Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of:                | * | CSR-6002-M                   |
|                                  | * |                              |
| Norwell Television, LLC          | ) |                              |
|                                  | * |                              |
| v\.                              | * |                              |
|                                  |   |                              |
| Full Channel TV, Inc.            | * |                              |
|                                  | * |                              |
| Petition for Reconsideration     | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

ORDER ON RECONSIDERATION

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

By the Deputy Chief, Media Bureau:

# INTRODUCTION

1.  Full Channel TV, Inc. ("Full Channel"), operator of a cable system
    serving Barrington, Bristol Township, Warren and the unincorporated
    areas of Bristol County, Rhode Island,[^1] requests reconsideration
    of the Media Bureau's ("Bureau") Memorandum Opinion and Order[^2]
    granting the complaint of Norwell Television, LLC ("Norwell"),
    licensee of television broadcast station WWDP, Norwell,
    Massachusetts ("WWDP") and ordering Full Channel to carry WWDP on
    its cable system. An opposition to this request was filed on behalf
    of WWDP, to which Full Channel filed a reply. In addition, Full
    Channel filed a Petition for Stay delaying the effective date of the
    Bureau's *Complaint Order.*[^3]

# BACKGROUND

2.  Pursuant to Section 614 of the Communications Act of 1934, as
    amended by the Cable Television Consumer Protection and Competition
    Act of 1992 ("1992 Cable Act"),[^4] and implementing rules adopted
    by the Commission in *Implementation of the Cable Television
    Consumer Protection and Competition Act of 1992, Broadcast Signal
    Carriage Issues Report and Order* ("*Must Carry Order*"),[^5]
    commercial television broadcast stations are entitled to assert
    mandatory carriage rights on cable systems located within the
    station's market. A station's market for this purpose is its
    "designated market area," or DMA as defined by Nielsen Media
    Research.[^6]

3.  In its initial filing in this proceeding, Norwell filed a Petition
    for Special Relief seeking to add to WWDP's market the communities
    served by Full Channel.[^7] Full Channel did not oppose the market
    modification request and on August 20, 2002, WWDP's market
    modification petition was granted.[^8] After release of the *Market
    Modification Order,* WWDP formally requested carriage on Full
    Channel's system. After attempting to arrange carriage without a
    response from Full Channel, WWDP filed a must carry complaint
    against Full Channel. WWDP maintained that it had begun carrying
    programming provided by America's Collectibles Network, a home
    shopping channel, and that it did not imply that its carriage of
    America's Collectibles was temporary or that it intended to resume
    carrying Telemundo, a network which provides Spanish-language
    programming. Full Channel did not oppose the must carry complaint.
    The Bureau granted WWDP's must carry complaint, finding that the
    unopposed representations made by WWDP demonstrate that it is a
    full-power commercial television station qualified for carriage on
    Full Channel's system.[^9] The Bureau ordered Full Channel to
    commence carriage of WWDP on its cable system serving the
    communities of Barrington, Bristol Township, Warren and the
    unincorporated areas of Bristol County, Rhode Island within
    sixty (60) days from the release of the must carry *Complaint Order*
    (*i.e.* by April 13, 2003).

# discussion

4.  In support of its petition, Full Channel asserts that it failed to
    oppose WWDP's market modification and must carry petitions because
    it believed that the station was converting to a Spanish-language
    format and that it was interested in carrying Spanish-language
    programming.[^10] Full Channel states that it was not until after
    the Bureau granted the *Complaint Order* that it learned that WWDP
    would not offer Spanish-language programming.[^11] Moreover, Full
    Channel asserts that WWDP made representations that it was
    affiliated with Telemundo and would be providing coverage of issues
    of concern to Hispanic and other residents in the Full Channel
    communities which no other station on the cable system
    provides.[^12] Consequently, Full Channel argues that grant of its
    petition is in the public interest because it would prevent the
    imposition of a carriage requirement premised on facts different
    from those represented by WWDP.[^13] Additionally, Full Channel
    states that in order to add WWDP, it will either have to delete a
    more widely viewed Spanish-language television station (WUNI-TV), a
    significantly-viewed English-language television station, or a more
    popular subscription service.[^14] Full Channel asserts that its
    communities are already well-served by the carriage of three home
    shopping stations on Full Channel's system and that no programming
    diversity interest is advanced by the requirement to carry
    WWDP.[^15] In addition, Full Channel argues that WWDP fails to meet
    the criteria for market modification in the Full Channel communities
    in that WWDP has no historical carriage, no significant evidence of
    viewing in the Full Channel communities, and little evidence (other
    than its Grade B Signal) of coverage of issues of local concern or
    other events of interest.[^16] Full Channel asserts that with the
    knowledge that WWDP intended to carry home shopping, rather than
    Telemundo programming, the Bureau might have reached a different
    result in the *Market Modification Order* and the *Complaint
    Order*.[^17] Moreover, Full Channel states it would have made these
    and other points had it known about WWDP's intended
    programming.[^18] In addition, Full Channel asserts that there is a
    blurring of the distinction between the Providence and Boston
    Markets in that WWDP is located in the Boston DMA and Full Channel's
    cable system is located in the Providence DMA and the addition of
    the Full Channel communities changes the fundamental structure of
    these markets.[^19] Full Channel states that its failure to oppose
    WWDP's request to modify its market may have affected the result of
    the market modification request.[^20]

5.  In its opposition, WWDP states that Full Channel does not indicate
    that it is not obligated to carry WWDP, but instead complains about
    WWDP's programming content. WWDP argues that Full Channel's request
    that the Commission reconsider the *Market Modification Order* is
    improper as it is no longer subject to reconsideration.[^21]
    Moreover, WWDP states that Full Channel's claim that the Commission
    had less than a full and accurate record on which to base its
    decision in the *Complaint Order* is contrary to fact, in that WWDP
    never stated that it would replace its home shopping programming
    with Spanish-language programming.[^22] WWDP also points out that a
    must carry complaint proceeding focuses on whether the subject
    station is qualified for carriage by determining (i) whether such
    carriage will cause increased copyright liability for the cable
    operator; (ii) whether the station provides the cable operator's
    principal headend with a good quality signal; and (iii) whether the
    cable operator has the channel capacity to carry the station.[^23]
    WWDP argues that the Bureau concluded in the *Complaint Order* that
    WWDP demonstrated that it is a local full-power commercial
    television station qualified for carriage on Full Channel's
    system.[^24] WWDP asserts that Full Channel's instant petition fails
    to challenge any finding made by the Bureau in the *Complaint Order*
    or raise any issue relevant to a must carry complaint
    proceeding.[^25] WWDP also asserts that Full Channel's argument that
    the Bureau should reverse the *Complaint Order* to avoid a merger of
    the Providence DMA and Boston DMA is untimely and misplaced because
    the time within which Full Channel could have legally opposed the
    modification of WWDP's market has long since passed.[^26] With
    regard to Full Channel's concern about programming on the station,
    WWDP states that Full Channel wrongly assumed that WWDP was carrying
    America's Collectibles programming only temporarily, and that it was
    going to resume carrying Telemundo programming.[^27] Moreover, WWDP
    argues that programming content is not a factor to be considered in
    must carry complaint proceedings.[^28] In addition, WWDP states that
    Full Channel's claim that it will have to delete another station to
    carry WWDP is without merit because under Section 76.52(b)(2), Full
    Channel, which currently carries only nine full-power commercial
    stations, is obligated to carry up to 17 local full-power commercial
    stations.[^29]

6.  In reply, Full Channel argues that WWDP's representations about
    WWDP's programming are germane because they formed the basis for
    Full Channel's decision not to oppose WWDP's request and for the
    Bureau's modification and complaint grants.[^30] Full Channel states
    that it filed no opposition because it wanted to carry a Telemundo
    Spanish-language station and WWDP told both Full Channel and the
    Bureau that WWDP would be a Spanish-language Telemundo station, and
    such representation was a critical factor underlying grant of WWDP's
    request for market modification and grant of the *Complaint
    Order*.[^31] In addition, Full Channel asserts that some stations
    will have to be deleted as a result of the enforcement of the
    *Complaint Order* and points out that given that Full Channel
    already carries three home shopping stations, grant of mandatory
    carriage rights to WWDP will result in less programming diversity,
    which Full Channel states would be in stark contrast to WWDP's
    claims of programming diversity and improved local service.[^32]

7.  The *Complaint Order* clearly stated that cable operators have the
    burden of showing that a commercial broadcast television station is
    not entitled to carriage.[^33] Full Channel's petition for
    reconsideration of the *Complaint Order* fails to address any of the
    factors considered when determining whether a subject station is
    qualified for carriage. Instead, Full Channel's petition seeks to
    relitigate the issue of modifying the Boston DMA to include the Full
    Channel TV, Inc. cable communities of Barrington, Bristol Township,
    and Warren, Rhode Island, which was addressed in the *Market
    Modification Order*. The *Market Modification Order* is no longer
    subject to reconsideration or review. Full Channel failed to file
    for reconsideration of that *Order* although it had full and fair
    opportunity to file a timely petition for reconsideration.

# ORDERING CLAUSES 

8.  Accordingly, **IT IS ORDERED**, that the Petition for
    Reconsideration filed by Full Channel TV, Inc. **IS DENIED**.

9.  **IT IS FURTHER ORDERED** that Full Channel TV, Inc. commence
    carriage of WWDP on its cable system serving the communities of
    Barrington, Bristol Township, Warren, and unincorporated areas of
    Bristol County, Rhode Island, within thirty (30) days of the release
    of this order.

10. This action is taken pursuant to authority delegated under Section
    0.283 of the Commission's rules.[^34]

    FEDERAL COMMUNICATION COMMISSION

    William H. Johnson

    Deputy Chief, Cable Services Bureau

[^1]: Full Channel indicates that there are no unincorporated areas of
    Bristol County, Rhode Island. WWDP does not address this particular
    issue. However, as we stated in the *Market Modification Order,*
    Commission records indicate that only certain unincorporated areas
    of Bristol County are served by the cable system. *See* Petition for
    Reconsideration at 1.

[^2]: *Norwell Television, LLC v. Full Channel TV, Inc.,* DA 03-413 (MB
    rel. Feb. 12, 2003)("*Complaint Order*").

[^3]: In view of our ruling on the petition for reconsideration, the
    petition for stay is moot.

[^4]: Pub. L. No. 102-385, 106 Stat. 1460 (1992).

[^5]: 8 FCC Rcd 2965, 2976-2977 (1993).

[^6]: 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)(2) of the Commission's rules requires that a
    commercial 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").*

[^7]: *See Norwell Television, LLC,* 17 FCC Rcd 16085 (MB 2002)("*Market
    Modification Order").*

[^8]: *Id.*

[^9]: *See Complaint Order,* DA 03-413 (MB rel. Feb. 12, 2003).

[^10]: Petition for Reconsideration at 2.

[^11]: *Id.* at 3.

[^12]: *Id.*

[^13]: *Id.* at 4.

[^14]: *Id.*

[^15]: *Id.*

[^16]: *Id.* at 6.

[^17]: *Id.*

[^18]: *Id.* at 7.

[^19]: *Id*.

[^20]: *Id.* at 6-8.

[^21]: Opposition at 1-2.

[^22]: *Id.* at 2.

[^23]: *Id.* at 4. *See* 47 C.F.R. § 76.55.

[^24]: *Complaint Order,* at 2.

[^25]: Opposition at 5.

[^26]: *Id.*

[^27]: *Id.* at 6.

[^28]: *Id.* at 8.

[^29]: *Id.* at 8-9*.*

[^30]: Reply at 3.

[^31]: *Id.* at 5.

[^32]: *Id.* at 7-8.

[^33]: *Must Carry Order,* 8 FCC Rcd at 2990.

[^34]: 47 C.F.R. § 0.283.