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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) CSR-4895-M Company, Inc. against Suburban Cable) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 16, 1997 Released: April 18, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Maranatha Broadcasting Company, Inc., licensee of Station WFMZ-TV (Ind., Ch. 69), Allentown, Pennsylvania, filed a "Complaint" with the Commission, pursuant to 76.61 of the Commission's Rules, claiming that Suburban Cable has refused carriage of its station on two cable systems serving Aldan and Bensalem, Pennsylvania and their surrounding communities even though the station and Suburban's systems are all located in the Philadelphia, Pennsylvania ADI. Suburban has filed an opposition to the complaint to which WFMZ-TV replied. SUMMARY OF PLEADINGS 2. In support of its request, WFMZ-TV states that it requested carriage on Suburban's systems by letters dated September 30, 1996. WFMZ-TV indicates that in these letters it pointed out to Suburban that it is a local commercial television station within the meaning of 76.56(b) and 76.55(c), that its signal is not substantially duplicated by any other station carried by the systems, and that its carriage on Suburban's systems would incur no copyright liability. WFMZ-TV states that Suburban refused carriage on its Aldan and Bensalem systems in responses dated October 8, 1996 and November 12, 1996, respectively. WFMZ-TV indicates that both letters alleged that the station did not qualify for carriage as it failed to provide a good quality signal at the systems' headends. However, WFMZ-TV points out that the showings provided by Suburban as part of its allegation of poor signal quality failed to include information to substantiate that the signal test measurements conducted by Suburban were done in a manner which complied with established Commission criteria. Moreover, WFMZ-TV maintains that Suburban fails to include any information regarding the height of the antennas used to receive other UHF stations at either cable system headend and is vague about the height, gain, and type of antennas used in the tests. WFMZ- TV argues that the Commission's engineering criteria requires that potential must carry signals be tested for reception by cable operators in the same manner as currently-carried signals. In any event, WFMZ-TV states that it will willingly provide, at its own expense, any equipment necessary to ensure a good quality signal at Suburban's principal headends. WFMZ-TV concludes, therefore, that in view of the fact that Suburban's only objection to carriage of its signal appears to be due to poor signal quality, a deficiency which WFMZ-TV states it has promised to correct, the Commission should order Suburban to carry the station. 3. In its opposition, Suburban states that after receiving WFMZ-TV's request for carriage, it undertook signal strength measurements which indicated that the station's signal did not meet Commission criteria. Suburban points out that while WFMZ-TV was provided with these measurements it made no attempt to either contact Suburban to request additional information concerning the methodology used in the signal test measurements or to cooperate with Suburban in conducting further joint tests to determine if the station's signal deficiencies could be remedied. Instead, it filed a complaint directly with the Commission. Suburban states that it disagrees with WFMZ-TV's assumption that merely because it has offered to provide any "reasonably necessary" equipment to ensure a good quality signal that it has fully met its statutory obligations. Suburban argues that Section 614 of the Communications Act of 1934, as amended, does not require cable operators to "employ extraordinary measures or specialized equipment when making measurements for stations that are not currently carried," but only that systems use good engineering practices when measuring a station's signal. Suburban states that it has done this. Further, Suburban argues that WFMZ-TV has not taken any concrete steps to overcome its signal deficiency. Suburban also points out that WFMZ-TV has not attempted to introduce its own signal strength tests or proffered any specialized equipment to establish that its signal does meet the criteria. Suburban argues that while it used good engineering practices in its original signal tests, it nevertheless conducted new tests of WFMZ-TV's signal at both of its headends on January 16, 1997 which again found the signal to be inadequate. Therefore, Suburban argues that as WFMZ-TV remains unable to deliver an adequate signal, the cable systems cannot be deemed in violation of the rules and WFMZ-TV is not entitled to a carriage order since it has no real basis for its complaint. 4. In reply, WFMZ-TV argues that the more recent test data submitted by Suburban is not only late filed, but similarly unpersuasive. WFMZ-TV maintains that the Lindsay antennas used in the tests performed by Suburban are wide-band antennas not typically used by cable operators for the regular reception of UHF signals. Indeed, WFMZ-TV notes that the Lindsay antenna, in particular, is ill-suited to the reception of WFMZ-TV which operates on Channel 69, at the upper extremity of the UHF band. WFMZ-TV points out that on other systems where the cable operator has claimed results similar to those of Suburban, the installation of a custom-cut antenna and a pre- amplifier achieved a 40 dB improvement in its signal. WFMZ-TV argues that it is evident that signal tests performed using the right equipment would produce a good quality signal at Suburban's headends. WFMZ-TV asserts that, given the fact that it has offered to provide the necessary equipment to achieve a good quality signal, it is entitled to carriage. Finally, WFMZ-TV argues that negotiations with Suburban over the conditions for carriage of its signal were not necessary in light of its expressed willingness to provide the necessary equipment. In any event, it maintains that Suburban's responses gave no suggestion that it was interested in such negotiations. DISCUSSION 5. We will grant WFMZ-TV's petition. According to 76.55(e) of the Commission's Rules, commercial television broadcast stations, such as WFMZ-TV, are entitled to carriage on cable systems located in the same Area of Dominant Influence (or "ADI"). WFMZ-TV is located in the Philadelphia, Pennsylvania ADI, which is also where the communities served by Suburban are located. A review of Suburban's engineering study establishes that WFMZ-TV fails to provide a good quality signal to Suburban's principal headends. However, we note that WFMZ-TV has offered to provide specialized equipment to Suburban to improve the station's signal. WFMZ-TV maintains that with the use of specialized equipment, it can provide a signal to Suburban's headends that is consistent with Commission criteria. Moreover, WFMZ-TV has stated that it will bear the costs of installing such equipment to assure a good quality signal. The Commission has stated that amplifiers and other 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 station's obligation to bear the costs associated with delivering a good quality signal to the system's principal headend, 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. . . . WFMZ-TV, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Suburban's headends. Consequently, we shall order Suburban to carry WFMZ-TV's signal in the event that WFMZ-TV provides a good quality signal employing the specialized equipment it has offered to install at Suburban's principal headends. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED that the petition filed December 30, 1996, by Maranatha Broadcasting Company, Inc. IS GRANTED pursuant to 614(d)(3) of the Communications Act of 1934, as amended (4 U.S.C. 534). Suburban Cable IS ORDERED to commence carriage of Station WFMZ-TV on its Aldan and Bensalem cable systems sixty (60) days from the the date that WFMZ-TV provides a good quality signal at Suburban's Aldan and Bensalem systems' principal headends. WFMZ-TV shall notify Suburban Cable in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's Rules) within thirty (30) days of providing a good quality signal. 7. 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