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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 Zeus Corporation of ) CSR-5083-M Washington, Inc. against Edmonds Cable) Company dba Chambers Cable of Edmonds ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: December 30, 1997 Released: January 5, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Zeus Corporation of Washington, Inc., permittee of Station KONG-TV (Ind., Ch. 16), Everett, Washington, has filed a consolidated must carry complaint against Edmonds Cable Company dba Chambers Cable of Edmonds ("Chambers") for their failure to commence carriage of KONG-TV on cable systems serving communities in Snohomish County, Washington. Chambers has filed an opposition to the complaint to which KONG-TV has replied. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in 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. SUMMARY OF PLEADINGS 3. In support of its request, KONG-TV states that it is a full-power UHF television station whose city of license, Everett, Washington, is located within the Everett-Seattle-Tacoma, Washington ADI, as is Snohomish County where the cable systems are located. KONG-TV states that by letter dated June 11, 1997, it requested carriage on Chambers' systems. On June 27, 1997, however, KONG-TV indicates that Chambers refused carriage until such time as additional channel space was available which would probably not occur until mid-1999. KONG-TV states that it filed its must carry complaint within 60 days of this refusal of carriage. KONG-TV asserts that, pursuant to Section 4 of the 1992 Cable Act and 76.56(b)(2) of the Commission's Rules, local commercial broadcast stations are entitled to mandatory carriage rights on cable systems within the same market. It points out that Chambers currently has 35 available, activated channels and as such is required to devote one-third of its channel capacity (or 11 channels) to must carry channels. KONG-TV maintains that Chambers is only using 10 of its channels for broadcast stations and therefore has ample room to accommodate its station. KONG-TV argues that apparently Chambers is unwilling to replace previously chosen non-broadcast services in lieu of a legally-qualified commercial station. KONG-TV states that its programming provides viewers with a variety of program options and fills a programming void in the Everett-Seattle-Tacoma area. KONG- TV concludes that Chambers' unjustified refusal should not be tolerated. 4. In opposition Chambers states that KONG-TV's complaint is defective in important respects and should be rejected. First, Chambers states that KONG-TV's complaint is based on a wholly inadequate carriage request. Chambers points out that KONG-TV's June 11, 1997 letter only requests ". . . carriage on your cable system located in Edmonds. . . ," while the station's must carry complaint is directed not only against the Edmonds' system, but additional cable systems not mentioned in the original complaint. Chambers argues that administrative due process and fair play do not allow KONG-TV to broaden its must carry complaint to include counties and communities for which it has not requested carriage. It maintains, therefore, that any portion of the instant complaint which does not pertain specifically to the Edmonds cable system should be stricken. Secondly, KONG-TV's carriage request specifies that it is only seeking mandatory carriage "for the period January 1, 1997 through December 31, 1997." Since this same term was specified in the station's must-carry election notice, Chambers states that it can only assume that it is the wish of the station. In any event, Chambers maintains that even if the listed period is incorrect, the Commission should not allow the complaint to bootstrap such a defective request into one covering a longer period. Third, Chambers states that it has fully complied with Sections 76.56, 76.61 and 76.64 of the Commission's Rules and never denied carriage of KONG-TV in a purported letter of June 27, 1997, as alleged by the station. Instead, in a July 2, 1997 letter, Chambers states that it informed KONG-TV that, while there was no channel space currently available, it intended to commence carriage of the station as soon as sections of the upgrade/rebuild of its system were completed and a new headend facility constructed. Moreover, Chambers asserts that it did not state that it may not carry KONG-TV until "mid-1999." Rather, it stated that the entire system rebuild may not be completed until that date. Fourth, Chambers indicates that the Edmonds system is carrying 11 must carry broadcast stations and not 10 as alleged by KONG-TV. Therefore, the system is currently exempt from must carry responsibilities. Chambers argues that given the fact that KONG-TV's only valid carriage request is for the Edmonds system, that that request will likely expire by the time the Commission rules on the station's defective complaint, and the fact that the system is, until its rebuild, exempt from further must carry responsibilities, the instant complaint should be dismissed as moot. 5. In reply, KONG-TV states that Chambers' arguments in opposition are without merit and the Commission should grant the requested relief. First, KONG-TV argues that nowhere in the Commission's rules does it require that a must carry election request specify each individual system community unit on which carriage is requested. It points out that 76.64 of the Commission's Rules references cable system, a term which encompasses all system community units in an area. In any event, KONG-TV maintains that Chambers clearly did not appear confused by the June 11th request as it stated in response that "We have received your letter . . . dated June 11, 1997 electing carriage for KONG on the cable television system serving Edmonds, Woodway, Shoreline and parts of Snohomish County, Washington." Secondly, KONG-TV indicates that the December 31, 1997 termination contained in its must carry request was a typographical error and should have ready December 31, 1999 instead. KONG- TV contends that this inadvertent error caused no harm to Chambers and Chambers has not established any reason that it cannot provide carriage for the full term. Third, KONG-TV argues that requiring a must carry station to await completion of a rebuild flies in the face of past Commission decisions. Moreover, KONG-TV states that Chambers claim that it is carrying its full complement of must carry stations is unconvincing as Chambers' list of currently-carried must carry stations includes a non- commercial station which are excluded in figuring the carriage complement for cable systems. Therefore, KONG-TV concludes that Chambers has an available channel and the system should be required use it for carriage of its station. DISCUSSION 6. We do not agree with the arguments raised by Chambers herein and will grant KONG- TV's complaint. First, we reject Chambers' claim that KONG-TV's June 11, 1997 carriage request was inadequate as a basis for its subsequent must carry complaint. While KONG-TV did not specifically list the individual communities for which it was requesting carriage in its June 11th letter, as it did in its must carry complaint, that letter does refer to the Edmonds cable system. Moreover, in its July 2, 1997 response to KONG-TV's carriage request, we note that Chambers stated that it had received the June 11th letter ". . . electing carriage for KONG on the cable television system serving Edmonds, Woodway, Shoreline and parts of Snohomish County, Washington." These are the same communities referenced in KONG-TV's must carry complaint. Second, we do not agree that KONG-TV's mandatory carriage election should be expire on December 31, 1997 instead of December 31, 1999. KONG-TV has explained that this error was inadvertent and we see no harm to Chambers in allowing KONG-TV the full term allowed. Third, of the 11 stations in its channel line-up which Chambers maintains currently fulfills the required number of must carry stations, we find that two, KCTS-TV and KBTC-TV, are apparently noncommercial educational stations. Section 76.56(b)(2) of the Commission's Rules states that "A cable system with more than 12 usable activated channels . . . shall carry local commercial television stations up to one-third of the aggregate number of usable activated channels of such system." As noncommercial television stations do not count against this quota, we find that Chambers is not at full capacity in the carriage of local commercial television stations. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended, 47 U.S.C. 534, that the complaint of Zeus Corporation of Washington, Inc. IS GRANTED. Edmonds Cable Company d/b/a Chambers Cable of Edmonds IS ORDERED to commence carriage of KONG-TV on its cable system serving Edmonds, Woodway, Shoreline and parts of Snohomish County, Washington within sixty (60) days of the release of this Order. KONG-TV shall notify Chambers in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty (30) days of this Order. 8. This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau