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Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) U.S. Cable Television Group, L.P. ) CSR-4989-C ) Petition for Declaratory Ruling ) MEMORANDUM OPINION AND ORDER Adopted: November 24, 1999 Released: December 3, 1999 By the Commission: I. INTRODUCTION 1. U.S. Cable Television Group, L.P., an affiliate of Cablevision Systems Corporation ("Cablevision") filed a petition for declaratory ruling requesting that the Commission determine that Station WCYB- TV (NBC, Ch. 5), Bristol, Virginia, made inconsistent must carry/retransmission consent elections for the 1997- 1999 election period in Ashe County, North Carolina and that its signal by default should be accorded must-carry status in two particular franchise areas. No opposition to this petition was received from WCYB-TV. After examining the record, we find that by making inconsistent carriage elections on more than one system serving the same franchise area, WCYB-TV is in violation of the Commission's rules and the statutory common election requirement. II. BACKGROUND 2. Section 325(b)(3)(B) of the Communications Act of 1934, as amended, requires that television stations make an election between must-carry and retransmission consent every three years on a schedule adopted by the Commission starting on October 6, 1993. Under retransmission consent, a TV station may negotiate with a cable operator for payment for the carriage of the station's signal. Should a TV station choose retransmission consent, the station forfeits all must carry rights for the duration of the three-year period in which it elects retransmission consent. Under the Commission's rules, should there be two cable systems serving a franchise area, a local TV station must make consistent elections (i.e., must carry or retransmission consent status) for the subject franchise area. III. THE PLEADINGS 3. In support of its request, Cablevision states that there are seven cable systems in Ashe County, two of which it operates, the Cablevision-Lansing system and the Cablevision-West Jefferson system. The Cablevision- Lansing system serves the City of Lansing and unincorporated areas of Ashe County. The Cablevision-West Jefferson system serves West Jefferson and unincorporated areas of Ashe County. Cablevision states that under North Carolina law each of the cable systems in Ashe County is franchised to serve the entire unincorporated franchise area of the county. In view of the fact that seven cable systems serve the same geographic area, Cablevision indicates that there is a great deal of overlap among the systems, with the plant of one cable system often located within feet of another or even occupying the same poles. As a result, Cablevision states that there is significant competition among the individual cable operators. In addition to the county franchises, Cablevision states that individual municipalities within the county also grant franchises. Cablevision argues, therefore, that a broadcast signal election for the county must be consistent with the election for the respective municipality if the county and municipality are both served by two or more cable systems. 4. Cablevision states that the inconsistencies in WCYB-TV's elections arise from the fact that it made must carry demands on some systems in the county and retransmission consent on others. Cablevision indicates that, for the cable systems operated by Cablevision-West Jefferson, SRW Cable and Booth Cable, WCYB-TV has elected retransmission consent, while for the systems operated by Cablevision-Lansing, Bethel Cable, Yearick Cable and Northwest Cable, must carry status was requested. Cablevision states that upon discovery of these inconsistencies, it notified WCYB-TV that the station had made inconsistent elections between the West Jefferson system and that of another operator which is similarly licensed to serve the same unincorporated areas of Ashe County and that such inconsistent election was a violation of Section 325 of the Communications Act and Commission regulations. Cablevision states that WCYB-TV persists in denying that such inconsistent elections violate the federal signal carriage election requirements and insists that it may demand consent for carriage on the Cablevision-West Jefferson system. 5. Cablevision states that it seeks resolution of the following issue -- Does WCYB-TV's inconsistent broadcast signal election for the West Jefferson system render its signal a must carry on the two franchise areas served by that system? Cablevision asserts that Section 325(b) of the Communications Act and Section 76.64(g) of the Commission's rules, as well as the Bureau's reconsideration decision in Cablevision Systems Corporation, clearly compel an affirmative answer. Cablevision points out that Section 325(b)(1)(3)(B) of the Communications Act states: "If there is more than one cable system which services the same geographic area, a station's election shall apply to all such cable systems." Moreover, Cablevision states that in implementing Section 325(b) of the Communications Act, the Commission determined that the same "geographic area" meant the same "franchise area." Cablevision asserts that this was codified in Section 76.64(g) which states: "If one or more franchise areas served by a cable system overlaps with one or more franchise areas served by another cable system, television broadcast stations are required to make the same election for both cable systems." In this instance, Cablevision states that its West Jefferson system and 6 other cable systems serving Ashe County are all fully entitled to provide cable service to any resident in the county and are, as a result, in direct competition with each other. Therefore, Cablevision states that Commission rules and the decision in Cablevision Systems Corporation require that WCYB- TV's inconsistent elections result in default must carry status on its West Jefferson system. IV. DISCUSSION 6. Section 325(b)(1)(3)(B) of the Communications Act of 1934, as amended, states in pertinent part that "[i]f there is more than one cable system which services the same geographic area, a station's election shall apply to all such cable systems." Section 76.64(g) of the Commission's rules provides that "[i]f one or more franchise areas served by a cable system overlaps with one or more franchise areas served by another cable system, television broadcast stations are required to make the same election for both cable systems." Also, Section 76.64(f)(3) of the Commission's rules states that "[t]elevision stations that fail to make an election by the specified deadline will be deemed to have elected must carry status for the relevant three-year period." 7. In the past, local television broadcast stations that made inconsistent elections were treated in the same manner as if they had failed to make a timely election. Thus, they were deemed to have defaulted to must carry. From the evidence submitted by Cablevision, it appears that all seven cable systems operating in Ashe County, North Carolina have each been granted franchises to serve all of unincorporated Ashe County. This fact was not only confirmed in writing by the Ashe County Manager, but has not been disputed by WCYB-TV or any of the affected cable operators. Moreover, from the evidence herein, WCYB-TV has made inconsistent elections between Cablevision and at least one other cable operator serving unincorporated Ashe County. We find WCYB- TV's inconsistent must carry/retransmission consent elections for the 1997-1999 election period to be in violation of the Commission's rules and of the statutory common election requirement. 8. In order to ensure that WCYB-TV does not inadvertently benefit from its inconsistent elections, until the next election cycle we will treat all cable operators in the franchise area as having received the necessary retransmission consents to carry the signal in question. We believe this treatment to be in accord with the Bureau's decision in Cablevision Systems Corporation. While the Bureau held in Cablevision Systems Corporation that local stations making inconsistent elections defaulted to must carry, the basis of this relief was to insure that such stations not benefit from their inconsistencies. We believe this is best carried out by treating all franchised cable operators in the subject area as having been given retransmission consent by the subject station rather than defaulting solely to must carry. 9. Thus, in this instance, relevant cable systems will not be subject to the must-carry carriage obligations with respect to WCYB-TV that would ordinarily result were it not for the inconsistent mandatory carriage election. The relevant cable system will be free to carry or not carry WCYB-TV during this election cycle. This will prevent the anomalous result of having cable systems serving the same communities having different mandatory carriage obligations regarding the same station. Furthermore, it will prevent a system which refused carriage to a station that chose retransmission consent from having to carry that station. Our ruling applies only to those cable systems that serve unincorporated Ashe County. V. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that the petition for declaratory ruling, filed on behalf of U. S. Cable Television Group, L.P., IS GRANTED to the extent provided above and otherwise denied. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary