“The Jewish Cowboy” of California’s Coachella Valley will now be arguing that his TV broadcasting company’s civil rights were violated by one of the nation’s biggest MVPDs in federal court, rather than in state court.
It’s the latest chapter in a 2 1/2 year quest by Clark Garen, Managing Member of Tara Broadcasting, to get a low-power television station serving the Palm Springs, Calif., DMA on Charter Communications‘ Spectrum systems in the city of Beaumont.
For $85,000, Tara Broadcasting in August 2012 acquired a 3,000-watt facility at Channel 4, KAKZ-LD in Palm Springs.
Under the direction of Garen, KAKZ has taken on life as locally focused “Coachella Valley Classic Television.” On its DT-2 signal is “Westerns 4U.” Its KAKZ’s DT-3 signal is the Palm Springs DMA’s Azteca América affiliate and the focal point of a legal battle that on Thursday (3/15) shifted from state to California federal court.
In Tara’s view, the denial of a channel slot on Charter Spectrum amounts to a civil rights violation under California law.
It will now be up to Judge Andre Birotte Jr. of the U.S District Court for the Central District of California to decide if the company is correct or not with that interpretation of the Golden State’s civil rights statute.
Tara’s frustrations began in September 2015, when Garen — who is also a licensed attorney in the state of California — responded to a letter from Time Warner Cable Senior Counsel for Programming Gregory Cameron regarding the denial of must-carry status for KAKZ.
Garen “completely agrees” that Time Warner was not required by the FCC to carry KAKZ “and never submitted a request for carriage” under 47 U.S.C. 534(h) (2) (F), the official language the Commission authored regarding must-carry rules.
However, Garen claimed, Time Warner — which is now Charter Communications’ Spectrum service — is required under this code to carry KAKZ-DT 3 in Banning, Calif..
While Banning is on the western edge of the Palm Springs DMA and neighbors the town of Beaumont — within the massive Los Angeles DMA — just two Palm Springs broadcast TV signals are on the channel lineup: News Press & Gazette-owned ABC affiliate KESQ-42, and CBS-affiliated multicast KESQ-42.2. These signals are on Channel 3 and Channel 20, respectively. However, KABC-7 and KCBS-2 are also present.
Thank terrain, heritage TV viewing habits and commuting patterns for the dominance of L.A. signals in Banning, which is just east of Riverside and San Bernardino and is now a bedroom community to the Inland Empire and even some cities in inland Orange County, Calif.
If Garen’s argument has merit, this could result in a dramatic change for Spectrum subscribers in Banning, as News Press & Gazette’s KDFX-CD, the FOX affiliate; and Entravision‘s TV stations including NBC KMIR-36 would also have an argument that they too should be included. In his interpretation of the must-carry rules, “This statute does not include the terms ‘local commercial television station’ or ‘qualified low power station.’”
But, is KAKZ-LD a “qualified” station in Banning? Garen says the station’s tower is “only 20 miles away” from Banning.
What he doesn’t say is that the tower is on the other side of the San Gorgonio Pass, which obstructs several radio and TV signals of varying power output. For example, K251BX, an FM translator in Palm Desert, Calif., at 98.1 MHz, cannot reach Cabazon — just east of Banning. Does KAKZ-LD have a similar challenge, worsened by the fact that it is a co-channel station to giant KNBC-4 atop Flint Peak?
These questions could be considered by Judge Birotte, as other court cases in which Charter is being accused of unfair selectivity are being tried across the U.S.
For the record, Garen made a gesture that would erase any questions regarding poor signal coverage: He is prepared to provide a hard wire or microwave signal to Spectrum and pay for a dedicated line, and even suggested “joint marketing efforts,” and airing advertisements promoting the MVPD (formerly Time Warner Cable) at no cost. Spectrum still declined to move forward with the offer.
How did Garen arrive at the civil rights violation claim?
“In the case of KAKZ, this claim is easily established,” Garen notes.
Why? The Palm Springs market is 51.4% Hispanic, he wrote to Charter. This segment of the population is “served by only two television stations,” both of which are LPTV facilities. “These statistics establish a prima facia case of discrimination against the 51.4% majority Latino population.”
As 60% of homes in the Palm Springs market receive their TV signals from Spectrum, “a television station cannot be an economically viable business when it is denied access to 60% of the homes in a market.”
Thus, he says without citing language use among Palm Springs’ Hispanic population, “KAKZ can establish it is a member of a protected class because it serves the Latino community, and … is suffering a disparate act because Spectrum is denying it access to 60% of the Palm Springs market.”
“In the case of KAKZ, this claim is easily established,” Garen notes.
Why? The Palm Springs market is 51.4% Hispanic, he wrote to Charter. This segment of the population is “served by only two television stations,” both of which are LPTV facilities. “These statistics establish a prima facia case of discrimination against the 51.4% majority Latino population.”
As 60% of homes in the Palm Springs market receive their TV signals from Spectrum, “a television station cannot be an economically viable business when it is denied access to 60% of the homes in a market.”
Thus, he says without citing language use among Palm Springs’ Hispanic population, “KAKZ can establish it is a member of a protected class because it serves the Latino community, and … is suffering a disparate act because Spectrum is denying it access to 60% of the Palm Springs market.”
Even if Garen “wins,” there’s no guarantee any KAKZ signals will ever appear on Spectrum in the Coachella Valley of California.
“None of these actions can force Spectrum to carry the signal of KAKZ,” Garen says. “While injunctive relief may be available under the statute, KAKZ will elect not raise any jurisdictional issues by seeking injunctive relief. KAKZ will only seek remedies that are undisputably within the jurisdiction of a California Court which are to award monetary damages. If Spectrum wants to pay KAKZ much as $150,000 per month not to carry its signal, KAKZ is prepared to live with that result.”
RBR+TVBR
