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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 Complaint of ) ) Sonshine Family Television, Inc. ) ) v. ) CSR 5203-M ) RCN Telecom Services of Pennsylvania, Inc.) ) For Channel Positioning ) MEMORANDUM OPINION AND ORDER Adopted: May 21, 1998 Released: May 26, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: 1. Sonshine Family Television, Inc. ("Sonshine"), licensee of television station WBPH, (Channel 60) Bethlehem, Pennsylvania, filed a complaint pursuant to 47 C.F.R.  76.61(a)(2) asking that the Commission require RCN Telecom Services of Pennsylvania, Inc. ("RCN") to carry WBPH on Channel 51, and to cease and desist from carrying the station on Channel 60, on RCN's cable system serving the Communities listed on Attachment A. RCN filed an opposition to the complaint, and Sonshine filed a reply. 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. 3. Under the Commission's must-carry rules, cable operators have the burden of showing that a commercial station that is located in the same television market 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. A commercial station is allowed to choose its cable channel position based on the cable channel on which it is broadcast on the air, or on the channel it was carried on July 19, 1985, or on the channel it was carried on January 1, 1992, at the election of the station, or on such other channel as mutually agreed upon by the station and the cable operator. MARKET FACTS AND ARGUMENT 4. Sonshine states that WBPH, which commenced operating in 1991 on channel 51 assigned to Bethlehem, Pennsylvania, is located in the same television market, the Philadelphia ADI, as the cable systems operated by RCN. Sonshine contends that WBPH is a local commercial television station as defined in 47 C.F.R.  76.55(c). Sonshine claims that by letters sent to the cable operator in September 1993 and September 1996, it elected carriage of WBPH on Channel 51. Sonshine argues therefore that WBPH is entitled under the provisions of 47 C.F.R.  76.57 to be carried on Channel 51 where the station was carried on January 1, 1992. Sonshine states further that WBPH is carried on Channel 51 on another cable system operating in portions of many of the communities at issue here, and that carriage of the station on Channel 51 on both systems greatly facilitates identification of the station in program guides throughout all of the Communities and promotion of the station generally. 5. Sonshine contends that about January of 1996, RCN moved WBPH from Channel 51 to Channel 53 without any notice to the station. Sonshine claims it objected to this channel change by telephone with the cable operator's management, who did not fulfill a promise to get back to them on the matter. Sonshine asserts further that, in mid-January 1998, RCN notified its subscribers, but not WBPH, that the station would be carried on Channel 60 commencing February 1, 1998. Sonshine states that objections to this further channel change were made to RCN management by telephone and by letter dated January 16, 1998, which demanded carriage of WBPH on Channel 51. Sonshine objects to carriage of WBPH on Channel 60 because of significant technical signal degradation that occurs on that channel, that Channel 60 is not available to all of RCN's basic tier subscribers, and that the promotional advantages of carriage on Channel 51 on both cable systems is lost with carriage on a different channel on one of the systems. Sonshine also contends that viewer confusion stemming from the channel change impacts adversely on the station's ratings compiled during the television rating period that began on February 5, 1998, shortly after the latest channel change. 6. RCN states in opposition that it moved WBPH to Channel 60, the station's over-the-air channel, when cable system programming was rearranged on February 1, 1998 to create blocks of like programming for customer convenience. RCN states that premium channels now occupy Channel 45 through Channel 52. RCN contends that when it made commitments to rearrange its programming lineup it did not anticipate that Sonshine would object to carriage of WBPH on its over-the-air channel, Channel 60. RCN contends that the premium channels were rearranged in a block of channels, because that permits it to respond better to subscriber requests. 7. According to RCN, additional trapping arrangements would be necessary to allow carriage of WBPH on Channel 51 now located within the block of premium channels. RCN states that it cost $215,000 to implement the new channel lineup, and that to place WBPH on Channel 51 would involve additional costs, including purchase and installation of additional traps. RCN claims also that compelling technical reasons exists for not placing WBPH on Channel 51. In particular, RCN asserts that if WBPH were placed on Channel 51 between premium Channels 50 and 52 carrying Playboy and Movie Channel, subscribers would experience significant signal degradation with respect to Channel 51, including loss of color and loss of a comprehensible audio signal, among other things. 