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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: ) Complaint of Community Television, Inc. ) CSR-5308-M against InterMedia Partners, L.P. and ) Robins Media Group, Inc. ) ) for Carriage of WATC(TV), Atlanta, Georgia ) MEMORANDUM OPINION AND ORDER Adopted: January 21, 1999 Released: January 26, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Community Television, Inc. ("CTI"), licensee of television broadcast station WATC(TV), Atlanta, Georgia, filed a must-carry complaint requesting that the Commission order InterMedia Partners, L.P. and Robins Media Group, Inc. (collectively "InterMedia"), operators of cable television systems providing cable service in Fairburn, Gainsville, Grantville, Peachtree City, and Powder Springs, Georgia and surrounding communities to commence carriage of WATC(TV). InterMedia opposed the complaint, and CTI has replied. 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of 1992 (Report and Order in MM Docket 92-259) ("Must Carry Order"), 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 the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing. 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. In its complaint CTI asserts that InterMedia has failed to carry WATC(TV) despite the requirements of the must carry provisions of the Cable Television Consumer Protection and Competition Act of 1992. CTI submitted with its complaint copies of an exchange of correspondence with InterMedia during 1996 concerning testing conducted by InterMedia of the strength of WATC(TV)'s signal at the principal headends of InterMedia's cable systems. CTI states that when the second portion of the 1996 test was completed CTI did not have resources to conduct its own tests to verify the results obtained by InterMedia. CTI states further that additional resources subsequently were obtained which permitted it to make improvements in WATC(TV)'s signal and to acquire signal testing equipment. CTI contends that InterMedia personnel were requested in early 1998 to resume testing of WATC(TV)'s signal and that pursuant to such requests, an InterMedia engineer subsequently committed to test WATC(TV)'s signal at InterMedia's headends on or about July 13, 1998. 5. CTI asserts, however, that on July 22, 1998, it received a letter from InterMedia refusing carriage of WATC(TV) on the grounds that CTI had not challenged InterMedia's earlier (1996) test results. CTI asserts further that InterMedia's counsel confirmed that same day that WATC(TV)'s signal would not be carried and that WATC(TV) would have to wait until the October 1, 1999 must carry election date to request carriage. By letter dated July 28, 1998, CTI informed InterMedia of the improvements in WATC(TV)'s signal since the 1996 tests, noted that it had acquired equipment to facilitate testing, and requested carriage on InterMedia's cable systems. By letter dated August 5, 1998, InterMedia declined to conduct further tests and again stated that WATC(TV) would have to wait until the next round of mandatory elections in October 1999 to request carriage. 6. InterMedia in its response requests dismissal of CTI's complaint, arguing that the complaint was not filed within the time prescribed by Section 76.7(c)(4)(iii) of the Commission's rules. Specifically, InterMedia states that its letters of September 17, 1996 and November 6, 1996 provided CTI with signal tests results showing that WATC(TV) failed to provide a good quality signal to the headends of its cable systems and invited CTI to conduct additional tests. InterMedia states that CTI failed to respond to those invitations and that it heard nothing further from CTI until 1998. InterMedia argues that its September and November 1996 letters constitute denials of CTI's 1996 request for carriage under Section 76.7(c)(4)(iii), and that, as such, those letters triggered the commencement of the filing period within which CTI was required to file its complaint under Section 76.7(c)(4)(iii). Based on those allegations, InterMedia contends that CTI's complaint was untimely and should be dismissed, because it was filed on September 18, 1998, which is beyond sixty (60) days from either the September or November 1996 letter denying carriage. 7. In reply, CTI disputes the contention that InterMedia's 1996 letters constituted denials of carriage of WATC(TV). CTI contends that InterMedia's 1966 letters indicated a willingness on InterMedia's part to conduct testing and/or invited additional testing and coordination despite being combined with notices of inadequate signal strength. CTI argues that the 1996 correspondence represented "direct, unequivocal and concrete cooperative steps in negotiations -- that were continued through signal testing coordination." CTI asserts that InterMedia had not denied carriage by refusing to conduct additional signal testing until its July 20, 1998 letter, and that therefore InterMedia's July 20, 1998 letter, not the 1996 letters, triggered the start of the sixty (60) day period for filing a complaint. CTI argues that its complaint is timely filed because it was filed on September 18, 1998 and within sixty (60) days of InterMedia's July 20, 1998 denial of carriage letter. DISCUSSION AND ANALYSIS 8. According to Section 76.55(e) of the Commission's rules, the market of a commercial television broadcast station, such as WATC(TV) is defined as its ADI. A commercial station is entitled to request carriage on any cable system operating in the same ADI. Both WATC(TV) and InterMedia's cable systems are located in the same ADI. As the Bureau previously explained in its decision in Friendly Bible Church, Inc. v. Viacom Cable ("Friendly Bible Church"), the Commission's rules concerning the must-carry complaint procedures are quite clear: "No must-carry complaint filed pursuant to Section 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 ...." In denying an application for review of the Bureau's decision in Friendly Bible Church, the Commission explained that adoption of a time limit both for must-carry and for channel positioning complaints was appropriate because it balanced the interests of broadcast 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 cable operator's initial request for carriage or for channel position, the cable operator either denied it or did not respond to it, the cable system then only had sixty days to file a complaint with the Commission. 9. We find that CTI failed to file its complaint within the time required by Section 76.7(c)(4)(iii) of the Commission's rules following either of InterMedia's September 1996 or November 1996 letters that effectively denied CTI's request for carriage of WATC(TV). While neither of those letters contained any specific language stating that carriage of WATC(TV) was denied, both of those letters made it unequivocally clear, pursuant to tests it had completed, that WATC(TV) failed to provide an adequate signal to InterMedia's cable systems' headends. Such notice of signal inadequacy placed CTI on notice that WATC(TV) would not be carried, because of the inadequacy of WATC(TV)'s signal at InterMedia's cable system headends shown by the test results contained in those letters, unless something further were done. Although both of InterMedia's 1996 letters invited CTI to conduct further testing, CTI took no action until 1998. 10. We reject CTI's argument that the filing period provided by Section 76.7(c)(4)(iii) was tolled by the ongoing nature of negotiation following InterMedia's 1996 letters. CTI's inaction following receipt of InterMedia's 1996 letters cannot be considered a continuation of negotiations, as argued by CTI. In fact, the record shows that CTI recognized in 1996 that InterMedia's tests showed that "WATC(TV)'s signal was below standard," and took those test results "at face value and acted on [those] tests to determine and correct any problems with its equipment and to obtain specialized equipment to deliver a good signal to InterMedia's systems." However, CTI did not obtain resources necessary to take these steps until 1998. As noted above, the Commission's adoption of time limits for must-carry complaints represents an appropriate balancing of the interests of broadcast stations, cable systems and subscribers. Permitting CTI to file a complaint nearly two years after InterMedia refused to carry WATC(TV) based on its determination of WATC(TV)'s inadequate signal strength is inconsistent with the balancing of interests established by the Commission in Section 76.7(c)(4)(iii). Although the circumstances relative to WATC(TV)'s signal strength may have changed since InterMedia's denial of carriage in 1996, we believe this case is distinguishable from Whitehead Media of Georgia, Inc., where, to protect its carriage rights, the station filed a complaint within 60 days of the cable system's initial denial of carriage. In the instant matter, CTI did not file such a complaint within 60 days of InterMedia's initial denial of carriage to protect its carriage rights. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED, pursuant to Section 76.7(c)(4)(iii) of the Commission's rules, 47 C.F.R.  76.7(c)(4)(iii), that the complaint filed by Community Television, Inc. in File No. CSR 5308-M IS DISMISSED. 12. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Deborah E. Klein, Chief Consumer Protection and Competition Division Cable Services Bureau