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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 Larry L ) CSR-4931-M Schrecongost, licensee of ) W49BV, Indiana, Pennsylvania ) ) Against TCI of Pennsylvania, Inc.,) Adelphia Cable Communications, ) Hollis Corporation d/b/a/ ) Bethel Cable TV, ) Summerville Cablevision, Inc., and) Commuter Cable Television ) for Refusal to Carry W49BV ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: August 21, 1997 Released: August 25, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. On January 24, 1997, Larry L. Schrecongost (Petitioner), licensee of low power television station W49BV (Channel 49), Indiana, Pennsylvania, filed a complaint against TCI of Pennsylvania, Inc. (TCI), Adelphia Cable Communications (Adelphia), Summerville Cablevision, Inc. (Summerville), Commuter Cable Television (Commuter), and Hollis Corporation d/b/a/ Bethel Cable TV (Bethel) (collectively, the cable operators) on the grounds that the cable operators had declined to carry the station, pursuant to Section 76.61 of the Commission's rules. Petitioner's complaint alleges that W49BV is a fully- qualified low power television station within the meaning of Section 76.56(b)(3) of the Commission's rules and, therefore, is entitled to carriage on subject cable systems. Petitioner requests that the Commission order the cable operators to carry W49BV. TCI, Adelphia, Bethel filed oppositions, to which Petitioner responded. Summerville and Commuter did not oppose the complaint. BACKGROUND 2. Section 614(a) of the Communications Act of l934, as amended, requires the carriage of "qualified" low power television (LPTV) stations in certain limited circumstances. Under Section 76.56(b)(3) of the Commission's rules, promulgated pursuant to Section 614, a cable system that has insufficient full power television signals to reach its channel set aside shall carry at least one qualified low power station. Thus, if a cable system is carrying its full complement of commercial full power stations, it need not carry a LPTV station. A LPTV station that conforms to the rules established for LPTV stations in Part 74 of the Commission's rules will be considered "qualified" only if: 1) it broadcasts for at least the minimum number of hours of operation required under 47 C.F.R. Part 73; 2) it adheres to Commission requirements regarding nonentertainment programming and employment practices and "the Commission determines that the provision of such programming by the station would address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power television station's community of license;" 3) it complies with interference regulations consistent with its secondary status; 4) it is located no more than 35 miles from the cable system's headend and delivers to the principal headend an over-the-air signal of good quality; 5) the community of license of the station and the franchise area of the cable system are both located outside the largest 160 Metropolitan Statistical Areas (MSA's) on June 30, 1990, and the population of such community of license on that date did not exceed 35,000; and 6) there is no full power television broadcast station licensed to any community within the county or other political subdivision (of a State) served by the cable system. Petitioner states that W49BV meets all of the above qualifying criteria under Section 76.55(d) of the Commissions rules. THE COMPLAINTS TCI 3. Petitioner states that he requested carriage on the TCI systems in letters of August l6, and November 7, l996. On November 21, l996, TCI responded by claiming that the station failed to deliver a usable signal to its Cowanshannock, Dayton, Elderton, Kiskiminetas, and Saltsburg systems. Petitioner contends that TCI erred in its engineering methodology in reaching this conclusion. In a January 8, l997 letter to TCI, Petitioner contended that TCI's measurements failed to comply with accepted engineering methods. He pointed out to TCI that measurements were taken at four different headends on the same day, with three sets taken within 90 minutes of one another at three different headends located 20 miles apart. On September 23, l996, TCI requested verifications that Channel 49 was a qualified LPTV station, in regard to carriage on the Carrolltown and West Wheatfield Township systems. Petitioner responded on January 8, l997 and has not received a response. TCI requested further information concerning Channel 49's qualifications for must carry status in regard to its Toby Township system, to which Petitioner responded on January 8, l997. He states that TCI has not responded to this correspondence. 4. In opposition, TCI asserts that the station is not a qualified LPTV station for must carry purposes on all of its systems relevant to this matter. TCI contends that Petitioner has failed to meet the burden of showing that the station consistently broadcasts the types of programming that would "address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license, citing 47 C.F.R.  76.55(d)(2). TCI contends that although Petitioner has cited a few anecdotal examples of its programming, it has not in any way quantified the amount of its "local" programming, nor has it shown that any of the programming addresses news and informational needs of any of the specific communities served by the systems at issue. Moreover, TCI argues that all of the systems at issue carry numerous full power television stations licensed to Johnstown, Altoona, and Pittsburgh, Pennsylvania that adequately serve the local news and informational needs of TCI's subscribers. TCI argues that Petitioner's unsupported contention that its programming is not available from any other source fails to establish that the station's programming is locally oriented, or that it addresses the local needs not addressed by full power stations, as required by the Commission's rules. 