Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | *  | CSR 6175-M                   |
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| State of Wisconsin --            | ** |                              |
| Educational Communications Board |    |                              |
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| DIRECTV, Inc.                    |    |                              |
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| Request for Mandatory Carriage   | *) |                              |
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| Television Station WPNE(TV),     | *  |                              |
| Green Bay Wisconsin              | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: October ­­7, 2003 Released: October­­ 8, 2003**

By the Deputy Chief, Media Bureau:

# introduction

1.  State of Wisconsin -- Educational Communications Board ("WECB"),
    licensee of noncommercial television station WPNE(TV), Green Bay
    Wisconsin, ("WPNE") filed the above-captioned must carry complaint
    against DIRECTV, Inc., pursuant to Section 338 of the Communications
    Act of 1934, as amended (the "Act"), and Section 76.66 of the
    Commission's rules for its refusal to carry the signal of WPNE on
    its satellite system.[^1] WECB states that DIRECTV is providing
    "local-into-local" satellite service pursuant to the statutory
    copyright license in the Green Bay, Wisconsin DMA. [^2] In its
    complaint, WECB alleges that DIRECTV has failed to meet its must
    carry obligations under the Commission's satellite broadcast signal
    carriage rules.[^3] DIRECTV filed an opposition to the complaint and
    WECB filed a reply. For the reasons discussed below, we deny the
    complaint.

# LEGAL BACKGROUND

2.  Section 338 of the Act, adopted as part of the Satellite Home Viewer
    Improvement Act of 1999 (SHVIA),[^4] required satellite carriers,
    beginning January 1, 2002, to carry on request all local television
    broadcast stations' signals in local markets in which the satellite
    carrier carries at least one local television broadcast signal
    pursuant to the statutory copyright license.[^5] A station's market
    for satellite carriage purposes is its DMA, as defined by Nielsen
    Media Research.[^6] In November 2000, the Commission adopted rules
    to implement the provisions contained in Section 338.[^7]

3.  Under the Commission's broadcast signal carriage rules, each
    satellite carrier providing local-into-local service pursuant to the
    statutory copyright license is generally obligated to carry any
    qualified local television station in the particular DMA that made a
    timely election for mandatory carriage, unless the station's
    programming is duplicative of the programming of another station
    carried by the carrier in the DMA.[^8] In DMAs where a satellite
    carrier launches new local-into-local service, the carrier must
    notify local television stations in writing of its intent to provide
    such service at least 60 days in advance and identify the location
    of its local receive facility.[^9] Upon receipt of this notice,
    local television stations must request carriage within 30 days.[^10]
    If a satellite carrier denies a local station's carriage request, it
    must notify the station within 30 days of its receipt of the
    carriage request.[^11] Otherwise, local television stations must be
    carried by the later of 90 days from the satellite carrier's receipt
    of the station's election request or upon commencing
    local-into-local service in the new television market.[^12]

# discussion

4.  The following facts are undisputed by the parties. On March 12, 2003
    DIRECTV mailed its notice of intent to launch local-into-local
    service in the Green Bay DMA to WPNE.[^13] The notice was sent to an
    address on Nicolet Drive in Green Bay that DIRECTV states it
    obtained from a Verizon Internet "yellow page" service.[^14] The
    notice was addressed to Kay Klubertanz as station general manager
    and was received at the Nicolet Drive address on March 13,
    2003.[^15] On March 21, 2003, the notice was passed on to a WECB
    employee at a WECB board meeting.[^16] DIRECTV states that its
    representative contacted the station on April 16, 2003 to discuss
    possible negotiated carriage since the station had not elected
    mandatory carriage.[^17] By letter to DIRECTV dated April 18, 2003,
    WECB requested must carry status for WPNE.[^18] DIRECTV did not
    respond in writing to WECB's letter.[^19]

5.  WECB states in its Complaint that DIRECTV sent the notice of intent
    to launch local-into-local service to the wrong address. It asserts
    that the correct address for the station is that of the licensee,
    WECB, in Madison, Wisconsin.[^20] According to WECB, Nicolet Drive
    is the address of the University of Wisconsin's Green Bay campus
    production unit and Ms. Klubertanz is a video producer at the
    university. WECB further states that its only local presence in
    Green Bay is the WPNE transmitter which is not on Nicolet Drive.
    WECB argues that because no station employee or representative
    actually received DIRECTV's notice until March 21, its response to
    that notice on April 18 was within 30 days and thus timely under our
    rules.[^21]

6.  DIRECTV, on the other hand, argues that its decision to mail the
    notice to the Nicolet Drive address was reasonable. DIRECTV asserts
    that the Verizon directory is a reliable source and that it called
    the number listed in the directory to confirm the address and the
    name of the station manager.[^22] Further, DIRECTV argues that
    regardless of what address it used, WECB had actual notice of
    DIRECTV's intent to launch local into local service on March 21,
    only eight days after the notice was sent, and twenty two days
    before the deadline to respond.[^23]

7.  The Commission has not established an "official address" policy for
    purposes of DBS must carry election notices.[^24] Instead, we
    examine the particular circumstances presented to determine whether
    the satellite carrier acted reasonably in fulfilling its notice
    obligations.[^25] We find that DIRECTV acted reasonably in the
    particular circumstances presented by this case. The record shows
    that when "WPNE" is entered in the search function of the Verizon
    Directory, only the Nicolet Drive address is listed. The same
    address is listed for Wisconsin Public Television.[^26] Although
    there is some dispute about how the telephone number listed in the
    directory is answered, WECB states that it is answered as Wisconsin
    Public Television, an entity which certainly has a relationship to
    WPNE.[^27] The notice was addressed to WPNE to the attention of Ms.
    Klubertanz and was received and signed for at Nicolet Drive. No one
    at the Nicolet Drive facility contacted DIRECTV to indicate that the
    notice had been misdirected. Instead, the notice was given to a WECB
    employee shortly after it was received. Regardless of what address
    was used, it is undisputed that a WECB employee was in possession of
    DIRECTV's notice of its intention to begin local into local service
    at least three weeks before the deadline to respond. WECB offers no
    explanation of why it did not respond within these three weeks nor
    does it indicate that it attempted to contact DIRECTV about using an
    incorrect address or to request an extension of time. In fact, WECB
    did not respond until DIRECTV called the station on April 16,
    several days after the deadline, and did not send an election until
    April 18, two days after talking with DIRECTV. We find under these
    circumstances that DIRECTV was justified in believing it had
    fulfilled its notice obligations and WECB's complaint is therefore
    denied.

# ORDERING CLAUSES

8.  Accordingly, **IT IS ORDERED**, pursuant to Section 338 of the
    Communications Act, as amended, 47 U.S.C. § 338, and Section
    76.66(d)(2)(ii) of the Commission's rules, 47 C.F.R. §
    76.66(d)(2)(ii), that the must carry complaint filed by State of
    Wisconsin -- Educational Communications Board, licensee of
    non-commercial television station WPNE(TV), Green Bay, Wisconsin,
    against DIRECTV **IS DENIED.**

9.  This action is taken by the Deputy Chief, Media Bureau, pursuant to
    authority delegated by Section 0.283 of the Commission's rules, 47
    C.F.R. § 0.283.

    FEDERAL COMMUNICATIONS COMMISSON

    William H. Johnson

    Deputy Chief, Media Bureau

[^1]: 47 U.S.C. §338; 47 C.F.R. § 76.66; *See* Public Notice, Special
    Relief and Show Cause Petitions, Report No. 0079, dated June 13,
    2003.

[^2]: *See* 17 U.S.C. § 122(a); 47 U.S.C. § 339. A satellite carrier
    provides "local-into-local" satellite service when it retransmits a
    local television signal back into the local market of that
    television station for reception by subscribers. 47 C.F.R. §
    76.66(a)(6).

[^3]: Under Section 76.66(m)(3) of the Commission's rules, a local
    television broadcast station that disputes a response by a satellite
    carrier that it is in compliance with its must carry obligations may
    obtain review of such denial or response by filing a "complaint"
    with the Commission in accordance with Section 76.7. 47 C.F.R. §
    76.66(m)(3). Although styled a "complaint," a carriage complaint
    filed against a satellite carrier is treated by the Commission as a
    petition for special relief for purposes of the Commission's
    pleading requirements. *See 1998 Biennial Regulatory Review: Part 76
    -- Cable Television Service Pleading and Complaint Rules*, 14 FCC
    Rcd 418 (1999).

