-to-center) in Brazoria County; (2) the station operates with maximum ERP of 5,000 kilowatts with an antenna height above average terrain of 566 meters from a transmitter site approximately 30 miles south of Houston; and (3) the station places a predicted City Grade contour over virtually all of the City of Houston. 3. KLTJ(TV) explains that Prime Cable, in an April 20, 1993 correspondence, advised KLTJ(TV) of the location of its principal headends of its Houston ADI systems. In that same letter, Prime Cable questioned KLTJ(TV)'s status as a noncommercial television station and asked for clarification with regard to this matter. KLTJ(TV) stated that it believed it was a noncommercial television station but even if it were determined that it did not qualify for such status, it would be eligible for carriage as a commercial television station; KLTJ(TV) then asked what the operator's intentions were in light of this information. According to KLTJ(TV), Prime Cable did not respond to the station's request either on May 3, 1993 or later and that KLTJ(TV) did not pursue the matter further at that time since it would have been considered distant station for copyright purposes and did not want to pay any indemnification costs arising from carriage on Prime Cable's systems. The station, however, renewed its must carry request by letter on August 7, 1995 after recognizing that Congress eliminated the copyright indemnification requirement through a 1994 amendment to Section 111 of the Copyright Act. KLTJ(TV) states that Prime Cable has not responded to that letter and has not challenged the station's legal right to carriage. KLTJ(TV) asserts that Prime Cable's failure to carry its signal is the specific event giving rise to this complaint, which is being filed in a timely fashion. KLTJ(TV) concludes by stating that Prime Cable's refusal to carry its signal is unlawful and that the operator's lack of good faith warrants sanctions. 4. Prime Cable argues that it opposes KLTJ(TV)'s must carry complaint for the reasons set forth in the petition for special relief filed by Time Warner Cable of Houston, Texas on September 6, 1995 in CSR-4586-A; that petition sought to exclude KLTJ from the Houston ADI for must carry purposes based upon the four statutory criteria set for in Section 614 of the 1992 Cable Act. Prime Cable separately asserts that the station is not entitled to carriage because there are several television stations licensed to communities in the Houston ADI which provide local programming and are geographically closer to Houston than Galveston. Prime Cable also argues that even though KLTJ(TV)'s Grade B contour covers most of the Houston area, this point should be ignored since the station does not provide programming of local interest. Finally, Prime Cable submits that KLTJ(TV) has no discernible ratings in the Houston market and is not significantly viewed in any Texas county. 5. KLTJ(TV) replies to Prime Cable's assertions by stating that the speciousness of Time Warner's arguments, with regard to its ADI modification petition, were fully documented in KLTJ(TV)'s October 4, 1995 "Opposition to Petition for Special Relief." The station states that Prime Cable's Grade B argument is only an "irrelevant diversion" because KLTJ(TV) places a City Grade signal over virtually the entire city of Houston including the communities served by the operator. KLTJ(TV) also argues that Prime Cable has not responded to its request for sanctions and thus, sub silentio, concedes the legitimacy of the station's position. 6. We will grant KLTJ(TV)'s must carry complaint. As a preliminary matter, we note that KLTJ(TV) is licensed as a noncommercial educational television station ("NCE"). However, KLTJ(TV) is not considered a "qualified" NCE station under Section 615(l)(1) of the 1992 Cable Act or Section 76.55(a) of the Commission's rules because it is not eligible to receive a community service grant from the Corporation for Public Broadcasting. Nevertheless, we have held that non-qualified NCEs should be treated as default commercial stations under the must carry rules. 7. In a separate Memorandum Opinion and Order released today, we deny Time Warner's request to modify KLTJ(TV)'s television market for must carry purposes. Thus, Prime Cable's arguments against carriage of KLTJ(TV), which were largely premised upon Time Warner's reasoning, are rejected as well. Prime Cable also did not demonstrate that KLTJ(TV) is not a qualified local commercial television signal in its opposition to the must carry complaint; the operator, therefore, is required to carry the station's signal on its Houston-area cable systems. Notwithstanding this determination, we deny KLTJ(TV)'s request to impose sanctions against Prime Cable for failure to carry the station's signal; KLTJ(TV) has not met the burden under Section 503(b)(1)(B) of showing that the operator's actions were willful and repeated. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, that the petition (CSR-4613-M) filed November 6, 1995, by GO, Inc., IS GRANTED. Prime Cable is therefore required to carry the signal of KLTJ(TV) on its systems serving the aforementioned communities. GO, Inc. shall notify Prime Cable 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. Prime Cable shall come into compliance with the applicable rules within sixty (60) days of such notification. 9. These actions are taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau