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 Federal  Communications  Commission  DA  04-  699 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 WXTV  License  Partnership,  G.  P. 
 v. 
 Patriot  Media  and  Communications,  LLC 
 Channel  Positioning  Complaint 


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 CSR-  6251-  M 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  March  12,  2004  Released:  March  16,  2004 
 By  the  Deputy  Chief,  Media  Bureau,  Policy  Division: 
 I.  INTRODUCTION 
 1.  WXTV  License  Partnership,  G.  P.  (  WXTV  License),  licensee  of  commercial  television  station  WXTV(  TV)  (Channel  41),  Paterson,  New  Jersey,  (  WXTV  or  the  Station)  filed  a  must  carry 


 complaint  with  the  Commission,  pursuant  to  Section  534(  a)  of  the  Communications  Act  of  1934,  asking  that  the  Commission  require  Patriot  Media  and  Communications,  LLC  (  Patriot)  to  carry  WXTV  on  its 
 over-  the-  air  channel  position  on  Patriots  cable  system  serving  Belle  Mead,  Flemington  and  Passaic,  New  Jersey  (the  system).  1  Patriot  filed  an  opposition  to  which  WXTV  license  replied.  2 


 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),  commercial  television  broadcast  stations  are  entitled  to  assert  mandatory  carriage  rights,  including  certain  mandatory  channel  position  rights,  on 
 cable  systems  located  within  the  stations  market.  3 
 3.  Section  614(  b)(  6)  of  the  Act  and  Section  76.57  of  the  Commissions  rules  provide  commercial  television  stations  with  three  channel  positioning  options.  4  The  station  may  elect  to  be 


 carried  on:  (1)  the  channel  number  on  which  the  station  is  broadcast  over-  the-  air;  (2)  the  channel  number 
 1  47  U.  S.  C.    534(  a);  see  47  C.  F.  R.    76.7  and  76.61. 
 2  Patriot  is  the  successor  in  interest  of  C-  Tec  Cable  Systems.  C-  Tec  Cable  Systems  began  carriage  of  WXTV 
 on  Channel  21  beginning  on  November  26,  1993.  Patriots  Opposition  to  Complaint  at  Exhibit  1.  3 
 8  FCC  Rcd  2965,  2976-  2977  (1993).  4 
 47  U.  S.  C.    534(  b)(  6);  47  C.  F.  R.    76.57. 
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 on  which  the  station  was  carried  on  July  19,  1985;  or  (3)  the  channel  number  on  which  the  station  was  carried  on  January  1,  1992.  5  The  Act  and  the  rules  also  provide  that  a  broadcast  station  may  be  carried  on 
 any  other  channel  number  mutually  agreed  upon  by  the  station  and  the  cable  operator.  6 
 III.  DISCUSSION 
 4.  In  support  of  its  complaint,  WXTV  maintains  that  contrary  to  its  September  20,  2002  channel  assignment  request,  Patriot  is  carrying  it  on  Channel  21  on  its  cable  system  serving  Belle  Mead, 


 Flemington  and  Passaic,  New  Jersey.  7  WXTV  states  that  on  that  date,  it  informed  Patriot  that  it  had  elected  must  carry  status  on  its  cable  system  for  the  election  period  beginning  January  1,  2003,  and 
 requested  carriage  of  WXTV  on  Channel  41,  its  over-  the-  air  channel.  8  WXTV  asserts  further  that  after  the  new  election  period  began,  Patriot  continued  carriage  of  the  Station  on  Channel  21  on  the  system  at 
 issue,  without  WXTVs  acquiescence;  and  that  as  a  result,  on  August  1,  2003,  it  informed  Patriot  that  carriage  of  WXTV  on  Channel  21  on  the  system  did  not  conform  to  the  Commissions  must  carry 
 requirements,  and  requested  Patriot  to  relocate  the  Station  to  Channel  41.  9  WXTV  maintains  that  Patriot  failed  to  relocate  the  Station  as  requested.  10  WXTV  asks  that  Patriot  be  ordered  to  commence  carriage  of 
 WXTV  on  Channel  41,  its  over-  the-  air  channel.  11 
 5.  In  opposition,  Patriot  maintains  that  WXTVs  complaint  should  be  dismissed  because  it  is  procedurally  defective.  Patriot  contends  that  WXTVs  complaint  was  not  filed  within  60  days  after 


