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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 ) ) Mid-Maine Community Broadcasting ) against State Cable TV Corporation ) CSR 4854-M ) Request for Carriage of WFYW-LP, Fairfield, Maine ) MEMORANDUM OPINION AND ORDER Adopted: October 13, 1998 Released: October 15, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. State Cable TV Corporation ("State Cable"), operator of a cable system serving Fairfield, Maine, filed a Petition for Reconsideration of Mid-Maine Community Broadcasting v. State Cable TV Corporation, DA 97-2310 (Cable Serv, Bur. released November 4, 1997) ("Second Bureau Order"), which set aside an earlier Bureau Order, and granted a complaint filed by Mid-Maine Community Broadcasting ("Mid-Maine") under 47 U.S.C.  534 and 47 C.F.R.  76.7 & 76.61(a) for mandatory carriage of low power station WFYW-LP on the cable system. Mid-Maine, licensee of WFYW-LP, filed an opposition to the petition. State Cable filed a reply. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended, and implementing Commission rules, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A low power television station also may be entitled to mandatory carriage rights as a "qualified low power station," provided, among other things, all of the conditions described in Section 614(h)(2) of the Act are met. Section 614(h)(2)(B) requires as one of these conditions that a low power station seeking carriage establish "that local news and information needs of the relevant communities are not being adequately served by local full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license." If WFYW-LP does not satisfy this condition it, as a low power station, is not considered a qualified low power station for carriage purposes and is not entitled to must carry rights. 3. The First Bureau Order denied the complaint because Mid-Maine failed to support by program logs or other evidence its contention that WFYW-LP's programming is locally oriented and addresses local needs not addressed by programming of full power stations and provides local news and informational programming directed at the communities at issue. In view of this evidentiary failure, the First Bureau Order concluded that Mid-Maine had not established WFYW-LP's qualification as low power station entitled to mandatory carriage on State Cable's system serving the communities at issue, as contemplated by Section 614(h)(2)(B). Based on additional programming information submitted with Mid-Maine's petition for reconsideration of the First Bureau Order, the Second Bureau Order found that WFYW-LP's programming was locally oriented and addressed needs not shown to be addressed by programming of full power stations serving WFYW-LP's community of license and qualified for carriage on State Cable's cable system serving Fairfield, Maine. Although the record disclosed that WFYW-LP had ceased operating, State Cable was ordered to commence carriage of WFYW-LP within 60 days from the release date of the order or from the return of WFYW-LP to operation, whichever was later. DISCUSSION AND ANALYSIS 4. State Cable contends the Second Bureau Order improperly considered programming information submitted with Mid-Maine's petition for reconsideration of the First Bureau Order, reversed the evidentiary burdens normally followed in must carry complaint proceedings, and ignored record evidence regarding local service of full power stations licensed to Bangor, Maine. State Cable contends further that Mid-Maine's additional programming information was not only untimely submitted but was also insufficient, reiterates its argument that Mid-Maine improperly manipulated its community of license to qualify LPTV station WFYW-LP for must carry rights, and that WFYW-LP fails to meet the minimum operating schedule necessary for an LPTV station to qualify for carriage. 5. In response, Mid-Maine states that WFYW-LP resumed broadcasting on December 9, 1997 "utilizing a satellite feed." Mid-Maine contends State Cable is attempting to silence a competing medium by means of Commission processes, and claims that State Cable does not offer adequate local programming. Mid- Maine asserts on the other hand that WFYW-LP offers local programming, contending that the station "will provide the local origination programming including the local news, sports, business, children's and informational shows dealing with local issues and individuals it provided" before going off the air previously. 6. The statement that WFYW-LP is utilizing a satellite feed provides no descriptive information relevant to our inquiry into the station's programming content, an inquiry made necessary in order to determine whether WFYW-LP satisfies the qualification criteria set forth in Section 614(h)(2)(B). The further statement that the station at some unspecified date "will provide the local origination programming including the local news, sports, business, children's and informational shows dealing with local issues and individuals it provided" before going off the air previously is insufficient to establish satisfaction of Section 614(h)(2)(B). That statement suffers from the same lack of evidentiary specificity of the allegations of the original complaint, which resulted in the First Bureau Order's initial denial of the complaint. The only difference between the current description of WFYW-LP's future programming and that found insufficient in the First Bureau Order is the litany of "local news, sports, business, children's and informational shows." However, this litany, although longer, provides no descriptive information of programming content, and it is not saved by the general reference to programming the station provided before going off the air. 7. We conclude that Mid-Maine has provided insufficient specific evidence to support a finding that WFYW-LP is now providing programming that addresses "local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from" WFYW-LP, under Section 614(h)(2)(B) of the Communications Act. Mid- Maine bears the burden of demonstrating that WFYW-LP's programming meets the requirements of Section 614(h)(2)(B), which is at issue here. Moreover, after accepting additional programming information submitted with Mid-Maine' petition for reconsideration, we cautioned Mid-Maine that LPTV stations are expected to provide specific evidence sufficient to establish qualification for must carry status under Section 614(h)(2). The vague reference provided by Mid-Maine to programming that WFYW-LP provided before going off air fails to satisfy that burden with respect to this LPTV station's must carry qualifications under Section 614(h)(2)(B) upon its subsequent resumption of operations. The record shows only that WFYW-LP is now carrying programming provided by a satellite feed, but no information about the content of that programming is provided. We find that Mid-Maine failed to establish that WFYW-LP satisfies the criteria set forth in Section 614(h)(2)(B) for qualification as a must carry station on State Cable's cable system. ORDER 8. Accordingly, IT IS ORDERED that the Petition for Reconsideration of Mid-Maine Community Broadcasting v. State Cable TV Corporation, DA 2310 (Cable Serv. Bur. released November 4, 1997) ("Second Bureau Order") filed by State Cable TV Corporation in File No. CSR 4854-M IS GRANTED, the Second Bureau Order IS SET ASIDE, and IT IS FURTHER ORDERED that the complaint filed October 21, 1996 by Mid-Maine Community Broadcasting IS DENIED. 9. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau