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                                Before the
                     Federal Communications Commission
                          Washington, D.C. 20554

In re:                               )
                                     )
Complaint of Telecinco, Inc. against )           CSR-5082-M
Teleponce Cable TV                   )
                                     )
Petition for Reconsideration         )


                      MEMORANDUM OPINION AND ORDER

   Adopted:  June 3, 1998                          Released:  June 8, 1998  

By the Deputy Chief, Cable Services Bureau:

1.      Teleponce Cable TV ("Teleponce"), operator of a cable system serving Ponce, Puerto Rico has
requested reconsideration of the Bureau's decision ordering Teleponce to commence carriage of Station
WORA-TV (Channel 5), Mayaguez, Puerto Rico.  An opposition to this petition was filed on behalf of
WORA-TV to which Teleponce has replied.

2.      In support of its request, Teleponce states that despite the fact that it argued in opposition to
WORA-TV's original complaint that it was not obligated to carry WORA-TV because the station's
programming duplicated that of an already-carried station, WSUR-TV (Channel 9), Ponce, Puerto Rico -
- a fact not challenged by WORA-TV -- the Commission nevertheless granted WORA-TV's complaint
and ordered carriage of the station.  Teleponce argues that the Commission's must carry requirements do
not require cable television operators to carry duplicative television signals.  In addition, Teleponce points
out that in instances where substantial duplication exists, the signal of the station licensed to a community
closest to the cable system's principal headend is required to be carried.  In this instance, Teleponce states
that WSUR-TV, licensed to Ponce, is located closer than WORA-TV, which is licensed to more distant
Mayaguez.  Teleponce maintains that WORA-TV and WSUR-TV both hold multi-year Affiliation
Agreements with TeleOnce.  Teleponce maintains that a comparison of the two stations' weekly program
logs indicates that there is a 98% duplication of programming, which is well beyond the 50% duplication
set forth in 76.56(b)(5) of the Commission's Rules. 

3.      While Teleponce recognizes that the Commission's prior decision in this matter was constrained
by a lack of records regarding the programming of WORA-TV and WSUR-TV, it admits that it held the
misimpression that, once the issue of duplication was raised, the Commission would have recourse to its
own files regarding station programming and network affiliations.  Moreover, Teleponce maintains that,
since WORA-TV could not credibly deny that it substantially duplicated WSUR-TV's programming the
Commission would find that WORA-TV had failed to prosecute its own complaint and that complaint
would be denied.  Alternatively, Teleponce states that it expected that the Commission would inquire for
more facts prior to making a decision.  Teleponce maintains that there is no statute or rule which places
the burden of providing the duplicative nature of two stations' programming on the cable operator.  It
points to Section 7(c) of the Administrative Procedure Act which states that "except as otherwise provided
by statute, the proponent of a rule or order has the burden of proof."  In this case, states Teleponce, the
moving party was WORA-TV and it had the burden of persuasion in demonstrating its eligibility for
carriage.  However, despite the fact that WORA-TV failed to persuade the Commission that it was not
a duplicative station, Teleponce argues that the Commission, without further inquiry, applied a
procedurally unfair standard upon its cable system.

4.      In opposition, WORA-TV states that after having demonstrated its qualifications for carriage on
Teleponce's cable system pursuant to Commission requirements, Teleponce's only response was an
unsubstantiated statement to the effect that it ". . . was not obligated to honor WORA-TV's request
because of its duplicative programming of TeleOnce."  WORA-TV states that a further amendment to
Teleponce's response offered only the channel number of the alleged duplicative station.  WORA-TV
points out that in its December 30th decision the Commission noted that Teleponce had failed to provide
any information in support of its allegation of duplication and it correctly ordered carriage of WORA-TV
on Teleponce's system.  WORA-TV states that only now, in its petition for reconsideration, does
Teleponce finally offer information in support of its allegation.  However, WORA-TV argues that the
submission of this information is far too little and far too late as the Commission's Rules make it quite
clear that it will not consider new information presented in a petition for reconsideration unless a)
circumstances have changed, b) new facts have been discovered which could not previously been learned,
or c) overriding public interest concerns require the consideration of the new material.  WORA-TV
maintains that none of these circumstances apply in the instant proceeding.  

