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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 Los Angeles License, Inc.) ) vs. ) CSR-5347-M ) Comcast Cablevision ) ) Channel Positioning Complaint ) MEMORANDUM OPINION AND ORDER Adopted: May 3, 1999 Released: May 5, 1999 By the Chief, Consumer Protection and Competition Division,Cable Services Bureau: 1. Paxson Los Angeles License, Inc. ("Paxson"), licensee of commercial station KPXN(TV) (Channel 30), San Bernardino, California ("KPXN") filed a must carry complaint with the Commission, pursuant to Sections 76.7 and 76.61 of the Commission's rules, asking that the Commission require Comcast Cablevision ("Comcast") to carry Station KPXN on a mutually agreeable uniform cable channel throughout its cable systems serving the areas of Grand Terrace, Ontario, Fontana, Fullerton, Buena Park, Santa Ana, Seal Beach and Newport Beach, California (the "cable systems"). 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. 3. With respect to the channel number on which stations asserting must carry rights are to be carried, Section 614 of the Act and Section 76.57 of the Commission's rules provide commercial television stations with three possible options. The station may elect to be carried on: (1) the channel number on which the station is broadcast over the air; (2) the channel number on which the station was carried on July 19, 1985; or (3) the channel number on which the station was carried on January 1, 1992. The Act and the rules also provide that a broadcast station may be carried on any other channel number mutually agreed upon by the station and the cable operator. ARGUMENTS OF THE PARTIES 4. KPXN explains that it is a commercial television station licensed to San Bernardino, California, operating on Channel 30, and located in the Los Angeles ADI. It also states that all of the cable communities in question are located within the Los Angeles ADI. KPXN argues that although it elected mandatory carriage of its signal on "its over-the-air channel, or on a mutually agreeable channel at the beginning of the current must-carry election period," Comcast has failed to carry the Station's signal in accordance with that election. The Station points out that Comcast, in violation of the Communications Act and the Commission's rules, carries the KPXN signal on six different channels throughout the cable systems in question. As an example, KPXN notes that Comcast's Fullerton and Santa Ana systems carry the Station's signal on channels 70 and 71, respectively, for subscribers using set-top converter boxes, and channels 62 and 95, respectively, for those viewers using cable-ready television sets. KPXN asserts that the Communications Act and the Commission's rules require Comcast to carry the Station's signal on a single, uniform channel on the basic service tier, which can be uniformly received by subscribers throughout the systems in question. 5. KPXN asserts that while it has sought to secure carriage of its signal on a mutually agreeable, single, uniform channel throughout the systems involved, Comcast has failed to respond to such request. KPXN points out that on October 1, 1998, it notified Comcast of its failure to meet its channel positioning obligations. In the letter KPXN also requested Comcast to come into compliance with the Commission's must carry rules by carrying KPXN on a single, uniform channel on the basic service tier throughout the systems at issue. Thus, the Station maintains that Comcast is in violation of Section 76.61(a)(2) of the Commission's rules, which requires cable operators to respond in writing to channel positioning violation notifications within 30 days of receipt of such notifications. KPXN asserts that since no response to the October 1, 1998 request was received, the complaint was timely filed on December 16, 1998, consistent with Section 76.7(c)(4)(iii) of the Commission's rules. KPXN requests that the Commission order Comcast to comply with its channel positioning obligations and start carrying the Station's signal on a single, uniform cable channel throughout the systems in question. DISCUSSION 6. We grant KPXN's channel positioning complaint. We begin by noting that Section 614(b)(6) of the Communications Act of 1934, as amended, and Section 76.57 of the Commission's rules permit a commercial station to elect as its channel position on a cable system either: a) its over-the-air channel number; b) the channel on which it was carried on July 19, 1985 or January 1, 1992; or c) such other channel number as is mutually agreed upon by the station and the cable operator. In the October 1, 1998, KPXN stated that it had elected carriage on its over-the-air channel or a mutually agreeable channel at the beginning of the current must carry election period, and asks the Commission to rule accordingly. Since there is no documentation showing that the parties have agreed on any specific channel for carriage throughout the systems in question, KPXN is statutorily entitled to be carried on its over-the-air channel number, which is Channel 30. 7. We note that the Commission has held that cable operators must comply with channel positioning requirements absent a compelling technical reason. The Commission specifically stated that the need to employ additional traps, reconfigure the basic tier, or make technical changes are generally not sufficient grounds for denying the channel positioning request of a must carry station. The Commission also noted that "a cable system claiming that it cannot meet a channel positioning request for technical reasons will have to provide evidence that clearly demonstrates that the operator cannot meet this requirement." In the instant case, Comcast has not provided such evidence. In fact, it did not file an opposition to KPXN's channel positioning complaint nor did it respond within 30 days to KPXN's letter informing Comcast that it was not meeting its channel positioning obligations, and requesting Comcast to honor the channel position election KPXN made at the beginning of the current must carry election period. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended [47 U.S.C.  534(d)(3)], that the complaint (CSR-5347-M) filed by Paxson Los Angeles License, Inc. against Comcast Cablevision, seeking carriage on a single, uniform channel throughout the systems serving Grand Terrace, Ontario, Fontana, Fullerton, Buena Park, Santa Ana, Seal Beach, and Newport Beach, California IS GRANTED. 9. IT IS FURTHER ORDERED that Comcast Cablevision SHALL COMMENCE THE CARRIAGE of KPXN on cable Channel 30 throughout its systems serving Grand Terrace, Ontario, Fontana, Fullerton, Buena Park, Santa Ana, Seal Beach, and Newport Beach, California, within (60) sixty days of the release of this Memorandum Opinion and 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 APPENDIX A CUID COMMUNITY COUNTY OPERTOR SYS # CA1017 City of Grand Terrace San Bernardino Comcast Cablevision of 3802 San Bernardino, Inc. CA0176 City of Highland San Bernardino Comcast Cablevision of 3802 San Bernardino, Inc. CA0263 City of San Bernardino San Bernardino Comcast Cablevision of 3802 San Bernardino, Inc. CA0540 Lytle Creek (area) San Bernardino Comcast Cablevision of 3802 Inland Valley, Inc. CA0897 City of Loma Linda San Bernardino Comcast Cablevision of 3802 San Bernardino, Inc. CA0463 City of Ontario San Bernardino Comcast Cablevision of 3721 Inland Valley, Inc. CA0464 City of Upland San Bernardino Comcast Cablevision of 3721 Inland Valley, Inc. CA0465 San Bernardino County San Bernardino Comcast Cablevision of 3721 Inland Valley, Inc. CA0466 City of Montclair San Bernardino Comcast Cablevision of 3721 Inland Valley, Inc. CA0787 City of Rancho Cucamonga San Bernardino Comcast Cablevision of 3721 Inland Valley, Inc. CA0821 City of Fontana San Bernardino Comcast Cablevision of 8202 Fontana, Inc. CA1139 San Bernardino County (S) San Bernardino Comcast Cablevision of 8202 Fontana, Inc. CA0818 City of Fullerton Orange Comcast Cablevision of 3803 Inland Valley, Inc. CA0895 City of Buena Park Orange Comcast Cablevision of 3803 Inland Valley, Inc. CA1148 Orange County (northern) Orange Comcast Cablevision of 3803 Inland Valley, Inc. CA1179 City of Placentia Orange Comcast Cablevision of 3803 Inland Valley, Inc. CA0957 City of Santa Ana Orange Comcast Cablevision of 713 Santa Ana, Inc. CA0499 City of Seal Beach Orange Comcast Cablevision of 3805 Seal Beach, Inc. CA1147 Orange County (central) Orange Comcast Cablevision of 3805 Seal Beach, Inc. CA0458 City of Newport Beach Orange Comcast Cablevision of 6494 Newport Beach, Inc. CA1140 Orange County (central) Orange Comcast Cablevision of 6494 Newport Beach, Inc.