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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#&a\  P6G;&P#"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2KKK:K"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7\{,W80,%0W*f9 xr G;X @4  @44 @4 @42\M K"7%!y.X80,X\  P6G;P"2a=5,&a\  P6G;&P #2e=5,&e4  pG;&$7jC:,9Xj\  P6G;XP%7nC:,|Xn4  pG;X&W!@(#,h@\  P6G;hP'H5!,i,5\  P6G;,P\({,W80,%0W*f9 xr G;X*P:% ,J:\  P6G;JP\0_=5,%&_*f9 xr G;&X"i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\ S- X    S-  Federal Communications Commission`}(#<DA 981063 ă  yxdddy ՊPK #&a\  P6G;&P#Before the Federal Communications Commission  S-""Washington, D.C. 20554 ă  $F   $F In re:j) j)  S-Complaint of Telecinco, Inc. againstj)ppCSR5082M Teleponce Cable TVj) j) Petition for Reconsiderationj)  S -  MEMORANDUM OPINION AND ORDER lU  S -X` hp x (#%'0*,.8135@8: (] yOX-ԍ5 U.S.C.A. 556(d).> which states that "except as otherwise provided   =by statute, the proponent of a rule or order has the burden of proof." In this case, states Teleponce, the   >moving party was WORATV and it had the burden of persuasion in demonstrating its eligibility for   carriage. However, despite the fact that WORATV failed to persuade the Commission that it was not   a duplicative station, Teleponce argues that the Commission, without further inquiry, applied a procedurally unfair standard upon its cable system.  S- 4. In opposition, WORATV states that after having demonstrated its qualifications for carriage on   Teleponce's cable system pursuant to Commission requirements, Teleponce's only response was an   unsubstantiated statement to the effect that it ". . . was not obligated to honor WORATV's request   because of its duplicative programming of TeleOnce." WORATV states that a further amendment to   kTeleponce's response offered only the channel number of the alleged duplicative station. WORATV   points out that in its December 30th decision the Commission noted that Teleponce had failed to provide   any information in support of its allegation of duplication and it correctly ordered carriage of WORATV   on Teleponce's system. WORATV states that only now, in its petition for reconsideration, does   Teleponce finally offer information in support of its allegation. However, WORATV argues that the   submission of this information is far too little and far too late as the Commission's Rules make it quite   lclear that it will not consider new information presented in a petition for reconsideration unless a)   jcircumstances have changed, b) new facts have been discovered which could not previously been learned,  S(-  or c) overriding public interest concerns require the consideration of the new material.?(( (] yO%-ԍ47 C.F.R. 1.106(c).? WORATV  S-maintains that none of these circumstances apply in the instant proceeding. " ,`(`(88\"Ԍ S- ]ԙ5. It argues that Teleponce clearly had access to the belated information now presented and had two   previous opportunities during the pendency of the original complaint to submit it. Moreover, WORATV   states that Teleponce's presumption that the Commission's own programming records would substantiate  S-  its case is clearly misplaced. WORATV points to Colorado Radio Corp. v. FCCJ(] yO-ԍ118 F. 2d 24, 26 (D.C. Cir. 1941).J in which it was stated  Sb-  that "We cannot allow the applicant to sit back and hope that a decision will be in its favor and, when it   kisn't, to parry with an offer of more evidence. No judging process in any branch of government could  S-  operate efficiently or accurately if such a procedure were allowed."{ ZX(] {O -  KԍSee also Carolyn S. Hagedorn, 11 FCC Rcd 1695, 1696 (1996), citing, Payne of Virginia, Inc., 66 F.C.C. 2d   633, 637 (1977), in which the Commission held that a party who creates a partial record may not supplement that record only after a decision specifying the deficiencies of the record.{ However, WORATV states, this is   precisely the course that Teleponce has followed, given that the entire substance of its initial presentations  S-  were bare assertions of duplication that were only substantiated after a Commission Order pointed out   their deficiencies. WORATV argues that simply asserting unsupported propositions does not provide an  St-  opportunity to present new facts on reconsideration.h tz(] {O-ԍSee Idaho Broadcasting Consortium, 11 FCC Rcd 5264 (1996).h Further, WORATV states that, despite Teleponce's   expectation, the Commission is under no obligation to seek additional information to shore up a party's  S$ -  defective showing. As stated in Carolyn S. Hagedorn, supra, $ (] {O-  ԍ11 FCC Rcd at 1696, citing, Colorado Radio, 118 F. 2d at 27; KXYZ Television, Inc., 8 F.C.C. 2d 937, 952 (Rev. Bd. 1967). "Neither the Commission nor its staff is   =responsible for making an applicant's case; an applicant must either take the initiative to present its case   fully and completely at the outset, or bear fully the risk that its showing will be found inadequate."  S -  WORATV argues in conclusion that it has made a prima facie case that it is entitled to carriage on   [Teleponce's cable system. WORATV maintains that it was Teleponce's responsibility to either grant it   carriage or to demonstrate that the must carry provisions were not applicable in this instance. WORATV   states that Teleponce failed to do either. It cannot now be allowed to belatedly submit evidence in support of its prior claims.  S- 6. In reply, Teleponce argues that WORATV's sole objection rests on the submission of information   demonstrating the duplicate nature of its programming. Teleponce states that nowhere in its pleading does   WORATV dispute a) the fact that its programming is indeed duplicative to that of WSURTV; b) that   [Teleponce is in compliance with the must carry rules by carrying the closest of two duplicative stations;   Lor c) the fact that WORATV is a fulltime affiliate under a multiyear Affiliation Agreement. Teleponce   yargues that WORATV is, in essence, asking the Commission to ignore the facts at issue here and compel   carriage of its signal. Teleponce points out, however, that the Commission has the authority to recognize  S-  overriding public interest concerns to insure that the law is justly applied to the facts. f (] yO"-  ԍSection 1.3 of the Commission's rules permits waiver of any provision of the rules if good cause is shown. 47 C.F.R. 1.3. Moreover,   Teleponce continues, it is manifest that a proper determination necessarily requires that all pertinent facts  SX-  be before the Commission for review. X (] {O&-  ԍSee Thomas M. Slaten, 39 FCC 2d 16 (1972), in which it was stated "[T]hat administrative necessity will establish sufficient 'good cause' for waiver where no element of bad faith is evident." In this instance, Teleponce maintains that WORATV seeks to"X ,`(`(88"   deny such review over a procedural point and demand that cable subscribers receive two identical local   broadcast signals. However, Teleponce states that in order to prevent such duplicative carriage, an   overriding public interest requires the consideration of the material submitted in its reconsideration request.   In addition, Teleponce argues that the cases cited by WORATV in support of its position are misplaced.  S`-  \For instance, Colorado Radio, supra, involved an attempt at a virtual retrial of a case by exploring an  S:-  [ancillary issue which raised new questions not discussed previously, while Carolyn S. Hagedorn, supra,  S-  involved whether facts solely in the possession of one individual applicant could be presented upon   reconsideration when their impact had not been explored. Teleponce states that here, by contrast, it is not   only seeking reconsideration on a topic that is extremely concise and wholly integral to the issue of   .WORATV's demand for carriage, but the facts presented are actually more available to WORATV and   @have a decided impact on the outcome of this proceeding. By submitting information with its   reconsideration, Teleponce concludes that it legitimately avails itself of an administrative procedure   designed to permit the review of an underlying decision in order that the law is properly applied to the facts.  S -@ DISCUSSION ă   .7. We are not persuaded by the arguments raised by WORATV herein and will accept the showing   submitted by Teleponce. Initially, we should note that Teleponce was in error in its belief that the burden   of proving WORATV's duplicative nature in this instance was the responsibility of WORATV. In  S-  .instances where, as the result of a formal must carry complaint, a cable operator objects to a demand for   ]carriage on its system for whatever reason, it is the responsibility of that operator to provide any   information necessary to support its objection. Contrary to Teleponce's contention, under the   kCommission's must carry rules, cable operators have the burden of showing that a commercial station  SD-  located in the same ADI is not entitled to carriage.D(] {O-ԍSee Report and Order in MM Docket 92259, 8 FCC Rcd 2965, 2990 (1993) ("Must Carry Order"). We find, however, despite WORATV's assertions,   kthat there is an overriding public interest concern in considering the material submitted by Teleponce,   -particularly as this information is integral to the question of WORATV's must carry status on Teleponce's cable system.  S|-  N8. xAfter reviewing the showing submitted by Teleponce, we agree that the programming of WORA xTV substantially duplicates that of WSURTV and that Teleponce's carriage of WSURTV, as the  xduplicating station closest to its principal headend, is consistent with 76.56(b)(5) of the rules. Therefore, WORATV would not be entitled to carriage under the restrictions of this section. "Z,`(`(88"  S-1 ORDERING CLAUSES ă  S-  9. xAccordingly, IT IS ORDERED , pursuant to 1.106 of the Commission's Rules, that the petition  S- xfor reconsideration filed on behalf of Teleponce Cable TV IS GRANTED and the Commission's December 30, 1997 decision granting WORATV's complaint against Teleponce is rescinded.  S- 10. xThis action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@ x` `  hh@William H. Johnson, Deputy Chief x` `  hh@Cable Services Bureau