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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//MO&O, Silver King Broadcasting of Massachusetts,Inc., DA 96-372//$ $/76.7 Special relief & must carry complaints procedures/$ $/76.61 Disputes concerning carriage/$ $/300.534 Carriage of local commercial television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 96-372 In re Complaint of ) ) Silver King Broadcasting of Massachusetts, Inc. ) CSR-4646-M ) vs ) ) Cablevision of Brookline Limited Partnership ) and Cablevision of Boston, Inc. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: March 14, 1996 Released: March 27, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. On January 16, 1996, Silver King Broadcasting of Massachusetts, Inc., ("Silver King") licensee of commercial UHF television Station WHSH-TV (Channel 66), Marlborough, Massachusetts, 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), alleging that Cablevision of Boston, L.P., operator of a cable system serving Boston, Massachusetts and certain other neighboring communities, refuses to carry the signal of station WHSH-TV on its cable system, and requesting an order of carriage. Cablevision of Boston, Inc. and Cablevision of Brookline Limited Partnership (jointly referred to herein as "Cablevision") filed an opposition to the complaint on February 12, 1995. On February 27, 1996, Silver King 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. Silver King states that station WHSH-TV is licensed to Marlborough, Massachusetts, located in the Boston, Massachusetts ADI. It states further that Cablevision operates a cable system serving Boston and other communities, also located in the Boston ADI, and that it is therefore entitled to mandatory carriage on Cablevision's cable system. Silver King alleges that by letter dated July 28, 1993 it notified Cablevision of its election of mandatory carriage on Cablevision's cable system. However, according to Silver King, Cablevision informed Silver King, by letter dated September 9, 1993, that station WHSH-TV failed to deliver a good quality signal to the system. Silver King states that over the following months its engineer and assistants worked with Cablevision's engineering staff to improve the quality of station WHSH-TV's signal at the headend. It alleges that, while these efforts improved the signal measurement substantially and above the Commission's signal strength standards, the parties continued to work to eliminate a signal ghosting problem, which was addressed, according to Silver King, by the installation of a ghost cancelling system by Cablevision. 5. Later, a headend installation consisting of an antenna mast, antenna and other equipment including an antenna preamplifier was finalized by Silver King's engineers on October 3, 1995. Allegedly in the belief that the parties were now mutually satisfied that the signal strength problem had been resolved, Silver King says it again requested carriage on Cablevision's cable system by letter dated October 12, 1995. By letter dated January 4, 1996 Cablevision denied the request on the grounds that station WHSH-TV fails to meet the standards for the delivery of a good quality signal at its headend. Silver King asserts that, given the knowledge by Cablevision's engineering staff of the recently installed facilities, Cablevision's refusal can only be understood as a bad faith attempt to evade carriage of station WHSH-TV. 6. Cablevision in opposition asserts that it properly declined to carry station WHSH- TV on its cable system, because the station fails to deliver a good quality signal that meets the established requirements at the cable system headend. Cablevision argues also that Silver King's use of a preamplifier to improve its signal constitutes a poor engineering practice that would violate the Commission's signal strength measurement requirements. Cablevision asserts that Silver King has provided no showing that station WHSH-TV delivers a -45 dBm or better signal at the headend site. Cablevision also asserts that it at all times dealt with Silver King in good faith with Silver King. 7. Cablevision claims that signal strength measurements undertaken by its staff engineers on December 14 and 15, 1995 show that the signal strength of station WHSH-TV at the system headend falls below the statutory minimum -45 dBm requirement, when measured by either the antenna installed by Silver King or by Cablevision's own search antenna used in connection with other must-carry requests. In support, Cablevision provided the results of the measurements taken by its Headend Manager/System Engineer, including certain details of equipment used and the times and weather conditions that existed when the measurements were taken by both antennas. 8. Cablevision argues that its measurements demonstrate that Silver King is wrong about WHSH-TV's signal level at the headend site, and claims that use of preamplifier equipment would not improve signal quality consistent with Commission requirements as claimed by Silver King. Cablevision asserts that the 1992 Cable Act requires that signal strength measurements be taken at the input terminal of a system's signal processing equipment. It argues that the Commission has interpreted this requirement to mean that the measurement must be taken at the input to the first piece of active processing equipment relative to the signal at issue, which in this case means at the input to the preamplifier Silver King proposes to use, not at the output of such preamplifier. Cablevision also argues that sending a poor quality signal through a preamplifier installed as suggested by Silver King cannot result in the generation of a good quality signal; it can only produce the amplification of a poor quality signal. 9. Cablevision says it allowed Silver King to install an antenna, demodulator, ghost cancelling and other related equipment dedicated specifically for reception of station WHSH- TV's signal on Cablevision's roof. Those actions, along with the work of its engineering staff with Silver King's engineers in measuring and endeavoring to improve the station's signal, according to Cablevision, should dispel any notion that it acted in bad faith as alleged by Silver King. Cablevision also claims its engineers repeatedly advised Silver King that its signal failed to meet the minimum standards and that the proposed use of a preamplifier would not comport with good engineering practices or the Commission's signal testing requirements. It asserts that any Silver King statements to the contrary are mistaken. 10. Silver King reasserts in reply that WHSH-TV delivers a good quality signal to Cablevision's headend even without use of a preamplifier and that Cablevision's headend supervisor, who was present when Silver King made measurements in October of 1995, stated then to Silver King's engineer that the signal was fine. Silver King asserts that Cablevision's measurements, purporting to show absence of a WHSH-TV signal of required strength at the headend, are so flawed as to be unreliable. 11. Silver King argues, in any event, use of a preamplifier as proposed has been approved previously by the Commission in the Must-Carry Clarification Order and in a series of rulings cited in the reply. It points out that Cablevision has been provided with equipment, "almost identical to the equipment envisioned by the Commission" in the Report & Order, which allows for delivery of a good quality signal. Since it allegedly has shown that use of the preamplifier would boost WHSH-TV's signal level well above the minimum required for must carry purposes, Silver King argues that the Commission should resolve this matter simply by confirming that WHSH-TV may use the preamplifier to deliver a good quality signal and grant its petition. DISCUSSION 12. It is uncontested that Silver King's station WHSH-TV and the communities served by Cablevision's cable system are both located in the Boston ADI. The only contested issue is whether station WHSH-TV delivers a signal that meets the statutory requirements to Cablevision's principal headend and thus qualifies as a local station entitled to must-carry rights on Cablevision's cable system. The measurements provided by Silver King purport to show that WHSH-TV's signal level at the headend meets those requirements, while the measurements provided by Cablevision purport to show that it does not. We credit the showing made by Silver King and find that WHSH-TV, through use of the preamplifier and related equipment installed at the headend at Silver King's cost, can deliver a signal to that headend that substantially exceeds the -45 dBm signal statutory requirement. For that reason, Silver King's petition for entitlement to must-carry rights on Cablevision's cable system serving Boston, Massachusetts and the neighboring communities identified above will be granted. 13. The Commission has stated that amplification equipment may be employed to deliver a good quality signal to a cable system headend. The Commission, in the Must-Carry Clarification Order, after re-emphasizing that it was the television's station's obligation to bear the costs associated with delivering a good quality signal to the system's principal, stated - 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 .... Consistent with this clarification the use of amplification equipment has been approved in several proceedings involving issues as to the carriage of full power commercial television stations, including Montgomery Cablevision, L.P., Greater Dayton Public Television, and Citrus County Association For Retarded Citizens. Silver King's proposed use of a preamplifier is similar in all essential elements to that previously approved by the Commission and this Bureau, and such proposed use of a preamplifier will be approved here. 14. The Silver King engineer took measurements of WHSH-TV's signal at the Cablevision headend over a period of nine days from September 25 through October 3, 1993 for five minute intervals three times on week days and twice on weekend days involved using the equipment identified in note 13 above. Those measurements show that WHSH-TV can deliver a -27 dBm signal to the Cablevision headend using the proposed preamplifier. Accordingly, we find that Silver King has demonstrated the provision of a good quality WHSH-TV signal to Cablevision's headend and conclude, therefore, that WHSH-TV is entitled to must-carry rights on Cablevision's cable system. 15. Silver King's measurements were taken in the presence of Cablevision's headend supervisor, who, according to Silver King, expressed satisfaction or at least no disapproval at that time of the resulting measurements. Once the Silver King measurements were made available, it became incumbent upon Cablevision, if it intended to continue to resist carriage of signal quality grounds, to demonstrate that WHSH-TV failed to provide a good quality signal to its principal headend using the equipment, including the preamplifier, provided by Silver King. None of the measurements taken by Cablevision employed the preamplifier provided by Silver King. Rather, Cablevision simply asserts that use of a preamplifier would not be a good engineering practice, although such use has been approved by the Commission. Finally we note, the Cablevision measurements apparently were taken without any representative of Silver King present. ORDER 16. For the foregoing reasons, IT IS ORDERED, pursuant to 614 of the Communications Act, that the complaint filed January 16, 1996 by Silver King Broadcasting of Massachusetts, Inc. IS GRANTED. 17. IT IS FURTHER ORDERED that Cablevision of Boston, Inc. shall commence carriage of station WHSH-TV on the integrated cable systems operated by Cablevision Limited Partnership and Cablevision of Brookline Limited Partnership sixty days from the release date of this Order. 18. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Service Bureau