> **DA 07-1264**
>
> **Released: March 13, 2007**

Jorge L. Bauermeister

Counsel for Choice Cable T.V.

VIG Tower

1225 Ponce de Leon Ave.

Suite 1505

Santurce, PR 00907

Re: CSR No. 7059-C

Dear Mr. Bauermeister:

WLII/WSUR Licensee Partnership, G.P. ("WLII/WSUR") filed an Emergency
Petition Seeking Enforcement Order for Violation of Sections 76.65,
76.1601, and 76.1603 of the Commission's Rules and for Immediate
Injunctive Relief ("Petition") against your client, Choice Cable T.V.
("Choice").[^1] Among other allegations, WLII/WSUR asserts that Choice
has failed to negotiate in good faith in the context of retransmission
consent negotiations in violation of the Commission's rules.

Section 76.65 of the Commission's rules imposes a duty on television
broadcast stations and multi-channel video programming distributors to
negotiate in good faith with respect to retransmission consent.[^2]
Among the actions or practices that constitute a violation of this duty
is the refusal of a party to meet at reasonable times or locations or
acting in a manner that delays negotiations,[^3] or refusal by a party
to put forth more that a single unilateral proposal.[^4]

The record here shows that WLII-TV along with its "booster" stations
WSUR-TV and WORA-TV,[^5] elected retransmission consent for the
2006-2008 election period. All three stations entered into extended
negotiations with Choice while the cable system carried the WLII
programming on an interim basis. These negotiations continued from
approximately September 2005 until August 2006 when Choice abruptly
halted negotiations because, as it stated, it had begun carriage of
WLII's programming through arrangements with WORA. According to
WLII/WSUR, Choice did not notify subscribers or the franchise authority
that it had replaced WLII's signal with that of WORA.[^6] WLII points
out that Choice has failed to provide a copy of a valid retransmission
consent agreement authorizing it to carry WORA.[^7] In addition, it
offers evidence from WORA that no contract with Choice exists.[^8] WLII
also complains that Choice maintained the single unilateral position
that it would not pay for WLII programming despite Choice's apparent
willingness to consider a fee per subscriber arrangement during part of
the negotiations.[^9] WLII contends that Choice was merely prolonging
negotiations while trying to obtain WLII programming for free from
WORA.[^10] Choice in response argues that it always negotiated in good
faith and that it did not delay the negotiations.[^11] Choice also
admits that it refused to offer cash payment for carriage of WLII, but
did offer alternative options for compensation.[^12]

Given the totality of the circumstances in this proceeding, we find that
Choice violated its duty to negotiate in good faith. Carriage without
retransmission consent is a violation of Section 325(b) of the
Communications Act, 47 U.S.C. §325(b), and Section 76.64 of the
Commission's Rules, 47 C.F.R. §76.64. Because Choice has provided no
evidence of a valid retransmission consent agreement with WORA, we
believe that it breached its duty to negotiate in good faith with
WLII/WSUR.

Choice is hereby ordered to contact representatives of WLII/WSUR within
10 days of the date of this letter to resume negotiations for carriage
of WLII and to negotiate in good faith for such carriage. We require
Choice to update the Commission every 30 days on the status of the
negotiations. In the event of an impasse, we note that both parties
could agree to final binding arbitration by the Media Bureau. If you
have any questions about this matter, please contact Rosalee Chiara of
my staff at 202-418-0754.

Sincerely,

Steven Broeckaert

Deputy Chief, Policy Division

Media Bureau

cc: Lauren Lynch Flick

Paul A Cicelski

Pillsbury Winthrop Shaw Pittman LLP

2300 N Street, N.W.

Washington, D.C. 20037

Station Manager

WORA-TV

P.O. Box 43

Mayaguez, Puerto Rico 00681

Miguel Reyes Davila

President

Telecommunications Regulatory Board of Puerto Rico

235 Arterial Hostos Ave.

Capital Center II

North Tower, Suite 1001

San Juan, Puerto Rico 00918-1453

[^1]: 47 C.F.R. §§ 76.65, 76.1601, and 76.1603.

[^2]: 47 C.F.R. §76.65.

[^3]: 47 C.F.R. §76.65(b)(1)(iii).

[^4]: 47 C.F.R. §76.65(b)(1)(iv).

[^5]: WLII explains that both WSUR-TV, a co-owned station, and WORA-TV,
    a third party owned station, carry WLII's programming to viewers on
    the southern and western portions of the island. Petition at 4.

[^6]: Petition at 6-7.

[^7]: WLII Reply at 21.

[^8]: WLII Reply at 20-25; Exhibits 3-6. WLII/WSUR asserts that Choice
    is carrying WLII/WSUR programming without authority by carrying the
    WORA signal. We will address these allegations and the allegations
    of violation of 76.1601 and 76.1603 in a subsequent order.

[^9]: Petition at 10-13.

[^10]: *Id.*

[^11]: Answer at 9.

[^12]: Answer at 9-10.