Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-6043-M                   |
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| Rancho Palos Verdes              | ) |                              |
| Broadcasters, Inc.               | * |                              |
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| Lone Pine Television, Inc.       | * |                              |
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| Request for Carriage             | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: April 11, 2003** **Released: April 16, 2003**

By the Deputy Chief, Policy Division, Media Bureau:

# INTRODUCTION

1.  Rancho Palos Verdes Broadcasters, Inc., licensee of television
    broadcast station KXLA (Ch. 44), Rancho Palos Verdes, California
    ("KXLA") filed the above-captioned complaint against Lone Pine
    Television, Inc. ("Lone Pine"), for its failure to carry KXLA on its
    cable systems serving Lone Pine and Alabama Hills, California. An
    opposition to this petition was filed on behalf of Lone Pine to
    which KXLA replied.

# discussion

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.[^1] A station's market for this purpose is its "designated
    market area," or DMA, as defined by Nielsen Media Research.[^2]

3.  In support of its complaint, KXLA states that it is an authorized
    full-service UHF television station licensed to a community located
    within the Los Angeles DMA as are the communities served by Lone
    Pine. KXLA indicates that by letter dated September 27, 2002, it
    requested must carry status on the Lone Pine cable system, pursuant
    to Section 76.64(f) of the Commission's rules, beginning with the
    January 1, 2003 election period.[^3] KXLA states that Lone Pine
    denied this request on October 2, 2002 based on its inability to
    receive an adequate off-air signal from KXLA's Mt. Wilson
    transmitter site.[^4] KXLA states, however, that Lone Pine's denial
    failed to include any engineering showing to support its allegation
    of poor signal quality; a violation of Section 76.61(a)(2) of the
    Commission's rules.[^5] KXLA maintains that it can provide a good
    quality signal to Lone Pine's principal headend. It states that it
    has arranged for satellite delivery of its station, at its own
    expense, to other cable headends in the Los Angeles DMA and has
    advised Lone Pine that it is prepared to use this means of delivery
    if necessary.[^6] KXLA therefore requests that its complaint be
    granted and the Bureau order Lone Pine to commence carriage of its
    signal.

4.  In opposition, Lone Pine states that it operates two small cable
    systems serving rural California communities -- one cable system
    serves approximately 70 subscribers and the other approximately 500
    subscribers.[^7] Each system has fewer than 50 channels.[^8] Lone
    Pine argues that rough California hill country and nearly 250 miles
    separate KXLA's transmitter site from Lone Pine's rural
    headends.[^9] Lone Pine states that although it has been unable to
    conduct signal strength tests of KXLA's signal at its receive site
    because of weather conditions that preclude travel to that site, its
    experience is that it does not receive, and has never received, any
    measurable signal above channel 11.[^10] Lone Pine maintains that
    KXLA's purported delivery of its signal via satellite does not
    demonstrate that the station has any real plans or means to deliver
    an adequate off-air signal and its commitment to pay the costs of
    such delivery are therefore meaningless.[^11] In any event, Lone
    Pine points out that it is well settled that "cable operators need
    not employ extraordinary measures or specialized equipment in
    accommodating broadcast stations' carriage requests."[^12]

5.  In reply KXLA argues that because Lone Pine admits that it never
    tested KXLA's signal, any discussion of the station's signal quality
    and delivery is purely speculative and inconsistent with the
    requirements of Section 76.61(a)(2) of the Commission's rules
    governing signal testing standards.[^13] Absent any engineering
    documentation, KXLA maintains that Lone Pine's claim that KXLA's
    carriage should be denied on this basis is groundless.[^14] KXLA
    states that Lone Pine is also misplaced in its contention that
    broadcast stations do not have the prerogative to deliver a good
    quality signal by alternative means, at their own expense, or that
    satellite delivery is not an acceptable alternative.[^15] KXLA
    states that the Commission has never set forth an exhaustive list of
    permissible alternative means of delivery or excluded satellite
    technology from the "specialized equipment" of which broadcasters
    may avail themselves in order to "improve the station's signal to an
    acceptable quality."[^16] KXLA argues further that Lone Pine
    confuses Commission policy when it maintains that cable operators
    are not required to employ extraordinary measures or specialized
    equipment in accommodating broadcast stations.[^17] KXLA states that
    it appears that Lone Pine wishes to interpret the term
    "extraordinary measures" to extend to any broadcaster's effort to
    deliver a good quality signal via alternative means. Such an
    interpretation, however, would essentially repeal Section
    76.55(c)(3) of the Commission's rules and render meaningless "the
    obligation of a cable operator to cooperate with a station on signal
    issues."[^18] KXLA points out that both of the cases on which Lone
    Pine relies in support of this contention involve a situation in
    which the broadcast station was attempting to deliver its signal to
    a location other than the cable system's principal headend or the
    delivery option was premature.[^19] KXLA states that its offer to
    deliver its signal via satellite to Lone Pine's principal headend
    sites fully complies with any and all of the regulatory obligations
    imposed on broadcasters.[^20]

6.  We will grant KXLA's complaint. Initially, with regard to procedural
    issues, we note that the Commission's must carry requirements
    clearly set forth a two-part notification process with which
    stations are required to comply: the retransmission consent/must
    carry election notification required by Section 76.64(f) of the
    Commission's rules and the demand for carriage by qualified stations
    set out in Section 76.61(a) of the Commission's rules.[^21] From the
    evidence before us, we find that KXLA's September 27, 2002 letter to
    Lone Pine to be an election notice, pursuant to Section 76.64(f)(4)
    of the Commission\'s rules and not an actual demand for carriage
    pursuant to Section 76.61(a) of the rules.[^22] As a result, Lone
    Pine's October 2, 2002 response would not have triggered the 60-day
    complaint cycle required by Section 76.61(a)(5) of the Commission's
    rules.[^23] However, because the parties have filed responsive
    pleadings in this proceeding, we see no public interest reason to
    dismiss KXLA's petition and will accept KXLA's petition in order to
    assess its must carry rights.

7.  We find that the representations made by KXLA demonstrate that it is
    a local commercial television station qualified for carriage on Lone
    Pine's cable systems. Under 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 as a cable operator is not
    entitled to carriage.[^24] Although Lone Pine argued in its
    opposition that it could not receive KXLA's signal, it did not
    provide any engineering data to support this argument. Because of
    the lack of such data, we cannot conclude that KXLA does not provide
    a signal of good quality to Lone Pine's principal headends. In the
    event that KXLA does not provide a signal of good quality to Lone
    Pine's principal headends, KXLA's suggested delivery of its signal
    via satellite is an acceptable alternative pursuant to Section
    76.55(c)(3) of the Commission's rules.[^25]

# ORDERING CLAUSES

8.  Accordingly, **IT IS ORDERED** that the petition filed by Rancho
    Palos Verdes Broadcasters, Inc. **IS GRANTED** pursuant to Section
    614(d)(3) of the Communications Act of 1934, as amended, 47 U.S.C.
    §534. Lone Pine Television, Inc. **IS ORDERED** to commence carriage
    of KXLA on its cable systems serving Lone Pine and Alabama Hills,
    California, sixty (60) days from the release date of this order.

9.  **IT IS FURTHER ORDERED** that KXLA shall notify Lone Pine of its
    channel position elections within thirty days of the release date of
    this order, pursuant to Sections 76.57 and 76.64(f) of the
    Commission's rules.[^26]

10. This action is taken pursuant to authority delegated by Section
    0.283 of the Commission's rules.[^27]

    FEDERAL COMMUNICATIONS COMMISSION

    Steven A. Broeckaert

    Deputy Chief, Policy Division

    Media Bureau

[^1]: ^?^8 FCC Rcd 2965, 2976-2977 (1993).

[^2]: ^?^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 based on viewing patterns. *See* 47 U.S.C. §534(h)(1)(C).
    Section 76.55(e) of the Commission's rules, 47 C.F.R. §76.55(e),
    requires that a commercial broadcast television station's market be
    defined by Nielsen Media Research's DMAs. *See Definition of Markets
    for Purposes of the Cable Television Broadcast Signal Carriage
    Rules,* 14 FCC Rcd 8366 (1999)(*"Modification Final Report and
    Order"*).

[^3]: ^?^Complaint at Exhibit A; s*ee also* 47 C.F.R. § 76.64(f).

[^4]: ^?^Complaint at Exhibit B.

[^5]: ^?^*Id.* at 2; s*ee also* 47 C.F.R. § 76.61(a)(2).

[^6]: ^?^Complaint at 3.

[^7]: ^?^Opposition at 2.

[^8]: ^?^*Id.*

[^9]: ^?^*Id.* at 3.

[^10]: ^?^*Id.* at 2 n. 4, and 3; s*ee also* Exhibit A (Affidavit of
    Bruce Branson).

[^11]: ^?^Opposition at 4.

[^12]: ^?^*Id.,* citing *Jasas Corporation,* 14 FCC Rcd 7063, 7066
    (1999) (cable operator was not obligated to allow the station to
    install equipment at its microwave receive sites in order to
    transmit its signal). *See also Paxson Salt Lake City License,* 15
    FCC Rcd 7361, 7364 (2000) (broadcaster not entitled to must carry
    when extraordinary measures are required to deliver a good quality
    signal).

[^13]: ^?^Reply at 2; s*ee also* 47 C.F.R. § 76.61(a)(2).

[^14]: ^?^Reply at 2.

[^15]: ^?^*Id.* at 3; s*ee also* 47 C.F.R. § 76.55(c)(3) and *Paxson
    Communications Corporation,* 13 FCC Rcd 20972, 20973 (1998).

[^16]: ^?^Reply at 3, citing *Paxson Communications Corporation,* 13 FCC
    Rcd at 20973.

[^17]: ^?^*Id.* at 3.

[^18]: ^?^*Id.* at 4, citing *Jasas Corporation,* 14 FCC Rcd at 7065
    (citing *Must Carry Order,* 8 FCC Rcd at 2990).

[^19]: ^?^*Id.* at 5-6.

[^20]: ^?^*Id.* at 5.

[^21]: ^?^47 C.F.R. §§76.64(f) and 76.61(a).

[^22]: ^?^*Id.*

[^23]: ^?^47 C.F.R. § 76.61(a)(5).

[^24]: ^?^*See Must Carry Order*, 8 FCC Rcd at 2990.

[^25]: ^?^47 C.F.R. § 76.55(c)(3).

[^26]: ^?^47 C.F.R. §§ 76.57 and 76.64(f).

[^27]: ^?^47 C.F.R. § 0.283.