[^4]: *See* Pub. L. No. 106-113, 113 Stat. 1501, 1501A-526 to 1501A-545
    (Nov. 29, 1999).

[^5]: *See* 47 U.S.C. § 338.

[^6]: A DMA is a geographic area that describes each television market
    exclusive of others, based on measured viewing patterns. *See* 17
    U.S.C. § 122(j)(2)(A)-(C); *see also Implementation of the Satellite
    Home Viewer Improvement Act of 1999: Broadcast Signal Carriage
    Issues; Retransmission Consent Issues,* 16 FCC Rcd 1918, 1934 (2000)
    ("*DBS Broadcast Carriage Report & Order")*; 47 C.F.R. § 76.66(e)
    ("A local market in the case of both commercial and noncommercial
    television broadcast stations, is the designated market area in
    which a station is located, and \[i\]n the case of a commercial
    television broadcast station, all commercial television broadcast
    stations licensed to a community within the same designated market
    area within the same local market; and (ii) \[i\]n the case of a
    noncommercial educational television broadcast station, the market
    includes any station that is licensed to a community within the same
    designated market area as the noncommercial educational television
    broadcast station.").

[^7]: *See generally DBS Broadcast Carriage Report & Order,* 16 FCC Rcd
    at 1918. The Commission later affirmed and clarified its carriage
    rules. *See Implementation of the Satellite Home Viewer Improvement
    Act of 1999; Broadcast Signal Carriage Issues,* 16 FCC Rcd 16544
    (2001)("*DBS Broadcast Carriage Reconsideration Order*").

[^8]: *See* 47 C.F.R. § 76.66.

[^9]: *See* 47 C.F.R. § 76.66(d)(2); *see also DBS Broadcast Carriage
    Report & Order,*16 FCC Rcd at 1933.

[^10]: *See* 47 C.F.R. § 76.66(d)(2).

[^11]: *Id.*

[^12]: *See* 47 C.F.R. § 76.66(d)(2)(iii); s*ee also DBS Broadcast
    Carriage Reconsideration Order,* 16 FCC Rcd at 16577.

[^13]: Complaint at 2.

[^14]: Answer at 3.

[^15]: Complaint at 3; Answer at Exhibit 2.

[^16]: Complaint at 3.

[^17]: Answer at 10. A retransmission agreement has not been reached.

[^18]: Answer at 10.

[^19]: Complaint at 4. A satellite carrier's failure to respond to a
    request for mandatory carriage within 30 days can be considered a
    denial for purposes of allowing the television station to file a
    complaint. *DBS Broadcast Carriage Reconsideration Order,* 16 FCC
    Rcd at n.220.

[^20]: WECB states that this is the "official" address of WPNE shown in
    the Commission's records. Complaint at 7.

[^21]: Complaint at 3. WECB makes unsubstantiated allegations of bad
    faith on the part of DIRECTV that we will not address here.

[^22]: Answer at 2. WECB counters that the employee who answers the
    telephone number listed for WPNE in the Verizon directory answers as
    Wisconsin Public Television, not WPNE. Reply at 3. Further, WECB
    states that if a DIRECTV employee called, he or she could have
    mistakenly confused the address and manager of the Wisconsin Public
    Television production unit for the address and manager of WPNE.
    *Id.* DIRECTV states that it called the number listed by Verizon
    again in May 2003, the telephone was again answered as WPNE, and the
    station's address and station manager were again confirmed. Answer
    at 3 n.7.

[^23]: Answer at 3.

[^24]: *Ho'Ana'Auao Community TV, Inc. v Echostar Communications
    Corporation*, 18 FCC Rcd 2487, 2489 (2003); *Entravision Holdings,
    LLC v Echostar Communications Corporation*, DA 03-2935 (released
    September 21, 2003).

[^25]: *Id*.

[^26]: Answer at Exhibit 1.

[^27]: *See* Complaint at 2 (WECB states that five stations, including
    WPNE, comprise the Wisconsin Public Television Network).