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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $// MO&O granting WGOT carriage by Cablevision of MA, DA 96-312 $// $/ 76.55 Definitions applicable to the must-carry rules. /$ $/ 76.61 Disputes concerning carriage. /$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 DA 96-312 In re: ) ) ) Complaint of Paxson Boston License Inc. ) CSR-4552-M against Cablevision of Massachusetts ) ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: March 11, 1996 Released: March 20, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Paxson Boston License Inc., licensee of Television Broadcast Station WGOT (Ind., Channel 60), Merrimack, New Hampshire, has filed a "Complaint" with the Commission in which it claims that it is being denied its right to mandatory carriage, pursuant to 614(d) of the Communications Act of 1934, as amended, by Cablevision of Massachusetts ("Cablevision") on its systems serving Peabody and Lynfield, Massachusetts. In response, A-R Cable Services, Inc. d/b/a Cablevision filed an opposition. WGOT replied to this opposition, after which Cablevision filed a response. PARTIES' ARGUMENTS 2. According to WGOT, since both it and the communities of Lynfield and Peabody are located within the Boston, Massachusetts area of dominant influence (or "ADI"), the station is entitled to request mandatory carriage on both of Cablevision's systems, pursuant to 76.55(c) of the Commission's Rules. However, after WGOT sent Cablevision a letter dated February 21, 1995, requesting carriage, Cablevision responded by letter dated March 31, 1995, stating that, according to a signal strength survey it conducted at its Peabody headend on March 17, 1995, WGOT only had a -63.75 dBm signal off-air, which did not meet the Commission's minimum level of -45 dBm for UHF stations requesting mandatory carriage. According to WGOT, however, Cablevision's signal test was completely inadequate, since it did not comply with Commission standards in various ways, including the fact that it did not include information concerning the duration of the tests, the weather during the tests, the time of day the tests were taken, the make and model numbers of the equipment used, as well as its last calibration date and its age, the height of the antenna used above ground, its range and radiation pattern, and whether or not it was properly oriented. Nevertheless on April 27, 1995, WGOT faxed a proposal to Cablevision that the station install a tower-mounted pre-amplifier at the Peabody headend to improve the station's signal. Cablevision responded by letter dated May 4, 1995, stating that WGOT's proposal would not comply with the Commission's requirement of "good engineering practices," because the preamplifier would not only increase WGOT's signal strength, but it ". . . would also increase and pass through the noise from the poor -63.75 dBm signal reading taken at the input to the first piece of active processing equipment. The FCC would view this as `poor engineering practice'. In order to qualify a signal must be at -45 dBm at the input to the first piece of active processing equipment. Since WGOT does not meet this standard it does not qualify under the FCC's must-carry rules." Within sixty days of this letter, WGOT filed the instant complaint, stating that the Commission should not permit cable operators ". . . to summarily deny carriage to stations without first affording stations the opportunity to improve the quality of the signal delivered to the System's principal headend." 3. In response, Cablevision argues that, since it initially denied WGOT's carriage request by letter dated April 30, 1993, WGOT's present "Complaint" was not timely filed. According to Cablevision, WGOT did not even respond to the system's initial denial until June 3, 1993, and some twenty months thereafter, WGOT sent Cablevision a letter dated February 21, 1995, renewing its carriage request, whereupon Cablevision retested WGOT's signal on March 17, 1995, in the presence of representatives from WGOT, and found that it measured -70 dBm, which was inadequate. Thereafter, Cablevision allowed WGOT to install its own amplification equipment and to test its signal again at the system's headend, which amplified the signal's strength, but which also ". . . resulted in the observance of amplified noise as well as in the periodic disturbance of the video content resembling RF carrier beating . . . ." By letter dated March 31, 1995, Richard McGirr, Cablevision's Director of Programming wrote WGOT's General Manager, Lon Mirolli, to reaffirm the system's position that it would not carry the station, because it had insufficient signal strength. Thereafter, WGOT's Engineer, David Raymond, faxed Cablevision an amplification proposal, which the system claims was identical to the one it had previously tested on March 17, 1995. McGirr rejected this proposal by letter dated May 4, 1995. However, Cablevision maintains that its letter dated March 17, 1995 was its ". . . last affirmative denial of WGOT's carriage demands . . . ." Cablevision argues, therefore, that the deadline for filing WGOT's "Complaint" was May 30, 1995. Cablevision also contends that its letter of March 31 did, in fact, have virtually all of the information that the Commission has indicated should be filed with a signal strength survey, including the time of day of the tests, the height of the antenna above ground, as well as its make and model number, and the make, model number and the date of calibration of the test instrument, and that this information, as well as the other information that WGOT claims Cablevision should have included in its report, was all recorded in the worksheets prepared by WGOT's representatives, who also were present during the tests. 4. In reply, WGOT notes that it was not permitted to place its preamplifier directly behind the antenna during the measurements made on March 17. 1995. Instead, WGOT had to place its preamplifier in the headend building at the end of a 120 foot cable line. Whereas if WGOT's engineers had been allowed access to the antenna, so that the preamplifier could be tested in the same manner that it actually would be used, WGOT believes that the test results likely would confirm that the station can provide a good quality signal strength at the Peabody headend, just as it already does by means of a preamplifier to cable systems presently serving Hudson, Marlboro, Gardner, Sterling, Westford and Leominster. Insofar as the timeliness of its "Complaint" is concerned, WGOT notes that Cablevision's letter dated March 31, 1995, did not constitute a specific event which could trigger a filing period, because it did not comply with Commission testing requirements, and that the telephone call on March 27, 1995 was not written, as anticipated by 76.61 of the Commission's Rules. Finally, Cablevision's worksheets and signal report summarized the procedures used to test WGOT's signal, but did not state in writing that the system would not add the station. Therefore, WGOT contends that its "Complaint" should be granted, and that it should be allowed to install its preamplifier in back of the antenna at Cablevision's headend, consistent with the Commissions prior decision in its Clarification Order, which required that cable operators permit stations to provide the equipment necessary ". . . either to make test measurements or for the continued delivery of the signal . . . ." 5. In its response, although Cablevision specifically recognizes that Commission rules do not contemplate filing this pleading, Cablevision requests that the Commission consider it, because it will afford a more complete record on which to base a decision, and because it addresses new claims to which the system could not have responded previously. Cablevision adds that, according to its staff engineer, Robert E. Heany, the Commission requires that WGOT measure its signal in front of any amplifier used, rather than in back of it, since this is the first piece of active processing equipment, citing 47 U. S. C. 534(h)(1)(B)(iii) and 47 CFR 76.55(c)(3). According to Cablevision, when WGOT's amplified signal was evaluated for picture quality during the tests on March 17, 1995, ". . . the parties found that the processing equipment had caused amplified noise and periodic disturbance of the video content which rendered the picture quality unacceptable." Cablevision also contends that wherever WGOT had placed its amplifier during the signal tests, its signal would not have remotely met the Commission's minimum requirements for a good quality signal. DISCUSSION 6. Initially, we note that we will accept Cablevision's response to WGOT's reply for the reasons given by the system. We further note that, since WGOT filed this "Complaint" within sixty days of the refusal by Cablevision's General Manager, William P. Morton, on May 4, 1995, to carry the signal (after various previous attempts to resolve the differences between the station and the cable system), the "Complaint" will not be dismissed as untimely, pursuant to 76.7(c)(4)(iii) of the Commission's Rules. When Congress adopted 614 of the Communications Act, it specified in 614(h)(1)(B)(iii), that for mandatory carriage purposes the term "local commercial television station" would specifically exclude any UHF station which does not have a minimum signal level of -45 dBm at the cable system's principal headend and ". . . which does not agree to be responsible for the costs of delivering to the cable system a signal of good quality or a baseband video signal." Obviously such is not the case here. In fact, the principal crux of WGOT's complaint is that it has not been allowed properly to install the equipment for which the station has already paid and thereafter to utilize this equipment to make its signal measurements in the same way that such equipment would generally be utilized in the normal course of business. As the Commission clearly stated when it adopted its Report and Order in MM Dockets 92-259, 90-4, and 92-295, when a station fails to meet Commission standards, while we do not expect the cable operator to bear the burden of improving the signal if the problem results from an unsatisfactory local television signal, we do require that the cable operator cooperate with the television station in resolving the problem: it is the television station's obligation to bear the costs associated with delivering a good quality signal to the system's principal headend. This may include improved antennas, increased tower height, microwave relay equipment, amplification equipment and tests that may be needed to determine whether the station's signal complies with the signal strength requirements, especially if the cable system's over-the-air reception equipment is already in place and is operating properly. (footnote omitted.) Clearly this passage finds that where a station has been responsible for the costs of attempting to improve its signal at the cable system's headend, we do not expect it thereafter to make its signal measurements before the signal goes through any new equipment supplied by the station (such as a preamplifier). Therefore, WGOT may make its signal tests at the output of any equipment it supplies. However, given the improvements that WGOT has attempted to make in its signal at Cablevision's designated headend already, there is no reason to believe that the station will not be willing in the future to be responsible for any additional costs of delivering a good quality signal there. WGOT is, therefore, is entitled to mandatory carriage by the system, unless appropriate signal tests after these improvements have all been made demonstrate that the station still fails to attain requisite signal quality. ORDERING CLAUSES 7. In view of the foregoing, we find that Cablevision has failed to adequately demonstrate WGOT's poor signal quality at Cablevision's designated headend. 8. Accordingly, the "Complaint" (CSR-4552-M), filed July 3, 1995, by Paxson Boston License Inc. IS GRANTED, pursuant to 614(d)(3) of the Communications Act of 1934, as amended (47 U. S. C. 534) and Cablevision of Massachusetts IS ORDERED to commence carriage of Television Broadcast Station WGOT (Ind., Channel 60), Merrimack, New Hampshire, on its cable systems serving Peabody and Lynfield, Massachusetts sixty (60) days from the date that Station WGOT provides Cablevision of Massachusetts with the additional equipment referenced in this Order, unless Cablevision submits the engineering data required herein to support its assertion of poor signal quality from WGOT at Cablevision's principal headend within fifteen (15) days of the receipt of the above additional equipment. 9. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATION COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau