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Order Granting Mandatory Carriage Complaint

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Released: July 23, 2013

Federal Communications Commission

DA 13-1614

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Gray Television Licensee, LLC
)
CSR-8781-M
Licensee of Station KSNB-TV in Superior,
)
Docket No. 13-106
Nebraska
)
)

v.
)
)

Zito Media, L.P.
)

MEMORANDUM OPINION AND ORDER

Adopted: July 22, 2013

Released: July 23, 2013

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

I.

INTRODUCTION

1. Gray Television Licensee, LLC, ("Gray Television"), licensee of commercial broadcast
television station KSNB-TV, channel 4, Superior, Nebraska ("KSNB") filed the above captioned must
carry complaint pursuant to Sections 76.7, 76.56, 76.57 and 76.61 of the Commission's rules,1 seeking to
ensure carriage of KSNB on cable systems operated by Zito Media, L.P. ("Zito Media").2 Zito Media
filed an opposition to this complaint,3 to which Gray Television filed a reply.4 For the reasons discussed
below, we grant Gray Television's complaint.

II.

BACKGROUND

2. Pursuant to Section 614 of the Communications Act of 1934, as amended (the "Act"), and the
implementing rules adopted by the Commission, commercial television broadcast stations, such as KSNB,
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 Company.6


1 47 C.F.R. 76.7, 76.56, 76.57 and 76.61(a)(1).
2 See Complaint for Carriage by Gray Television Licensee, LLC (CSR-8781-M), filed Apr. 12, 2013 ("Complaint").
3 See Answer Letter to Complaint for Carriage by Zito Media, L.P. (CSR-8781-M), filed Apr. 20, 2013 ("Answer").
4 See Reply to Answer to Complaint for Carriage by Gray Television Licensee, LLC (CSR-8781-M), filed May 1,
2013 ("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)
("Broadcast Signal Carriage Issues"). 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
, CS Docket No. 98-120, First Report and Order and
Further Notice of Proposed Rulemaking, 16 FCC Rcd 2598, 2606 15-16, 2610 28 (2001) ("First Report and
Order
"); see also 47 C.F.R. 76.64(f)(4).
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 Nielsen Media Research. 47 C.F.R. 76.55(e)(2).

Federal Communications Commission

DA 13-1614

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.7 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.8 The Commission has clarified that "broadcast stations may assert their carriage and channel
positioning rights at any time so long as they have not elected retransmission consent."9
3. Section 614 of the Act and Section 76.57 of the Commission's rules provide commercial
television stations with three possible channel positioning options to which they may assert their rights.
A commercial broadcast station may elect to be carried on: (1) the channel number on which the station is
broadcast over the air; (2) the channel number on which the station was carried on July 19, 1985; or (3)
the channel number on which the station was carried on January 1, 1992.10 These options are available to
stations that affirmatively assert their must-carry rights, as well as those that default to must carry.11 In the
event of a channel positioning conflict, the station that has made an affirmative election has priority over
the station that has defaulted to must carry status.12 If none of the statutory channel options are available
due to another commercial television or noncommercial educational station's affirmative election of
must-carry rights, a cable operator must place the signal on a channel of the cable system's choosing, so
long as that channel is included on the basic service tier.13 A broadcast station may also be carried on any
other channel number mutually agreed upon by the station and the cable operator.14
4. Cable systems must carry the digital broadcast signal of a station entitled to mandatory
carriage without downgrading the quality of its signal.15 Therefore, broadcast channels delivered to cable
systems in high definition ("HD") must be carried in HD.16 However, operators of small cable systems
that have 2,500 or fewer subscribers and are not affiliated with a large cable operator, or have an activated
channel capacity of 552 MHz or less are permitted, upon the granting of a waiver, to carry HD broadcast
signals in standard definition ("SD") digital or analog.17


7 See 47 U.S.C. 534; 47 C.F.R. 76.56; 47 C.F.R. 76.64(f)(2).
8 47 C.F.R. 76.64(f)(3).
9 Broadcast Signal Carriage Issues, 8 FCC Rcd at 4144 15 (1993).
10 See 47 C.F.R. 76.57(a). In its 2008 Declaratory Order concerning the carriage of digital broadcast television
signals, the Commission stated that for purposes of digital broadcasting channel positioning, a station's over-the-air
broadcast channel number is no longer identified by reference to its over-the-air radio frequency, but instead to its
Major Channel Number as carried in its PSIP. See Carriage of Digital Television Broadcast Signal: Amendment to
Part 76 of the Commission's Rules
, CS Docket No. 98-120, Declaratory Order, 23 FCC Rcd. 14254, 14258 15-16
(2008).
11 47 C.F.R. 76.57(f); Implementation of the Cable Television Consumer Prot. & Competition Act of 1992, 9
F.C.C.R. 6723, 6734 (1994) (" (clarifying that the choice of statutorily defined position is made by the station, not
by the cable system).
12 Broadcast Signal Carriage Issues, 9 FCC Rcd at 6734 (1994); see also 47 C.F.R. 76.57(f).
13 47 C.F.R. 76.57(f).
14 See id. at 76.57(d).
15 First Report and Order, 16 FCC Rcd 2598, 2629-30 ("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.").
16 Id.
17 Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules, CS Docket
98-120, 27 FCC Rcd 6529, 6548 (2012) ("Fifth Report and Order").
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Federal Communications Commission

DA 13-1614

5. Pursuant to Section 76.61 of the Commission's rules, if a cable operator denies carriage of a
broadcast station based on the failure of the station to deliver a good quality signal at the cable system's
principal headend, the operator must provide a list of equipment used to make measurements, the point of
measurement and a list and detailed description of the reception and over-the-air signal processing
equipment used, including sketches such as block diagrams and a description of the methodology used for
processing the signal at issue.18
6. Gray Television owns and operates KSNB, a full-power commercial television station
licensed to operate on channel 4 in Superior, Nebraska and broadcasting in HD.19 Nielsen Media
Research has assigned the station to the Lincoln-Hastings-Kearney, Nebraska, DMA (the "Lincoln
DMA"),20 which encompasses the communities Zito Media serves.21 The former licensee of KSNB,
Colins Broadcasting Corporation ("Colins Broadcasting") did not elect retransmission consent or must
carry for Zito Media cable systems located in the Lincoln DMA by the October 1, 2011 deadline for the
current cycle.22 Thus, under 76.64 of the Commission's rules, KSNB is deemed to have elected must
carry for the 2012-2014 carriage cycle.23 Colins Broadcasting sent a carriage demand to Zito Media on
January 15, 2013, to which Zito Media failed to respond.24 Gray Television, which acquired ownership of
KSNB on February 25, 2013, filed a must carry complaint asking the Media Bureau to compel Zito Media
to carry KSNB on its cable systems in the Lincoln DMA.25
7. In an answer to the Commission dated April 30, 2013, Zito Media denied all claims that it
was violating the Commission's must carry rules in choosing not to retransmit KSNB on its cable
systems. 26 Although Zito Media concedes that it receives KSNB's secondary multicast channel on
several of its systems, the cable operator asserts that it cannot receive the primary KSNB channel's VHF
signal at any of its headends.27 The cable operator has offered to coordinate with Gray Television to test
the station's VHF signal strength at each of its headends.28 However, Zito Media failed to provide any of
the technical information required for denying a carriage demand for failing to deliver a good quality
signal under Section 76.61(a)(2) of our rules in fact, it failed to respond at all.29
8. Gray Television's reply asserts that it has alternative means to deliver the station's
programing, including through the use of translators or another station's multicast channel.30
Additionally, Gray Television argues that given that its CBS affiliate, KOLN-TV, and its satellite, KGIN-
TV, both rebroadcast KSNB's primary stream in HD on their multicast channels, it is almost certain that
Zito Media also receives a good quality signal for KSNB. Accordingly, Gray Television requests that
Zito Media launch KSNB on each of the cable operator's systems in either SD or analog format on


18 47 C.F.R. 76.61(a)(2).
19 Complaint at 3 and n.11.
20 Id. 3 and n.12.
21 Id. at 3.
22 Id. at 1.
23 See 47 C.F.R. 76.64(f)(3).
24 Complaint at 2.
25 Id.
26 Answer at 1.
27 Id. at 2.
28 Id.
29 See 47 C.F.R. 76.61(a)(2).
30 Complaint at 4; Reply at 2.
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Federal Communications Commission

DA 13-1614

channel 4 and HD format on any system with greater than 2,500 subscribers and greater than 552 MHz
capacity.31

IV.

DISCUSSION

9. We grant Gray Television's petition and conclude that Zito Media is required to carry
KSNB's programming in the Lincoln DMA, and that it should carry the station's signal in HD unless it
qualifies for the exemption for small cable systems. Colins Broadcasting's January 15th letter was a
proper must carry demand and this election carried over to Gray Television as the new owner of KSNB.32
There appears to be no dispute that Gray Television and Zito Media serve the same local market and that
Gray Television has default must carry rights with respect to Zito Media's systems. Zito Media failed to
submit signal strength studies to support a showing that KSNB does not deliver a good quality signal to
Zito Media's cable system headend. Moreover, Gray Television has offered to undertake efforts
necessary to deliver a good quality signal, including purchasing and installing new equipment, using
translators or delivering the signal via another station's multicast channel.33
10. We find that KSNB should be carried in HD on channel 4. Pursuant to Section 614 of the
Act and Section 76.57 of the Commission's rules,34 KSNB is currently broadcast over the air on channel
4, its virtual channel,35 and it was historically carried on channel 4 on both July 19, 1985 and January 1,
1992.36 Therefore, although KSNB did not elect to be on channel 4 and is a default must-carry station, no
other station could have affirmatively invoked the right to appear on channel 4 under the options provided
in Section 76.57(a) of our rules; and, nothing prevents KSNB from asserting its rights to channel 4 at this
time.37 Zito Media is given 45 days from the first date KSNB delivers a signal to its system's principal
headend to comply with this mandate.38

V.

ORDERING CLAUSES

11. Accordingly,

IT IS ORDERED

that pursuant to Section 614 of the Communications Act of
1934, as amended, 47 U.S.C. 534, the must carry complaint filed by Gray Television Licensee, LLC,
licensee of commercial broadcast television station KSNB, channel 4, Superior, Nebraska, seeking to
ensure carriage of this station on cable systems operated by Zito Media, L.P.

IS GRANTED.

12.

IT IS FURTHER ORDERED

that Zito Media, LLP

MUST COMMENCE CARRIAGE



31 Reply at 3.
32 In the cable carriage context, the Commission has consistently held that the change of ownership or programming
of a station does not change its carriage status. See Telefutura Fresno LLC v. Echostar Commc'ns Corp., 18 FCC
Rcd 22940, 22943 11 & n.26(MB 2003) (citing cases).
33 Complaint at 4.
34 47 U.S.C. 614(6); 47 C.F.R. 76.57(a).
35 Reply at 1.
36 See 47 C.F.R. 76.57(a) & (f).
37 See Univision P'ship of NJ v. Comcast Cablevision of Danbury, Inc., 17 FCC Rcd 18327, 18327-28 3 (MB
2002) (even a default must carry station may invoke its right to be carried on its over-the-air channel at any time);
see also Implementation of the Cable Television Consumer Prot. & Competition Act of 1992, 9 F.C.C.R. 6723, 6734
53 (1994) (clarifying that the choice of statutorily defined position is made by the station, not by the cable system).
38 Broadcast Signal Carriage Issues, 8 FCC Rcd at 4144 15 (1993). ("[W]e believe that it is appropriate to give
cable operators up to 45 days to begin carriage of such station on its requested channel in order to allow the operator
time to comply with these notification requirements.")
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Federal Communications Commission

DA 13-1614

of KSNB in HD on channel 4 within 45 days of Gray Television Licensee, LLC's delivery of a good
quality signal to Zito Media, L.P.'s relevant cable system headend and to Zito Media, L.P.'s subscribers
receiving 30 days' notice concerning these service changes.
13. This action is taken under authority delegated by Section 0.283 of the Commission's rules.39
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division

Media Bureau


39 47 C.F.R 0.283.
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