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                           Before the
               Federal Communications Commission
                     Washington, D.C. 20554



In the Matter of:

KSLS, Inc.

vs.

Continental Cablevision, Inc.

Request for Carriage of KSCI(TV)
San Bernardino, California
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CSR 4738-M



                    ORDER ON RECONSIDERATION

        Adopted:  December 20, 1999           Released:  December 27, 1999

By the Deputy Chief, Cable Services Bureau:

     I.   INTRODUCTION
1.     Joseph W. Aidlin, Thomas M. Frew, IV, and William D. Frew ("landowners/lessors"), owners of
the land which Continental Cablevision, Inc. ("Continental" or "Operator") occupies as successor lessee, filed
a Petition for Reconsideration in the above-captioned proceeding in which Continental was ordered to
commence carriage of KSCI(TV) ("KSCI" or the "Station"), San Bernardino, California.  KSLS, Inc.
("KSLS"), licensee of KSCI, filed an opposition to the Petition.
     II.  BACKGROUND
3.     Pursuant to Section 614 of the Communications Act of 1934, as amended by the Cable Television
Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), and implementing rules adopted by
the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of
1992, Broadcast Signal Carriage Issues Report and Order ("Must Carry Order"), 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 exclusively of others, based on measured viewing patterns.
4.     In its initial filing in this proceeding, KSCI requested that the Commission order Continental to
carry its signal on Continental's cable system serving Valencia and Newhall, California.   In opposition,
landowners/lessors argued that KSCI had neither negotiated with nor obtained their consent regarding the use
of their land, nor made any provision for payment of the consideration required to be paid under the lease in
question for any alteration of the use of their land.  In its comments, Continental indicated that even if it was
willing to carry KSCI on the system in question, it could not do so because the landowners/lessors objected to
the use of their real property without any variation or amendment to the terms of the lease agreement. In its
decision, the Bureau concluded:
     We do not agree with Continental that the lease as introduced into the record prevents KSCI's
     carriage.  According to the lease, Continental is required to pay a monthly rental based on the number
     of subscribers it serves multiplied by five cents.   There is nothing in the lease which requires either
     Continental or KSCI to pay the property owner anything as condition to locating KSCI's antenna on
     the premises.  The only limiting factor in the lease is the requirement that Continental's use of the
     property does not interfere with other users.
     V.   SUMMARY OF ARGUMENTS
6.     Landowners/lessors argue that the Bureau Order granting KSCI's mandatory carriage rights on
Continental should be modified to require Continental to obtain "the consent and agreement of the
landowners" before any additional equipment is placed on the cable Operator's tower.  Landowners/lessors
contend that reconsideration of the Bureau Order is also needed because the directives in the Bureau Order
constitute a violation of the landowners/lessors' Fifth Amendment rights.  Landowners/lessors maintain that
the Bureau Order violates their property rights by requiring Continental to carry KSCI, thus allowing the
placement of KSCI's equipment on their property, without additional compensation or prior approval. 
Landowners/lessors maintain further that they will suffer economic losses as a result of the Bureau Order
because it limits the size of the available area that landowners/lessors may lease to others.  Also,
landowners/lessors contend that it was not their intention to give Continental unlimited use of the land. 
Landowners/lessors assert that, otherwise, their rental agreement with Continental would have included
provisions for additional monthly consideration.  Finally, landowners/lessors argue that neither Section 614
of the Communications Act of 1934 nor the Commission's rules authorize the Cable Services Bureau
("Bureau") to interfere with or limit the property rights of landowners.
7.     In opposition, KSLS points out that the Bureau granted the must carry complaint only after it
concluded that the installation of the KSCI antenna on the Continental tower would not contravene the
provisions of the Aidlin et al.-Continental lease.  In fact, KSLS notes, the Bureau Order concluded that "[t]he
only limiting factor in the lease is the requirement Continental's use of the property does not interfere with
other users."  KSLS maintains that the landowners/lessors have not presented any evidence of such
interference on the Aidlin property.  KSLS maintains further that the issues landowners/lessors are
concerned with are contractual in nature rather than constitutional.  KSLS argues that the Commission "has
no jurisdiction to rewrite the terms of the Aidlin lease agreement or discern Aidlin's intent in drafting that
document."  Moreover, KSLS avers, "[t]he simple fact is that there is nothing in the agreement which
prohibits placement of KSCI's antenna on [the] Aidlin property." Thus, it argues, the instant Petition should
be denied.
     VIII.     DISCUSSION
9.     Though the landowners/lessors have labeled their concerns as "constitutional issues," they only
repeat the allegations and issues raised in the earlier proceeding.  Those concerns and issues were discussed,
analyzed, and fully addressed in the Bureau Order and, because no new issues or facts were presented here,
they need not be discussed again. The Bureau's conclusion that KSCI could place an antenna on Continental's
tower located on the landowner/lessors' property was clearly based on the provisions and language of the
governing document, the Aidlin et al.-Continental lease agreement.  Thus, we agree with KSLS that the issues
raised by the landowners/lessors are contractual rather than constitutional in nature.  As noted in the Bureau
Order, the only limitation the Aidlin et al.-Continental lease agreement placed on Continental was the
requirement that Continental's use of the property does not interfere with other users.  No such interference
or disruption to others has been shown to exist.  Moreover, the Bureau's directive is neither a per se physical
taking of private property nor a per se regulatory taking that deprives landowners/lessors of all the viable use
of their property.  Ownership of the property continues with landowners/lessors.  Landowners/lessors invited
Continental to take possession of property within the leasehold as long as two conditions are met.  The first
condition was that Continental's use of the property does not interfere with other users, and the second
condition was that Continental "pay a monthly rental based on the number of subscribers it serves multiplied
by five cents."  It appears that Continental has complied with both.  Finally, we note that regardless of any
other problems that Continental may encounter, it is required to provide carriage of KSCI.  The manner in
which it provides KSCI to the communities in question is left to Continental's discretion.
     X.   ORDERING CLAUSES 
11.     Accordingly, IT IS ORDERED, that the Petition for Reconsideration filed by Joseph W.
Aidlin, Thomas M. Frew, IV, and William D. Frew IS DENIED.
12.    This action is taken pursuant to authority delegated under Section 0.321 of the Commission's
rules.

                              FEDERAL COMMUNICATION COMMISSION

                              William H. Johnson
                              Deputy Chief, Cable Services Bureau