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A. a.(1)(a) i) a)Documentg2k0*e.b//PleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNM\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\9y.\80, {\4  pG;:2a=5,0&a\  P6G;&P 2e=5,D&e4  pG;&"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\2 K8^ ;35j?"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn72y.X80,IX\  P6G;P37jC:,+Xj\  P6G;XP47nC:,Xn4  pG;X5W!@(#,9h@\  P6G;hP6H5!,,5\  P6G;,P\75hC:,%Xh*f9 xr G;XX\8{,W80,%W*f9 xr G;X9y.\80, {\4  pG;:2a=5,0&a\  P6G;&P ;2e=5,D&e4  pG;&<P:% ,1J:\  P6G;JP\0_=5,% &_*f9 xr G;&X         X- X   PK S-#&a\  P6G;0&P#  Federal Communications Commission`}(#DA 971373 #Xj\  P6G;+XP#у  yxdddy Pv3 #X\  P6G;IP#Before the Federal Communications Commission  yO} Washington, D.C. 20554 #Xj\  P6G;+XP#у  Sb-#&a\  P6G;0&P#In re:R) R) United Broadcast Group II, Inc.R) R)  S-vs.R)hppCSR4940M R) Harron Communications Corp.R) R) Request for Mandatory CarriageR) "rT  S -  MEMORANDUM OPINION AND ORDER TP  SZ-X` hp x (#%'0*,.8135@8:States is allocated to a market based on which homemarket stations receive a preponderance of total"<,))II "  x "r < "r viewing hours in the county. For purposes of this calculation, both overtheair and cable television  S-viewing are included.$g yO@- xxԍBecause of the topography involved, certain counties are divided into more than one sampling unit. Also, in  xcertain circumstances, a station may have its home county assigned to an ADI even though it receives less than a  {O- xpreponderance of the audience in that county. For a more complete description of how counties are allocated, see  {O-Arbitron's Description of Methodology.  "r < "r   S- ` x3. ` ` A commercial television station serving a community of license that is located within the  S`- x]same ADI as the principal headend of a cable system has a right of carriage on that cable system.u`g {O -ԍSee 47 U.S.C. 534(h)(1)(A). See also 47 C.F.R. 76.56(b).u  xHowever, this right is subject to several conditions: 1) a cable system operator is generally required to  xdevote no more than onethird of its activated channel capacity in order to comply with the mandatory  S- xsignal carriage obligations;MFg {O -ԍSee 47 U.S.C. 534(b)(1)(B).M 2) the station is responsible for delivering a good quality signal to the  S- xprincipal headend of the system;Rg {O8-ԍSee 47 U.S.C. 534(h)(1)(B)(iii).R 3) indemnification may be required for any increase in copyright liability  S- xresulting from carriage;Q j g {O-ԍSee 47 U.S.C. 534(h)(1)(B)(ii).Q and 4) the system operator is not required to carry the signal of any station whose  xsignal substantially duplicates the signal of any other local signal carried or the signals of more than one  SH - xlocal station affiliated with a particular broadcast network.J H g {O-ԍSee 47 U.S.C. 534(b)(5).J If, pursuant to these requirements, a system  xoperator elects to carry the signal of only a single affiliate of a broadcast network, it is obliged to carry  xthe affiliate from within the market whose city of license is closest to the principal headend of the cable  S -system.; g yO-ԍ 8 FCC Rcd at 2981.; x  S -1 SUMMARY OF PLEADINGS  S0- ` ` x4.` ` In support of its complaint, UBG states that it advised Harron on December 11, 1996,  S- xpursuant to Section 76.64(f) of the Commission's rules,P g yO-ԍThe rule, in pertinent part, reads as follows:  @Xx(f) Commercial television stations are required to make elections between retransmission consent  and mustcarry status according to the following schedule: (4) New television stations shall make  3their election any time between 60 days prior to commencing broadcast and 30 days after  2commencing broadcast; such initial election shall take effect 90 days after they are made. 47 C.F.R. 76.64(f)(4). Pthat it was conducting onair program tests for  x.KINZ(TV) and that it intended to commence broadcasting in the near future. UBG further states that it  xkindicated 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. "h ,>(>(II"Ԍ S- ` 2x5.` ` UBG states that on December 19, 1996, Harron responded with a letter stating that UBG  xhad missed the October 31, 1996 deadline for the election of must carry status, and informed UBG that  xthe next opportunity to file would be October 31, 1999. On two other occasions thereafter, UBG  xrequested that Harron carry KINZ(TV) stating that its election request was timely. On January 16, 1996,  x[Harron responded with a letter from its counsel stating that Harron was evaluating its obligation to carry  x=the station and noted that it was not required to respond in writing to UBG's must carry election. UBG  xstates that it then again contacted Harron and reiterated its request stating that it disputed Harron's  xLinterpretation of must carry procedures. UBG states that Harron did not respond to its last request and currently does not carry KINZ(TV)'s signal.  Sp- ` Bx6.` ` UBG argues that it is a new television station and is entitled to make its initial election  SH - x\any time between 60 days prior to commencing broadcast and 30 days after commencing broadcast.1 H g {O -ԍId.1  x/UBG states that it made its election six days before KINZ(TV) commenced broadcast operations on  xDecember 17, 1996. According to UBG, Harron's December 19, 1996 letter is a refusal to carry  xkKINZ(TV) and triggered the 60 day time period for filing a must carry complaint pursuant to Section  S -76.7(c)(4)(iii) of the Commission's rules.F Zg yO-ԍ47 C.F.R. 76.7(c)(4)(iii).F  SX- ` $x7.` ` In opposition, Harron argues that the systems serving many of the Communities have  x="fulfilled their complement of local commercial stations," and Harron is, therefore, not obligated to carry  xKINZ(TV) on any of those systems. Harron notes that Section 614 of the Communications Act of 1934,  x[as amended, states that "[a] cable operator of a cable system with more that 12 usable activated channels  xshall carry the signals of local commercial television stations, up to onethird of the aggregate number of  S- xyusable activated channels of such system."jg {O-ԍ47 U.S.C. 534(b)(2); see also 47 C.F.R. 76.56(b)(2).j According to Harron, of the 38 usable activated channels on  Sh- xHarron's systems serving Blooming Grove, Godley, Hubbard, and Italy, the signals of local commercial  xtelevision stations are carried on 13 channels. Harron also states that in Crandall, local commercial  xtelevision stations occupy 12 of 34 activated channels. Harron states that it is making written inquiries  xjof potential noncommercial local broadcast stations carried on its systems to determine if they qualify as  S-noncommercial educational television stations under the Commission's rules.b|g {O-ԍSee 47 U.S.C. 535(1)(1); 47 C.F.R. 76.55(a).b  Sx- ` $x8.` ` Harron also contends that UBG has not been cooperative with Harron in its efforts to  xjsecure carriage on Harron's systems. According to Harron, UBG has been unwilling to share information  x[and to resolve outstanding issues that would help Harron to determine UBG's must carry rights. Harron  xynotes that when UBG requested must carry status on its systems, UBG did not identify KINZ(TV) as a  xnew station. In addition, Harron states that UBG has refused to return telephone calls and, therefore,  xjHarron 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 lineup.  S8- ` 4x9.` ` In reply, UBG argues that Harron has failed to provide sufficient information for a  x conclusive determination regarding its must carry obligations. UBG states that Harron has made no" ,>(>(II!"  xjaffirmative showing to support its assertion that it has met its must carry obligations in the communities  x of Whitney, Rockett, Combine, Alvarado, Roanoke or Carrollton. With respect to Blooming Grove,  xGodley, Hubbard, Italy and Crandall, UBG contends that exhibits submitted by Harron fall short of the  xrequisite burden of proof necessary to establish Harron's right to deny carriage. According to UBG,  x=Harron has counted KDTN and KERA, both operating under the auspices of the Corporation for Public  S8- xBroadcasting,Z8g {O- xԍUBG cites the Broadcasting and Cable Yearbook (1994), as its source of authority for this statement. UBG  xnotes that the Corporation for Public Broadcasting requires an affiliated station to have a community grant from the  xCorporation. Under these circumstances, UBG states that it is highly likely that both stations meet the Commission's  xstatutory definition of "qualified noncommercial educational (NCE) television stations" under Section 76.55(a)(1) of the Commission's rules. Zas part of its total number of local commercial stations, stating that because it does not have  xycurrent knowledge that those stations are noncommercial educational stations, it is entitled to count them  xLtoward their commercial station total. According to UBG, if those stations were excluded from Harron's  xzlocal commercial television station totals, UBG would be entitled to carriage for KINZ(TV) under the  S-Commission's onethird formula.Hzg {O-ԍSee 47 C.F.R. 76.56(b)(2).H  SH - ` x10.` ` UBG also argues that Harron's total number of usable activated channels may well be  xMhigher than what Harron has disclosed in the exhibits to its opposition pleading. According to UBG,  xHarron's channel lineup does not list payperview channels or other activated channels which are capable  xof providing services to residential subscribers. UBG states that these channels must be calculated into  xHarron's total number of usable activated channels which would then increase Harron's onethird aggregate figure, thus providing an additional basis on which to grant UBG's carriage request.  S0- ` x11.` ` UBG states that it has been responsive in its dealings with Harron. UBG notes that despite  x.Harron's allegation of unreturned telephone calls preventing Harron from determining UBG's must carry  xrights, UBG has no record of receiving any such calls. Regardless, UBG notes that Harron can discern  xsignal duplication questions by tuning in to the station to make a determination of its own. In addition,  x.UBG states that it has secured carriage on other cable systems which carry the same stations as Harron.  xOn the other hand, UBG argues that Harron has not provided in writing its reasons for not carrying the  S@-station as it is required to do by the Commission's rules.L@ g {O-ԍSee 47 C.F.R. 76.61(a)(2).L  S-( DISCUSSION  S- `  x12.` ` The burden of proof is on the cable operator to show that it is not required to carry a  x commercial television station that is located within the same ADI as the principal headend of a cable  xsystem. Harron has not met this burden. Accordingly, we will grant UBG's petition. Pursuant to Section  x.76.64(f)(4) of the Commission's rules, UBG notified Harron of its must carry election status in a timely  S- x>fashion.Lg {O>%-ԍSee 47 C.F.R. 76.64(f)(4).L The October 31, 1999 deadline for electing must carry status did not apply to KINZ(TV)  xbecause it was a new station. We note that in its December 11, 1996 letter to Harron, UBG did refer to  S- xKINZ(TV) as "North Texas' newest television station" and noted that the station "is currently conducting"0 ,>(>(II"  S- xyonair tests and anticipates beginning broadcast of regular programming in the near future."Bg yOh-ԍUBG Complaint, Exhibit A. B Thus, while  S- xUBG did not cite to the Commission's must carry election rules for new stations in its December 11, 1996  xletter to Harron, we cannot conclude that Harron was unaware of KINZ(TV)'s status as a new station.  xIf Harron was confused about this matter, Harron made no further inquiries to UBG in order to clarify  xjthe situation. Instead, Harron merely informed UBG that it had missed the filing deadline. Furthermore,  xjunder the Commission's must carry rules, a station's failure to comply with the notification requirements  xregarding election between retransmission consent and must carry status would only result in that station defaulting to must carry status.  S- ` x13.` ` We agree with UBG that Harron has made no specific showing, only generalized  xstatements, to support its assertion that it does not have to carry KINZ(TV) in the communities of  x/Whitney, Rockett, Combine, Alvarado, Roanoke, and Carrollton. With regard to the communities of  xBlooming Grove, Godley, Hubbard, Italy, and Crandall, Harron has not clearly demonstrated that the cable  xsystems serving those communities have fulfilled the statutory requirement of carrying the signals of local  xcommercial television stations, up to onethird of the aggregate number of usable activated channels of  S - xsuch systems.C Xg yO-ԍ47 U.S.C. 534(b)(1)(B).C In the channel lineup submitted by Harron for these communities, KDTN and KERA  S - xare both listed as PBS ("Public Broadcasting System") affiliates.E g yO-ԍHarron Opposition, Exhibit 1.E In addition, the Television and Cable  SX- xFactbook (1995 Edition) lists both KDTN and KERA as "Public/Educational TV Stations."bXxg yOp-ԍTelevision and Cable Factbook (1995 Edition) at A1333. b For our  xpurposes here, we believe that both stations would qualify as noncommercial educational television  S- x=stations.Jg {O-ԍSee 47 U.S.C. 535(1)(1).J As such, we believe that they should not be included in Harron's calculations for determining  S- xthe applicable onethird benchmark for carriage of local commercial television stations.g yO- xLԍAs UBG notes, by excluding these stations from Harron's local commercial television station totals, the  x<commercial station carriage total would be 11 in the communities of Blooming Grove, Hubbard, and Godley, less  xthan the onethird of the 38 usable activated channels for those communities. For the community of Italy, the  xnumber of applicable stations would be 11, less than onethird of 37 usable activated channels. In Crandall,  xexcluding these stations would leave the total at 10, less than the onethird of the 34 usable activated channels available in that community.  Under our rules,  xthere are separate must carry requirements for the carriage of noncommercial educational television  S- x[stations.`g {OB"-ԍSee 47 U.S.C. 535; 47 C.F.R. 76.56. ` Furthermore, it appears that Harron has not included payperview channels that it currently uses in its calculation of activated channels.  S- ` x14.` ` We also agree that Harron has not made clear in its December 19, 1996 letter to UBG,  xor in any written correspondence, what its reasons are for denial of carriage of KINZ(TV). Under our  xrules, a cable operator shall, within 30 days of receipt of written notification regarding carriage, respond  S- xLin writing to such notification and either commence to carry the signal of such station in accordance with",>(>(II"  S- xthe terms requested or state the reasons for believing that it is not obligated to carry the station.Og {Oh-ԍSee 47 C.F.R. 76.61(a)(2). O Harron  xxnow states that there may be problems with placing KINZ(TV) on its system because of station duplication  x=problems or channel positioning. However, other than conclusory statements, Harron offers no specific  xevidence to support these allegations. Because Harron has not presented sufficient reasons as to why  x\KINZ(TV) cannot be carried on its cable systems in the named Communities, UBG's petition will be granted.  S-1 ORDERING CLAUSES ă  S- ` 1x15.` ` Accordingly, IT IS ORDERED that the petition filed by United Broadcast Group, II, Inc.  Sp- x IS GRANTED pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C.  SH - xL534), 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.  S -x16.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhGary M. Laden, Chief x` `  hhConsumer Protection and Competition Division x` `  hhCable Services Bureau