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                                Before the
                     Federal Communications Commission
                          Washington, D.C. 20554


                                       )
In re Complaint of      )
                  )
Lankenau Small Media Network, Inc.               )
against Ohio Cablevision Network, Inc.           )     CSR 5030-M
d/b/a TCI Cablevision of Ohio                    )     
                  )
Request for Carriage of WDFM-LP, Defiance, Ohio  )


                       MEMORANDUM OPINION AND ORDER

Adopted:  February 24, 1998   Released:  February 27, 1998

By the Deputy Chief, Cable Services Bureau:

I.    INTRODUCTION

      1.    Ohio Cablevision Network, Inc. d/b/a TCI Cablevision of Ohio ("TCI") filed a petition
for reconsideration (the "petition") of the Cable Services Bureau's Memorandum Opinion and Order, DA
97-2265 (October 29, 1997) (the "Order"), issued in this proceeding that granted the must carry
complaint (the "complaint") of Lankenau Small Media Network, Inc. ("Lankenau"), licensee of low
power station WDFM-LP, Defiance, Ohio (the "Station") and ordered TCI to carry the Station on TCI's
cable systems serving Bryan and Paulding, Ohio (the "Communities").  Lankenau filed an opposition,
and TCI filed a reply.

II.   BACKGROUND

      2.    Pursuant to Section 614 of the Communications Act of 1934, as amended (the
"Communications Act"), and implementing rules adopted by the Commission in its Report and Order,
MM Docket 92-259, a low power television station may be entitled to mandatory carriage on cable
systems located within the station's market provided that the station constitutes a "qualified low power
station" as that term is defined in, and pursuant to the conditions of, the Commission rules set forth in
47 C.F.R.  76.55(d). 

      A.    The Order and Lankenau's Complaint

      3.    The issue in the original proceeding was whether the Station was a qualified low power
station under the Commission's rules.  In the Order, we found that the Station was a qualified low power
station because it met the requirements of our rules, including the two requirements challenged in the
petition.  First, we found that the Station provides programming that addresses the

      local news and informational needs which are not being adequately served by full power
      television stations because of the geographic distance of such full power stations from the low
      power station's community of license.

In this regard, we found that the Station, by providing logs that detailed the specific types of local
information that it provides its viewers, had made a prima facie case that it addresses local news and
informational needs that are not being served by the more distant full power stations.  We then noted that
TCI had not argued that the full power stations provided the same or similar local information to the
Station's six county area.  

      4.    Second, we found that the Station's programming constitutes "program service" under
Section 73.1740(2)(iii), 47 C.F.R.  73.1740(2)(iii).  In particular, we found that the Station's weather
and news announcements were in text that moved continuously across the screen and that, in addition,
the announcements were accompanied by aural transmissions that were related to the visual broadcasts. 
Because the Station also met the other requirements of rules, we granted Lankenau's complaint.

      5.    In its complaint seeking carriage on TCI's cable system, Lankenau stated that its
programming included the following:

      Local weather radar pictures every few minutes, school lunch menu listings for elementary school
      children each morning, local area news summaries. . . public service announcements regarding
      local activities interspersed with commercial messages throughout the day. . . .  Continuous
      comprehensive local weather information is scrawled across the bottom of the screen 24 hours
      a day.

The complaint also alleged that some of its programming included moving characters or words printed
on the screen.

      6.    In its opposition, TCI argued that the Station's programming was not "program service"
under Section 73.1740(2)(iii), 47 C.F.R.  73.1740(2)(iii), and that Lankenau had not shown that the
Station's programming met the local news and informational needs requirement.  TCI stated that the
station had failed to "introduce any programming logs or other evidence supporting its contention that
it provides local news and information programming directed at the communities at issue."

       7.   In reply to TCI's argument that it had not introduced programming logs, Lankenau
introduced programming logs and stated that the Station provides the only weather reports for the six
counties surrounding it, local agricultural information, local school closings, sports reports that go
unreported on the high power stations, local real estates stories, musical programming for the area's
hispanics, and local news and public service announcements not covered by the high power stations. 
Lankenau also reiterated that its news and weather announcements scrolled across the screen.

       B.   TCI's Petition for Reconsideration

       8.   In its petition, TCI argues that the Order erroneously failed to assign the evidentiary
burden to Lankenau and instead placed the burden of proof on TCI to show that the Station is not a
qualified low power station.  According to TCI, the Station failed to carry its burden of proof because
it failed to show that its programming adequately serves the Communities and that the seven full power
stations carried on the cable systems do not.  TCI argues that it did not provide evidence of the full
power stations' provision of local programming and information because the Station did not provide its
log books until its reply.  TCI then argues that the Station's scrolling text news is limited in quality and
quantity and accordingly does not adequately serve the Communities.  To require carriage based on this
scrolling text news, TCI asserts, frustrates Congress's intent under 47 U.S.C.  534(c)(2) & (h)(2) that
low power stations be granted very limited carriage rights.

