HomeMy WebLinkAbout720444.tiff S1�DO
COUNTY OF WELD sS.
Before the Filed with the Clerk of the Board
FEDERAL, COlbxMUNJC.ATIONS CO1vIMISSION of County Commissiono.s
Washington, D. C. 20554 NOV 1 1972
COUNTY CLERK AND RECORp FA
In re Applications of ) 1Bv Deputy
)
GREELEY VIDEO ) File Nos. CAC- 1105
) CAC-1106
For Certification o£ New Cable )
'Television Systems Serving Greeley ) Coda Nos. OOO=17
and Weld County, Colorado ) COO48
To: The Commission
OPPOSITION TO APPLICATIONS FOR CERTIFICATION •
AND REQUESTS FOR SPECIAL RELIEF
WGN of Colorado, Inc. , licensee of independent television
station KWGN-TV, Denver, Colorado, hereby opposes the Applications
for Certification and Requests for Special Relief filed by Greeley
Video for cable television systems to be operated in the City of
Greeley, Colorado and adjacent areas of Weld County, Colorado.—/
Background
Beginning in 1968, Greeley Video has sought waiver of
the Commission's cable rules to import the signals of numerous
West Coast independent stations into the Denver television market.
Greeley is a community of 38, 902 people (1970 U.S. Census )
1/ Greeley Video filed a "lead application" for its system in the City
of Greeley (CAC- 1105) and a separate application (CAC- 1106), incor-
porating by reference the City of Greeley filing, for the Weld County
system which will operate from the same headend.
720444
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lying to the northeast of Deliver in Weld County. Greeley Video
proposes to construct and operate a cable television system in the
City of Greeley and in unincorporated areas of Weld County. This
system will be interconnected with systems operated by "sister
companies" in Fort. Collins, Loveland. and Longmont, Colorado.
Application for. City of Greeley (hereinafter "App. "), p. 5.
Initially, Greeley Video sought waiver of the Commission's
carriage rules to carry the signals of the following ten stations
(CATV 100-300 and 100-325):
Broadcast
Station Location Channel • Service
KTVU San Francisco 2 Independent
KQED San Francisco 9 Educational
KTLA Los Angeles 5 Independent
KTTV Los Angeles _ 11 Independent
KCOP .Los Angeles 13 Independent
KCET Los Angeles 28 Educational
KMEX-TV Los Angeles - 34 Spanish
KWHY-TV Los Angeles 22 Independent
KLXA Los Angeles 40 Independent
KM'TW Los Angeles 52 Independent
KWGN-TV, as well as KRM.A-TV and KBTV, Denver, filed objections.
Subsequently, on December 11, 1969, Greeley Video renewed its
waiver. request (CATV J.00-473) for the following stations:
KTLA Los Angeles 5 Independent
KHJ-TV Los Angeles 9 Independent
KTTV Los Angeles 11 Independent
KCOP Los Angeles 13 Independent
XF..J-TV Jua.rel, Mexico 5 Spanish
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KWGN-TV and K.BTV opposed this propo;;0 since it would result
in the "leapfrogging" of fourteen indepe.tndent television stations. Since
the Commission had not granted either of the above requests for waiver,
Greeley Video here seeks special relief to carry the signals of the
four Los Angeles independent stations and a Suarez Spanish-language
station.
Under the Commission's new cable television rules, how-
ever, Greeley Video is not entitled to carry any distant signals.
Greeley and adjacent areas of Weld. County lie within the 35-
mile zone of Fort Collins, a community for which Mountain State
Radio and Television Corporation holds a construction permit to
operate on Channel 22. App. , pp. 3-4. Since Greeley Video's sys-
tem therefore lies within a smaller television market (§76. 5(i)), it
is entitled to carry the signals of three netN,vork stations and one in-
dependent station. See 5,76. 59(b). Here, the three Denver network
stations and KWGN-TV provide Grade Ii or better service to Greeley
and adjacent areas of Weld County, ant their signals must be carried
by Greeley Video in accordance with §76. 59(a) of the rules.
In any event, even assuming, arguendo, that Greeley could car-
ry distant signals, it would be prohibited from importing the signals of
•
Los Angeles stations which are located 890 miles from the City of
Greeley. See "Request for Interim Authority and Waiver of•.Lcap •
-
frogging Provision, " p. 5, CATV 100-473, filed December ] 1, 1969.
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Under §76. 59(b)(2) of the rules, if Greeley chooses to carry the sig-
nal of a sta.t:ion in the first Z5 markets (Los Angeles is ranked se-
cond per §76. 51(a)), it must choose one of the two closest top-25
markets, namely, Minneapolis (13th market, 655 miles) and Kansas
City, Missouri (22nd market, 535 miles). See "Request for Interim
Authority, " supra, p. 5. Therefore, a grant of Greeley's request
for special .relief requires waiver of the signal carriage rules as
to both the permissible number of distant signals and the leapfrog-
ging restriction.
Waiver of the Signal Carriagc: Rifles
Greeley's request for waiver must be viewed in the light
of the Commission's note to §76. 59 (b)(2), the leapfrogging restriction,
which provides as follows:•
"It is not contemplated that waiver of the pro-
visions of this subparagraph will be granted. "
Similarly, the Commission, in the Memorandum Opinion and Order
on Reconsideration of the Cable Television Report and Order, 25 RR
2d 1501., 1512 (1972), reiterated that the "rule adopted strikes the
appropriate balance, and we reassert that we do not contemplate its
waiver. "
Ignoring the Commission's restrictive policy on waiver
requests, Greeley asserts that its situation is unique (App. , p. 7)
since the system is obligated by its franchise to provide access
services which it asserts are similar to those required of systems
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located in top-100 market communities. App. , p. 5. The argu-
ment continues, since the rules permit these major market systems
to carry the signals of four independent stations (App. , p. 6),
Greeley should also be perritted to carry the signals of four dis-
tant independent stations.
Greeley would have great difficulty in showing that its fran-
chise is in fact unique since the Commission expressly permits smal-
ler market "local authorities to require access services, so long as
they are not in excess of what we require for the major markets. "
Cable Television Report and Order, 24 RR 2d 1501 , 1561 (1972). •
Moreover, the provision of access services is not, as Greeley im-
plies, the rationale for permitting carriage of distant independent
signals in top-100 market communities. In the Cable Television
• Report a.nd Order, 24 RR 2d at 1543, the Commission observed that
the complement of additional independent signals permitted major
market systems is needed to facilitate the growth of cable television
in these markets and that such carriage "is acceptable in terms of
impact on broadcasting. " Thus, the "signal carriage rules are
tailored to markets of varying size in accordance with the estimated
ability of these markets to withstand additional distant signal compe-
tition. " 24 RR 2d at 1536. Here, Greeley Video has introduced no
evidence which would indicate that: the Commission underestimated
• the ability of a Fort Collins station to withstand the impact of the
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carriage of dist.ani siganl:i; nor is it likely tln t it. could rna.ke; such
a shoving since carriage of four Los Angeles VIII' independents will
surely have a substantial competitive effect on a new UHF station.2/
Any reliance on the provision of access services also
fails for the simple reason that: Greeley Video has not shown that it
will in fact undertake to provide access services which "are strik-
ingly similar -- indeed, almost idential --" to that required of
major market cable television systems. App. , p. 4. For example,
(:Greeley nowhere states that it will provide separate channels for
public access, educational access and local government access,
facilities which a major market system is required to provide under
§76. 251(a) of the Commission's rules. Greeley •offers to supply
only a studio "to be made available for educational, public, quasi-
public or similar programs. " App. , p.4. Similarly, instead of
maintaining a plant having technical capacity for two-way cornmuni-
ca.t:ions, Greeley offers only to provide the technical capacity for
interconnection channels for use by City Hall, the Police Department,
2/ By adding; apples and oranges, Greeley attempts to show (App. , p. 6
that the population of the area it serves compares to that in markets
• 98 through 100. It compares the population of the designated commu-
nities in each market, not the entire market, to the population of
Greeley, Fort Collins, Loveland and Longmont (121, 688). In each of
the 98-100 markets, however, the number of television. households far
exceeds even the population of the communities served by Greeley
Video: Columbia, South- Carolina, 150, 800 television households,
1972-73 Television Factbook, p. 691 -b; Monroe, Louisiana-Eldorado, •
Arkansas, 138, 000 television households, Id, , p. 325-b: Fargo-
Valley City, North :Dakota, 1.54, 200 television. households, Id. , p. 584-b.
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public library, Civil Defense: Headquarters and the Sheri.ff's De-
partment. App. , p. 5.
Finally, the strained analogy to the major market situa-
tion fails for the further reason that major market systems may
not carry the signals of four distant independent stations as Greeley
implies (App. , pp. 6-7). A system located in a second-50 major mar-
ket, as .Greeley asserts, may carry four independent signals, but at most
only two of these signals, not !four, may be brought in from other markets.
See §76. 63(a).
Franchise Standards
Greeley Video's applications are also deficient in terms of
• the minimum franchise standards embodied in §76. 31 of the cable tele-
vision rules. Section 76. 31(a)(1) requires that the "franchisee's legal,
character, financial, technical, and other qualifications, and the ade-
quacy and feasibility of its construction arrangements, have been
approved by the franchising authority as part of a full public proceeding
affording due process. " The Co.mmission stated that it expects that
"franchising authorities will publicly invite appli-
cations, that all applications will be placed on
• public file, that notice of such filings will be given,
that where appropriate a public hearing will be
held to afford all interested persons an opportunity
to testify on the qualifications of the applicants,
and that the franchising authority will issue a pub-
lic report setting forth the basis for its action. "
Report and Order, supra, 24 RR. 2d at 1576.
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Gree7.ey Video provides no information to indicate whether either the
franchise for the City of Greeley or Weld County was granted tinder
these circumstances. The City of Greeley franchise does n.ot even
contain a recitation to the effect that the franchise was granted in a
proceeding affording due process. App. , p. 8.
In addition, the City of Greeley franchise provides for a
franchise fee as high as ten percent of Greeley's gross annual revenues,
which is double the maximum fee permitted by §76. 31 (b). App., Exh.
IC. Greeley requests (App. , p. 10) that this franchise fee "provision be
grandfathered" in accordance with 3f 115 of the Commission's Memora.n-
clam Opinion and Order on Reconsideration of the Cable Television
Report and Order, supra. Paragraph 115, however, provides that
"any system that, in reliance on the existing franchise, has made a sig-
nificant financial investment or entered into binding contractual agree-
ments prior to the effective date of the rules but was not operational by
that date, may request that its inconsistent franchise be grandfathered
until March 31, 1977 upon such a showing in a petition for special re-
lief. " 25 RR 2d at 1543. Greeley Video merely petitions for grand •
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father rights, and makes no specific showing either that it has made a
substantial financial investment or entered into binding contractual
agreements.
Conclusion
Greeley Video's Applications for Certification and Re-
quests for Special Relief are the most recent attempts to obtain
Commission approval. of proposals to leapfrog numerous independent
stations in order to carry the signals of West Coast stations.
Recognizing that such proposals threaten the viability of local television
service, the Commission has adopted cable television rules which preclude
the carriage of the signals proposed here and expressly provide
that waivers are not contemplated. In addition, the applications
here are inconsistent with the Commission's minimum standards
for cable franchises.
Respectfully submitted,
WGN OF COLORADO, INC.
By
R. Russell Eagan
Erwin G. Krasnow
•
John C. Quale
of
Kirkland, Ellis & Rowe
1776 K Street, N. W.
• Washington, D. C. 20006
202/833-8400
October 30, 1972 Its Attorneys
CERT11 KATE O:E% STS R.VICE
The undersigned hereby certifies that she has this 30th
clay of October, l 972, caused to be deposited in the United States
snail, postage prcpa.id, true and correct copies of the foregoing
"Opposition to Applications for Certification and Requests for Spe-
cial Relief" a.ddre s s ed to the f olloiving:
Cole, Zylstra & Raywid Mountain State Radio & TV Corp.
"2011 Eye Street, N.W. 212 S. College Avenue
Washington, D. C. 20006 Ft. Collins, Colorado 80521
Counsel for Greeley Video
Superintendent of Schools
Koteen & Burt City of Greeley
1000 Vermont Avenue, N. W. Greeley, Colorado
Washington, D. C. 20005
Counsel for KFBC-TV City Council
and KMGH-TV City of Greeley
Greeley, Colorado
Dow, Lohnes & A1.bertson
1225 Connecticut Avenue, N.W. State Department of Education
Washington, D. C. ?.0036 Media Production Center
Counsel for KBTV 201 E. Colfax Avenue
. Denver, Colorado 80203
]McKenna, Wilkinson & Kittner
1150 17th Street, N.W. Superintendent of Schools for
Washington, D. C. 20036 Weld County
Counsel for KOA-TV Greeley, Colora.clo
Jorgensen & Resnick Board of County Commissioners
19"26 Eye Street, N.W. of Weld County
Washington, D. C. 20006 Greeley, Colorado
Counsel for KRMA-TV
Day Walker
2-,/X /y
July 7, 1972
ADO
COUNTY Ok WELD s5.
Filed with the Clerk of the Board
of County Commisshnnrs
County Commissioner's Office �J+UL 1 01972
Weld County Courthouse [�+W --n.V
Greeley, Colorado 80631 COUNTY CLEAR AND.r o.ora
BY Deputy
Dear Sir:
Peat, Marwick, Mitchell & Co. , 1600 Broadway, Denver, Colorado,
80202 are making their usual examination of our accounts. We
would appreciate, therefore, if you will please furnish them with the
following information in regard to Greeley Video, Inc.
as of the close of business on May 31 , 1972:
(1) Confirmation by signing and returning this
letter that Greeley Video, Inc.
is the holder of a permit or franchise for operation
of a cable TV system, as set forth in your
Ordinance 71967 adopted on July 19, 1967.
(2) The number and date of adoption of any ordinances
or resolutions which affect the provisions contained
in that permit adopted subsequent to the ordinance
granting the permit.
Thank you for your immediate attention to this confirmation request.
Sincerely yours, �r
Fred J . Bur nt, Jr.
Treasurer
The above is correct S Incorrect ( )
fizr/� ca. pcur( -717- ,P-
Exceptions
Si gnature4;27 "L1/��-1 G,
Chairman of the Boa
DANIELS PROPERTIES INC. I 2930 EAST 3RD AVENUE I DENVER,COLORADO 80208 I 303 3217550
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