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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: ) ) Paxson Salt Lake City License, Inc. ) ) vs. CSR-5192-M ) ) Sonic Cable Television of Utah ) ) Request for Mandatory Carriage ) of Television Station KOOG-TV, ) Ogden, UT ) MEMORANDUM OPINION AND ORDER Adopted: May 6, 1998 Released: May 11, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Paxson Salt Lake City License, Inc. ("Paxson"), licensee of commercial television station KOOG- TV, located in Ogden, Utah, filed a complaint pursuant to Section 614 of the Cable Television Consumer Protection and Competition Act of 1992 and Sections 76.7 and 76.61 of the Commission's rules, claiming that Sonic Cable Television of Utah ("Sonic"), a cable operator serving Logan, Utah and surrounding communities has unlawfully refused to carry the signal of KOOG-TV on its cable television system. Paxson is a subsidiary of Paxson Communications Corporation (PCC). Sonic filed an Opposition to the Complaint and Paxson filed a Reply. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission it its Report and Order in MM Docket 92-259, commercial television broadcaststations 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 Arbitron audience research organization. SUMMARY OF ARGUMENTS 3. In support of its complaint, Paxson argues that KOOG-TV is entitled to mandatory carriage on Sonic's Logan system because it meets the statutory definition of a "qualified local commercial television station" under the Commission's must-carry rules. Paxson states that KOOG-TV and Sonic are both located within the Salt Lake City Area of Dominant Influence ("ADI") and, as such, the carriage of KOOG-TV's signal will not cause increased copyright liability for Sonic. Paxson further states that notwithstanding its commitment to providing a good quality signal to Sonic's Logan headend, Sonic refuses to carry the KOOG-TV signal on its system. Finally, Paxson contends that, despite the Commission's statements concerning a cable operator's responsibilities to cooperate with a station exercising its must-carry rights, Sonic has refused to cooperate with KOOG-TV's efforts to deliver a good quality signal. Paxson points out that Sonic has not responded to KOOG-TV's request for a joint signal strength test. 4. In opposition, Sonic argues that KOOG-TV cannot deliver a good quality signal to its principal headend as required by statute and Commission rules. In support of its argument, Sonic notes that, in addition to unsuccessfully inviting KOOG-TV's personnel to participate in joint signal strength testing, Sonic tested KOOG-TV's signal strength at the Logan headend on October 30, 1997, shortly after KOOG- TV requested mandatory carriage, and again on January 12, 1998, after Paxson filed the instant complaint. According to Sonic, on each occasion, KOOG-TV failed to deliver a good quality signal to the Logan headend. Sonic points out that during the latter test, it used a preamplifier and a high gain antenna. It asserts that even "with this equipment in place, the video-carrier-to-noise ratio of KOOG-TV's signal is 23 dbmv and it hum modulation is 5.1%." More importantly, Sonic argues, Paxson admits that it cannot deliver a good quality signal to Sonic's Logan headend. As a result, Sonic asserts, the Logan cable system is not required to carry the KOOG-TV signal as part of its channel line-up. Finally, by way of explanation, Sonic notes that because of the mountainous terrain of the area its serves, it uses a "receive site" at Clarkston Ridge, Utah, to receive the network affiliates' signal originating from Salt Lake City. Then, from the receive site, Sonic transmits those signals via fiber optic cable to its Logan headend. 5. Paxson, in its reply, concedes that KOOG-TV does not provide a good quality signal over-the-air to Sonic's headend, and reiterates its argument that Sonic has failed to cooperate with KOOG-TV in its efforts to obtain must-carry status. Paxson argues that cable operators are obligated to cooperate with local television stations seeking mandatory carriage, particularly when there are signal quality issues to be resolved. Paxson maintains that the Commission has concluded that a "station's signal can be delivered to the principal headend by a variety of means, including microwave and fiber optic." Specifically, Paxson asserts that Sonic is obligated to cooperate with KOOG-TV by allowing KOOG-TV the use of the Clarkston Ridge receive site, and thus, facilitate "the station's delivery of a good quality signal to Sonic's principal headend by the same method utilized by the other area stations being carried on its system." Paxson offers to acquire and install "any and all necessary improvements or equipment to deliver a good quality signal to Sonic Television of Utah's ... receive site at Clarkston Ridge, Utah," and to pay "the additional costs of delivering the KOOG-TV signal to this Logan headend via Sonic's Clarkston Ridge receive site." DISCUSSION 6. The record before us clearly indicates that the station cannot deliver a good quality signal to the cable operator's principal headend, as required by statute and Commission rules. In this regard, both Paxson and Sonic agree. Thus, we find that the station is not entitled to mandatory carriage on Sonic's Logan system, and will deny Paxson's complaint. Paxson unquestionably understands the statutory requirement in question. In its Reply, Paxson accepts that: "[t]he must-carry rules require that a station deliver a good quality signal to the 'principal headend of a cable system' in order to be eligible for carriage." Realizing its inability to deliver a good quality signal to Sonic's Logan headend, Paxson argues that KOOG-TV should be allowed to deliver a good quality signal to the Clarkston receive site, instead of Sonic's principal headend. To bolster its argument, Paxson cites certain language in the Commission's Clarification Order, which Paxson believes requires cable operators to give broadcast stations the kind of "cooperation" KOOG-TV seeks - the use of the Sonic's receive site. Paxson's understanding of the type of cooperation the Commission expects from cable operators to resolve must- carry problems is misplaced. Anteceding the language cited by Paxson, the Commission noted that it was referring to the cooperation cable television operators had to give broadcast stations trying to resolve signal delivery or copyright liability problems before June 2, 1993, in order to retain their must-carry rights. 7. The Statute as well as the Commission's rules clearly indicate that a commercial broadcast station is entitled to mandatory carriage if it, inter alia, can "deliver to the principal headend of a cable system either a signal level of -45 dBm for UHF signals or -49 dBm for VHF signals." Furthermore, in In re: Complaint of Family Stations, Inc., against Sonic Cable Television, the Commission determined that its rules do not require cable operators to transport a station's signal to a cable system's headend via microwave. Moreover, the Commission clarified this issue when it said: "[a]s the statute specifies that a broadcast station must deliver a good quality signal to the principal headend of the cable system to be entitled to must-carry rights, we clarify that the designated principal headend is the appropriate location for such [signal strength] measurements." In seeking permission to use the receive site as the appropriate location for the delivery of a good quality signal, Paxson, in essence, is attempting to have the Commission change this requirement. As a result, the use of the Clarkston Ridge facility as the test site for KOOG-TV's signal would not be in compliance with either the Cable Television Consumer Protection and Competition Act of 1992 or the Commission's rules. However, should Paxson be able to provide a good quality signal to Sonic's principal headend, then it would be entitled to carriage. ORDER 8. For the foregoing reasons, IT IS ORDERED, pursuant to  614 of the Communications Act, that the Complaint filed December 31, 1997 in File No. CSR-5192-M by Paxson Salt Lake City License, Inc. is DENIED. 9. 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 M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau