******************************************************** 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 ) ) KDTV License Partnership, G.P.) CSR 5097-M against TCI Cablevision of California, Inc. ) ) Request for Carriage of KDTV, San Francisco, California) MEMORANDUM OPINION AND ORDER Adopted: January 28, 1998 Released: February 4, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. KDTV License Partnership, G.P. ("Partnership"), licensee of KDTV of San Francisco, California ("KDTV" or the "Station"), filed a complaint pursuant to Section 76.61 of the Commission's Rules, 47 C.F.R.  76.61, seeking emergency relief to prevent TCI Cablevision of California, Inc. ("TCI") from moving the Station's position on TCI's San Mateo, California cable system from channel 15 to channel 11. In addition, the Partnership seeks permanent relief requesting that the Commission order TCI to carry the Station on channel 14, which is the Station's over-the-air channel. TCI filed an opposition, and the Partnership filed a reply. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the 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 exclusive of others, based on measured viewing. 3. In its Complaint, the Partnership argues that the Station is entitled to must carry status on TCI. The Partnership states that the Station is a full power local commercial station and that TCI and the Station fall within the San Francisco ADI. Because the Station is entitled to must carry status, the Partnership argues that the Station is entitled to be carried by TCI on the Station's over- the-air channel 14. 4. According to the Partnership, prior to the filing of its Complaint, the Station was carried on channel 15 on the TCI system serving San Mateo and on channel 14 on the system serving Foster City, California. The Partnership further states that on July 3, 1997, TCI notified the Station that TCI was consolidating the San Mateo and the Foster City systems to its headend in San Mateo and that the Station's new channel on the consolidated system would be channel 11. The Partnership argues that the Commission should, as emergency relief, prohibit TCI from changing the Station's channel because the change will cause the Station to lose viewers. As final relief, even though it acknowledges that the San Mateo system carries Encore on Channel 14, the Partnership requests that the Commission order TCI to carry the Station on channel 14. 5. In its opposition filed on September 22, 1997, TCI states that the Partnership is not entitled to emergency relief because TCI changed the Station's channel from 15 to 11 on September 8, before responsible staff were aware of the Partnership's complaint. Moreover, TCI argues that a week had already passed by the time it filed its opposition and that it would minimize viewer disruption to maintain the status quo. Finally, TCI argues that the Partnership knew about the channel change six weeks before it filed its complaint and that TCI should not be faulted for changing the channel if it did not know that a complaint would be filed. 6. Regarding the Partnership's request that the Station be placed on Channel 14, TCI states that a "trapped" premium service is located on that channel in much of the affected cable system. TCI argues that it would be extraordinarily costly for it to revamp its system architecture to give the channel to the Station. To support this assertion, TCI states that it will prepare a filing that will detail the "exorbitant engineering burdens" and show how the requested change is counter to the public interest. We note that TCI never filed such a document with the Commission in this proceeding. 7. In its reply, the Partnership argues that TCI had told the Station that TCI would make the channel change on September 9, 1997 and that TCI instituted the change one day earlier in order to frustrate the Partnership's complaint for emergency relief. The Partnership then states that TCI has never presented any evidence that TCI is entitled to relief from its obligation to carry the Station on Channel 14. DISCUSSION 8. As a local commercial full power station that has made a valid must-carry election, the Station is entitled to be carried on the TCI San Mateo system on channel 14, the Station's over- the-air broadcast channel. Although TCI makes conclusory allegations that it would be costly to place the Station on channel 14, TCI did not present any evidence to carry its burden of proof to show that it is entitled to an exception to our rule that a local commercial power station is entitled to be carried on its over-the-air channel. Given our findings here, we find that the Partnership's emergency request that the Station remain on Channel 15 to be moot. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, pursuant to Sections 76.61(a)(4) and 76.57(a), that KDTV of San Francisco, California is GRANTED must-carry status on the TCI Cablevision of California, Inc.'s system serving San Mateo and that TCI is ORDERED to carry KDTV on Channel 14 within 60 days from the date this Order is released. 10. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321. FEDERAL COMMUNICATIONS COMMISSION Gary Laden, Chief Consumer Protection and Competition Division Cable Services Bureau