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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 the matter of: ) ) NEXSTAR BROADCASTING ) GROUP, L.P. ) ) v. ) CSR 4920-M ) RIVER VALLEY CABLE TV ) Williamsport, Pennsylvania ) ) Petition for Reconsideration ) MEMORANDUM OPINION AND ORDER Adopted: September 22, 1998 Released: September 25, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. River Valley Cable TV, Inc. ("River Valley") has requested reconsideration of the Bureau's decision ordering River Valley to commence carriage of television broadcast station WYOU-TV ("CBS"), Wilkes-Barre/Scranton, Pennsylvania in the communities of Flemington, Lamar Township, Loganton, Mill Hlll, Rote, Walker Township, Bald Eagle Township, Lamar, Lock Haven, Mackeyville, Porter Township, and Salona, Pennsylvania (the "communities"). Nexstar Broadcasting Group, L.P., licensee of WYOU-TV ("Nexstar") has filed an opposition, to which River Valley replied. River Valley also filed a request to stay the Bureau's decision, which was opposed by Nexstar. River Valley filed its petition pursuant to Section 1.106 of the Commission's rules, contending that the Bureau based its decision on an error of fact that bears directly on the status and carriage rights of WYOU-TV. 2. The Bureau's decision held that WYOU-TV and the communities served by River Valley's cable system were located within the Wilkes-Barre/Scranton Area of Dominant Influence ("ADI"), and that WTAJ-TV, the CBS affiliate carried by the cable system, was located in the Johnstown/Altoona, Pennsylvania ADI not served by the system. Accordingly, the Bureau ruled that WYOU-TV had mandatory carriage rights on River Valley's system serving the communities, and that WTAJ-TV had no such carriage rights. SUMMARY OF THE PLEADINGS 3. River Valley contends that it did not participate in the earlier proceeding due to the temporary absence of a system employee responsible for signal carriage matters, and because of the relocation of its business office. River Valley states that by the time it contacted counsel regarding Nexstar's petition for mandatory carriage, the Bureau had already granted the petition. River Valley argues that the Bureau based its decision on Nexstar's assertion that all of the communities served by the cable system are located in Clinton County, Pennsylvania, which is located in the Wilkes-Barre/Scranton ADI, but that, in fact, three communities served by the system are located in Centre County, which is located in the Johnstown/ Altoona ADI. River Valley states that it technically integrated its 35 channel system from one headend in each county to a single headend in l994, and that any attempt to separate the three Centre County communities for signal carriage purposes would negate the technical benefits gained from its system consolidation. River Valley also states that it carries the signals of television broadcast stations of both ADIs, subject to the statutory limitations on network duplication. Further, River Valley states that in accordance with Section 76.56(b)(5) of the Commission's rules, it has elected to carry the signal of CBS affiliate WTAJ-TV, as that signal is located closest to the system's headend. 4. In opposition, Nexstar argues that River Valley was served with Nexstar's petition for carriage in the underlying matter, but that the cable operator did not respond. Nexstar contends that the Commission should not permit River Valley to reply to Nexstar's must carry complaint through reconsideration four months after the filing of the original petition because of the absence of one system employee. Nexstar also argues that River Valley should not avoid carriage of a local station because of a system reconfiguration, and that 80% of the system's subscribers reside in the Clinton County communities where WYOU-TV is a local signal. In addition, Nexstar points out that the system carries the Wilkes-Barre/Scranton NBC, ABC, Fox and PBS affiliates, and that WYOU-TV is especially aggrieved by a lack of carriage. 5. In reply, River Valley emphasizes that Section 1.106 of the Commission's rules allows the decision-making authority to determine that the petition for reconsideration relies on facts not previously presented, and that consideration of these facts is required in the public interest. River Valley argues that Nexstar's must carry complaint contained a significant factual error, i. e., that the cable system is located only in the Wilkes Barre/Scranton ADI, and that the Bureau's decision was therefore based on that erroneous factual premise. River Valley contends that if Nexstar had accurately portrayed the dual ADI location of the system, it would have been apparent to the Bureau that carriage of WTAJ-TV as the closer of the two CBS affiliates was fully consistent with the Commission's must carry rules. River Valley states that its signal carriage complement did not change after its l994 system reconfiguration, and that it had not carried WYOU-TV on either headend prior to or after consolidation of its headends. 6. River Valley also argues in reply that its carriage complement of commercial broadcast stations reflects selection of the closer network affiliate from the two markets that its system serves. River Valley contends that of all the local commercial stations carried on the system, WTAJ-TV has the strongest local presence, in that its Altoona community of license is closest to the system's headend and provides the strongest signal at the headend. According to River Valley, WTAJ-TV is the only station listed as either significantly viewed in both Clinton and Centre counties or that places a Grade B signal over its system. River Valley contends that if the Bureau's decision mandating carriage of WYOU-TV remains in effect, the cable operator will be forced into one of two options, neither of which benefits the system's subscribers. River Valley states that it can either add WYOU-TV by dropping a more diverse non-broadcast channel, in contravention of the intent of the Commission's signal duplication policy, or by dropping WTAJ-TV, which is the closer CBS affiliated station. River Valley emphasizes that WTAJ-TV has been carried on the system for at least two decades and that WYOU-TV has not been carried for at least two decades. River Valley concludes that by allowing the system's current carriage to continue, the Commission will protect the system and its subscribers from needless duplication, from a reduction in diversity of programming, and from disruption of long-standing carriage and viewing habits. DISCUSSION 7. We will grant River Valley's petition for reconsideration and reverse our earlier decision. Although we are not convinced that River Valley acted judiciously in failing to respond to Nexstar's must carry complaint, it does appear that the petition for reconsideration presents new facts which must be considered pursuant to the public interest standard of Section 1.106 of the Commission's rules. Our earlier decision was based on the facts before us in that matter, i. e., that WYOU-TV was located in the same ADI as the subject cable system, and that WTAJ-TV, although located closer to the system, was not located in the system's ADI. The facts as presented on reconsideration demonstrate that River Valley's cable television system covers communities located in two ADIs, and that WTAJ-TV is the closer of two duplicating network affiliates within the system's markets. In addition, WTAJ-TV has been carried on the system for two decades, supplies the system's headend with its strongest broadcast signal, and is the only station deemed significantly viewed in both counties or that places a Grade B signal over the system.. 8. Section 614(a) of the Communications Act states that each cable operator shall carry the signals of local commercial television stations. A local commercial television station is defined as any full power broadcast television station that is within the same television market as the cable system. However, a cable operator is not required to carry the signal of a local commercial station if the signals of more than one local station affiliated with the same broadcast network are deemed to be in the cable system's market. In Implementation of the Cable Television Consumer Protection and Competition Act of 1992: Broadcast Signal Carriage Issues, Report and Order in MM Docket 92-259, the Commission stated that if an operator elects to carry the signal of only a single affiliate of a broadcast network, it is obligated to carry the affiliate from within the market whose city of license is closest to the principle headend of the cable system. 9. It appears on reconsideration that both WYOU-TV and WTAJ-TV are located in markets served by Valley Cable's system, and that WTAJ-TV is located closest to the principal headend of the system. It is clear where a cable system serves one market and two broadcast stations with the same network affiliation are deemed local to that system, the cable operator is obligated to carry the closer station, to the exclusion of the more distant broadcaster at the cable operator's option. In this matter, we believe that River Valley should not be required to carry duplicating network affiliates where its system covers two ADIs. Based on the record before us, and absent compelling evidence to the contrary, we believe it appropriate for River Valley to carry WTAJ-TV because of its nexus to the particular cable markets served in this matter. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that, pursuant to 614 of the Communications Act of 1934, as amended, 47 C.F.R. 534, and 76.56(b)(5) of the Commission's rules, 47 C.F.R. 76.56(b)(5), the petition for reconsideration filed by River Valley Cable TV, Inc. IS GRANTED. 11. This action is taken pursuant to authority delegated by 0.321, 47 C.F.R. 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau