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 Federal  Communications  Commission  FCC  01-  226 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 Paxson  Chicago  License,  Inc. 
 v. 
 21  st  Century  TV  Cable,  Inc. 
 Wedgewood  Communications 
 TV  Cable  of  Rensselaer 
 AT&  T  Broadband 
 Ameritech  New  Media 
 Mediacom  Communications  Corporation 
 Charter  Communications,  Inc. 
 Optel  Cable,  Inc. 
 Mediacom 
 Grand  Ridge  Cable  Co. 
 Western  Cable  Communications 
 Kraus  Electronic  Systems 
 Consumer  Cable  of  America 
 Application  for  Review  of  Order  of  the 
 Cable  Services  Bureau  Denying  Requests  for 
 Carriage 


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 CSR  5593-  M 
 CSR  5594-  M 
 CSR  5595-  M 
 CSR  5596-  M 
 CSR  5603-  M 
 CSR  5604-  M 
 CSR  5605-  M 
 CSR  5625-  M 
 CSR  5626-  M 
 CSR  5627-  M 
 CSR  5628-  M 
 CSR  5629-  M 
 CSR  5630-  M 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  August  9,  2001  Released:  August  15,  2001 
 By  the  Commission: 
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 Federal  Communications  Commission  FCC  01-  226 
 2 
 I.  INTRODUCTION 
 1.  The  Commission  has  before  it  an  Application  for  Review  filed  by  Paxson  Chicago 
 License,  Inc.  (“  Paxson”).  Paxson  seeks  review  of  an  order  issued  by  the  Cable  Services  Bureau  (the 
 “Bureau”)  which  denied  the  must  carry  complaints  of  television  station  WCPX-  DT,  Chicago,  Illinois 
 regarding  certain  Chicago-  area  cable  systems.  1  For  the  reasons  discussed  below,  we  affirm  the  Bureau’s 
 action  and  deny  Paxson’s  Application  for  Review. 


 II.  BACKGROUND 
 2.  Paxson  is  the  licensee  of  television  station  WCPX,  Chicago,  Illinois.  WCPX  broadcasts  an 
 NTSC  analog  television  service  on  channel  38  and  a  digital  television  service  on  channel  46.  2  Paxson  filed 
 13  must  carry  complaints  against  cable  operators  in  and  around  Chicago,  Illinois.  Paxson  requested  that 
 the  Commission  order  each  of  the  cable  operators  involved  to  replace  the  existing  WCPX  analog  service 
 with  a  downconverted  analog  version  of  the  digital  primary  Central  Time  feed  of  PAXTV  received  from 
 channel  46  and  place  the  remaining  five  channel  46  programming  streams  on  the  digital  portion  of  the  cable 
 systems  for  access  by  subscribers  that  have  digital  set-  top  boxes.  The  Bureau  consolidated  the  complaints 
 and  dismissed  Paxson’s  request.  The  Bureau  found  that  Paxson’s  request  was  inconsistent  with  the 
 Commission’s  Digital  Television  Broadcast  Signal  Carriage  Report  and  Order  and  Further  Notice  of 
 Proposed  Rule  Making.  3  The  Bureau  Order  noted  that  the  Commission  has  stated  that  television  stations 
 that  broadcast  in  both  analog  and  digital  modes,  like  Paxson’s,  cannot  assert  digital  carriage  rights  until 
 such  issue  is  resolved  in  the  pending  proceeding.  4 


 III.  DISCUSSION 
 3.  In  its  Application  for  Review,  Paxson  asserts  that  several  of  the  Commission’s  decisions  in 
 the  Digital  Must  Carry  Report  and  Order  are  flawed,  and  therefore  it  will  be  seeking  reconsideration  of 
 them.  Paxson  argues  it  was  erroneous  for  the  Bureau  to  dismiss  the  complaints  based  on  the  Commission’s 
 incorrect  decisions.  5  Paxson  also  submits  that  because  the  Commission  did  not  addresses  Paxson’s  dual 
 carriage  proposal  in  the  Digital  Must  Carry  Report  and  Order,  the  Bureau’s  action  involves  a  question 
 that  has  not  been  previously  decided.  6  Paxson  requests  that  the  Bureau’s  decision  be  reversed  and  the 


 1  Paxson  Chicago  License,  Inc.  v.  21  st  Century  TV  Cable,  Inc.,  et  al.,  Memorandum  Opinion  and  Order, 
 DA  01-  149  (rel.  Jan  23,  2001)  (“  Bureau  Order”).  Oppositions  to  Paxson’s  Application  were  filed  by  AT&  T  Corp., 
 Charter  Communications,  L.  L.  C.,  Mediacom  Communications  Corp.,  RCN  Cable  TV  of  Chicago,  Inc.,  and 
 TVCable  of  Rensselaer,  Inc. 
 2  The  digital  transmission  on  channel  46  includes  six  separate  multiplexed  programming  streams:  (1)  the 


 primary  Central  Time  feed  of  PAXTV;  (2)  PAXTV  east  coast  feed;  (3)  PAXTV  west  coast  feed;  (4)  The  Worship 
 Network;  (5)  The  Praise  Network;  and  (6)  The  TLN  Network.  Bureau  Order  at  ¶  2. 
 3  Bureau  Order  at  ¶  8,  citing  Carriage  of  Digital  Television  Broadcast  Signals;  Amendments  to  Part  76 


 of  the  Commission’s  Rules,  First  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  FCC  01-  22  (rel. 
 Jan.  23,  2001)  (“  Digital  Must  Carry  Report  and  Order”). 
 4  Bureau  Order  at  ¶  9,  citing  CS  Docket  No.  98-  120. 


 5  Paxson  Application  for  Review  at  3. 
 6  Paxson  claims  that  the  Commission  has  not  addressed  its  “Either-  Or”  proposal  to  allow  broadcasters  the 
 ability  to  elect  when  their  mandatory  carriage  signal  would  be  converted  from  analog  to  digital.  Id.  at  9. 
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 Federal  Communications  Commission  FCC  01-  226 
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 digital  carriage  complaints  reinstated  and  held  in  abeyance  until  the  Commission  responds  to  the  petitions 
 for  reconsideration  of  the  Digital  Must  Carry  Report  and  Order.  7 


 4.  In  opposition,  the  cable  operators  assert  that  Paxson  fails  to  demonstrate  that  the  Bureau’s 
 decision  satisfies  any  of  the  criteria  for  granting  review  and  therefore,  should  be  denied.  8  AT&  T  contends 
 that  the  Commission  resolved  the  legal  question  underlying  Paxson’s  complaints  when  it  released  the 
 Digital  Must  Carry  Report  and  Order,  and  the  legal  reasoning  and  conclusion  of  the  Bureau  Order  are 
 entirely  consistent  with  the  Commission’s  existing  rules.  9  RCN  maintains  that  the  Bureau  properly 
 interpreted  the  Commission’s  rules  and  policies  to  mean  that  rules  for  dual  carriage  of  analog  and  digital 
 formats  have  not  been  adopted.  10  Marcus  argues  that  Paxson’s  attempt  to  use  the  Application  for  Review 
 as  an  opportunity  to  redress  perceived  wrongs  in  the  digital  must  carry  rulemaking  is  an  insufficient  basis 
 for  reversing  the  Bureau  Order.  11 


 5.  After  reviewing  the  Application  for  Review  and  the  oppositions  thereto,  we  conclude  that 
 Section  614(  h)(  1)(  C)(  iv)  requires  that  a  must  carry  complaint  be  granted  or  denied  within  120  days  after 
 the  date  on  which  a  must  carry  complaint  is  filed.  12  To  satisfy  this  statutory  requirement,  Paxson’s 
 complaint  must  be  decided  on  the  merits  under  present  law  rather  than  dismissed  because  a  rulemaking  is 
 pending.  Although  the  Commission  is  considering  the  issue  of  mandatory  dual  carriage  in  the  context  of 
 the  Further  Notice  of  Proposed  Rulemaking  released  as  part  of  the  Digital  Must  Carry  Report  and  Order, 
 to  date  no  current  Commission  rule  entitles  television  stations  to  mandatory  carriage  of  both  an  analog  and 
 a  digital  signal  on  a  cable  system  or  entitles  a  station  broadcasting  both  digital  and  analog  content  to  elect 
 mandatory  carriage  of  the  digital  content,  multiple  streams  of  content,  or  a  downconverted  analog  version 
 of  the  digital  content  rather  than  the  broadcast  content  of  its  analog  service.  13  In  this  regard,  the 
 Commission  stated: 


 .  .  .we  have  received  comments  arguing  that  the  statute  requires  dual  carriage  or  that  the 
 statute  forbids  it.  It  is  our  view,  having  deliberated  extensively  on  this  question,  that 
 neither  of  these  views  prevail.  Based  on  the  record  currently  before  us,  we  believe  that  the 
 statute  neither  compels  dual  carriage;  nor  prohibits  it.  It  is  precisely  the  ambiguity  of  the 
 statute  that  has  driven  this  policy  debate.  In  order  to  weigh  the  constitutional  questions 
 inherent  in  a  statutory  construction  that  would  permit  dual  carriage,  we  believe  it 
 appropriate  and  necessary  to  more  fully  develop  the  record  in  this  regard.  Because  any 
 decision  requiring  dual  carriage  would  likely  be  subject  to  a  constitutional  challenge,  and 
 because  an  administrative  agency  can  consider  potential  constitutional  infirmities  in 
 deciding  between  possible  interpretations  of  a  statute,  we  are  compelled  to  further  develop 


 7  Id. 
 8  AT&  T  Opposition  at  1;  RCN  Opposition  at  4. 
 9  AT&  T  Opposition  at  2. 
 10  RCN  Opposition  at  4. 
 11  Marcus  Cable  Opposition  at  3. 
 12  47  U.  S.  C.  §  534(  h)(  1)(  C)(  iv). 


 13  See  Digital  Must  Carry  Report  and  Order,  ¶¶  112-  113.  See  also  ¶  57  ("  if  a  digital  broadcaster  elects  to 
 divide  its  digital  stream  into  several  separate,  independent  and  unrelated  programming  streams,  only  one  of  these 
 streams  is  considered  primary  and  entitled  to  mandatory  carriage.") 
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 Federal  Communications  Commission  FCC  01-  226 
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 the  record  on  the  impact  dual  carriage  would  have  on  broadcast  stations,  cable  operators 
 and  cable  programmers,  as  well  as  consumers.  We  believe  that  more  evidence  is  necessary 
 because  the  Supreme  Court  sustained  the  Act’s  analog  broadcast  signal  carriage 
 requirements  against  a  First  Amendment  challenge  principally  because  Congress  and  the 
 broadcasting  industry  built  a  substantial  record  of  the  harm  to  television  stations  in  the 
 absence  of  mandatory  analog  carriage  rules.  14 


 While  we  commend  those  broadcasters  already  on  the  air  with  digital  television,  based  on  the  limited  record 
 amassed  in  this  must  carry  complaint  proceeding,  we  have  no  basis  for  concluding  that  the  statute  requires 
 dual  carriage.  15  Accordingly,  we  deny  Paxson’s  must  carry  complaints.  Our  decision,  however,  is  without 
 prejudice  to  Paxson  refiling  its  complaints  should  the  Commission,  upon  review  of  the  record  developed  by 
 the  Further  Notice,  determine  that  dual  carriage  is  required  under  Section  614. 


 IV.  ORDERING  CLAUSES 
 6.  Accordingly,  IT  IS  ORDERED  that  the  Application  for  Review  filed  by  Paxson  Chicago 
 License,  Inc.  IS  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Magalie  Roman  Salas 
 Secretary 


 14  Id.  at  ¶  113. 
 15  Paxson  could  seek  to  have  its  digital  signal  carried  in  an  analog  format  if  it  returns  its  analog  spectrum. 
 See  Digital  Must  Carry  Report  and  Order,  ¶  2  (“  new  stations  that  transmit  only  digital  signals,  and  current 
 television  stations  that  return  their  analog  spectrum  allocation  and  convert  to  digital  operations,  must  be  carried”). 
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