******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 re: ) ) Complaint of Astroline Communications L. P. ) CSR-5109-M against Tele-Communications, Inc. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: January 27, 1998 Released: February 4, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Martin W. Hoffman, Esq., Trustee in Bankruptcy for the Estate of Astroline Communications, L. P., licensee of Station WHCT-TV (Channel 18), Hartford, Connecticut, has filed a "Complaint" with the Commission, pursuant to 76.61 of the Commission's Rules, claiming that, despite its requests, certain cable television subsidiaries of Tele-Communications, Inc. ("TCI"), operator of cable systems serving five Connecticut communities has refused to carry WHCT-TV, even though the station and each of TCI's systems are located in the Hartford-New Haven, Connecticut area of dominant influence (or "ADI"). TCI thereafter filed an "Opposition," and WHCT-TV replied to it, to which TCI filed a response, along with a motion for leave to file it. Subsequently, WHCT-TV filed comments on TCI's response, along with a motion for leave to file them, to which TCI filed a further response, together with a motion for leave to file it. SUMMARY OF THE PLEADINGS 2. In support of its complaint, WHCT-TV states that it is a full power commercial broadcast station assigned to the same ADI as TCI's systems, and that it ". . . stands ready to provide special equipment or technical assistance as necessary to assure good signal quality at Operators' headends. Any expense for such equipment or assistance will be borne by WHCT." According to WHCT-TV, it advised TCI, pursuant to  76.61(a)(1) of the Commission's rules, by letters dated June 27, 1997, from its General Manager, Joseph F. Hennessey, to each of TCI's five systems, that it intended to invoke its must-carry rights. According to WHCT-TV, however, TCI did not respond within thirty days to WHCT-TV's notice, as it was required to do pursuant to  76.61(a)(2) of the Commission's rules. Instead, representatives of TCI's systems at Branford and at Hartford jointly responded, by letter dated July 31, 1997, stating that WHCT-TV's must-carry request of June 27, 1997 was too late in view of WHCT -TV's prior request by letter dated March 7, 1997 that they had received. The TCI systems added that, since they had not responded to that request within thirty days, WHCT-TV was required to file its "Complaint" within sixty days thereafter, which it did not do. Citing the Bureau's prior decision in Complaint of Fant Broadcasting Company of Nebraska, Inc., the systems conclude that "WHCT's failure to file any complaints at the FCC by that date renders its carriage requests moot." In addition, the systems note that the station was off-the-air for nearly six years, and that it is only broadcasting pursuant to temporary authority pending a hearing which may result in revocation of its license. The systems claim, therefore, that it would be prudent to await the outcome of this hearing before adding the station, particularly in view of the fact that its programming is changing from the Worship Channel to the Informall Television Network, and it is unclear how this will serve the local public interest of TCI's subscribers. According to WHCT-TV, however, TCI's letter did not address the only criteria for denying a valid must-carry request--namely, a deficiency in signal quality or strength, duplicative signals, or an allegation that the systems had already allocated up to one-third of their activated channels to carriage of other local must-carry signals. Moreover, WHCT-TV contends that the cable operators improperly presume that they are the final judges of the public interest and it states that its letter dated March 7, 1997". . . was superseded by numerous discussions with cable system operators in an effort to work cooperatively with them so that carriage of WHCT's signal could commence when a full program schedule was aired." The station states that it, therefore, correctly filed the instant "Complaint" within sixty days of TCI's failure to respond within thirty days to the station's must-carry requests dated June 27, 1997, pursuant to  76.7(c)(4)(iii)(B) of the Commission's rules. 3. According to TCI, however, since WHCT-TV's "Complaint" was not filed within sixty days of TCI's failure to respond to the station's initial must-carry requests on March 7, 1997, the instant "Complaint" must be dismissed, pursuant to  76.7(c)(4)(iii) of the Rules. TCI explains that because it did not respond to WHCT-TV's carriage requests dated March 7, 1997 within thirty days, WHCT-TV had sixty days to file a timely "Complaint" with the Commission, pursuant to  76.7(c)(4)(iii) of the Commission's rules. Instead, the station mailed a second carriage request by letter dated April 4, 1997, after which, Mr. Hennessey was informed during a telephone discussion on April 17, 1997 with Matt Fleury, at the time, Director of Communications and Government for TCI of Central Connecticut, that TCI would not add WHCT-TV. Even if April 17, 1997 were the correct time to begin the pleading cycle, WHCT-TV's "Complaint" was due to be filed with the Commission on June 16, 1997. However, the station decided to request mandatory signal carriage a third time by letter dated June 27, 1997, to which TCI responded by letter dated July 31, 1997, stating that this carriage request was untimely, citing the Bureau's prior decision in Fant Broadcasting Company. According to TCI, this last carriage request does not re-start the Commission's schedule for filing a "Complaint," citing the Bureau's prior decisions in Horizon Broadcasting Corporation against Horizon Cable I Limited Partnership, and in Friendly Bible Church, Inc. TCI states that no conversations superseded WHCT-TV's initial carriage request by letter dated March 7, 1997, and adds that the station has provided no details of any discussions with cable operators concerning its carriage, including which operators were involved and when such discussions occurred. TCI also notes that WHCT-TV's continued operation is somewhat questionable, given the fact that it is presently being operated by a trustee in bankruptcy, and that its 1988 renewal application was designated for hearing on April 28, 1997 on misrepresentation issues. Therefore, the station is currently operating on an expired license, which may be revoked or denied at any time. In addition, WHCT-TV's programming is somewhat uncertain. WHCT-TV changed to an Infomercial home shopping format on August 1, 1997, and TCI contends that it is questionable whether mandatory carriage of the station would serve the public interest of subscribers in the Hartford ADI, particularly since the station's promise to carry local programming is merely speculative since WHCT-TV has yet to specify any such programming. 4. WHCT-TV contends, in reply, that TCI is not empowered to judge whether or not carriage of the station will serve the public interest, particularly insofar as this decision is based on a content judgement. Citing a declaration from Joseph F. Hennessey, the station explains that its prior letters of March 7 and April 4, 1997 were merely meant to be informational, letting cable operators know that the station was back on the air and opening discussions concerning eventual testing and carriage. "[T]hese letters were not intended to serve as an irrevocable invocation of the station's must carry rights," according to WHCT-TV. The station adds that it never had reason to believe that TCI would not carry it until it received TCI's letters dated July 31, 1997. Therefore, WHCT-TV previously had no reason to file a formal complaint with the Commission, particularly in view of the discussions between station and system representatives, including one of TCI's local attorneys, Howard L. Slater, between March and July 1997, during which time no one indicated that the systems would attempt to avoid mandatory carriage of WHCT-TV. In fact, during a subsequent meeting on October 23, 1997 between Mr. Slater and Mr. Hennessey, Mr. Slater stated that he ". . . could not reconcile . . ." the July 31, 1997 TCI letter with the prior discussions that he, and Hennessey, and others had had earlier. According to WHCT-TV, denial of the instant "Complaint" would undermine Commission policy and contravene the underlying purpose of the must-carry rules. The station argues that its "Complaint" was timely filed, but it also requests a waiver of  76.7 of the Commission's rules, if necessary, in light of its struggle and good faith attempts to perpetuate a local signal via cable carriage. 5. In response, TCI submits a "Declaration" from Mr. Slater stating that, although he represents several other cable systems, he does not represent TCI's and that this point was made clear to Mr. Hennessey. Therefore, Mr. Slater states that he did not, and could not, negotiate with WHCT-TV on behalf of TCI, and that he would not have been concerned with reconciling any inconsistencies between TCI's letter dated July 31, 1997 and prior discussions with the station. 6. In a further declaration, Mr. Hennessey states that he has no recollection of being informed by Mr. Slater that he did not work for TCI, and that he could not speak on its behalf. In fact, Mr. Hennessey contends that his memory is to the contrary, and he notes that TCI is listed as one of the clients of Mr. Slater's firm in the 1997 Martindale-Hubbell Legal Directory. Mr. Hennessey adds that WHCT-TV negotiated for carriage with seven other Connecticut cable systems that were represented either by Mr. Slater or by his firm, none of which argued that WHCT-TV's letter of March 7, 1997 barred it from later asserting mandatory carriage. Moreover, according to Mr. Hennessey, TCI's employee, Matt Fleury, clearly indicated that TCI would add WHCT-TV at least twice. Once, when he informed Mr. Hennessey that cable operators were required to give their subscribers sixty days notice of changes in their channel line-ups and again, when he informed Mike Lupo of Channel 10, Hartford, Connecticut, that TCI might not carry his station because of WHCT-TV's carriage rights. 7. In response, TCI suggests that WHCT-TV be subject to administrative sanctions for abuse of process in filing untimely and unauthorized pleadings, adding that since WHCT-TV first requested mandatory carriage in its letter of March 7, 1997, its "Complaint" was due to be filed in June 1997, but that the discussions with Mr. Mr. Slater and Mr. Fleury took place in July or later, well after WHCT-TV should have filed its "Complaint." In any event, any discussions with Mr. Lupo were hearsay and any statements made to him were done so confidentially, while Mr. Fleury's statements concerning notice were not meant to indicate that TCI would add WHCT-TV. In fact, the sixty day notice requirement was a reason to refuse to add the station, because it was uncertain that it would still be on the air in sixty days, given the fact that it had been off the air for six years, that it was operating on a challenged renewal application, and that it was being operated by a trustee in bankruptcy. Moreover, in his further declaration, Mr, Slater states that he repeatedly informed Mr. Hennessey that he "did no work" for TCI, although his friend and law partner, Burton B. Cohen, did, and that Mr. Cohen has since stated that he has never spoken with Mr. Hennessey about anything. DISCUSSION 8. As the Bureau previously explained in its decision in Friendly Bible Church, Inc., the Commission's rules concerning its must-carry complaint procedure are quite clear: "No must-carry complaint filed pursuant to  76.61 will be accepted by the Commission if filed more than sixty (60) days after the . . . denial by a cable television system operator of a request for carriage . . . ." In denying an application for review of Friendly Bible Church, Inc., the Commission explained that adoption of a time limit both for must-carry and for channel positioning complaints was appropriate, because it balanced the interests of broadcast stations in asserting their carriage rights, with the interests of cable systems in having certainty in their channel and carriage obligations to broadcasters, together with the interests of subscribers in having minimal viewing disruption and certainty of service. The Commission added that, if within thirty days of the cable operator's initial request for carriage or for channel position, the cable operator either denied it or did not respond to it, the cable system then only had sixty days to file a complaint with the Commission. 9. According to 76.55(e) of the Commission's rules, the market of commercial television broadcast station, such as WHCT-TV, is defined as its ADI. A commercial station is entitled to request carriage on any cable system operating in the same ADI. 47 C.F.R.  76.55(c). Both WHCT-TV and TCI's five systems are located in the same ADI. However, TCI maintains that WHCT-TV failed to file a complaint, as required by Commission rules, within sixty days after TCI either ignored or denied the station's initial letters dated March 7 and April 4, 1997, both of which requested mandatory carriage. TCI contends that, after the specified thirty day response period, WHCT-TV was bound to file a complaint within sixty days with the Commission, which would have been either by June 6, 1997 (after the first letter), or by July 7 1997 (after the second letter), which it did not do. Although TCI did not add the signal and did not respond to WHCT-TV's March 7, 1997 letter, WHCT-TV did not file its "Complaint" with the Commission until September 25, 1997, more than six months later. Even WHCT- TV referred to its letters dated March 7, 1997 as "the 'Must Carry request we originally sent out," and the fact that it also sent out later requests for carriage does not toll the Commission's filing period, nor has the station presented sufficient grounds to waive  76.7 of the Rules for other reasons. Because WHCT-TV's complaint was not filed within sixty days of Century's failure to respond to its original carriage request of March 7, 1997, its "Complaint" must be dismissed, pursuant to  76.7(c)(4)(iii)(B) of the Commission's Rules. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED, that the "Complaint" (CSR-5109-M), filed September 25, 1997, by Martin W. Hoffman, Esq., Trustee in Bankruptcy for the Estate of Astroline Communications, L. P., licensee of Station WHCT-TV (Channel 18), Hartford, Connecticut, IS DISMISSED as untimely filed. 11. This action is taken pursuant to authority delegated by 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau