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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 Adell Broadcasting Corporation) CSR-5004-M against Harron Communications ) ) Channel Positioning Complaint ) MEMORANDUM OPINION AND ORDER Adopted: September 12, 1997 Released: September 19, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Adell Broadcasting Corporation, licensee of Television Broadcast Station WADL (Ind., Ch. 38), Mt. Clemens, Michigan, filed a must carry complaint asking that the Commission require Harron Communications to carry Station WADL on cable channel 38 on its cable systems serving the communities of Armada, Bruce, Chesterfield, Lenox, Burtchville, Clyde, Brown City, Peck, Speaker Township, Capac, and Elk Township, Michigan. An opposition to this petition was filed on behalf of Harron to which WADL replied. SUMMARY OF PLEADINGS 2. In support of its petition, WADL states that it was originally carried on Harron's systems on cable channel 8 and was located on that channel on January 1, 1992. Subsequently, it states that Harron moved its station outside the broadcast tier to channel A-2, which according to Harron, appears on any of three channels depending on the manufacturer of the individual cable ready television sets or vcrs used. WADL states that since the majority of Harron-provided converter boxes display channel A-2 on Channel 1, the station is so listed on the systems' channel line-up cards. In response to Harron moving WADL to channel A-2 from 8, WADL requested that its station be carried on channel 38 instead of channel 8. Harron maintained that carriage on channel 38 was not possible. WADL states that the reason given by Harron's regional manager for this refusal was that it was not possible to carry the station on channel 38 and that the system had no "plans in the future to make cable channel 38 part of our basic level of services." WADL argues that 76.57 of the rules provides that "at the election of the licensee of a local commercial broadcast television station, . . ., a cable operator shall carry such signal on the cable system channel number on which the local commercial television station is broadcast over the air, or on the channel on which it was carried on July 19, 1985, or on the channel on which it was carried on January 1, 1992." WADL states that in light of this it would be entitled to carriage either on its over-the-air channel, 38, or at the least on cable channel 8, the channel on which it was broadcast on January 1, 1992. Since it has shown that it is entitled to carriage on its preferred over-the-air channel, WADL therefore requests that the Commission direct Harron to comply with this requirement. 3. Harron states in its opposition that WADL's request should be denied due to the fact that carriage on channel 38 would cause substantial technical problems and another local commercial station has exercised its must carry and channel positioning rights to channel 8. Harron states that the basic broadcast tier of services on its systems consists of Channels 2 through 13, Channel 98 and Channel 99. Harron points out that Channel 98 appears on almost all addressable set-top converter boxes as Channel 1 and appears on cable ready television sets as Channel 98 and it is taking measures to ensure that subscribers are provided an explanation both on its channel line-up cards and its on-screen directory that WADL can be found on either Channel 1 or Channel 98. Harron states that it feels that this placement of WADL at the top of its basic service tier is consistent with the Commission's rules and not only benefits the station, but makes it attractive as well to both subscribers and advertisers. Harron argues that although the rules provide three channel position options, the Commission does permit exceptions in instances where either a compelling technical reason prohibits accommodation of the request or in situations where more than one must carry station requests the same channel. In such instances, Harron maintains that the cable system may place the station on a channel of the cable system's choice, provided that the channel is on the basic tier. It states that it has done so here. 4. Harron argues that in order to include Channel 38 on its basic tier, as requested by WADL, it would need to install a comb line filter in order to isolate Channel 38 and allow it to pass to all basic-only customers and at the same time trap expanded tier stations below 37 and above 39. It argues that the necessary comb line filters must be ordered on a custom basis and are not suitable for outdoor installation, but would require special environmental housing enclosures mounted to the customer premises. Harron states that although it is physically possible to install such a system of filters and traps, the costs inherent in such a requirement would exceed $877 per customer and the aggregate equipment and labor cost for all 4,513 basic-only customers that would need to receive the additional comb line filter would exceed $3,960,800. Harron points out that its gross annual revenues per basic-only subscriber for last year were $81.60 and its total gross annual revenues for these subscribers $268,260. With its monthly customer service charges totalling only $6.80 for basic-only customers, Harron argues that the $877 per customer cost of placing Channel 38 on the basic tier is not a mere "inconvenience." In addition, Harron states that returning WADL to its alternative choice of Channel 8 is also not possible as it is currently occupied by Station WWJ-TV (Channel 62), Detroit, Michigan, which has first claim rights to that cable channel. Harron indicates that WWJ-TV was previously carried on Channel 8 on its systems between 1982 and 1988 under the station's former call letters WGPR. After it was temporarily moved to Channel 53, Harron states that it returned the station to Channel 8 after a September 1993 must carry request from WWJ-TV and it has held that position ever since. Therefore, Harron argues that WADL has no rights to that channel position and Harron should be allowed to continue placement of WADL on Channel 98. 5. In its reply, WADL indicates that, although it is not conceding that Harron has justified its failure to carry its station on Channel 38, it nevertheless voluntarily withdraws its request to be carried on this channel in light of the expense purportedly involved. However, WADL maintains that it is still entitled to be carried on the broadcast tier in the same manner as all of the other must carry signals and it does not waive this requirement. WADL points out that Harron concedes that its carriage of WADL variously on channels 1, 98 and 62 is confusing, but its steps to alleviate this confusion do not satisfy Commission carriage requirements. Moreover, continues WADL, Harron's claim that due to WWJ-TV's rights to channel 8 it could unilaterally select WADL's channel placement is without support. The Communications Act of 1934, as amended, provides that a different channel position other than those set forth under 76.57 of the rules is possible only where the cable operator and the broadcaster mutually agree. WADL argues that no such agreement has been made in this instance. Therefore, WADL maintains that Harron should not be allowed to relegate its station to obscurity, particularly when three of the stations which make up its basic broadcast tier are not must carry stations. Since it is clearly entitled to carriage on the basic tier in the same manner as other mandatory signals, WADL concludes that it should, at the least, be carried on one of the three basic channels currently being utilized for foreign and/or distant signal carriage and should not be assigned to any channel without its consent. DISCUSSION 6. Since WADL has withdrawn its request for carriage on cable channel 38, the only issues remaining to be addressed are the legitimacy of Harron's placement of WADL on Channel 98 and WADL's entitlement to be carried in the same manner as other mandatory signals on the systems. Harron has stated its belief that in instances where the mandated channel options are not possible, a cable system has the right to place a must carry station on a channel of the cable system's choice, so long as that channel is on the basic tier. We agree with Harron's basic interpretation of our rules. However, we find that Harron's carriage of WADL fails to meet the requirement that a must-carry station be carried on single basic tier channel. 7. While WADL's withdrawal of its request to be carried on channel 38 allowed Harron the freedom to place the station on any basic tier channel, WADL did not give up its right to be carried on a basic tier channel available to all subscribers. Harron is currently carrying WADL on Channel 98. Because of the configuration of Harron's cable system not all of its subscribers can receive WADL on channel 98. Instead WADL is received on different channels by a number of Harron's subscribers. WADL is entitled to be carried on one cable channel on Harron's basic tier which can be uniformly received by all of Harron's subscribers. Consequently, we will order Harron to place WADL on a basic tier channel which is uniformly available. ORDERING CLAUSES 8. Accordingly, the petition filed May 2, 1997, on behalf of Adell Broadcasting Corporation IS GRANTED in accordance with Section 614(b)(6) (47 U.S.C. 534) of the Communications Act of 1934, as amended, and Harron Communications IS ORDERED to relocate WADL to a basic tier channel which can be uniformly received by its subscribers within sixty (60) days of the release date of this order. 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