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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 Priority Communications ) CSR-4875-M Group against InterMedia Partners ) Group ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 18, 1997 Released: April 22, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Priority Communications Group ("Priority"), licensee of low power television station W38AQ, Lenoir City, Tennessee, filed the above-captioned petition requesting mandatory carriage of its signal on the cable system operated by InterMedia Partners Group ("InterMedia") serving Lenoir City, Tennessee and the surrounding area. InterMedia opposed Priority's complaint and Priority has replied. SUMMARY OF PLEADINGS 2. In support of its complaint, Priority argues that it meets all of the applicable requirements for mandatory carriage of a low power station. In this regard, Priority states that its low power station, W38AQ, broadcasts the minimum number of hours of operation required for full time stations, and that it adheres to the Commission's nonentertainment programming and employment requirements. Priority states that it also provides programming that addresses local news and informational needs which are not adequately served by distant full power stations. Further, Priority states that: 1) there are no full power stations licensed to a community in Loudon County, in which Lenoir City is located; 2) Lenoir City and Loudon County are approximately six miles apart, therefore there is no question that W38AQ provides a good quality signal to InterMedia's principal headend, and that it complies with the Commission's rules governing interference; and 3) Loudon County, in which Lenoir City is located, is not within the 160 largest MSA's. 3. Priority contends that it formally notified InterMedia that it was electing mandatory carriage on September 30, 1996 and InterMedia responded October 9, 1996 , stating the system also serves Knox County, Tennessee, noting that Stations WATE-TV, WBIR-TV, WKXT-TV and WTNZ are all full power stations licensed to Knoxville, Tennessee, located in Knox County. Therefore, InterMedia argues that Priority is not eligible for mandatory carriage on its system nor, with its limited channel capacity, is the system able to add Priority's station to its channel line-up. 4. In opposition, InterMedia notes that low-power stations qualified for must-carry status must meet a set of six criteria identified in Section 76.55(d) of the Commission's Rules and Section 614(h)(2) of the Communications Act of 1934, as amended. Furthermore, InterMedia states that Priority simply asserts (with no affidavits or evidentiary support) that its station meets all these criteria. In fact, states InterMedia, Priority meets only two of the six criteria. InterMedia states that it is able to verify: (1) that the station is located no more that 35 miles from the cable system's principal headend and delivers an adequate signal to that headend; and (2) that the community of license of the station and the cable system's franchise areas are located outside the largest 160 Metropolitan Statistical Areas. However, states InterMedia, whether the station complies with the other requirements, is not readily verifiable without specific evidence from Priority which has not been submitted in Priority's Complaint. 5. As explained in its letter dated October 9, 1996 to Priority, InterMedia states that there are no fewer than four full-power television stations nearby that more than adequately serve the relevant community's local news and informational needs. InterMedia states that all four stations (WATE-TV, WBIR-TV, WKXT-TV and WTNZ) place a Grade A signal over the Knox County and Loudon County communities served by InterMedia, which all are a part of the same metropolitan area, so that news coverage of Knoxville and its surrounding area are of general interest to subscribers in Knox and Loudon Counties. In any event, states InterMedia, materials provided by two of the full-power Knoxville stations, illustrate the news and informational programming provided by those stations includes significant coverage of matters specifically involving Lenoir City and Loudon County. Therefore, to the extent that Priority seeks carriage throughout its system, InterMedia states that Priority's complaint should be denied because full-power stations are licensed to one of the counties served by its system. 6. In its Reply to the Opposition, Priority asserts that, contrary to Intermedia's contention, it does meet the requirements to be found in a qualified low power station. Priority, in its Reply, submits a declaration from Danis L. Willingham, President of Priority Communications Group, asserting that Station W38AQ broadcasts 24 hours a day, complies with all of the FCC's obligations concerning broadcast of non-entertainment programming, children's programming and news stories of interest to Lenoir City, devoting the same attention to the community as would a full service station licensed to Lenoir City. Priority states that insofar as InterMedia opposes any attempt of Priority to obtain carriage on the Knox County portion of the cable system, it has never requested carriage on that part of the system. Priority asserts that if InterMedia can carry W38AQ's signal only in Loudon County, it is free to block it from carriage in Knox County. Priority maintains that if such blockage is not possible, that is no excuse for refusing carriage in Loudon County. DISCUSSION 7. Both the Communications Act of 1934, as amended, and the Commission's rules require the carriage of "qualified" LPTV stations in certain limited circumstances. An LPTV station that conforms to the rules established for LPTV stations in Part 74 of the Commission's rules will be considered "qualified" only if: 1) it broadcasts for at least the minimum number of hours of operation required under 47 C.F.R. Part 73; 2) it adheres to Commission requirements regarding nonentertainment programming and employment practices and the Commission determines that the programming by the LPTV station would address local news and informational needs which are not being adequately served by full power television broadcast stations because of geographic distance of such full power stations from the low power station's community of license; 3) it complies with interference regulations consistent with its secondary status; 4) it is located no more than 35 miles from the cable system's headend and delivers to the principal headend an over-the-air signal of good quality; 5) the community of license of the station and the franchise area of the cable system are both located outside the largest 160 Metropolitan Statistical Areas, and the population of such community; and 6) there is no full power television broadcast station licensed to any community within the county or other political subdivision served by the cable system. 8. We shall grant Priority's petition. InterMedia concedes that it receives an adequate signal from W38AQ and provides no engineering data to the contrary. Though InterMedia claims that Priority has not presented evidence to demonstrate that it meets its local news and information needs that are adequately served by full power stations, Priority, in its reply to InterMedia's Opposition, submits an affidavit from the President of Priority Communications that establishes that it complies with all of the Commission's obligations. 9. In its affidavit, Priority asserts that it provides a level of service to the subject communities not met by the local full power stations. In this regard, it notes that it broadcasts local news Monday through Friday at noon and six P.M. each week. The affidavit also points out that it televises local high school sporting events such as basketball and football as well as local religious programming on Sunday. Priority also televises local city events such as Thanksgiving day and Christmas parades. In view of the above, we believe that Priority has established that it provides a level of local programming not matched by other local full power stations. 10. Finally, we find InterMedia's argument unpersuasive that W38AQ is not qualified for must-carry status throughout InterMedia's system because there is a full power television broadcast station licensed within a county served by one portion of InterMedia's system. The Commission specifically addressed this question in adopting the implementing rules for the mandatory signal carriage requirements of the Communications Act of 1934, as amended. The Commission's rules held that for the exclusion to be applicable a full power station would have to be co-located in the same county as the subject low power station. W38AQ's city of license--Lenoir City--is located in Loudon County. No full power station is licensed to Loudon County. Accordingly, Priority has demonstrated W38AQ's right to mandatory carriage throughout InterMedia's system. In view of the foregoing, we find that grant of Priority's petition is in the public interest. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED, That the Complaint filed December 4, 1996, by Priority Communications Group IS GRANTED in accordance with 614(d) (3) of the Communications Act of 1934 , as amended (47 U.S.C. 534(d)(3). W38AQ shall notify Priority Communications in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty (30) days of the release date of this Order. 12. IT IS FURTHER ORDERED, That InterMedia Partners SHALL COMMENCE CARRIAGE of the signal of W38AQ sixty (60) days from the release date of this Order on InterMedia's cable system serving Lenoir City, Tennessee and surrounding areas. 13. These actions are taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau