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Time Warner filed an  X- xopposition which incorporates its petition to modify KKAG's television market.Kd yOW-  .ԍxKKAG's petition was placed on public notice on April 18, 1996. Time Warner states that it did not become  xaware of KKAG's petition until May 7, 1996 when it received a copy of what it deems an "unofficial copy" of the  xApril 18, 1996 Public Notice regarding KKAG's petition. Time Warner argues however that the time period for its  xKresponse to KKAG's petition has not yet begun to run pursuant to Section 76.7(d) of our rules because the public  yOw"-notice at issue was never published in the Commission's Daily Digest. KKAG filed  X-its reply on July 5, 1996.xKd yO$-  ԍxKKAG and Time Warner mutually agreed to file for two extensions of time within which KKAG could file its reply. ",))ZZ"Ԍ X-  BACKGROUND ă  X-  ?2.xPursuant to Section 614 of the Communications Act and implementing rules adopted by  X- xKthe Commission in its Report and Order in MM Docket 92259,Iyr yO4-ԍ 8 FCC Rcd 2965, 297274 (1993).I commercial television broadcast  xzstations are entitled to assert mandatory carriage rights on cable systems located within the  xstation's market. A station's market for this purpose is its "area of dominant influence," or ADI,  Xx- xas defined by the Arbitron audience research organization.TxXyr yO - xj#X\  P6G;IP#э Section 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial  {OI -implementation of the mandatory carriage rules are those published in Arbitron's 19911992 Television Market Guide.T An ADI is a geographic market  xdesignation that defines each television market exclusive of others, based on measured viewing  xjpatterns. Essentially, each county in the United States is allocated to a market based on which  xhomemarket stations receive a preponderance of total viewing hours in the county. For purposes  X -of this calculation, both overtheair and cable television viewing are included.'$ yr yO- x#X\  P6G;IP#э Because of the topography involved, certain counties are divided into more than one sampling unit. Also, in  xcertain circumstances, a station may have its home county assigned to an ADI even though it receives less than a  {O- xpreponderance of the audience in that county. For a more complete description of how counties are allocated, see  {O-Arbitron's Description of Methodology.'  X -  {3.xA commercial television station serving a community of license that is located within the  X - xsame ADI has a right of carriage on that cable system.y yr {O&-ԍ See 47 U.S.C.  534(h)(1)(A). See also 47 C.F.R.  76.56(b).y However, this right is subject to several  xconditions: 1) a cable system operator is generally required to devote no more than onethird of  X - xits activated channel capacity to compliance with the mandatory signal carriage obligations,P 0 yr {O-ԍ See 47 U.S.C.  534(b)(1)(B).P 2)  xthe station is responsible for delivering a good quality signal to the principal headend of the  X{- xsystem,U{ yr {O-ԍ See 47 U.S.C.  534(h)(1)(B)(iii).U 3) indemnification may be required for any increase in copyright liability resulting from  Xd- xcarriage,T dT yr {Oi-ԍ See 47 U.S.C.  534(h)(1)(B)(ii).T and 4) the system operator is not required to carry the signal of any station whose  xsignal substantially duplicates the signal of any other local signal carried or the signals of more  X6- xthan one local station affiliated with a particular broadcast network.M 6yr {O"-ԍ See 47 U.S.C.  534(b)(5).M If, pursuant to these  xrequirements, a system operator elects to carry the signal of only a single affiliate of a broadcast  xnetwork, it is obliged to carry the affiliate from within the market whose city of license is closest  X-to the principal headend of the cable system.< xyr yO'-ԍ 8 FCC Rcd at 2981.<" ,-(-(ZZ'"Ԍ X-ԙ   SUMMARY OF PLEADINGS ă  X-  4.xIn support of its complaint, KKAG states that it is a "qualified local commercial television  xstation" licensed to serve the FresnoVisalia ADI, an ADI which is also served by Time Warner's  xcable system. KKAG further states that it delivers a signal strength which is greater than the 45  X- xzdBm signal requirement pursuant to Section 76.55(c)(3) of our rules.L yr yO-ԍx47 C.F.R.  76.55(c)(3).L KKAG maintains that  Xv- xTime Warner has 42 activated channels and is required, pursuant to Section 76.56(b)(2)L vXyr yO -ԍx47 C.F.R.  76.56(b)(2).L of our  xrules, to carry up to 14 qualified local commercial television stations. At the time of filing,  xKKAG asserted that Time Warner was carrying less than the maximum number of qualified local  X1-commercial television stations on its cable system serving FresnoVisalia.1yr yO -  ԍxIn its petition, KKAG lists seven local commercial television stations that Time Warner is currently carrying on its system serving the communities at issue.  X -  |5.xKKAG initially submitted its request for carriage to Time Warner on January 15, 1996.  xKKKAG notes that it exchanged correspondence with Time Warner's engineer concerning KKAG's  xsignal strength and picture quality but did not receive a definitive response from Time Warner's  xGeneral Manager concerning carriage. In one of the letters exchanged, KKAG maintains that  xTime Warner agreed with KKAG that its signal strength is greater than the 45 dBm required by  X- xCommission rules.aX@yr yO-  ԍx KKAG states that Time Warner previously claimed that KKAG only provided a 60.75 dBm signal.  xHowever, KKAG claims that that signal reading was taken at a time when the television station was off the air or  yO-operating at reduced power.  a The letter to which KKAG refers, dated January 22, 1996 and signed by  xTime Warner's engineer, states that KKAG has ample signal at the headend in Avenal with a  xjsignal strength reading of +14dBm. Finally, KKAG asserts that, pursuant to the Satellite Home  XK- xyViewer Act of 1994, it is no longer a "distant signal" under the federal copyright laws."K` yr yO\-  ԍxPub. L. No. 103369, 108 Stat. 3477 (1994) ("Satellite Act"). The Satellite Act modified the definition of  x"local service area" to provide that all stations which were found to be "local stations" under Section 76.55 of our  {O- xxrules would also be deemed "local stations" for purposes of the compulsory cable copyright license. See 17 U.S.C.  111(f) and 47 C.F.R.  76.55.  KKAG  xconcludes that its petition contains sufficient evidence to satisfy its request for mandatory carriage on Time Warner's cable system serving the community at issue.  X-  6.xIn response to KKAG's mustcarry petition, Time Warner submitted a copy of its  X- xpleadings in Time Warner Cable, Avenal, CA, For Modification of Broadcast Television Station  X- xKKAG's ADI, CSR4683A ("Modification Proceeding"), the ADI market modification proceeding"J ,-(-(ZZ"  X- x-currently pending before the Commission.Xyr yOy-  ԍxIn addition to the submission of this opposition, Time Warner seeks to reserve its right to file a supplemental  xresponse and opposition to KKAG's mustcarry petition because Time Warner maintains that the mustcarry petition at issue was never officially placed on Public Notice by being published in the Commission's Daily Digest.  Time Warner states that KKAG's mustcarry petition  xraises no issues that are not already being addressed in the proceeding to modify KKAG's  xtelevision market. In the Modification Proceeding, Time Warner seeks to exclude KKAG from  xkthe Avenal ADI because KKAG lacks a history of carriage on Time Warner's cable systems  xserving Avenal; KKAG provides no coverage or local service to Avenal; KKAG provides no local  xprogramming or news in Avenal; and KKAG does not generate viewing interest among residents  xof Avenal. Time Warner concedes however that KKAG provides adequate signal strength at its  xheadend but maintains that KKAG's signal is of poor quality. Time Warner argues that KKAG's  xsignal contained a series of horizontal lines which was observed utilizing a 13inch television  xreceiver. To substantiate its claim of poor signal quality, Time Warner attached correspondence  xexchanged between the respective engineering staffs. The letters indicate that there were  xhorizontal lines visible which may have been caused by "outside interference" or a malfunctioning "procamp" or some other cause such as the location of the cable system's headend.  X -  7.xKKAG, in its reply, notes that the arguments raised in Time Warner's opposition either  xhave no relevance to KKAG's petition or are based upon inaccurate information. KKAG further  xnotes that Time Warner does not dispute the facts which are relevant to KKAG's mustcarry  x\petition, i.e., that KKAG is a qualified local commercial station, that it is located within Time  xWarner's ADI, and that it provides adequate signal strength to the cable system's headend.  xKKAG maintains that Time Warner's opposition, in which Time Warner raises issues relevant  x to its Modification Proceeding, are inapposite in the instant case. KKAG argues that Time  xWarner's claim that KKAG delivers a poor quality signal is negated by the fact that KKAG's  x<signal has been found to be of satisfactory strength and quality and is presently being carried on  X-a nearby cable system serving Coalinga, CA.EXyr yO-  {ԍxKKAG attaches a memorandum from the chief technician of McVay Communications, a cable system  xserving Coalinga, CA, which states that KKAG, Channel 61, was "placed on our cable system" and "signal strength and picture quality are satisfactory." E  X-( DISCUSSION ă  X-  8.xKKAG has presented sufficient evidence to satisfy the requirements for mandatory  xLcarriage under Section 614 of the Communications Act and implementing rules. That evidence  xzhas not been contested by Time Warner. Time Warner's opposition raises issues which are  xrelevant solely to its Modification Proceeding against KKAG. Those issues will be addressed in  xthat proceeding. Time Warner is not entitled to an additional forum to press its ADI arguments  xin the guise of a response to KKAG's mustcarry complaint. Time Warner's assertion that it did  xnot become aware of KKAG's mustcarry complaint until a day before its response was due is  xznot persuasive. Time Warner maintains that it lacked notice because the petition was never  x"officially" placed on Public Notice, i.e., Time Warner could not confirm that the petition was",-(-(ZZ"  xpublished in the Daily Digest. Our records show that KKAG's mustcarry complaint was placed  xon Public Notice on April 18, 1996. Under Section 76.7(d) of our rules, an opposition to a must xcarry complaint must be filed within twenty (20) days after the date of public notice of the must xcarry petition. There is no requirement of publication in the Daily Digest although the  xCommission provides this as a service to the public. In any event, Time Warner's claim that it  xlacked notice fails when we consider that KKAG's mustcarry petition includes a certificate of service which indicates that Time Warner was served on April 2, 1996.  XH-  ?9.xWith respect to the standard to be used to determine what constitutes a "good quality"  x<signal, we note that the Cable Television Consumer Protection and Competition Act of 1992, Pub.  x@L. No. 102385, 106 Stat. 1460 (1992), did not set a standard either for VHF or for UHF  xnoncommercial stations. However, the 1992 Cable Act did adopt a standard for determining the  xavailability of VHF and UHF commercial stations at a cable system's headend. To establish the  xavailability of a VHF commercial station's signal, the 1992 Cable Act set out a standard of 49  xLdBm at a cable system's headend. A standard of 45 dBm was established for UHF commercial  x[station signals. Consistent with Congress' guidance with respect to VHF and UHF commercial  X- xjstation availability, we will utilize the same standards as prima facie tests to initially determine,  xZabsent other evidence, whether or not VHF or UHF noncommercial stations place adequate signal levels over a cable system's principal headend.  X6-  ! 10.xIn the instant case, we find that Time Warner's claim that KKAG fails to provide a good  xquality signal lacks sufficient data to support it. As we have previously noted, cable operators  xattempting to resist mustcarry petitions based upon such defects must submit empirical and  xverifiable evidence that, notwithstanding the presence of a signal of adequate strength, defects  x-remain that render reception unacceptable in quality. Time Warner has not made such a showing  X- xhere.0yr {O<-  ԍxSee Complaint of the Post Company Against TCI Cablevision of Wyoming, 11 FCC Rcd at 4055 (1996);  {O-see also Complaint of CTV of Derry, Inc. Against AR Cable Services, Inc., 11 FCC Rcd at 3586, 3587 (1996).0 Moreover, in instances where it has been shown that the cable operator is not receiving  x<a good quality signal at its headend, we have explained that we expect the system and the station  X-to attempt to resolve any potential problems together.$yr {Oj-ԍxSee Report and Order in MM Docket 92259,  8 FCC Rcd at 2990 (1993).  Xg-v; ORDER ă  X9-  11.xAccordingly, IT IS ORDERED, that the petition CSR4696M filed April 2, 1996 by The  X"- x"Kralowec Children's Family Trust IS GRANTED in accordance with 614(d)(3) of the Communications Act of 1934, as amended [47 U.S.C. 534(d)(3)]. v  X- v 12.IT IS FURTHER ORDERED that Time Warner Cable SHALL COMMENCE  X - d(#LCARRIAGE of the signal of KKAG(TV) within sixty (60) days of the date of this Memorandum" ,-(-(ZZ"  X- d(#Opinion and Order ( 76.61(4) of the Commission's rules) on Time Warner Cable's system serving Avenal, California.  X- v 13.This Action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. ` `  hhCFEDERAL COMMUNICATIONS COMMISSION X` hp x (#%'0*,.8135@8: