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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) Complaint of Maranatha Broadcasting ) Company, Inc. against Comcast Cablevision ) CSR-4894-M ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 8, 1997 Released: April 11, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. On December 30, 1996, Maranatha Broadcasting Company, Inc., licensee of Station WFMZ-TV (Ind., Channel 69), Allentown, Pennsylvania, filed a "Complaint" with the Commission pursuant to 76.61 of the Commission's rules claiming that, despite its requests, Comcast Cablevision ("Comcast"), operator of cable television systems serving various New Jersey communities has refused to carry the station, even though Station WFMZ-TV maintains that it and each of Comcast's systems is located in the Philadelphia, Pennsylvania area of dominant influence (or"ADI"). Comcast Cablevision of Central New Jersey ("Comcast") has filed an "Opposition," and WFMZ-TV replied. SUMMARY 2. Station WFMZ-TV notes that it is a full power commercial television broadcast station, and that it ". . . delivers a good quality signal at Comcast's cable system's principal headend." Station WFMZ-TV adds that no other television broadcast station substantially duplicates its signal. However, prior to June 17, 1993, WFMZ-TV did not seek mandatory carriage on Comcast's systems, although it retained its must-carry rights, pursuant to the Commission's decision in the Clarification Order in MM Dockets No. 92-259, 90-4, and 92-295. On September 30, 1996, WFMZ-TV wrote Comcast requesting carriage on its cable systems in the following New Jersey communities: Hightstown, East Windsor, West Windsor, and Princeton Junction (in Mercer County); Roosevelt (in Monmouth County); as well as the following communities, all of which are located in Middlesex County, Dayton, Kendall Park, Kingston, Monmouth Junction, Cranbury, Helmetta, Jamesburg, Monroe, East Brunswick, Plainsboro, South Brunswick, and Spotswood. In its letter requesting carriage, WFMZ-TV noted that it was willing to bear the cost of acquiring and installing the equipment necessary to provide a -45 dBm or better signal at Comcast's headend, including a custom-cut Channel 69 antenna and a Scala Model 80065/69 preamplifier for each headend. WFMZ-TV also states that Comcast's systems have more than twelve usable activated channels, of which less than one-third are devoted to carriage of other local broadcast signals. According to WFMZ-TV, Comcast did not respond to its letter within thirty days and did not add the station, so WFMZ-TV filed the instant complaint. 3. Comcast initially notes, in response, that it does not serve the following four communities in Middlesex County: Dayton, Kendall Park, Kingston, and Monmouth Junction. Comcast adds that it did not respond to WFMZ-TV's carriage request, because the station does not deliver a good quality signal to Comcast's headend. In addition, Comcast states that it has no obligation to carry WFMZ-TV in the following communities, all of which are located in the New York City ADI, rather than in the Philadelphia ADI: Roosevelt (in Monmouth County); and Cranbury, Helmetta, Jamesburg, Monroe, East Brunswick, Plainsboro, South Brunswick, and Spotswood (all of which are located in Middlesex County). This leaves the communities in Mercer County, which Comcast admits are located in the Philadelphia, Pennsylvania ADI. With respect to these communities, Comcast argues that they should not be included within the Philadelphia, Pennsylvania ADI insofar as its carriage of WFMZ-TV is concerned, because the systems have never carried the station, and WFMZ-TV does not place a Grade B contour over any of these communities. In addition, Comcast notes that WFMZ-TV lacks significant viewership in these communities, all of which are located on the opposite edge of the Philadelphia ADI from the station's city of license, Allentown, and the station has no significant nexus to any of the communities in terms of local programming. 4. In reply, WFMZ-TV argues that Comcast should not be allowed to contest its signal quality now, because Comcast never did respond to the station's carriage request. WFMZ-TV adds that Comcast's data is insufficient to prove that its signal quality is poor because, among other things, it does not give the orientation or the specifications of the antenna used. In any case, even using Comcast's data, WFMZ-TV contends that it only needs to improve its signal strength by 12 dB at Comcast's headend to attain the requisite -45 dB signal, which its pre-amplifier and custom-cut Channel 69 antenna should easily accomplish. Citing the Bureau's previous decisions in Complaint of Maranatha Broadcasting Company, Inc. vs. Harron Communications Corp.; Complaint against Cablevision Systems Corporation; and Upchurch Broadcasting, Inc., WFMZ-TV states that it is entitled to request carriage and to make the effort to improve its signal to an acceptable level at Comcast's headend. DISCUSSION 5. Initially, we note that Comcast's opposition in this case was properly filed;  76.7(d) of the Commission's rules enables any interested party to ". . . submit comments or oppositions to a petition for special relief or a must-carry complaint . . . ." However,  76.55(e) of the Commission's rules also specifies that the market of a commercial television broadcast station, such as WFMZ-TV, is defined as its area of dominant influence. A commercial station is entitled to request carriage on any cable system operating in that ADI. WFMZ-TV made its carriage request to Comcast by letter dated September 30, 1996, but Comcast failed to respond to WFMZ-TV within the thirty days allowed by 76.61(a)(2) of the Commission's rules. Subsequently, WFMZ-TV filed a complaint within sixty days thereafter, as provided by 76.7(c)(4)(iii)(B) of the Commission's rules. WFMZ-TV is in the Philadelphia, Pennsylvania ADI, where Comcast's systems serving Mercer County are also located; thus, WFMZ-TV is entitled to demand mandatory carriage on those systems. However, Comcast's systems serving Middlesex and Monmouth Counties are all located in the New York, New York ADI, as Comcast noted, and WFMZ-TV is not entitled to demand mandatory carriage on those systems. 6. Another potential exception to the mandatory carriage of a station with must-carry rights arises when a station demanding carriage fails to deliver a good quality signal to the system's principal headend. The 1992 Cable Act provides that a cable operator is not required to carry a local commercial television station that does not deliver a good quality signal to the principal headend of a cable system. 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 to measure the signal delivered to its headend.However, we need not reach the engineering issues raised by WFMZ-TV, since it has agreed to bear the costs of providing a good quality signal to Comcast, including providing a custom-cut Channel 69 antenna and a Scala Model 80065/69 pre-amplifier. We find, therefore, that WFMZ-TV is a qualified UHF station that is entitled to carriage on Comcast's cable systems in Mercer County. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED, that the "Complaint" (CSR-4894-M) filed December 30, 1996, by Maranatha Broadcasting Company, Inc., licensee of Station WFMZ-TV (Ind., Channel 69), Allentown, Pennsylvania, IS GRANTED to the extent indicated in paragraph 6 above, in accordance with 614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C. 534) and 47 C.F.R. 76.56(b), and in all other respects IS DENIED. 8. IT IS FURTHER ORDERED that the affected cable systems shall commence carriage of WFMZ-TV sixty (60) days from the date that WFMZ-TV provides the necessary specialized equipment to receive a good quality signal at the headend of Comcast Cablevision of Central New Jersey. 9. This action is taken pursuant to authority delegated by  0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau