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$//MO&O Denying K59EI carriage on Cablevision, DA-95-639//$
$/300.534 Carriage of local commercial television signals/$
$/76.61 Disputes concerning carriage/$
$///DA 95-639 3/30/95///$
///newjob///


                                Before the 
                    FEDERAL COMMMUNICATIONS COMMISSION
                           Washington,D.C. 20554
              DA-95-639


In re:        ) 
              )
Complaint of Washington County      )      CSR-4426-M
Television, Inc. against            )      OK0062
DR Partners, d/b/a Donrey Cablevision      )       OK0063
                                           )           
Request for Carriage )
                     
                       MEMORANDUM OPINION AND ORDER

              Adopted:  March 27, 1995     Released:April 3, 1995

By the Cable Services Bureau:


                               INTRODUCTION

1.     On October 5, 1992, the Cable Television Consumer Protection and Competition Act
of 1992 (1992 Cable Act) became law.  On March 11, 1993 the Commission adopted a
Report and Order to implement the mandatory broadcast signal carriage ("must-carry")
provisions of the Cable Act.  Pursuant to the rules adopted in the Report and Order, cable
systems were required to commence carriage of local broadcast stations entitled to must-carry
status beginning June 2, 1993.  Our must-carry rules are also applicable to qualified low
power television stations (LPTV).   On December 12, 1994, Washington County Television,
licensee of LPTV K66EK, Bartlesville, Oklahoma (K66EK) submitted the present complaint
against DR Partners, d/b/a Donrey Cablevision (Donrey) alleging the latter's improper denial
of carriage on its Bartlesville, Oklahoma and Dewey, Oklahoma cable systems.  Donrey
responded on January 9, 1995 by alleging that complainant does not satisfy the definition of a
qualified LPTV, and that even if it did, complainant's must-carry request is invalid based on
its prior election to negotiate for retransmission consent.


                                DISCUSSION

2.   Our must-carry rules state that if there are not enough full-power local commercial
television stations to fulfill the must-carry obligations of a cable system, a qualified LPTV
may be carried.  One of the criteria for being a qualified LPTV is that there be "no full
power television broadcast station licensed to any community within the county or other
equivalent political subdivision (of a State) served by the cable system."  Donrey states that
there is a full-power local commercial broadcast station (KDOR) licensed to Bartlesville,
Oklahoma, which is within the same county (Washington) as Donrey's Bartlesville and
Dewey systems and, thus, complainant is not a qualified LPTV.  In its Complaint, K66EK
acknowledges that KDOR is licensed to Bartlesville, but argues that because KDOR's studio
is located in Broken Arrow, Oklahoma, 60 miles from Bartlesville, and KDOR's transmitter
is located in Rogers County, Oklahoma, "KDOR's programming service to Bartlesville and
Dewey is no more evident than that of the other eight full power stations located in and
around Tulsa."  In addition, K66EK requests a waiver of Section 76.55(d)(6) of the
Commission's rules to permit K66EK to be considered a qualified LPTV despite the fact that
there is a full power television broadcast station licensed to Bartlesville, Oklahoma.

3.   The criteria for a qualified LPTV, as set forth in the Commission's rules, are
mandated by Section 614(h)(2) of the 1992 Cable Act.  While the Commission may waive its
own rules in certain circumstances, it may not waive any part of the statutory definition of a
qualified LPTV.  Because there is a full power television broadcast station licensed to
Bartlesville, Oklahoma, K66EK does not meet the criteria for a qualified LPTV, and
therefore K66EK is not entitled to carriage on Donrey's Bartlesville and Dewey systems. 
Given our conclusion, we need not reach the other issues raised by the parties in this matter.

4.   Accordingly, the petition filed on December 12, 1994, by Washington County 
Television, K66EK, Bartlesville, Oklahoma, IS DENIED, in accordance with Section
614(h)(2)(F) (47 U.S.C. 534) of the Communications Act of 1934.  

5.   This action is taken by the Cable Services Bureau, pursuant to authority delegated by
Section O.321 of the Commission's Rules.


                                 FEDERAL COMMUNICATIONS COMMISSION






                                 William H. Johnson
                                 Deputy Chief, Cable Services Bureau