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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 United Broadcast Group)CSR-4968-M II, Inc. against Paragon Cable ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: July 14, 1997Released: July 17, 1997 By the Chief, Consumer Protection & Competition Division, Cable Services Bureau: INTRODUCTION 1. United Broadcast Group II, Inc. (United), licensee of Television Broadcast Station KINZ, Arlington, Texas, has filed a must carry complaint requesting that the Commission order Paragon Cable, operator of cable television systems serving Lewisville, Commerce, and Palestine, Texas, to commence carriage of KINZ. Paragon has opposed United's petition and United has replied. 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. ARGUMENTS OF THE PARTIES 3. In support of its request, United states that television station KINZ is located within the Dallas-Fort Worth, Texas ADI, as are Paragon's cable television systems serving Lewisville, Commerce, and Palestine, Texas. Pursuant to 76.64(f)(4) of the Commission's Rules, United notified Paragon by letter dated December 11, 1996, that it was conducting on-air program tests of KINZ and would be commencing regular broadcasting shortly. In the same letter, United states that it informed Paragon that it was electing must carry status in lieu of retransmission consent and requested carriage on Paragon's Palestine, Commerce and Lewisville systems. In letters dated February 13 and February 24, 1996, United states that Paragon contended that the station did not deliver an adequate signal to the Palestine and Commerce systems' headends and therefore was not entitled to carriage. United contends that Paragon's signal strength tests, included in the February 13 and 24 correspondence, do not conform with sound engineering principles, in that the tests do not: (1) indicate whether the test equipment employed was of the type that the system currently uses to receive signals of similar frequency range, type and distance from the headends involved; (2) demonstrate that the antennas used to measure the signal were at a height consistent with receiving antennas for the reception of similar stations; and (3) comport with sound engineering practices, in that Paragon conducted only one test, rather than multiple tests. 4.United responded in letters dated February 25 and March 4, l997, and committed to the installation, at the station's cost, of any specialized equipment that might be necessary to upgrade the station's signal to the requisite level. United argues that, despite its stated willingness to work with Paragon to resolve any signal quality problems, and its offer to provide any specialized equipment necessary to ensure an adequate signal, the cable system remains unwilling to carry its signal. United maintains that even if the signal quality tests performed by Paragon indicate that its signal does not meet the Commission's criteria for a good quality signal, its willingness to provide equipment to improve its signal should overcome this deficiency. United therefore requests that the Commission grant its request. 5. In opposition, Paragon states that its cable system serving Lewisville, Grapevine, Irving and Coppell, Texas began carriage of KINZ's signal on March 10, l997, and that the complaint regarding this system is moot. Paragon states that Palestine, Texas is located 105 miles from Arlington, KINZ's city of license, and that the station's Grade B coverage area does not reach Paragon's headend in Palestine. Paragon states that because of the distance, KINZ's signal strength at the Palestine headend produced a reading of - 88.75 dBm, with no signal actually detected by Paragon. Paragon contends that in this circumstance, multiple measurements of the station's signal could not produce results that would increase the station's signal to the -45 dBm threshold signal level mandated by the Commission for UHF stations. Paragon states that its measurements of the station's signal at the cable operator's Commerce headend produced a poor result of -64.75 dBm at a 200 foot height on the tower, almost 20 dBm below the threshold signal level. Paragon contends that additional measurements at the Commerce headend would not produce a good quality signal for KINZ of -45 dBm. Paragon concludes that it remains willing to investigate methods for boosting KINZ's signal to acceptable performance levels at the Palestine and Commerce headends. 6. In its reply, United argues that Paragon has not provided adequate engineering reports to support its claim that KINZ's signal is insufficient, and even assuming the tests are reliable, the station is still entitled to carriage based on United's commitment to provide specialized equipment to upgrade the station's signal. United concludes that the Commission should order carriage of KINZ on Paragon's systems. DISCUSSION 7. We will grant United's petition, in regard to Paragon's Palestine and Commerce, Texas cable television systems, and dismiss as moot that part of United's petition regarding Paragon's system serving Lewisville, Grapevine, Coppell and Irving, Texas, as it appears that the latter system has been carrying KINZ since March 10, l997. Paragon has not conducted engineering tests in response to Petitioner's requests for carriage at the Palestine and Commerce headends in accord with accepted Commission standards. Since the cable operator is at the outset in a superior position to know whether or not 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 has used good engineering practices to measure the signal delivered to the headend. To measure a stations's signal to see if it meets the Commission's requirements, a cable operator's signal strength surveys should, at a minimum, include the following: 1) specific make and model numbers of the equipment used, as well as its age and most recent date(s) of calibration; 2) description(s) of the characteristics of the equipment used, such as antenna ranges and radiation patterns; 3) height of the antenna above ground level and whether the antenna was properly oriented; and 4) weather conditions and time of day when tests were done. While the Commission does not specify which type of antenna must be used to determine signal strength, a cable operator is required to take measurements with "generally accepted equipment that is currently used to receive signals of similar frequency range, type or distance from the principal headend." We cannot determine from Paragon's testing methodology whether Paragon used equipment currently used to receive signals of similar frequency range, type or distance from its headends at Palestine and Commerce. 8. In addition, a cable operator must conduct multiple signal quality tests to ensure accurate results. Generally, if the test results are less than -51 dBm for a UHF station, we have said that at least four readings must be taken over a two-hour period. It is apparent from correspondence between KINZ and Paragon that the cable operator did not conform to Commission requirements in its testing methods at Palestine and Commerce, in that Paragon conducted only one signal strength test at each headend. Regardless of Paragon's protestations that such testing would be futile because of the distance and initial signal strength tests, we believe that the cable operator must comply with Commission directives in this regard. 9. We also note that United has offered to provided specialized equipment to Paragon to improve its station's signal. United maintains that with the use of specialized equipment, it can provide a signal to Paragon's headends consistent with Commission criteria. Moreover, United has stated that it will bear the costs of installing such equipment to assure a good quality signal. The Commission has stated that specialized 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. . . United, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Paragon's headends. If necessary, we encourage Paragon and United to work together in this regard. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that the petition filed March 10, 1997, by United Broadcast Group II, Inc. IS GRANTED pursuant to 614 of the Communications Act of 1934, as amended (4 U.S.C. 534), as to Paragon Cable's cable television systems serving Palestine and Commerce, Texas. Paragon Cable IS ORDERED to commence carriage of Station KINZ on its Palestine and Commerce, Texas cable television systems sixty (60) days from the release date of this Order. IT IS ALSO ORDERED that the petition filed March 10, l997 by United Broadcasting Group II, IS DISMISSED as to Paragon Cable's cable television system serving Lewisville, Grapevine, Irving and Coppell, Texas. 11. 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