FCC 90·287 Federal Communications Commission Record 5 FCC Red No. 20

of the Portland stations. In addition, states Chambers Ca­ Before the ble, part-time carriage of the Portland stations would be Federal Communications Commission too expensive, even if mixed with part-time carriage of Washington, D.C. 20554 substituted signals, to be delivered by satellite, because Chambers Cable would have to pay full-time rates for both the satellite-delivered signals and for microwave de­ In re: livery of the non-deleted portions of the Portland signals. Particularly in view of Chambers Cable's recent expensive CHAMBERS CSR-3344 upgrade, Chambers Cable asserts that it is clearly too expensive for it to provide part-time carriage of the Port- · CABLE OF land stations. Citing CPI of North Little Rock, Inc., 67 OREGON, INC. FCC 2d 1001 (1978), and Community Tele - Communica­ tions Inc. d lb/a Scotts Bluff Cable TV, 95 FCC 2d 239 CHAMBERS (1983), modified, 100 FCC 2d 1261 (1985), and contend­ CABLE OF ing that only 6,000 subscribers are involved -- suggesting PAYETTE, INC. little dilution of the local broadcasters' audience -- Cham­ bers Cable urges that the rules be waived. Chambers Cable claims that grant of its request would serve the Petition for Special Relief public interest, as otherwise its subscribers would lose the Oregon-oriented programming of the Portland stations. MEMORANDUM OPINION AND ORDER 4. In opposition to Chambers Cable, KIVI notes that, while Chambers Cable may have made investments in Adopted: August 16, 1990; Released: September 24, 1990 microwave importation of distant signals, KIVI has itself made considerable investments in exclusive syndication rights and also has a valuable network affiliation.3 Protect­ By the Commission: ing these rights has been recognized by the Commission after careful consideration as being in the public interest, 1. On December 21, 1989, Chambers Cable of Oregon, and the rules implementing such protection should not be Inc. and Chambers Cable of Payette, Inc. (hereinafter waived, KIVI argues, in the absence of strong c~:mntervail­ jointly "Chambers Cable"), operators of cable television ing considerations. While recognizing that carnage of Or­ systems serving Ontario, Nyssa, and Vale, Oregon; as well egon news and information might be desirable for as Middleton, Payette, Fruitland, Homedale, Parma, Starr, Chambers Cable's subscribers, KIVI suggests that import­ New Plymouth, and Wilder, Idaho, respectively, filed a ing distant Portland signals may not be the optimal solu­ petition for special relief seeking waivers of §§76.92 and tion. Other sources of Oregon-oriented news and 76.151 of the Commission's Rules. Absent the requested information, such as print media and local radio stations, waivers, Chambers Cable must honor the requests for exist in Chambers Cable's service area, notes KIVI, and network program nonduplication and syndicated exclusiv­ KIVI itself covers matters of regional import, including ity protection made of Chambers Cable by Station KBCI­ matters affecting Oregon. TV (CBS, Channel 2), Boise, Idaho; KIVI (ABC, Channel 5. KBCI-TV notes in opposition that Chambers Cable 6), Nampa, Idaho; and KTRV (Ind., Channel 12), Nampa, provides no supporting data at all for its cost-based ar­ Idaho. Chambers Cable's petition is opposed by KIVI and 1 guments, and states that the rules have been found to be KBCI-TV. Chambers Cable has not replied. in the public interest. Lack of impact to KBCI-TV is not 2. Among the signals Chambers Cable carries are those grounds for waiver, argues the station, nor is Chambers of Stations KPTV (Ind., Channel 12), KOIN-TV (CBS, Cable required to drop the Portland stations in their Channel 6), KGW-TV (NBC, Channel 8), and KATU entirety. Moreover, states KBCI-TV, it and other local 2 (ABC, Channel 2), all Portland, Oregon. Chambers Ca­ broadcasters do cover events of local and regional signifi­ ble obtains these signals, as did its predecessors, by a cance to their Oregon viewers. cross-state microwave link. Pursuant to the Commission's 6. In adopting our current network program Rules, KBCI-TV, KIVI, and KTRV (the local Idaho sta­ nonduplication rules, we eliminated our policy of grant­ tions) have requested that Chambers Cable afford them ing waivers of the nonduplication rules based upon a protection against the Portland stations' syndicated and showing of no significant harm to the local broadcaster. duplicating network programming. According to Cham­ Report and Order in Gen. Docket No. 87-24, 3 FCC Red bers Cable, this would require large programming dele­ 5299, 5320 (1988). aff'd in part and modified in part, 4 tions. which would be neither cost-effective nor desirable FCC Red 2711 (1989). aff'd sub nom. United v'ideo. Inc. v. to Chambers Cable's subscribers. Chambers Cable has FCC, 890 F. 2d 1173 (D.C. Cir. 1989). Accordingly, we decided to cease carriage of the Portland signals in their grant no weight to Chambers Cable's argument of lack of entirety as of January 1, 1990. Chambers Cable seeks a harmful impact to the local stations. At the same time, waiver of §§76.92 and 76.151 of the Rules to allow it to however, we noted that "cable systems may continue to carry the program schedule of the Portland stations in avail themselves of the standard waiver procedures pro­ full, save for network programming broadcast simulta­ vided in the Communications Act." Docket So. 87 -24. 3 neously with the local Idaho stations. FCC Red at 5339 n. 243. Nevertheless. "lain applicant for 3. In support of its petition, Chambers Cable argues waiver faces a high hurdle even at the starting gate." that, absent a waiver, much of the Portland stations' most WAIT Radio v. FCC, 418 F. 2d 1153. 1157 (D.C. Cir. valuable programming will be deleted, and that their re­ 1969). Parties seeking a waiver of these rules must re­ maining programming will be of insufficient value to member that "lm]ere arguments and predictions ... are Chambers Cable's subscribers to justify continued carriage insufficient substitutes for factual information ... includ-

