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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 : ) ) Fouce Amusement Enterprises ) CSR 5088-M against Media One ) ) For Carriage of KCRA(TV) ) MEMORANDUM OPINION AND ORDER Adopted: January 14, 1998 Released: January 16, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Fouce Amusement Enterprises ("Fouce"), licensee of full power commercial television station KCRA(TV) (Channel 62), Riverside, California, filed a must carry complaint pursuant to 47 C.F.R.  76.7 and 76.61(a) requesting an order requiring Media One to continue carriage of KCRA(TV) on Channel 62 of that portion of the System serving the communities of Cypress, Downey, and La Palma, California. Media One filed comments on the complaint, and Fouce filed a reply. BACKGROUND 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. Section 614 and Commission rules adopted in the Must Carry Order require a cable system to carry a commercial television station on the cable system channel number on which the station broadcasts, or on the channel which it was carried on certain dates as specified in 47 U.S.C.  534(b)(6) and 47 C.F.R.  76.57(a). ALLEGATIONS AND ARGUMENT 3. The record shows that Media One, in the course of incorporating newly acquired cable systems serving Cypress, Downey, and La Palma into its System at issue here, originally proposed to relocate KCRA(TV) to Channel 39 to achieve channel lineup consistency. After obtaining no satisfaction from complaints directed to Media One about the proposed channel changes, Fouce filed the instant complaint with the Commission. In comments on the complaint Media One states that it is now committed to carrying KCRA(TV) on Channel 62 on all portions of its System, with the exception of the portion serving Costa Mesa. With respect to the Costa Mesa portion, Media One states that Fouce's request for carriage on Channel 62 conflicts with pre-existing arrangements for carrying the municipal access channel of the City of Costa Mesa on Channel 62. Media One argues that it should not be required to change channels to accommodate KCRA(TV), a station which it contends has no nexus to the City of Costa Mesa. Media One also contends that if the municipal channel is relocated Fouce should be required to make reimbursement to the city for costs involved with the move. DISCUSSION AND ANALYSIS 4. We reject Media One's argument that the System should not be required to carry KCRA(TV) on Channel 62 because the municipal channel of the City of Costa Mesa is currently carried on Channel 62. Section 614(b)(1)(B) mandates that cable systems "with 12 or more usable activated channels shall carry the signals of local commercial television stations, up to one-third of the aggregate number of usable activated channels of such system." Section 614(b)(6) and Commission rules adopted in the Must Carry Order further require a cable system to carry a commercial television station on the cable system channel number on which the station broadcasts. In the Must Carry Order, the Commission interpreted Sections 614(b)(1)(B) and Section 614(b)(6) as creating a clear statutory right of carriage and channel positioning that is not qualified by the fact that an existing service must relocated to make room for "on channel" carriage of a local station. The Commission also stated that the carriage right applies "notwithstanding the existence of prior agreements between cable operators and cable programming services." The Commission further indicated that neither inconvenience, marketing problems, need for system configuration, or need to make technical changes except for a "compelling technical reason" was sufficient reason to deny a commercial station's "on channel" positioning. There is no exception to this channel positioning right with respect to channels operated by municipal entities. We find further that Media One failed to show a "compelling technical reason" for not accommodating mandatory carriage of KCRA(TV) on Channel 62 on the Costa Mesa portion of its System. Fouce has established on this record that KCRA(TV) is located in the same television market as Media One's System. Neither party raised any issues concerning delivery by KCRA(TV) of an adequate signal to the cable system's headend, or concerning an increase in cable system copyright liability due to carriage of the station. ORDERING CLAUSES 5. 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 Fouce Amusement Enterprises in File No. CSR 5088-M IS GRANTED, and Media One IS ORDERED to commence carriage of television station KCRA(TV) on Channel 62 within sixty (60) days of the release date of this Order. 6. 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