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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) CSR-4723-M The Vacation Channel, Inc. ) ) Against ) ) Rural Missouri Cable TV Inc. ) Branson, MI ) ) Complaint for Mandatory Carriage ) MEMORANDUM OPINION AND ORDER Adopted: August 29, 1996 Released: September 6, 1996 By Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Before the Commission is the captioned petition filed by The Vacation Channel Inc., licensee of low power commercial television station, K31DV, Branson, Missouri, requesting mandatory carriage of its signal on the cable system operated by Rural Missouri Cable TV Inc. ("Missouri Cable") in the community of Branson, Missouri. Missouri Cable filed an opposition to the petition as did GEP, Inc., licensee of low power commercial television station K05JQ-TV ("TV-5"), which is currently carried on Missouri Cable's system serving Branson. K31DV filed a consolidated reply to the oppositions, TV-5 filed comments to the consolidated reply, and K31DV filed a motion to strike and reply to TV-5's comments. 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 patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air and cable television viewing are included. 3. A low power television station serving a community of license that is located within the same ADI has a right of carriage on that cable system subject to several limitations. To secure carriage the station must be found to be a qualified low power station. To be considered a qualified low power station, a low power station must (1) broadcast for at least the minimum number of hours of operation required under 47 C.F.R. Part 73; 2) adhere to Commission requirements regarding nonentertainment programming and employment practices and the Commission determines that the programming by the LPTV station would address local news and informational needs which are not being adequately served by full power television broadcast stations because of geographic distance of such full power stations from the low power station's community of license; 3) comply with interference regulations consistent with its secondary status; 4) be located no more than 35 miles from the cable system's headend and delivers to the principal headend an over-the-air signal of good quality; 5) the community of license of the station and the franchise area of the cable system are both located outside the largest 160 Metropolitan Statistical Areas (MSA's) on June 30, 1990, and the population of such community of license on that date did not exceed 35,000; and 6) there is no full power television broadcast station licensed to any community within the county or other political subdivision (of a State) served by the cable system. In addition cable systems with over 31 channels need only carry one qualified low power station SUMMARY OF PLEADINGS 4. K31DV states that it is currently being carried on Missouri Cable's system serving Branson pursuant to a commercial leased access agreement. K31DV maintains that the loss of revenues under that agreement, which K31DV maintains amounts to more than $100,000 annually, is the reason why its request for mandatory carriage has been denied by the cable operator. In support of its petition for mandatory carriage, K31DV asserts that it is a "qualified low power station" as that term is defined in Section 76.55(d) of Commission rules. Further, K31DV asserts that it meets all criteria set forth in Section 76.56(b)(3) of the Rules. 5. K31DV notes that Missouri Cable's system has at least 31 activated channels and only carries 4 local commercial stations and therefore is not devoting one-third of its channel capacity to the carriage of local commercial stations. As a result, K31DV states that, pursuant to Section 76.56(b)(3) of Commission rules, Missouri Cable is required to carry at least one qualified low power station on its system serving the community at issue. K31DV maintains that Missouri Cable fails to meet that requirement even though the cable system is currently carrying a low power commercial station, i.e., TV-5, on its Branson system. TV-5, argues K31DV, can not be classified as a "qualified" low power station because it does not provide local news or informational programming to the Branson community. K31DV asks therefore that the Commission grant its request for mandatory carriage as a qualified low power station on Missouri Cable's system Branson cable system. 6. Missouri Cable, in its opposition, asserts that it has met all must-carry obligations with respect to the carriage of a local low power television station because it carries TV-5 on its system serving Branson. Missouri Cable notes that K31DV was advised of TV-5's carriage when it first requested mandatory carriage on the cable operator's system. In support of its opposition, Missouri Cable incorporates by reference an opposition filed by TV-5 which seeks to demonstrate that that station, contrary to K31DV's allegations, is indeed a qualified low power station within the meaning of the Commission's rules. Finally, in its opposition, Missouri Cable questions the legitimacy of K31DV as a qualified low power station. Missouri Cable maintains that K31DV's programming day is devoted almost exclusively to repetitive, tourist-related commercial advertising with the exception of five-minute news breaks which are repeated two-to-four-times daily and of local weather reports which are repeated four-times per hour. 7. TV-5, in its opposition, sets forth details regarding its local news, informational and children's programming. In addition, TV-5 maintains that it satisfies all other requirements to be deemed a qualified low power station. TV-5 maintains that once a cable operator makes the initial determination that a station is a qualified low power station and commences carriage of that station pursuant to its mandatory carriage obligations, the Commission is without authority to supplant the cable operator's decision for its own. Alternatively, TV-5 maintains that it is a qualified low power station which is entitled to mandatory carriage on Missouri Cable's system and that K31DV has not provided sufficient evidence to the contrary. 8. In its consolidated reply, K31DV responds to Missouri Cable's and TV-5's oppositions by stating that TV-5 has not presented sufficient evidence to support its allegation that it is a qualified low power station; therefore, Missouri Cable has failed to meet its obligation to carry at least one qualified low power station on its Branson system. K31DV asserts that TV- 5's allegation that it is a qualified low power station fails for two reasons. First, K31DV maintains that TV-5, as a result of recent programming changes, currently carries no local news and a de minimis amount of informational programming. Second, K31DV asserts that TV-5 does not provide a good quality signal over Missouri Cable's headend. In support of the latter assertion, K31DV states that its engineer performed tests of TV-5's signal quality and found that TV-5 achieved signal strength of -51.5 and -54 dBm, respectively. As additional evidence of TV-5's inadequate signal, K31DV's engineer noted that TV-5's signal was being delivered to Missouri Cable's headend over a translator station operating on Channel 61 and that a pre- amplifier was being used to boost the signal at the cable operator's headend. 9. K31DV argues that the Commission has determined that low power stations are not permitted to utilize translators or other special means to deliver the required minimum signal strength to a cable system's headend. By contrast, K31DV argues that it has demonstrated that it is a qualified low power station. Finally, K31DV maintains that the Commission is empowered to evaluate the qualifications of a low power station even where a cable operator has made an initial determination that a station meets those qualifications. 10. TV-5 comments, in response to K31DV's consolidated opposition, that the Commission has affirmed a low power station's ability to improve its signal in order to provide a good quality signal to a cable operator's headend. TV-5 then challenges the procedures utilized by K31DV to test TV-5's signal. Finally, K31DV filed a motion to strike and reply comments to TV-5's comments. K31DV maintains that TV-5 lacks standing to file pleadings in the instant case. In the alternative, K31DV argues that TV-5 has not disputed K31DV's assertion that TV-5 uses Channel 61 and preamplification to deliver its signal to Missouri cable's system, a practice which is contrary to Commission rules governing low power stations. DISCUSSION 11. As an initial matter, we find that the Commission has jurisdiction to consider whether a station is in compliance with Commission rules governing low power stations while adjudicating a related complaint for mandatory carriage. The Commission may also consider the comments of interested persons which in this instance is TV-5, a low power station that is currently being carried on the cable system at issue. Accordingly, we find that TV-5 is an interested party in this proceeding. 12. With regard to the substantive right of the Vacation Channel (K31DV) to carriage on the Missouri Cable system, the essential question presented is whether the system is already carrying a "qualified" low power station thereby satisfying in low power station carriage obligation of Section 614 of the Communications Act. With respect to TV-5's qualifications as a qualified low power station, we note that Section 614(h)(2) sets forth the definition of a "qualified low power station" which includes six requirements each of which must be met by a low power television station to be "qualified." A low power station is not "qualified" unless it "delivers to the principal headend of the cable system an over-the-air signal of good quality." Consistent with Congressional intent, the Commission has held that low power stations cannot become "qualified" by the use of additional equipment to provide the required good quality signal to a cable system principal headend. In this case there does not appear to be any real dispute the TV-5 does not deliver an "over-the-air" signal of good quality to the system. Rather, it has been stated by TV-5, without contradiction, that its signal is delivered over a "TV intercity relay" facility. In light of the foregoing, we find that, to the extent TV-5 makes use of additional equipment to provide the minimum required good quality signal to Missouri cable's principal headend, the station cannot be considered a qualified low power station. We conclude, therefore, that Missouri Cable is not meeting its obligation to carry at least one qualified low power station on its system serving Branson. In light of this conclusion, we need not other issues raised by K31DV's testing of TV-5's signal strength or TV-5's other qualifications for mandatory carriage. 13. In this proceeding, Missouri Cable and TV-5 each allege that Vacation Channel's LPTV station K31DV is not a qualified low power station because it does not provide local news and public affairs programming. K31DV has rebutted those allegations by declaring that it does in fact provide local programming and by listing its local and public affairs programs. No other allegations have been raised by Missouri Cable or by TV-5 concerning K31DV's eligibility as a qualified low power station. We find therefore that K31DV has made a prima facie demonstration that it is a qualified low power station. Consequently, we will grant of Low Power Station K31DV the relief requested. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED, that the "Complaint" CSR-4723 filed by the Vacation channel, licensee of Low Power Television Station K31DV IS GRANTED in accordance with 614 (d)(3) of the Communications Act of 1934, as amended (47 U.S.C. 534) and 47 C.F.R. 76.56(b)(3). . 15. IT IS FURTHER ORDERED, that K31DV shall notify Rural Missouri Cable in writing of its channel position election (76.57 of the Commission's Rules), within thirty (30) days of the release date of this Memorandum Opinion and Order and that the affected cable system shall come into compliance with the applicable rules within sixty (60) days of such notification. 16. IT IS FURTHER ORDERED that The Vacation Channel, Inc.'s motion to strike IS DENIED pursuant to Commission rules which permit interested parties to file comments with respect to must-carry complaints. 17. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Ronald Parver, Assistant Chief Consumer Protection and Competition Division Cable Services Bureau