In Re Complaint of ) JUAN WHEELER ) Vs. ) CSR4813-M KBL CABLESYSTEMS of the SOUTHWEST, INC. ) Dba PARAGON CABLE ) Request for Ca

Federal Communications Commission DA 97-17

Before the Federal Communications Commission Washington, D.C. 20554

In re Complaint of )

JUAN WHEELER ) vs. ) CSR4813-M

KBL CABLESYSTEMS OF THE SOUTHWEST, INC. ) dba PARAGON CABLE )

Request for Carriage of KVAW-TV, Eagle Pass, Texas )

MEMORANDUM OPINION AND ORDER

Adopted: January 3, 1997 Released: January 9, 1997

By the Chief, Consumer Protection and Competition Division:

1. Juan Wheeler ("Wheeler"), licensee of television Station KVAW-TV, Eagle Pass, Texas, filed a complaint pursuant to Section 614 of the Communications Act, as amended, 47 U.S.C. § 534, and Sections 76.7 and 76.61(a) of the Commission©s Rules, 47 C.F.R. §§76.7 & 76.61 (a), claiming entitlement to mandatory carriage of KVAW-TV on the cable system of KBL Cablesystems of the Southwest, Inc., dba Paragon Cable ("Paragon") in San Antonio and certain other communities in Bexar County, Texas. Paragon filed an Opposition to the complaint, and Wheeler filed a Reply.

BACKGROUND

2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, l 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 defined by the Arbitron audience research organization.2 An ADI is a

©8 FCC Red 2965, 2976-2977 (1993) ("Must Carry Order"). We note the constitutionality of the 1992 Cable Act©s must-carry provisions and the Commission©s implementing rules were initially upheld by the U.S. District Court for the District of Columbia. The U.S. Supreme Court subsequently reviewed the lower court©s decision and then vacated and remanded the case to the District Court for further fact-finding. See Turner Broadcasting System, Inc., et al. v. Federal Communications Commission, 819 F.Supp. 32 (D.D.C. 1993) ("Turner"), vacated and remanded, 114 S. Ct. 2445 (1994), on remand, 910 F. Supp. 734 (D.D.C. 1995). The Supreme court heard oral arguments on the District Court©s decision on remand in the Turner case on October 7, 1996.

©Section 76.55(e) of the Commission©s Rules provides that the ADIs to be used for purposes of the initial implementation of the mandatory carriage rules are those published in Arbitron©s 1991 -1992 Television Market Guide.

37 Federal Communications Commission DA 97-17 geographic market designation that defines each television market exclusive of others, based on measured viewing

3. On November 12, 1996, the Commission granted a television station market modification petition filed by Paragon under the provisions of Section 614 and modified KVAW- TV©s market to exclude San Antonio and the other communities in Bexar County, Texas served by Paragon from that station©s market. See KBL Cablesystems of the Southwest, d/b/a Paragon Cable, DA 96-1845, (Cable Serv. Bur., released November 12, 1996) ("Paragon").

MARKET FACTS AND ARGUMENT

4. The facts and circumstances of record relating to Wheeler©s request for carriage on Paragon©s cable system serving San Antonio and the Bexar County communities are the same as that considered in Paragon. KVAW-TV is located in Eagle Pass, Texas, some 130 miles from San Antonio, and its Grade B signal does not reach beyond Maverick County, Texas, where the station is located. Despite such great distance and the resulting failure of KVAW-TV©s Grade B signal contour to reach the San Antonio area, Wheeler claims entitlement to must carry on Paragon©s cable system. In support of this claim, Wheeler states that he has committed to transmit KVAW-TV©s signal to Paragon©s headend by a telephone line, that network programming in Spanish is broadcast over KVAW-TV, and that KVAW-TV©s signal is retransmitted by a translator station that places a Grade B signal over San Antonio. Paragon asserts in opposition that none of steps Wheeler has taken establishes KVAW-TV as a local station in this market for must carry purposes, and that therefore Wheeler has failed to establish that KVAW-TV is entitled to must carry on its cable system in the relevant communities.

DISCUSSION

5. Our decision in Paragon is dispositive in this matter, and accordingly we deny Wheeler©s complaint. In Paragon, we found that KVAW-TV is located geographically some 130 miles from the relevant communities. We also found that KVAW-TV provided no over-the-air signal coverage of the San Antonio and Bexar County area and had no history of carriage in the San Antonio area communities at issue. We noted further that neither San Antonio©s daily newspaper, the Express News, nor the San Antonio editions of TV Guide carried listings for KVAW-TV, and that KVAW-TV offered no programming specifically for the San Antonio and Bexar County area. Based on those considerations, which we deemed probative under the statutory factors set forth in Section 614(h)(l)(C) of the Communications Act, we determined that the exclusion of these particular communities from KVAW-TV©s market for must carry purposes served in the public interest.

6. Nothing presented in Wheeler©s complaint requires us to reach a different result here, or supports a finding that KVAW-TV is a "local" station within the meaning of Section

38 Federal Communications Commission DA 97-17

614(h)(l)(A),3 thus entitling KVAW-TV to carriage on Paragon©s cable system serving the communities in question. As noted earlier, Wheeler presents no factual information or data in his complaint that was not considered by us in Paragon. Moreover, the Commission, in the Must-carry Order, pointed out that Section 614 (h)(l)(C) specifically excludes translators from the definition of a local commercial station.4 Further, KVAW-TV©s presence as a local station in the relevant communities has not been established by carriage of KVAW-TV on a translator station or the proposed delivery of KVAW-TVs signal to Paragon©s headend by telephone line.5

ORDER

7. For the foregoing reasons, IT IS ORDERED, pursuant to Section 614 of the Communications Act, that the complaint filed August 22, 1996 in File No. CSR 4813-M by Juan Wheeler IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau

©See Paragon, ^ 21. We also held that Spanish language network programming provides KVAW-TV with no credit for programming specifically for the San Antonio area communities. See Paragon, t 22.