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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 Whitehead Media of ) CSR-5236-M Georgia, Inc. against MediaOne, Inc.) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: August 18, 1998 Released: August 20, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Whitehead Media of Georgia, Inc., licensee of Station WNGM-TV (Ind., Ch. 34), Athens, Georgia, has filed a must carry complaint against MediaOne, Inc. ("MediaOne") for that system's refusal to carry WNGM-TV on several cable systems it serves in the Atlanta, Georgia area. MediaOne has filed an opposition and a further opposition to this complaint, and WNGM has filed responses to both pleadings. 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, WNGM-TV initially points to relevant background information. It states that it filed an earlier complaint against MediaOne (CSR-4990-M) which was denied due to the fact that WNGM-TV was considered to be the same affiliate (inTV) as WPXA-TV, a station already carried by the system. WNGM-TV indicates that the Commission's action in 4990-M was considered in a joint decision with that of a request by MediaOne for modify its market to exclude WNGM-TV from must carry status on its system. The Commission also denied MediaOne's request for exclusion in this instance, and WNGM-TV states that MediaOne subsequently requested a partial reconsideration of that decision. In a response to that partial reconsideration, WNGM-TV states that it pointed out that effective September 1, 1997, it had terminated its affiliation with inTV. Moreover, WNGM-TV continues, in a subsequent December 22, 1997 decision in CSR-5075-M, the Commission granted WNGM-TV's carriage complaint against Bellsouth Interactive Media Services, Inc., by finding that Bellsouth had not produced enough evidence to conclude that WNGM-TV was affiliated with the same network as WPXA-TV. WNGM-TV states that based upon the evidence it presented in its rebuttal to MediaOne partial reconsideration and the Commission's action in CSR- 5075-M, it again requested carriage on MediaOne's cable systems. WNGM-TV indicates that MediaOne's March 23, 1998 response to this request refused carriage, citing the Commission's more recent decision in CSR-5143-M which ruled that WPXA-TV and WNGM-TV are affiliates of the same network. 4. WNGM-TV argues that the instant complaint was timely filed within sixty days of MediaOne's March 23rd refusal of carriage. WNGM-TV maintains that it meets the definition of a local commercial television station and is eligible for must carry status -- both WNGM-TV and MediaOne's cable systems are all located in the same ADI; it provides a good quality signal to MediaOne's principal headends; and no copyright liability will be incurred through its carriage. WNGM-TV contends that, effective April 5, 1998, it is now affiliated with USA Networks and has switched to a music video format, which will be supplemented by public affairs and children's television programming. WNGM-TV contends that due to the its change in affiliation the Commission's previous decisions in CSR-4990-M and CSR-5143-M are moot and it is now eligible for carriage on MediaOne's cable systems herein. 5. In opposition, MediaOne states that WNGM-TV's entitlement to carriage on its Atlanta metro area cable systems during the 1997-1999 must carry election period was resolved by the Commission's prior decision in CSR-4990-M. It argues, therefore, that WNGM-TV's current complaint is untimely, repetitious, and barred by Commission's rules in that WNGM-TV's instant complaint is "seeking the same carriage relief for the same WNGM station on the same MediaOne cable systems during the same must carry election period (emphasis supplied)." MediaOne points out that the rules adopted by the Commission in its Report and Order in MM Docket 92-259, supra, clearly establish a 60 day time limit after denial of carriage in which television broadcast stations may file a must carry complaint. MediaOne contends that the triggering event in this situation was not the March 23, 1998 refusal of carriage claimed by WNGM-TV, but rather the February 2, 1997 denial of WNGM-TV's original January 3, 1997 demand for carriage during the current 1997-1999 election period. Therefore, it argues, WNGM-TV's instant complaint is more than one year and 60 days overdue. Moreover, MediaOne states that nowhere in 76.7(c)(4)(iii) of the rules does it say that a complaint may be filed within 60 days of either "the most recent carriage demand the station has made" or "after a final Commission decision which denied an earlier station carriage complaint." In addition, MediaOne points out that the Commission's decision in Friendly Bible Church, Inc., which dismissed a station's carriage complaint as untimely, the Commission stated that "We note that KLXV-TV is not permanently foreclosed from perfecting its rights. Pursuant to 76.64(f)(2) of the Commission's Rules, KLXV-TV will have an opportunity again to choose between must-carry and retransmission consent by October 1, 1996, and to inform Viacom of this election. Should KLXV-TV opt for must-carry at this election, it may again demand carriage upon Viacom's system (emphasis supplied)." MediaOne argues that, as a result of this decision, the Commission made it clear that a station is barred from making a subsequent carriage demand for the duration of a must carry election period once it has failed, for whatever reason, to perfect its carriage rights in a prior demand. MediaOne states that to allow multiple, repetitious demands for carriage or attempts to "restart" a filing clock after receiving a denial of carriage would not only undermine the rule but destroy any chance of achieving the underlying policy of the rule -- finality and certainty in the Commission's must carry dispute resolution process. MediaOne maintains that WNGM-TV had the opportunity to prosecute its claim to carriage by seeking reconsideration of the Bureau's decision in CSR-4990-M but failed to do so. MediaOne argues that to allow WNGM-TV to reopen and relitigate the same carriage question now totally undermines the finality of the Bureau's decision in MediaOne, supra, would seriously harm the interests of MediaOne's subscribers, and, potentially, could adversely affect the interests of other cable operators and their subscribers throughout the country. 6. In any event, MediaOne maintains that WNGM-TV's claims with regard to programming changes cannot be taken at face value, particularly if one looks at the chronology. Initially, MediaOne states that in its opposition to the partial reconsideration of the decision in MediaOne, supra, WNGM-TV claimed, only 11 days after the release of the MediaOne order, that it had ceased airing Paxson's inTV programming in favor of an allegedly separate Paxson-owned network, Paxnet. MediaOne argues that while WNGM-TV's apparent response to the MediaOne decision was to create an appearance that its duplicative station was allegedly changing its programming, an act which took place well before the deadline for filing a reconsideration, WNGM-TV did not take advantage of the reconsideration process but instead voluntarily elected to allow the Bureau's decision to become final and binding. Despite WNGM-TV's claims about its change to "Paxnet programming," both in the MediaOne case and numerous other Commission proceedings, MediaOne points out that there was no public record of the existence of the alleged "Paxnet" entity at any time prior to the MediaOne decision, or for several months thereafter. Moreover, MediaOne states that since this alleged change was only made after the MediaOne decision was released, it is its opinion that the alleged changes were a post- MediaOne concoction devised by WNGM-TV for the sole purpose of attempting to circumvent the Bureau's ruling. Indeed, MediaOne points out that later press reports indicating that Paxson was planning to start a new network called "Paxnet" in the latter part of 1998 which would offer syndicated programming, precludes the fact that the "Paxnet" referred to by WNGM-TV shortly after the MediaOne decision could be the so-called program-length commercial network it was claimed to be or the current source of the supposedly different programming. Even more confusing, states MediaOne, are later claims by WNGM-TV that the once-named, allegedly separate "Paxnet" was in actuality to be called "Infomall," a name that originally was supposed to refer only to inTV. MediaOne states that while this Paxson shell game succeeded in eliciting a grant from the Bureau in WNGM-TV's complaint against Bellsouth (CSR-5075-M), the Bureau flatly rejected the same approach by WNGM-TV in its complaint against Robin Media (CSR-5143-M) where program schedules for WNGM-TV and WPXA-TV reflected far more than 15 hours per week of duplicated programming. 7. MediaOne states further that WNGM-TV's current claims that its programming will now be supplied by "The Box" are equally unpersuasive. For instance, MediaOne points out that this latest change, effective April 5, 1998, occurred only 5 days before WNGM-TV filed the instant complaint and well after WNGM-TV made its January 1998 and February 1998 carriage demands of MediaOne and MediaOne's subsequent March 23rd refusal of carriage. MediaOne argues that since the Bureau penetrated and rejected WNGM-TV's false "Paxnet" claims in the decision in CSR-5143-M, WNGM-TV was forced to institute another purported change in order to advance its instant complaint on an entirely different theory. MediaOne states that a review of the only program schedules supplied by WNGM-TV, however, reflect at least 7 hours per day of unidentified generic "shop at home" program-length commercials which appear to be duplicative of current WPXA-TV Paxson-supplied program-length commercials and additional children's programming which clearly duplicates WPXA-TV programming. From the evidence, therefore, MediaOne argues that it appears that WNGM-TV continues to air approximately 60 hours of programming per week that is duplicative of the programming of WPXA-TV and WNGM-TV has offered no proof to the contrary. 8. Finally, MediaOne argues that WNGM-TV's complaint is meritless for other reasons as well: a) WNGM-TV failed to present evidence that would support its claim to carriage; b) WNGM-TV's complaint was premised on an entirely different set of facts than those set forth in its carriage demands; c) since WNGM- TV and other Paxson stations have established a "track record" of false and misleading claims, verification of their claims should be made through a formal administrative hearing, with full rights of discovery and cross- examination; and d) WNGM-TV seeks to force MediaOne to retransmit a national cable network programming service the station will ostensibly be carrying in the future after MediaOne has already declined to carry this network after discussions with the purveyor of this service despite substantial monetary incentives. 9. In reply, WNGM-TV argues that despite MediaOne's assertions, the Commission could not have intended to bar a television station from carriage under the Commission's Rules and the Communications Act of 1934, as amended, for an entire must carry election period after it cured the original carriage deficiency. WNGM-TV states that, given the Bureau's finding in CSR-5143-M, it concluded that a change in format would be necessary in order to eliminate the duplicated program and network affiliation issues raised in that case and to qualify for carriage on Atlanta area cable systems during the 1996-1999 election period. While this change was effective April 5, 1998, WNGM-TV states that it indicated in its complaint that, due to certain contractual obligations, it would not be completely programming with "The Box" format until April 19, 1998. In the interim, WNGM-TV states that it continued to broadcast the Shop-At-Home Network during overnight hours, programming which was not broadcast on WPXA-TV. WNGM-TV points out that the programming that was duplicated on WPXA-TV, and which it was obligation to broadcast during this interim period, constituted less than 15 hours of programming per week. As a result, WNGM-TV maintains that at the time its complaint was filed it was not broadcasting any programming affiliated with the same network as that carried on WPXA- TV or duplicating programming as defined by the Bureau's interpretation in its decisions in MediaOne or CSR- 5143-M. Further, WNGM-TV contends that MediaOne's extensive discussion of the programming on the inTV and Paxson networks has no real relevance to this proceeding. The fact that the Bureau did not agree with the rationale regarding two separate Paxson networks advanced in earlier cases should not tarnish WNGM-TV's attempts to advance what it considered to be a valid distinction. 10. WNGM-TV asserts that Congressional policy supports the rights of a must carry station to file a second complaint in order to perfect its carriage rights. It points out that Congress concluded that "[t]he Federal Government has a substantial interest in having cable systems carry the signals of local commercial television stations because the carriage of such stations is necessary to serve the goals contained in Section 307(b) of the Communications Act of providing a fair, efficient, and equitable distribution of broadcast services." WNGM-TV states that this policy has been acknowledged and ratified by the Supreme Court in Turner Broadcasting System, Inc. WNGM-TV maintains that the rejection of its right to carriage when it is no longer broadcasting duplicating programming would not only contravene Congressional intent by shutting off access to another outlet in the Atlanta market, but militate against licensees providing diverse programming to the public. Further, WNGM-TV states that 76.7(c)(4)(iii) of the Rules is only triggered where a station fails to file a complaint within 60 days. WNGM-TV argues that in instances where the Bureau denies carriage, there is no reason why a station should not be afforded the opportunity to correct the deficiency in order to qualify for carriage in the same election period. Moreover, it maintains that, despite MediaOne's reliance on the decision in Friendly Bible Church, the Commission has never determined that a second carriage complaint to enforce a station's rights should be barred, particularly as such an interpretation would only serve to undercut the policy on which the must carry rules are based. For instance, WNGM-TV points to cases where the Bureau has rejected carriage because of inadequate signal strength, but left open the possibility that a station may establish a good quality signal later, and in San Mateo Community College District, the Bureau granted a station carriage even though it had already rejected the station's earlier complaint. In that decision, WNGM-TV states that the Bureau noted that "broadcast stations may assert their carriage and channel positioning rights at any time so long as they have not elected retransmission consent," and that "where the station does not initially meet the criteria for must carry status, it subsequently may assert its rights once it satisfies the conditions for must carry status." WNGM-TV contends that a station changing its programming format or network affiliation should also be entitled to reassert its carriage rights on cable systems within its market because such change constitutes a bona fide and a new set of circumstances deserving of consideration by the Bureau. 11. In a further opposition, MediaOne states that WNGM-TV's reliance on Commission "signal quality" decisions and the decision in San Mateo Community College District are misplaced. MediaOne points out that the cases WNGM-TV's cites regarding signal quality all involve only a single complaint and only prove that the Commission will conditionally grant a carriage complaint where the station has made a commitment to provide and pay for necessary equipment to deliver an adequate signal. MediaOne states that nowhere in its original complaint did WNGM-TV even remotely promise to "cure" its so-called "substantive deficiency." And even if it should do so at some future time, MediaOne states that it appears unlikely the Bureau would conditionally grant such an odd complaint. Moreover, MediaOne states that the San Mateo case not only involved a noncommercial station, which is not subject to the restrictions of 76.7(c)(4)(iii), but its two carriage complaints were filed four years apart and in two different election periods. In addition, MediaOne argues that WNGM-TV's claims that its actions herein have been "bona fide" are false when one considers that its repetitious 1998 carriage demands were expressly premised on the carriage of supposedly "separate" and "different" Paxnet programming. Therefore, MediaOne maintains, the history of those earlier claims cannot be said to have no bearing on the instant complaint. Moreover, MediaOne states that an examination of the 41 eight-hour video tapes proffered by WNGM-TV to the Commission during the proceedings in CSR-5075-M and MediaOne, demonstrates massive duplication of programming by WNGM-TV and WPXA-TV of up to 95.5 hours per week. MediaOne states that when the contents of these tapes is compared to September 15-21, 1997 program schedules for both WNGM-TV and WPXA-TV, the level of duplication rises to 107 hours per week. 12. WNGM-TV's reply to the further opposition states that MediaOne has passed the bounds of all reason and common sense in its latest unjustified filing. It reiterates that it has provide the Bureau with bona fide and valid information during this proceeding and that this conclusion is supported by the record. WNGM-TV maintains that its instant complaint is valid and that its reliance on signal quality cases is fully justified as duplicative programming and network affiliations are similarly curable defects. Moreover, WNGM-TV states that the fact that in San Mateo the station was noncommercial is irrelevant. WNGM-TV points to the fact that in San Mateo the Bureau cited the Clarification Order in MM Docket No. 92-259, stating that any "broadcast station [regardless of whether it is commercial or noncommercial] may assert their carriage and channel positioning rights at any time so long as they have not elected retransmission consent." DISCUSSION 13. It is uncontested that the Bureau's prior decision in CSR-4990-M denied WNGM-TV carriage on MediaOne's Atlanta-area cable systems due to the fact that it was found to be duplicating the programming of WPXA-TV. The main point of contention in the current case is whether WNGM-TV is entitled to file a second must carry complaint against MediaOne within the same election period. WNGM-TV argues that it is eligible to file another complaint because it has substantially altered its programming and is no longer a duplicating station. In support of its contention WNGM-TV points to: a) previous Commission decisions that conditionally granted a station's must carry complaint in instances where that station was not currently providing a good quality signal; and b) the Commission's decision in San Mateo Community College District, supra, that granted a second must carry complaint filed by educational station KCSM-TV against Century Communications. 