 Patriots  predecessor,  RCN,  denied  WXTVs  request  to  be  carried  on  Channel  41  by  letter  dated  December  13,  2002.  Further,  Patriot  asserts  that  WXTV  again  failed  to  file  a  complaint  within  60  days 
 after  a  denial  of  its  September  20,  2002  request  for  carriage.  12  Patriot  states  that  WXTV  has  been  carried  on  Channel  21  since  November  26,  1993  when  WXTV  and  the  cable  operator  at  that  time  mutually 
 agreed  to  that  cable  channel  assignment.  13  Patriot  states  further  that  on  December  13,  2002,  in  response  to  its  most  recent  election  letter,  RCN,  informed  WXTV  of  its  intention  to  retain  the  Station  on  its 
 historical  channel  assignment.  14  Patriot  maintains  that  WXTV  effectively  agreed  to  continued  carriage  on  Channel  21  when  the  Station  failed  to  respond  to  RCNs  December  13,  2002  letter  and  that, 
 as  a  result  of  WXTVs  implicit  consent,  Patriot  undertook  a  general  channel  realignment  leaving  WXTV  on  cable  Channel  21  of  the  system  in  question.  15  Patriot  contends  that  even  if  WXTVs  complaint 
 was  timely  filed,  the  Commissions  underlying  policy  of  balancing  the  interests  of  the  parties  should 


 5  47  U.  S.  C.    534(  b)(  6);  47  C.  F.  R.    76.57(  a). 
 6  47  U.  S.  C.    534(  b)(  6);  47  C.  F.  R.    76.57(  c). 
 7  Complaint  at  2. 
 8  Id. 
 9  Id.  at  2. 
 10  Id. 
 11  Id.  at  5. 
 12  Opposition  at  4-  5. 
 13  Id.  at  1-  2. 
 14  Id.  at  2  and  Exhibit  2. 
 15  Id.  at  2-  3. 
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 apply  in  this  case.  16 
 6.  In  reply,  WXTV  contends  that  it  never  agreed,  implicitly  or  explicitly,  to  be  carried  on  Channel  21  for  this  election  cycle.  17  WXTV  maintains  that  its  September  2002  election  letter  explicitly 


 elected  carriage  on  Channel  41,  its  over-  the-  air  channel.  WXTV  argues  that  Patriot  was  obligated  to  honor  that  election  because  the  Commission  has  determined  that  broadcast  stations  may  assert  their 
 carriage  and  channel  positioning  rights  at  any  time  so  long  as  they  have  not  elected  retransmission  consent,  which  WXTV  has  not  done  in  this  instance.  18  WXTV  asserts  that,  contrary  to  what  Patriot 
 alleges,  the  instant  complaint  was  timely  filed,  60  days  after  Patriot  failed  to  respond  in  writing  to  its  August  1,  2003  demand  for  carriage,  as  required  by  Section  76.61(  a)(  2)  of  the  Commissions  rules.  19 


 7.  We  disagree  with  Patriots  allegations  that  the  Complaint  is  procedurally  defective  because  it  was  untimely  filed.  In  this  regard,  we  note  that  WXTVs  September  20,  2002  letter  was  clearly 
 an  election  letter,  filed  pursuant  to  Section  76.64  of  the  Commissions  rules,  which  requires  commercial  television  stations  to  make  a  periodic  election  between  retransmission  consent  and  must  carry  status,  but 
 does  not  trigger  any  procedural  deadlines  in  connection  with  filing  a  must  carry  complaint.  In  addition,  because  WXTV  had  not  made  a  demand  for  carriage  prior  to  RCNs  December  13,  2002  letter,  WXTV 
 had  no  obligation  to  file  a  complaint  60  days  thereafter  pursuant  to  Section  76.61(  a)(  5)(  i).  20  On  August  1,  2003  WXTV  made  a  demand  for  carriage  on  Channel  41  for  the  first  time.  Thus,  we  find  that  the  instant 
 complaint  filed  on  October  30,  2003,  was  timely  filed. 
 8.  Patriot  appears  to  believe  that  the  1993  channel  assignment  agreement  between  WXTV  and  Patriots  predecessor  in  interest  binds  the  Station  to  be  carried  on  Channel  21  in  perpetuity.  We 


 disagree.  Pursuant  to  Section  76.64(  f)(  2),  a  commercial  television  station,  such  as  WXTV,  is  required  to  make  an  election  between  retransmission  consent  and  must  carry  at  three-  year  intervals.  In  that  regard, 
 the  Commission  has  held  that  broadcast  stations  may  assert  their  carriage  and  channel  positioning  rights  at  any  time  so  long  as  they  have  not  elected  retransmission  consent.  21  In  addition,  Section  614(  b)(  6)  of 
 the  Communications  Act  permits  a  commercial  station  to  elect  to  be  carried  on  the  cable  system  channel  number  on  which  the  local  commercial  television  station  is  broadcast  over  the  air.  22  On  September  20, 
 2002,  WXTV  made  an  election  request  for  carriage  of  its  signal  on  Patriots  cable  system  on  Channel  41,  the  channel  number  on  which  it  broadcasts.  Patriot,  however,  has  failed  to  honor  its  obligation  to  comply 
 with  WXTVs  request  or  to  negotiate  the  positioning  of  WXTV  on  the  system  at  issue.  In  this  regard,  the  Commission  has  stated  that  cable  operators  must  comply  with  channel  positioning  requirements  absent 


 16  Id.  Patriot  contends  that  more  than  8,200  subscribers  would  be  affected,  costing  Patriot  $40.00  per 
 subscriber.  In  addition,  Patriot  maintains  that  repositioning  WXTV  to  cable  Channel  41  would  result  in  consumer  confusion  and  viewing  disruptions.  It  argues  that  because  of  unnecessary  incremental  costs,  granting  WXTVs 


 complaint  would  be  perverse.  Id.  at  5-  6.  17 
 Reply  at  1-  2.  18 
 Id.  at  2-  3.  In  support,  WXTV  cites  the  Commissions  In  the  Matter  of  Implementation  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1996,  Broadcast  Signal  Carriage  Issues,  8  FCC  Rcd  4142, 


 4144  (1993)  (  Clarification  Order).  19 
 Reply  at  3.  20 
 47  C.  F.  R.    76.61(  a)(  5)(  i).  21 
 Clarification  Order,  8  FCC  Rcd  at  4144.  22 
 47  U.  S.  C.    534(  b)(  6).  The  channel  selection  provisions  are  set  forth  at  47  C.  F.  R.    76.57. 
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 compelling  technical  reasons.  23  The  Commission  specifically  held  that  the  need  to  employ  additional  traps,  reconfigure  the  basic  tier,  or  make  technical  changes  are  generally  not  sufficient  grounds  for 
 denying  the  channel  positioning  request  of  a  must  carry  station.  24  The  Commission  has  also  noted  that  [  a]  cable  system  claiming  that  it  cannot  meet  a  channel  positioning  request  for  technical  reasons  will 
 have  to  provide  evidence  that  clearly  demonstrates  that  the  operator  cannot  meet  this  requirement.  25  In  the  instant  case,  Patriot  has  not  provided  such  evidence.  We  therefore  grant  WXTV  Licenses  channel 
 positioning  complaint  and  conclude  that  Patriot  is  required  to  carry  WXTV  on  Channel  41,  the  Stations  over-  the-  air  position. 


 IV.  ORDERING  CLAUSES 
 9.  Accordingly,  IT  IS  ORDERED,  pursuant  to  Section  614  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    534(  d)(  3),  that  the  complaint  (CSR-  6251-  M)  filed  by  WXTV  License 


 Partnership,  G.  P.  against  Patriot  Media  and  Communications,  LLC,  seeking  carriage  of  WXTV  on  its  over-  the-  air  channel  IS  GRANTED. 


 10.  IT  IS  FURTHER  ORDERED  that  Patriot  Media  and  Communications,  LLC  SHALL  COMMENCE  THE  CARRIAGE  of  WXTV  on  Channel  41  on  its  cable  systems  serving  Belle  Mead, 
 Flemington  and  Passaic,  New  Jersey  within  sixty  (60)  days  of  the  release  of  this  Memorandum  Opinion  and  Order. 


 11.  This  action  is  taken  pursuant  to  authority  delegated  under  Section  0.283  of  the  Commissions  rules.  26 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Steven  A.  Broeckaert  Deputy  Chief,  Policy  Division 
 Media  Bureau 


 23  Must  Carry  Order,  8  FCC  Rcd  at  2988. 
 24  Id. 
 25  Id. 
 26  47  C.  F.  R.    0.283. 
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