******************************************************** 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 United Broadcast Group II, Inc. ) CSR 5333-M v. Texas Cable Partners, L. P. ) ) for Channel Positioning of KPXD(TV), Arlington, Texas ) MEMORANDUM OPINION AND ORDER Adopted: April 19, 1999 Released: April 27, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. United Broadcast Group II ("United Broadcast"), licensee of KPXD(TV), Arlington, Texas, filed the captioned complaint pursuant to Sections 76.7 and 73.61 of the Commission's rules for an order requiring carriage of the signal of KPXD(TV) on a uniform channel position on the cable system of Texas Cable Partners, L.P. ("TCP") serving Las Colinas, Grapevine, Coppell. Lewisville, and Irving, Texas. TCP filed an opposition to the complaints, and United Broadcast filed a reply. II. 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, Report and Order ("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, a cable operator must carry a commercial television station on the cable channel number on which the station is broadcast over the air, or on the channel on which it was carried on July 19, 1985, or on the channel on which it was carried on January 1, 1992, at the election of the station.. In the event neither channel is available due to channel positioning requests of other must carry stations, the cable operator may place the station on a channel of its choice so long as that channel is included in the basic service tier. The Commission has stated that a cable operator must comply with a channel positioning request absent a compelling technical reasons supported by evidence clearly demonstrating that the request cannot be met. III. ALLEGATIONS OF THE PARTIES 4. In the complaint United Broadcast states that KPXD(TV) is licensed to Arlington, Texas, which is in the Dallas, Texas ADI, and that the communities served by TCP's cable system are also in the Dallas ADI. United Broadcast also states that KPXD(TV) delivers a good quality signal to the principal head of TCP's cable system and will not cause any increase in TCP's copyright liability because the station and the cable system are all located in the Dallas ADI. United Broadcast contends that KPXD(TV) thus qualifies as a local television station under Section 614(h)(1)(B)(ii)-(iii) of the Communications Act and Section 76.55(c)(2-3) of the Commission's rules, and therefore is entitled to carriage in TCP's cable system serving those communities in conformity with statutory channel positioning requirements. However, United Broadcast asserts that a field study confirmed that KPXD(TV) is carried on Channel 98 on that portion of the cable system where subscribers use cable ready television sets, but on Channel 0 on that portion of the cable system where subscribers use set top boxes. United Broadcast states that it made a written request of TCP for positioning of KPXD(TV) on a mutually agreeable channel that is uniformly viewable by all TCP subscribers by letter dated September 16, 1998, that TCP did not respond to those requests, and that the complaint was filed within sixty (60) days of TCP's failure to respond to the requests as required by Section 76.7(c)(4)(iii)(A) of the Commission's rules. 5. TCP contends in opposition that United Broadcast's complaint is untimely filed and should be dismissed. TCP states that KPXD(TV)'s must carry election notice dated December 11, 1996 did not specify a proposed channel position, that United Broadcast was notified on January 14, 1997 that KPXD(TV) would be carried on Channel 0, and that in the absence of any response from United Broadcast KPXD(TV) was launched on Channel 0 on March 10, 1997. TCP further states that a major rebuild using fiber optics and expanding the cable system was begun around January 1, 1997, that during the rebuild KPXD(TV) is available to subscribers using cable ready television sets on Channel 98, while subscribers using set top boxes receive KPXD(TV) on Channel 0, and that both channels are part of the cable system's basic tier offered to all subscribers. TCP asserts that, although it notified United Broadcast in mid-January 1997 of the positioning of KPXD(TV) on Channel 0 and launched the station on that channel on March 10, 1997, the complaint was not filed until more than a year and a half later. TCP argues therefore that the equitable doctrine of estoppel by laches is applicable to United Broadcast's attempt to claim single channel carriage for KPXD(TV). TCP asserts further that the rebuild of the cable system is "a costly and time consuming project that for technical reasons necessitates different channel lineups in the old and the upgraded system areas." TCP contends that KPXD(TV) will be on a single channel as soon as the system rebuild is completed, which is expected to be no later than December 31, 1999. TCP argues that United Broadcast's silence since the positioning of KPXD(TV) on Channel 0 and during the rebuild of the system undermines United Broadcast's claim that the complaint was timely filed under the Commission's rules. 6. United Broadcast replies that its complaint was timely filed within sixty (60) days of a "specific event," which in this case was TCP's failure to respond to the requests for uniform channel positioning of KPXD(TV), consistent with the requirements of Section 76.7(c)(4)(iii) of the Commission's rules. United Broadcast argues that under the Commission's must carry rules a broadcaster is under time constraints to file a mandatory carriage or channel positioning complaint only after initiating the complaint process by sending a formal carriage or channel positioning request to a cable operator. United Broadcast suggests that TCP violated Section 76.58(a) of the Commission's rules by failing to provide any notice that KPXD(TV) was repositioned to Channel 98 on a portion of TCP's cable system. For these reasons, United Broadcast argues that the doctrine of estoppel by laches has no effect in must carry complaint proceedings and should not be applied in this case. United Broadcast points out that TCP's opposition confirmed that KPXD(TV) is available to TCP subscribers using cable ready television sets on Channel 98 and to subscribers using set top converters on Channel 0, and asserts that it is entitled to the relief requested. IV. DISCUSSION 7. United Broadcast's complaint is granted and TCP is directed to make KPXD(TV) available to all subscribers on a single basic tier channel. As a procedural matter, we reject TCP's argument that the complaint filed on December 4, 1998 was untimely. United Broadcast's requests for channel positioning were received by TCP on September 29, 1998. A response by TCP was therefore due thirty days later on October 29, 1998. TCP's failure to respond on that date was the "specific event" which triggered the sixty day period in which United Broadcast was required to file a complaint. United Broadcast filed its complaint on December 4, 1998, and within the required sixty days from October 29, 1998. We also reject TCP's argument that the doctrine of estoppel by laches applies to render United Broadcast's complaint untimely. A broadcaster is under time constraints to file a must carry complaint only after it has initiated the complaint process by sending the cable operator a formal request under Section 76.61(a) of the Commission's rules. Moreover, the record shows that TCP did not notify United Broadcast of the repositioning of KPXD(TV) to Channel 98 during the rebuild process as required by Section 76.58 (a) of the rules, and that United Broadcast filed the complaint after its field study confirmed the channel positioning change. 8. On the merits, TCP did not contest United Broadcast's representation that KPXD(TV) provides a good quality signal over the cable systems' principal headends, that KPXD(TV) and the communities served by TCP's cable system are located in the Dallas ADI, or that carriage of KPXD(TV) wouldn't cause any increase in TCP's copyright liability. Indeed, TCP's cable systems serving the relevant communities are currently carrying KPXD(TV). Based on these showings we find that KPXD(TV) is a "local" television station entitled under the must carry regulations to carriage on TCP's cable systems serving Las Colinas, Grapevine, Coppell. Lewisville, and Irving, Texas, on a single channel available to all subscribers. However, the record shows that KPXD(TV) is made available by TCP to subscribers using cable ready television sets on Channel 98 and to subscribers using set top converters on Channel 0. TCP attempted to justify its carriage of KPXD(TV) on different channels on the grounds that a rebuild of the cable systems is under way and promised to return the station to a single channel when the rebuild is completed. As noted above, a cable operator must comply with a channel positioning request absent a compelling technical reasons supported by evidence clearly demonstrating that the request cannot be met. In this respect TCP offered only a general statement that the rebuild of a large cable system "is a costly and time consuming project that for technical reasons necessitates somewhat different channel lineups in the old and the upgraded system areas." We find that TCP failed to provide credible evidence demonstrating that the rebuild process make it technically impossible to position KPXD(TV) on a single channel as requested by United Broadcast. V. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended, 47 U.S.C.  534, that the complaint filed by United Broadcast Group II, Inc. in File No. CSR 5333-M IS GRANTED and Texas Cable Partners, L.P shall commence carriage of television station KPXD(TV) on its cable systems serving Las Colinas, Grapevine, Coppell. Lewisville, and Irving, Texas, on a single basic tier channel available to all subscribers within sixty (60) days from the release date of this Order. 10. 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