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Order Granting Mandatory Carriage Complaint

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Released: September 26, 2012

Federal Communications Commission

DA 12-1539

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Smith Media License Holdings, LLC
)
Licensee of Station KEYT-TV,
)
Santa Barbara, California
)
CSR-8647-M
)
Docket No. 12-150
v.
)
)

Time Warner Cable Inc.
)

MEMORANDUM OPINION AND ORDER

Adopted: September 25, 2012

Released: September 26, 2012

By the Senior Deputy Chief, Policy Division, Media Bureau:

I.

INTRODUCTION

1. Smith Media License Holdings, LLC (“Smith Media”), licensee of KEYT-TV, Santa Barbara,
California (“KEYT”), has filed a must carry complaint1 pursuant to Sections 76.7 and 76.61 of the
Commission’s rules2 against Time Warner Cable Inc. (“TWC”), seeking high definition digital carriage
on the latter’s cable system serving six communities in western Ventura County, California. TWC filed
an opposition to the complaint3 to which Smith Media replied.4

II.

BACKGROUND

1. Pursuant to Section 614 of the Communications Act of 1934, as amended (the “Act”), and the
implementing rules adopted by the Commission, local commercial television broadcast stations, such as
KEYT, are entitled to assert mandatory carriage rights on cable systems located within their market.5 A
station’s market for this purpose is its “designated market area,” or DMA, as defined by the Nielsen


1 Smith Media’s Complaint (CSR-8647-M), filed May 30, 2012 (“Complaint”).
2 47 C.F.R. §§ 76.7 and 76.61.
3 TWC’s Answer and Opposition to Complaint (CSR-8647-M), filed July 26, 2012 (“Opposition”).
4 See Reply of Smith Media License Holdings, LLC to Answer and Opposition of Time Warner Cable, Inc. (CSR-
8647-M), filed Aug. 8, 2012 (“Reply”).
5 See Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal
Carriage Issues
, MM Docket No. 92-259, Report and Order, 8 FCC Rcd 2965, 2975-77, ¶¶ 41-46 (1993) (“Must
Carry Order
”). The Commission has subsequently extended mandatory carriage rights to digital television stations
under Section 614(a) of the Act and has amended its rules accordingly. See Carriage of Digital Television
Broadcast Signals First Report and Order
, See 16 FCC Rcd 2598, 2606 ¶¶ 15-16, 2610 ¶ 28 (2001) (“DTV Must
Carry Order
”); see also 47 C.F.R. §76.64(f)(4).

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Company.6
2. Pursuant to Section 325 of the Act and the Commission’s rules adopted in the Must Carry
Order, no commercial television broadcast signal may be retransmitted on a cable system without the
express authority of the originating station.7 This authority may be expressed by a station's election of
mandatory carriage pursuant to Section 614 of the Act, or by its election of retransmission consent.
Television stations having mandatory carriage rights make their carriage elections at three year intervals
for each cable system on which they wish to be carried.8 A station failing to elect retransmission consent
by the October 1st carriage election deadline prior to each three year carriage cycle defaults to must carry
status.9 Furthermore, cable systems must carry the digital broadcast signal of a station entitled to
mandatory carriage without downgrading the quality of its signal.10 Therefore, broadcast channels
delivered to cable systems in high definition (“HD”) must be carried in HD.11
3. Smith Media owns and operates station KEYT in the Santa Barbara-Santa Maria-San Luis
Obispo, California, DMA (the “Santa Barbara DMA”).12 Although Ventura County is located in the Los
Angeles DMA, in 1995 the Commission had issued a market modification order adding the Ventura
County communities of Ojai, Oxnard, Santa Paula, Camarillo, and Ventura – the “western Ventura
County” communities – to KEYT’s market .13 However, the Commission did not add the Ventura County
communities of Agoura Hills, Calabasas, Fillmore, Moorpark, Port Hueneme, Port Hueneme Naval
Center, Simi Valley, Thousand Oaks, and Westlake Village – “eastern Ventura County” – to KEYT’s
market.14 KEYT argues that TWC’s system serving the communities that have been added to its market
in western Ventura County only carry KEYT in analog and/or standard definition (SD) digital formats
even though KEYT is a must-carry station and delivers its signal to this system in high definition (HD).15
Accordingly, on February 29, 2012, after Smith Media received no response from TWC,16 Smith Media
demanded that TWC carry KEYT in HD to the extent that KEYT is broadcast in HD,17 and it filed the


