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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 ) ) The Vacation Channel, Inc. ) against TCI Cable of the Rockies, Inc. ) CSR 5076-M ) Request for Carriage of K36DB, Avon, Colorado ) MEMORANDUM OPINION AND ORDER Adopted: December 22, 1997 Released: December 30, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: 1. The Vacation Channel, Inc. ("TVC"), licensee of low power station K36DB, Avon, Colorado, filed a complaint pursuant to Section 614 of the Communications Act, as amended, 47 U.S.C.  534, and Sections 76.7 and 76.61(a) of the Commission's Rules, 47 C.F.R. 76.7 & 76.61(a), claiming entitlement to mandatory carriage of K36DB on the cable system of TCI Cable of the Rockies, Inc. ("TCI- R") serving Avon and Vail, Colorado. TCI-R filed an opposition to the complaint, and TVC filed a reply. 2. Pursuant to Section 614 of the Communications Act of 1934, as amended (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 low power television station may be entitled to mandatory carriage rights as a "qualified low power station," provided, among other things, all of the conditions described in Section 614(h)(2) of the Act are met. Among other qualifying criteria, Section 614(h)(2)(B) requires that a low power station seeking carriage meet all of the obligations and requirements of a full power television station set out under Part 73 of the Commission's regulations, and show "that local news and information needs of the relevant communities are not being adequately served by local full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license." If these criteria cannot be met, under the provisions of Section 614(h)(2)(f) of the Act, the subject low power station is not considered a qualified low power station for must carry purposes. 3. TCI-R asserts that K36DB fails to meet all of the requirements set out in Section 614(h)(2)(B) of the Act and therefore is not qualified for must carry on its cable system. In particular, TCI- R contends TVC failed to establish that K36DB consistently broadcasts the type of programming that addresses local news and information needs of the relevant communities not being adequately served by local full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license. TCI-R contends that while TVC identified some examples of K36DB's programs that may be of interest to viewers in the subject communities, no program schedules or other information was provided with the complaint to quantify the amount of such "local" programming. 4. TVC stated in the complaint that the vast majority of K36DB's programming is produced locally, and provides information regarding local news, weather, events, and attractions relating to Avon and Vail as well as Eagle County, Colorado, in which those communities are located. TVC also provided several examples of such programming recently broadcast on the station's "Newsline" program. TVC also provided with its reply a program schedule for September 29, 1997, which quantifies the amount of the station's broadcast day devoted to such programming. Thus the record contains substantial evidence that K36DB presents programming that addresses the local needs of Avon and Vail, Colorado. We contrast that with the absence from this record of any information identifying programming of full power Denver stations that specifically addresses the needs of those two communities. 5. TCI-R also asserts that TVC failed to show that K36DB meets the children's programming obligations of full power television stations as set out in Commission regulations implementing the Children's Television Act of 1990. TCI-R contends that TVC fails to show how the "Generation K" program and other unidentified programming relied upon in the complaint meets the Commission's guidelines for minimum hours of children's programming. It also contends that such programming is not shown to be regularly scheduled as required by the guidelines. The Commission's rules define educational and informational programming for these purposes as programming that furthers the educational and informational needs of children 16 years of age and under in any respect, including the child's intellectual/cognitive or social/emotional needs. 6. Section 614(h)(2)(B) has two parts. The first part requires that a low power station seeking carriage meet all obligations and requirements applicable to television broadcast stations. In response to allegations relating to compliance with the Children's Television Act of 1990, we rely on TVC's representations that K36DB has broadcast program series that are informational and educational as set forth in 47 C.F.R. Section 73.671(c) and that this programming is aired between the hours of 7:00 a.m. and 10:00 p.m. on a regular weekly schedule, and presented in episodes of at least 30 minutes in length. We also rely on TVC's statements that a description of the programming and broadcast times are listed in the station's Children's Programming Report and that a list of the programming is provided by TVC in writing to publishers of program guides along with instructions for identifying the programming as educational/informational programming. These representations are supported by the record, and we find these representations to be consistent with 47 C.F.R.  73.671(c)(1) through (6). 7. The second part of Section 614(h)(2)(B) further requires the Commission to determine whether the provision of programming by a subject low power station addresses local news and informational needs not being met by full power stations because of their geographic distance from a low power station's community of license. We find that TVC has presented substantial evidence , which is summarized above, that K36DB's programming is locally oriented and addresses local needs not addressed by programming of full power stations and that the programming of K36DB meets all obligations and requirements applicable to full power television broadcast stations. In view of TVC's presentation of such evidence, we conclude that K36DB is a qualified low power station as contemplated by Section 614(h)(2) of the Act. Consequently, K36DB is entitled to mandatory carriage on TCI-R's cable system serving Avon and Vail, Colorado. We have held that a cable system's undocumented assertions that LPTV's programming content is inadequate, and that its subscribers were adequately supplied local programming by other stations, is insufficient to warrant a finding that the LPTV is not meeting its local programming responsibilities. ORDERING CLAUSES 8. 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 The Vacation Channel, Inc. in File No. CSR 5076-M IS GRANTED, and TCI Cable of the Rockies, Inc. IS ORDERED to commence carriage of television station K36DB within sixty (60) days of the release date of this Order. 9. This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary Laden Chief, Consumer Protection and Competition Division Cable Services Bureau