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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 Paxson Oklahoma City)CSR-4993-M License, Inc. against Cox Cable of ) Oklahoma City ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: July 29, 1997 Released: August 1, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1.Paxson Oklahoma City License, Inc., licensee of Station KMNZ-TV (Channel 62), Oklahoma City, Oklahoma, has filed a must carry complaint requesting that the Commission order Cox Cable of Oklahoma City ("Cox"), operator of a cable television system serving Oklahoma City, Oklahoma and surrounding communities, to commence carriage of KMNZ-TV. Cox has filed an opposition to this complaint to which KMNZ-TV 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. ARGUMENTS OF THE PARTIES 3. In support of its request, KMNZ-TV states that, pursuant to 76.61(a))1) of the rules, it formally requested carriage on Cox's system by letter dated January 13, 1997. To date, however, KMNZ- TV states that Cox neither responded to its letter nor commenced carriage of its signal. KMNZ-TV points out that it is licensed to Oklahoma City, Oklahoma, which is located in the Oklahoma City Area of Dominant Influence ("ADI") as are the communities served by Cox's cable system. As such, KMNZ-TV argues that it is entitled to must carry status on Cox's system as long as it meets the definition of a "qualified local commercial station" by not imposing increased copyright liability on the cable operator and delivering a signal of good quality to the cable system's principal headend. KMNZ-TV maintains that it meets both of these criteria. Therefore, KMNZ-TV requests that the Commission order Cox to commence carriage of its station. 4. In its opposition, Cox argues that KMNZ-TV's complaint is untimely filed. Although KMNZ-TV maintains that it requested carriage by its January 13, 1997 letter, Cox points out that KMNZ-TV previously made a must carry request in a letter dated September 26, 1996, from Aracelis Ortiz, the then licensee of KMNZ-TV. Cox states that any must carry complaint should therefore have been filed no later than December 27, 1996. Cox argues that in the Complaint of Paxson San Jose License, Inc. vs. Viacom Cable, the Commission concluded that the sale of a station did not start a new must carry election cycle and dismissed a complaint as untimely when it was shown that a previous licensee had filed a legitimate must carry complaint, but failed to take any further steps to preserve its must carry rights. Cox maintains that the situation here is identical and that KMNZ-TV's request should be dismissed. 5. In reply KMNZ-TV states that Cox does not dispute that its station meets all of the must carry qualifications. Instead, states KMNZ-TV, Cox relies on a claim that the current complaint is untimely due to the filing of a carriage request on behalf of the station's previous owner. KMNZ-TV argues, however, that Cox's characterization of the letter from Mr. Ortiz is legally untenable. KMNZ-TV points out that the language and citations of the letter clearly demonstrate that Mr. Ortiz was "elect[ing] mandatory carriage" on Cox's system and not specifically requesting carriage. Moreover, KMNZ-TV states that Mr. Ortiz's September 26, 1996 letter references 76.64(f) of the rules, which outlines when commercial television stations "are required to make elections between retransmission consent and must-carry status" and not 76.61, which is the applicable section for the filing of a station's request for carriage. KMNZ-TV argues that, as such, Mr. Ortiz's letter could not have triggered the 60-day response time required for the filing of a formal complaint. DISCUSSION 6. We are not persuaded by the arguments raised by Cox herein and shall grant KMNZ-TV's complaint. A review of the September 26, 1996 letter submitted on behalf of KMNZ-TV's previous owner, Mr. Ortiz, reveals that it is merely KMNZ-TV's notification, pursuant to 76.64(f) of the rules, that it is electing must carry status in lieu of retransmission consent for the January 1, 1997 through December 31, 1999 election period and is not a formal request for carriage as required by 76.61(a) of the rules. Section 76.64(f)(2) of the rules required Mr. Ortiz to file this letter no later than October 1, 1996 in order that his selection could take effect on January 1, 1997. Therefore, KMNZ-TV's January 13, 1997 request for carriage on behalf of its current licensee is valid and its complaint is timely filed within 60 days of that date. In addition, in view of the fact that Cox does not dispute KMNZ-TV's claim that it meets all of the must carry criteria, we find that KMNZ-TV is fully qualified for carriage on Cox's Oklahoma City cable system. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED that the petition filed April 1, 1997, by Paxson Oklahoma City License, Inc. IS GRANTED pursuant to 614 of the Communications Act of 1934, as amended (4 U.S.C. 534). Cox Cable of Oklahoma City IS ORDERED to commence carriage of Station KMNZ-TV on its Oklahoma City, Oklahoma cable system within sixty (60) days of the release date of this Order. 8. 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