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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 II, Inc.)CSR-4963-M against East Texas Cable ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: July 17, 1997 Released: July 21, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1.United Broadcast Group II, Inc. ("United"), licensee of Television Broadcast Station KINZ(TV), Arlington, Texas, has filed a must-carry complaint requesting that the Commission order East Texas Cable ("East Texas"), operator of a cable television system serving the community of Canton, Texas to commence carriage of KINZ(TV). No opposition has been filed. 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. ARGUMENTS OF THE PARTIES 3.United states that on December 11, 1996 East Texas was notified that United was conducting on-air program tests on KINZ(TV), that it intended to commence broadcasting in the near future, and that it intended to elect must-carry status in lieu of retransmission consent. United states further that after commencing operations on December 17, 1996, it informed East Texas on January 6, 1997 that KINZ(TV) was on the air and requested a commitment from East Texas in writing to carry KINZ(TV)'s signal. United says it also requested East Texas to contact the station regarding any concerns about station facilities, programming or signal matters. United asserts that East Texas subsequently informed United that KINZ(TV) was not entitled to carriage on the system serving Canton because KINZ(TV) failed to deliver an adequate signal and that it would not carry the station. United states that East Texas also claimed it was already meeting its obligation under the Commission's rules to carry local television stations up to one third of its aggregate number of activated channels. 4.United contends that several deficiencies exist in the signal test reports furnished by East Texas and states that it requested additional information from East Texas regarding the station's signal strength and made a commitment to East Texas to install, at its own expense, any equipment necessary to upgrade KINZ(TV)'s signal to the requisite level. United argues that, in view of its commitment to provide equipment necessary to upgrade KINZ(TV)'s signal to the requisite level at East Texas's cable system headend, it is irrelevant whether signal level tests may show that KINZ(TV) provides a good quality signal at the system headend. United asserts that it is a for-profit full-power broadcast facility entitled to must- carry status on East Texas's cable system serving this community. East Texas did not file any response to the complaint. DISCUSSION 5.We will grant United's complaint. Under the Commission's must-carry rules, cable operators have the burden of showing that a commercial station that is located in the same television market is not entitled to carriage. One method of doing such is for a cable operator to establish that a subject television station's signal, which would otherwise be entitled to carriage, does not provide a good quality signal to a cable system's principal headend. Should a station fail to provide the requisite over-the-air signal quality to a cable system's principal headend, its carriage nevertheless may not be foreclosed. Under our rules, a station may provide a cable operator with specialized equipment, at the station's expense, which will improve the station's signal to an acceptable quality at a cable system's principal headend. 6.East Texas' position, stated in correspondence with United, that its obligation under the Commission's rules to carry local television stations is already met, because the number of commercial television stations it carries equals one third of its aggregate number of activated channels, is without merit. As United points out, East Texas currently caries eight local commercial television stations, i.e., stations from the Dallas ADI, although its channel line up information indicates that there are 35 activated channels on its cable system. Under Section 76.56(b)(2), East Texas may be required under the must carry regulations to carry local commercial television stations up to one third of is 35 activated channel capacity, or as many as eleven local commercial television stations. 7.In this instance, East Texas failed to submit signal strength studies showing compliance with Commission requirements for use of sound engineering practices. East Texas therefore failed to show that United does not provide a sufficient off-air signal to East Texas's cable system headend. In any event, United has made a commitment on this record to deliver an adequate signal to East Texas's cable systems and to pay any associated costs, in accordance with 614(h)(1)(B)(iii) of the Communications Act of 1934. ORDERING CLAUSES 8.Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C. 534), that the petition filed by United Broadcast Group II, Inc. ("United") IS GRANTED. East Texas Cable ("East Texas") IS ORDERED to commence carriage of television station KINZ(TV) within sixty (60) days of the release date of this Order. 9.This action is taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau