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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 Washburn University) CSR-5367-M Topeka against Kansas City Cable ) Partners d/b/a Time Warner Cable) ) Must Carry Complaint ) MEMORANDUM OPINION AND ORDER Adopted: June 10, 1999 Released: June 14, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Washburn University Topeka, licensee of Station KTWU-TV (Educ., Ch. 11), Topeka, Kansas, filed a must carry complaint against Kansas City Cable Partners d/b/a Time Warner Cable ("Time Warner"), operator of a cable system serving the communities of Leavenworth and Ft. Leavenworth, Kansas, and Platte City, Tracy, Weston, and portions of Platte County, Missouri. KTWU-TV alleges that Time Warner intends to drop its signal when Time Warner relocates the principal headend of its system. An opposition to this petition was filed by Time Warner. No reply from KTWU-TV has been received. II. BACKGROUND 2. Pursuant to Section 615 of the Communications Act and implementing rules adopted by the Commission in its Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Report and Order ("Must Carry Order"), noncommercial television broadcast stations ("NCE") are entitled to assert mandatory carriage rights on cable systems when either the predicted Grade B contour of the NCE station encompasses the principal headend of the cable system or when the city of license of the NCE station is located within 50 miles of said principal headend. III. THE PLEADINGS 3. In support of its petition, KTWU-TV states that it is currently carried on Time Warner's Leavenworth cable system on cable channel 11 as a qualified NCE pursuant to Section 615(1)(2)(B) of the Communications Act, as its Grade B service contour encompasses Time Warner's principal headend which is currently located in Leavenworth, Kansas. However, KTWU-TV states that on November 25, 1998, it was informed by Time Warner that the system would be relocating its principal headend to Kansas City, Missouri, which is approximately 30 miles from Leavenworth. When the relocation is complete, KTWU-TV states that Time Warner indicated that it would drop KTWU-TV from the channel line-up in Platte City, Tracy, and portions of Platte County, Missouri, and reassign KTWU from cable channel 11 to cable channel 18 in Leavenworth and Ft. Leavenworth, Kansas, and Weston, Missouri. KTWU-TV argues that this move would not only deprive a portion of Time Warner's cable subscribers of one of their two available PBS stations, but also remove KTWU-TV from its over-the-air channel 11. 4. KTWU-TV states that in a letter to Time Warner, it objected to the designation of Kansas City as the system's principal headend, particularly in light of the fact that Time Warner will continue to maintain a headend at Leavenworth. KTWU-TV argues that the designation of a "principal headend" located approximately 30 miles from the city served would be counter to Section 76.5(pp)(2) of the Commission's rules which states that "in the case of a cable system with more than one headend, the principal headend designated by the cable operator, except that such designation shall not undermine or evade the requirements of subpart D of this part [Carriage of Television Broadcast Signals]." KTWU-TV maintains that Time Warner's designation of Kansas City would both undermine and evade the must carry requirements. Further, KTWU-TV states that in its correspondence with Time Warner it pointed to Section 76.56(a)(5) of the rules, which states that "all cable operators shall continue to provide coverage to all qualified NCE television station whose signals were carried on their systems as of March 29, 1990." KTWU-TV asserts that since it was carried on Time Warner's system as of that date, it is entitled to continued carriage on channel 11. KTWU-TV requests that the Commission find that Time Warner has failed to comply both with the carriage requirements and the positioning requirements of Section 5 of the 1992 Cable Act and order it to continue carriage on its over-the-air channel. 5. In opposition, Time Warner states that the cable communities herein are among dozens of communities in the seven county Kansas City metropolitan area that are being tied together as part of Time Warner's $120 million comprehensive upgrade of its Kansas City area cable systems which was begun in 1994. Time Warner indicates that through the use of fiber optics, it has eliminated obsolete headend hub sites, expanded bandwidth and improved reliability for its subscribers and, when complete, it will be operating a 5000 mile, single "cable system" in the Kansas City area. Time Warner argues that there is no factual foundation for KTWU-TV's complaint because it is based upon the mistaken premise that the Leavenworth headend will be maintained. However, Time Warner states that, in fact, no headend will be maintained in Leavenworth and the instant communities are being systematically tied-into a cable system with a single "master" headend located in Kansas City, which under Section 76.5(pp)(1) of the Commission's rules is the "principal headend" for these communities. 6. Time Warner points out that until late 1998, it served, either directly or by microwave, the communities of Leavenworth, and Ft. Leavenworth, Kansas, and Platte City, Tracy and portions of Platte County, Missouri from a headend located in Leavenworth. It states that it served the community of Weston, Missouri by a separate headend. In accordance with its fiber-optic upgrade project, Time Warner indicates that the communities of Platte City, Tracy, Platte County and Weston, Missouri have already been interconnected into the consolidated Kansas City metro area system and Leavenworth and Ft. Leavenworth will be connected by June 30, 1999 and December 31, 1999, respectively. Time Warner states that at that time, the Leavenworth headend will be converted into one of the over 20 Distributed Light Hub (DLH) sites maintained to receive signals from the master headend in Kansas City. 7. Time Warner maintains that the upgrade of its cable plant serving the cable communities herein constitutes good cause for elimination of the separate Leavenworth headend and does not reflect any intention to "undermine or evade" its must carry obligations. Moreover, it argues, Section 76.5(pp) makes it clear that the restrictions on designating a principal headend and the "good cause" threshold for change in choice of principal headend are applicable only in situations where the cable operator has more than one headend and not in cases where a headend is eliminated as part of a system-wide consolidation. Time Warner states that due to the fact that its new principal headend is located more than 50 miles from KTWU-TV's city of license and also outside of KTWU-TV's predicted Grade B contour, the station is no longer a "qualified local NCE television station" as defined in Section 76.55(b) of the Commission's rules. While KTWU-TV has asserted that it is still entitled to carriage in the cable communities due to the fact that it was carried as of March 29, 1990, Time Warner argues that KTWU-TV's reliance on Section 76.56(a)(5) is misplaced because it did not quote that rule correctly. Time Warner indicates that Section 76.56(a)(5) accurately states that continued cable carriage is available to all qualified local NCE stations that were carried on the system as of March 29, 1990. The word "local" was omitted from KTWU-TV's quoted statement of the rule and Time Warner asserts that such omission is fatal to KTWU-TV's claim of grandfathered carriage rights in the instant communities. 8. While it is clear that KTWU-TV is no longer a qualified local NCE station, Time Warner states that it will nevertheless continue to make the station available to its subscribers in Leavenworth and Ft. Leavenworth, Kansas and Weston, Missouri. However, Time Warner maintains that such voluntary carriage does not vest KTWU-TV with any channel position rights. As a result, Time Warner requests that the Commission deny KTWU-TV's complaint. IV. DISCUSSION 9. We agree with the arguments raised by Time Warner and deny KTWU-TV's complaint. We believe that the relocation of Time Warner's principal headend from Leavenworth to Kansas City is consistent with the system-wide upgrade it is conducting and is not an attempt to evade its must carry obligations with regard to KTWU-TV. KTWU-TV has maintained that it is entitled to continued carriage pursuant to Section 76.56(a)(5) because it was carried as of March 29, 1990 and had channel positioning rights pursuant to Section 76.57(b). We disagree. As Time Warner correctly noted, Section 76.56(a)(5) specifies that only local NCE stations are entitled to such continued carriage. Because Time Warner's principal headend at Kansas City is more than 50 miles from KTWU-TV's city of license and beyond the station's Grade B contour, KTWU-TV can no longer be considered a local NCE station entitled to either mandatory carriage or channel positioning rights. We note, however, that Time Warner has stated that it intends to continue carriage of KTWU-TV, on a voluntary basis, in the communities of Leavenworth, and Ft. Leavenworth, Kansas, and Weston, Missouri. V. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that the petition filed January 29, 1999, by Washburn University Topeka IS DENIED pursuant to Section 615 of the Communications Act of 1934, as amended (47 U.S.C. 535). 11. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Chief Consumer Protection and Competition Division Cable Services Bureau