WXTV License Partnership, G.P
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Federal Communications Commission DA 99-733 Before the Federal Communications Commission Washington, D.C. 20554 In re Petition of: ) ) WXTV License Partnership, G.P. ) CSR-5327-M ) Petition for Special Relief Concerning ) Carriage of WXTV, Paterson, New Jersey, ) on Certain Cablevision Cable Systems ) in the New York ADI ) MEMORANDUM OPINION AND ORDER Adopted: April 16, 1999 Released: April 16, 1999 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. WXTV License Partnership, G.P., licensee of commercial broadcast television station WXTV-TV, (Ch. 41--Paterson, New Jersey) ("WXTV") has requested that the Commission compel carriage of WXTV on its over the air channel in communities served by several Cablevision headends. 1 Cablevision filed an opposition to the petition to which WXTV filed a reply. BACKGROUND 2. -·Pursuant lo Section 614 of the Communications Act ("Act") and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259,2 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 "area of dominant influence," or ADI, as 1According to WXTV, the affected cable communities are served by various systems with headends in: Bayonne, Bergenfield, Elizabeth, Freehold, Jackson, Lakewood, Mahwah, Mamaroneck, Mine Hill, Oakland, Paterson, Piscataway, Seaside Heights and Wall/Asbury, New Jersey; Allamuchy, Amagansett, East Hampton, Farmingville, Hauppauge, Hicks-ville, Hicksville-Final, Huntington, Islip, Lynbrook, North Haven, North Salem, Riverhead, Shelter Island, Warwick, West Nyack, and Yonkers, New York; and Bridgeport and Norwalk, Connecticut (collectively referred to herein as the "Cable Communities"). Cablevision provides a similar list in Exhibit A of its Opposition. For purposes of this Order, we will rely on Cablevision's list. 2Broadcast Signal Carriage Issues, 8 FCC Red 2965, 2976-2977 (1993) ("Must Carry Order"). 6482 Federal Communications Commission DA 99-733 defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing. 3. With respect to the channel number on which stations asserting must-carry rights are to be carried, Section 614(b)(6) of the Act and Section 76.57 of the Commission's rules provide commercial television stations with three possible options.3 The station may elect to be carried on: (I) the channel number on which the station is broadcast over the air; (2) the channel number on which the station was carried on July 19, 1985; or (3) the channel number on which the station was carried on January 1, 1992.4 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.5 ARGUMENTS OF THE PARTIES 4. WXTV explains that it is a full-power television station licensed to Paterson, New Jersey, operating on Channel 41, and located in the New York ADI.6 The station states that it is the sole broadcast source of Univision Network Spanish-language programming to the New York ADI. It also states that all of the cable communities are located in the New York ADI. It is WXTV's intention to have its signal uniformly carried by New York ADI cable systems on its over-the-air channel so that the station is easier to locate and easier to market. 7 5. WXTV argues that Cablevision "dominates" cable television service in the New York ADI: through one or more subsidiaries, Cablevision provides cable television service to 52% of the total cable television subscribers, and 53% of the Hispanic cable television subscribers watching WXTV in the New York ADI.8 WXTV believes that securing a uniform channel position on Cablevision's systems would effectively secure a uniform channel position for WXTV throughout the market. WXTV states that Cablevision currently carries its signal on Channel 41 on approximately ten of Cablevision's 42 headends serving the New York market.9 WXTV asserts that, despite repeated requests by WXTV for on-channel carriage since 1993, carriage of WXTV is distributed among no fewer than 15 different cable channels on Cablevision systems market-wide; because of this, only 67% of Hispanic cable subscribers viewing 347 U.S.C. § 534(b)(6); 47 C.F.R. § 76.57. 447 U.S.C. § 534(b)(6);-47 C.F.R. § 76.57(a). 547 U.S.C. § 534(b)(6); 47 C.F.R. § 76.57(c). 6 WXTV petition at 2. 'Id. 8Jd. citing Nielsen Code, Cable On-Line Data Exchange as of October 17, 1998. 6483 Federal Communications Commission DA 99-733 WXTV in the New York ADI receive the station on Channel 41. 10 WXTV posits that if Cablevision carried its signal on Channel 41 throughout the market, as it is legally obligated to do, that percentage would increase to 94%. 11 6. WXTV explains that, except in Islip and Mt. Wurtsboro, where the station elected retransmission consent in 1993, the issue of a uniform channel position for its signal throughout the New York ADI was first raised in its initial must-carry election letters sent in 1993. 12 WXTV explains that, by these letters, it elected carriage on Channel 41. WXTV asserts that it was not carried on Channel 41 by a majority of the Cablevision systems serving the New York ADI at any time during the 1994-96 election period. WXTV states that it reiterated its request for on-channel carriage when, on September 24, 1996, it sent its second set of must-carry election letters to Cablevision. 13 In each of these letters, WXTV asserts that it notified Cablevision of its election of must-carry status on each of the Cablevision headends serving the cable communities; in addition, the letters informed Cablevision that WXTV would like to reach an agreement with Cablevision for carriage on a channel between 1and13, and that if this was not possible, then the station elected carriage on its over-the-air channel, Channel 41. WXTV asserts that Cablevision has been adamant that it cannot accommodate WXTV on a channel between 1 and 13. 14 7. WXTV asserts that while it sought to secure carriage of its signal on Channel 41 throughout the market, Cablevision announced that it is initiating a local cable news channel. 15 WXTV states that the new programming service is being carried on Channel 12, one of the channels that Cablevision told WXTV could not be made available to accommodate the station's carriage request. WXTV also states that in the Bronx, Cablevision's news channel has been advertising that it will carry news in Spanish on the weekends in direct competition with WXTV's own weekend news service. WXTV also asserts that Cablevision unilaterally repositioned its signal to Channel 57 on various systems in keeping with the operator's announced plans to classify WXTV as a foreign language programmer, and position it with foreign language cable programming services, without regard for its status as a local broadcast television station. WXTV states that its signal was being carried on Channel 41 on the portion of certain systems that had not been rebuilt and on Channel 57 on those portions that had been rebuilt, 10/d at 2-3. 11 /d at3. 15/d at 4. 6484 Federal Communications Commission DA 99-733 and that it was Cablevision's intent to move its signal to Channel 57 on the entire system at the conclusion of the rebuilding project. 16 8. WXTV states that it made a written demand for carriage on channel 41 on October 6, 1998, and advised Cablevision of its obligation to commence carriage of WXTV as requested within 30 days or state in writing its reasons for failing to do so. 17 WXTV asserts that Cablevision responded to the request by refusing to carry the station on channel 41 and hinted of a non-binding proposal that in the future, as systems are rebuilt, its signal may be moved to an advantageous channel position. 18 9. WXTV argues that carriage of its signal on any channel other than its requested over-the- air channel in this case cannot be excused. 19 WXTV argues that there is no bona fide allegation that its signal quality is inadequate at system headends serving the cable communities, nor that the satellite programming services currently carried on Channel 41 have a legal right to that channel.20 WXTV also states that it has expended considerable sums to market itself throughout the New York ADI and Cablevision's actions in this matter have frustrated such efforts. According to WXTV, Cablevision's actions have caused it to incur substantial additional costs to promote the station's existence to its viewers.21 10. In it opposition, Cablevision first argues that WXTV's complaint should be dismissed because it fails to state fully and precisely all pertinent facts concerning its request for on-channel carriage, and fails to include all steps taken by the parties to resolve the dispute.22 Cablevision asserts that while WXTV has sought carriage on Channel 41 throughout the New York ADI since its initial must-carry elections in 1993, WXTV has willingly engaged in discussions for carriage on other channels for the vast majority of the period at issue.23 In its continued negotiations with WXTV, Cablevision asserts that it has offered various channel positions in an attempt to accommodate WXTV's desire for uniform channel 16 /d. Among the systems on which WXTV has been repositioned to Channel 57 or has been informed it will be repositioned to Channel 57 are: Jackson, Freehold, Huntington, Hicksville, Islip, Lakewood, Lynbrook and Norwalk.