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Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) Complaint of Vision 3 Broadcasting, Inc. ) CSR-5416-M Against Time Warner Cable ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: November 26, 1999 Released: December 3, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Vision 3 Broadcasting, Inc., licensee of low power station WVBG-LP (Ch. 25), Greenwich, New York, has filed a must carry complaint against Time Warner Cable ("Time Warner"), for its failure to carry WVBG-LP on its system serving Greenwich, New York and the unincorporated areas of Washington County, New York. An opposition to this complaint was filed on behalf of Time Warner to which WVBG-LP has replied. WVBG-LP subsequently filed a supplement to its complaint which Time Warner opposed. II. BACKGROUND 3. Section 614(a) of the Communications Act of 1934, as amended, requires the carriage of "qualified" low power television ("LPTV") stations in certain limited circumstances. Under Section 76.56(b)(3) of the Commission's rules, promulgated pursuant to Section 614, a cable system that has insufficient full power television stations to reach its channel set aside shall carry at least one qualified LPTV station. Thus, if a cable system is carrying its full complement of commercial full power stations, it need not carry an LPTV station. An LPTV station that conforms to the rules established for LPTV stations in Part 74 of the Commission's rules will be considered "qualified" only if: 1) it broadcasts for at least the minimum number of hours of operation required under 47 C.F.R. Part 73; 2) it adheres to Commission requirements regarding nonentertainment programming and employment practices and "the Commission determines that the provision of such programming by the station would address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power television station's community of license;" 3) it complies with interference regulations consistent with its secondary status; 4) it is located no more than 35 miles from the cable system's headend and delivers to the principal headend an over-the-air signal of good quality; 5) the community of license of the station and the franchise area of the cable system are both located outside the largest 160 Metropolitan Statistical Areas ("MSAs") ranked by population, as determined by the Office of Management and Budget on June 30, 1990, and the population of such community of license on that date did not exceed 35,000; and 6) there is no full power television broadcast station licensed to any community within the county, or other political subdivision (of a State) served by the cable system. IV. ARGUMENTS OF THE PARTIES 5. In support of its request, WVBG-LP states that Time Warner's refusal to carry its stations is unwarranted because it meets all of the requirements of Section 76.55(d) to be a qualified LPTV station entitled to must carry. WVBG-LP states that it broadcasts 24 hours a day, 7 days a week; meets all of the obligations and requirements applicable to full power television stations; is duly licensed pursuant to Part 74 of the Commission's rules and is in compliance with the Commission's interference rules; its transmitter is located within 35 miles of the principal headend for the cable system; Greenwich, New York, WVBG-LP's city of license, is located outside of the largest 160 MSAs; the cable system serves communities in Washington County, New York, the same county in which WVBG-LP is located; and there are no full power television stations licensed to any community in Washington County. 6. WVBG-LP indicates that it requested carriage on Time Warner's system on May 10, 1999. WVBG-LP states that Time Warner denied this request on June 8, 1999 citing three reasons. First, Time Warner argued that it has no separate cable system which alone serves Washington County communities. Instead, those communities are served jointly from a headend located in Albany, New York. Further, Time Warner states that there are six full power television stations licensed in Albany County which precludes WVBG-LP from having must carry rights on its system. Second, WVBG-LP is licensed to serve the communities of Albany, Schenectady, Troy and Greenwich, New York, the first three of which are located within one of the largest 160 MSAs, have populations in excess of 35,000, and have full power television stations licensed to them. Finally, Time Warner argues that there is no reason to believe that WVBG-LP provides actual over-the-air service to any area of Washington County. 7. WVBG-LP maintains that the fact that Time Warner designed its Washington County system's communities to be served through a headend located in Albany does not adversely affect its own right to carriage. In this regard, WVBG-LP further notes that the location of a cable system's headend is irrelevant with regard to the communities in which an LPTV station has carriage rights and, therefore, the presence of full power television stations in the headend's county has no bearing on must carry rights. WVBG-LP states that because there is no full power television station licensed to Washington County, it is entitled to be carried on that portion of Time Warner's system serving communities in that county. Moreover, WVBG-LP states that the Commission has held that where a cable system is "comprised of franchise areas both within and outside of the largest 160 MSAs. . . the cable operator is obligated. . . to carry [an LPTV] station in that portion of its system outside of the largest 160 MSAs." WVBG-LP maintains that it is the cable operator's burden to carry the LPTV station on the portion of its system serving the geographic area in which the station has must carry rights, regardless of whether the cable operator is technically capable of segregating its carriage obligations in different parts of the system. 8. WVBG-LP points out that while it was formerly licensed to Albany, Troy, Schenectady and Greenwich, New York, it submitted a notification to the Commission on April 22, 1999, regarding the deletion of the first three communities from its license. WVBG-LP states that it is now licensed solely to Greenwich. It points out that the Commission has found that such redesignation of an LPTV's community of license is permitted under its rules. As a result, WVBG-LP states that Time Warner's argument regarding its community of license is moot. In addition, WVBG-LP maintains that the distance between the station's transmitter site and its community of license is irrelevant for must carry purposes. WVBG-LP states that Section 614(h)(2) of the Communications Act requires only that the station be located no more than 35 miles from the system's principal headend, a point which Time Warner has not contested. 9. In opposition, Time Warner states that it operates a technically-integrated cable system serving the cities of Albany and Troy as well as the town of Greenwich and surrounding communities in Washington County, New York. Time Warner points out that, contrary to its assertion, WVBG-LP does not broadcast "on Channel 25 at Greenwich, New York," but instead broadcasts on Channel 25 from Helderberg Mountain. Time Warner states that this site is located a few miles southwest of Albany and is approximately 41.05 miles from Greenwich. Despite using an antenna directionalized toward Washington County, Time Warner maintains that WVBG-LP fails to provide a 74 dBu contour from Helderberg Moutain to Greenwich. In addition, Time Warner states that, according to the Commission's current database, WVBG-LP is licensed to Albany, Schenectady, Troy and Greenwich. Time Warner argues that unless WVBG-LP is able to remove the cities of Albany, Schenectady and Troy from its license, Section 76.55(d)(5) of the Commission's rules would bar WVBG-LP from carriage on Time Warner's system as each of these cities has a population in excess of 35,000 and are located within the 160 largest MSAs. Presumably, states Time Warner, this is why WVBG-LP requested deletion of these cities from its license on April 22, 1999. While WVBG-LP cites Mid-Maine Community Broadcasting in support of its proposed re-licensing, Time Warner maintains that the facts in that case are clearly distinguishable from those herein. Time Warner points out that in Mid-Maine Community Broadcasting WFYW-LP changed its community of license from Waterville and Fairfield, Maine to just Fairfield, resulting in must carry for WFYW-LP on a particular cable system. However, Time Warner points out that while the distance between Waterville and Fairfield was only about 4 miles, the distance between Albany and Greenwich is more than 35 miles. Moreover, WFYW-LP's transmitter is only 8 miles from Fairfield, compared to 41 miles which separates Greenwich from WVBG- LP's transmitter site. Time Warner argues that, unlike WVBG-LP and given the smaller distances, over-the- air, interference-free coverage by WFYW-LP to its community of license can be assumed. 10. Time Warner argues that not only is it undeniable that WVBG-LP's 74 dBu signal coverage fails to reach Washington County and falls well short of Greenwich, but there is no factual basis for concluding that WVBG-LP's signal is viewable off-the-air in communities so far distant from its transmitter site. Time Warner submits that the Commission should not allow its flexible community of license requirements for LPTV stations to be manipulated in order for WVBG-LP to obtain carriage well beyond its coverage area. 11. Further, Time Warner argues that WVBG-LP's local programming claims are unsupported. Time Warner states that a review of WVBG-LP's program log shows only one half-hour, Monday-Friday, that is devoted to Washington County. Time Warner states that there is no indication that WVBG-LP provides any other news or informational programming. Moreover, Time Warner asserts that WVBG-LP's reliance on Lankenau Small Media Network, Inc. to support its local programming claim is misplaced. Time Warner points out that the station involved in Lankenau aired as many as thirteen local stories per day while WVBG-LP airs only 30 minutes each weekday. In view of the foregoing, Time Warner argues that WVBG-LP's complaint should be denied. 12. In reply, WVBG-LP states that Time Warner provides no relevant evidence to contradict the fact that WVBG-LP qualifies for must carry on its cable system. WVBG-LP argues that neither the Communications Act nor the Commission's rules provides for an analysis of an LPTV station's over-the-air signal coverage in determining eligibility for carriage. The only requirement that an LPTV station has regarding signal quality is that it place a good quality signal over a subject cable operator's principal headend. As a result, WVBG-LP states that its signal coverage over Greenwich or into Washington County is irrelevant. However, WVBG-LP states that it would like to clarify for the record that it signal does cover much of Washington County. In addition, the Commission has stated that the 74 dBu contour relied on by Time Warner establishes the interference protection zone between full power television stations, television translators and LPTV stations and has nothing to do with LPTV stations' carriage rights. WVBG-LP concedes, however, that Elba Development was not a must carry case and did not establish a particular coverage contour that LPTV stations must meet in order to qualify for carriage. WVBG-LP states that Section 614(h)(2) of the Act merely requires that WVBG-LP be located within 35 miles of Time Warner's headend, which fact is undisputed. 13. In addition, WVBG-LP argues that the Commission unquestionably allows LPTV stations to change their communities of license by filing a letter notifying the Commission of the change. WVBG-LP points out that Time Warner does not dispute that such a notification was filed, merely that the Commission's database as of July 29, 1999 did not reflect the change. WVBG-LP submits that the only factor relevant herein is that it made the change to its community of license in accordance with the Commission's rules and that the frequency with which the Commission updates its records is not at issue. Further, WVBG-LP states that Section 614(h)(2)(B) of the Act requires only that LPTV stations broadcast programming that addresses local news and informational needs not being adequately served by full power television stations. WVBG-LP states that it is important to note that the statute imposes no minimum hour requirement for such programming. WVBG-LP argues that while Time Warner claims that WVBG-LP's local programming is insufficient, it provides no evidence with regard to the local programming efforts by full power stations to contradict WVBG-LP's claims. WVBG-LP states that its local programming is purposefully aired in the early morning, which is a time of day when it is most useful. Moreover, it is information which is largely unavailable on full power stations in the Albany market. Finally, WVBG-LP argues that despite Time Warner's repeated claims of being a technically-integrated system, the Commission has held that the burden falls on the cable operator to "filter out or technically segregate" the signal of a station qualified for must carry if the operator does not wish to carry such station in other areas of the system where it is not entitled for carriage. 14. In a subsequently filed supplement to its complaint, WVBG-LP submitted a copy of its daily programming logs for the week of May 3, 1999, allegedly in order to support its local programming claims since the Commission recently indicated that it preferred to see programming logs, in addition to other evidence of local programming, when deciding must carry cases. In addition, WVBG-LP includes a letter from a Washington County school indicating the importance of the unique programming WVBG-LP provides. Finally, WVBG-LP submits its most recent program schedule for the week of September 27, 1999 which demonstrates that WVBG-LP has doubled its children's programming to six hours per week and increased its local programming to over eight hours per week. Moreover, WVBG-LP states that it has contracted with an area producer to provide two weekday community-oriented shows "Washington County in Review" and "Inside Washington County." WVBG-LP argues that while it firmly believes that the local programming it provided at the time its complaint was filed was sufficient to qualify as must carry, the additional local programming it now provides clearly shows its commitment to providing quality local programming to Washington County residents. 15. Time Warner opposes WVBG-LP's supplement, arguing that WVBG-LP's justification for submitting its program logs (i.e., a recent Commission decision) is fallacious as the Commission made plain in decisions over two years ago its reliance on programming logs as evidence in LPTV cases. As a result, Time Warner maintains that WVBG-LP's reliance on Vision 3 Broadcasting to justify acceptance of its program logs is simply not credible. Time Warner argues that, in light of the fact that WVBG-LP could not have been unaware of the Commission's position on this matter, the sole reason for filing its supplement appears to have been the station's attempt to slip into the record additional new evidence in the form of a letter from a Washington County school and current programming logs detailing an increase in the station's local programming schedule. Time Warner asserts that the Commission should not condone WVBG-LP's attempt to subvert the Commission's fundamental procedural rules and gain an evidentiary advantage in this proceeding. XVI. DISCUSSION 17. We grant WVBG-LP's complaint. A review of the evidence demonstrates that WVBG-LP is a qualified low power television station in Washington County, pursuant to Section 76.55(d) of the Commission's rules. The fact that Time Warner's principal headend for the system serving Greenwich and unincorporated Washington County is in Albany County, New York is irrelevant. In Implementation of the Cable Television Consumer Protection and Competition Act of 1992 ("Must Carry Order"), the Commission stated that cable systems serving communities in two different areas of dominant influence ("ADIs") must carry all of the required local commercial television signals in both ADIs, unless the system is technically capable of segregating its carriage obligations. We believe that the Commission intended for the same principles discussed with respect to ADIs to apply with equal force with respect to LPTV stations where a cable operator serves communities that do not have a licensed full power station as well as a nearby community that does have a licensed full power station. In addition, the fact that there are six full power television stations licensed to Albany County is also irrelevant. For this exclusion to be applicable, a full power station must be co-located in the same county as the subject low power station. WVBG-LP's city of license, Greenwich, is in Washington County. No full power station is licensed to Washington County. Accordingly, Time Warner is obligated to carry WVBG-LP in those portions of its system serving communities outside of the largest 160 MSAs. In this regard, WVBG-LP's notification to the Commission regarding its change in city of license was fully in compliance with Section 74.751 of the Commission's rules. The fact that the Commission's database may not have reflected this change in a timely fashion does nothing to alter its legitimacy. Therefore, we accept that WVBG-LP's sole city of license is now Greenwich, New York. 18. In addition, we find that WVBG-LP provided adequate information in its must carry complaint to establish that its programming addresses local news and informational needs not addressed by full power stations because of their distance from Washington County. While Time Warner made general assertions that the other full power stations it carries provide adequate local news, it provided no supporting evidence that these full power stations provide programming that is directed to the communities at issue. In the absence of such evidence from Time Warner, we accept WVBG-LP's evidence that it is meeting the local news and informational needs of its service area. 19. Finally, as noted by WVBG-LP, Time Warner's assertions with regard to the station's 74 dBu contour are irrelevant to this proceeding. Section 76.55(d)(4) of the Commission's rules only requires that the LPTV station deliver to the principal headend of the cable system an over-the-air signal of good quality. Time Warner has provided no signal strength tests to indicate that WVBG-LP fails to deliver a good quality signal to its principal headend. 20. In view of the above, we find that WVBG-LP has demonstrated its right to mandatory carriage on that portion of Time Warner's cable system serving Washington County, New York. V. ORDERING CLAUSES 21. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C. 534) that the complaint filed by Vision 3 Broadcasting, Inc. IS GRANTED to the extent indicated above, and Time Warner Cable shall commence carriage of WVBG-LP within sixty (60) days after WVBG-LP provides a good quality signal to the system's principal headend. 22. IT IS FURTHER ORDERDED that WVBG-LP shall notify Time Warner in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's rules) within thirty (30) days after WVBG-LP provides a good quality signal to the system's principal headend. 23. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson, Deputy Chief Cable Services Bureau