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KTWUTV requests that the Commission find that Time Warner has  x`failed to comply both with the carriage requirements and the positioning requirements of Section 5 of the 1992 Cable Act and order it to continue carriage on its overtheair channel.  S( ` ~5. ` ` In opposition, Time Warner states that the cable communities herein are among dozens  x.of communities in the seven county Kansas City metropolitan area that are being tied together as part of  xTime Warner's $120 million comprehensive upgrade of its Kansas City area cable systems which was  xHbegun in 1994. Time Warner indicates that through the use of fiber optics, it has eliminated obsolete  x.headend hub sites, expanded bandwidth and improved reliability for its subscribers and, when complete,  SP( x~it will be operating a 5000 mile, single "cable system" in the Kansas City area.8P@t yO0!(ԍOpposition at 2.8 Time Warner argues that  x8there is no factual foundation for KTWUTV's complaint because it is based upon the mistaken premise  xthat the Leavenworth headend will be maintained. However, Time Warner states that, in fact, no headend  x8will be maintained in Leavenworth and the instant communities are being systematically tiedinto a cable  xsystem with a single "master" headend located in Kansas City, which under Section 76.5(pp)(1) of the  S(Commission's rules is the "principal headend" for these communities.Bt yO&(ԍ47 C.F.R. 76.5(pp)(1).B"` ,p(p(88"Ԍ S( ` Vԙ6. ` ` Time Warner points out that until late 1998, it served, either directly or by microwave,  xthe communities of Leavenworth, and Ft. Leavenworth, Kansas, and Platte City, Tracy and portions of  xPlatte County, Missouri from a headend located in Leavenworth. It states that it served the community  xzof Weston, Missouri by a separate headend. In accordance with its fiberoptic upgrade project, Time  xWarner indicates that the communities of Platte City, Tracy, Platte County and Weston, Missouri have  xalready been interconnected into the consolidated Kansas City metro area system and Leavenworth and  xFt. Leavenworth will be connected by June 30, 1999 and December 31, 1999, respectively. Time Warner  xstates that at that time, the Leavenworth headend will be converted into one of the over 20 Distributed  S(Light Hub (DLH) sites maintained to receive signals from the master headend in Kansas City.8 t yO( (ԍOpposition at 3.8  Sp( ` 7. ` ` Time Warner maintains that the upgrade of its cable plant serving the cable communities  xherein constitutes good cause for elimination of the separate Leavenworth headend and does not reflect  xany intention to "undermine or evade" its must carry obligations. Moreover, it argues, Section 76.5(pp)  x$makes it clear that the restrictions on designating a principal headend and the "good cause" threshold for  xjchange in choice of principal headend are applicable only in situations where the cable operator has more  S ( xthan one headend and not in cases where a headend is eliminated as part of a systemwide consolidation.  Xt {O( xPԍSee Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast  {Oj(Signal Carriage Issue ("Must Carry Order"), 8 FCC Rcd 2965, 2968 (1993).  xTime Warner states that due to the fact that its new principal headend is located more than 50 miles from  xKTWUTV's city of license and also outside of KTWUTV's predicted Grade B contour, the station is  xno longer a "qualified local NCE television station" as defined in Section 76.55(b) of the Commission's  S( x$rules.? t yO\(ԍ47 C.F.R. 76.55(b).? While KTWUTV has asserted that it is still entitled to carriage in the cable communities due to  x4the fact that it was carried as of March 29, 1990, Time Warner argues that KTWUTV's reliance on  xVSection 76.56(a)(5) is misplaced because it did not quote that rule correctly. Time Warner indicates that  S( xSection 76.56(a)(5) accurately states that continued cable carriage is available to all qualified local NCE  Sh( xpstations that were carried on the system as of March 29, 1990.B hDt yOL(ԍ47 C.F.R. 76.56(a)(5).B The word "local" was omitted from  xKTWUTV's quoted statement of the rule and Time Warner asserts that such omission is fatal to KTWUTV's claim of grandfathered carriage rights in the instant communities.  S( ` 8. ` ` While it is clear that KTWUTV is no longer a qualified local NCE station, Time Warner  xstates that it will nevertheless continue to make the station available to its subscribers in Leavenworth and  xBFt. Leavenworth, Kansas and Weston, Missouri. However, Time Warner maintains that such voluntary  xcarriage does not vest KTWUTV with any channel position rights. As a result, Time Warner requests that the Commission deny KTWUTV's complaint.  S( IV. DISCUSSION  S( ` 9. ` ` We agree with the arguments raised by Time Warner and deny KTWUTV's complaint.  xWe believe that the relocation of Time Warner's principal headend from Leavenworth to Kansas City is  xzconsistent with the systemwide upgrade it is conducting and is not an attempt to evade its must carry"8 ,p(p(88`"  xobligations with regard to KTWUTV. KTWUTV has maintained that it is entitled to continued carriage  xtpursuant to Section 76.56(a)(5) because it was carried as of March 29, 1990 and had channel positioning  S( xrights pursuant to Section 76.57(b).? t yO(ԍ47 C.F.R. 76.57(b).? We disagree. As Time Warner correctly noted, Section 76.56(a)(5)  xspecifies that only local NCE stations are entitled to such continued carriage. Because Time Warner's  xprincipal headend at Kansas City is more than 50 miles from KTWUTV's city of license and beyond the  xLstation's Grade B contour, KTWUTV can no longer be considered a local NCE station entitled to either  xmandatory carriage or channel positioning rights. We note, however, that Time Warner has stated that  x$it intends to continue carriage of KTWUTV, on a voluntary basis, in the communities of Leavenworth, and Ft. Leavenworth, Kansas, and Weston, Missouri.  Sp( V. ORDERING CLAUSES  S ( `  10. ` ` Accordingly, IT IS ORDERED that the petition filed January 29, 1999, by Washburn  S ( x<University Topeka IS DENIED pursuant to Section 615 of the Communications Act of 1934, as amended (47 U.S.C. 535).  S ( ` < 11. ` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's  SX(Rules.<XXt yOP(ԍ47 C.F.R. 0.321.< ` `  ,hhhFEDERAL COMMUNICATIONS COMMISSION ` `  ,hhhDeborah Klein, Chief ` `  ,hhhConsumer Protection and Competition Division ` ` ,hhhCable Services Bureau