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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-5026-M against Cablevision of Michigan, Inc.) ) 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, Cablevision of Michigan, Inc. ("Cablevision"), operator of a cable system serving various communities in Kalamazoo County, Michigan, has refused to carry WJUE-TV, even though the station and each of Cablevision's systems are located in the Grand Rapids-Kalamazoo-Battle Creek, Michigan area of dominant influence (or "ADI"). Cablevision has filed an "Opposition," and WJUE-TV replied to it. SUMMARY OF PLEADNGS 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 Cablevision's headend and that it has offered a pre-amplifier to Cablevision's system. According to WJUE-TV, it advised Cablevision by letter 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. Cablevision responded by letter, dated December 18, 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 January 9, 1997, WJUE-TV responded, explaining that television stations with program test authority and pending license applications could invoke the must-carry rules. Station WJUE-TV also noted that its must-carry election would be effective on January 28, 1997, and that it had been timely made, pursuant to 47 C. F. R.  76.64(f)(4). On February 14, 1997, Cablevision responded by letter contending that  76.64 only applies to retransmission consent elections and not to must-carry elections. In addition, Cablevision stated that WJUE-TV's must-carry election was untimely because new stations must make must-carry elections sixty days prior to commencing program tests. 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 is in the same ADI as Cablevision's cable systems and will not increase Cablevision's copyright liability, WJUE-TV states that it is entitled to carriage by Cablevision. The station notes that it provides an adequate signal to Cablevision's headend, 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 if it missed this window, it would only default to the status of an existing station that had must-carry status because it did not make an election. Station WJUE-TV adds that it filed its complaint with the Commission, after various negotiation attempts with Cablevision, well within sixty days of its letter dated April 2, 1997, which was its first correspondence subsequent to grant of its license on February 28, 1997, but that Cablevision responded by letter dated April 28, 1997 denying carriage, which was when WJUE-TV realized that the system did not intend to carry it, and that Cablevision's prior justifications for denying carriage were merely subterfuge. 3. In response, Cablevision asks the Bureau to dismiss WJUE-TV's complaint as late-filed, since Cablevision contends that WJUE-TV first demanded carriage in its letter dated October 30, 1996, but that it did not file its complaint until over seven months later, on June 6, 1997. Cablevision notes that it responded by letter dated December 18, 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, Cablevision received a letter from WJUE-TV, dated January 9, 1997, which Cablevision states threatened a must-carry complaint, and which also noted "[p]lease be aware that your basis for denying carriage is flawed." Cablevision responded by letter dated February 14, 1997, 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. 4. On April 2, 1997 WJUE-TV sent Cablevision another carriage request, noting that Cablevision had not added the station. Cablevision responded by letter dated April 28, 1997, stating that it still does not believe that WJUE-TV is entitled to carriage. According to Cablevision, WJUE-TV's first carriage request was in its letter 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, Cablevision 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. Cablevision speculates that the reason WJUE-TV waited 222 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. Cablevision adds that its letters from December 18, 1996 through April 28, 1997, all denied WJUE-TV carriage. Citing the Bureau's prior decision in Johnson Broadcasting, Inc., supra, Cablevision notes that stations have must-carry rights when they commence broadcasting with program test authority. Cablevision 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 Cablevision, WJUE-TV's filing delay invalidated its carriage request, citing the Commission's prior decision in Friendly Bible Church, Inc. 5. In reply, WJUE-TV contends that Cablevision's duplicity in stalling its carriage by requesting additional information from the station and by suggesting that this might influence the system's must-carry decision ought not to be rewarded by dismissing the instant case. The station adds that both Cablevision's letters of December 18, 1996 and of February 14, 1997 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 Cablevision's formal denial of carriage in its letter dated April 28, 1997. The station notes that, had Cablevision flatly denied it carriage earlier, it then would have filed a complaint with the Commission earlier. Station WJUE-TV contends that Commission 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 6. 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. 7. 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 Cablevision are located in the same ADI. However, Cablevision 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. Cablevision maintains that WJUE-TV demanded carriage in its October 30, 1997 letter, in which it advised Cablevision that it was electing must-carry status. Cablevision claims that, after the specified thirty day response period, WJUE-TV was bound to file a complaint within sixty days with the Commission, which the station did not do. 8. 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 WJUE- TV did make a demand for carriage by letter dated January 9, 1997, in which it said that Cablevision ". . . should currently be making plans to add WJUE to its line-up so that it can begin carrying the station by January 28, 1997." This, obviously, was a carriage request, whatever the import of its previous correspondence with Cablevision. WJUE-TV maintains that Cablevision's subsequent letter of February 14, 1997 evidenced continuing negotiations between it and Cablevision. However, a reading of this letter does not support this claim. Moreover, WJUE-TV did not file its complaint with the Commission until June 6, 1997, almost four months after Cablevision's letter of February 14, 1997, and almost five months after WJUE-TV made its initial demand for carriage, on January 9, 1997. Because WJUE-TV's complaint was not filed within sixty days of Cablevision's failure to respond its complaint, its petition must be dismissed, pursuant to  76.7(c)(4)(iii)(B) of the Commission's rules. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, that the "Complaint For Carriage" (CSR-5026-M), filed June 6, 1997, by Horizon Broadcasting, Corporation., licensee of Station WJUE-TV (Channel 43), Battle Creek, Michigan, IS DISMISSED as untimely filed. 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