$//MO&O Denying KFTL carriage on Sonic, DA-95-185//$ $/300.534 Carriage of local commercial television signals/$ $/76.61 Disputes concerning carriage/$ ///newjob/// $///DA 95-185 2-13-95///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA-95-185 In re: ) ) Complaint of Family ) Stations, Inc., against ) CSR-4274-M Sonic Cable Television ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: February 7, 1995 Released: February 15, 1995 By Cable Services Bureau: INTRODUCTION 1. On June 28, 1994, a petition on behalf of Family Stations, Inc., licensee of station KFTL(TV) (Ch. 64), Stockton, California, was filed with the Commission claiming that Sonic Cable Television of Northern California, ("Sonic"), operator of cable television systems serving Loyalton, Portola, Graeagle and Greenville, California, had declined to carry the station's signal, even though KFTL(TV) is a "local" signal within the meaning of 4 of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102- 385, 106 Stat 1460 (1992). On August 1, 1994, Sonic filed an opposition to this petition to which Family Station replied on August 16, 1994. SUMMARY OF PLEADINGS 2. In support of its petition, KFTL states that in a letter dated August 13, 1994, it notified Sonic of its obligations under the Commission's Rules to carry home shopping stations such as KFTL(TV) and requested a description of the reception and over-the-air signal processing equipment used if Sonic determined that a signal quality problem existed. KFTL further states that in a letter dated December 1, 1993, it notified Sonic that KFTL(TV) was not being carried on Sonic's cable systems pursuant to its representations. In addition, KFTL states that in a letter dated April 22, 1994, it questioned the appropriateness of Sonic's designated principal headends, disputed Sonic's methodology for testing the station's signal strength, requested signal strength testing at Sonic's microwave transmit station, Mills Peak, and requested the expeditious carriage of the station. According to KFTL, Sonic did not reply to the must-carry request. 3. KFTL contends that although Sonic's system has multiple headends, only its Mills Peak facility may be designated the principal headend for the purpose of determining signal strength levels. According to the station, Sonic's designated principal headends are not capable of receiving over-the-air signals. As a result, KFTL questions whether Sonic's choice of Mills Peak as its principal headend may have been motivated to circumvent its must-carry obligations. It also argues that Sonic's signal quality testing methodology does not comply with the Commission's Rules. Specifically, it argues that good engineering practices dictate that signal quality measurements should have been taken at the Mills Peak facility because it is located at a significantly higher elevation than Sonic's designated principal headends. 4. In its opposition, Sonic contends that KFTL is not entitled to mandatory carriage because it fails to deliver a good quality signal to Sonic's principal headends. Sonic maintains that it tested station KFTL(TV)'s signal strength twice and determined that no signals were received at its headends. Sonic also maintains that it was appropriate and consistent with good engineering practices for it to take signal measurements from its designated headends rather than from the Mills Peak site. According to Sonic, its cable systems serving Loyalton, Portola, Graeagle, and Crescent Mills are operated as four technically separate systems. Sonic argues that its designation of principal headends in Loyalton, Portola, Graeagle, and Crescent Mills is consistent with the Commission's guidelines established in Report and Order, MM Docket 92-259, 8 FCC Rcd 2965, 2968 (1993). Sonic further argues that these headends provide cable service directly to subscribers and receive and process over-the-air signals as well as satellite and microwave transmissions. Sonic asserts that unlike the Mills Peak facility, the principal headends are located near the communities they serve. Sonic contends that it is not required to incur the substantial cost for specialized antenna and equipment needed to receive a weak UHF signal at Mills Peak and to microwave the signal to its designated principal headends. Sonic disputes KFTL's contention that it is attempting to avoid its must-carry obligations. 5. In addition, Sonic argues that the must-carry rules violate the First Amendment of the Constitution. Sonic contends that mandatory carriage would not preserve any benefit of local broadcast television stations because station KFTL(TV) is licensed to a community approximately 150 miles from Sonic's cable systems. As a result, Sonic maintains that station KFTL(TV) can not be described as a local station. Sonic also contends that carriage of KFTL(TV) would merely duplicate existing program offerings rather than promote the dissemination of information from a multiplicity of sources. 6. In reply, although KFTL concedes that Sonic properly designated its principal headends, the station argues that Sonic's signal quality measurement methodology does not comply with the Commission's Rules. Specifically, KFTL argues that good engineering practices mandates the testing of its signal strength from the Mills Peak facility. KFTL denies Sonic's claim that it would incur substantial costs to conduct signal quality measurements at the Mills Peak facility. KFTL indicates that it is willing to conduct joint signal quality tests using a specialized antenna and any other equipment necessary to receive a good quality signal off-the-air. In addition, KFTL maintains that the cost to Sonic of transmitting signals via microwave to the designated headends is properly treated as a routine cost of receiving signals from the Sacramento part of the ADI. Finally, KFTL argues that Sonic's First Amendment claim is unfounded because the Supreme Court has not yet declared the must-carry rules unconstitutional. KFTL states that carriage of the station would not duplicate programming and argues that it maintains a studio located as close or closer to the systems in question than the studios of the Sacramento market stations carried by Sonic. DISCUSSION 7. We are persuaded by Sonic that it made a proper designation of its principal headends. As the Commission stated in the Must Carry Order in MM Docket 92-259, 8 FCC Rcd 2965, 2968 (1993), "the 'principal' headend in the majority of systems will be the headend serving the most subscribers, accommodating the most signal processing equipment, or lying closest to the geographical center of the system." The designated principal headends picked by Sonic receive off-air signals, operate as independent systems apart from a microwave interconnect, and separate signal processing equipment is located in each of the designated principal headends. In addition, the headends are located very close to the communities they serve. In light of these factors, KFTL concedes that the Loyalton, Graeagle, Greenville, and Crescent Mills headend facilities have been properly designated as principal headends. 8. Nevertheless, KFTL's argues that good engineering practices require that Sonic "take into account the elevation of the Mills Peak facility and its distance from the designated headends when signal quality measurements are taken." The Commission has clarified that if signal quality "measurements were made at a designated headend that is not the current reception location(headend) for the broadcast signals, we expect the cable operator to follow good engineering practices for the measurement of the broadcast signals in question." KFTL misinterprets this standard. The Commission's rules do not require Sonic to measure station KFTL(TV)'s signal at a nonprincipal headend even if the subject signal is currently received there. Also we note that the Mill's Creek facility and the Crescent Mills mountain top facility serve the Loyalton, Portola, and Graeagle principal headends via microwave. Cable operators are not required by the Commission's rules to transport a station's signal to a cable system's headend in this manner. 9. Accordingly, the petition filed by June 28, 1994 by Family Stations, Inc. (CSR- 4274-M) IS DENIED pursuant to 614 (47 U.S.C. 534) of the Communications Act of 1934, as amended. 10. This action is taken by the Cable Services Bureau, pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau