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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 Telecinco, Inc. against ) CSR-5013-M TCI Cablevision of Puerto Rico ) ) Request for Carriage ) 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. Telecinco, Inc., licensee of Station WORA-TV (Ind., Ch. 5), Mayaguez, Puerto Rico, has filed a must carry complaint asking that the Commission order TCI Cablevision of Puerto Rico ("TCI-PR") to commence carriage of WORA-TV on its cable system serving the communities of Utuado, Lares, San Sebastian, Arecibo, Camuy and Hatillo, Puerto Rico. TCI-PR has filed an opposition to this complaint to which WORA-TV has replied. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission is its Report and Order in MM Docket 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence," or ADI, as defined by the Arbitron audience research organization. ARGUMENTS OF THE PARTIES 3. In support of its request, WORA-TV states that Mayaguez, its city of license, is located on the west coast of Puerto Rico as are the communities served by the TCI-PR system. Moreover, WORA-TV points out that the respective communities are served by a common headend located in the immediate Lares area, only 12.6 miles from the station's transmitter. As a result, WORA-TV maintains that it substantially exceeds the minimum signal strength level required by the Commission. WORA-TV states that, by letter dated September 6, 1996, it notified TCI-PR of its election of must carry status with respect to its cable communities, as of the beginning of the January 1997 election period. After TCI-PR failed to respond to this letter or commence carriage of its signal, WORA-TV states that it again requested carriage, by letter dated January 21, 1997. However, WORA-TV argues that, after a series of misleading and evasive contacts with TCI-PR personnel, it was summarily denied carriage on TCI-PR's system. 4. In its opposition, TCI-PR argues that WORA-TV's complaint should be denied for the following reasons: 1) WORA-TV does not provide a "good quality" signal to TCI-PR's headend now located in Vega Baja; 2) the programming offered by WORA-TV substantially duplicates that of currently-carried station WLII, which is located closer to the system; and 3) WORA-TV's complaint was untimely filed pursuant to 76.7(c)(4)(iii) of the rules. TCI-PR states that WORA-TV is under the incorrect assumption that the communities herein are all served "by a common TCI headend located in the immediate Lares area." In fact, TCI-PR points out that the communities of Arecibo, Camuy and Hatillo are served by the system's headend located in Vega Baja, while the remaining communities of Lares, San Sebastian and Utuado, currently served by the Lares headend, will be consolidated with the Vega Baja headend no later than July 1997. Moreover, TCI-PR maintains that a signal strength study it conducted on February 3, 1997 indicates that WORA-TV fails to meet the Commission's signal strength criteria at the Vega Baja headend. 5. TCI-PR states that in a February 4, 1997 letter it notified WORA-TV of its failure to provide a good quality signal and denied carriage on that basis. Secondly, TCI-PR argues that 76.56(b)(5) specifically states that a cable operator is not required "to carry the signal of any local commercial television station that substantially duplicates the signal of another local commercial television station that is carried on its cable system." With regard to duplicating signals, TCI-PR states that it is only required to carry the station closest to its principal headend. TCI-PR states that, with the exception of a few ten-minute news inserts, WORA-TV and currently-carried WLII simultaneously broadcast identical programming Monday through Friday. Since Caguas, WLII's city of license, is less than 35 miles from the Vega Baja headend and Mayaguez, WORA-TV's city of license more than 50 miles, TCI- PR argues that it would not be obligated to carry WORA-TV under this requirement. Finally, TCI-PR maintains that even if WORA-TV were otherwise entitled to carriage, its complaint, filed May 30, 1997, is procedurally defective in that it was filed more than 60 days after denial of its request for carriage. TCI-PR points out that since it denied WORA-TV's must carry request on February 4, 1997, the deadline for the filing of its complaint would have been April 5, 1997. 6. In reply, WORA-TV argues that it appears that TCI-PR is attempting to avoid its must carry obligations by manipulating the location of its headend facilities, something expressly prohibited in the Commission's Report and Order. Moreover, WORA-TV states that TCI-PR used the apparent consolidation of communities to the Vega Baja headend as a means not only to delay carriage of its signal but to assert that WORA-TV should be denied carriage rights due to a signal deficiency at the Vega Baja location, even though it is undisputed that the station delivers an adequate signal to the Lares location -- the headend location over which WORA-TV's protracted must carry negotiations with TCI-PR took place. With regard to timeliness, WORA-TV points out that TCI-PR fails to acknowledge the fact that its February 4, 1997 letter invited further negotiations between the parties to resolve the signal strength deficiencies or the subsequent series of conversations, meetings and field tests over the course of several months. Indeed, states WORA-TV, those negotiations culminated in its specific proposal to TCI-PR to deliver a good quality signal to the Vega Baja headend via facilities relatively proximate to Vega Baja; a proposal to which TCI-PR has not responded to. Finally, WORA-TV maintains that even assuming, arguendo, that it does substantially duplicate the programming of WLII, TCI-PR's arguments in this respect are flawed since the Lares headend (and the prior Arecibo headend) is substantially closer to Mayaguez than Caguas and therefore would be deemed the "closest" signal. WORA-TV concludes that TCI-PR is not entitled to simply declare the Vega Baja location its "principal" headend, close down its long-existing Lares headend, and thereby preclude WORA-TV from carriage in the instant communities. DISCUSSION 7. With regard to the issue of the timeliness of WORA-TV's complaint, we do not believe that TCI-PR's February 4, 1997 letter notifying WORA-TV of signal quality problems at the Vega Baja headend was a firm denial of WORA-TV's must carry request. In that letter, TCI-PR stated that ". . . we find that your signal does not qualify for must carry at this time. If you disagree with our findings, we would be happy to meet with your engineer to review the tests and the procedures used and/or conduct the test again." In addition, it was stated "we would be happy to meet with you regarding these results so that we may jointly agree on what specific tests you propose in order to provide a good quality signal to our customers." Moreover, it is uncontroverted that there were subsequent negotiations regarding WORA-TV's signal quality problems extending over a period of some months. Therefore, we cannot consider WORA-TV's May 30, 1997 complaint as being untimely filed. 8. Secondly, we find no evidence to support WORA-TV's allegation that the reorganization of TCI-PR's system under one headend located at Vega Baja was done simply in order to avoid carriage of WORA-TV's signal. Cable systems are not precluded from technically conforming their systems in the manner most appropriate to the needs of their subscribers. TCI-PR stated in its opposition that the year-long consolidation of its system under one headend would enable it to provide its customers with enhanced picture quality, quicker service response time, offer new products and services such as high speed data and reduce administrative costs. Moreover, apparently this consolidation project began sometime around July 1996, well before WORA-TV first notified TCI-PR of its must carry intentions, since the communities formerly served by the Lares headend, the last scheduled to be consolidated, were transferred to the Vega Baja headend in July 1997. 9. Third, in light of the fact that we find the consolidation of TCI-PR's system under one headend located at Vega Baja to be valid, we find that the signal strength test of WORA-TV's signal performed by TCI-PR at the Vega Baja headend to be relevant and, after review, concur that it indicates that WORA-TV fails to meet the Commission's established signal quality criteria for a good quality signal. However, we note WORA-TV's claim in its reply regarding a specific proposal to TCI-PR "to deliver a good quality signal to the Vega Baja headend via its owned facilities at a point relatively proximate to Vega Baja." Under ordinary circumstances, we would find that the offer of the use of specialized equipment to improve a station's signal quality, even in the face of a poor signal quality test, to be sufficient to grant a station's must carry complaint. However, in the instant case, there is also the factor of WORA-TV's uncontroverted duplication of WLII's programming. Therefore, we agree with TCI-PR that its carriage of WLII, as the duplicating station closest to its principal headend, is consistent with 76.56(b)(5) of the rules, and WORA-TV would not be entitled to carriage under the restrictions of this section. ORDERING CLAUSES 10. Accordingly, in view of the foregoing, the complaint filed May 30, 1997, by Telecinco, Inc. IS DENIED pursuant to 614(d)(3) (47 U.S.C. 534) of the Communications Act of 1934, as amended. 11. 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