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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 ) ) Aerco Broadcasting Corp. ) ) vs. ) CSR-5226-M ) Cable TV of Greater San Juan ) ) Request for Carriage of WRWR-TV ) MEMORANDUM OPINION AND ORDER Adopted: June 5, 1998 Released: June 9, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Aerco Broadcasting Corp. ("Aerco"), licensee of television broadcast station WRWR-TV, San Juan, Puerto Rico, has filed a must-carry complaint requesting that the Commission order Cable TV of Greater San Juan ("Cable TV"), operator of a cable television system serving San Juan and neighboring areas ("the Communities"), to commence carriage of WRWR-TV. Cable TV filed an opposition, and Aerco filed a reply. 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. Station markets in Puerto Rico are defined using Nielsen's 1991-1992 DMA Market and Demographic Rank Report, as are all areas outside the contiguous 48 states. Therefore, for the purpose of this proceeding, stations' markets are defined by a "Designated Market Area," or DMA, as defined by the Nielsen audience research organization. 3. Under the Commission's must-carry rules, cable operators have the burden of showing that a commercial station that is located in the same television market is not entitled to carriage. One method of doing so is for a cable operator to establish that a subject television station's signal, which would otherwise be entitled to carriage, does not provide a good quality signal to a cable system's principal headend. Should a station fail to provide the requisite over-the-air signal quality to a cable system's principal headend, it still may obtain carriage rights because under our rules a station may provide a cable operator with specialized equipment, at the station's expense, which will improve the station's signal to an acceptable quality at a cable system's principal headend. 4. Television stations must follow the schedules set out in Section 76.64(f) of our rules for making mandatory elections for must carry status. Section 76.61(a) of the rules provides that a television station that believes a cable operator has failed to meet its carriage obligations shall notify the cable operator in writing of the alleged failure and identify its reasons for believing the operator is obligated to carry the station's signal. The rule provides the cable operator thirty days in which to respond to a station's demand for carriage and provided a statement of the basis for any refusal of carriage. The rule further provides that in case of a denial of carriage or absence of a response from the operator the station may file a complaint with the Commission pursuant to the must carry complaint procedures provided in Section 76.7 of the rules. Section 76.7 provides deadlines for the filing of Section 76.61 complaints and cable system responses to such complaints. MARKET FACTS AND ARGUMENT 5. Aerco's complaint states that by letter dated December 10, 1997, a request was made for carriage of WRWR-TV on Cable TV's cable system. Aerco states further that the letter informed Cable TV that WRWR-TV was entitled to carriage and that the station delivers a quality signal to the principal headends of the cable systems. Aerco contends that although Cable TV was obligated under Section 76.61(a)(2) of the Commission's rules to respond to the request within thirty days of receipt of the letter, Cable TV submitted no response. Aerco asserts further that the complaint was filed within sixty days of Cable TV's failure to respond and therefore is filed timely under Section 76.7(c)(4)(A) and (B) of the rules. 6. The complaint shows that television station WRWR-TV is licensed to San Juan, Puerto Rico, and located in the Puerto Rico DMA. Aerco asserts that the cable system operated by Cable TV serving San Juan and neighboring areas is also located in the San Juan DMA, that Cable TV's cable system has a capacity of 53 activated channels, and that the cable system is obligated to carry up to 17 local television stations. Aerco argues therefore that WRWR-TV is a local television station qualified under the provisions of 47 C.F.R.  76.55(c) for carriage on Cable TV's cable system, and asserts that WRWR-TV delivers a good quality signal to the headend of Cable TV's cable system. 7. Cable TV contends in opposition that the complaint fails to disclose that Aerco had previously requested carriage on its cable system by letters dated January 27, 1997 and May 22, 1997. It argues that since the complaint was not filed until February 24, 1998, the complaint is untimely and must be dismissed pursuant to Section 76.7(c)(4)(iii) and applicable precedent. Cable TV also asserts that its cable system does no have adequate channel capacity to add another signal and that requiring carriage of WRWR-TV will result in disruption of viewer habits. Cable TV asserts that viewer satisfaction is particularly important because its cable system faces competition from DBS, SMATV, MMDS and other video service providers, and for these reasons the public interest would not be served by requiring carriage of WRWR-TV. 8. Aerco opposes the dismissal request, asserting that its January and May 1997 letters were not must carry requests, as Cable TV contends. Aerco claims the letters merely represent efforts to provide Cable TV with notice that WRWR-TV was going to be on the air and that Aerco was the new owner of WRWR-TV. According to Aerco the letters made neither a demand for carriage nor reminded Cable TV of its obligation to carry WRWR-TV, expressing instead Aerco's expectations for the same cooperation accorded the station's former owners. Aerco argues that the Commission's rules anticipate a dialogue between a station and a cable system that may lead ultimately to a writing which memorializes an alleged failure to carry. Aerco urges the Commission to take care not to deny carriage rights on the basis of ambiguous correspondence. Aerco suggests that cases of ambiguity should be construed in favor of the party to whom relief is afforded and against the party avoiding its obligations. Aerco argues that since the complaint was filed within sixty days from the date Cable TV was obligated to respond to the December 10, 1997 must carry request, the complaint is timely filed. 9. Finally, Aerco states that Cable TV provided no basis for claiming its cable system does not have channel capacity to accommodate WRWR-TV. Aerco reiterates the fact that Cable TV's cable system has 53 activated channels and under the rules is obligated to carry up to 17 local signals. It contends further that Cable TV's system carries only five local stations and therefore has an obligation to carry up to 12 additional local channels. DISCUSSION AND ANALYSIS 10. We find the complaint to be filed timely and conclude, based on information of record, that an order for carriage of WRWR-TV should be issued. We find that Aerco's letters of January and May 1997 do not make must carry requests under Section 76.61 that trigger a must carry complaint filing deadline. Section 76.61(1)(a) provides that when a local television station believes a cable operator has failed to meet its carriage obligations, the station "shall notify the operator, in writing, of the alleged failure and identify its reasons for believing that the cable operator is obligated to carry the signal of such station ...." Neither of these letters, on which Cable TV relies for its objection to the complaint as untimely filed, contains any language alleging that Cable TV failed to carry WRWR-TV or identifying reasons for a belief that Cable TV is obligated to carry WRWR-TV. It also appears that Cable TV did not treat either of these letters as must carry requests under Section 76.64(1)(a), because no response was made to either of them by means of a Section 76.61(b) notice of carriage refusal. 11. In this connection, the Commission, in the Must Carry Order, pointed out that the statutory requirement, for notice to a cable operator of any failure to comply with its must carry obligations before a must carry complaint may be filed, applies even if the cable operator first notifies the station of its intent not to carry the station. In other words, the prerequisite for the filing of a must carry complaint in this case was the submission by Aerco to Cable TV of a Section 76.61 must carry demand. In this case, as of December 10, 1997 when Aerco submitted its demand for carriage, no previous demand for carriage of WRWR-TV was outstanding. Aerco filed its complaint on February 24, 1998 within ninety days after December 10, 1997. Therefore, the complaint was timely filed. 12. Finally, we reject Cable TV's carriage objection based on lack of channel capacity. Section 614(b)(1)(B) mandates that cable systems "with 12 or more usable activated channels shall carry the signals of local commercial television stations, up to one-third of the aggregate number of usable activated channels of such system." In the Must Carry Order, the Commission interpreted Section 614(b)(1)(B) as creating a clear statutory right of carriage that is not qualified by the fact that an existing service must be dropped to make room for mandatory carriage of a local station and that the carriage right applies "notwithstanding the existence of prior agreements between cable operators and cable programming services." The Commission further indicated that neither inconvenience, marketing problems, need for system configuration, or need to make technical changes except for a "compelling technical reason" was sufficient reason to deny a commercial station's "on channel" positioning. We note in this connection that Cable TV does not plead the existence of any prior carriage agreement in conflict with the instant request, only that deletion of an existing service may be an inconvenience to subscribers. We find that such circumstances do not constitute a "compelling technical reason" for not accommodating mandatory carriage of a qualified local television stations. The record shows that Cable TV's cable system has 53 activated channels. Accordingly, under the rules Cable TV is obligated to carry up to 17 local signals. Cable TV's system currently carries only five local stations, and therefore has an obligation to carry up to 12 additional local channels, including WRWR-TV. 13. Cable TV presented nothing to dispute Aerco's representations that television station WRWR-TV is located in San Juan, Puerto Rico and in the San Juan DMA, that the cable system operated by Cable TV serving San Juan and neighboring communities is also located in the San Juan DMA, or that WRWR-TV delivers a good quality signal to the principal headend of its cable system. Based on these unchallenged representations, we find that WRWR-TV is a local television station qualified under the provisions of 47 C.F.R.  76.55(c) for carriage on Cable TV's cable system, and conclude that an order for carriage of WRWR-TV should be issued. ORDERING CLAUSES 14. 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 Aerco Broadcasting Corp. in File No. CSR 5226-M IS GRANTED, and Cable TV of Greater San Juan ("Cable TV") IS ORDERED to commence carriage of television station WRWR-TV on its cable systems serving San Juan, Puerto Rico and neighboring communities within sixty (60) days of the release of this order. 15. IT IS FURTHER ORDERED, that WRWR-TV shall notify Cable TV 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 the release date of this Order. 16. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau