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                                Before the
                     Federal Communications Commission
                          Washington, D.C. 20554

In re:                               )
                                     )
United Broadcast Group II, Inc.      )
                                     )
vs.                                  )           CSR-4940-M
                                     )
Harron Communications Corp.          )
                                     )
Request for Mandatory Carriage       )


                      MEMORANDUM OPINION AND ORDER

        Adopted:  July 1, 1997                     Released:  July 3, 1997  

By the Chief, Consumer Protection and Competition Division, Cable Services Bureau:

                               INTRODUCTION

  1.    United Broadcast Group II, Inc. ("UBG"), licensee of independent television broadcast
station KINZ(TV), Channel 68, Arlington, Texas, filed a complaint pursuant to Sections 76.7 and 76.61(a)
of the Commission's rules, claiming that Harron Communications Corp. ("Harron"), a cable operator
serving 11 communities in Texas ("Communities"), has unlawfully refused to carry the signal of
KINZ(TV) on its cable television system.  Harron opposed the petition and UBG 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 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. 

  3.    A commercial television station serving a community of license that is located within the
same ADI as the principal headend of a cable system has a right of carriage on that cable system. 
However, this right is subject to several conditions: 1) a cable system operator is generally required to
devote no more than one-third of its activated channel capacity in order to comply with the mandatory
signal carriage obligations; 2) the station is responsible for delivering a good quality signal to the
principal headend of the system; 3) indemnification may be required for any increase in copyright liability
resulting from carriage; and 4) the system operator is not required to carry the signal of any station whose
signal substantially duplicates the signal of any other local signal carried or the signals of more than one
local station affiliated with a particular broadcast network.  If, pursuant to these requirements, a system
operator elects to carry the signal of only a single affiliate of a broadcast network, it is obliged to carry
the affiliate from within the market whose city of license is closest to the principal headend of the cable
system.
   
                           SUMMARY OF PLEADINGS

  4.    In support of its complaint, UBG states that it advised Harron on December 11, 1996,
pursuant to Section 76.64(f) of the Commission's rules,that it was conducting on-air program tests for
KINZ(TV) and that it intended to commence broadcasting in the near future.  UBG further states that it
indicated in its initial notices that it elected must carry status in lieu of retransmission consent.  UBG
states that KINZ(TV) began regular broadcast operations on December 17, 1996.

  5.    UBG states that on December 19, 1996, Harron responded with a letter stating that UBG
had missed the October 31, 1996 deadline for the election of must carry status, and informed UBG that
the next opportunity to file would be October 31, 1999.  On two other occasions thereafter, UBG
requested that Harron carry KINZ(TV) stating that its election request was timely.  On January 16, 1996,
Harron responded with a letter from its counsel stating that Harron was evaluating its obligation to carry
the station and noted that it was not required to respond in writing to UBG's must carry election.  UBG
states that it then again contacted Harron and reiterated its request stating that it disputed Harron's
interpretation of must carry procedures.  UBG states that Harron did not respond to its last request and
currently does not carry KINZ(TV)'s signal.

  6.    UBG argues that it is a new television station and is entitled to make its initial election
any time between 60 days prior to commencing broadcast and 30 days after commencing broadcast. 
UBG states that it made its election six days before KINZ(TV) commenced broadcast operations on
December 17, 1996.  According to UBG, Harron's December 19, 1996 letter is a refusal to carry
KINZ(TV) and triggered the 60 day time period for filing a must carry complaint pursuant to Section
76.7(c)(4)(iii) of the Commission's rules.

  7.    In opposition, Harron argues that the systems serving many of the Communities have
"fulfilled their complement of local commercial stations," and Harron is, therefore, not obligated to carry
KINZ(TV) on any of those systems.  Harron notes that Section 614 of the Communications Act of 1934,
as amended, states that "[a] cable operator of a cable system with more that 12 usable activated channels
shall carry the signals of local commercial television stations, up to one-third of the aggregate number of
usable activated channels of such system."  According to Harron, of the 38 usable activated channels
on Harron's systems serving Blooming Grove, Godley, Hubbard, and Italy, the signals of local commercial
television stations are carried on 13 channels.  Harron also states that in Crandall, local commercial
television stations occupy 12 of 34 activated channels.  Harron states that it is making written inquiries
of potential noncommercial local broadcast stations carried on its systems to determine if they qualify as
noncommercial educational television stations under the Commission's rules.

  8.    Harron also contends that UBG has not been cooperative with Harron in its efforts to
secure carriage on Harron's systems.  According to Harron, UBG has been unwilling to share information
and to resolve outstanding issues that would help Harron to determine UBG's must carry rights.  Harron
notes that when UBG requested must carry status on its systems, UBG did not identify KINZ(TV) as a
new station.  In addition, Harron states that UBG has refused to return telephone calls and, therefore,
Harron has been unable to address issues such as channel placement or whether KINZ(TV) substantially
duplicates the signal of another local commercial television station in Harron's channel line-up.

  9.    In reply, UBG argues that Harron has failed to provide sufficient information for a
conclusive determination regarding its must carry obligations.   UBG states that Harron has made no
affirmative showing to support its assertion that it has met its must carry obligations in the communities
of Whitney, Rockett, Combine, Alvarado, Roanoke or Carrollton.  With respect to Blooming Grove,
Godley, Hubbard, Italy and Crandall, UBG contends that exhibits submitted by Harron fall short of the
requisite burden of proof necessary to establish Harron's right to deny carriage.  According to UBG,
Harron has counted KDTN and KERA, both operating under the auspices of the Corporation for Public
Broadcasting,as part of its total number of local commercial stations, stating that because it does not
have current knowledge that those stations are noncommercial educational stations, it is entitled to count
them toward their commercial station total.  According to UBG, if those stations were excluded from
Harron's local commercial television station totals, UBG would be entitled to carriage for KINZ(TV) under
the Commission's one-third formula.

  10.   UBG also argues that Harron's total number of usable activated channels may well be
higher than what Harron has disclosed in the exhibits to its opposition pleading.  According to UBG,
Harron's channel line-up does not list pay-per-view channels or other activated channels which are capable
of providing services to residential subscribers.  UBG states that these channels must be calculated into
Harron's total number of usable activated channels which would then increase Harron's one-third aggregate
figure, thus providing an additional basis on which to grant UBG's carriage request.

  11.   UBG states that it has been responsive in its dealings with Harron.  UBG notes that
despite Harron's allegation of unreturned telephone calls preventing Harron from determining UBG's must
carry rights, UBG has no record of receiving any such calls.  Regardless, UBG notes that Harron can
discern signal duplication questions by tuning in to the station to make a determination of its own.  In
addition, UBG states that it has secured carriage on other cable systems which carry the same stations as
Harron.  On the other hand, UBG argues that Harron has not provided in writing its reasons for not
carrying the station as it is required to do by the Commission's rules. 

                                DISCUSSION

  12.   The burden of proof is on the cable operator to show that it is not required to carry a
commercial television station that is located within the same ADI as the principal headend of a cable
system.  Harron has not met this burden.  Accordingly, we will grant UBG's petition.  Pursuant to Section
76.64(f)(4) of the Commission's rules, UBG notified Harron of its must carry election status in a timely
fashion.  The October 31, 1999 deadline for electing must carry status did not apply to KINZ(TV)
because it was a new station.  We note that in its December 11, 1996 letter to Harron, UBG did refer to
KINZ(TV) as "North Texas' newest television station" and noted that the station "is currently conducting
on-air tests and anticipates beginning broadcast of regular programming in the near future."  Thus, while
UBG did not cite to the Commission's must carry election rules for new stations in its December 11, 1996
letter to Harron, we cannot conclude that Harron was unaware of KINZ(TV)'s status as a new station. 
If Harron was confused about this matter, Harron made no further inquiries to UBG in order to clarify
the situation.  Instead, Harron merely informed UBG that it had missed the filing deadline.  Furthermore,
under the Commission's must carry rules, a station's failure to comply with the notification requirements
regarding election between retransmission consent and must carry status would only result in that station
defaulting to must carry status.   

  13.   We agree with UBG that Harron has made no specific showing, only generalized
statements, to support its assertion that it does not have to carry KINZ(TV) in the communities of
Whitney, Rockett, Combine, Alvarado, Roanoke, and Carrollton.  With regard to the communities of
Blooming Grove, Godley, Hubbard, Italy, and Crandall, Harron has not clearly demonstrated that the cable
systems serving those communities have fulfilled the statutory requirement of carrying the signals of local
commercial television stations, up to one-third of the aggregate number of usable activated channels of
such systems.  In the channel line-up submitted by Harron for these communities, KDTN and KERA
are both listed as PBS ("Public Broadcasting System") affiliates.  In addition, the Television and Cable
Factbook (1995 Edition) lists both KDTN and KERA as "Public/Educational TV Stations."  For our
purposes here, we believe that both stations would qualify as noncommercial educational television
stations.  As such, we believe that they should not be included in Harron's calculations for determining
the applicable one-third benchmark for carriage of local commercial television stations.  Under our rules,
there are separate must carry requirements for the carriage of noncommercial educational television
stations.  Furthermore, it appears that Harron has not included pay-per-view channels that it currently
uses in its calculation of activated channels. 

  14.   We also agree that Harron has not made clear in its December 19, 1996 letter to UBG,
or in any written correspondence, what its reasons are for denial of carriage of KINZ(TV).  Under our
rules, a cable operator shall, within 30 days of receipt of written notification regarding carriage, respond
in writing to such notification and either commence to carry the signal of such station in accordance with
the terms requested or state the reasons for believing that it is not obligated to carry the station.  Harron
now states that there may be problems with placing KINZ(TV) on its system because of station
duplication problems or channel positioning.  However, other than conclusory statements, Harron offers
no specific evidence to support these allegations.  Because Harron has not presented sufficient reasons
as to why KINZ(TV) cannot be carried on its cable systems in the named Communities, UBG's petition
will be granted.

                             ORDERING CLAUSES

  15.   Accordingly, IT IS ORDERED that the petition filed by United Broadcast Group, II, Inc.
IS GRANTED pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C.
534), and Harron Communications Corp. IS ORDERED to commence carriage of Station KINZ(TV)
on the cable systems in all named communities within sixty (60) days of the release date of this Order.

  16.   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