6 Section 614(h)(1)(C) of the Communications Act, as amended by the Telecommunications Act of 1996, provides
that a station’s market shall be determined by the Commission by regulation or order using, where available,
commercial publications which delineate television markets based on viewing patterns. See 47 U.S.C.
§ 534(h)(1)(C). Section 76.55(e)(2) of the Commission’s rules specifies that a commercial broadcast television
station’s market is its Designated Market Area as determined by The Nielsen Company. 47 C.F.R. § 76.55(e)(2).
7 See 47 U.S.C. § 325, Must Carry Order, 8 FCC Rcd 2965, 2996, ¶ 129, et seq. (1993).
8 See 47 U.S.C. § 534; 47 C.F.R. § 76.56; 47 C.F.R. § 76.64(f)(2).
9 47 C.F.R. § 76.64(f)(3).
10 Carriage of Digital Television Broadcast Signals, 16 FCC Rcd 2598, 2629-30 (January 23, 2001) (“First Report
and Order
”) (“Consequently, in the context of mandatory carriage of digital broadcast signals, a cable operator may
not provide a digital broadcast signal in a lesser format or lower resolution than that afforded to any digital
programmer (e.g., non-broadcast cable programming, other broadcast digital program, etc.) carried on the cable
system, provided, however, that a broadcast signal delivered in HDTV must be carried in HDTV.”).
11 Id.
12 Complaint at 3.
13 See id. (citing Smith Broad. of Santa Barbara, Ltd., 10 FCC Rcd 9447, 9454 ¶ 19 & 9453 ¶ 13 (CSB 1995)).
14 See id. Reply at 5-7.
15 Complaint at 1-2.
16 Id. at 2 & n.3 (citing Declaration of Michael Granados, attached thereto).
17 Id. at 1-2.
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instant must carry Complaint asking the Media Bureau to compel TWC to carry KEYT in HD.18
4. TWC has filed an Opposition to the Complaint, arguing that Smith Media elected
retransmission consent for KEYT in Ventura County and had not defaulted to must-carry status eligible
for HD carriage as alleged in Smith Media’s complaint.19 To substantiate this position, TWC relies on a
November 15, 2010, letter by which it argues Smith Media expressly granted rolling retransmission
consent to TWC until such time as Smith Media revoked this retransmission consent by providing at least
sixty days written notice.20 TWC notes that Smith Media has never revoked this consent and thus could
not have elected or defaulted to must-carry status for the 2012-14 carriage cycle.21
5. In its Reply, however, Smith Media responds that its November 15th letter merely grants
consent that TWC may retransmit KEYT’s signal on TWC’s cable systems serving eastern Ventura
County – which lie wholly outside KEYT’s market.22 In other words, Smith Media asserts its November
15th letter did not elect retransmission consent with respect to the cable system serving the western
Ventura County communities that were added to its market in 1995.23 Instead, the November 15th letter
states it concerns certain “out-of-market communities.”24 Furthermore, Smith Media attaches a chain of
emails between TWC and KEYT personnel, which discuss whether a grant of retransmission consent
would be necessary for carriage of KEYT on certain out-of-market TWC systems that were not subject to
Smith’s market modification and that are standalone systems, not connected to KEYT’s must-carry
market.25 Accordingly, KEYT argues it remains a default must carry station with respect to these western
Ventura County communities.26

III.

DISCUSSION

6. TWC has failed to disprove record evidence submitted by KEYT indicating that KEYT’s
grant of retransmission consent applies only to TWC’s systems located in eastern Ventura County, and
not to TWC’s system in western Ventura County.27 Furthermore, we disagree with TWC and find that
KEYT is a must-carry station in western Ventura County. Because KEYT broadcasts in HD, the
Commission’s rules require TWC to carry KEYT’s signal in HD.28 Accordingly, we will order TWC to


18 Id. at 5.
19 Opposition at 3.
20 Id. at 3 & n.8 (citing Exhibit A, Letter from Michael Granados, CEO, Smith Media, LLC, to Carrie Bocian, Senior
Director/Programming,TWC, Nov. 15, 2010) (“November 15th Letter”)).
21 See id. at 4-5.
22 Reply at 5-7.
23 Id. at 6-7 & n.23 (stating that KEYT had not made any election for the western Ventura County system for the
2009-2011 carriage cycle and had defaulted to must-carry status for that cycle, and therefore it would have been
unnecessary and inappropriate for it to elect retransmission consent on that system during 2010).
24 Reply at Exhibit A, November 15th Letter.
25 See Reply at Exhibit 3 (Email from Kevin Latek, Counsel for KEYT to Sarah Sully, Assistant Chief Counsel and
Carrie Bocian, Senior Director/Programming, Oct 29, 2010).
26 See Reply at 7 (“KEYT-TV was must-carry on the western Ventura system in 2010, and it remains so today.”).
Furthermore, Smith Media argues its “granting” of retransmission consent did not constitute the proper “election” of
retransmission consent necessary for in-market system carriage pursuant to the Commission’s rules. Id. at 3-5.
27 Nor has TWC disputed that KEYT delivers a good quality signal to TWC’s systems.
28 See supra note 10 (citing First Report and Order, 16 FCC Rcd at 2629-30).
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carry KEYT in HD on its cable system serving the communities at issue in western Ventura County.

IV.

CONCLUSION

7. We find that KEYT is a local commercial television station broadcasting in HD, with
mandatory carriage rights on TWC’s cable system serving the western Ventura County communities of
Ojai, Oxnard, Santa Paula, Camarillo, and Ventura, California. Therefore we find that TWC must carry
KEYT in HD in the aforementioned cable system communities and we grant Smith Media’s mandatory
carriage complaint.

V.

ORDERING CLAUSE

8. Accordingly,

IT IS ORDERED

that the Mandatory Carriage Complaint filed by Smith
Media License Holdings, LLC, licensee of KEYT-TV, Santa Barbara, California

IS GRANTED

, and
Time Warner Cable, Inc.

SHALL COMMENCE CARRIAGE

of station KEYT-TV in High Definition
within 60 days of the release of this Order, on Time Warner’s cable system serving the Ventura County
communities of Ojai, Oxnard, Santa Paula, Camarillo, and Ventura, California.
9. This action is taken under authority delegated by Section 0.283 of the Commission’s rules, 47
C.F.R § 0.283.
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division

Media Bureau
4

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