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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 Hispanic Keys ) CSR-5081-M Broadcasting Corp. against Tele-Media) Company of Southeast Florida, Inc. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: December 30, 1997 Released: January 5, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Hispanic Keys Broadcasting Corp., permittee of Station WWFD-TV (Channel 8), Key West, Florida, has filed a must carry complaint requesting that the Commission order Tele-Media Company of Southeast Florida, Inc. ("Tele-Media"), to carry WWFD-TV on its cable system serving various communities located in Broward County, Florida. Tele-Media has filed an opposition to this complaint to which WWFD-TV 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. SUMMARY OF ARGUMENTS 3. In the complaint filed by WWFD-TV, it requests the Commission to order Tele-Media's system to carry its signal for the following reasons: a) Its complaint is timely filed. WWFD-TV states that it requested carriage on Tele-Media's cable system by letter dated July 1, 1997. Tele-Media failed to respond to this letter and WWFD-TV states that it filed its complaint within 60 days of Tele-Media's failure to respond. b) As a commercial television station operating within the same ADI market as Tele- Media's system, WWFD-TV is entitled to carriage pursuant to Section 614 of the Communications Act and the Commission's Rules. c) WWFD-TV has fully complied with all of the requirements for mandatory carriage of its signal on the system -- Tele-Media's system is devoting less than one-third of its channel capacity to mandatory signal carriage, WWFD-TV delivers a good quality signal to the cable system's principal headend via fiber optic cable, and no other currently-carried television stations substantially duplicate its programming. 4. In opposition, Tele-Media states that WWFD-TV's petition should be denied not only because the station's signal is not received or receivable at the system's principal headend, but because WWFD-TV's complaint contains information which is patently untrue regarding the availability of its signal. While Tele-Media does not dispute the fact that WWFD-TV is within the same ADI as its system and no increase in copyright would accrue by WWFD-TV's carriage, it indicates that the signal strength tests it performed upon receiving WWFD-TV's complaint determined that WWFD-TV was not received at the systems's Pembroke Pines headend. Tele-Media states that although this fact was tacitly confirmed by WWFD-TV in its July 1st request for carriage when it stated that it ". . . will deliver a broadcast quality signal to your principal cable headend" no plan for delivery of the signal was mentioned. Moreover, Tele-Media states that in its subsequent complaint, WWFD-TV's statement that it ". . . delivers a good quality signal to Telemedia's (sic) principal headend via fiber optic cable. . ." is patently untrue as there is no fiber optic cable running from WWFD-TV to the cable system's headend, a fact that both the station and its counsel must be aware. Finally, Tele-Media points out that neither in its original request for carriage, nor its subsequent complaint, does WWFD-TV assert that it will bear the costs of providing a good quality signal. 5. In reply, WWFD-TV states that irrespective of whether Tele-Media conducted its signal strength tests according to established criteria, it has agreed to be responsible and bear the costs for providing and installing all necessary specialized equipment, including fiber optic cable, in order to ensure that it provides a good quality signal to Tele-Media's principal headend. Since it has done so, and since Tele-Media has not disputed that its signal is otherwise entitled to carriage, WWFD-TV argues that its must carry complaint should be granted. DISCUSSION 6. We will grant WWFD-TV's petition. According to 76.55(e) of the Commission's rules, commercial television broadcast stations, such as WWFD-TV, are entitled to carriage on cable systems located in the same Area of Dominant Influence (or "ADI"). WWFD-TV is located in the Miami, Florida ADI, which is also where the communities served by Tele-Media are located. WWFD-TV's complaint was timely filed pursuant to 76.7(c)(4)(iii) within 60 days of Tele-Media's failure to respond to WWFD-TV's initial request for carriage. While Tele-Media, in its opposition to the instant complaint, alleged that WWFD-TV did not provide a signal of good quality to its system's principal headend, we find that, the engineering data it used to support its showing is insufficient for this determination to be made. While we recognize in this instance that, due to the distances involved, WWFD-TV is unlikely to provide an over-the-air signal without the benefit of fiber optic cable, we cannot overlook the fact that Tele-Media failed to conduct its signal strength test according to proper Commission-established criteria. 7. The 1992 Cable Act provides that a cable operator is not required to carry a local commercial television station that does not deliver a good quality signal to the principal headend of a cable system. Because the cable operator is in the best position to know whether 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, as defined below, to measure the signal delivered to the headend. 8. With respect to the standard to be used to determine what constitutes a good quality signal, the 1992 Cable Act adopted a standard for determining the availability of VHF and UHF commercial stations at a cable system's headend: for VHF commercial television stations the standard is -49 dBm; for UHF commercial television stations the standard is -45 dBm. 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, inclusive, 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. 9. To measure a station's signal to see if it meets the Commission 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. 10. In our review, we note that the engineering showing provided by Tele-Media failed to include the number of readings done and over what period of time, the description, age and most recent date of calibration of the equipment used, height of antenna and its orientation, and weather conditions and time of tests. When measured against our criteria, we conclude that the determination reached by Tele-Media is insufficient to demonstrate that WWFD-TV's signal is not of "good quality" at its system headend. We note that WWFD-TV has offered to provide specialized equipment to Tele-Media to ensure the receipt of a good quality signal at the system's headend. WWFD-TV maintains that with the use of specialized equipment, including fiber optic cable, it can provide a signal to Tele-Media's headend that is consistent with Commission criteria. Moreover, WWFD-TV has stated that it will bear the costs of installing such equipment. The Commission has stated that amplifiers and other 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 . . . . WWFD-TV, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Tele-Media's headend. Consequently, we shall order Tele- Media to carry WWFD-TV's signal in the event that WWFD-TV provides a good quality signal employing the specialized equipment it has offered to install at Tele-Media's principal headend. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that the petition filed August 20, 1997, by Hispanic Keys Broadcasting Corp. IS GRANTED pursuant to 614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C. 534). Tele-Media IS ORDERED to commence carriage of Station WWFD-TV on its Pembroke Pines cable system sixty (60) days from the date that WWFD-TV provides a good quality signal at Tele-Media's principal headend. WWFD-TV shall notify Tele-Media in writing of its carriage and channel position elections 76.56, 76.57, and 76.64(f) of the Commission's Rules) 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