5.      It argues that Teleponce clearly had access to the belated information now presented and had two
previous opportunities during the pendency of the original complaint to submit it.  Moreover, WORA-TV
states that Teleponce's presumption that the Commission's own programming records would substantiate
its case is clearly misplaced.  WORA-TV points to Colorado Radio Corp. v. FCC in which it was stated
that "We cannot allow the applicant to sit back and hope that a decision will be in its favor and, when it
isn't, to parry with an offer of more evidence.  No judging process in any branch of government could
operate efficiently or accurately if such a procedure were allowed."  However, WORA-TV states, this is
precisely the course that Teleponce has followed, given that the entire substance of its initial presentations
were bare assertions of duplication that were only substantiated after a Commission Order pointed out
their deficiencies.  WORA-TV argues that simply asserting unsupported propositions does not provide an
opportunity to present new facts on reconsideration.  Further, WORA-TV states that, despite Teleponce's
expectation, the Commission is under no obligation to seek additional information to shore up a party's
defective showing.  As stated in Carolyn S. Hagedorn, supra, "Neither the Commission nor its staff is
responsible for making an applicant's case; an applicant must either take the initiative to present its case
fully and completely at the outset, or bear fully the risk that its showing will be found inadequate." 
WORA-TV argues in conclusion that it has made a prima facie case that it is entitled to carriage on
Teleponce's cable system.  WORA-TV maintains that it was Teleponce's responsibility to either grant it
carriage or to demonstrate that the must carry provisions were not applicable in this instance.  WORA-TV
states that Teleponce failed to do either.  It cannot now be allowed to belatedly submit evidence in support
of its prior claims. 

6.      In reply, Teleponce argues that WORA-TV's sole objection rests on the submission of information
demonstrating the duplicate nature of its programming.  Teleponce states that nowhere in its pleading does
WORA-TV dispute a) the fact that its programming is indeed duplicative to that of WSUR-TV; b) that
Teleponce is in compliance with the must carry rules by carrying the closest of two duplicative stations;
or c) the fact that WORA-TV is a full-time affiliate under a multi-year Affiliation Agreement. Teleponce
argues that WORA-TV is, in essence, asking the Commission to ignore the facts at issue here and compel
carriage of its signal.  Teleponce points out, however, that the Commission has the authority to recognize
overriding public interest concerns to insure that the law is justly applied to the facts.  Moreover,
Teleponce continues, it is manifest that a proper determination necessarily requires that all pertinent facts
be before the Commission for review.  In this instance, Teleponce maintains that WORA-TV seeks to
deny such review over a procedural point and demand that cable subscribers receive two identical local
broadcast signals.  However, Teleponce states that in order to prevent such duplicative carriage, an
overriding public interest requires the consideration of the material submitted in its reconsideration request. 
In addition, Teleponce argues that the cases cited by WORA-TV in support of its position are misplaced. 
For instance, Colorado Radio, supra, involved an attempt at a virtual retrial of a case by exploring an
ancillary issue which raised new questions not discussed previously, while Carolyn S. Hagedorn, supra,
involved whether facts solely in the possession of one individual applicant could be presented upon
reconsideration when their impact had not been explored.  Teleponce states that here, by contrast, it is not
only seeking reconsideration on a topic that is extremely concise and wholly integral to the issue of
WORA-TV's demand for carriage, but the facts presented are actually more available to WORA-TV and
have a decided impact on the outcome of this proceeding.  By submitting information with its
reconsideration, Teleponce concludes that it legitimately avails itself of an administrative procedure
designed to permit the review of an underlying decision in order that the law is properly applied to the
facts.

                                DISCUSSION

7.        We are not persuaded by the arguments raised by WORA-TV herein and will accept the showing
submitted by Teleponce.  Initially, we should note that Teleponce was in error in its belief that the burden
of proving WORA-TV's duplicative nature in this instance was the responsibility of WORA-TV. In
instances where, as the result of a formal must carry complaint, a cable operator objects to a demand for
carriage on its system for whatever reason, it is the responsibility of that operator to provide any
information necessary to support its objection.  Contrary to Teleponce's contention, under the
Commission's must carry rules, cable operators have the burden of showing that a commercial station
located in the same ADI is not entitled to carriage. We find, however, despite WORA-TV's assertions,
that there is an overriding public interest concern in considering the material submitted by Teleponce,
particularly as this information is integral to the question of WORA-TV's must carry status on Teleponce's
cable system.  

8.      After reviewing the showing submitted by Teleponce, we agree that the programming of WORA-
TV substantially duplicates that of WSUR-TV and that Teleponce's carriage of WSUR-TV, as the
duplicating station closest to its principal headend, is consistent with 76.56(b)(5) of the rules.  Therefore,
WORA-TV would not be entitled to carriage under the restrictions of this section.
                             ORDERING CLAUSES

9.      Accordingly, IT IS ORDERED, pursuant to 1.106 of the Commission's Rules, that the petition
for reconsideration filed on behalf of Teleponce Cable TV IS GRANTED and the Commission's
December 30, 1997 decision granting WORA-TV's complaint against Teleponce is rescinded.

10.     This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules.


        FEDERAL COMMUNICATIONS COMMISSION
        


        William H. Johnson, Deputy Chief
        Cable Services Bureau