******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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-4959-M against TCA Management Company ) ) 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 TCA Management Company ("TCA"), operator of cable television systems serving the communities listed below to commence carriage of KINZ(TV). TCA has opposed United's complaint, 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. 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, TCA 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 TCA on January 6, 1997 that KINZ(TV) was on the air and requested a commitment from TCA in writing to carry KINZ(TV)'s signal. United asserts that TCA subsequently informed United that signal strength measurements at the Athens and Sulphur Springs system headends showed that KINZ(TV) was not entitled to carriage on those systems because KINZ(TV) failed to deliver an adequate signal. United states that it responded to TCA by pointing out deficiencies in the signal test reports furnished by TCA, and by making a commitment 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 the equipment necessary to upgrade KINZ(TV)'s signal to the requisite level at TCA's cable system headends, it is irrelevant whether the signal level tests show that KINZ(TV) provides a good quality signal at those headends. United asserts that KINZ(TV) is a for-profit full-power broadcast facility entitled to must-carry status on TCA's cable systems serving these four communities. 4.In opposition, TCA states that it has conducted signal level tests which purport to show that KINZ(TV) fails to deliver a good quality signal to the headends of its cable systems serving these four communities. It points out that KINZ(TV) is located at distances from 70 to 110 miles from the cable system headends and cannot possibly provide Grade B signal coverage to the relevant communities. TCA argues that the four factors test for excluding communities from a station's market so clearly fits the communities served by its cable systems that it is hopeful that United, after reviewing the signal test results, will withdraw its complaint. 5.United did not withdraw its complaint but replied instead, claiming that TCA failed to show that the signal strength tests were conducted in accordance with sound engineering practices as required by Commission rules. In any event, United reiterated the commitment made in its correspondence with TCA "to provide TCA with any specialized equipment necessary to upgrade its signal," and asserts that "the Station is a 'qualified local commercial television station' entitled to carriage under the Commission's rules." United argues that because it offers to provide, at its own expense, any equipment necessary to deliver a good quality signal to TCA's facilities, the results of the signal strength measurements lack legal significance, and that its commitment warrants grant of the complaint. DISCUSSION 6.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, because, 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. 7.In this instance, TCA submitted signal strength studies which fail to show compliance with Commission requirements for use of sound engineering practices. TCA therefore has failed to establish that United does not provide a sufficient off-air signal to TCA's cable system headends. In any event, United has made a commitment on this record to deliver an adequate signal to TCA'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. TCA Management Company ("TCA") IS ORDERED to commence carriage of television station KINZ(TV) 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