5640 5 FCC Red No. 20 Federal Communications Commission Record FCC 90·287 ing deta'ned financial information." Teleprompter of FEDERAL COMMUNICATIONS COMMISSION Quincy, 83 FCC 2d 431, 438 (1980). As we have pre­ viously stated, with regard to our earlier syndicated exclu­ sivity rules, "By their very nature, enforcement of the syndicated program exclusivity rules often causes some disruption of established viewing habits .... Therefore, Donna R. Searcy subscriber disruption is not, in itself, sufficient grounds upon which to grant waiver." Metro Cable Co., 64 FCC Secretary 2d 605, 607 (1977). 7. We do not have to reach any financial issues raised FOOTNOTES by Chambers Cable. Unlike the moving parties in the 1 cases Chambers Cable cites, who submitted specific finan­ KBCI-TV's opposition is late-filed, and will be treated infor­ cial data and other factual information, Chambers Cable mally. In addition, several letters and petitions in support of has barely attempted the hurdle, offering only speculation Chambers Cable's petition have been received from several area and unquantified arguments. No specific financial data are residents; Senator Mark 0. Hatfield; Congressman Robert F. submitted. Nor does Chambers Cable demonstrate that Smith; State Senator Eugene D. Timms; the cities of Nyssa, Oregon news and information is not available from Ontario, and Vale, Oregon; and the Ontario, Oregon Chamber sources other than the Portland commercial licensees.4 of Commerce. Letters critical of Chambers Cable have been Moreover, it is Chambers Cable's own decision to cease received from Governor Neil Goldschmidt, and from Concerned carriage of KPTV, KOIN-TV, KGW-TV, and KATU in Citizens for Oregon Cable Television. These letters have been their entirety. This is not required by our rules, which do placed in the public file. not preclude system operators from carrying the locally 2 Commission records show that Chambers Cable also carries produced news and public affairs programming of the the signal of Station KOPB-TV (ETV, Channel 10), Portland, Oregon stations. While not affecting the systems' preroga­ Oregon. tives in that regard, the rules do recognize the value 3 In fact, states KJV!, its requests for network program inherent in local stations' syndication and network rights, nonduplication protection are not as extensive as they might be, to ensure that a telecommunications environment will be to minimize the deletion needs of area cable systems. However, provided "that is more conducive over the long run to the KJV! might augment (or reduce) its protection requests as cir­ production, diversity, responsiveness, quality and distribu­ cumstances warrant. tion of programming in order to ensure that consumers 4 Indeed, Chambers Cable has stated, in a March 2, 1990, receive an optimal mix of programming." Docket No. advertisement in a local newspaper, that it is "actively pursuing 87-24, 4 FCC Red at 2715 (footnote omitted). To the several possible substitutions" for the loss of Oregon-oriented extent that Chambers Cable claims that its actions are news. In a supplemental filing on May 8, 1990, Chambers Cable dictated by cost considerations, Chambers Cable has pro­ stated that it has arranged to import the signal of KGW-TV, vided no evidence to buttress its assertions. Nor has effective July 1, 1990, from a translator site in northeastern Chambers Cable submitted any evidence regarding the Oregon. To the extent that Chambers Cable may have some extent of program deletions it claims it must make. concerns over copyright liabilities it could incur, particularly in Chambers Cable seeks our approval of its judgment that obtaining specific Oregon-oriented programming, we note that the transmission of distant, imported programming, for Chambers Cable would be able to negotiate retransmission rights which the local stations have obtained the distribution outside of the compulsory license scheme. Accordingly, the rights, is of greater public interest value than is the cre­ copyright costs associated with the transmission of Oregon­ ation of a more diverse and responsive communications oriented programming from Portland may be mitigated for spe­ environment. This is exactly the position considered and cific programming. See Letter of Dorothy Schrader, General rejected by the Commission in Docket No. 87-24, supra. Counsel, Copyright Office, to Steven J. Horvitz, Esq. (March 14, Chambers Cable has now had nearly two years since the 1989). rules were adopted to plan for their introduction; its 5 In fact, it appears that nonduplication protection has been failure to do so can not now be remedied by an provided the local market network affiliates since the inception unsupported waiver request. Absent convincing evidence of cable service in the area. See L VO Cable, Inc., 47 FCC 2d to the contrary. we are unable to conclude that the 1128, 1129 (1974), recon. denied sub nom. United Cable Televi­ underlying rationale of the rules is not served by their sion Corporation, 50 FCC 2d 1150 (1975), and application for application here or that Oregon programming is not certificate of compliance filed December 6, 1971, by LVO Cable, available under the rules for acquisition or carriage. In Inc. short, Chambers Cable has not demonstrated that it would be in the public interest to waive the relevant rules5 8. In view of the foregoing we find that grant of Cham­ bers Cable's petition i~ not in the public interest. 9. Accordingly, IT IS ORDERED, that the "Petition for Special Relief" (CSR-3344). filed December 21. 1989. by Chambers Cable of Oregon. Inc. and Chambers Cable of Payette, Inc. IS DENIED.

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