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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: ) ) Paxson Communications Corporation) ) CSR-5214-M vs. ) ) Triax Cablevision USA LP ) Request for Mandatory Carriage ) of Television Station WPXR, ) Roanoke, Virginia ) MEMORANDUM OPINION AND ORDER Adopted: June 3, 1998 Released: June 5, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Paxson Communications Corporation ("Paxson"), licensee of television broadcast station WPXR, Roanoke, Virginia ("WPXR" or "the Station"), has filed a must-carry complaint claiming that Triax Cablevision USA LP ("Triax") has failed to commence carriage of WPXR on its system serving Pearisburg, Virginia and the surrounding areas (the "cable communities") as required by Section 614 of the Communications Act and Section 76.56 of the Commission's rules. No opposition to the complaint was filed. 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. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. SUMMARY OF ARGUMENTS 3. Paxson asserts that WPXR is entitled to mandatory carriage on Triax's Pearisburg, Virginia system because WPXR is a qualified local commercial station as defined under the Commission's must-carry rules. Paxson explains that WPXR is licensed to Roanoke, Virginia, which is in the Roanoke-Lynchburg ADI. Paxson states that Triax operates a cable television system serving Pearisburg and the surrounding areas, which also are within the Roanoke-Lynchburg ADI. Paxson contends that because WPXR is located within the same ADI as Triax, the Station's signal will not cause increased copyright liability for the cable operator. Paxson asserts that it requested mandatory carriage of WPXR on Triax's cable system by letter dated December 4, 1997. According to Paxson, the letter included a commitment by Paxson to acquire and install any improvements and equipment needed to provide Triax with a good quality signal. Paxson claims that Triax did not respond to the December 4, 1997 letter in violation of Section 76.61(a)(2) of the Commission's rules, which requires cable operators to respond in writing to requests for carriage within 30 days of receipt of such requests. Paxson requests that the Commission order Triax to commence carriage of WPXR's signal on channel 38 of the cable system serving the cable communities. DISCUSSION 4. While the issue was not raised by Triax, we note that the Triax cable system in question lies partly in Giles County, Virginia, which is located in the Roanoke-Lynchburg ADI, and extends over parts of Mercer and Monroe Counties in West Virginia, which are located in the Bluefield-Beckley-Oak Hill ADI. Therefore, we must address carriage issues with respect to both the Roanoke-Lynchburg ADI and the Bluefield-Beckley-Oak Hill ADI. Regarding WPXR's mandatory carriage rights in the Giles County Virginia part of the cable system, we find that representations made by Paxson demonstrate that WPXR is a local full power commercial television station qualified for carriage on Triax's system serving Pearisburg, Virginia, and the surrounding areas in Giles County, Virginia. Both WPXR and the Giles County portion of the Triax system serving Pearisburg are located in the same Roanoke-Lynchburg ADI. Under the Commission's must-carry rules, cable operators have the burden of showing that a commercial station located in the same television market as a cable operator is not entitled to carriage. Triax did not file an opposition to WPXR's must-carry complaint nor did it respond within 30 days to Paxson's letter requesting carriage of WPXR as required by the Commission's rules. Triax, therefore, has not presented any evidence that WPXR is not entitled to carriage on its system. Furthermore, although the record does not show whether WPXR delivers a good quality signal to Triax's Pearisburg headend, Paxson has made a commitment to acquire and install any and all necessary improvements and equipment needed to provide Triax with such a signal. Thus, we conclude that WPXR is entitled to carriage on Triax's system serving Pearisburg, Virginia and the surrounding areas in Giles County, Virginia. 5. With respect to the carriage of WPXR in certain communities in Mercer and Monroe Counties, West Virginia, these communities are located in the Bluefield-Beckley-Oak Hill ADI, where WPXR does not enjoy mandatory carriage rights. In this case, the overlapping of ADIs is conceivably due to the technical configuration of the Triax's system in Pearisburg, which results in the carriage of WPXR in Giles County, Virginia, into other areas where the Station has no must carry rights. On the record before us, we cannot ascertain if Triax is able to limit carriage of WPXR to only the Virginia communities where the Station has mandatory carriage rights. In any event, the Commission in its Must Carry Order held that " ... in situations [involving a television station with must-carry rights] where a cable system serves a community or communities in more than one county and those counties are assigned to different ADIs, the cable operator must carry all of the local commercial television signals in both ADIs" unless "where it is technically able to do so, the cable operator may offer different must-carry line-ups" for communities in respective ADIs. Moreover, it states, that "... if the cable system is not able to alter its channel line-up on a community-by-community basis and the system straddles two ADIs, all broadcast stations in both ADIs will be considered "local" for must-carry purposes." It should be noted that in instances where the carriage of a station from another ADI creates copyright costs for the cable operator, the television station will be required to negotiate a copyright indemnification agreement with the cable system. Consequently, should Triax's carriage of WPXR in Mercer and Monroe Counties, West Virginia result in copyright liability, WPXR must indemnify Triax, or forego carriage. ORDERING CLAUSES 6. 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 Communications Corporation IS GRANTED. Triax Cablevision USA LP IS ORDERED to commence carriage of television station WPXR on Channel 38 of its cable system serving Pearisburg, Rich Creek, Narrows, Giles, Pembroke, Glenlyn, and Lilly Heights, Virginia, and, the communities Triax serves in Mercer and Monroe Counties, West Virginia, consistent with the provisions of this Order, within sixty (60) days from the date of its release. 7. 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