1) $//MO&O Conditionally granting W41BL's signal carriage request DA-95-62//$ 2) $/300.534 Signal carriage rights of LPTV stations/$ 3) $/76.61 Disputes concerning carriage/$ ////newjob/// $///DA 95-62,1/20/95///$ Before the Federal Communications Commission Washington, D.C. 20554 DA-95-62 In re: ) ) Complaint of Lightning ) CSR- 4265-M Broadcasting Company ) against Triax ) Communications Corporation ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: January 17, 1995 Released: January 25, 1995 By Cable Services Bureau: 1. On June 6, 1994, Lightning Broadcasting Co. ("LBC"), licensee of low power television station W41BL (Channel 41), Effingham, Illinois, filed a complaint against Triax Communications Corp. ("Triax"), an operator of cable systems serving Bethany, Findlay, Herrick, Oconee, Sullivan, and Tower Hill, Illinois. LBC requests that the Commission require Triax to commence carriage of W41BL. An opposition to this complaint was filed on July 7, 1994, on behalf of Triax, to which LBC responded. 2. In support of its petition, LBC argues that W41BL is eligible for carriage because it meets all the necessary requirements under the 1992 Cable Act and our rules. Specifically LBC asserts that W41BL: 1) is a 24-hour per day low power television station broadcasting from a transmitter located at north latitude 39o16'19", west longitude 88o30'32"; 2) is located within 35 miles of the principal headends for the Bethany, Findlay, Herrick, Oconee, Sullivan and Tower Hill cable systems operated by Triax; 3) is in full compliance with Part 73 of the Commission's rules governing children's programming, political broadcasting and equal employment opportunity; 4) Effingham, its community of license, has a population of 11,851 and is not located within the 160 largest metropolitan statistical areas; 5) provides locally-originated programming; and 6) there are no full power television stations licensed to the county or other political subdivision of the State served by the cable systems. LBC states that in a letter dated April 4, 1994, the station demonstrated that it met all of the necessary statutory requirements and requested carriage on Triax's cable systems serving the six referenced Illinois communities. To date, however, LBC maintains that the operator has not commenced carriage despite the fact that it has adequate channel capacity to carry the station on all six systems. 3. In its opposition, Triax states that it is not required to carry W41BL because the station does not deliver a good quality signal to Triax's headend facilities in Bethany, Findlay, Herrick, Oconee, Sullivan, and Tower Hill, Illinois. Triax explains that it has performed several signal strength studies with one series of tests including four signal readings over a two hour period at each headend location. Triax's measurements show that W41BL's signal strength is below the -45 dBm signal strength requirement for low power UHF commercial television stations as set forth by the 1992 Cable Act and the Commission's rules. Triax also argues that LBC did not submit sufficient evidence, either at the time of its must carry request or when it filed its complaint, to demonstrate compliance with the Commission's regulations, particularly with respect to broadcast programming issues. Lastly, Triax argues that even if the station could satisfy the Commission's standards, the LPTV provisions of the 1992 Cable Act and the Commission's rules should not be enforced here because they are constitutionally infirm. 4. LBC emphasizes in its reply that it did not receive written notification of the signal tests performed by Triax and that it had no reason to believe that a prior phone conversation between the station and the operator comprised Triax's formal denial of its carriage request. LBC argues that public policy precludes Triax from raising the signal quality issue in the pleadings rather than in a carriage denial letter. LBC then faults the signal tests performed by Triax because the operator does not demonstrate how the antennae were oriented during the signal strength measurements. LBC also notes that if properly performed tests indicate that the station's signal strength are indeed inadequate, it "would elect to provide the necessary equipment to boost the signal." As for Triax's argument that the station did not provide sufficient evidence to show that it is qualified, LBC counters that its letter to Triax demonstrated that it met every requirement for carriage and that the Commission found that an "almost identical showing" provided by LBC to another cable operator was ample evidence of compliance with Section 76.55(d)(2) of the Commission's rules. Lastly, LBC argues that Triax's constitutional claim is without merit because neither the Supreme Court nor any inferior court has stayed the effectiveness of the Commission's must carry rules. 5. Section 614(a) of the Communications Act of 1934, as amended, requires the carriage of "qualified" low power (LPTV) stations in certain limited circumstances. See 47 U.S.C. 534(a). A LPTV station that conforms to the rules established for LPTV stations in Part 74 of the Commission's rules will be considered "qualified" only if: 1) it broadcasts for at least the minimum number of hours of operation required under 47 C.F.R. Part 73; 2) it adheres to Commission requirements regarding nonentertainment programming and employment practices; 3) it complies with interference regulations consistent with its secondary status; 4) it is located no more than 35 miles from the cable system's headend; 5) the community of license of the station and the franchise area of the cable system are both located outside the largest 160 Metropolitan Statistical Areas (MSAs) on June 30, 1990, and the population of such community of license on that date did not exceed 35,000; and 6) there is no full power television broadcast station licensed to any community within the county or other political subdivision (of a State) served by the cable system. See 47 U.S.C. 534(h)(2); 47 C.F.R. 76.55(d). Furthermore, a low power television station must deliver an over-the-air signal of good quality to the cable operator's principal headend. 6. We are not persuaded by the arguments raised by Triax regarding the inability of LBC to place a good quality signal over triax's several principal headends. With respect to the standard to be used to determine what constitutes a good quality signal, we note that the 1992 Cable Act did not set a specific standard for either VHF or UHF low power television stations. However, Congress did adopt a standard for determining the availability of VHF and UHF commercial stations at a cable system's headend: for VHF commercial television station signals, the standard is -49 dBm; for UHF commercial television station signals, the standard is -45 dBm. Consistent with Congress' guidance with respect to VHF and UHF commercial station availability, we believe it is reasonable to utilize the same standards as prima facie tests to initially determine, absent other evidence, whether VHF or UHF low- power television stations place adequate signal levels over a cable system's principal headend. 7. Because the cable operator is in the best position to know whether a given low power television station is providing a good quality signal to the system's principal headend, we believe that the initial burden of demonstrating the lack of a good quality signal appropriately falls on the cable operator. In meeting this burden, the cable operator must show that it used good engineering practices to measure the signal delivered to the headend. To measure a station's signal to see if it meets the Commission's requirements, a cable operator's signal strength surveys should, at a minimum, include the following: 1) specific make and model numbers of the equipment used, as well as its age and most recent date(s) of calibration; 2) description(s) of the characteristics of the equipment used, such as antenna ranges and radiation patterns; 3) height of the antenna above ground level and whether the antenna was properly oriented; and 4) weather conditions and time of day when tests were done. 8. In addition, our rules require that a cable operator must conduct multiple signal quality tests to ensure accurate results and, in turn, provide that testing information to the affected station when there is a dispute over signal level measurements. Generally, if the test results are less than -51 dBm for a UHF station, we have said that at least four readings must be taken over a two-hour period. Where the initial readings are between -51 dBm and -45 dBm, inclusive, we believe that the readings should be taken over a 24-hour period with measurements not more than four hours apart to establish reliable test results. 9. We are also not persuaded by Triax's argument regarding LBC's supposed failure to produce sufficient evidence that W41BL does not meet the afformentioned six criteria and thus is not entitled to mandatory carriage. Triax rejects the information provided by LBC in its April 4, 1994 carriage request letter as an incomplete description of W41BL's qualifications. However, we find that the programming information LBC provides in the letter along with objective criteria it includes in its complaint is sufficient to meet the requirements under 76.55(d)(2) of the rules. For example, in its April 4, 1994, correspondence to Triax, LBC lists such programming examples as "Heartland Happenings" and "Community Bulletin Board" to show that it airs locally originated programming. And in its complaint, LBC demonstrates that W41BL operates 24 hours a days and that the station is licensed to a community with a population, as of June 30, 1990, of less than 35,000. In fact, we held that LBC met its evidentiary burden to attain carriage in two other instances with information identical to the kind supplied here. 10. We also find that Triax's constitutional argument is without merit. The constitutionality of the must carry provisions of the 1992 Cable Act were challenged before the Supreme Court. In Turner Broadcasting Systems, Inc. v. FCC, a special three-judge panel of the District Court for the District of Columbia found the must carry provisions constitutional. See Turner Broadcasting Systems, Inc. v. FCC, 819 F.Supp. 32 (D.D.C. 1993). On appeal, the Supreme Court vacated the decision and remanded the case back to the three judge panel for further proceedings. See Turner Broadcasting Systems, Inc. v. FCC, 114 S.Ct. 2445 (1994). However, the Court did not stay the statute's must carry provisions or our rules while the case is on remand. Thus, while the case is pending, the must-carry provisions of the 1992 Cable Act remain in effect, as do the Commission's must-carry rules. See Memorandum Report and Order in MM Docket No. 92-259, (Broadcast Signal Carriage Issues), FCC 94-251 (released November 4, 1994) at 2. 11. As for the signal quality issue, we conclude that the technical determination reached by Triax is insufficient to demonstrate that W41BL's signal is not of "good quality." Specifically, we find that the cable operator did not provide evidence that it properly oriented the testing antennae when it conducted its several measurements. Moreover, Triax did not test the station's signal quality in a consistent manner over a two hour period at its Bethany, Herrick, Oconee, and Sullivan headends. Rather tests at these headends were conducted over a time period less than two hours. However, while LBC appears willing to provide the necessary equipment to boost its signal to acceptable levels for carriage, its actions in this regard would not entitle it to demand carriage. Neither the 1992 Cable Act nor our rules allow a low power television station to cure a signal quality deficiency with additional equipment as full power television stations are allowed to do. An LPTV station must meet each of the six qualifying criteria in the statute and our regulations; its failure to meet just one is fatal to its request for mandatory carriage. 12. We therefore find that Triax must carry the station at its six separate headends only if W41BL delivers an over-the-air signal of good quality. To reach a proper signal strength determination, we believe Triax must conduct additional signal quality tests at each of its six principal headends named in the complaint. Triax shall follow "good engineering practices" as defined by the Commission and properly orient its testing antennas in the direction of W41BL's transmitting tower. In addition, each signal quality test must be performed over a two hour period. Triax shall notify LBC of the testing results by first class mail or similar means of communication. Triax will not be required to carry the station at any headend where signal quality is found to be poor. 13. In view of the above, the complaint filed on June 6, 1994, by Lightning Broadcasting Corporation, licensee of W41BL IS GRANTED, in accordance with 614(h)(2) of the Communications Act of 1934, as amended. See 47 U.S.C. 534(h)(2). Triax Communications Corporation IS ORDERED to commence carriage of W41BL forty-five (45) days from the release date of this Order unless Triax submits within fifteen (15) days the engineering data required herein to support its assertion of poor signal quality from W41BL at Triax's principal headends in Bethany, Findlay, Herrick, Oconee, Sullivan, and Tower Hill, Illinois. This action is taken by Cable Services Bureau, pursuant to authority delegated by 0.321 of the Commission's rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Service Bureau