14. MediaOne argues that 76.7(c)(4)(iii) of the Commission's rules calls for the dismissal of a station's must carry complaint when it is filed more than 60 days after the cable system's denial of carriage. MediaOne maintains that the Commission's decision in Friendly Bible Church, Inc., supra, clearly bars a commercial station from making a subsequent demand for carriage after its initial complaint has been denied by the Commission for the duration of a must carry election period. MediaOne contends this is true regardless of whatever changes a station may make during that interval. 15. We find MediaOne's reliance on the above to be misplaced. Section 76.7(c)(4)(iii) of the rules is relevant where a station has failed to take advantage of the Commission's must carry complaint procedures within 60 days of a denial of carriage by a cable system. Here WNGM-TV has filed its complaint within 60 days of MediaOne's March 23, 1998 refusal of carriage. MediaOne's attempt to make WNGM-TV's current complaint retroactive to the system's earlier denial of carriage prior to the filing of CSR-4990-M is unpersuasive. Neither the rule nor the Commission's decision in Friendly Bible Church bar stations from filing subsequent complaints where there has been a substantial intervening material change in circumstances which was not present when the station's original timely complaint was filed. 16. In Friendly Bible Church the Commission found that the station involved, KLXV-TV, had forfeited its must-carry rights for the three year election period because it had not filed a complaint within the 60 day period provided for in Section 76.7(c)(4)(iii). In the subsequent application for review in this case, KLXV-TV questioned the Commission's analysis of the facts in the case, particularly as to the specific date the cable system in question refused carriage. From start to finish, the issue in Friendly Bible Church was one of late filing. This is not the case here. Rather, KLXV-TV filed a timely complaint the first time thereby perfecting its rights. Subsequently, after a substantial material change in circumstances, which was not present when it filed its first timely complaint, it filed a second timely complaint. In Friendly Bible Church, the Commission found that the station never filed a timely complaint which barred it from filing any complaint in the current election cycle. 17. We find that WNGM-TV's program change from Paxson-controlled programming, which had been found to be duplicative, to a USA Networks/music video format to be a substantial material change in circumstance which was not present when it filed its original complaint. Consequently, WNGM-TV was not barred from filing a new timely complaint. In a review of the programming logs submitted by WNGM-TV in its reply, comparing the programming of WNGM-TV to that of WPXA-TV during the week of April 5-11, 1998, we note only 7 hours of programming broadcast by WNGM-TV during that week which duplicates programming on WPXA-TV, not all of which is simultaneously broadcast. Therefore, we conclude that the programming currently broadcast by WNGM-TV, as outlined in its carriage complaint, does not duplicate that of MediaOne's currently-carried station WPXA-TV. 18. Finally, with regard to the arguments raised by MediaOne as to the inconsistencies and underlying motives in WNGM-TV's programming changes, we find no reason to conclude that an administrative hearing would be necessary.WNGM-TV has met the Commission's requirements to be considered a must carry station and MediaOne has not shown that WNGM-TV's filing was inappropriate in view of the above. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended, 47 U.S.C. 534, that the must carry complaint filed on behalf of Whitehead Media of Georgia, Inc., IS GRANTED, and MediaOne, Inc. IS ORDERED to commence carriage of WNGM-TV within sixty (60) days of being advised by WNGM-TV of its channel position election. 20. IT IS FURTHER ORDERED, that WNGM-TV shall notify MediaOne in writing of its channel position election (76.57 of the Commission's Rules) within thirty (30) days of the release date of this Order. 21. 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 APPENDIX I WNGM is requesting carriage on the following MediaOne cable systems located near Atlanta, Georgia: 1) Alpharetta 11) Tyrone Roswell Fayette County Fulton County Fayetteville South Fulton County 2) Atlanta Coweta County Fort McPherson Woolsey Brooks 3) Clayton County Peachtree City Forest Park Riverdale 12) Snellville Morrow Gwinnett County Lake City Lilburn Jonesboro Grayson Hapeville Norcross Lovejoy Berkeley Lake Northern Henry County Duluth Fort Gillem Loganville 4) Stone Mountain 13) Austell DeKalb County Marietta Decatur Cobb County Clarkston Kennesaw Avondale Estates Acworth Pine Lake Douglas County Lithonia Bartow County Dobbins AFB 5) Douglas County Powder Springs Douglasville Fairfield Plantation 14) Conyers West Fulton County Rockdale County Lithia Springs Newton County 10) College Park East Point