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!((:$:$:$:$:$G55$1$1$1$1$:(:(:(:(:(:(:(:(:(:(:$:(:(:(:(:(,(:(:$:$5$5$5$1$1$1$:(:(::(:(:(:( (((:(11!:(:(:(G:55!,,N$($(((((<<(==(<$$(P((NP$Pt,,,,-O,0S .-B9(@OSB((===5E,C1:.:*4(:,,,/0#1#7.=*:,@7=73910>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>!((C>(-((((((((((---$J:55:1,:::1G::,:5,1::K::1%($($($(((>((((((:(($&&+>>>($P((P,G>>>>$$(PN:>>:(((((=(-=( ,.$(<<<$::::::G51111:::::::-::::::,($$$$$$5$$$$$(((((((,(((((((2 w^mo_eP @s7ZCL,XZ\  P@QXP7PC2,W XP\  P6QXP.7UC2,PXU4  pQX2J=.,/&J\  P6Q&P.2N=.,&N4  pQ&y.C8*,gC\  P6QP .y.G8*,.G4  pQ0J=.,9V^&J*f9 xQ&X P,%,J,\  P6QJPa$6,!,wÐ6\  P6QP : , \  P6QP{,C8*,9C*f9 xQXl1L=.,X&L9 xyQ&"5@^.Gf\\3==\i.=.3\\\\\\\\\\==iii\zzzzzG\zppzfpzzpp=3=i\=\\R\R=\f33\3f\\\GG3fRz\RG@(@i.====IK=\\z\z\z\z\z\zRzRzRzRzRG3G3G3G3f\\\\ffffpRz\\\\pR\p\z\z\z\zRzRzRzRzRzR\\\\ffI\G\G=G\\z\p3pKff\zGzKfGfGN@.\\G\\\\\\17\7\7==\\\==\\=\=7t=ddddodo.Iii3[\\xdCpi_w[dfdmoPpP~j_d~~tqo.Gf\\3==\i.=.3\\\\\\\\\\==iii\zzzzzG\zppzfpzzpp=3=i\=\\R\R=\f33\3f\\\GG3fRz\RG@(@i=\\\\=f===\\@\=G=p.G\\\\(\=1\o=\Id77=i\.=77\\zzzzzzzzzzzGGGGipp\\\\\\\RRRRR3333\f\\\\\d\ffffR\2=w S-O X-#Xj\  P6G;W XP# #&J\  P6Q/&P#Federal Communications Commission`(#CDA 98377 ă  yxdddy O  Њ#&a\  P6G;/&P#vK #C\  P6QgP#Before the Federal Communications Commission  yO|"Washington, D.C. 20554 X01Í ÍX01Í  Í҃  X-l#Xj\  P6G;W XP#у)  S-#&a\  P6G;/&P#In re Complaint of  hh,V) ` `  hh,V)  S-Lankenau Small Media Network, Inc.hh,V)  Si-against Ohio Cablevision Network, Inc.V)ppCSR 5030M  SA-d/b/a TCI Cablevision of Ohio hh,V) pp  xx- ` `  hh,V)  S -Request for Carriage of WDFMLP, Defiance, Ohio)  Sy -  MEMORANDUM OPINION AND ORDER  S)-Adopted: February 24, 1998hh,VppReleased: February 27, 1998  S- By the Deputy Chief, Cable Services Bureau:  S- I. INTRODUCTION  Sa-  S9-  Q I. A. 1. a.(1)(a) i) a) 1. 1. i.(1)(a)(i) 1) a)1. ` ` Ohio Cablevision Network, Inc. d/b/a TCI Cablevision of Ohio ("TCI") filed a petition  S-  for reconsideration (the "petition") of the Cable Services Bureau's Memorandum Opinion and Order, DA  S-  972265 (October 29, 1997) (the "Order"), issued in this proceeding that granted the must carry complaint   (the "complaint") of Lankenau Small Media Network, Inc. ("Lankenau"), licensee of low power station   [WDFMLP, Defiance, Ohio (the "Station") and ordered TCI to carry the Station on TCI's cable systems   serving Bryan and Paulding, Ohio (the "Communities"). Lankenau filed an opposition, and TCI filed a reply.  S- II.BACKGROUND  S-  2.` ` Pursuant to Section 614 of the Communications Act of 1934, as amended (the  S-  "Communications Act"), and implementing rules adopted by the Commission in its Report and Order,  S_-  MM Docket 92259,W_ {O-ԍMust Carry Order, 8 FCC Rcd. 2965 (1993).W 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).  S!- A.` ` The Order and Lankenau's Complaint  SH#-  o3. ` ` The issue in the original proceeding was whether the Station was a qualified low power  S $-  station under the Commission's rules. In the Order, we found that the Station was a qualified low power" $Z0*''II%"   /station because it met the requirements of our rules, including the two requirements challenged in the petition. First, we found that the Station provides programming that addresses the  S- Xlocal news and informational needs which are not being adequately served by full power  mtelevision stations because of the geographic distance of such full power stations from the low  S8-power station's community of license.8c yO-ԍCommunications Act,  614(h)(2)(B), 47 U.S.C. 534(h)(2)(B); 47 C.F.R.  76.55(d)(2).(#   In this regard, we found that the Station, by providing logs that detailed the specific types of local  S-  /information that it provides its viewers, had 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. We then noted that   /TCI had not argued that the full power stations provided the same or similar local information to the  SJ -Station's six county area.@J Xc {OB -ԍOrder at para. 16.@  S -  4. ` ` Second, we found that the Station's programming constitutes "program service" under   Section 73.1740(2)(iii), 47 C.F.R.  73.1740(2)(iii). In particular, we found that the Station's weather and   news announcements were in text that moved continuously across the screen and that, in addition, the   announcements were accompanied by aural transmissions that were related to the visual broadcasts.  SZ-Because the Station also met the other requirements of rules, we granted Lankenau's complaint.@Zc {O-ԍOrder at para. 17.@  S -  5. ` ` In its complaint seeking carriage on TCI's cable system, Lankenau stated that its programming included the following:  S- ] XLocal 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  S-day.E|c yO-ԍComplaint at 3, Attachment A.E(#   The complaint also alleged that some of its programming included moving characters or words printed on the screen.  S*-  6. ` ` In its opposition, TCI argued that the Station's programming was not "program service"   under Section 73.1740(2)(iii), 47 C.F.R.  73.1740(2)(iii), and that Lankenau had not shown that the  S-  /Station's programming met the local news and informational needs requirement.b c {O$-ԍOpposition at 6 (citing 47 C.F.R.  76.55(d)(2)).b TCI stated that the"0*%%II="   =station had failed to "introduce any programming logs or other evidence supporting its contention that it  S-provides local news and information programming directed at the communities at issue."c {O@-ԍOpposition at 3 (quoting In re MidMaine Community Broadcasting, DA 97429 at para. 4 (Feb. 26, 1997).  S-   7. ` ` In reply to TCI's argument that it had not introduced programming logs, Lankenau   zintroduced programming logs and stated that the Station provides the only weather reports for the six   ]counties surrounding it, local agricultural information, local school closings, sports reports that go   unreported on the high power stations, local real estates stories, musical programming for the area's   /hispanics, and local news and public service announcements not covered by the high power stations. Lankenau also reiterated that its news and weather announcements scrolled across the screen.  Sp- B.` ` TCI's Petition for Reconsideration  S -   8. ` ` In its petition, TCI argues that the Order erroneously failed to assign the evidentiary   burden to Lankenau and instead placed the burden of proof on TCI to show that the Station is not a   .qualified low power station. According to TCI, the Station failed to carry its burden of proof because it   failed to show that its programming adequately serves the Communities and that the seven full power   stations carried on the cable systems do not. TCI argues that it did not provide evidence of the full power   stations' provision of local programming and information because the Station did not provide its log books   until its reply. TCI then argues that the Station's scrolling text news is limited in quality and quantity and   accordingly does not adequately serve the Communities. To require carriage based on this scrolling text   knews, TCI asserts, frustrates Congress's intent under 47 U.S.C.  534(c)(2) & (h)(2) that low power stations be granted very limited carriage rights.  Sj-  n 9. ` ` In its opposition to the petition for reconsideration, Lankenau argues that the Commission  SB-  should not reconsider its Order because the petition simply repeats arguments that we have already  S-  evaluated and resolved in the Order and that the Commission should not consider evidence now that TCI   Lhad access to, but did not present, during the first stage of this proceeding. If the Commission considers   mthe new evidence, Lankenau argues that TCI has not presented any evidence of local news and   [information carried by the full power stations. According to Lankenau, a low power station with a more   !limited geographic focus can and does provide more extensive local news to Bryan, Paulding, and   Defiance (where the Station is located) with more immediacy, content and depth. As evidence, Lankenau   kattaches to its opposition 103 news stories aired by the Station during the month of November 1997,   94.7% of which related to events in or around the communities of Bryan, Paulding and Defiance. These   Mstories aired from four to seven times daily. Story subjects include local fires, accidents, burglaries, a   zWilliams County (where Bryan is located) Commissioners sex discrimination suit, the Napoleon City   Council, the Henry County Commissioners, election day coverage, grants to school districts, local business   Nowners meeting to discuss electricity rates, the United Way Campaign for Paulding, Williams and   lDefiance counties, local village councils, a school board rejecting a contract bid, raises for Paulding   yCounty sheriff's deputies, a new garage building in Williams County, moving an elementary school, grand   juries, the Fulton County Health Center, leach field problems in Paulding County, accidents and deaths   \of wellknown citizens, the county manager of Williams County, worker's compensation fraud, Miss  S"-  =Northwestern being crowned in Defiance, a Defiance City Monthly School Board meeting, a high school""Z0*%%II$"   basketball coach, a local minister, city committees, Defiance County Commissioners, a village board of   Meducation, job announcements for low level local government positions, a village levy to maintain fire   department services, and thirtynine railroad crossways receiving new warning lights. In addition, the   Station broadcast 57 public service announcements during November, 87.5% of which relate to Bryan,   Paulding and Defiance. Moreover, the weather for the region scrawls across the bottom of the Station's broadcast twentyfour hours a day.  