10 FCC Red No. 2 Federal Communications Commission Record DA 95-15

gramming which is well-loved by our subscribers." KRCA Before the states that this is not a valid basis for denying a local Federal Communications Commission commercial station its right to mandatory signal carriage. Washington, D.C. 20554 3. In response. Apollo states that it is actually limited to using 39 channels on the Cerritos system, pursuant to its lease with GTE Telephone, although it adds that the system In re: has 78 channels, including 3 which are utilized by the City of Cerritos itself. Apollo states that all its channels are Complaint of Fouce CSR-4266-M presently in use, 1 but that it had anticipated that it would Amusement Enterprises, Inc. CA1450 be able to accommodate several carriage requests, including KRCA's, because it had planned to acquire Channels 40-79 against Apollo CableVision, Inc. from GTE, pursuant to their prior contractual arrange ments.2 However, Apollo notes that "... intervening civil Request for Carriage and FCC proceedings had forestalled that expansion of capacity." Therefore, Apollo urges that the Commission defer carriage of KRCA, pending resolution of GTE's tariff MEMORANDUM OPINION AND ORDER proposals (Transmittals No. 873 and 874), or at least until December 31, 1994.3 Adopted: December 31, 1994; Released: January 13, 1995 4. In reply. KRCA asks that the Commission require Apollo add its station to the system no later than Septem By the Cable Services Bureau: ber 1, 1994, since it presently only transmits 11 local commercial stations, although the system's channel line-up as of January 5, 1994, demonstrated that it has, in fact, 42 INTRODUCTION useable activated channels, and it is therefore required to 1. On May 31. 1994. Fouce Amusement Enterprises, devote up to 14 local channels to carriage of local commer Inc., licensee of Television Broadcast Station KRCA (Ind., cial stations. KRCA adds that the 3 channels utilized by the Channel 62). Riverside. California, filed a "Complaint" City of Cerritos count as part of the system's activated against Apollo Enterprises, Inc. ("Apollo"), operator of a capacity, pursuant to Sections 76.5(nn) and (oo) of the system serving Cerritos, California. Apollo Commission's Rules, so that even if, as Apollo claimes. it filed an "Opposition" to this complaint on July 7, 1994. in can only use 39 of the system's 78 channels, it still is response to which, KRCA filed its "Reply Of KRCA (TV) required to carry up to 13 local commercial stations. To Complaint and Request for Expedited Action" on July 18, 1994. DISCUSSION 5. When the Commission adopted its Report and Order SUMMARY OF PLEADINGS in MM Dockets No. 92-259, 90-4, and 92-295, 8 FCC Red 2. According to KRCA, it is a commercial television 2965, 2972 (1993), it specifically addressed the issue of broadcast station entitled to mandatory carriage by the inadequate activated channel capacity and noted: "(i.e.: a cable system serving Cerritos. pursuant to Section 76.55 of cable operator without a sufficient number of available the Commission's Rules, since both Riverside and Cerritos channels may be required to drop a non-must-carry station are within the . California area of dominant or cable programming service to fulfill its must-carry influence (or "ADI"). KRCA adds that the Cerritos system obligations)." In addition, Section 76.56(b)(2) of the Com presently transmits only 11 other commercial stations en mission's Rules, requires that cable systems with more than titled to must-carry status and that, since it has at least 42 12 useable activated channels devote up to 1/3 of them to activated channels, it is able to add KRCA immediately. retransmission of local commercial television broadcast sig However despite numerous requests, Apollo has not done nals. In n.78 to its Report and Order, 8 FCC Red at 2972. so. claiming that to do so. would be ". . . at the expense of the Commission explained that systems are allowed to breaching a contract with another programmer or at the round to the nearest whole number to determine how expense of 'kicking off of our line-up some other pro many channels must be devoted to the transmission of local commercial signals. in addition to any

1 In a letter dated May 3, 1993, to KRCA, Apollo's President, KDOC-TV (Ind., Ch. 56), Westminster; KTBN-TV (Ind., Ch. Tom Robak, stated that the Cerritos system had 36 activated 40), Fontana; KAGL (Ind., Ch. 30), Los Angeles; KVEA (Ind.. channels, plus three other channels reserved for use by the City Ch. 52), Corona: and KWHY-TV (Ind., Ch. 22), Los Angeles. of Cerritos, and that it currently transmitted the following ten 3 Apollo maintains that its attempts to obtain additional chan television broadcast stations licensed to Los Angeles: KCET nel capacity on its system, which would allow it to carry KRCA, (Educ., Ch. 28); KCBS-TV (CBS. Ch. 2); KNBC-TV (NBC, Ch. have been stymied by pending litigation and administrative 4 ); KABC-TV (ABC. Ch. 7); KTTV (Ind., Ch. 11); KCAL (Ind., proceedings. Essentially, Apollo asks for a temporary stay of the Ch. 9); KTLA (Ind., Ch. 5); and KCOP (Ind., Ch. 13); as well as Commission's signal carriage rules pending resolution of the KHSC (Ind., Ch. 46). Ontario, California; and KSCI (Ind.. Ch. outstanding proceedings. Apollo's request is without merit for 18), San Bernardino, California. the very simple reason that it currently has the necessary 2 In the same letter to KCRA dated May 3. 1993, Mr. Robak channel capacity to commence carriage of KRCA consistent states that the following six commercial California stations, in with the Commission's carriage rules. See para. 6 Infra. addition to KRCA, qualify for mandatory carriage on the Cerritos system, but that it currently lacks the channel capacity to add any of them: KMEX-TV (Ind., Ch. 34), Los Angeles;

577 DA 95-15 Federal Communications Commission Record 10 FCC Red NO. 2

noncommercial signals that systems must also transmit. According to Apollo, it has a 39 channel system, including the 3 channels which it says are reserved for the exclusive use of the City of Cerritos. Therefore, as KRCA notes, the Commission's Rules require that up to 13 of Apollo's channels must be devoted to the transmission of local commercial signals, although KRCA's unrefuted allegation is that Apollo actually only carries 1.1 local commercial signals at present, and Apollo's own letter of May 3. 1993 indicated that it then only transmitted nine such signals. Consequently, we conclude that Apollo is not currently utilizing the required 1/3 of its capacity for the carriage of must-carry stations. Also, as noted above, the fact that Apollo may have to drop television broadcast stations or satellite delivered programming services that do not have mandatory carriage rights is not grounds to deny KRCA its right to mandatory carriage.

ORDERING CLAUSES 6. In view of the foregoing, we find that grant of KRCA's complaint is in the public interest. 7. Accordingly, IT IS ORDERED. That the "Complaint" (CSR-4266-M), filed May 31. 1994, by Fouce Amusement Enterprises, Inc. IS GRANTED in accordance with Section 614(d)(3) (47 U.S.C. 534) of the Communications Act of 1934, as amended. 8. IT IS FURTHER ORDERED That Apollo Enter prises, Inc. SHALL CARRY the signal of KRCA on its cable television system serving Cerritos, California, in com pliance with this Order, within forty-five (45) days of its release date. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson Deputy Chief, Cable Services Bureau

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