Federal Communications Commission Record DA 95-1568

Before the assess a fee to its subscribers for its services. It therefore FEDERAL COMMUNICATIONS COMMISSION requests the Commission to order the Association to Washington, D.C 20554 cease carriage of its signal pending a consent agreement 3. In its opposition, the Association sets forth a detailed In re: description of its system. In short, it states that while the cable system it oversees is available throughout the Las Complaint of North Texas CSR-4161-C Colinas residential community it does not directly provide Broadcasting Corp. against services into an individual's home or building. Rather.it The Las Colinas Association maintains, each member is responsible for the costs associated with the purchase and installation of the cable conduit necessary to receive services and for individual Retransmission Consent Complaint maintenance Moreover, the Association continues, the costs of this service is part of an overall property owner's MEMORANDUM OPINION AND ORDER assessment fee which includes, in addition, items such as architectural control, parks maintenance, security patrol, Adopted: July 10,1995 Released: July 17,1995 etc. No individual is billed separately for cable service and no individual assessment is affected whether or not By the Chief, Cable Services Bureau: cable service is used As a result, the Association argues that it is not subject to the retransmission consent regulations: 1) because it has no subscribers or 1. In the captioned proceeding, North Texas customers; and 2) the Association's members exercise Broadcasting Corp., licensee of Station KXAS-TV ultimate control over the operations of the system and, (NEC, Ch. 5), Fort Worth, Texas, filed a complaint according to the 1992 Cable Act, the building owner or against The Las Colinas Association ("Association"), subscriber is not considered a "multichannel video operator of a cable television system serving Las Colinas, programming distributor." The Association concludes, Texas,' for the Association's apparent violation of the therefore, that it is not required to obtain retransmission retransmission consent provisions of Section 325 of the consent from KXAS-TV to retransmit its signal. Communications Act of 1934, as amended The Association has filed an opposition to this petition to 4. KXAS-TV argues in reply that the Association's which KXAS-TV has replied. arguments are without merit ft maintains thai tn. accept the Association's position would remove it entirety from 2. In support of its petition, KXAS-TV states that on the definition of a cable system and thus exempt it from June 11,1993, it notified the Association by letter that it all Commission regulation. KXAS-TV states that it does was electing retransmission consent status pursuant to not believe that it was the Act's intention to exempt an Section 325(bX3XB) of the 1992 Cable Act and Section entity, such as the Association, which provides cable 76.64(fXl) of the Commission's Rules. It requested that service, by whatever means, to over 10,000 individual the Association cease carriage of its signal pending a homes. Instead, the only allowable exemptions apply to retransmission consent agreement On September 8, apartment buildings and smaller multi-dwelling units 1993, KXAS-TV indicates that it received a letter from which provide signals free of charge at the residents'' the Association which averred that it was not subject to option. The Association, by its own admission, charges the Commission's retransmission consent rules since it a fee for such services regardless of whether the did not "make available for purchase, by subscribers or individual chooses the service or not customers... video programming" pursuant to Section 602(12) of the Act and Section 76.64(d) of the rules. 5. We agree with KXAS-TV. Section 76.5(a) of the KXAS-TV argues that it believes the Association's Commission's Rules, which parallels Section 602(7) of interpretation of these sections to be in error since it does the Communications Act, defines a cable system as "A facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which 1 Las Colinas is a residential and commercial development includes video programming and which is provided to located in Irving, Texas.

8343 Federal Communication! Commission Record DA 95-1568

multiple subscribers within a community. ..." The Bureau pursuant to authority delegated by §0.321 of the Association's cable system meets this definition. Indeed, Commission©s Rules. the Commission's records indicate that the Las Colinas Association has registered its system with the FEDERAL COMMUNICATIONS COMMISSION Commission pursuant to Section 76.12 of the Commission's Rules, which requires the registration of all cable television systems which meet the above definition. Meredith J.Jones This would appear to indicate that the Association has Chief, Cable Services Bureau previously accepted its status as a cable television system under our rules. The fact that the system limits its wiring to the outside of an individual's house, leaving not only the option for service, but the actual in-house wiring, to the individual does not negate the Association's requirement to comply with the Commission's cable television rules and the applicable statutory requirements. Moreover, the fact that the cable service fees are included as part of an overall Association maintenance fee is immaterial because the statutory definition contains no requirement for payment Further, The Association's reliance on language in the Commission decision 'implementing Congress' retransmission consent requirement is misplaced. The Commission clearly limited retransmission consent exemption discussed to "MATV facilities or VHF/UHF antennas on individual dwellings ..." 2 This is clearly not the case here. The Commission also has specifically considered and rejected the types of arguments made by the Association in its First Report and Order in Docket 20561, 63 FCC 2d 956 (1977). Based on the standard definition criteria, the Association operates a cable television system and as such, is subject to all the applicable statutory and Commission rule requirements, including retransmission consent Thus, carriage of the signal of station KXAS- TV without its retransmission consent from the station having been obtain is in violation of Section 325 of the Communications Act 6. Accordingly, the complaint filed on behalf of North Texas Broadcasting Corporation against The Las Colinas Association IS GRANTED. The Las Colinas Association shall, within thirty (30) day of the release days of this order, inform the Commission that it has ceased carriage of the signal of KXAS-TV or received the necessary retransmission consent 7. This action is taken by the Chief, Cable Service

2 See Report and Order in Docket 92-259, 8 FCC Red 2965, para. 135 (1993).

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