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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 the Matter of: ) ) CSR-5174-M McLaughlin Broadcasting, Inc. ) Against ) Phoenix Concept Cablevision, Inc.) ) Request for Mandatory Carriage ) MEMORANDUM OPINION AND ORDER Adopted: March 19, 1998 Released: March 25, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. McLaughlin Broadcasting, Inc., licensee of broadcast television station WQHB(TV), Sumter, South Carolina ("WQHB") has filed a request for mandatory carriage of its signal on the cable system operated by Phoenix Concept Cablevision, Inc. ("Phoenix") in the communities of Eutawville, Holly Hill, and Orangeville, South Carolina (the "Communities"). Phoenix did not file a response. II. 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. III. SUMMARY OF ARGUMENTS 3. WQHB states that it is a qualified local commercial station assigned to the Columbia, South Carolina ADI. WQHB further states that the communities served by Phoenix in this instance are also located in the Columbia, South Carolina ADI. WQHB further states that, by letter dated September 22, 1997, it requested mandatory carriage on Phoenix's cable system serving the Communities to which Phoenix responded on October 17, 1997. In its response, Phoenix stated that it would begin testing WQHB's signal shortly. WQHB maintains that Phoenix did not begin testing WQHB's signal and on, November 6, 1997, WQHB sent a second request to Phoenix for mandatory carriage of its signal. By letter dated November 19, 1997, Phoenix informed WQHB, a UPN affiliate, that its request for carriage was denied because Phoenix already carried the signal of another local UPN affiliate, WMMP(TV) ("WMMP"). Phoenix stated that pursuant to the Commission's network non-duplication rules, it was not required to carry the signals of more than one affiliate of the same network. WQHB responded to Phoenix's denial of carriage in a letter dated November 25, 1997 which disputed Phoenix's application of the Commission's network non-duplication rules to a television station which was not assigned to the same ADI as Phoenix and reasserted WQHB's right to mandatory carriage on Phoenix's cable system serving the Communities. IV. DISCUSSION 4. We will grant WQHB's carriage complaint against Phoenix. Section 614(a) of the Communications Act states that each cable operator shall carry the signals of local commercial television stations. A local commercial television station is defined as any full power broadcast television station that is within the same television market as the cable system. It is undisputed that WQHB and Phoenix are located within the same ADI. A cable operator is required to carry the signals of a local commercial station unless that station fails to deliver a good quality signal to the cable system's principal headend; the station's signal substantially duplicates the signal of another local commercial station which is carried on the system; or the cable operator (with a system of more than 12 usable activated channels) has already allocated up to one-third of the aggregate number of its usable activated channels to other local commercial stations. The Commission's rules also require a local commercial station that believes that a cable operator has failed to meet its carriage obligations to complain in writing to the operator. The cable operator must respond in writing to the station's complaint within 30 days of receipt. The cable operator must either commence carriage of the signal or explain its reasons for failing to do so. If the Commission determines that a cable operator has failed to meet its must-carry obligations, it may order an operator to commence carriage of the station in question. 5. As an initial matter, we find that WQHB apparently meets all the requirements to be considered a must-carry station. We further find that the event which triggers the time within which WQHB was required to file a complaint with the Commission is Phoenix's letter of November 19, 1997 in which Phoenix denies WQHB's request for carriage. WQHB filed its petition on December 5, 1997 and thus WQHB's petition was timely filed. Section 76.56(b)(5) of the Commission's rules states that a cable operator is not required to carry the signals of more than one local commercial television station that is affiliated with a particular broadcast network. A television station, in order to be considered "local," must be assigned to the same television market as the cable system at issue. In the instant case, both WQHB and WMMP are affiliates of the UPN network. WQHB however is in the same Columbia, South Carolina ADI as Phoenix while WMMP is assigned to a different ADI, namely, the Charleston, South Carolina ADI. As a result, we find that WMMP is not deemed to be a "local" station with respect to carriage rights on Phoenix's cable system. We further find that Phoenix's denial of carriage based upon the Commission's network non-duplication rules is without merit. The Commission's network nonduplication rules merely require a cable operator to black out network programming from a from a distant television station when a local television station has exclusive rights to the same programming. The network non-duplication rules do not preclude the carriage of any television station. Consequently, the Commission's network nonduplication rules have no application to a station's must-carry status. Accordingly, we will order Phoenix to commence carriage of WQHB's signal on its cable system serving the Communities. V. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED that, pursuant to Section 614 of the Communications Act of 1934, as amended, 47 U.S.C.  534, and Section 76.56(b)(5) of the Commission's rules, 47 C.F.R. 76.56(b)(5), the Petition for Special Relief (CSR-5174-M) filed by McLaughlin Broadcasting, Inc., licensee of WQHB(TV), IS GRANTED. 7. IT IS FURTHER ORDERED that Phoenix Concept Cablevision, Inc. SHALL COMMENCE CARRIAGE of the signal WQHB(TV) within sixty (60) days from the release date of this Order on its cable system serving the communities of Eutawville, Holly Hill, and Orangeville, South Carolina. 8. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau