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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: ) ) Complaints of Paxson Communications of ) CSR-5022-M Akron-23, Inc. and Whitehead Media of ) CSR-5027-M Ohio, Inc. against Cox Cable Cleveland ) Area Inc. ) ) Requests for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: October 21, 1997 Released: October 23, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Paxson Communications of Akron-23, Inc. (Paxson), licensee of television broadcast station WAKC-TV, Akron, Ohio, has filed a must carry complaint requesting that the Commission order Cox Cable Cleveland Area Inc. (Cox), to commence carriage of WAKC-TV on Cox's cable television system serving the communities of Cuyahoga County, Broadview Heights, Brooklyn Heights, Fairview Park, Lakewood, Olmstead Falls, Olmstead Township, Parma Heights, Rocky River, and Seven Hills, Ohio from its Parma, Ohio headend and located within the Cleveland, Ohio Area of Dominant Influence (ADI). Cox has opposed Paxson's petition and Paxson has replied. In a related matter, Whitehead Media of Ohio, Inc. (Whitehead) has filed a must carry complaint requesting that the Commission order Cox to commence carriage of WOAC-TV on the same Cox cable television system serving the same communities within the Cleveland, Ohio ADI. Cox has opposed Whitehead's petition and Whitehead 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 Paxson's Complaint 3. In support of its request, Paxson states that television station WAKC-TV is located within the Cleveland, Ohio ADI, as are the communties served by Cox's Parma, Ohio cable television system. Paxson elected mandatory carriage on the Cox system for the election period ending December 31, l999. Paxson states that subsequent to its election of must carry status, signal strength tests at the Parma headend demonstrated that WAKC-TV's signal satisfies the Commissions -45dBm minimum threshold for mandatory carriage, but that the tests suggested the possibility of picture quality problems due to adjacent channel interference. Paxson then proposed the use of a channel-specific quad antenna and the use of a notch filter to resolve any picture quality concerns. In addition, Paxson states that it requested cooperation from Cox to install the equipment necessary to test its proposal, and that Paxson informed Cox that Paxson would consider a fiber-optic link if the picture quality problem was not alleviated. Paxson states that having declared its intent to deliver a signal of sufficient picture quality, it then sent a formal written request for carriage to Cox on March l2, l997, and that Cox refused carriage until such time as Cox would be convinced that the picture quality of WAKC-TV is acceptable. Paxson states that Cox also expressed concern that antennas necessary to correct the station's signal quality problems would violate local zoning ordinances. Paxson states that it has agreed to pay for improvements necessary to ensure a good quality signal by purchasing a specially designed antenna and notch filter for the purpose of eliminating possible adjacent channel interference and has agreed to pay for installation of the equipment, and to obtain any necessary zoning permits. Paxson argues that the Commission has repeatedly granted a station's must carry complaint where future action was needed to assure a good quality signal, provided that the station has agreed to be responsible for the attendant costs of signal delivery. Paxson concludes that the Commission should issue an order requiring Cox to commence carriage of WAKC-TV and to cooperate fully in the installation of equipment provided by Paxson to ensure reception of a good quality signal. 4. Cox argues in its opposition that WAKC-TV does not provide the necessary signal quality as required by the Commission's rules, based on engineering tests conducted by Cox on October 7, l996 and by Paxson and Cox jointly on December l8, l996. Cox further argues that Paxson will be unable to provide an adequate signal until local zoning approval to modify the Cox Parma, Ohio headend tower has been secured. Cox emphasizes that a zoning variance is needed in order to mount any additional equipment, as proposed by Paxson, to its Parma headend tower. Cox states that its local counsel has reported that the chances of success in obtaining the requisite variance are "almost nil." Cox states that Paxson has the burden of obtaining local zoning approval from the City of Parma so that additional equipment may be mounted on the headend tower. 5. In its reply, Paxson argues that after the signal tests conducted on December l8, l996 demonstrated the possibility of picture quality problems, WAKC-TV proposed mounting a channel specific quad antenna and notch filter to eliminate co-channel interference from nearby WVIZ-TV and resolve any picture quality concerns. Paxson repeats its argument that since WAKC-TV has agreed to be responsible for the costs of delivering a good quality signal, it is entitled to carriage on that basis. Paxson also states that despite Cox's protestations, the antenna placement proposed by WAKC-TV does not require a zoning variance from the City of Parma, and that, in fact, WAKC-TV has obtained a permit to add antennas to Cox's tower. Paxson provides the Commission with a copy of the relevant permit. Paxson concludes that the Commission should order Cox to permit installation of the equipment necessary to ensure a good quality signal is received from WAKC-TV and to commence carriage when such a signal is delivered. Whitehead's Complaint 6. In support of its request for carriage, WOAC-TV states that it is licensed to Canton, Ohio, which is in the Cleveland, Ohio ADI, as is Cox's Parma, Ohio cable television system. On September 27, l996, Whitehead elected mandatory carriage on the Cox system for the election period beginning on January 1, l997. Paxson Communications of Cleveland-67, Inc. (Paxson-Cleveland), which provides programming to WOAC-TV, conducted signal strength tests at Cox's Parma headend on December, l8, l996, which indicated a signal strength of -15 dBm at the system's headend. Recognizing that the station's signal did not meet the Commission's minimum carriage threshold of -45 dBm for UHF stations, WOAC-TV proposed use of a high gain antenna and preamplifier for a combined increase of 35 dB of gain. WOAC-TV committed to incur all costs related to the provision and installation of any necessary equipment. Whitehead contends that Cox has responded to its proposal by stating that WOAC- TV's signal and picture quality are unacceptable, and that WOAC-TV was required to submit an antenna installation plan approved by the local zoning authorities as a prerequisite to carriage. Whitehead argues that since it has agreed to pay for improvements necessary to deliver a good quality signal to Cox's Parma headend, the Commission should order Cox to commence carriage of WOAC-TV on channel 67 of the Parma, Ohio cable system, and to cooperate fully with Whitehead in the installation of equipment necessary to ensure reception of a good quality signal. 7. In its opposition, Cox states that it conducted signal strength tests of WOAC-TV at its Parma, Ohio headend on October 7, l996 and that Cox and Paxson-Cleveland conducted a joint test on December l8, l996. Both tests confirmed that the station's signal did not satisfy the minimum threshold for mandatory carriage. Cox has supplied the Commission with its October 7, l996 test. Cox contends that although the parties agree on the need to increase the station's signal level, Cox is not convinced that Whitehead's proposal will alleviate the signal quality, as distinct from signal level, problem. In addition, Cox contends that in order to install additional equipment on Cox's Parma headend tower, a local zoning variance is required, and as above, Cox believes that such a variance will not be granted by the local government. 8. Whitehead contends in its reply that although, at present, WOAC-TV does not deliver a signal of adequate strength to the Cox headend, any picture quality problems alleged by Cox are not independent of signal strength problems, and will be remedied through the use of a high gain antenna and preamplifier. Whitehead contends that a zoning variance is not necessary for the installation of additional equipment to Cox's Parma headend tower, and that the requisite permit from the City of Parma has been secured. Whitehead supplies the Commission with a copy of the permit. Whitehead requests that the Commission order Cox to permit installation of the equipment necessary to ensure a good quality signal and to commence carriage of WOAC-TV when such signal is delivered. DISCUSSION 9. We will grant the petitions filed by Paxson and Whitehead. Both WAKC-TV and WOAC-TV have offered to provide specialized equipment to Cox to improve the stations' signal strength. Both stations maintain that with the use of specialized equipment, they can provide signals to Cox's headend consistent with Commission criteria. Moreover, both stations have stated that they 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. . . Paxson and Whitehead, by committing to provide specialized equipment, satisfy their obligation to bear the costs associated with delivering a good signal to Cox's headend. If necessary, we encourage Cox and Paxson and Whitehead to work together in this regard. 10. In regard to Cox's argument regarding zoning variances necessary to install additional equipment on the Parma, Ohio headend tower, it appears from information supplied by Paxson and Whitehead that such approval is not necessary. Both petitioners have supplied tower permits from the City of Parma which would appear to resolve the question of whether the installation of equipment necessary for both stations to provide a good quality signal can be accomplished. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that the petitions filed June 5, 1997, by Paxson Communications of Akron-23, Inc. and on June 6, l997 by Whitehead Media of Ohio, Inc. ARE GRANTED pursuant to 614 of the Communications Act of 1934, as amended (4 U.S.C. 534). Cox IS ORDERED to commence carriage of Stations WAKC-TV and WOAC-TV on its Parma, Ohio cable television system sixty (60) days from the date that the stations provide good quality signals at Cox's Parma, Ohio headend. WOAC-TV and WAKC-TV shall notify Cox in writing of their channel position elections within thirty (30) days of providing a good quality signal. 12. 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