5. TCI also contends that the Kiskiminetas, Saltsburg, and Armagh systems serve franchise areas primarily located in Westmoreland County, located within the Pittsburgh Metropolitan Statistical Area (MSA), and that the Carrolltown system is located and serves franchise areas in Cambria County, located in the Johnstown MSA. TCI cites the Bureau of the Census statistics, which rank these MSAs 19 and 138, respectively, on June 30, l990. Accordingly, TCI concludes that Petitioner fails to meet the requirement that both the community of license of the station and the franchise area of the cable system be located outside of the largest 160 MSAs with respect to these cable systems. In addition, TCI contends that signal strength studies performed at the Armagh and Carrolltown headends show that the station does not provide an over- the-air signal of good quality. Finally, TCI states that the distance between the station and the Rimersburg headend exceeds the statutorily mandated limit of 35 miles for qualified low power stations. 6. In his reply, Petitioner states that the programming on W49BV is locally oriented and addresses local news and informational needs. Petitioner maintains that these needs are not adequately met by any full power television stations because of the distance of such stations from the communities at issue. Petitioner states that TCI's cable systems must use high gain antennas mounted high up on headend towers to receive the distant Pittsburgh and Johnstown programming. Petitioner contends that its local programming, such as a weekly mass from the local diocese, and a "steady diet" of local high school athletics are unavailable from any other source. In addition, Petitioner contends that while much of the station's local programming is of special events which are not regularly scheduled, the cumulative effect is a substantial amount of "truly local" programming. Petitioner continues that the Pittsburgh and Johnstown stations do not provide local programming to the systems in question, as they are located some 50 miles from the systems, and concludes that W49BV provides local programming unavailable from other full power stations. 7. Petitioner also argues that TCI has failed to identify what portions of the systems serving the Kiskiminetas, Saltsburg, and Armagh franchise areas are within the Pittsburgh MSA, and which portions are located outside. As such, he argues that where the cable system straddles counties, and some of the franchises have LPTV must carry obligations and some do not, the LPTV station will be qualified for carriage in both franchise areas where they are served from headends located in a county where must carry obligations exist, citing Complaint of Seeway Broadcasters, 10 FCC Rcd 1670 (CSB, l995). Finally, Petitioner repeats his contention that TCI has not conducted its signal strength tests using sound engineering measurement practices, and concludes that had TCI done so, the station's signal would exceed the Commission's -45 dBm standard at all of TCI's headends, except the Carrolltown system headend. Adelphia 8. Petitioner states that he sent letters on August l6, l966 to the Adelphia cable systems which are subject to the complaint. Petitioner states that Adelphia responded with letters regarding its Kittaning and Freeport systems, stating that the station failed to deliver a good quality signal to the systems based on Adelphia's signal strength measurement tests. Petitioner replied to these letters, contending that Adelphia's engineering methods were in error. Petitioner states that he received no responses in regard to Adelphia's other systems. He sent additional letters on November 7, l996 to these systems and did not receive a response. On December l2. l996, Petitioner called Adelphia, and was told that the cable operator was assessing whether the station qualified for carriage on these systems, and that he would receive a call "within a week." When Petitioner did not hear from Adelphia, he sent another letter to the cable operator on January 6, l996 regarding carriage on these systems. 9. Adelphia contends in its opposition that (1) W49BV does not deliver a good quality over- the-air signal to its cable systems; (2) W49BV did not provide to Adelphia information concerning its program content, and that the complaint indicates that the station's programming does not include local news or children's programming; and (3) that several of the franchise areas in which W49BV requests carriage are inside the Pittsburgh MSA, thereby disqualifying the station from must carry status in those areas. Adelphia states that it informed Petitioner of Adelphia's test results which indicated that W49BV failed to deliver a good quality signal to Adelphia's headend. Adelphia insists that it conducted such tests in accordance with Commission requirements for sound engineering practices. Adelphia also contends that Petitioner has failed to provide any information concerning the station's programming to verify that it meets the requirements for low power television stations to qualify for must carry status. Adelphia argues that Petitioner's examples of local programming consists of a few isolated occasions where W49BV broadcast one-time events. In addition, Adelphia contends that the station's programming does not include any local news or children's programming. Adelphia concludes that such minimal programming does not satisfy the station's obligation to meet either the programming requirements for commercial broadcast stations or the requirement to provide local news and informational programming, which Adelphia contends is adequately provided by local full power stations. Adelphia also states that it does not serve the communities of Commodore, Dicksonville, Greene Township, Indiana Township, Oakwood Hills, Payne and Starford, and that Petitioner's complaint is in error in regard to Adelphia's cable service to these communities. 10. In his reply, Petitioner states that local programming is not carried by any other station, and the fact that some of the programming consists of one-time events, e. g., high school sporting events and political debates, is irrelevant. Petitioner argues that the station does carry regularly scheduled local programming, such as the local Catholic Mass. Petitioner argues that although W49BV does not carry a daily news broadcast, many of its programs address news in the community, and that carriage of a daily news program is not the sine qua non of LPTV qualification, citing Complaint of Folse Productions, Inc., 10 FCC Rcd 13644, 13645 (Cable Services Bureau, l995). Petitioner continues that carriage of political debates, local sports, and local community events is an adequate substitute for a "formal" daily news broadcast. In regard to children's programming, Petitioner states that the station broadcasts approximately 12 hours of such programming per week, including twice daily showings of "Children's Room" and "Gerbert" during the week, and instructional programming on the weekends of interest to children 16 years and younger. Further, Petitioner argues that the Pittsburgh stations, some 50 miles away, do not broadcast programming that address local issues. Bethel 11. Petitioner states that he sent letters to Bethel on August l6, l996 requesting carriage. A series of telephone conversations and letters between Petitioner and Bethel ended in a January 14, l997 letter from Bethel to Petitioner, in which the cable operator requested proof of the station's must carry qualifications, and stated that Petitioner had failed to demonstrate that the station is delivering an adequate signal to any of Bethel Cable TV's headends. 12. Bethel states in its opposition and supplement to its opposition that W49BV fails to deliver the required quality signal of -45 dBm to Bethel's Loyalhanna, Parks and Washington cable television system headends. Additionally, Bethel contends that Petitioner fails to demonstrate that the Pittsburgh stations fail to provide Bethel's subscribers with local programming that is provided by W49BV. Finally, Bethel states that the burden is on Petitioner to demonstrate its eligibility for carriage to the cable operators, which Bethel contends Petitioner has not done. 13. In his reply to Bethel's opposition, Petitioner contends that Bethel has created artificially low measurements in attempt to avoid its must carry obligations. He argues that Bethel's test data should be disregarded, and that the Commission should order to Bethel to begin carriage of W49BV immediately. Summerville and Commuter 14. Petitioner states that he sent letters to Summerville and Commuter on August l6, l996, requesting carriage on their systems. Receiving no response, Petitioner sent an additional letter requesting carriage to the systems on November 7, l996. On December 6, l996, both Summerville and Commuter responded to Petitioner, stating that the station failed to deliver and maintain a good quality signal at both systems headends. In addition, Summerville contended that W49BV is more than 35 miles from its headend. Accordingly, the systems concluded that they were under no obligation to carry the station. Petitioner, in his reply, argues that Summerville and Commuter should be ordered to carry the station, as neither cable operator subsequently filed an opposition with the Commission pursuant to his complaint. ANALYSIS AND DISCUSSION 15. Section 76.55(d)(2) requires that in order for a LPTV station to be accorded qualified status for must carry purposes in a matter such as this, the Commission must determine that the station's nonentertainment programming addresses local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of the full power stations from the LPTV's community of license. We are not convinced that Petitioner has met his burden of demonstrating that W49BV provides local news and informational programming. Petitioner has failed to introduce any programming logs or other evidence supporting its contention that it provides local news and informational programming. Other than one regularly scheduled program, a weekly mass from the local diocese, Petitioner provides only unspecified examples of political debates, local sports and community events, without information regarding the scheduling of such programming or how it fulfills the mandate of the Commission's rules. In view of Petitioner's failure to introduce such evidence, we are unable to conclude that W49BV is a qualified low power station as contemplated by Section 614(h)(2) of the Act or Section 76. 55(d) of the Commission's rules. Consequently, W49BV is not entitled to mandatory carriage on the cable systems relevant to this proceeding. 16. Although Petitioner has not demonstated that W49BV is a qualified LPTV station for must carry purposes, we believe it instructive to note that the cable operators in this matter have apparently not conducted engineering tests in response to Petitioner's requests for carriage 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." TCI 17. We are not convinced that TCI has complied with the Commission's requirements for the use of good engineering practices in measuring the signal of W49BV. According to information supplied by Petitioner, and not contradicted by information supplied by TCI, it appears that the testing antennas at the Rural Valley, Kiskiminetas, Elderton and Armagh headends were not comparable in performance and height to antennas used by TCI at these sites for the reception of other UHF stations, and that the testing antenna used at the Saltsburg headend was not comparable in performance to antennas used at this site for the reception of other UHF stations. 18. We also do not agree with TCI's argument that its Kiskiminetas, Saltsburg, and Armagh systems need not carry W49BV because these systems also serve franchise areas located in Westmoreland County, located within the Pittsburgh MSA. A system which otherwise is required to carry a low power station cannot escape its carriage obligation because portions of that system are located within the top 160 MSAs. Where a system serves franchise areas both within and without a top 160 MSA, and is otherwise obligated to carry a LPTV station, that system will be required to carry the station, and, if technically feasible, will be allowed to filter out carriage of the station in those franchise areas that fall within a top 160 MSA. See Report and Order in MM Docket No. 92-259, 8 FCC Rcd 2965 at paragraph 41, where the Commission stated that where a cable system serves communities in two different Areas of Dominant Influence (ADI), that system must carry all of the required local commercial television signals in both ADIs, unless the system is technically capable of segregating its carriage obligations. Adelphia 19. Adelphia has not provided the Commission with any test results for the signal strength of W49BV at its Indiana, New Bethlehem, Punxsutawney, and Rayne Township systems. In addition, it appears from information supplied to the Commission by Petitioner, and not contradicted by information supplied by Adelphia, that the cable operator did not use antenna equipment similar in performance in testing W49BV's signal at the Blairsville, Freeport, and Kittanning headends. Based on the record before us, it appears that Adelphia has not conducted its signal strength tests using accepted Commission standards. Bethel 20. Petitioner has supplied information, supported with photographs, that other UHF stations carried by the three Bethel systems are received by Bethel antennas mounted at a higher elevation on Bethel's towers than the antennas used to test W49BV's signal. This disparity can result in a lower signal level being received by the cable operator. Bethel has provided the Commission with no information to dispute this conclusion. Based on the record before us, it appears that Bethel has not conducted its signal strength tests using accepted Commission standards. Commuter and Summerville 21. Although Commuter and Summerville did not file an opposition in this matter, both operators supplied Petitioner with letters indicating their belief that the station did not provide an adequate signal to the cable operators headend. In addition, Summerville contended in a letter to Petitioner that the system was more than 35 miles from the station. Petitioner refuted that contention is his reply to Summerville and the cable operator did not supply any additional information to Petitioner that would support its contention that the system was outside of the 35 mile limit. In addition, it appears that both Summerville and Commuter were deficient in the number of measurements taken to determine W49BV's signal strength. 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. Where the initial readings are between -51 dBm and -45 dBm, we believe that the readings should be taken over a 24-hour period with measurements not more than four hours apart to establish reliable test results. It is apparent from correspondence between Petitioner and Commuter and Summerville that the cable operator did not conform to Commission requirements in its testing methods. 22. Even though it appears that the cable operators in this matter did not conform to Commission requirements for the testing of W49BV's signal, it is clear that Petitioner has not established that the station is a qualified LPTV station for must carry purposes, due its lack of evidence regarding the station's local news and informational programming. ORDER 23. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of l934, as amended, and Sections 76.55(d) and 76.56(b)(3) of the Commission's rules. that the complaint filed by Larry L. Schrecongost, licensee of W49BV, Indiana, Pennsylvania in File No. CSR 4931-M, IS DISMISSED as to the Carrolltown and Rimersburg, Pennsylvania cable television systems operated by TCI of Pennsylvania, Inc., and in all other respects, that the complaint filed by Larry L. Schrecongost in File No. CSR 4931-M against TCI of Pennsylvania, Inc., Adelphia Cable Communications, Summerville Cablevision, Inc., Commuter Cable Television and Hollis Corporation d/b/a/ Bethel Cable TV IS DENIED. 24. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules. 47 C.F.R. Section 0.321. FEDERAL COMMUNICATIONS COMMISSION Gary Laden, Chief Consumer Protection and Competition Division Cable Sevices Bureau