******************************************************** 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 Astroline Communications L. P. ) CSR-5108-M against Century Cable Management Corporation ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: January 27, 1998 Released: February 4, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Martin W. Hoffman, Esq., Trustee in Bankruptcy for the Estate of Astroline Communications, L. P., licensee of Station WHCT-TV (Channel 18), Hartford, Connecticut, has filed a "Complaint" with the Commission, pursuant to 76.61 of the Commission's Rules, claiming that, despite its requests, Century Cable Management Corporation ("Century"), operator of cable systems serving two communities in New London County, Connecticut, Norwich and Old Lyme, has refused to carry WHCT-TV, even though the station and both of Century's systems are located in the Hartford-New Haven, Connecticut area of dominant influence (or "ADI"). Century has filed an "Opposition," and WHCT-TV replied to it. SUMMARY OF THE PLEADINGS 2. In support of its complaint, WHCT-TV states that it is a full power commercial broadcast station assigned to the same ADI as Century's systems, and that it ". . . stands ready to provide special equipment or technical assistance as necessary to assure good signal quality at Century's headends. Any expense for such equipment or assistance will be borne by WHCT." According to WHCT-TV, it advised Century, pursuant to  76.61(a)(1) of the Commission's rules, by letters from its General Manager, Joseph F. Hennessey, both to Norwich and to Old Lyme, dated June 30, 1997, that it intended to invoke its must-carry rights in Norwich and in Old Lyme effective August 1, 1997. Century however, did not respond within thirty days to WHCT-TV's notice. The station, therefore, filed the instant "Complaint" within sixty days thereafter, pursuant to  76.7(c)(4)(iii)(B) of the Commission's rules. 3. According to Century, however, since WHCT-TV's "Complaint" was not filed within sixty days of the time Century either ignored or denied the station's initial must-carry requests of March 7 and April 4, 1997, the instant "Complaint" must be dismissed, pursuant to  76.7(c)(4)(iii) of the Rules. Century explains that it did not respond to WHCT-TV's carriage request dated March 7, 1997, because the station had been dark for so long, but that it did respond to the carriage request dated April 4, 1997, indicating to the station that its signal would not be added to the system. Citing prior Bureau decisions in Friendly Bible Church, Inc., and in Fant Broadcasting Company, Century contends that WHCT-TV was obligated to file its "Complaint" with the Commission within sixty days of Century's failure to respond to its initial carriage requests on March 7, 1997, as well as within sixty days of Century's indication that it would not carry the signal, after the station's second carriage request on April 4, 1997. The fact that the station later sent Century a third carriage request dated June 30, 1997 is immaterial and does not re-open the Commission's filing period for WHCT-TV. Moreover, according to Century, WHCT-TV has not demonstrated any degree of reliability with regard to its programming availability, broadcast hours, or technical operations. Also, WHCT-TV's existing time Brokerage Agreement expired on December 6, 1997, although the station anticipates that it will be renewed until June 6, 1998. However, WHCT-TV's license renewal has also been challenged before the Commission and designated for hearing, which may result in revocation of the license. Century adds that it would have to delete other cable programming to add WHCT-TV's infomercials, which the system contends would not be well received either by Century's subscribers or by local governmental authorities, during a period when the system also must compete with direct broadcast satellite and wireless services, as well as Southern New England Telephone, which now is authorized to provide cable television throughout the State of Connecticut and is proceeding to do so. 4. WHCT-TV contends, in reply, that Century is not empowered to judge whether or not carriage of the station will serve the public interest, particularly insofar as this decision is based on a content judgement. Citing a declaration from Joseph F. Hennessey, the station explains that its prior letters of March 7 and April 4, 1997 were merely meant to be informational, letting cable operators know that the station was back on the air and opening discussions concerning eventual testing and carriage. "[T]hese letters were not intended to serve as an irrevocable invocation of the station's must carry rights," according to WHCT-TV. The station adds that it never had reason to believe that Century would not carry it until there was no response to its formal carriage request of June 30, 1997. Denial of its "Complaint" would undermine Commission policy and contravene the underlying purpose of the must- carry rules, according to WHCT-TV. The station argues that its "Complaint" was timely filed, but it also requests a waiver of  76.7 of the Commission's rules, if necessary, in light of its struggle and good faith attempts to perpetuate a local signal via cable carriage. DISCUSSION 5. As the Bureau previously explained in its decision in Friendly Bible Church, Inc., the Commission's rules concerning its must-carry complaint procedure are quite clear: "No must-carry complaint filed pursuant to  76.61 will be accepted by the Commission if filed more than sixty (60) days after the . . . denial by a cable television system operator of a request for carriage . . . ." In denying an application for review of this decision, the Commission explained that adoption of a time limit both for must-carry and for channel positioning complaints was appropriate, because it balanced the interests of broadcast stations in asserting their carriage rights, with the interests of cable systems in having certainty in their channel and carriage obligations to broadcasters, together with the interests of subscribers in having minimal viewing disruption and certainty of service. The Commission added that if within thirty days of the cable operator's initial request for carriage or for channel position, the cable operator either denied it or did not respond to it, the cable system then only had sixty days to file a complaint with the Commission. 6. According to 76.55(e) of the Commission's rules, the market of commercial television broadcast station, such as WHCT-TV, is defined as its ADI. A commercial station is entitled to request carriage on any cable system operating in the same ADI. 47 C.F.R.  76.55(c). Both WHCT-TV and Century are located in the same ADI. However, Century maintains that WHCT-TV failed to file a complaint, as required by Commission rules, within sixty days after Century either ignored or denied the station's initial letters dated March 7 and April 4, 1997, both of which requested mandatory carriage, as required under the Commission's rules. Century claims that, after the specified thirty day response period, WHCT-TV was bound to file a complaint within sixty days with the Commission, which would have been either by June 6, 1997 (after the first letter) or by July 7, 1997 (after the second letter), which it did not do. Although Century did not add the signal and did not respond to WHCT-TV's March 7, 1997 letter, WHCT-TV did not file its "Complaint" with the Commission until September 25, 1997, more than six months later. Even WHCT-TV referred to its letters dated March 7, 1997 as "the 'Must Carry request we originally sent out," and the fact that it also sent out later requests for carriage does not toll the Commission's filing period, nor has the station presented sufficient grounds to waive  76.7 of the Rules for other reasons. Because WHCT-TV's complaint was not filed within sixty days of Century's failure to respond to its original carriage request of March 7, 1997, its "Complaint" must be dismissed, pursuant to  76.7(c)(4)(iii)(B) of the Commission's rules. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED, that the "Complaint" (CSR-5108-M), filed September 25, 1997, by Martin W. Hoffman, Esq., Trustee in Bankruptcy for the Estate of Astroline Communications, L. P., licensee of Station WHCT-TV (Channel 18), Hartford, Connecticut, IS DISMISSED as untimely filed. 8. 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