FCC Record, Volume 28, No. 1, Pages 1 to 975, January 2 - January 31, 2013 Page: 31

over the air on its "primary stream," channel 42.1.16 However, Liberty does not carry WIRS on a cable
channel at all, according to America-CV, even though the station and the operator's system share the
same local market."7 America-CV states Liberty cannot argue it is carrying WIRS by virtue of carrying
that station's AmericaTdvd programming on cable channel 24 because this is the channel on which
WJPX's primary stream should be airing,'3 and America-CV argues it is entitled to choose which of its
streams is "primary" and entitled to mandatory carriage.9
5. America-CV did not make a carriage election for either WJPX or WIRS last year during the
October 2011 election cycle, Thus, both stations are must carry stations by default under Section 76.64 of
our rules.20 However, on June 19, 2012, America-CV did send Liberty a carriage demand letter for WIRS
in which it stated that WIRS' programming was about to change and diverge from that of station WJPX
as of August 1, 2013, ending Liberty's exemption from carriage of both stations under Section
76.56(b)(5) of the Commission's rules.2' The letter also sought carriage for WIRS on its virtual channel
number - which it assumed was channel 41, or in the alternative on channel 42, which it called its over-
the-air RF channel number. In actuality, 41 is WIRS' current RF channel number while channel 42 is
WIRS' major channel number as contained in its PSIP.22 America-CV asserts Liberty received its letter
on June 25 but never responded.23 Discussions between America-CV and Liberty took place from August
6, 2012 until August 14, 2012, when Liberty's counsel informed America-CV that he was no longer
authorized to represent Liberty, and communications ended.24
6. America-CV asserts WJPX provides a good quality signal to Liberty's cable system headend
where it has received WJPX's signal for many years,25 but it concedes WIRS' signal may not currently be
strong enough to reach the headend.26 However, America-CV argues that because WJPX carries
AmericaTdv6 programming on channel 24.2, the same programming carried on WIRS' primary stream, it
is entitled to deliver WIRS' programming as part of WJPX's multicast transmission as an alternative
means of delivery pursuant to 76.55(c)(3) of our rules.27 Additionally, it has offered delivery via fiber as
161d at 3.
'7Id at3 & 5.
' Id at 5.
19 Id. at 2-3. America-CV argues it did not inform Liberty when it changed the programming on channel 24.1 from
AmericaT6v6 to MundoFox because no regulation or statute links mandatory carriage to program content, and a
broadcast licensee is not required to inform cable operators of changes in program content when it is not requesting
any change as to which signal stream should be carried. Reply at 3-4.
20 Complaint at 2.
21 Id at 3 and Exhibit 2, Letter from Marcos Crespo, Operations Manager, WIRS to Naji Khoury, General Director,
Liberty PR, June 19, 2012, at 1-2 ("Demand Letter").
22 Id at Exhibit 2, Demand Letter at 2; Reply at 7 n.12. America-CV noted Liberty currently carries the FX
Network on cable channel 42. See Complaint at 6 n.15.
2 Complaint at 3 & n.6 (citing Exhibit 2, USPS Track and Confirm printout showing delivery on June 25, 2012).
24 See id at 4 & n.8.
25 See id at 4.
26 Reply at 5 & n.8 (stating that WIRS holds a granted construction permit to increase its power, which it asserts
should improve its signal at Liberty's headend).
27 See Complaint at 4-5. America-CV argues Liberty's ability to historically carry channel 24.1 via over-the-air
pickup demonstrates the sufficiency of the channel 24.2 signal. See id at 5. To support its argument that a non-
primary stream of WJPX may be used as an alternative method to deliver WIRS' primary stream, America-CV cites
Jovon Broad Corp. v. RCN Corp., 18 FCC Red 8145 (MB 2003). In this case, a station was able to use its identical
digital secondary transmission of its programming as an alternative method for delivering a good quality signal to a

31

Federal Communications Commission

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United States. Federal Communications Commission. FCC Record, Volume 28, No. 1, Pages 1 to 975, January 2 - January 31, 2013, book, January 2013; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc171173/m1/46/ocr/: accessed August 17, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.

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