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MenuOptionsWordPerfect - %s*.wcm(All)Compiling m2\s'^*.%-/8y.X80,X\  P6G;P 92a=5,&a\  P6G;&P:2e=5,&e4  pG;&;7jC:,9Xj\  P6G;XP<7nC:,|Xn4  pG;X=W!@(#,h@\  P6G;hP>H5!,i,5\  P6G;,P\?5hC:,%2Xh*f9 xr G;XX\@{,W80,%0W*f9 xr G;Xy.\80,T\4  pG;8y.X80,X\  P6G;P 92a=5,&a\  P6G;&P :2e=5,&e4  pG;&;7jC:,9Xj\  P6G;XP<7nC:,|Xn4  pG;X=W!@(#,h@\  P6G;hP>H5!,i,5\  P6G;,P\?5hC:,%2Xh*f9 xr G;XX\@{,W80,%0W*f9 xr G;XAy.\80,T\4  pG;BP:% ,J:\  P6G;JP\0_=5,%&_*f9 xr G;&X           X- X    S-  Federal Communications Commission`}(#DA 97 2468 ă  yxdddy #Xj\  P6G;9XP#v3 #X\  P6G;P#Before the Federal Communications Commission  yO} Washington, D.C. 20554 #&a\  P6G;&P#у In re:R) R)  S-Complaint of Family Stations, Inc.R)hppCSR4224M against Viacom CableR) R) Request for CarriageR)  S -  MEMORANDUM OPINION AND ORDER TP  S -X` hp x (#%'0*,.8135@8:would be eliminated from any increased copyright liability for the carriage of KFTL's signal.D= yOl - xZԍAt the time of its initial filing, copyright indemnification was a factor for stations and cable systems located  {O4 - xwithin the same market. Since the passage of the Satellite Home Viewer Act of 1994, P.L., 103369, 108 Stat. 3477,  xcopyright indemnification is no longer relevant for that type of situation. However, in the instant case, some of the  xcommunities served by Viacom's technicallyintegrated system fall outside the Sacramento ADI and therefore the  x.question of copyright indemnification is still a factor. Therefore, the arguments relating to this issue will be discussed. At the  xsame time KFTL maintains that it pledged that, should it be necessary, it would indemnify Viacom for  xany increased liability that might apply. On December 22, 1993, KFTL indicates that Viacom stated in  xreply that KFTL's indemnification proposal did not meet Commission requirements and that instead it  xwould require a standard indemnification agreement from KFTL indemnifying Viacom from any copyright  x=liability resulting from carriage of the station. KFTL states that it questioned Viacom's interpretation of  x.the copyright law and informed the system that its continued refusal to negotiate an agreement based on  xlicensing programming at the source was a violation of the must carry rules and it would treat the system's  x>December 22nd letter as a refusal of carriage. KFTL indicates that no further response was received.  xKFTL requests, therefore, that the Commission order Viacom a) to negotiate in good faith an agreement  xindemnifying Viacom from increased copyright liability premised upon licensing KFTL's programming  xat the source and b) commence carriage of KFTL within thirty days of the station providing a good quality signal to the system's principal headend.  SX- ` x4.` ` In its opposition, Viacom argues that KFTL does not ask the Commission to order it to  S0- xcarry the station in Colusa, California, the portion of its cable system located within the Sacramento ADI,0 = yO- xԍViacom states that its technicallyintegrated system also serves the communities of Oroville, Paradise, Gridley and Biggs, California, which are all located in the ChicoRedding, California ADI.  xbecause it has improperly refused carriage, but rather to assist it in negotiating a copyright indemnification  xagreement premised on the licensing of KFTL's programming at the source. Viacom states initially that,  xregardless of the copyright issues, KFTL's complaint is premature and should be dismissed since: a) no  xdenial of carriage rights has actually taken place; b) KFTL acknowledges it does not deliver a good quality  Sh- xsignal to Viacom's principal headend and therefore has no formal must carry rights to complain of;uh= yO#-ԍAs confirmed by signal strength tests performed by Viacom and submitted here.u and  xc) there is no assurance that KFTL's signal quality problems will ever be resolved. Viacom argues further  x=that there is serious doubt as to whether the Commission can order it to negotiate a copyright agreement  xkof the kind proposed by the station. It maintains that KFTL fails to recognize that a cable operator's  xpotential liability where broadcast programming is licensed at the source is far greater than in situations  xwhere operators retransmit programming under the cable compulsory license; a method which sufficiently",`(`(88"  x?protects both the cable operator and the broadcaster. Viacom argues that KFTL's direct licensing  xagreement does not do so and may render the cable system liable for other costs such as copyright  xinfringement and transaction costs. Moreover, Viacom states that KFTL's reliance on an unpublished  S- x/written advisory from the Copyright Office is misplaced and has no force of law.T X= yO- xZԍViacom points out that this letter did not involve any of the parties herein and the language relied on by the  xCopyright Registrar addresses the effect of retransmission consents between copyright owners and cable systems, not between copyright owners and TV stations.T Viacom therefore  x[requests that KFTL's requests either be dismissed or held in abeyance until the Commission can conduct an inquiry into the copyright question contained herein.  S- ` x5.` ` In reply, KFTL states that Viacom's arguments are without merit and should be rejected.  xIt maintains that its complaint is not premature and should be considered. It argues that if its signal  xquality problems have not been resolved it is due to Viacom's failure to work with the station, despite  xrepeated attempts by KFTL to do so. Moreover, Viacom's December 22nd letter is clearly, despite the  xsystem's assertions, a denial of KFTL's carriage rights under the Act. Finally, it argues that a dismissal of its complaint would improperly deny KFTL's statutory rights to seek redress.  S - ` x6.` ` In subsequent correspondence between Viacom and KFTL, which was submitted to the  S - xCommission in 1994, KFTL references the changes in the Copyright Law= = yO0-ԍSee footnote 4 above.= and requests immediate  xcarriage on Viacom's system. Viacom in reply pointed out that a portion of its system lay outside the  x=Sacramento ADI market and thus it would continue to need copyright indemnification for the carriage of  xKFTL's signal. Further technical information was submitted by Viacom in January 1995 at the request  x/of the Bureau, detailing the viability of carrying KFTL on the Colusa, California portion of Viacom's  xsystem only (the only community of Viacom's technicallyintegrated system within KFTL's ADI). While  xViacom provided several options for such restricted carriage, it concluded that all available avenues would  xbe excessively burdensome for the system to accomplish. KFTL reiterated in a February 1995 letter that  x[its signal has adequate signal strength at the system's principal headend and submitted tests it performed  xjat that time. Between February 1995 and March 1996 nothing further was received by either party until  xViacom submitted a March 8, 1996, letter requesting that, due to the apparent abandonment of the  xcomplaint by KFTL for over eleven months, the complaint should be dismissed. If not dismissed,  xkhowever, Viacom argues that the signal strength tests provided in February 1995 by KFTL should be  xygiven no probative value as they do not appear to comply with the Commission's engineering criteria and  xwere done without the knowledge of or cooperation with Viacom personnel. Viacom suggests that furthers tests should be made with the cooperation of both parties.  S-( DISCUSSION ă  S- ` x7.` ` There are two issues under dispute in this case. The first issue relates to the technically xintegrated nature of Viacom's cable system which is located in two ADI markets, SacramentoStockton  xand ChicoRedding. Only one community served by Viacom's system, Colusa, is within the same market  x=as KFTL and is, therefore, the only community in which KFTL has must carry rights. However, due to  xthe technical configuration of Viacom's system, carriage of KFTL in Colusa would also result in the  xkstation's carriage in the other communities served by Viacom's system, where the station has no must  xMcarry rights. Viacom has stated its system cannot limit carriage of KFTL on its cable system to only"!x ,`(`(88F#"  S- xColusa due to the architecture of its system. The Commission, in its Must Carry Order held, as is the case  xhere, that in the event a television station is a must carry station ". . . in situations where a cable system  xjserves a community or communities in more than one county and those counties are assigned to different  xADIs, the cable operator must carry all of the local commercial television signals in both ADIs" unless  xj"where it is technically able to do so, the cable operator may offer different mustcarry channel lineups"  xyfor communities in respective ADIs. Moreover, it states, that ". . . if the cable system is not able to alter  xKits channel lineup on a communitybycommunity basis and the systems straddles two ADIs, all broadcast  xkstations in both ADIs will be considered "local" for mustcarry purposes." It should be noted that in  xyinstances where the carriage of a station from another ADI creates copyright costs for the cable operator,  xthe television station will be required to negotiate a copyright indemnification agreement with the cable  xsystem. Consequently, Viacom's carriage of KFTL will result in copyright liability for which KFTL must indemnify Viacom.  S - ` Qx8.` ` Viacom objects to the fact that KFTL has asked the Commission to order it to agree to  xkan indemnification agreement premised upon the licensing of KFTL's programming at the source. We  xagree with Viacom's objection and will decline to do so. The Communications Act requires that television  xstations reimburse cable operators for any copyright liability incurred for their carriage. Therefore, the  xcable operator is entitled to an unqualified copyright indemnification agreement. If KFTL believes that  xno copyright liability will be incurred by Viacom due to the manner of its program licensing, we see no reason why KFTL should not negotiate a general copyright indemnification agreement.  S- ` _x9.` ` The second issue in dispute involves KFTL's signal quality at Viacom's principal headend.  x!In a signal strength test performed by KFTL in February 1995, the station appears to fall within  xLCommission criteria with regard to signal quality. However, the method used in conducting the test fails  SB- xto comport with criteria the Commission has established for signal strength testsV B= yO- xԍThe Commission has stated that signal strength surveys should be conducted using good engineering practices.  xThese tests should at a minimum include: 1) specific make and model numbers of the equipment used, as well as  xits age and most recent date(s) of calibration; 2) description(s) of the characteristics of the equipment used, such as  xKantenna ranges and radiation patterns; 3) height of the antenna above ground level and whether the antenna was  xproperly oriented; and 4) weather conditions and time of day when tests were done. In addition, multiple signal  xquality tests should be conducted to ensure accurate results. Generally, if the tests results are less than 51 dBm for  xxa UHF station, at least four readings should be taken over a twohour period. Where initial readings are between  x,51 dBm and 45 dBm the readings should be taken over a 24hour period with measurements not more than 4 hours apart. V and therefore its results  S- xare unacceptable. = yOR- xԍA review of the information provided regarding the signal strength test conducted by KFTL at both the Oroville  xheadend and the Colusa receive site indicates that KFTL used a DXTV Receive Antenna Model UBA114PC mounted  x8 feet above ground on a nonconductive PVC pipe, and a Leader TV Signal Level Meter Model #951. There was only one test at each test site, no calibration date, no foliage amount and no temperature recorded. An earlier test, however, submitted by Viacom does comply with our engineering  xcriteria and demonstrates that KFTL's signal does not meet the signal quality standards. Therefore, we  xconclude that KFTL has not established that it meets the Commission's signal quality criteria and its must  S-carry complaint will be denied. X = yO%- xhԍWe note that the Communications Act and the Commission's Rules allow television stations which do not meet  xthe signal quality criteria to improve their signal with the use of specialized equipment as long as they agree to bear any associated costs. We encourage Viacom and KFTL to work together in this regard. " ,`(`(88"Ԍ S-ԙ1 ORDERING CLAUSES ă  S- ` x10.` ` In light of the above, the complaint filed February 22, 1994 by Family Stations, Inc. IS  S-DENIED pursuant to 614 of the Communications Act of 1934, as amended.  S8-x11.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhGary M. Laden x` `  hhChief, Consumer Protection and Competition Division  S -x` `  hhCable Services Bureau