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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 Paxson Atlanta License, ) CSR-5143-M Inc. against Robin Media Group, Inc. ) dba InterMedia ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: March 2, 1998 Released: March 6, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Paxson Atlanta License, Inc., licensee of Station WTLK-TV (Ch. 14), Rome, Georgia, has filed a must carry complaint against Robin Media Group, Inc. dba InterMedia ("InterMedia") for that system's decision to delete WTLK-TV from carriage on its system serving Gainesville, Hall, Oakwood, Flowery Branch, Gwinnett and Buford, Georgia. InterMedia has filed an opposition to this complaint to which WTLK-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 Arbitron audience research organization. SUMMARY OF ARGUMENTS 3. In support of its complaint, WTLK-TV states that it had been carried on InterMedia's Gainesville cable system for approximately three years. However, WTLK-TV indicates that, by letter dated September 12, 1997, InterMedia announced that it would be discontinuing carriage of WTLK-TV as of October 15, 1997, since the Cable Bureau had determined in a prior decision that WTLK-TV substantially duplicated the programming of Station WNGM-TV (Ch. 34), Athens, Georgia, a station the system also carries. WTLK-TV states that it is InterMedia's contention that WTLK-TV is no longer entitled to mandatory carriage on its Gainesville system. WTLK-TV points out that in response to a similar letter to its Athens, Georgia cable system, it informed InterMedia that the facts surrounding the Bureau's decision in MediaOne, supra, had changed and WNGM-TV no longer carried the same programming as WTLK-TV. WTLK-TV argues therefore that it is entitled to reinstatement of carriage on InterMedia's Gainesville cable system as it fully satisfies the statutory definition of a "qualified local commercial television station." 4. In opposition, InterMedia argues that it acted entirely within its rights in deleting WTLK- TV from its system. It points out that 76.56(b)(5) of the Commission's Rules states that a cable operator is not required "[t]o carry the signals of more than one local commercial television station affiliated with a particular broadcast network," and 76.55(f) defines a commercial network as "[a]n entity that offers programming on a regular basis for 15 or more hours per week to at least 25 affiliates in 10 or more states." InterMedia states that, in its decision in MediaOne, supra, the Commission concluded that WNGM-TV and WTLK-TV are Paxson "affiliates" for purposes of the must carry rules. Although WTLK-TV claims that WNGM-TV is no longer affiliated with its Infomall TV Network ("inTV"), InterMedia maintains that a careful reading of the programming schedules included in WTLK-TV's complaint reveals that the two stations air more than 15 hours per week of overlapping programming. InterMedia argues that, despite the programming changes alleged by WTLK-TV, the fact remains that both stations are "affiliates" of the same entity (Paxson) which offer ". . . programming on a regular basis for 15 or more hours per week to at least 25 affiliates in 10 or more states." Moreover, InterMedia states that since Paxson owns WTLK-TV and has an option to buy WNGM-TV, it has the abililty to make programming decisions for both stations. As a result, InterMedia argues that neither WTLK-TV nor WNGM-TV have the incentive or discretion to exercise independent editorial judgments in making their respective programming choices and there is nothing to prevent Paxson from re-altering the programming after obtaining carriage for both stations. In light of the above, InterMedia concludes that since its system already carries WNGM-TV, the closer of the two Paxson affiliates, the instant complaint should be dismissed. 5. In reply, WTLK-TV argues that InterMedia does not dispute that WTLK-TV has satisfied the requirements entitling it to carriage on the Gainesville system. WTLK-TV states that InterMedia's argument that the dual network affiliate rule applies when a single entity makes certain programming decisions for two stations entitled to mandatory carriage is misplaced since 76.56(b)(5) of the rules requires affiliation with "a particular broadcast network." WTLK-TV points out that the Commission has concluded that the "mere fact that two programming sources . . . are owned by the same parent and have similar formats is clearly not grounds for concluding that they are one network . . . for the purposes of the Commission's cable television rules." WTLK-TV argues that there is thus no basis for concluding that WTLK-TV and WNGM-TV are affiliates of a particular network merely because Paxson plays a role in the programming decisions of the two stations. WTLK-TV concedes that WNGM-TV does receive a portion of its programming via satellite from the Infomall (formerly Paxnet) as do five other stations, but maintains that the amount of Infomall programming aired changes daily and is determined by the station itself. Moreover, WTLK-TV states that no station which receives Infomall programming is obligated to coordinate with other stations or reserve a fixed number of hours each day for that programming, but instead may pick up the Infomall feed at various times appropriate to their schedules. In contrast, WTLK-TV indicates that it blocks out a fixed number of hours per day for pre- recorded inTV programming, received directly from inTV itself. WTLK-TV states that even if The Infomall satisfied the definition of a network, The Infomall and inTV are separate and distinct distribution outlets, although both are programmed by Paxson. In addition to the Infomall and inTV programming, WTLK-TV indicates that both stations obtain programming from other outside sources at the discretion of each station's sales representative. While this may result in some Paxson stations having overlapping programming, WTLK-TV maintains that this overlap does not implicate 76.56(b)(5) and 76.55(f) of the rules and is primarily a result of individualized decisions with regard to airtime purchases. Finally, WTLK-TV argues that InterMedia has neither alleged nor demonstrated that WTLK-TV and WNGM-TV air substantially duplicative programming. As a result, WTLK-TV concludes that InterMedia has no basis for its refusal to carry its station on the Gainesville cable system. DISCUSSION 6. The central issue in this proceeding is whether WTLK-TV's carriage of 15 hours per week of programming transmitted by inTV, which is also carried by WNGM-TV through The Infomall, makes both stations network affiliates. Section 76.55(f) of the Rules defines a commercial network as "[a]n entity that offers programming on a regular basis for 15 or more hours per week to at least 25 affiliates in 10 or more states." In this regard, we agree with the arguments raised by InterMedia and will deny WTLK-TV's complaint. WTLK-TV was correct in its assessment of the Commission's conclusion in Jovan Broadcasting, supra, that ownership of two programming sources with similar formats by one parent is not a basis for concluding that two stations are affilates of the same network. However, in this instance, unlike our decisions in Jovan Broadcasting, supra, and Whitehead Media of Georgia, Inc., InterMedia has produced specific evidence that inTV and Infomall have at least fifteen hours of identical programming in their schedules. While Paxon maintains that The Infomall only provides service to six stations, it is undisputed that inTV and Infomall in the aggregate provide the same 15 hours of programming to at least 25 affiliates in 10 or more states. As a result of this overlapping programming from sources owned by the same entity, we find that WNGM-TV and WTLK-TV meet the definition of network stations contained in 76.55(f) and are affiliates of the same network. Therefore, InterMedia is not required to carry WTLK-TV on its Gainesville cable system at the same time as it is carrying WNGM-TV. 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 filed by Paxson Atlanta License, Inc. IS DENIED. 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