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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//MO&O Granting K30EM carriage on Cable Vision, DA 95-2247//$ $/300.534 Carriage of local commercial television signals/$ $/76.61 Disputes Concerning carriage/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-2247 In re: ) ) Complaint of Folse Productions, Inc. ) CSR-4539-M against Cable Vision Industries, Inc. ) d/b/a LaFourche Communications, ) Inc. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: October 26, 1995 Released: November 6, 1995 By the Deputy Chief, Cable Services Bureau: 1. On June 19, 1995, Folse Productions, Inc., licensee of low power television station K30EM (Channel 30), Houma, Louisiana, filed a complaint against Cable Vision Industries, Inc. d/b/a LaFourche Communications, Inc. ("CVI"), operator of a cable television system serving LaFourche, Thibodaux, St. James, Terrebonne and Assumption, Louisiana. Folse claims that CVI has declined to carry its station even though K30EM 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). CVI filed an opposition to this complaint on July 20, 1995 to which Folse has replied. SUMMARY OF PLEADINGS 2. In support of its petition, Folse states that it initially requested carriage on CVI's system on March 27, 1995. On April 17, 1995, however, CVI refused carriage, claiming that K30EM did not provide a good quality signal to its system's principal headend. Folse argues that it found several deficiencies in the signal strength test supplied by K30EM and that it is these deficiencies which account for K30EM's alleged poor signal. It maintains that when it questioned the engineering practices used by CVI in this test, CVI's general manager acknowledged that the test was not properly conducted. Indeed, Folse avers, it is highly improbable that K30EM could provide a poor signal since the station operates with an ERP of 40.0 kw at an antenna height of 350 above terrain. Moreover, Folse continues, the terrain in the area is flat and K30EM's transmitter is only 6.5 miles from the system's principal headend. 3. In its opposition, CVI argues that Folse's complaint should be denied because K30EM does not deliver a good quality signal, the complaint proffers unsworn assertions and it is procedurally deficient. CVI confirms that it notified Folse on April 17, 1995 that its signal was inadequate and it incorporates by reference the signal strength test it submitted to Folse at that time. Contrary to Folse's assertions, however, CVI maintains that the system's general manager never stated that the signal test was conducted improperly. An affidavit to that effect is included herein. Further, CVI argues that Folse's complaint is deficient in that: 1) it fails to establish that K30EM is a fully-qualified LPTV station which is eligible for must carry status, 2) it provides no affidavits in support of its allegations, and 3) copies of the petition were not served on the appropriate franchising authorities as required by the Commission's rules. 4. Folse states initially in its reply that as soon as it became aware of its failure to serve the franchising authorities it immediately corrected the problem. Folse argues that CVI's opposition merely incorporates the information contained in the defective signal test it conducted in April 1995, but contains no explanation of the numerous flaws contained therein. Further, Folse states that it specifically set forth its LPTV qualifications in its March 27, 1995 letter to CVI requesting carriage. Since that letter was incorporated by reference with its must carry complaint, Folse argues that it was not deficient in this regard. Finally, Folse maintains that, despite CVI's assertions, the Commission has always permitted parties to incorporate factual elements of their claims by citation to attached exhibits without the requirement of an affidavit. DISCUSSION 5. We are not persuaded by the arguments raised by CVI herein. Section 614(a) of the Communications Act of 1934, as amended, requires the carriage of "qualified" low power television (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 and delivers to the principal headend an over-the-air signal of good quality; 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 (MSA's) 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). The only eligibility requirement which CVI alleges that K30EM does not meet is that of signal quality. 6. 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. 7. 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. 8. In this instance, CVI has determined K30EM's signal strength to be below the requisite level for a UHF commercial station. However, we find that the engineering data it used to support its determination is unacceptable. 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. This is the best evidence of the availability of a station at a subject system headend. Further, 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. 9. In the instant case, CVI provided only one signal strength measurement conducted on April 7, 1995. There is also no description of recent calibration dates, weather conditions or antenna height. When measured against the above-described criteria, we conclude that the determination reached by CVI is insufficient to demonstrate that K30EM's signal is not of "good quality" at its system's principal headend. 10. With regard to the other issues raised by CVI we note first that 76.7(4)(c)(i) of the Commission's Rules states that "Must-carry complaints . . . shall be accompanied by the notice from the complainant to the cable system operator . . . and the cable television system operator's response . . . if any." Such notices or correspondence, and any information contained therein, are therefore considered to be part of the must carry complaint petition itself. As a result, the inclusion of Folse's March 27, 1995 letter to CVI, in which it set forth its LPTV qualifications, as an attachment to its must carry complaint to the Commission satisfies the requirements of the rules. Furthermore, the original petition contained an affidavit from Martin Folse, General Manager of K30EM, attesting that the facts contained in the complaint and its attached exhibits are true and accurate. Secondly, while Folse erred in its initial filing in not serving a copy of its petition on the appropriate franchising authorities, it did correct the oversight at a later date without any apparent prejudice to any of the parties involved. 11. We find that K30EM is a qualified low power television station and that it is entitled to carriage on the LaFourche, Louisiana, cable system. Accordingly, the complaint filed June 19, 1995 by Folse Productions, Inc. IS GRANTED pursuant to 614(c) (47 U.S.C. 534) of the Communications Act of 1934, as amended and Cable Vision Industries, Inc. d/b/a LaFourche Communications, Inc. IS ORDERED to commence carriage of low power television Station K30EM sixty (60) days from the release date of this order. 12. 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