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Federal Communications Commission Record 11 FCC Red No.7

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Federal Communications Commission Record 11 FCC Red No.7 DA 96-306 Federal Communications Commission Record 11 FCC Red No.7 with maximum ERP of 5,000 kilowatts with an antenna Before the height above average terrain of 566 meters from a transmit- Federal Communications Commission ter site approximately 30 miles south of Houston; and (3) Washington, D.C. 20554 the station places a predicted City Grade contour over virtually all of the City of Houston. 3. KLTJ(TV) explains that Prime Cable, in an April 20, In re Complaint of 1993 correspondence, advised KLTJ(TV) of the location of its principal headends of its Houston ADI systems. In that GO, Inc. (KLTJ(TV) CSR-4613-M same letter, Prime Cable questioned KLTJ(TV)'s status as a Galveston, TX noncommercial television station and asked for clarifica- tion with regard to this matter. KLTJ(TV) stated that it For Carriage on Prime Cable of Fort Bend believed it was a noncommercial television station but even if it were determined that it did not qualify for such status, it would be eligible for carriage as a commercial television and station; KLTJ(TV) then asked what the operator's inten- Prime Cable Income Partners, L.P. tions were in light of this information. According to KLTJ(TV), Prime Cable did not respond to the station's request either on May 3, 1993 or later and that KLTJ(TV) MEMORANDUM OPINION AND ORDER did not pursue the matter further at that time since it would have been considered distant Station for copyright Adopted: March 4, 1996; Released: March 20, 1996 purposes and did not want to pay any indemnification costs arising from carriage on Prime Cable's systems. The sta- By the Deputy Chief, Cable Services Bureau: tion, however, renewed its must carry request by letter on August 7, 1995 after recognizing that Congress eliminated 1. GO Inc., licensee of television station KLTJ(TV)(Ch. the copyright indemnification requirement through a 1994 22), Galveston, Texas, filed a must carry complaint against amendment to Section 111 of the Copyright Act. KLTJ(TV) Prime Cable of Fort Bend, L.P. and Prime Cable Income states that Prime Cable has not responded to that letter and Partners, L.P., asking the Commission to enforce its signal has not challenged the station's legal right to carriage. carriage rights on the operator's cable systems serving sev- KLTJ(TV) asserts that Prime Cable's failure to carry its eral communities in the Houston television market.' Prime signal is the specific event giving rise to this complaint, Cable filed an opposition to this must carry complaint to which is being filed in a timely fashion. KLTJ(TV) con- which KLTJ(TV) filed a reply. cludes by stating that Prime Cable's refusal to carry its 2. KLTJ(TV) states that the instant filing arises out of signal is unlawful and that the operator's lack of good faith Prime Cable's refusal to carry the station's signal in the warrants sanctions.2 above referenced communities notwithstanding KLTJ(TV )'s 4. Prime Cable argues that it opposes KLTJ(TV)'s must must carry status and despite KLTJ(TV)'s August 7, 1995 carry complaint for the reasons set forth in the petition for letter request for carriage. KLTJ(TV) recites the following special relief filed by Time Warner Cable of Houston, factual information pertinent to its must carry complaint: Texas on September 6, 1995 in CSR-4586-A: that petition (1) the station is licensed to Galveston. Texas, which is sought to exclude KLTJ from the Houston ADI for must located approximately 45 miles southeast of Houston (cen- carry purposes based upon the four statutory criteria set for ter-to-center) in Brazoria County: (2) the station operates in Section 614 of the 1992 Cable Act.' Prime Cable sepa- The cable communities are: LaPorte (TX 0808); Highlands vide local service to the relevant communities. According to (TX 0636 and TX 0867); Humble (TX 0574); Channelview (TX 'Fime Warner, the station's weekly programming shows little 0785); Pasadena (TX 0252): Deer Park (TX (1806); Katy (TX commitment to covering "purely" local events in the cable 0540); South Houston (TX 0381); Sugar Land (TX 1136); Rich- communities as it does not air any traditional local news pro- mond (TX 0797); and Needville (TX 0701). 2 grams or coverage of any local sporting events. Furthermore, KLTJ(TV) requests that, pursuant to Section 503(b)( l)(B) of the one show that ostensibly covers local issues, "Chat with the Communications Act and Section 76.9 of the Commission's Pat", is broadcast for only one hour per week and are often rules, a forfeiture should be imposed upon Prime Cable for its repeats of old programs. Referring to the third factor, Time willful and repeated violation of the must carry rules. Warner stated that several Houston area ADI stations, which In its petition for special relief, Time Warner requested that have been carried for several years on the cable system, provide the television market of KLTJ(TV) be modified so as to relieve extensive local programming throughout each programming it from any obligation to carry that station on the system which day. Time Warner also mentioned that it meets local commu- serves communities located in Harris, Ft. Bend, and Brazoria nity concerns through its carriage of educational and public Counties, Texas. Time Warner believed that it should be grant- access channels as well as the Weather Channel. Finally, the ed the requested relief because the station fails to satisfy any of operator asserted that KLTJ(TV) has insignificant viewing in the four market factors set forth in the 1992 Cable Act and the the area, with the 1995 Nielsen County Coverage Report show- Commission's rules. With regard to the historical carriage fac- ing that KLTJ(TV) did not meet the minimum reporting stan- tor, Time Warner asserted that KLTJ(TV) has never been car- dards in Harris and Brazoria counties; in Fort Bend County, ried on the system although it has been on-the-air since 1989. only 1% of the TV households viewed the station at least one The operator stated that the system would have voluntarily quarter-hour during the average day, and only 3% of the TV carried KLTJ(TV) if the station's programming would have households viewed the station during at least one quarter-hour increased the value of the channel line-up or there was sub- in the course of an average week. scriber demand. Moreover, no other local cable operator carries KLTJ's signal. Second, Time Warner alleged that KLTJ(TV), through its broadcast of religious programming, does not pro- 3508 11 FCC Rcd No.7 Federal Communications Commission Record DA 96-306 rately asserts that the station is not entitled to carriage ORDERING CLAUSES because there are several television stations licensed to 8. Accordingly, IT IS ORDERED, that the petition communities in the Houston ADI which provide local (CSR-4613-M) filed November 6, 1995, by GO, Inc., IS programming and are geographically closer to Houston GRANTED. Prime Cable is therefore required to carry the than Galveston.4 Prime Cable also argues that even though signal of KLTJ(TV) on its systems serving the aforemen- KLTJ(TV)'s Grade B contour covers most of the Houston tioned communities. GO, Inc. shall notify Prime Cable in area, this point should be ignored since the station does not writing of its carriage and channel position elections, provide programming of local interest. Finally, Prime Ca- (76.56, 76.57, 76.64(f) of the Commission's Rules), with- ble submits that KLTJ(TV) has no discernible ratings in the in thirty (30) days of the release date of this Memorandum Houston market and is not significantly viewed in any Opinion and Order. Prime Cable shall come into compli- Texas county. ance with the applicable rules within sixty (60) days of 5. KLTJ(TV) replies to Prime Cable's assertions by stat- such notification. ing that the speciousness of Time Warner's arguments, with 9. These actions are taken pursuant to authority dele- regard to its ADI modification petition, were fully gated by §0.321 of the Commission's Rules. documented in KLTJ(TV)'s October 4, 1995 "Opposition to Petition for Special Relief."5 The station states that Prime Cable's Grade B argument is only an "irrelevant FEDERAL COMMUNICATIONS COMMISSION diversion" because KLTJ(TV) places a City Grade signal over virtually the entire city of Houston including the communities served by the operator. KLTJ(TV) also argues that Prime Cable has not responded to its request for sanctions and thus, sub sile,uio, concedes the legitimacy of William H. Johnson the station's position. Deputy Chief, Cable Services Bureau 6. We will grant KLTJ(TV)'s must carry complaint. As a preliminary matter, we note that KLTJ(TV) is licensed as a noncommercial educational television station ("NCE"). However, KLTJ(TV) is not considered a "qualified" NCE station under Section 615(l)(l) of the 1992 Cable Act or Section 76.55(a) of the Commission's rules because it is not eligible to receive a community service grant from the Corporation for Public Broadcasting.6 Nevertheless, we have held that non-qualified NCEs should be treated as default commercial stations under the must carry rules.7 7. In a separate Memorandum Opinion and Order re- leased today, we deny Time Warner's request to modify KLTJ(TV)'s television market for must carry purposes.8 Thus, Prime Cable's arguments against carriage of KLTJ(TV), which were largely premised upon Time Warner's reasoning, are rejected as well.
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