******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) Complaint of Sunbelt Television, Inc.) CSR-4856-M against Marks CableVision ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: February 24, 1997 Released: February 27, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Sunbelt Television, Inc., licensee of Television Broadcast Station KHIZ (Ind., Channel 64), Barstow, California, has filed a must-carry complaint requesting that the Commission order Marks CableVision ("Marks"), operator of a cable television system serving San Bernardino and Rancho Cucamonga, California, to commence carriage of KHIZ. Marks has opposed KHIZ' petition, and KHIZ has replied. BACKGROUND 2. Pursuant to Section 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. ARGUMENTS OF THE PARTIES 3. KHIZ states that it initially requested carriage on Marks' system in a letter dated September 28, 1996, which Marks received on October 3, 1996. On October 16, 1996, KHIZ supplemented its letter to correct a typographical error and to detail the station's planned signal delivery system. Marks replied in a letter dated October 22, 1996, which KHIZ received on October 28, 1996, denying KHIZ' carriage request, due to: (1) poor signal quality, (2) untimeliness, and (3) references in the request to a cable operator other than Marks. KHIZ filed the instant complaint on October 30, 1996, well within the sixty-day time limit. 4. In support of its request, KHIZ states that it is a qualified local commercial television station with respect to Marks. KHIZ notes that both San Bernardino and Rancho Cucamonga are located in the Los Angeles ADI, of which Barstow, California -- KHIZ' city of license -- is a part. KHIZ further notes that it is not considered a distant signal under the cable compulsory license with respect to Marks, and states that it is able to provide a good quality signal to Marks. KHIZ states that Marks' system has 64 activated channels (63 in Rancho Cucamonga), and that the system is only carrying 14 qualified local commercial television stations. Because the system is required to carry up to 21 qualified local commercial television stations, KHIZ argues that Marks is required to carry the station. KHIZ contends that Marks' cited reasons for denying carriage are without merit. KHIZ states that it is capable of providing Marks with a good quality signal by means of a TV relay from KHIZ' main transmitter in Victorville, California to an existing tower site on Paivika Peak, from which the station's signal will be fed to Mark's headend. KHIZ states that it is willing bear the cost of acquiring and installing the necessary equipment to implement this signal delivery system. Although Marks claims that KHIZ' September 28, 1996 letter was "predated" and not sent before an "October 1, 1996 deadline," KHIZ notes that this date refers only to a deadline for electing retransmission consent status, and has no bearing on KHIZ' assertion of must-carry rights, which may be asserted at any time by a station enjoying must-carry status, citing the Commission's Clarification Order. Finally, KHIZ maintains that Marks' contention that KHIZ' typographical errors mentioning Comcast twice in the letter to Marks' Rancho Cucamonga system relieves Marks of its must-carry obligations is frivolous. KHIZ notes that Marks is the only cable operator serving Rancho Cucamonga, and the remainder of the letter consistently cited Marks as the intended recipient, and thus Marks could have been under no misapprehension as to the letter's intent, particularly once the error was subsequently corrected. 5. In opposition to KHIZ, Marks argues that KHIZ' signal delivery system is not yet in place and may not ever be built. Marks also argues that should the proposed delivery system require extending the height of Marks' headend tower, local zoning restrictions do not permit this. Marks also suggests that it is not likely that a company would decide to construct an elaborate delivery system given the possibility of the must-carry rules being overturned. Marks also argues that it should not have to delete any of its existing program services to accommodate KHIZ, which would cause subscriber dissatisfaction that is particularly of concern to Marks because Marks faces competition from DBS and MMDS services that are not subject to must-carry requirements. In addition, Marks asserts that KHIZ does not provide programming to meet the needs and interests of San Bernardino and Rancho Cucamonga residents. Marks observes that KHIZ broadcasts mostly syndicated programming -- duplicative of that broadcast by other Los Angeles ADI stations that Marks carries, which is likely to be subject to deletion pursuant to the Commission's syndicated exclusivity rules. Marks also notes that KHIZ broadcasts other commercial programming such as home shopping, with little if any original or live programming scheduled. 6. In reply to Marks, KHIZ notes that its signal delivery system is already operational and provides a signal strength of -41 dBm to Marks' headend, and that Marks has failed to accept KHIZ' invitation to test the system. KHIZ further notes that it has purchased a Scala PR-TV-64/50 antenna for use by Marks at its headend to receive the station's signal. KHIZ states that Marks provides no support for its allegation that the station does not serve the needs and interests of San Bernardino and Rancho Cucamonga residents, both of which cities are encompassed by KHIZ' Grade B contour. KHIZ notes that in ADI modification proceedings, Grade B coverage suffices to demonstrate service to a community, citing Greater Worcester Cablevision, Inc. KHIZ states that the must-carry rules are statutory, and cannot be waived by the Commission on grounds of feared competition or syndicated exclusivity concerns, and further notes that in view of the proximity of the communities Marks serves to KHIZ' city of license, KHIZ is likely to enjoy syndicated exclusivity priority over the Los Angeles licensees. Accordingly, KHIZ argues that it is entitled to a Commission order requiring Marks to commence carriage of the station once KHIZ installs and activates the necessary equipment to provide a good quality signal. DISCUSSION 7. We will grant KHIZ' complaint. Under the Commission's must-carry rules, cable operators have the burden of showing that a commercial station that is located in the same television market is not entitled to carriage. One method of doing so is for a cable operator to establish that a subject television station's signal, which would otherwise be entitled to carriage, does not provide a good quality signal to a cable system's principal headend. Should a station fail to provide the requisite over-the-air signal quality to a cable system's principal headend, its carriage nevertheless may not be foreclosed. Under our rules, a station may provide a cable operator with specialized equipment, at the station's cost, which will improve the station's signal to an acceptable quality at a cable system's principal headend. 8. In this instance, KHIZ recognizes its need to deliver a signal of sufficient quality and has, at its cost, established a system to deliver a good quality signal to Marks and has purchased the necessary receive antenna to be provided to Marks. Marks' remaining objections are equally unpersuasive. Although Marks suggests that the must-carry rules could be found to be unconstitutional in the Turner case, while that case is pending, the must-carry provisions of the 1992 Cable Act remain in effect, as do the Commission's must-carry rules. The fact that KHIZ' programming may implicate the syndicated exclusivity rules or the duplicating station exemption of the must-carry rules, to the extent this is relevant, appears in this case to suggest that KHIZ is the local station to Marks' system which enjoys priority of rights over more distant stations. With respect to KHIZ' status as a home shopping station, we note that the Commission has found such stations to qualify as local commercial television stations for purposes of cable carriage. Finally, with respect to Marks' objections as stated in its letter to KHIZ of October 22, 1996, we note that KHIZ is correct in its statement that it may assert its rights to carriage at any time. We agree with KHIZ that Marks' claim that it need not carry the station because of two typographical errors is frivolous. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C. 534), that the petition filed by Sunbelt Television, Inc. IS GRANTED. Marks CableVision IS ORDERED to commence carriage of television station KHIZ sixty (60) days after KHIZ installs the equipment necessary to provide a good quality signal to Marks' headend. 10. This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau