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

In re:                          )
                                )
  Complaint of WFXV-TV, Inc. against )CSR-4949-M
United Cablevision of Southern Illinois,)
Inc. d/b/a TCI of Illinois      )
                                )
Request for Carriage            )


                  MEMORANDUM OPINION AND ORDER

      Adopted:  July 29, 1997  Released:  August 8, 19997  

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

                           INTRODUCTION

      1.WFXV-TV, Inc., licensee of low power station WSPY-LP, Plano, Illinois ("WSPY-LP"),
filed the above petition requesting mandatory carriage of its signal on the cable system operated by United
Cablevision of Southern Illinois, Inc. d/b/a TCI of Illinois ("TCI-I"), serving Newark, Illinois. TCI-I  filed
an opposition to the complaint to which WSPY-LP has replied.

                            BACKGROUND

      2. Section 614(a) of the Communications Act of 1934, as amended, requires the carriage of
"qualified" low power television (LPTV) stations in certain limited circumstances.  Under 76.56(b)(3) of
the Commission's Rules, promulgated pursuant to 614, a cable system that has insufficient full power
television signals to reach its channel set aside shall carry at least one qualified low power station.  Thus,
if a cable system is carrying its full complement of commercial full power stations, it need not carry a LPTV
station.  A LPTV station that conforms to the rules established for LPTV stations in Part 76 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
provision of such programming by the station would address local news and informational needs which are
not being adequately served by full power television broadcast stations because of the geographic distance
of such full power stations from the low power television 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 (MSA's) on June 30, 1990, and the population of such
community of license on that date did not exceed 35,000; and 6) there is no full power television broadcast
station licensed to any community within the county or other political subdivision (of a State) served by the
cable system.  

                       SUMMARY OF PLEADINGS

     3.      In support of its complaint, WSPY-LP states that it is a qualified low power television
("LPTV") station which has been carried on TCI-I's system since 1990.  In this regard, WSPY-LP argues that
it meets all of the applicable requirements for mandatory carriage of an LPTV station. WSPY-LP further
states that TCI-I dropped its signal without giving the required 30-day advance written notice to the station,
in direct violation of 76.58(a) of the Commission's Rules.  WSPY-LP states that it conducts program
operations 24 hours per day, seven days per week, which is well in excess of the minimum operating
schedule set forth in the rules for full power television broadcast stations.  WSPY-LP states also that it meets
the requirements for LPTV stations with regard to the broadcast of nonentertainment programming,
programming and rates involving political candidates, election  issues, controversial  issues of public
importance, editorials, and personal attacks, and programming for children and equal employment
opportunity, which are unavailable elsewhere.  In addition, WSPY-LP states that it does not duplicate the
programming of any local television station.  WSPY-LP therefore requests that the Commission order TCI-I
to reinstate carriage of its station immediately. 

      4.  WSPY-LP contends that on approximately December 26, 1996, it learned that its signal
might be deleted from carriage on TCI-I's system effective January 1, 1997.  The station was dropped on
December 27, 1996.  WSPY-LP states that it advised TCI-I's general manager, Sandee Dummitt, that
carriage of its station should be maintained because it was a qualified LPTV station under the must carry
rules and that the station never received the required advanced written notice regarding its deletion.  In
response, WSPY-LP indicates that Ms. Dummitt stated that she was unable to change the planned deletion
as her superiors had already made their decision.  WSPY-LP states that a series of letters to and from TCI-I
followed, resulting in a January 17, 1997 response from TCI-I in which it was stated that WSPY-LP was not
qualified for must carry status and would not be reinstated.  WSPY-LP argues that although the community
of Newark is located in the Chicago ADI, the franchise area is about 65 miles from Chicago.  It points out
that TCI-I's cable line-up shows that its system carries seven commercial stations licensed to Chicago, one
commercial station licensed to Gary, Indiana (over 60 miles from Newark), and commercial stations
WWTO(TV), La Salle, Illinois, and WEHS(TV), Aurora, Illinois.  WSPY-LP maintains that none of these
stations are required to serve Newark with any local news or information.  Moreover, states WSPY-LP, TCI-I
has elected to carry a 24-hour cartoon network and such far distant television services such as WTBS(TV),
Atlanta, Georgia, in lieu of the truly local service provided by WSPY-LP.  

      5.  In opposition, TCI-I, states that it is not required to accommodate the must carry request of
WSPY-LP because that station is not a qualified LPTV station for must carry purposes.  TCI-I notes that
LPTV stations qualified for must-carry status must meet a set of six criteria identified in Section 76.55(d)
of the Commission's Rules.  TCI-I states that both the Newark, Illinois franchise area and the city of license
of WSPY-LP are located in Kendall County, Illinois, which is within the third largest MSA (Chicago), as
determined by the Office of Management and Budget (OMB).  TCI-I argues therefore that WSPY-LP fails
to meet the requirement that both the community of license of the station and the franchise area of the cable
system be located outside of the largest 160 MSA's.  Secondly, TCI-I states that WSPY-LP has failed to meet
its burden of proving that it consistently broadcasts the type of programming that would address local news
and informational needs which are not being adequately served by full power television broadcast stations. 
TCI-I alleges that WSPY-LP admits that the cable system already carries numerous full power television
stations licensed to Chicago, La Salle, Aurora, and Gary, Indiana.  TCI-I maintains that these full power
stations not only provide at least Grade B coverage to its system, but adequately serve the local news and
informational needs of its subscribers.   Finally, TCI-I, states that WSPY-LP's contention that it is the only
television broadcast facility addressing the local news and informational needs of the residents of Newark
fails to show that the station's programming addresses the local needs not addressed by programming of full
power stations as required by the Commission's Rules.  It therefore requests that the complaint filed by
WSPY-LP be dismissed.

      6. In its reply to the Opposition, WSPY-LP disputes TCI-I's contention that its station is not
a qualified LPTV station. WSPY-LP argues that TCI-I's conclusions are inconsistent with the language of
the Cable Act and OMB's report ranking the largest 160 Metropolitan Areas (MSA's).  WSPY-LP points out
that OMB's report provides an individual and separate definition for MSA's, Primary Metropolitan Statistical
Areas ("PMSA's"), and Consolidated Metropolitan Statistical Areas ("CMSA's").  WSPY-LP maintains that
Section 614 of the Communications Act requires that the Commission utilize MSA's in evaluating LPTV
stations' must carry qualifications and not CMSA's or PMSA's.   Since Newark and Plano (WSPY-LP's city
of license) are located in Kendall County, which is part of a defined PMSA and not properly ranked among
population groupings defined as MSA's, WSPY-LP argues that it cannot be considered in conjunction with
76.55(d)(5) of the rules which refers only to MSA's.  With regard to TCI-I's second argument, WSPY-LP
maintains that while TCI-I points to the full power stations it carries which provide either Grade A or Grade
B service to Plano and Newark, it fails to show any connection between signal strength and program content. 
Indeed, states WSPY-LP, all but one of the identified stations have studios and transmitter sites
approximately 50 miles from Newark, none of the stations are licensed to Kendall County and none are
required to carry any programming specifically geared to the needs and interests of Kendall County
residents.  On the other hand, WSPY-LP states that for the past six years it has assigned a reporter to cover
the Newark "beat" and the station regularly hosts elected officials and community leaders from around
Kendall County on its news and public affairs programming.  WSPY-LP points to the recent Supreme Court
decision in Turner Broadcasting System, Inc. v. FCC, which stated that "the Cable Act, 47 U.S.C. 534(c),
requires carriage on unfilled must-carry channels of low power broadcast stations if the FCC determines that
the station's programming "would address local news and informational needs which are not being
adequately served by full power television broadcast stations because of the geographic distance of such full
power stations from the low power station's community of license." 534(h)(2)(B)."  Since TCI-I is a system
with more than 35 activated channels which has not met its one-third threshold under the rules, WSPY-LP
indicates that it is required to carry as least two qualified LPTV stations.  Finally, WSPY-LP states that TCI-I
does not contest the fact that it violated 76.58 of the rules in not provide prior written notice regarding its
deletion of WSPY-LP and should be assessed a forfeiture for this violation.

                            DISCUSSION

      7. We do not agree with the arguments raised by WSPY-LP as to its qualifications for must
carry status on TCI-I's system and we will deny its complaint.  Part 76 of the Commission's rules sets forth
specific criteria to which an LPTV station must conform before it can be considered a "qualified" for must
carry status.  One of those criteria requires that both the community of license of the station and the franchise
area of the cable system be located outside the largest 160 Metroplitan Statistical Areas (MSA's) as of June
30, 1990.   TCI-I asserts that WSPY-LP is not a "qualified" LPTV station because WSPY-LP's community
of license is located inside Kendall County, which is considered part of the third largest MSA, Chicago,
Illinois.  WSPY-LP argues that the MSA criterion does not apply in this case because Kendall County, in
which both the franchise area of the cable system and the station's city of license are located, is considered
to be part of a Primary Metroplitan Statistical Area (PMSA) which differs from an MSA.  However, a PMSA
is a type of consolidated MSA information. Therefore, the MSA criterion would apply in this instance. 
Since the Chicago consolidated MSA, of which Kendall County is a part, is the third largest of the 160
largest MSA's, WSPY-LP cannot be considered to be a "qualified" LPTV for must carry purposes for TCI-I's
system serving Newark, Illinois.  Finally, with regard to WSPY-LP's undisputed allegation that TCI-I
dropped its station without the required 30-day advanced written notice, we will require TCI-I to provide a
written explanation of its actions in this matter to the Commission.

      8. Accordingly, IT IS ORDERED, that the petition filed February 27, 1997, on behalf of
WFXV-TV, Inc. IS DENIED pursuant to 615 of the Communications Act of 1934, as amended (47 U.S.C.
535).

      9. IT IS FURTHER ORDERED that United Cablevision of Southern Illinois, Inc., d/b/a TCI
of Illinois SHALL PROVIDE, within thirty (30) days of the release date of this order, a written explanation
of its actions in removing WSPY-LP from its Newark, Illinois cable system to the Chief, Consumer
Protection and Competition Division, Cable Services Bureau, with a copy served on WSPY-LP.

      10. 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