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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 ) ) Mid-Maine Community Broadcasting ) against State Cable TV Corporation ) CSR 4854-M ) Request for Carriage of WFYW-LP, Fairfield, Maine ) MEMORANDUM OPINION AND ORDER Adopted: October 31, 1997 Released: November 4, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Mid-Maine Community Broadcasting ("Mid-Maine"), licensee of low power station WFYW-LP, Fairfield, Maine, filed a Petition for Reconsideration of Mid-Maine Community Broadcasting v. State Cable TV Corporation, (Cable Serv, Bur. released March 4, 1997) ("Bureau Order"), which denied a complaint filed by Mid-Maine under 47 U.S.C. 534 and 47 C.F.R. 76.7 & 76.61(a) for mandatory carriage of low power station WFYW-LP on the cable system of State Cable TV Corporation ("State Cable") in Fairfield, Maine. State Cable filed an opposition to the petition. The Community Broadcasters Association filed a statement in support of the petition for reconsideration. Mid-Maine filed a reply. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended, and implementing Commission rules, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A low power television station may be entitled to mandatory carriage rights as a "qualified low power station," provided, among other things, all of the conditions described in Section 614(h)(2) of the Act are met. Among other factors Section 614(h)(2)(B) requires that a low power station seeking carriage establish "that local news and information needs of the relevant communities are not being adequately served by local full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license." A second requirement under Section 614(h)(2)(F) concerns whether a full power television broadcast station is licensed to any community in the county in which a low power station is located. If either of these conditions is not satisfied, the subject low power station is not considered a qualified low power station for carriage purposes. . MARKET FACTS AND ARGUMENT 3. The Bureau Order denied the complaint because Mid-Maine failed to support by program logs or other evidence its contention that WFYW-LP's programming is locally oriented and addresses local needs not addressed by programming of full power stations and provides local news and informational programming directed at the communities at issue. In view of this evidentiary failure, the Bureau Order concluded that WFYW-LP did not qualify as low power station entitled to mandatory carriage on State Cable's system serving the communities at issue, as contemplated by Section 614(h)(2)(B). 4. Mid-Maine submitted with the petition for reconsideration a listing of WFYW-LP's local programming which it asserts is not available on any other broadcast station in the local communities served by WFYW-LP. It also submitted several newspaper articles containing local comment on the station's programming. Mid-Maine argues that the program listings and the newspaper articles demonstrate that WFYW-LP offered a variety of news, sports, business, children's and informational shows dealing with local issues and individuals. Mid-Maine urges prompt consideration of its petition, stating that State Cable's refusal to carry WFYW-LP coupled with the Bureau Order's denial of must carry rights provided a "final blow" to the struggling station which "has gone dark." Mid-Maine plans to resume operation of WFYW-LP if the station is afforded must carry rights on State Cable's system. 5. In opposition, State Cable argues that the local programming showing made by Mid- Maine is both untimely and deficient. State Cable contends also that Mid-Maine failed to demonstrate that local news and informational needs of Fairfield residents are not being adequately served by local full power television stations. State Cable reasserts its argument not addressed in the Bureau Order that Mid-Maine improperly manipulated the community of license of WFYW-LP in order to qualify for mandatory carriage. Finally, State Cable suggests the matter is moot because WFYW-LP has gone off the air. 6. Mid-Maine replies by asserting that this case presents a classic example of a cable system destroying a competing advertising medium in its community through a denial of carriage that has resulted in forcing WFYW-LP off the air. It argues that the Supreme Court in Turner Broadcasting v. FCC, 117 S. Ct 1174 (1997) ("Turner"), recognized that the Congress identified a specific interest in insuring the continuation of local origination of broadcast programming and found must carry necessary to serve the Communications Act's goals of providing a fair, efficient, and equitable distribution of broadcast services. Mid-Maine points also to the Court's noting in Turner that the Congress recognized the ability of cable operators, through their control of programming channels to the subscriber, to silence competing voices. Mid-Maine contends further that it has made an un-rebutted showing that it provided and is willing to continue to provide local news and informational programming and that it had made a properly supported carriage request. Finally, Mid-Maine asserts that the principal losers are the Fairfield viewers, who have lost their local programming source. DISCUSSION AND ANALYSIS 7. Mid-Maine's petition for reconsideration will be granted, the Bureau Order will be set aside, and the request for mandatory carriage of WFYW-LP on State Cable's system will be granted. State Cable asserts that the programming information submitted with the petition was available to Mid- Maine when the must carry complaint was filed. State Cable notes that Commission rules provide that a petition for reconsideration which relies on information known or available to the petitioner prior to decision in a contested matter will not be granted. We reject State Cable's procedural objection to the submission of local programming information with Mid-Maine's petition as untimely filed. We have held that a cable system's undocumented assertions that LPTV's programming content is inadequate and that its subscribers were adequately supplied local programming by other stations insufficient to warrant a finding that the LPTV is not meeting its local programming responsibilities. We note on reconsideration that State Cable never challenged the adequacy of the local content of WFYW-LP's programming in opposing the must carry complaint. Instead, State Cable relied on its carriage of other stations serving the market. In these circumstance and in view of the mandate of the must carry provisions of the Telecommunications Consumer Protection and Competition Act of 1992 to determine whether a television station is entitled to must carry status, we will allow Mid-Maine to establish must carry qualifications by submitting supplemental programming information supporting its earlier contention concerning the local content of WFYW-TV's programming. 8. Turning to the merits, we find that the programming information now provided by Mid- Maine adequately demonstrates that WFYW-LP's programming is locally oriented and addresses local needs not shown to be addressed by programming of full power stations serving WFYW-LP's community of license. Mid-Maine provided substantial evidence showing that WFYW-LP carried at least eight hours weekly of programming consisting of a variety of news, sports, business, children's and informational shows dealing with local issues and individuals. The Bureau Order noted that full power television stations WABI-TV (Channel 5, CBS), WLBZ-TV (Channel 2, NBC), and WVII-TV (Channel 7, ABC), licensed to Bangor, Maine, place a Grade B or better signal over those communities and that WFYW- LP's community of license, Fairfield, receives the programming of full power Educational Television Station WCBB ( Ed. Ch. 10), licensed to Augusta, Maine. However, nothing in the record shows that these Bangor and Augusta stations address the local news and informational needs of Fairfield like WFYW-LP. In particular, State Cable provided no descriptive information, program logs, or other evidence of the local content of the programming of these full power stations. 9. The Bureau Order also noted that WFYW-LP was initially licensed to Waterville, Maine, located in Kennebec County, Maine. A request was subsequently made by Mid-Maine to change WFYW- LP's community of license to include both Waterville and Fairfield, Maine. On August 22, 1996, a further request was made to delete Waterville and specify only Fairfield as the station's community of license. Fairfield, the new community of license, is located in Somerset County, which unlike Kennebec County, has no licensed full power television station. State Cable contends Mid-Maine should not be permitted to modify WFYW-LP's license in this manner solely for the purpose of qualifying for must carry rights. However, State Cable failed to establish that Mid-Maine violated any Commission regulations applicable to LPTV license modification procedures. 10. In summary, we conclude that WFYW-LP satisfies the requirements of Section 614(h)(2)(B) and qualifies for must carry status on State Cable's system serving Fairfield, Maine. The record shows that WFYW-LP is qualified for must carry entitlement because the station's programming addresses local needs not addressed by programming of full power stations serving the community at issue here. The station also meets the requirement set out in the Must Carry Order that its community of license (Fairfield, Maine) be located in a county (Somerset County) in which no licensed full power television station is located. ORDER 11. Accordingly, IT IS ORDERED that the Petition for Reconsideration of Mid-Maine Community Broadcasting v. State Cable TV Corporation, 1997 WL 80132 (Cable Serv. Bur. released March 4, 1997) ("Bureau Order") filed by Mid-Maine Community Broadcasting in File No. CSR 4854-M IS GRANTED, the Bureau Order IS SET ASIDE, and State Cable TV Corporation IS ORDERED to commence carrying WFYW-LP on Channel 41 of its system serving Fairfield, Maine within 60 days from the release date of this Order or the return of WFYW-LP to operation, whichever is later. 12. 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 William H. Johnson Deputy Chief, Cable Services Bureau