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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 Horizon Broadcasting Corporation) CSR-5025-M against Horizon Cable I Limited Partnership) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: October 17, 1997 Released: October 21, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Horizon Broadcasting Corporation, licensee of Station WJUE-TV (Channel 43), Battle Creek, Michigan, has filed a "Complaint For Carriage" with the Commission, pursuant to 76.61 of the Commission's Rules, claiming that, despite its requests, Horizon Cable I Limited Partnership ("Horizon"), operator of cable systems serving various Michigan communities, has refused to carry WJUE-TV, even though the station and each of Horizon's systems are located in the Grand Rapids- Kalamazoo-Battle Creek, Michigan area of dominant influence (or "ADI"). Horizon has filed an "Opposition," and WJUE-TV replied to it. SUMMARY OF THE PLEADINGS 2. WJUE-TV states in support of its complaint, that it is a full power commercial broadcast station which received a license from the Commission on February 28, 1997. Station WJUE-TV adds that it delivers an adequate signal of at least -45 dBm to Horizon's headends and that it has offered a pre- amplifier to Horizon's systems. According to WJUE-TV, it advised Horizon by letters dated October 30, 1996, that it was electing must-carry status, and that it had commenced operations, pursuant to program test authority, as a new station on October 10, 1996. Horizon responded by letter, dated November 19, 1996, which questioned whether or not WJUE-TV was properly licensed as a commercial broadcast station and qualified as a must-carry signal. By letter dated December 5, 1996, WJUE-TV responded, explaining that stations with program test authority could invoke the must-carry rules. On December 18, 1996, Horizon responded by letter advising WJUE-TV not to consider filing a carriage complaint while Horizon was still cooperating with the station and attempting to resolve their carriage dispute. Horizon added in this letter that WJUE-TV had commenced operations seventy days after the must-carry notification deadline. By letter dated January 9, 1997, WJUE-TV responded stating that its carriage election was timely made, pursuant to  76.64(f)(4) of the Commission's rules, and that it would become effective on January 28, 1997. In addition, WJUE-TV noted that it was willing to work with Horizon to expeditiously implement its carriage, and it suggested that initially they take signal measurements at each of Horizon's headends. Horizon never responded to this letter. On April 2, 1997, WJUE-TV notes that it sent a letter to the system "formally" requesting carriage and stating that without a "clear and unequivocal" carriage commitment from the system within thirty days, it intended to file a complaint with the Commission since it was apparent by then that Horizon's negotiations really only amounted to a stalling tactic. Horizon responded by letter dated April 18, 1997, denying carriage, and WJUE-TV filed its complaint well within sixty days, on June 6, 1997. Since it is in the same ADI as Horizon's cable systems and will not increase Horizon's copyright liability, WJUE-TV states that it is entitled to carriage by Horizon. The station notes that it provides an adequate signal to Horizon's four headends and that new stations with program test authority do have must-carry rights, citing the Bureau's prior decision in Johnson Broadcasting, Inc. The station adds that the window for notifying cable operators is between sixty days prior to commencing broadcast and thirty days after commencing broadcast, pursuant to  76.64(f)(4) of the rules, and that it notified Horizon of its must-carry election within twenty days of commencing broadcast. Had it failed to do so, WJUE-TV contends, it still would default to a the status of a must-carry signal, just as any other local station that failed to make an election. 3. In response, Horizon asks the Bureau to dismiss WJUE-TV's complaint as late-filed, since Horizon contends that WJUE-TV first demanded carriage by the letters dated October 30, 1996, but that it did not file its complaint until over seven months later, on June 6, 1997. Horizon notes that it responded by letter dated November 19, 1996, in which it questioned whether or not WJUE-TV was correctly licensed for must-carry purposes, and reserved its right to deny the station must-carry for other reasons. In response, Horizon received a letter from WJUE-TV, dated December 5, 1996, which Horizon states threatened a must-carry complaint, and which also noted "[p]lease be aware that your basis for denying carriage is flawed." Horizon responded to this letter by letter dated December 18, 1996, inquiring about WJUE-TV's ownership, referencing a pending license transfer proceeding, and reminding WJUE-TV that new television stations must elect between must-carry and retransmission consent sixty days before commencing program tests. Station WJUE-TV responded by letter dated January 9, 1997, recognizing the ninety day filing window and stating that "Horizon should currently be making plans to add WJUE to its line-up so that it can begin carrying the station by January 28, 1997." On April 2, 1997, WJUE-TV sent Horizon another carriage request, noting that Horizon had not yet added the station. Horizon responded by letter dated April 18, 1997, stating that it still does not believe that WJUE-TV is entitled to carriage. According to Horizon, WJUE-TV's first carriage request was in its letters dated October 30, 1996, and not in any of its later correspondence, including that of April 2, 1997. Citing the Bureau's prior decision in Fant Broadcasting Company, Horizon contends that, pursuant to  76.7(c)(4)(iii)(B) of the Rules, WJUE-TV should have filed its complaint within ninety days of its initial letter of October 30, 1996, or by January 28, 1997, unless the station was already being carried, whether or not it understood that Horizon's letter dated November 19, 1996 was a denial of carriage. Horizon speculates that the reason WJUE-TV waited 219 days after its initial letter to file a complaint with the Commission was that it was awaiting the outcome of pending must-carry litigation in the United States Supreme Court before pursuing the instant case. Horizon adds that its letters from November 19, 1996 through April 18, 1997, all denied WJUE-TV carriage. Citing the Bureau's prior decision in Johnson Broadcasting, Inc., supra, Horizon notes that stations have must-carry rights when they commence broadcasting with program test authority. Horizon adds that no Commission rule allows commercial broadcast stations to restart their "60-day complaint clock" to file carriage complaints following completion of the licensing process. According to Horizon, WJUE-TV's filing delay invalidated its carriage request, citing the Commission's prior decision in Friendly Bible Church, Inc. 4. In reply, WJUE-TV contends that Horizon's duplicity in stalling its carriage by requesting additional information from the station and by suggesting that the station not file a must-carry complaint, which might be unnecessary, ought not to be rewarded by dismissing the instant case. The station adds that both Horizon's letters of November 19, 1996, and of December 18, 1996 suggested that the system would be willing to carry the station if the station provided the system with some additional information. According to WJUE-TV, its complaint was timely filed within sixty days of Horizon's formal denial of carriage in its letter dated April 18, 1997. The station notes that, had Horizon flatly denied it carriage earlier, it then would have filed a complaint with the Commission earlier. Station WJUE-TV contends that the Commission's rules do not require stations to file complaints while systems continue to hold out the prospect of voluntary carriage, and that the Commission's sixty day filing period ought not to run until the cable operator has unequivocally denied the station carriage. Station WJUE-TV adds that requiring the filing of carriage complaints within ninety days of a station's initial carriage request wastes Commission resources, as well as those of the station, since it results in the filing of speculative complaints. DISCUSSION 5. As the Bureau previously explained in its decision in Friendly Bible Church, Inc., the Commission's rules concerning its must-carry complaint procedure are quite clear: "No must-carry complaint filed pursuant to  76.61 will be accepted by the Commission if filed more than sixty (60) days after the . . . denial by a cable television system operator of a request for carriage . . . ." In denying an application for review of this decision, the Commission explained that adoption of a time limit both for must-carry and for channel positioning complaints was appropriate, because it balanced the interests of broadcast stations in asserting their carriage rights, with the interests of cable systems in having certainty in their channel and carriage obligations to broadcasters, together with the interests of subscribers in having minimal viewing disruption and certainty of service. The Commission added that if within thirty days of the cable operator's initial request for carriage or for channel position, the cable operator either denied it or did not respond to it, the cable system then only had sixty days to file a complaint with the Commission. 6. According to 76.55(e) of the Commission's rules, the market of commercial television broadcast station, such as WJUE-TV, is defined as its ADI. A commercial station is entitled to request carriage on any cable system operating in the same ADI. 47 C.F.R.  76.55(c). Both WJUE-TV and Horizon are located in the same ADI. However, Horizon maintains that WJUE-TV failed to file a complaint within sixty days after a demand for carriage was made by it, as required under the Commission's rules. Horizon asserts that WJUE-TV demanded carriage in its October 30, 1997 letter, in which it advised Horizon that it was electing must-carry status. Horizon claims that, after the specified thirty day response period, WJUE-TV was bound to file a complaint within sixty days with the Commission, which it did not do. We find, however, that WJUE-TV's letter of October 30, 1996 was not a demand for carriage, but merely an election notification required by our rules. However, we also find that Horizon did make a demand for carriage by letter dated January 9, 1997, in which it said that Horizon ". . . should currently be making plans to add WJUE to its line-up so that it can begin carrying the station by January 28, 1997," and that it was. . . exercising its right to carriage on all of those cable systems in the ADI to which it is entitled." This, obviously, was a carriage request, whatever the import of its previous correspondence with Horizon. Horizon did not respond to WJUE-TV's January 9, 1997 letter, and WJUE-TV did not file a complaint with the Commission until June 6, 1997, almost five months later. Because WJUE-TV's complaint was not filed within sixty days of Horizon's failure to respond to its complaint, the petition must be dismissed, pursuant to  76.7(c)(4)(iii)(B) of the Commission's rules. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED, that the "Complaint For Carriage" (CSR-5025-M), filed June 6, 1997, by Horizon Broadcasting, Corporation., licensee of Station WJUE-TV (Channel 43), Battle Creek, Michigan, IS DISMISSED as untimely filed. 8. 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