SAN DIEGO — KUSI-TV (Channel 51) has filed a formal request with the Federal Communications Commission to force the Fox Broadcasting Co. to drop Mexican-licensed XETV (Channel 6) as an affiliate.
The request is the first salvo in what could be a long battle over the lucrative San Diego rights to air Fox's "The Simpsons" and other shows.
"Before they go to a foreign station, if there is a station comparable, they should use the U.S. station first," Channel 51 owner Michael McKinnon said. His station would be the likely benefactor should the FCC agree with him.
There is a parallel for such an argument. XETV was an ABC affiliate until the 1960s, when the owners of Channel 39, then known as KCST, sued to force ABC to drop the Mexican-based station. After years of legal wrangling, the effort eventually succeeded, and ABC moved to Channel 39.
But XETV general manager Martin Colby says there is no relationship between the ABC case and the current situation. For one, unlike ABC, Fox is still not legally classified as a network. That position was buoyed by the FCC's decision last week to continue to classify Fox--which is resisting efforts to be classified as a network--as a non-network as long as it doesn't send out more than 15 hours a week of national programming. It now programs 11 hours a week, including "The Simpsons," "Married With Children" and "In Living Color." Being classified as a network would severely hamper Fox, especially in the big-money syndication business.
"Now that the commission has decided that Fox is not a network, you can reach your own conclusion about the fate of Mr. McKinnon's petition," Colby said.
McKinnon said he doesn't expect the commission to consider his request, filed in March, for at least six months.
McKinnon's fight is with Fox, not XETV. He said he has been trying to persuade Fox for six months to switch affiliations without any success.
"They basically told us to go peddle our papers," McKinnon said.
Colby is not without clout at Fox. He serves on the board of directors of the Fox affiliates and is a former chairman of the organization.
Preston Padden, Fox's senior vice president of affiliates, said, "We are delighted with our association with Channel 6, period. We believe the KUSI petition is completely without merit."
In a sense, McKinnon is asking the FCC to make a new rule. That will be difficult, for a variety of legal reasons. Not only is Fox not legally considered a network, but XETV manages to skirt another part of McKinnon's case by employing an unusual system for carrying the Fox shows.
Most network affiliates pick up a show via satellite and instantaneously broadcast it to viewers. But XETV tapes the Fox shows off the satellite when they air in Eastern time zones, then transports the tapes across the border for transmission.
By using this system, XETV officials can honestly say they are not directly transmitting the signals of a U.S. programming entity, which may be an important point to the FCC. For example, U.S.-based radio companies that operate Mexican stations, such as Noble Broadcasting and XTRA, need a special waiver to directly transmit their signals from the American side of the border to their Mexican transmitter.
Under the tape system, XETV "doesn't violate any rules or regulations," Colby said, and doesn't even need a waiver.
McKinnon says that XETV and Fox may not be breaking any laws, but that they are operating unfairly and hypocritically. He says Fox originally argued before the FCC for a special waiver of network guidelines by saying it was going to help small, independent UHF stations, such as Channel 51, and now it is arguing that it wants to stick with a VHF station, Channel 6.
But Padden said that argument won't work with the FCC. "Out of our 134 affiliates, all but 17 are UHF, and that record speaks for itself," he said.
Beyond the technical arguments, McKinnon believes Channel 51 is a better fit for Fox. For example, KUSI has started a news operation, and Fox has repeatedly said it would like its affiliates to have a news presence.
Colby counters that McKinnon is simply using emotional arguments in an attempt to persuade the commission to see his point of view.
"What Mr. McKinnon is doing is waving the red, white and blue," Colby said.