******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 Martin W. Hoffman, Esq.,) Trustee in Bankruptcy for the Estate of) CSR-5191-M Astroline Communications L.P., licensee of) Station WHCT-TV against Comcast ) Cablevision of Groton, Inc. ) ) Request for Carriage ) ORDER ON RECONSIDERATION Adopted: February 2, 1999 Released: February 5, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Martin W. Hoffman, Esq., Trustee in Bankruptcy for the Estate of Astroline Communications L.P., licensee of television station WHCT-TV (Petitioner), located in Hartford, Connecticut, filed a petition for reconsideration ("Petition") of a Memorandum Opinion and Order ("Order") released by the Cable Services Bureau (the "Bureau"). In that Order, the Bureau denied Petitioner's must-carry complaint as untimely filed under the provisions of 47 C.F.R.  76.7(c)(4)(iii). Comcast filed an Opposition to Petition for Reconsideration, to which Petitioner replied. II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission it its Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues, ("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 Arbitron audience research organization. 3. The issue in the original proceeding was whether Petitioner's complaint had been timely filed with the Commission within the established period in which to file a must-carry complaint. In the Order we found that WHCT-TV clearly and affirmatively exercised its must-carry rights against Comcast in a letter dated March 7, 1997. In addition, the Bureau concluded that WHCT-TV expressly referred to the March 7, 1997 letter as an invocation of "its statutory right to must-carry" in a subsequent letter to Comcast. Given these conclusions, the Bureau determined that WHCT-TV did not file a complaint with the Commission "within sixty days of Comcast's failure to respond to its original carriage request of March 7, 1997." Instead, WHCT- TV did not file its complaint until December 29, 1997 nearly 10 months after its initial must-carry request. III. PETITION FOR RECONSIDERATION 4. In support of its petition, WHCT-TV contends that the Bureau erred in concluding that WHCT-TV's March 7, 1997 letter constituted a formal must-carry request against Comcast "and using that date as the starting point for the must-carry complaint process." WHCT-TV argues that the Bureau denied its request solely based on a statement on the April 4, 1997 letter, in which WHCT-TV referred to the March correspondence as the letter where it "invoked its statutory right to must-carry." WHCT-TV asserts that the March 7, 1997 letter was not intended as a Section 76.61(a) demand for mandatory carriage. Rather, WHCT- TV argues, the sole purpose of the letter was to comply with the provisions of Section 76.64 of the Commission's rules, i.e. to notify Comcast that WHCT-TV elected must-carry status over retransmission consent. WHCT-TV points out that "these notifications are not one and the same, but may be given separately." WHCT argues that contrary to the Bureau's findings, neither the March 7, 1997 nor the April 4, 1997 letter was a "demand" for carriage as required by Section 76.61(a) because neither letter notified "the cable operator that it ha[d] failed to meet its must-carry obligation." WHCT-TV asserts that the April 4, 1997 statement referring to the March 7, 1997 letter as the letter in which WHCT-TV had "invoked its statutory right to must-carry" protection was intended as nothing more than a confirmation that "the station had elected its statutory right to mandatory carriage." 5. WHCT-TV contends that the Bureau's position in the Order at issue encourages bad faith in dealing with must-carry requests. WHCT-TV argues that the Order "takes a superficial approach" because it does not take into account Comcast's post-March 7 - April 4, 1997 conduct and intentions. Specifically, WHCT-TV argues that the Bureau failed to take into consideration Comcast's actions in connection with the carriage of WHCT-TV on the systems serving the cities of Clinton and Middletown, Connecticut. WHCT- TV asserts that the Bureau's approach "effectively penalizes a station's efforts to be cooperative while rewarding the cable operator for an apparent lack of good faith." WHCT argues that "[a] fairer application of the rules would take the parties' actions with respect to improvement of signal delivery into account and would acknowledge that the Station did not become eligible to formally request carriage until its signal quality was at the appropriate level." WHCT-TV maintains that it was not required to make a request for mandatory carriage until after October 3, 1997, when "it had improved its signal quality and became eligible for carriage," and could, thus, successfully challenge Comcast's failure to "meet its must-carry obligations." 6. In its opposition, Comcast points out that even though WHCT-TV maintains that the March 7 and April 4 letters could not have been a must-carry request because neither letter notified the cable operator of it failure to meets its mandatory carriage obligations, the Station fails to recognize that the October 3, 1997 letter, which WHCT-TV relies on as being its must-carry demand, does not "contain the `notification failure' language that WHCT now claims is required." Comcast maintains that "WHCT itself admits that the March 7 and April 4 letters both were must carry demands." 7. Comcast contends that WHCT-TV's allegations that Comcast did not act in good faith are "purely speculative and otherwise unsupported by the facts." Comcast asserts that it did not act in bad faith or mislead WHCT-TV. It contends that from the beginning, WHCT-TV not only was aware of Comcast's carriage denial on the Groton System, but understood that Comcast did not intend to carry the Station on that system because of signal strength deficiencies; first, when Comcast effectively denied the March 7 and April 4, 1997 carriage requests, and again, on May 5, 1997, when Comcast reiterated its refusal of carriage. Comcast states that WHCT-TV's lack of good faith allegations are an attempt to blame Comcast for the Station's own delays, and asserts that WHCT-TV's arguments about Comcast's "supposed intentions" are speculative. 8. Comcast points out that the fact that it "is carrying the [WHCT-TV] signal on its systems serving New Haven, Middletown and Clinton, undermines WHCT's claim that Comcast engaged in an elaborate plot to `mislead' WHCT in order to `delay carriage or to deprive WHCT of its procedural rights,' with respect to this one system." Finally, Comcast contends that WHCT-TV misinterprets the Commission's rules when it claims that the Station "had absolutely no basis under the rules for filing a complaint with the Commission until it had improved its signal quality and became eligible for carriage." Comcast notes that a station does not have to "become eligible for carriage" before the Commission will grant a must-carry complaint. Comcast points out that "the Commission has granted must carry complaints on the basis of stations' commitments to deliver an adequate signal to the cable headend" Thus, according to Comcast, since "WHCT had made a commitment to deliver a good quality signal to Comcast's headend in its March 7, request for carriage," WHCT had "sufficient basis upon which to file a must carry complaint within the required period of time." 9. In reply, WHCT-TV re-states its earlier arguments and asserts that "circumstances in this case are unique" because the Station had recently returned to the air; the future of the must-carry rules was uncertain and in the hands of the Supreme Court; and its management "was acutely aware of the perceived uncertainties." As a result, WHCT-TV argues, the Station "felt in no position to `demand' carriage under the Commission's must carry rules." Hence, WHCT-TV asserts, the March 7, 1997 letter could not have been a must-carry request. IV. DISCUSSION 10. The petition claims error in the Bureau's conclusion that the March 7, 1997 letter constituted a must-carry request for the carriage of WHCT-TV's signal on Comcast's Groton System. WHCT-TV claims that the March 7, 1997 letter and other correspondence between the parties show that, rather than demanding carriage, WHCT-TV was notifying Comcast of the Station's must-carry election over retransmission consent. WHCT-TV contends that it did not formally demand must-carry treatment until it had attained adequate signal strength and formally requested must-carry treatment, which was not accomplished until WHCT-TV's October 3, 1997 letter to Comcast. We are not persuaded by this argument. The language used in the March 7, 1997 letter constituted a clear request for mandatory carriage. As noted in the Order, in its April 4, 1997 letter, WHCT-TV referred to the March 7, 1997 correspondence as the letter in which it "invoked its statutory right to must-carry." Similar language is also used in WHCT-TV's May 19, 1997 letter to Comcast. 11. WHCT-TV argues that it was not required to exercise its must-carry rights until after it became eligible for carriage through the provision of an adequate signal strength to Comcast's Groton system headend. Therefore, WHCT-TV asserts that its complaint, filed on December 29, 1997 was timely filed. WHCT-TV's argument is not supported by the Commission's regulations or precedent. As noted by Comcast, the Commission has routinely granted must-carry complaints even when a station does not provide a good quality signal but has committed to delivering a good quality signal to the cable operator's headend. 12. WHCT-TV argues that the Bureau erred because it did not take into consideration the fact that Comcast did not raise the issue of timeliness in connection with the carriage of the WHCT-TV signal on the Middletown and Clinton systems, which, according to WHCT-TV, Comcast began to carry in December 1997. The Bureau did not take into account the timeliness factor in those two systems because it was not raised in WHCT-TV's initial complaint. Nor is it appropriate that we consider that information for the first time on reconsideration. Moreover, the fact that Comcast elected to carry WHCT-TV's signal on its Middletown and Clinton systems despite the fact that WHCT-TV's statutory must-carry right had expired is not relevant to our determination in this proceeding. In this regard, we note that Comcast's May 5, 1997 letter to WHCT-TV clearly indicated that the Station's signal on the Middletown system was acceptable and that the cable operator had plans to add WHCT-TV to that system on January 1, 1998. Accordingly, we find that WHCT-TV has raised no new arguments indicating that it is entitled to must-carry treatment on Comcast's Groton, Connecticut cable system, or otherwise persuaded us that our underlying decision was in error. V. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED that the Petition for Reconsideration filed by Martin Hoffman, Esq. Trustee in Bankruptcy for the Estate of Astroline Communications, L.P., Licensee of Station WHCT-TV, Hartford, Connecticut, in file No. CSR-5191-M IS DENIED. 14. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau