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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 ) ) Lankenau Small Media Network, Inc. ) against Ohio Cablevision Network, Inc. ) CSR 5030-M d/b/a TCI Cablevision of Ohio ) ) Request for Carriage of WDFP-LP, Defiance, Ohio ) MEMORANDUM OPINION AND ORDER Adopted: October 24, 1997 Released: October 29, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Lankenau Small Media Network, Inc. ("Lankenau"), licensee of low power station WDFP-LP, Defiance, Ohio (the "Station"), filed a complaint pursuant to Sections 76.7 and 76.61 of the Commission's Rules, 47 C.F.R.  76.7, 76.61, claiming a right to mandatory carriage of the Station on the cable systems of Ohio Cablevision Network, Inc. d/b/a TCI Cablevision of Ohio ("TCI") serving Bryan and Paulding counties, Ohio and the surrounding areas. TCI filed an opposition to the complaint, and Lankenau filed a reply. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended, and implementing rules adopted by the Commission in its Report and Order, MM Docket 92-259, a low power television station may be entitled to mandatory carriage on cable systems located within the station's market provided that the station constitutes a "qualified low power station" as that term is defined in, and pursuant to the conditions of, the Commission rules set forth in 47 C.F.R.  76.55(d). 3. In its complaint, Lankenau seeks an order granting it must carry status on the TCI cable systems serving Bryan and Paulding, Ohio and states that the Station seeks to be placed on Channel 19 of the cable systems because that is its over-the-air broadcast channel number. Lankenau states that TCI denied the Station carriage on TCI's systems because TCI believed that the Station's "programming format" did not meet the requirements of 47 C.F.R.  76.55(d)(2). Under this section, in order to obtain carriage as a "qualified low power station," a station must provide, among other things, programming for children and local news and informational needs that the Commission finds are not being provided by full power stations because the full power stations are geographically too far away from the low power station's locale: Such station [must meet] all obligations and requirements applicable to full power television broadcast stations under part 73 of this chapter, with respect to the broadcast of nonentertainment programming; programming and rates involving political candidates, election issues, controversial issues of public importance, editorials, and personal attacks; programming for children; and equal employment opportunity; and the Commission determines that the provision of such programming by such stations would address local news and informational needs which are not being adequately served by full power television stations because of the geographic distance of such full power stations from the low power station's community of license. 4. Lankenau states that its programming, which apparently sometimes includes only moving characters or words printed on the screen, constitutes broadcast programming under the rules. The Station's programming includes: Local weather radar pictures every few minutes, school lunch menu listings for elementary school children each morning, local area news summaries. . . public service announcements regarding local activities interspersed with commercial messages throughout the day. . . . Continuous comprehensive local weather information is scrawled across the bottom of the screen 24 hours a day. The aural portion of [the Station] is a re-transmission of radio station WDFM-FM, consisting primarily of contemporary music with frequent news and weather updates 24 hours daily. In addition, Lankenau states that it carries other types of programming from 6 p.m. to 1 a.m., Monday through Friday, which includes local infomercials, movies, scoreboard reports, music shows, outdoors shows and programs called "Gerbert" and "The Lonely Chef." Lankenau also states that it carries the Detroit Tigers, the Cleveland Cavaliers, and Big Ten basketball and football. Finally, Lankenau asserts that it complies with the rules by providing children's programming and programming that addresses local news and informational needs that are not met by distant full power stations. Further, Lankenau states that there are no full power stations in Paulding, Defiance, Williams or Fulton counties, the counties that the Station apparently serves. 5. In its opposition to the complaint, TCI asserts three reasons why the Station is not a "qualified low power station" under the rules. TCI states that (1) the Station does not provide the minimum programming hours each day, (2) the Station does not provide the minimum of three hours per week of children's programming, and (3) the Station has failed to meet its burden of showing that its programming addresses local news and informational needs not being addressed by full power stations because of geographic distance from the low power station's locale. 6. Under 47 C.F.R. 76.55(d)(1), a low power station must show that it meets the minimum number of hours of operation required by the Commission for full power stations. Section 73.1740(a)(2)(ii) of the Commission's rules requires not less than two hours of programming each day and not less than a total of 28 programming hours each week. For purposes of this section, Visual transmissions of test patterns, slides, or still pictures accompanied by unrelated aural transmissions may not be counted in computing program service. 7. First, TCI states that the complaint does not allege any information regarding broadcasts on Saturday or Sunday and that it is impossible to discern from Attachment E to the Complaint whether the Monday through Friday programming constitutes "program service." TCI states that the Station's programming appears to be merely "still pictures" of characters, or words, announcing events or the weather, that is accompanied by unrelated FM aural transmissions, and accordingly does not constitute program service under the rules. 8. Second, TCI states that the Station does not meet the children's programming obligations of full power commercial stations by not offering at least "three hours per week of Core Programming." Section 76.55(d)(2) requires that low power stations meet this requirement as a prerequisite to coverage. 9. Third, TCI states that the Station has not shown that its programming addresses "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." TCI states that the station has failed to "introduce any programming logs or other evidence supporting its contention that it provides local news and information programming directed at the communities at issue." 10. TCI does not contest that there are no full power television stations in Paulding, Defiance, Williams or Fulton counties, but states that its Bryan and Paulding systems carry ten stations based in the surrounding cities of Ft. Wayne, Indiana; Angola, Indian;, Toledo, Ohio; and Lima, Ohio that are "significantly viewed" in the Bryan and Paulding service areas and that these states "adequately serve the local news and information needs" of the Station's viewers. 11. In its reply to TCI's first point regarding whether its programming constitutes program service, Lankenau states that it operates 24 hours per day, 7 days per week. Lankenau states that its news reports scroll down or across the screen and that its local radar weather shows the movement of local weather systems across the screen. Moreover, Lankenau states that the weather images are accompanied by an aural transmission of the weathercaster's comments, local sports scores are given aurally as they are scrolling across the screen, and that local new reports are broadcast in text and transmitted aurally at the same time. 12. In its reply to TCI's second point regarding children's programming, Lankenau states that it provides six hours of children's programming weekly, which includes five half hour shows of "Gerbert," which address lessons for children under six, and the "Children's Room," which is "designed to give children under six an appreciation of reading." 13. In its reply to TCI's third point regarding local news, Lankenau states that it provides the only weather reports for the six counties surrounding it, local agricultural information, local school closings and sports reports that go unreported on the high power stations, real estates shows about local real estate, musical programming for the area's hispanics, and local news and public service announcements not covered by the high power stations. Lankenau gives four examples of local events that were covered only by the Station and provides logs that demonstrate the frequency that it addresses the above-discussed local news. In particular, the logs note that the local weather scrolls continuously across the bottom of the screen. DISCUSSION AND ANALYSIS 14. We find that the Station has shown that it is a "qualified low power station" and will order TCI to grant the Station mandatory carriage on Channel 19 of its Bryan and Paulding systems. First, we find that the Station's programming constitutes "program service" under Section 73.1740(2)(iii). The Station's weather and news announcements are not "still pictures" but rather are text that moves continuously across the screen. In addition, these announcements are accompanied by aural transmissions that are related to the visual broadcasts. 15. Second, we find that the Station has met the children's programming requirements of Section 76.56 with its showing that "Gerbert" and the "Children's Room" are directed towards young children and run six hours weekly. 16. Third, we find that the Station has made a prima facie case that it addresses local news and informational needs that are not being served by the more distant full power stations. The Station has provided program logs that detail the specific types of local information that it provides its viewers. TCI does not argue that the full power stations in the surrounding cities provide the same or similar local information to the Station's six county area. 17. Because the Station has established that it is a "qualified local power station," it is entitled to carriage on Channel 19 of the TCI systems because that is the channel that the Station is broadcast over the air. ORDERING CLAUSES 18. Accordingly, IT IS ORDERED, pursuant to Sections 76.61(a)(4) and 76.57(a), that WDFP-LP of Defiance, Ohio is GRANTED must-carry status on the TCI cable systems serving Bryan and Paulding, Ohio and that TCI is ORDERED to carry WDFP-LP on its systems on Channel 19 within 60 days from the date this Order is released. 19. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321. FEDERAL COMMUNICATIONS COMMISSION Gary Laden Chief, Consumer Protection and Competition Division Cable Services Bureau