Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5456-M                   |
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| Gary M. Cocola                   | ) |                              |
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| Complaint for Carriage of        | * |                              |
| KGMC(TV)                         |   |                              |
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| Clovis, California               | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: February 22, 2000 Released: February 24, 2000**

By the Chief, Consumer Protection and Competition Division, Cable
Services Bureau:

# INTRODUCTION

1.  Gary M. Cocola, licensee of KGMC(TV) (Ch. 43), Clovis, California,
    has filed a must carry complaint, pursuant to Section 614 of the
    Communications Act,[^1] as amended, and Sections 76.7 and 76.61(a)
    of the Commission's rules,[^2] alleging that Northland Cable
    Television ("Northland") has denied carriage of KGMC(TV) on
    Northland's cable systems serving Mariposa, Oakhurst, Fish Camp,
    Lushmeadows, and Coarsegold, California, and neighboring communities
    (the "Northland cable communities").[^3] No opposition was
    received.[^4]

**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"*),[^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] A DMA is a geographic market designation that defines
    each television market exclusive of others, based on measured
    viewing patterns.

**III. DISCUSSION**

3.  In support of its request for carriage, KGMC(TV) states that the
    station meets the definition of a "local commercial television
    station"[^7] and therefore is eligible to invoke the mandatory
    carriage provisions of Section 614 of the Communications Act in the
    Northland cable communities.[^8] Specifically, KGMC(TV) states
    that: (1) KGMC(TV) and Northland's cable systems are located within
    the Fresno-Visalia, California, DMA; (2) Northland's cable systems
    will not incur copyright liability for the carriage of KGMC(TV);
    and (3) KGMC(TV) provides an adequate quality signal.[^9]

4.  We grant KGMC(TV)'s complaint. We find that the unrebutted
    representations made by KGMC(TV) demonstrate that it is a local
    full-power commercial television station qualified for carriage on
    Northland'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.[^10] It is undisputed that all of the
    Northland cable communities are located within the Fresno-Visalia
    DMA, and, as such, all are located within the same television market
    as KGMC(TV). In addition, because KGMC(TV) is located within the
    same television market as the Northland cable communities, KGMC(TV)
    is a "local signal" under Section 111 of the Copyright Act.[^11]
    Therefore, carriage of KGMC(TV) would not expose Northland to any
    increased copyright liability.

5.  With regard to the signal quality issue, KGMC(TV) contends that it
    is capable of delivering an adequate signal to Northland's headends.
    KGMC(TV) further states, however, that even if it were unable to
    deliver an adequate over-the-air signal to the headends of the
    Northland cable systems, KGMC(TV) commits to purchasing and
    installing any additional equipment necessary to deliver an adequate
    signal.[^12] The Commission has held that a cable operator cannot
    refuse to carry a television station that agrees to purchase and
    install, at its own expense, the equipment necessary to deliver an
    adequate signal to the operator's headend.[^13] KGMC(TV), by
    committing to provide the necessary equipment, satisfies its
    obligation to bear the costs associated with delivering a good
    quality signal to Northland's headends. Consequently, we order
    Northland to carry KGMC(TV)'s signal.

**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
    complaint filed by Gary M. Cocola, licensee of KGMC(TV), Clovis,
    California, **IS GRANTED.** Northland Cable Television **IS
    ORDERED** to commence carriage of KGMC(TV) within sixty (60) days
    after KGMC(TV) provides a good quality signal to Northland's Cable
    Television's headends.

7.  **IT IS FURTHER ORDERED** that KGMC(TV) shall notify Northland Cable
    Television in writing of its carriage and channel position elections
    (§§ 76.56, 76.57, and 76.64(f) of the Commission's rules) within
    thirty (30) days of the release of this *Order*.

8.  This action is taken pursuant to authority delegated by Section
    0.321 of the Commission's rules.[^14]

FEDERAL COMMUNICATIONS COMMISSION

Deborah Klein, Chief

Consumer Protection and Competition Division

Cable Services Bureau

[^1]: 47 U.S.C. § 534.

[^2]: 47 C.F.R. §§ 76.7, 76.61(a).

[^3]: At the relevant headends, the communities include: Mariposa
    Headend: Mariposa; Fish Camp Headend: Fish Camp, unincorporated
    Madera County; Lushmeadows Headend: Lushmeadows, Mariposa County;
    Oakhurst Headend: Oakhurst, Ahwanee, Bass Lake, and Cedar Valley;
    Coarsegold Headend: Coarsegold and Yosemite Lake Park. *See*
    Complant at 1, Exhibit 1.

[^4]: While no opposition pleading has been received from Northland in
    this proceeding, KGMC(TV) has submitted with its Complaint a letter
    from Northland denying carriage on the ground that the station's
    signal strength at the cable systems' headend was inadequate. *See*
    Letter from Jerry Parker, Regional Manager, Northland Cable
    Television, to Todd Lopes, Vice President, KGMC(TV), September 24,
    1999. Complaint at 2, Exhibit 3.

[^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 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).
    Until January 1, 2000, Section 76.55(e) of the Commission's rules
    provided that Arbitron's "Areas of Dominant Influence," or ADIs,
    published in the "*1991-1992 Television Market Guide,*" be used to
    implement the mandatory carriage rules. Effective January 1, 2000,
    however, Section 76.55(e) now requires that a commercial broadcast
    television station's market be defined by Nielsen Media Research's
    DMAs. For the must-carry/retransmission consent elections that took
    place on October 1, 1999, commercial television stations were
    required to make their elections based on DMAs. *See Definition of
    Markets for Purposes of the Cable Television Broadcast Signal
    Carriage Rules,* Order on Reconsideration and Second Report and
    Order, 14 FCC Rcd 8366 (1999) ("*Modification Final Report and
    Order*").

[^7]: 47 U.S.C. § 534(h)(1); 47 C.F.R. § 76.55(c).

[^8]: KGMC(TV) states that it formally elected mandatory carriage on the
    Northland cable systems for the election period beginnning January
    1, 2000. *See* Letter from Todd Lopes, Vice President, KGMC(TV), to
    Jerry Parker, General Manager, Northland Communications Corporation,
    September 16, 1999. Complaint at 2, Exhibit 2.

[^9]: Complaint at 3-4.

[^10]: *See Must Carry Order* at 2990.

[^11]: 17 U.S.C. § 111.

[^12]: Complaint at 4.

[^13]: *See, e.g., WMFP,Inc.,* 11 FCC Rcd 17264 (1996); *KSLS,Inc.,* 11
    FCC Rcd 12718 (1996).

[^14]: 47 C.F.R. § 0.321.