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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//MO&O, Grant of Mountain Broadcasting Company's petition, DA 96-308//$ $/76.7 Special relief & must carry complaints procedures/$ $/76.61 Disputes concerning carriage/$ $/300.534 Carriage of local commercial television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 96-308 In re Complaint of ) ) Mountain Broadcasting Company ) CSR-4593-M ) vs ) ) C-TECH Cable Systems ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: March 4, 1996 Released: March 14, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. On September 19, 1995, Mountain Broadcasting Company ("Mountain"), licensee of television Station WMBC-TV, Newton New, Jersey, filed a complaint pursuant to Sections 76.7 and 76.61(a) of the Commission's Rules, 47 C.F.R. 76.7 & 76.61(a), claiming that C-TECH Cable Systems ("C-TECH"), an operator of cable system in New Jersey served from its principal headend located in Flemington, New Jersey, refused to carry the station. C-TECH filed an opposition to the complaint on October 19, 1995. On October 31, 1995, C-TECH filed a reply to the opposition. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence," or ADI, as defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air and cable television viewing are included. 3. A commercial television station serving a community of license that is located within the same ADI as the principal headend of a cable system has a right of carriage on that cable system. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of its activated channel capacity to compliance with the mandatory signal carriage obligations, 2) the station is responsible for delivering a good quality signal to the principal headend of the system, 3) indemnification may be required for any increase in copyright liability resulting from carriage, and 4) the system operator is not required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried or the signals of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry the signal of only a single affiliate of a broadcast network, it is obliged to carry the affiliate from within the market whose city of license is closest to the principal headend of the cable system. MARKET FACTS AND ARGUMENT 4. According to Mountain's complaint, WMBC-TV is a minority owned broadcast station licensed to Newton, New Jersey, which went on the air on April 26, 1993 and began offering programming twenty-four a day on July 13, 1993. Mountain alleges that it has complied with all prerequisites for mandatory carriage of its station's signal on the C-TECH system served from C-TECH's Flemington principal headend pursuant to Section 76.55(c) of the rules, 47 C.F.R.  76.55(c). Mountain maintains that C-TECH claimed incorrectly that station WMBC-TV does not deliver a signal of requisite strength to the headend site and improperly denied it carriage on that grounds. Mountain states that it has conducted tests of its station's signals at the Flemington site which confirm that a signal of sufficient strength is delivered to the cable system principal headend, and, therefore, it is entitled to carriage. Mountain requests that the Commission order C-TECH to commence carriage of its signal. 5. Mountain states that Newton, New Jersey is in the New York ADI, as is the Flemington principal headend of C-TECH's cable system and all but a small portion of the subscribers served by the Flemington headend. Mountain states that it elected must-carry status on the C-TECH system at issue here, but that C-TECH subsequently notified Mountain that it would not be carried because WMBC-TV failed to deliver a signal of adequate strength to the cable system's principal headend. Mountain states further that it later advised C-TECH that an increase in the station's effective radiated power, which had been completed pursuant to Commission authorization, should remove any concerns regarding adequacy of the station's signal and again requested commencement of carriage. 6. Mountain alleges that after its renewed request was rejected by C-TECH, it spent the next six months trying to arrange for joint signal tests at the headend site. It states that joint tests by an engineering consultant finally took place with a C-TECH representative present on June 30, 1995. The resulting engineering report, forwarded to C-TECH by letter dated July 11, 1995, indicates, according to Mountain, that the WMBC-TV signal level registered -42.3 dBm at the Flemington headend site, or 2.7 dBm higher than the -45 dBm level required by the 1992 Cable Act and the Commission's rules. Mountain states that it also inquired of C-TECH at that time when WMBC-TV would be added to the cable systems and what channel position it would be given. Mountain alleges that, by letter dated August 14, 1995, it again requested carriage, that has heard nothing further from C-TECH, and that WMBC-TV's signal is not being carried on the cable systems served from the Flemington headend. 7. C-TECH in opposition requests the Commission to defer action on the complaint pending resolution of questions concerning the constitutionality of the must-carry statutory provisions raised in a federal district court proceeding. Alternatively, C-TECH requests the Commission to deny mandatory carriage to WMBC-TV in all communities outside of the New York ADI, and seeks a reasonable period of time to implement Mountain's request in order to minimize any disruption of service to its subscribers and to adjust any existing contractual commitments to program providers. DISCUSSION 8. Mountain's station WMBC-TV, a commercial UHF television station, is entitled to must-carry on the C-TECH cable system at issue here, if it is located in the same ADI as the community served by C-TECH's cable system, subject to the conditions noted earlier. Mountain has shown that Station WMBC-TV is licensed to Newton, New Jersey, which is in Sussex County, New Jersey. The C-TECH cable system at issue here serves, and its Flemington principal headend is located in, Hunterdon County, New Jersey. Both Sussex County and Hunterdon County, New Jersey are in the New York ADI. Because WMBC-TV is located in the same ADI as the community served by the cable system on which it seeks carriage, it meets the threshold requirement for must-carry rights on C-TECH's cable systems served by the Flemington headend. 9. However, as noted earlier, such rights are subject to several conditions, all of which we find that WMBC-TV meets. First, C-TECH makes no argument that it is required to devote more than one-third of its activated channels to compliance with this must carry obligation. Secondly, C-TECH does not contest the results of Mountain's engineering report, nor does it even suggest in its opposition that WMBC-TV does not provide a quality signal over its Flemington principal headend. Thus, C-TECH appears to have abandoned any opposition to carriage of WMBC-TV on the grounds of the absence at its headend site of a good WMBC-TV signal. Nor does C-TECH dispute Mountain's assertion the Flemington headend is the principal headend of the cable system in issue here. In any event, we find that Mountain has demonstrated that WMBC-TV does in fact provide a signal of -42.3 dBm over the Flemington, or principal, headend of C-TECH's cable systems on which Mountain requests carriage. Thirdly, C-TECH makes no argument about indemnification for any increase in copyright liability resulting from carriage, or that WMBC-TV's signal substantially duplicates that of any other signal carried. 10. As noted, C-TECH makes an outright objection to carriage of WMBC-TV on its cable system only with respect to that portion of the system located in Mercer County, New Jersey (in the Philadelphia ADI) and served by the Flemington headend. C-TECH's position here is without merit. The Commission has determined that where a cable system provides service to two ADIs, it must carry all of the local commercial television stations in both ADIs. If the cable system is capable of segregating the channels provided to each community served, it may select, for must-carry, from among those qualified commercial stations that are in the ADI in which the community is located. C-TECH has provided no information regarding any capability to segregate channels provided from its Flemington headend as between that portion of its system located in the New York ADI and that portion located in the Philadelphia ADI. Absent any showing of such capability, we will require that C-TECH carry WMBC-TV on the Mercer County portion of its system as well as on that portion of its system located in the New York ADI and served from the Flemington headend. 11. Rather than contest WMBC-TV's right to carriage, C-TECH requests deferral of any ruling pending resolution of constitutional issues that have been raised regarding the must-carry statutory provisions. We decline to defer action on Mountain's must-carry claim for that reason, as suggested by C-TECH. The constitutionality of the must carry provisions of the 1992 Cable Act has been challenged before the Supreme Court. After a special three- judge panel of the District Court for the District of Columbia found the must carry provisions constitutional in Turner Broadcasting Systems, Inc. v. FCC, 819 F.Supp. 32 (D.D.C. 1993), the Supreme Court, on appeal, vacated that decision and remanded the case to the three judge panel for further proceedings. See Turner Broadcasting Systems, Inc. v. FCC, 114 S.Ct. 2445 (1994). However, the Supreme Court did not stay the statutory 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. 12. C-TECH requests, in the event the Commission requires carriage of WMBC-TV, that it be given at least forty five days following a Commission order in which to implement carriage. It asserts that such time is needed to minimize disruption to subscribers and to meet its commitments to other programmers. Although C-TECH provided no information or data that supports need for any specific period of time in which to commence carriage of WMBC-TV without being unduly disruptive of other programming commitments or subscriber services, the forty five day period of time requested appears reasonable, considering the need for notification to subscribers of programming changes on typical thirty day billing cycles. 13. In view of the above, the complaint filed September 19, 1995 by Mountain Broadcasting Company, license of commercial television station WMBC-TV, Newton, New Jersey, IS GRANTED, in accordance with  614(h)(2) of the Communications Act of 1934, as amended, 47 U.S.C.  534(h)(2). C-TECH Cable Systems IS ORDERED to commence carriage of station WMBC-TV on the cable systems served from its Flemington headend forty five (45) days from the release date of this Order. 14. This Action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Service Bureau