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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: ) ) Hector Negroni Cartagena, Licensee of) Television Station WMEI ) San Juan, Puerto Rico ) ) vs. ) CSR-5233-M ) Cable TV of Greater San Juan, Inc. and Century) Communications ) ) Request for Mandatory Carriage ) of Television Station WMEI ) San Juan, Puerto Rico ) MEMORANDUM OPINION AND ORDER Adopted: August 7, 1998 Released: August 10, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Hector Negroni Cartagena ("Negroni Cartagena"), licensee of television broadcast station WMEI, located in San Juan, Puerto Rico ("WMEI" or "the Station"), has filed a must-carry complaint with the Commission pursuant to Sections 76.7(a)(2) and 76.61(a)(3) of the Commission's rules, claiming that Cable TV of Greater San Juan, Inc. ("Cable TV") has failed to commence carriage of WMEI on its system serving San Juan, Puerto Rico, as required by Section 614 of the Communications Act. Cable TV filed an Opposition to the Complaint and Negroni Cartagena filed a Reply. 2. Cable TV of Greater San Juan, Inc. and Century Communications submitted additional comments in response to Negroni Cartagena's Reply. 3. On two separate occasions, Mr. Negroni Cartagena also filed supplemental comments in response to the additional comments submitted by Cable TV of San Juan, Inc. BACKGROUND 4. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in it Report and Order in MM Docket 93-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable television 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 5. Mr. Negroni Cartagena asserts that WMEI is entitled to mandatory carriage on Cable TV's system serving San Juan, Puerto Rico because it is a qualified local commercial station as defined under the Commission's must-carry rules. Mr. Negroni Cartagena explains that WMEI is licensed to San Juan, Puerto Rico, and states that WMEI and Cable TV are both located within the Puerto Rico ADI. Mr. Negroni Cartagena asserts that WMEI first requested mandatory carriage on Cable TV's system in a December 22, 1997 letter. Along with this letter, Mr. Negroni Cartagena's attorney submits the results of a must-carry signal test conducted on September 1, 1997. Mr. Negroni Cartagena claims that Cable TV did not respond to WMEI's must-carry demand 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. Mr. Negroni Cartagena maintains that WMEI's must-carry complaint was filed with the Commission in a timely fashion, and requests that the Commission order Cable TV to commence carriage of the WMEI signal on the cable system serving San Juan, Puerto Rico. 6. In opposition, Cable TV asserts that the purported must-carry request dated December 22, 1997 is not WMEI's initial request for mandatory carriage. Rather, Cable TV maintains, WMEI first invoked its must- carry rights in an August 27, 1997 letter to Mr. Francisco Toste, Vice President and General Manager of Cable TV, signed by Mr. Gaston Rosenstrauch, who identified himself as WMEI's President. Cable TV points out that WMEI submitted two additional follow-up must-carry requests - one on November 10, 1997 and the other on November 12, 1997. Cable TV notes that it did not respond to WMEI's initial carriage request within the established thirty-day period, and asserts that its lack of response to WMEI's August 27, 1997 initial request constituted an effective denial for carriage and started the sixty-day period for the Station to file a timely complaint with the Commission. Therefore, Cable TV argues, the WMEI "Complaint" was not timely filed and must be dismissed, pursuant to  76.7(c)(4)(iii) of the Commission's rules. Cable TV maintains that the December 22, 1997 request should not give WMEI a second bite at the apple and start anew the established sixty-day time limit in which to file a must-carry complaint. 7. Mr. Negroni Cartagena contends, in reply, that the August 27, 1997, November 10, 1997, and November 12, 1997 carriage requests "were not sent by the station, i.e. the owner of Channel 60," Hector Negroni Cartagena and are, therefore, invalid. Mr. Negroni Cartagena claims that the three requests were made by someone who had not been authorized to seek mandatory carriage "on behalf of the station (and/or behalf of the permittee of the station)." Mr. Negroni Cartagena asserts that the earlier requests "were apparently sent by a party that brokers time on Channel 60," and sent "without Negroni's knowledge, and without his authority." Thus, Mr. Negroni Cartagena maintains, the three letters from Mr. Gaston Rosenstrauch, who claimed to be WMEI's President, cannot support Cable TV's claim that WMEI exercised its must-carry rights prior to December 22, 1997. 8. In its supplementary comments, Cable TV disagrees with Mr. Negroni Cartagena's argument that the three pre-December 22, 1997 requests are invalid because Mr. Rosenstrauch lacked authority to act on behalf of the Station and/or in behalf of the owner of the Station. Cable TV argues that under basic agency law, Mr. Rosenstrauch was acting as the agent for the Station and/or the licensee, Mr. Negroni Cartagena, when he signed the August 27, 1997 must-carry request. Cable TV points out that Mr. Negroni Cartagena's attorney, Mr. Dan J. Alpert, was put on notice about Mr. Rosenstrauch's must-carry request on behalf of WMEI when the Station sent Mr. Alpert carbon copies of the August 27,1997 request. Under the circumstances, Cable TV asserts, Mr. Negroni Cartagena cannot disavow responsibility for the acts of his agent, Mr. Rosenstrauch. Cable TV states that "Mr. Rosenstrauch continues to act on behalf of WMEI-TV in its contacts with Cable TV regarding the must-carry issue," and Cable TV reiterates its argument that WMEI's complaint is untimely and must be denied. DISCUSSION AND ANALYSIS 9. We will dismiss Mr. Negroni Cartagena's complaint. As the Bureau previously explained in its decision in Friendly Bible Church, Inc., and in two recent Memorandum Opinion and Orders, the Commission's rules concerning its must-carry complaint procedures are quite clear: "No must-carry complaint filed pursuant to  76.61 will be accepted by the Commission if filed more than sixty (60) days after the ... denial by a cable television system operator of a request for carriage ..." The Commission explained that adoption of a time limit both for must-carry and channel positioning complaints was appropriate, because it balanced the interests of broadcasts stations in asserting their carriage rights, with the interests of cable systems in having certainty in their channel and carriage obligations to broadcasters, together with the interests of subscribers in having minimal viewing disruption and certainty of service. The Commission added that if within thirty days of the station's initial request for carriage or for channel position, the cable operator either denied the request or did not respond to it, the broadcast station then only had sixty days to file a complaint with the Commission. 10. As noted by Cable TV, WMEI failed to file a must-carry complaint, as required by Commission rules, within sixty days after Cable TV either ignored or denied the Station's initial letter dated August 27, 1997, as required under the Commission's rules. Although Cable TV did not add the signal and did not respond to the August 27, 1997 letter, WMEI did not file its complaint with the Commission until March 30, 1998, more than six months later. 11. We find that contrary to Mr. Negroni Cartagena's characterization, the August 27, 1997 letter was a valid demand for carriage. We agree with Cable TV's conclusion that under basic principles of agency law, Mr. Rosenstrauch was acting as an agent for WMEI and/or its licensee, when he signed the August 27, 1997 letter requesting must-carry status on Cable TV's San Juan, Puerto Rico's system. 12. Attachment 1 submitted in support of WMEI's December 22, 1997 carriage demand by Mr. Alpert, who is Mr. Negroni Cartagena's attorney, shows that the signal test was conducted in the presence of, among others, Gaston Rosenstrauch, who is identified on the test report as "President WMEI-Channel 60." The veracity of the information on this attachment was verified by Mr. Alpert, on page 5 of the Complaint in which he states: "[t]he undersigned, hereby verifies that he prepared the attached exhibits, and they are true and correct copies of the documents that they represent." Moreover, the record is devoid of any information indicating that Mr. Negroni Cartagena took any sanctions against Mr. Rosenstrauch for his alleged misconduct. Furthermore, we note that an Application for Consent to Assignment of Broadcast Station Construction Permit or License for the transfer of WMEI is pending before the Commission. Mr. Gaston Rosenstrauch is listed as one of the assignees and President and Director of the purchasing entity, which is consistent with his apparent authority. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED, that the complaint for carriage (CSR-5233-M), filed March 30, 1998, by Hector Negroni Cartagena, Licensee of Station WMEI in San Juan, Puerto Rico, IS DISMISSED as untimely filed. 14. This action is taken pursuant to authority delegated by  0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau