******************************************************** 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 re: ) ) Complaint of Rainbow Broadcasting, Ltd.) CSR-4995-M against Tomoka Cable TV ) ) Channel Positioning Complaint ) MEMORANDUM OPINION AND ORDER Adopted: August 25, 1997 Released: August 27, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Rainbow Broadcasting, Ltd., permittee of Television Broadcast Station WRBW (CBC, Ch. 65), Orlando, Florida, has filed a must carry complaint asking that the Commission require Tomoka Cable TV to carry Station WRBW on cable channel 14 on its system serving Ormond Beach, Florida. This petition is unopposed. ARGUMENTS OF THE PARTIES 2. In support of its petition, WRBW argues that Tomoka Cable arbitrarily shifted its channel position from its chosen position on channel 14 to cable channel 44 in violation of 76.57(c) and (d) of the Commission's Rules. WRBW states that Tomoka Cable has offered no explanation for this action nor did it provide any notice prior to the move, as required by 76.58(a) of the Rules. Although it has complained to the system, WRBW maintains that Tomoka Cable has neither responded to its complaints nor returned its signal to cable channel 14. Therefore, WRBW requests that the Commission order Tomoka Cable to comply with Commission requirements and return its station to channel 14. DISCUSSION 3. We find that WRBW's request to be carried on cable channel 14 should be denied. Section 614(b)(6) of the Communications Act of 1934, as amended, permits a commercial television station such as WRBW 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 the station and the cable operator. The language which allows cable operators and broadcasters to mutually agree upon a different channel is the mechanism by which the two may reach a channel positioning option outside of the three proposed by the Act's provisions. It is simply a way of saying that the parties have the flexibility to reach a result different from the three statutory options. It does not, however, mean that in the event the three options are not available the parties must agree on the ultimate placement of the channel. WRBW commenced operations on June 6, 1994. Since the station was not on-the- air on either July 19, 1985 or January 1, 1992, its only other mandatory option with regard to channel positioning would be its over-the-air channel (65). It also has the non-mandatory option of choosing a channel mutually-agreed upon by both the station and the cable system. In its June 6, 1994 letter requesting carriage on the Tomoka Cable system, WRBW chose this non-mandatory option and requested carriage on either cable channel 10 or cable channel 14. Tomoka Cable tacitly agreed to WRBW's request by placing the station on cable channel 14 and therefore WRBW's rights to that channel position were effective through the first election period which expired January 1, 1997. 4. However, because cable channel 14 is not a statutorily-mandated channel position for WRBW, the station's rights to that cable channel did not extend beyond this first election period. At that point, Tomoka Cable was free to either continue with the previously-agreed upon channel position or to relocate WRBW to another basic tier channel. Tomoka Cable chose the latter option. While nothing in the information presented indicates the exact date on which Tomoka Cable relocated WRBW, it was apparently on or about January 1, 1997. Consequently, Tomoka Cable was free to move WRBW to channel 44 at the end of the election period. We note, however, that in doing so, Tomoka Cable apparently failed to give the required thirty days notice to WRBW and the cable system subscribers. In view of Tomoka Cable's apparent failure to provide the required notice to subscribers as well as to the station, it shall be ordered to provide an explanation of the facts and circumstances regarding its relocation of WRBW. ORDERING CLAUSES 5. Accordingly, the petition filed April 11, 1997, by Rainbow Broadcasting, Ltd. IS DENIED in accordance with 614(d)(3) (47 U.S.C. 534) of the Communications Act of 1934, as amended. 6. IT IS FURTHER ORDERED that Tomoka Cable TV SHALL PROVIDE, within thirty (30) days of the release date of this order, a written explanation of its actions in failing to notify WRBW of its intentions with regard to repositioning to the Chief, Consumer Protection and Competition Division, Cable Services Bureau, with a copy served on WRBW. 7. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau