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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: ) ) Paxson Communications License Co., LLC) CSR-5328-M ) vs. ) ) Wyandotte Cable TV ) ) Request for Mandatory Carriage ) of Television Station WPXD (TV),) Ann Arbor, Michigan ) MEMORANDUM OPINION AND ORDER Adopted: March 30, 1999 Released: April 1, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Paxson Communications License Co., LLC ("Paxson"), licensee of television broadcast WPXD (TV), Ann Arbor, Michigan ("WPXD" or "the Station"), has filed a must carry complaint with the Commission, pursuant to Sections 76.7 and 76.61 of the Commission's rules, claiming that Wyandotte Cable TV ("Wyandotte") has failed to commence carriage of WPXD on Wyandotte's cable system serving Wyandotte, Michigan. No opposition to the complaint was filed. BACKGROUND 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, Broadcast Signal Carriage Issues Report and Order ("Must Carry Order"), commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within a 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 exclusively of others, based on measured viewing patterns. SUMMARY OF ARGUMENTS 3. In support of its request, WPXD notes that on September 16, 1998, the Cable Services Bureau released an Order modifying the Station's television market to include Wyandotte, Michigan to WPXD's television market in the Detroit, Michigan ADI, and giving the Station must-carry rights. WPXD states that by letter dated September 17, 1998, a request was made for carriage of WPXD on Wyandotte's cable system. WPXD states further that the letter informed Wyandotte that the Station is entitled to carriage and that it is committed and willing to acquire and install the necessary equipment to deliver a good quality signal to the system's principal headend. WPXD also notes that it asked that Wyandotte carry its signal on channel 31 or on a channel close in proximity to other commercial broadcast stations carried by the system. On October 13, 1998, however, WPXD indicates that Wyandotte refused carriage until such time as additional channel space became available. WPXD points out that on October 30, 1998, a second letter explaining the Station's mandatory carriage rights was sent to Wyandotte. WPXD notes further that on November 4, 1998, Wyandotte responded with another refusal of carriage. WPXD states that Wyandotte's second mandatory carriage refusal prompted the filing of the instant Complaint. 4. WPXD affirms that it is a qualified local station entitled to mandatory carriage, and asserts that, pursuant to Section 4 of the Cable Television Consumer Protection and Competition Act of 1992 and Section 76.56(b)(2) of the Commission's rules, local commercial broadcast stations are entitled to mandatory carriage rights on cable systems within the same market. It points out that Wyandotte currently has 56 available, activated channels and as such is required to devote one-third of its channel capacity (or 19 channels) to must-carry channels. Noting that Wyandotte is currently only using 11 of its channels for broadcast stations, WPXD argues that, under the Commission's must carry rules, Wyandotte's carriage refusal alleging lack of channel space is not a valid reason not to carry the Station. Therefore, WPXD contends, Wyandotte has ample room to accommodate the Station's mandatory carriage request. WPXD concludes that Wyandotte's refusal is unjustified and requests the Commission to order Wyandotte to start carrying the Station's signal on "either Channel 31 or another channel in the proximity of other local broadcast stations." DISCUSSION 5. Based on the information in the record, we grant WPXD's Complaint. Wyandotte presented nothing to dispute Paxson's representations concerning television station WPXD's must carry status or its ability to deliver a good signal to Wyandotte's principal headend serving the city of Wyandotte. The record, however, contains correspondence between Wyandotte and WPXD, in which Wyandotte acknowledges the Station's must carry status and offers to carry the signal of WPXD at a future date. Therefore, our discussion is limited to the issue of lack of channel capacity. 6. We reject Wyandotte's carriage objections based on lack of channel capacity. Section 614(b)(1)(B) of the Communications Act mandates that cable systems "with 12 or more usable activated channels shall carry the signals of local commercial television stations, up to one-third of the aggregate number of usable activated channels of such system." In the Must Carry Order, the Commission interpreted Section 614(b)(1)(B) as creating a clear statutory right of carriage that is not qualified by the fact that an existing service must be dropped to make room for mandatory carriage of a local station and that the carriage right applies "notwithstanding the existence of prior agreements between cable operators and cable programming services." In fact, in the Must Carry Order, the Commission stated that "[w]ith respect to conflicts between the carriage or channel positioning rights of a must-carry station and prior agreements between cable operators and cable programming services, we find that the provisions of the 1992 Cable Act supersede any such contracts." The Commission further indicated that neither inconvenience, marketing problems, need for system configuration, or need to make technical changes except for a "compelling technical reason" was sufficient reason to deny a commercial station's "on channel" positioning. In this connection, we note that Wyandotte's correspondence pleads the existence of prior carriage obligations with other program providers and argues that deletion of existing service may be an inconvenience to subscribers. We find that such circumstances do not constitute a "compelling technical reason" for not accommodating mandatory carriage of a qualified local television station. The record shows that Wyandotte has 56 activated channels. Accordingly, under the rules Wyandotte is obligated to carry up to 19 local signals. Wyandotte's system currently carries only 11 local stations, and therefore has an obligation to carry up to 8 additional local channels, including WPXD. 7. Finally, concerning WPXD's channel positioning request, we find that it has properly requested carriage on channel 31 on Wyandotte's cable system, the same channel number on which it is broadcast over- the-air. Under our rules, cable operators must comply with the channel positioning requirements absent a compelling technical reason. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C.  534), that the complaint of Paxson Communications License Co., LLC in File No. CSR-5328-M IS GRANTED, and that Wyandotte Cable TV IS ORDERED to commence carriage of television station WPXD on channel 31 of its cable system serving Wyandotte, Michigan within sixty (60) days from the date that station WPXD delivers a good quality signal to Wyandotte's principal headend. 9. 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