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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 SKNJ Broadcasting Partnership) CSR-5056-M against TKR Cable Company ) ) Request for Carriage of WHSE-TV ) MEMORANDUM OPINION AND ORDER Adopted: November 24, 1997 Released: November 26, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. SKNJ Broadcasting Partnership ("SKNJ"), licensee of television broadcast station WHSE- TV, Newark, New Jersey, has filed a must-carry complaint requesting that the Commission order TKR Cable Company ("TKR"), operator of a cable television system serving the communities listed below, to commence carriage of WHSE-TV. TKR has opposed SKNJ's complaint, and SKNJ 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. ARGUMENT OF THE PARTIES 3. SKNJ states that on August 23, 1996 it formally elected must carry on TKR's cable system and on May 1, 1997, requested that TKR carry WHSE-TV's signal. SKNJ asserts that it informed TKR that WHSE-TV and TKR's cable system were both within the New York ADI and that TKR had provided no valid reason for not adding WHSE-TV to TKR's cable system. SKNJ also asserts that it has made a commitment to TKR to provide equipment necessary for TKR's cable system to receive a good quality signal, but that none-the-less TKR refuses to carry WHSE-TV. SKNJ filed its must-carry complaint with the Commission on July 30, 1997. 4. In opposition, TKR submitted the results of signal strength studies for the purpose of showing that WHSE-TV fails to deliver a good quality signal to the headend of its cable system. TKR also provided information about the test equipment used to measure the signal strength of WHSE-TV at the system headends and the procedures followed in conducting the test. TKR states further that it intends to file a petition for special relief seeking to exclude the communities served by its system from WHSE-TV's market. 5. In reply, SKNJ argues that because it offers to provide, at its own expense, any equipment necessary to deliver a good quality signal to TKR's cable system headend, the results of the signal strength measurements lack legal significance, and that its commitment warrants grant of the complaint. SKNJ asserts that TKR should not be excused from carriage of WHSE-TV simply because of a stated intention to file a market modification petition some time in the future. DISCUSSION 6. Under the Commission's must-carry rules, cable operators have the burden of showing that a commercial station located in the same television market as its cable system is not entitled to carriage. One method of doing so 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, it still may obtain carriage rights, 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. The signal strength test reports provided by TKR show that SKNJ does not provide an off-air signal of -45 dBm or better to TKR's principal headend. However, we will grant SKNJ's complaint. SKNJ has made a commitment on this record to deliver an adequate signal to TKR's cable system serving the communities at issue here and to pay any associated costs, in accordance with 614(h)(1)(B)(iii) of the Communications Act of 1934. We will direct TKR to carry WHSE-TV within sixty (60) days after SKNJ provides a good quality signal to TKR's principal headend. We expect TKR to cooperate fully in making any such installations that SKNJ may undertake at it's own expense. 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 complaint of SKNJ Broadcasting Partnership ("SKNJ") IS GRANTED. TKR Cable Company ("TKR") IS ORDERED to commence carriage of television station WHSE-TV on the cable system serving Barnegat Light, North Beach, Surf City, Beach Haven, Ship Bottom, Harvey Cedars, and Spray Beach, in Ocean County, New Jersey within sixty (60) days after SKNJ installs the equipment necessary to provide a good quality signal to TKR's headend of that cable system. 9. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau