*Pages 1--3 from Microsoft Word - 31010* Federal Communications Commission DA 03- 2759 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of: KTNC License, LLC v. Charter Communications Request for Mandatory Carriage of Television Station KTNC- TV, Concord, California ) ) ) ) ) ) ) ) ) ) ) ) CSR- 6157- M MEMORANDUM OPINION AND ORDER Adopted: August 28, 2003 Released: August 29, 2003 By the Deputy Chief, Policy Division, Media Bureau: I. INTRODUCTION 1. KTNC License, LLC (“ KTNC”), licensee of television broadcast station KTNC- TV (Ch. 42), Concord, California (“ KTNC- TV” or the “Station”) filed the above- captioned must carry complaint against Charter Communications (“ Charter”), for failing to carry KTNC- TV on its cable systems serving Gilroy, Morgan Hill and Santa Clara County, California. 1 No opposition to the complaint was received. II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues (“ Must Carry Order”), commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station’s market. 2 A station’s market for this purpose is its “designated market area,” or DMA, as defined by Nielsen Media Research. 3 A DMA is a geographic market designation that defines each television market exclusive of 1 Complaint at 1. 2 8 FCC Rcd 2965, 2976- 2977 (1993). 3 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 base on viewing patterns. See 47 U. S. C. § 534( h)( 1)( c). Section 76. 55( e) requires that a commercial broadcast television station’s market be defined by Nielsen Media Research’s DMAs. 47 C. F. R. § 76.55( e). 1 Federal Communications Commission DA 03- 2759 2 others, based on measured viewing patterns. 3. Pursuant to the Commission’s must carry rules, cable operators have the burden of showing that a commercial station that is located in the same television market is not entitled to carriage. 4 One method of doing so is for a cable operator to establish that a subject television signal, which would otherwise be entitled to carriage, does not provide a good quality signal to a cable system’s principal headend. 5 Should a station fail to provide the required over- the- air signal quality to a cable system’s principal headend, it still may obtain carriage rights because under the Commission’s rules a television station may provide a cable operator, at the station’s expense, with specialized equipment to improve the station’s signal to an acceptable quality at a cable system’s principal headend. 6 III. DISCUSSION 4. In support of its complaint, KTNC- TV states that it is a full power television station licensed to Concord, California, which is in the San Francisco- Oakland- San Jose DMA. 7 It states further that Charter operates cable television systems, which are also in the San Francisco- Oakland- San Jose DMA. 8 KTNC- TV asserts that it formally requested Charter to commence carriage of its signal on the three cable systems at issue, and that Charter initially responded that it would add KTNC- TV to the systems on or before January 1, 2003. 9 KTCN- TV asserts further that Charter changed that date to April 1, 2003 and, then, to June 3, 2003. 10 KTCN- TV maintains that on April 3, 2003, Charter informed the Station that it would not add KTCN- TV to the systems in question because two other stations Charter was carrying, but are licensed to another DMA, had each filed a Petition for Special Relief with the Commission seeking mandatory carriage status on the same systems here at issue. 11 KTCN- TV states that Charter has also indicated that it will not remove other non- must carry stations, licensed to the Monterey-Salinas DMA, it now carries to accommodate KTCN- TV’s must carry request. 12 In addition, KTCN- TV contends that Charter has not met the requirement that it provide one- third of its usable activated channel capacity to local stations. 13 KTCN- TV requests that the Commission order Charter to commence carriage of its signal on the cable systems in question. 14 5. Section 76.55( e) of the Commission’s rules provides that commercial television broadcast stations, such as KTCN- TV, are entitled to carriage on cable systems located in the same 4 See Must Carry Order, 8 FCC Rcd at 2990. 5 47 C. F. R. § 76.55( c)( 3). 6 Must Carry Order, 8 FCC Rcd at 2991. 7 Complaint at 2. 8 Id. 9 Id. and Exhibit Three (copy of an e- mail between two Charter employees that reads, in part: “[ w] e received confirmation from Mark Beech late afternoon on Fri., Nov. 22 that the signal of KTCN- 42 is received at the Charter Gilroy headend.”). 10 Id. and Exhibits Four and Five. 11 Id. and Exhibit Five 12 Id. at 4. 13 Id. at 3. 14 Id. at 5. 2 Federal Communications Commission DA 03- 2759 3 DMA. 15 As noted above, cable operators have the burden of showing that a commercial television station that it located in the same television market is not entitled to carriage. 16 We find that Charter has failed to meet its burden. Thus, we find that KTCN- TV is entitled to mandatory carriage on the Charter cable systems at issue. Based on the foregoing, we grant KTCN- TV’s complaint. IV. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended, 47 U. S. C. § 534, that the must carry complaint filed by KTCN License, LLC, licensee of television broadcast station KTCN- TV, Concord, California, against Charter Communications IS GRANTED. 7. IT IS FURTHER ORDERED that Charter SHALL COMMENCE CARRIAGE of the KTCN- TV signal on its cable systems serving Gilroy, Morgan Hill and Santa Clara County, California, within sixty (60) days from the date of the release of this Order. 8. This action is taken pursuant to authority delegated by Section 0.283 of the Commission’s rules. 17 FEDERAL COMMUNICATIONS COMMISSION Steven A. Broeckaert Deputy Chief, Policy Division Media Bureau 15 47 C. F. R. § 76.55( e). 16 See Must Carry Order, 8 FCC Rcd at 2990. 17 47 C. F. R. § 0.283. 3