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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 ) ) Whitehead Media of Georgia, Inc. ) CSR 5075-M against BellSouth Interactive Media Services, Inc. ) ) Request for Carriage of WNGM-TV, Athens, Georgia ) MEMORANDUM OPINION AND ORDER Adopted: December 22, 1997 Released: December 24, 1997 By the Deputy Chief, Cable Services Bureau: 1. Whitehead Media of Georgia, Inc. ("Whitehead"), licensee of television station WNGM- TV, Athens, Georgia, filed a complaint under 47 U.S.C. 534 and 47 C.F.R. 76.7 & 76.61(a) for mandatory carriage of station WNGM-TV on the cable system of BellSouth Interactive Media Services, Inc. ("BIMS") serving Chamblee and DeKalb County, Georgia. BIMS filed an opposition to the complaint, and Whitehead filed a reply. 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. Whitehead states that WNGM-TV is located in the same television market as BIMS's cable system and delivers an adequate signal to the cable system's headend, that carriage of the station would not increase the cable system's copyright liability, and that WNGM-TV satisfies all of the criteria for entitlement to must carry rights accorded to local television stations by Section 614 and the Commission's implementing regulations. 3. BIMS's sole opposition to Whitehead's complaint for carriage is based on the findings in Media One, Inc., 12 FCC Rcd 12155, DA 97-1776, (Cable Serv. Bur. released August 20, 1997) ("Media One"). Media One denied a complaint filed by Whitehead for carriage of WNGM-TV on Media One, Inc.'s cable system, on the grounds that the signal of another station, WTLK-TV, was being carried by Media One, Inc. Media One found that WTLK-TV and WNGM-TV were both affiliated with the inTV Network, that both stations carried inTV Network programming, and that of the two stations WTLK-TV is located closer to the Media One, Inc. cable system headend. Therefore, WNGM-TV was found not entitled to carriage, because under 47 U.S.C. 534(b)(5) a cable system is required to carry only one television station affiliated with a particular network. BIMS notes that it currently carries WTLK-TV, which also is located closer to its cable system headend than is WNGM-TV, and asserts that the provisions of 47 U.S.C. 534(b)(5) excuse it from any requirement to carry the duplicating inTV Network programming carried by the more distant WNGM-TV. 4. Whitehead in reply states that WNGM-TV has ended its affiliation with the inTV Network and that WNGM-TV no longer carries inTV Network programming but instead now carries other programming supplied by Paxnet, another program supplier that is independent from the inTV Network. Whitehead asserts that since WNGM-TV no longer substantially duplicates the programming of WTLK- TV, WNGM-TV is entitled to carriage on BIMS's cable system. Whitehead submitted programming schedules for the week of September 15 through September 21, 1997 for both WNGM-TV and WTLK- TV, which show that the programming of WNGM-TV does not substantially duplicate the programming of WTLK-TV. Whitehead argues that the findings in Media One no longer apply, and that WNGM-TV is entitled to carriage on BIMS's system serving Chamblee and DeKalb County, Georgia. 5. We will grant Whitehead's complaint and direct BIMS to carry WNGM-TV on its cable system serving Chamblee and DeKalb County, Georgia. Whitehead has established on this record that WNGM-TV is located in the same television market as BIMS's cable system and delivers an adequate signal to the cable system's headend, and that carriage of the station would not increase the cable system's copyright liability. While the Commission previously determined in Media One that inTV is a television network for must carry purposes, BIMS has not met its burden with regard to demonstrating that WNGM-TV and WTLK-TV continue to be affiliates of a common broadcast network, as defined by Section 76.55(f) of our rules, or that WNGM-TV continues to substantially duplicate the signal of WTLK-TV. We also believe Whitehead has sufficiently demonstrated that both business entities, while owned by the same corporate parent, provide substantially different programming. In addition to not meeting its burden with regard to network affiliation, BIMS has not shown that the stations duplicate each other's signals by simultaneously broadcasting identical programming for more than 50 percent of the broadcast week. Therefore, we conclude that WNGM-TV satisfies all of the criteria for entitlement to must carry rights accorded to local television stations by Section 614 of the Communications Act and the Commission's implementing regulations with respect to BIMS's cable system serving Chamblee and DeKalb County, Georgia. ORDERING CLAUSES 6. 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 Whitehead Media of Georgia, Inc. IS GRANTED, and BellSouth Interactive Media Services, Inc. IS ORDERED to commence carriage of television station WNGM-TV within sixty (60) days of the release date of this Order. 7. This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau