$//MO&O Denying W19BN Carriage on TCI CAVS of Ohio, DA-95-64//$
$/300.534 Carriage of Local Commercial Television Signals/$
$/76.61 Disputes Concerning Carriage/$

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$///DA 95-64,1/20/95///$

                                                     Before the
                          FEDERAL COMMUNICATIONS COMMISSION
                                           Washington, D.C. 20554
              DA-95-64


In re:        )
              )
Complaint of Wolfe Communications   )                 CSR-4175-M
Inc. against TCI Cablevision of     )             
Ohio, Inc.    )                                      
              )
Request for Carriage )

                                 MEMORANDUM OPINION AND ORDER

          Adopted: January 17, 1995                        Released:  January 26,  1995

By the Cable Services Bureau:

     1.  On December 15, 1993, Wolfe Communications, Inc. ("Wolfe"), licensee of low 
power television station W19BN (Channel 19), Defiance, Ohio, filed a complaint against TCI
Cablevision of Ohio ("TCI"),  operator of cable television systems serving Bryan, Paulding,
and Van Wert, Ohio, claiming that TCI had declined to carry the station even
though W19BN is a fully-qualified low power television station within the meaning of
76.56(b)(3) of the Commission's Rules and 614(c) and (h)(2) of the Cable Television
Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460
(1992).  TCI responded on February 14, 1994, by alleging that the station did not provide a 

                                                            -2-


good quality signal and, that even if it did, complainant does not satisfy the definition of a
qualified LPTV station.


                                             DISCUSSION

     2.  The 1992 Cable Act provides "that a cable operator is not required to carry a low
power television station that does not deliver [a good quality signal] to the principal headend
of a cable system. See 47 U.S.C. 534(h)(1)(B)(iii).  Because the cable operator is in the
best position to know whether a given 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, as defined below, to
measure the signal delivered to the headend.

     3.  With respect to the standard to be used to determine what constitutes a good quality
signal, the 1992 Cable Act adopted 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 stations place adequate signal levels over a cable system's principal headend. 

     4.  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.  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.

     5.  TCI has submitted separate data for the Bryan, Paulding and Van Wert systems, each 
consisting of six signal level readings taken over the course of a twenty-four hour period.  

                                                            -3-


These tests were conducted by TCI's Engineer on February 2 and 4, 1994 for the Bryan
system, February 3 and 4, 1994 for the Paulding system, and February 4 and 5, 1994 for the
Van Wert system.  The data demonstrates, consistent with Commission requirements, that
W19BN's signal strength at each of TCI's three principal headends is substantially below the
level of -45 dBm required for UHF stations.  As a result, W19BN is not eligible for must-
carry status on TCI's systems.  Given our conclusion, we need not reach the other issues
raised by the parties in this matter. 

     6.  Accordingly, the petition filed December 15, 1993, by Wolfe Communications, Inc.,
IS DENIED, pursuant to 614(h)(2)(F) (47 U.S.C. 534) of the Communications Act of 1934,
as amended.  This action is taken pursuant to authority delegated by 0.321 of the
Commission's Rules.


                                                     FEDERAL COMMUNICATIONS COMMISSION




                                                     William H. Johnson
                                                     Deputy Chief, Cable Services Bureau