S-  P  10. ` ` In its reply, TCI again argues that the Communications Act of 1934 and our implementing   rules place the burden of proof on the Station to show that it is a qualified low power station and that the   Station has failed to carry this burden. TCI then proffers new evidence of local news and informational   items concerning the Communities broadcast by full power stations, WPTA, WKJG, WANE, and WLIO   to show that the full power stations adequately meet these Communities' needs. In a letter to TCI, WPTA   wrote that WPTA covers Paulding County by covering stories regarding police, fires, weather, high school   sports and the Paulding Day Festival Parade. Regarding Williams County, where Bryan is located, WPTA   relies on a news stringer from Williams County and checks with the courts for stories of interest. WKJG's   =manager wrote that Paulding County is one of the two counties in its Nielsen DMA. WKJG provides 6   kdaily broadcasts daily providing specific local news, weather, and sports for all counties in its DMA,   reports Paulding school closings and accepts community announcements. The WKJG manager asserts that WKJG is the only weather station for Defiance, Williams, and Paulding counties.  S-  ~ 11. ` ` WLIO then presented a substantial number of news stories relating to Paulding County   from the beginning of 1997. The subjects of these stories include weather, sports, high school sports,   crimes, accidents, President Clinton receiving a turkey in Paulding County, the closing of highway rest   {stops, agricultural displays, veterans, a fair, the Paulding Day Parade, the funeral of a former state   zrepresentative, new street lights, a mysterious circle found in a wheat field that some believed to have   been caused by a UFO, taxes, arson, toxic waste, and fires. WLIO also provides public service announcements to Paulding County.  S-   12. ` ` Finally, TCI again argues that the Station's news programming is "weak" because it is   =character generated. TCI appears to argue that this factor is relevant to our analysis whether the Station   adequately addresses the local news and informational needs of the Communities and that it would frustrate Congress' intent to mandate carriage of a station that provides news through scrolling words.  S- III.DISCUSSION  S-   13.` ` Reconsideration is appropriate only where the petitioner shows either a material error or   omission in the original order or raises additional facts not known or not existing until after the petitioner's  S8-  last opportunity to respond.8c {O!-  /ԍIn re Application of Eagle Radio, Inc., FCC 9747, 12 FCC Rcd. 5105 at para. 7 (1997); 47 C.F.R.  1.106(c)(1). Reconsideration will not be granted for the purpose of debating matters on  S -  zwhich we have already deliberated and spoken.W  "c {O$-ԍEagle Radio, 12 FCC Rcd. 5105 at para. 9.W We will deny TCI's petition because TCI's two legal"  0*%%IIu!"   arguments are meritless and accordingly do not raise a material legal error that would change the rulings  S-  made in the Order. First, TCI's argument that the Station's textdelivered local news is of low quality and   quantity such that the Station is not entitled to mandatory carriage, and that such carriage would frustrate   Congress' intent, has no basis in the low power station statute or our rules promulgated thereunder.   LSecond, TCI incorrectly asserts that it does not carry the burden of showing that its high power stations   >adequately satisfy local news and informational needs. We will also deny the petition because TCI's   evidence of the high power stations' local programming proffered with the petition should have been   \proffered when TCI filed its opposition to the complaint. Nevertheless, even when we review TCI's   evidence of the local programming that its high power stations provide, we find that the Station's local programming meets the statutory eligibility test of Section 614(h)(2)(b).  SJ -   14.` ` TCI does not contest our holding that the Station's programming which includes text   scrolling across the screen constitutes "program service" under Section 73.1740(2)(iii), 47 C.F.R.    L73.1740(2)(iii). Instead, TCI argues that the Station's textdelivered news somehow frustrates the intent   jof the low power station statute and rules by being of "low quality and quantity." This argument has no   basis in the statute or the rules. The only condition for how programming is presented by a low power   station seeking mandatory carriage is found in Section 73.1740(2)(iii). Otherwise, Section 614(h)(2)(B)   of the Communications Act of 1934, as amended, and Section 76.55(d)(2) or our rules simply do not have  S2-any requirements for the manner in which news is delivered to subscribers. Z2c {O-  ԍSee 47 U.S.C. 534(h)(2)(B); 47 C.F.R.  76.55(d)(2); see also In re Folse Productions, Inc., 10 FCC Rcd.   13644 at paras. 3 and 7 (1995) (not persuaded by cable operator's argument that station's news reports were amateurish as basis for finding that the low power station did not provide adequate local programming).  S-  15.` ` TCI next asserts that the Order erroneously places the burden of proof on the cable   {operator to demonstrate that the full power stations do not adequately address the local news and  S-  zinformational needs of the Communities. This assertion is incorrect. The Order places the burden of  Sn-  proof on the low power station. When the low power station carried this burden of proof by making a  SF-  prima facie case that entitled it to relief, the burden then shifted to TCI to proffer evidence in rebuttal.   Thus, in cases where a low power station has proffered evidence of its local programming, we have held   ?that the cable operator's undocumented, general assertions that the low power television station's   |programming is inadequate or that the cable system's subscribers are adequately supplied local   programming by other stations are insufficient to warrant a finding that the low power station is not  S-  meeting its local programming responsibilities. $c {O -  -ԍIn re The Vacation Channel, DA 972683 at para. 7 (Dec. 30, 1997); Folse, 10 FCC Rcd. 13644 at para. 7;  {O-  In re Seeway, 10 FCC Rcd. 1670 at para. 6 (1995); see also In re Lightning Broadcast Co., 9 FCC Rcd. 2297 at   para. 7 (1994) (rejecting cable operator's argument that station's programming was insufficient where station had provided evidence of its programming). In its opposition to the complaint, TCI merely made   general assertions that its high power stations provide adequate local news without submitting any  S0-  Mevidence to support its position. In the absence of such evidence from TCI, we accepted Lankenau's"0 0*%%II]"   programming logs as evidence that the Station is meeting the local news and informational needs of the  S-Communities. c {O@-  [ԍSee Vacation Channel, DA2683 at para. 4 (contrasting substantial evidence of low power station's local programming with absence in the record of full power stations' local programming).  S-  16.` ` TCI argues that it did not present evidence of the local news and informational   programming of the high power stations in its opposition to the complaint because the Station did not   present the programming logs until the Station filed its reply. Lankenau, however, put TCI on notice in   the complaint that Lankenau contended that the Station adequately addresses local news and informational   \needs, and TCI knew that the resolution of this issue would determine the outcome of the complaint.   With this notice, TCI should not have been surprised that Lankenau proffered further evidence to support   is claim in the reply. Finally, we note that TCI does not allege that Lankenau's reply evidence is irrelevant or untrue.  S -  A17.` ` Nevertheless, we carefully examined the news stories proffered by TCI for its high power   [stations and by Lankenau for the Station. We note at the outset that TCI did not proffer specific stories   /for Williams County, where Bryan is located, so we find that TCI has failed to carry its burden with   =regard to Bryan. The only high power station that serves Bryan, WPTA, noted in a letter to TCI that it   =has a news stringer in Williams County and that it checks with the county courthouses for stories. This   statement does not provide enough information regarding the nature of local stories that WPTA carries in order to counter the 103 stories proffered by the Station.  S-  18.` ` Regarding Paulding County, while both the Station and the high power stations carry   stories regarding weather, school closings, high school sports, crime, accidents, agriculture and elections,   the Station carries more stories directed to the Communities and stories that the high power stations do   not cover, including stories regarding the county commissioners, village councils, school districts, local   fundraising campaigns, raises for the Paulding sheriff's deputies, local business owners meeting to discuss   electricity rates, deaths of wellknow local citizens, moving an elementary school, county managers, the   Miss Northwestern Pageant, school board meetings, city committees, a local man passing the Ohio bar   to become an assistant county prosecutor, a village levy to maintain fire department equipment and   jservices, and railroad crossings receiving new warning lights. The Station also provides the Communities   with as many as thirteen local stories per day. Thus, we find that the Station addresses the local news   and informational needs of the Communities that are not being adequately served by the full power stations. "" 0*%%II/"  S- IV.ORDERING CLAUSE  S-  19. ` ` Accordingly, IT IS ORDERED , pursuant to Section 1.106(j) of the Commission's rules,  S-  47 C.F.R.  1.106(j), that the petition for reconsideration of the Cable Services Bureau's Memorandum  Sb-  LOpinion and Order, DA 972265 (October 29, 1997) filed by Ohio Cablevision Network, Inc. d/b/a TCI  S<-Cablevision of Ohio is DENIED .  S-  _ 20. ` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,William H. Johnson ` `  hh,Deputy Chief, Cable Services Bureau