10 FCC Red No. 14 Federal Communications Commission Record DA 95-1358

notified Cox on October 28, 1994 that it was electing Before the must-carry status on Cox©s systems serving Orleans, Jef Federal Communications Commission ferson and St. Charles Parishes. Washington, D.C. 20554 3. In its Opposition, Cox states that the Commission should deny LeSEA©s must-carry request on two procedural grounds. First, Cox argues that LeSEA©s complaint should In re:© be dismissed because it was filed after the 60 day statute of limitations provided in Section 76.7(c)(4)(iii)(B) of the Complaint of LeSEA CSR-4453-M Commission©s rules had expired.2 In particular, Cox states Broadcasting Corporation that LeSEA notified Cox of its must-carry election in a September 27, 1994 letter from LeSEA©s Vice President to against Cox Cable Communications, Inc. Cox©s General Manager, to which Cox did not respond. Cox further states that, under the Commission©s sixty day Request for Carriage statute of limitations, LeSEA was required to file its com plaint by December 27, 1994 (which was sixty days after the expiration of the thirty day period within which Cox MEMORANDUM OPINION AND ORDER was required to respond to LeSEA©s alleged must-carry election). Cox concludes that LeSEA©s complaint filed Jan Adopted: June 14, 1995; Released: June 26,1995 uary 26, 1995 therefore is untimely. 4. Cox states that LeSEA©s September 27, 1994 letter "is By the Cable Services Bureau: quite clearly a demand that Cox begin full carriage of the station immediately." 3 Specifically, Cox cited the following language from the letter: INTRODUCTION 1. On January 26, 1995, LeSEA Broadcasting Corpora Our manager in is Everett Strong a tion ("LeSEA"), licensee of broadcast veteran radio broadcaster from here in New Orleans, WHNO (Channel 20), New Orleans, , filed a your marketing manager has met with him and in complaint against Cox Cable Communications, Inc. formed us that the system is full and the soonest we ("Cox"), operator of cable systems serving Orleans, Jef would be even be considered for full carriage would ferson and St. Charles Parishes, Louisiana for failure to be next year. This, of course, in unacceptable. We are carry its signal as required by Section 614 of the Commu looking forward toward working with you in positive nications Act of 1934, as amended.© LeSEA requests that manners [sic] for the full implementation of the Ca the Commission require Cox to commence carriage of ble Act.4 WHNO on its systems serving Orleans, Jefferson and St. Charles Parishes and that the Commission impose such other sanctions as may be appropriate, including a mone Cox further states that under the Commission©s regulations tary forfeiture. Cox filed an opposition to this complaint in effect at the time, September 27, 1994 was the appro on March 1, 1995, to which LeSEA replied on March 15, priate time for LeSEA to seek carriage of WHNO on the 1995. Cox systems. Cox states that under the Commission regula tions in effect on September 27, 1994, new television sta tions were required to make their initial SUMMARY OF PLEADINGS must-carry/retransmission consent election "within 30 days of commencing regular broadcasts."5 According to Cox, 2. In support of its petition, LeSea states that WHNO is a because WHNO commenced operation on October 21, full-power television station located in New Orleans, Lou 1994, LeSEA©s September 27, 1994 must-carry notice was isiana, and that because Orleans, Jefferson and St. Charles within thirty days "of commencing regular broadcasts," as Parishes are all within the New Orleans ADI, WHNO is contemplated by the Commission©s regulations in effect at entitled under Sections 76.55(c) and 76.56(b) of the Com that time. mission©s rules to carriage on Cox©s systems serving those parishes. LeSEA states that WHNO commenced operation on October 21, 1994, and that pursuant to the Commis sion©s regulations governing initial must-car ry/retransmission consent elections for new stations, LeSEA

1 The must carry rights in question were adopted in the Cable date on which the cable operator denies a request for carriage or Television Consumer Protection and Competition Act of 1992 within 60 days after the 30 day deadline for responding to a (1992 Cable Act), Pub. L. No. 102-385, 106 Stat. 1460 (1992). The request for carriage has expired. 47 C.F.R. §76.7(c)(4)(iii). Commission adopted implementing regulations in its Report 3 Answer, p. 5. and Order in MM Docket 92-259, 8 FCC Red 2965 (1993) 4 Id. ("Report and Order"). See also Clarification Order, 58 FR 32449 5 47 C.F.R. § 76.64(f)(4). The Commission subsequently modi (June 10, 1993). 47 U.S.C. § 535. fied Section 76.64(f)(4) to allow new stations to make their Under Section 76.7(c)(4)(iii) of the Commission©s rules, a initial must-carry/retransmission consent election "any time be must-carry complaint must be filed within 60 days after the tween 60 days prior to commencing broadcast and 30 days after commencing broadcast." Memorandum Opinion and Order in MM Docket 92-259, 9 FCC Red 6723 at 194 (1994).

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5. Cox©s second argument is that LeSEA©s complaint 10. This action is taken pursuant to authority delegated should be dismissed because LeSEA failed to serve a copy by Section 0.321 of the Commission©s rules. © of the Complaint on the franchising authorities in Orleans, Jefferson and St. Charles Parishes as required by Section FEDERAL COMMUNICATIONS COMMISSION 76.7(b) of the Commission©s rules.6 6. In its Reply, LeSEA states that the September 27, 1994 letter was not intended to be, and indeed under the Com mission©s rules in effect at the time the letter was sent, could not be, a request for carriage. LeSEA argues that Cox William H. Johnson has misinterpreted the Commission©s regulations governing Deputy Chief, Cable Service Bureau initial must-carry/retransmission consent election for new stations. Specifically, LeSEA argues that the Commission©s regulations in effect on September 27, 1994 required that new television stations make their initial must-car ry/retransmission consent election within 30 days after commencing regular broadcasts. LeSEA states that because WHNO did not commence regular broadcasts until Octo ber 21, 1994, the September 27, 1994 letter could not have been a request for carriage.7

DISCUSSION 7. We agree with LeSEA that the September 27, 1994 letter was not a request for carriage under the Commis sion©s rules in effect at that time, which required that new stations "make their initial [must-carry/retransmission con sent] election within 30 days of commencing regular broad casts." We agree with LeSEA that the Commission intended that new stations make their initial election with in thirty days after commencing regular broadcasts, not, as Cox argues, within thirty days before or after commencing regular broadcasts. Our interpretation is supported by the Report and Order, in which the Commission stated that new stations will be required "to make initial elections within 30 days after they begin regular broadcasts."* 8. Other than the alleged procedural deficiencies noted by Cox in its opposition, Cox has not raised any additional grounds for denying WHNO carriage on its systems serving Orleans, Jefferson and St. Charles Parishes. In view of our findings that LeSEA©s petition was filed timely, and that LeSEA has cured the service deficiency, we conclude that WHNO is entitled to carriage on Cox©s systems serving Orleans, Jefferson and St. Charles Parishes.

ORDERING CLAUSES 9. Accordingly, the petition filed January 26, 1995, by LeSEA Broadcasting Corporation IS GRANTED pursuant to Section 614(d)(3) (47 U.S.C. § 534) of the Communica tions Act of 1934, as amended, and Cox Cable Commu nications Inc. IS ORDERED to commence carriage of Station WHNO sixty (60) days from the release date of this order on its system serving Orleans, Jefferson and St. Charles Parishes, Louisiana.9

6 Section 76.7(b) of the Commission©s rules requires that a of the Complaint and Reply on all interested parties, as required must-carry complaint "be accompanied by a certificate of ser by Section 76.7(b) of the Commission©s rules, and the service vice on any system operator, franchising author deficiency noted by Cox therefore has been cured. ity, ... or other interested person who may be directly affected 8 Report and Order, 8 FCC Red at 3003 (emphasis added). if the relied requested is granted." 47 C.F.R. §76.7(b). 9 Based upon the totality of circumstances present, we do not 7 With respect to the service issue, LeSEA admits in its Reply believe that any sanctions are warranted against Cox cable Com that it failed to serve copies of its Complaint on all interested munications, Inc. parties, but LeSEA further states that it will remedy the service deficiencies by serving copies of the Complaint, together with its Reply, on all interested parties. LeSEA has in fact served a copy

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