       9.   In its opposition to the petition for reconsideration, Lankenau argues that the Commission
should not reconsider its Order because the petition simply repeats arguments that we have already
evaluated and resolved in the Order and that the Commission should not consider evidence now that TCI
had access to, but did not present, during the first stage of this proceeding.  If the Commission considers
the new evidence, Lankenau argues that TCI has not presented any evidence of local news and
information carried by the full power stations.  According to Lankenau, a low power station with a more
limited geographic focus can and does provide more extensive local news to Bryan, Paulding, and
Defiance (where the Station is located) with more immediacy, content and depth.  As evidence, Lankenau
attaches to its opposition 103 news stories aired by the Station during the month of November 1997,
94.7% of which related to events in or around the communities of Bryan, Paulding and Defiance.  These
stories aired from four to seven times daily.  Story subjects include local fires, accidents, burglaries, a
Williams County (where Bryan is located) Commissioners sex discrimination suit, the Napoleon City
Council, the Henry County Commissioners, election day coverage, grants to school districts, local
business owners meeting to discuss electricity rates, the United Way Campaign for Paulding, Williams
and Defiance counties, local village councils, a school board rejecting a contract bid, raises for Paulding
County sheriff's deputies, a new garage building in Williams County, moving an elementary school,
grand juries, the Fulton County Health Center, leach field problems in Paulding County, accidents and
deaths of well-known citizens, the county manager of Williams County, worker's compensation fraud,
Miss Northwestern being crowned in Defiance, a Defiance City Monthly School Board meeting, a high
school basketball coach, a local minister, city committees, Defiance County Commissioners, a village
board of education, job announcements for low level local government positions, a village levy to
maintain fire department services, and thirty-nine railroad crossways receiving new warning lights.  In
addition, the Station broadcast 57 public service announcements during November, 87.5% of which relate
to Bryan, Paulding and Defiance.  Moreover, the weather for the region scrawls across the bottom of the
Station's broadcast twenty-four hours a day.

       10.  In its reply, TCI again argues that the Communications Act of 1934 and our implementing
rules place the burden of proof on the Station to show that it is a qualified low power station and that the
Station has failed to carry this burden.  TCI then proffers new evidence of local news and informational
items concerning the Communities broadcast by full power stations, WPTA, WKJG, WANE, and WLIO
to show that the full power stations adequately meet these Communities' needs.  In a letter to TCI,
WPTA wrote that WPTA covers Paulding County by covering stories regarding police, fires, weather,
high school sports and the Paulding Day Festival Parade.  Regarding Williams County, where Bryan is
located, WPTA relies on a news stringer from Williams County and checks with the courts for stories
of interest.  WKJG's manager wrote that Paulding County is one of the two counties in its Nielsen DMA. 
WKJG provides 6 daily broadcasts daily providing specific local news, weather, and sports for all
counties in its DMA, reports Paulding school closings and accepts community announcements.  The
WKJG manager asserts that WKJG is the only weather station for Defiance, Williams, and Paulding
counties.

      11.   WLIO then presented a substantial number of news stories relating to Paulding County
from the beginning of 1997.  The subjects of these stories include weather, sports, high school sports,
crimes, accidents, President Clinton receiving a turkey in Paulding County, the closing of highway rest
stops, agricultural displays, veterans, a fair, the Paulding Day Parade, the funeral of a former state
representative, new street lights, a mysterious circle found in a wheat field that some believed to have
been caused by a UFO, taxes, arson, toxic waste, and fires.  WLIO also provides public service
announcements to Paulding County.

      12.   Finally, TCI again argues that the Station's news programming is "weak" because it is
character generated.  TCI appears to argue that this factor is relevant to our analysis whether the Station
adequately addresses the local news and informational needs of the Communities and that it would
frustrate Congress' intent to mandate carriage of a station that provides news through scrolling words.

III.  DISCUSSION

      13.   Reconsideration is appropriate only where the petitioner shows either a material error or
omission in the original order or raises additional facts not known or not existing until after the
petitioner's last opportunity to respond.  Reconsideration will not be granted for the purpose of debating
matters on which we have already deliberated and spoken.  We will deny TCI's petition because TCI's
two legal arguments are meritless and accordingly do not raise a material legal error that would change
the rulings made in the Order.  First, TCI's argument that the Station's text-delivered local news is of
low quality and quantity such that the Station is not entitled to mandatory carriage, and that such carriage
would frustrate Congress' intent, has no basis in the low power station statute or our rules promulgated
thereunder.  Second, TCI incorrectly asserts that it does not carry the burden of showing that its high
power stations adequately satisfy local news and informational needs.  We will also deny the petition
because TCI's evidence of the high power stations' local programming proffered with the petition should
have been proffered when TCI filed its opposition to the complaint.  Nevertheless, even when we review
TCI's evidence of the local programming that its high power stations provide, we find that the Station's
local programming meets the statutory eligibility test of Section 614(h)(2)(b).

      14.   TCI does not contest our holding that the Station's programming which includes text
scrolling across the screen constitutes "program service" under Section 73.1740(2)(iii), 47 C.F.R. 
73.1740(2)(iii).  Instead, TCI argues that the Station's text-delivered news somehow frustrates the intent
of the low power station statute and rules by being of "low quality and quantity."  This argument has no
basis in the statute or the rules.  The only condition for how programming is presented by a low power
station seeking mandatory carriage is found in Section 73.1740(2)(iii).  Otherwise, Section 614(h)(2)(B)
of the Communications Act of 1934, as amended, and Section 76.55(d)(2) or our rules simply do not have
any requirements for the manner in which news is delivered to subscribers.

      15.   TCI next asserts that the Order erroneously places the burden of proof on the cable
operator to demonstrate that the full power stations do not adequately address the local news and
informational needs of the Communities.  This assertion is incorrect.  The Order places the burden of
proof on the low power station.  When the low power station carried this burden of proof by making a
prima facie case that entitled it to relief, the burden then shifted to TCI to proffer evidence in rebuttal. 
Thus, in cases where a low power station has proffered evidence of its local programming, we have held
that the cable operator's undocumented, general assertions that the low power television station's
programming is inadequate or that the cable system's subscribers are adequately supplied local
programming by other stations are insufficient to warrant a finding that the low power station is not
meeting its local programming responsibilities.  In its opposition to the complaint, TCI merely made
general assertions that its high power stations provide adequate local news without submitting any
evidence to support its position.  In the absence of such evidence from TCI, we accepted Lankenau's
programming logs as evidence that the Station is meeting the local news and informational needs of the
Communities.

      16.   TCI argues that it did not present evidence of the local news and informational
programming of the high power stations in its opposition to the complaint because the Station did not
present the programming logs until the Station filed its reply.  Lankenau, however, put TCI on notice
in the complaint that Lankenau contended that the Station adequately addresses local news and
informational needs, and TCI knew that the resolution of this issue would determine the outcome of the
complaint.  With this notice, TCI should not have been surprised that Lankenau proffered further
evidence to support is claim in the reply.  Finally, we note that TCI does not allege that Lankenau's reply
evidence is irrelevant or untrue.

      17.   Nevertheless, we carefully examined the news stories proffered by TCI for its high power
stations and by Lankenau for the Station.  We note at the outset that TCI did not proffer specific stories
for Williams County, where Bryan is located, so we find that TCI has failed to carry its burden with
regard to Bryan.  The only high power station that serves Bryan, WPTA, noted in a letter to TCI that
it has a news stringer in Williams County and that it checks with the county courthouses for stories.  This
statement does not provide enough information regarding the nature of local stories that WPTA carries
in order to counter the 103 stories proffered by the Station.

      18.   Regarding Paulding County, while both the Station and the high power stations carry
stories regarding weather, school closings, high school sports, crime, accidents, agriculture and elections,
the Station carries more stories directed to the Communities and stories that the high power stations do
not cover, including stories regarding the county commissioners, village councils, school districts, local
fundraising campaigns, raises for the Paulding sheriff's deputies, local business owners meeting to discuss
electricity rates, deaths of well-know local citizens, moving an elementary school, county managers, the
Miss Northwestern Pageant, school board meetings, city committees, a local man passing the Ohio bar
to become an assistant county prosecutor, a village levy to maintain fire department equipment and
services, and railroad crossings receiving new warning lights.  The Station also provides the Communities
with as many as thirteen local stories per day.  Thus, we find that the Station addresses the local news
and informational needs of the Communities that are not being adequately served by the full power
stations.
IV.   ORDERING CLAUSE

      19.   Accordingly, IT IS ORDERED, pursuant to Section 1.106(j) of the Commission's rules,
47 C.F.R.  1.106(j), that the petition for reconsideration of the Cable Services Bureau's Memorandum
Opinion and Order, DA 97-2265 (October 29, 1997) filed by Ohio Cablevision Network, Inc. d/b/a TCI
Cablevision of Ohio is DENIED. 

       20.  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



                  William H. Johnson
                  Deputy Chief, Cable Services Bureau