Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5830-M                   |
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| Educational Public TV            | ) |                              |
| Corporation                      | * |                              |
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| RCN-BecoCom, LLC                 | * |                              |
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| Request for Carriage             | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: May 13, 2002** **Released: May 20, 2002**

By the Chief, Policy Division, Media Bureau:

# INTRODUCTION

1.  Educational Public TV Corporation, licensee of noncommercial
    educational television station WYDN, Worcester, Massachusetts
    ("WYDN"), filed the above-captioned complaint against RCN-BecoCom,
    LLC ("RCN") for its failure to carry WYDN on its cable system
    serving Boston, Massachusetts.[^1] An opposition to this petition
    was filed on behalf of RCN to which WYDN replied.

# 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"),* commercial
    television broadcast stations are entitled to assert mandatory
    carriage rights on cable systems located within the station's
    market.[^2] A station's market for this purpose is its "designated
    market area," or DMA, as defined by Nielsen Media Research.[^3] A
    DMA is a geographic market designation that defines each television
    market exclusive of others, based on measured viewing patterns.

# DISCUSSION 

3.  In support of its complaint, WYDN states that it requested carriage
    on RCN's cable system by letter dated July 27, 2001.[^4] WYDN states
    that, in its request, it detailed the provisions it made for
    delivery of its signal via satellite to RCN's headend to ensure a
    good quality signal.[^5] WYDN indicates that it sent four follow-up
    messages and it was only after the fourth letter that it was
    informed by RCN that the matter had been referred to the cable
    system's counsel.[^6] WYDN states that RCN's counsel informed it, by
    letter dated December 12, 2001, that WYDN's current request for
    carriage was untimely and was being denied because WYDN had
    previously requested carriage in May 2000 and been denied when
    signal strength tests showed that WYDN was unable to provide a good
    quality signal.[^7] Although WYDN acknowledges that it did
    previously request carriage on the Boston cable system, it argues
    that this fact is irrelevant to the present proceeding because, in
    view of RCN's allegations as to poor signal quality, WYDN
    subsequently made arrangements to deliver its signal by alternative
    means.[^8] WYDN states that once it had arranged for satellite
    delivery, it renewed its request for carriage.[^9] WYDN therefore
    requests that the Commission order RCN to commence carriage of its
    signal.

4.  In its opposition, RCN states that, as WYDN acknowledged in its
    complaint, WYDN originally requested carriage on RCN's cable system
    in May 2000 and this request was formally denied by RCN, by letter
    dated November 17, 2000, due to WYDN's inability to provide a good
    quality signal to the cable system's principal headend.[^10] Because
    RCN's November 17, 2000 letter constituted WYDN's formal denial of
    carriage, RCN argues that the applicable 60-day period in which WYDN
    could have filed a complaint with the Commission would have ended in
    mid-January 2001.[^11] RCN states that a December 5, 2000 follow-up
    letter from RCN's counsel only confirmed the earlier denial from
    RCN's corporate headquarters.[^12] RCN points out that WYDN failed
    to file its complaint within this 60-day period and, as a result, it
    waived its privilege for carriage on the Boston cable system. As a
    result of the 12-month delay between denial of carriage and the
    filing of the present complaint, RCN asserts that WYDN's complaint
    should be dismissed.

5.  In reply, WYDN argues that RCN's contention that its current
    complaint is untimely because it was filed more than 60 days from
    RCN's November 17, 2000 denial of carriage is erroneous. WYDN
    maintains that, at the time of its original request for carriage,
    there was a disagreement over the quality of the picture delivered
    to RCN's headend; a matter which was referenced in RCN's December 5,
    2000 follow-up letter.[^13] WYDN states that the fact that RCN hired
    an engineering firm to undertake a study of its signal only
    underscores the fact of disagreement.[^14]

6.  We disagree with the arguments raised by WYDN and deny its request.
    Although WYDN relies on language in the *Clarification Order* that
    states that "broadcast stations may assert their carriage and
    channel positioning rights at any time, so long as they have not
    elected retransmission consent," such reliance is misplaced.[^15]
    Broadcast stations are entitled to demand carriage any time during
    an election period if they are not already being carried by a cable
    operator, such as RCN, that is located in the same DMA. WYDN did so
    in May 2000 and its request was formally and explicitly denied by
    RCN on November 17, 2000. Once its demand for carriage was rejected,
    it had 60 days to file a complaint. Because it did not do so, WYDN
    is not entitled to carriage under the mandatory carriage provisions
    on RCN's Boston cable system.

# ORDERING CLAUSES

7.  Accordingly, **IT IS ORDERED** that the petition filed by
    Educational Public TV Corporation **IS DENIED** pursuant to Section
    614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C.
    §534).

8.  This action is taken pursuant to authority delegated by Section
    0.283 of the Commission's rules.[^16]

    FEDERAL COMMUNICATIONS COMMISSION

    Mary Beth Murphy

    Chief, Policy Division

    Media Bureau

[^1]: ^?^Although WYDN is licensed as a noncommercial television
    station, it maintained in three previous proceedings that it should
    be treated as a "non-qualified" NCE station because it did not meet
    the qualification criteria established pursuant to Section 76.55(a)
    of the Commission's rules. 47 C.F.R. §76.55(a). WYDN stated that it
    therefore sought carriage in those proceedings as a commercial
    station pursuant to Section 76.56(a) of the Commission's rules. 47
    C.F.R. §76.56(a). After the receipt of additional information, the
    Bureau accepted WYDN's demonstration that it was a "non-qualifed"
    NCE station. *See Frontiersvision Operating Partners, L.P., et al.,*
    DA 02-1169 (released May 20, 2002). Although no such statement has
    been made in WYDN's complaint against RCN herein, we are treating
    WYDN as a commercial station for must carry purposes.

[^2]: ^?^8 FCC Rcd 2965, 1976-2977 (1993).

[^3]: ^?^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,* Order on Reconsideration and Second Report and Order, 14 FCC
    Rcd 8366 (1999)(*"Modification Final Report and Order"*).

[^4]: ^?^Petition at Exhibit A.

[^5]: ^?^*Id.* at 2.

[^6]: ^?^*Id.* at Exhibits B and C.

[^7]: ^?^*Id.* at Exhibit D.

[^8]: ^?^*Id.* at 2.

[^9]: ^?^*Id.,* citing *Implementation of the Cable Television Consumer
    Protection and Competition Act of 1992,* Broadcast Signal Carriage
    Issues, 8 FCC Rcd 4142, 4144 (1993) (*"Clarification Order"*).

[^10]: ^?^Opposition at 1-2.

[^11]: ^?^*Id.* at 2, citing *Clarification Order,* 8 FCC Rcd 4142 at n.
    6.

[^12]: ^?^*Id.* at 2.

[^13]: ^?^Reply at 2.

[^14]: ^?^*Id.*

[^15]: ^?^*Clarification Order,* 8 FCC Rcd at 4144.

[^16]: ^?^47 C.F.R. §0.283.