******************************************************** 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 United Broadcast Group II, Inc.) CSR-4958-M against Buford Television, Inc.) ) Request for Carriage) MEMORANDUM OPINION AND ORDER Adopted: June 25, 1997Released: June 27, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. United Broadcast Group II, Inc., licensee of Television Broadcast Station KINZ (Channel 68), Arlington, Texas, has filed a "Complaint" with the Commission, pursuant to 76.61 of the Commission's Rules, claiming that, despite repeated requests, Buford Television, Inc. ("Buford"), operator of cable systems serving various Texas communities, has refused to carry KINZ, even though the station and each of Buford's systems are located in the Dallas-Fort Worth, Texas area of dominant influence (or "ADI"). Buford filed a "Response To Complaint," and KINZ has replied to it. SUMMARY OF THE PLEADINGS 2. According to KINZ, it advised Buford by letter dated December 11, 1996, that it was electing must-carry status, rather than retransmission consent, and that it would begin operations in the near future. Since it received no response, KINZ sent Buford two more letters dated January 6, 1997, and January 7, 1997, seeking a written commitment to its carriage. Buford responded by letter dated January 21, 1997, stating that it would conduct signal tests and asking to be notified when KINZ went on the air. During a telephone discussion on January 23, 1997, KINZ's counsel notified Buford's vice president that the station had begun regular broadcast operation on January 17, 1997. Buford requested information concerning KINZ's tower location and its signal contour map, which the station provided. By letter dated January 29, 1997, KINZ invited Buford to contact the station's engineer if the system needed any assistance or more information in conducting its signal tests. However, KINZ states that it has heard nothing more from Buford and that the system is not carrying its signal. 3. In response, Buford contends that it initially had difficulty identifying the communities in which KINZ seeks carriage because the station did not use FCC Code Numbers. Buford also claims that it was initially difficult to measure KINZ's signal because the station was off-the-air periodically in the beginning, and " . . . Buford's technicians did not want to climb its tall towers (in the middle of the winter) only to find the signal missing." Buford adds that many of the communities are located beyond KINZ's Grade B contour, and that it intends to file a market modification petition to the extent that KINZ's signal strength meets FCC standards in any of the communities. Therefore, Buford requests that the Commission delay any decision in this case until it can review both petitions. 4. In reply, KINZ notes that Buford has not filed an ADI modification petition or provided any engineering data in support of its claim that KINZ's signal may not be adequate in some areas. Moreover, citing the Bureau's prior decision in Cablevision Systems Corporation, KINZ states that it will " . . . provide Buford with any specialized equipment necessary in order to upgrade its signal." KINZ maintains, therefore, that it is entitled to immediate grant of its carriage request. DISCUSSION 5. We agree with KINZ and will not delay consideration of its petition pending receipt of an ADI petition that Buford may file at some time in the as yet unspecified future. We also note that Buford's allegations concerning KINZ's signal quality cannot be accorded any significance since they are as yet unsubstantiated. According to 76.55(e) of the Commission's Rules, the market of a commercial television broadcast station, such as KINZ, is defined as its Area of Dominant Influence (or "ADI"). A commercial station is entitled to request carriage on any cable system operating in that ADI, whether it places a Grade B contour over the community of the system or not. 47 C.F.R. 76.56(b). Although prior to the instant pleadings, Buford never clearly indicated a refusal to carry KINZ, the station's last contact with Buford about its carriage was in a letter dated January 29, 1997, to which Buford never responded. Subsequently, KINZ timely filed its complaint within sixty days thereafter, as provided by 76.7(c)(4)(iii)(B) of the Commission's Rules. KINZ is currently assigned to the Dallas-Fort Worth, Texas ADI, which is also where the designated Texas cable communities are located. Therefore, KINZ is entitled to mandatory carriage on the cable systems serving the fifteen communities noted. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED, that the "Complaint" (CSR-4958-M), filed March 10, 1997, by United Broadcast Group II, Inc., licensee of Television Broadcast Station KINZ (Channel 68), Arlington, Texas, IS GRANTED in accordance with 614 (d)(3) of the Communications Act of 1934, as amended (47 U.S.C. 534) and 47 C.F.R. 76.56(b). 7. IT IS FURTHER ORDERED, that KINZ shall notify the relevant cable systems in writing of its channel position election (76.57 of the Commission's Rules), within thirty (30) days of the release date of this Memorandum Opinion and Order. 8. IT IS FURTHER ORDERED, that the affected cable systems shall come into compliance with the applicable rules within sixty (60) days of such notification. 9. This action is 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