8. RCN also points out the WBPH has not been carried on Channel 51 since it moved the station to Channel 53 in November of 1995. RCN concedes that Sonshine objected to carriage of WBPH on Channel 53, through telephone conversations between their respective general managers. RCN also states that Sonshine submitted a letter dated September 25, 1996 electing must carry status and requesting carriage of WBPH on Channel 51. RCN notes however that no must carry complaint was ever filed with the Commission regarding the change of the station from Channel 51 to Channel 53. RCN states further that it carried WBPH on Channel 53 until the February 1, 1998 lineup changes were implemented placing WBPH on Channel 60. RCN claims WBPH is receivable as a quality signal on Channel 60 by all subscribers. RCN claims that Sonshine's January 16, 1998 letter requesting WBPH carriage on Channel 51 was received after plans for the cable system's channel rearrangements were made and being implemented. RCN states that had it known that Sonshine wanted WBPH placed on Channel 51 it would have restructured the new channel lineup differently. RCN claims that it promotes the new channel line up, including WBPH's relocation to its over-the-air Channel 60, by means of on-screen crawls. RCN contends that, considering Sonshine's failure to complain about the earlier move of WBPH to Channel 53, and the costs and technical problems associated with relocating the station to Channel 51, the parties' rights should be balanced in a manner that does not subject its subscribers to another channel line up change. RCN argues in essence that the Commission should reject Sonshine's channel positioning complaint as untimely filed. 9. Sonshine argues in reply that RCN failed to follow the notice procedures prescribed by the must carry statute and rules before making either of the unilateral channel changes affecting WBPH. It contends that RCN's claims of potential technical problems associated with relocating WBPH to Channel 51 are equivocal, conditional and not supported by objectively verifiable data or testimony of any technically qualified person. Sonshine asserts that if RCN's cable system permits subscribers to purchase the premium services appearing on Channels 45 through 52 individually without signal degradation, then the system necessarily has the capacity to provide WBPH as a single channel within that portion of the spectrum and to trap out adjacent channel signals. Sonshine argues that the Commission in other proceedings has required cable operators to reconfigure their cable systems to accomodate carriage of stations on the channel to which they are entitled under the must carry provisions. Sonshine also reasserts the contention that Channel 60 is not capable of delivering WBPH to all subscribers, arguing that information provided for the record by RCN shows that prior to February 1, 1998, the system carried broadcast signals only on cable Channels 2-13 and 53-59. DISCUSSION 10. We will require RCN to carry WBPH on Channel 51. Section 614(b)(6) of the Communications Act permits a commercial television station to elect the same channel number on which it was carried on January 1, 1992 as its channel position on a cable system. Sonshine made a valid request for carriage of WBPH on RCN's cable system on Channel 51, the channel number on which it was carried on January 1, 1992. This request was made by letter dated January 16, 1998. Under our rules, cable operators must comply with the channel positioning requirements absent a compelling technical reason for not doing so. We find that RCN failed to provide any credible information that establishes a compelling technical reason for not carrying WBPH on Channel 51. The Commission has stated, "[we] do not believe that inconvenience, marketing problems, the need to reconfigure the basic tier or the need to employ additional traps or make technical changes are sufficient reasons for denying the channel positioning request of a must-carry signal. Only where placement of a signal on a chosen channel results in interference or degraded signal quality to the must-carry station or an adjacent channel, or causes a substantial technical or signal security problem, will we permit cable operators to carry a broadcast signal on a channel not chosen by the station." RCN has introduced no evidence which would indicate that installation of the necessary technical equipment, or traps, represents a substantial technical problem. 11. The Commission has indicated that there are certain circumstances where the costs could be so compelling as to warrant a waiver of the rules. In this instance, RCN failed to show a compelling reason based on costs warranting waiver of the carriage requirement stemming from Sonshine's election for carriage on the channel WBPH occupied on January 1, 1992. RCN claims that installing traps or other devices allowing carriage of WBPH on Channel 51 would add costs in addition to $215,000 already expended in connection with the February 1, 1998 channel rearrangements. However, such additional costs were not quantified or related specifically to any required further work beyond noting that "A single subscriber trap costs $8," and that RCN would need to purchase additional traps. In view of the system's size, we do not believe that a need to purchase an unspecified number of additional traps at $8 each rises to the threshold of compelling circumstances. 12. We reject also RCN's argument suggesting that carriage of WBPH on Channel 53 from late 1995 or early 1996 until the more recent further shift to Channel 60 extinguished Sonshine's statutory rights under Section 614(b)(6) to elect carriage on the channel occupied by WBPH on January 1, 1992. The record shows that at each election period provided under the Commission's rules, Sonshine made an election for carriage of WBPH on Channel 51. RCN points to nothing in the must carry statutory or regulatory provisions indicating that RCN's unilateral shift of WBPH from Channel 51 to other channels obviates those elections, particularly where as here both channel changes were made without notice to the station. As noted earlier, a cable operator must give written notice at least 30 days prior to repositioning a television station. Sonshine, upon learning of each channel change, promptly made its objections known to RCN. We hold that such objections, of which RCN concedes knowledge, did not impose any must carry complaint deadline on Sonshine. Instead, they preclude giving any weight to RCN's argument that the recent channel rearrangements would have taken a different shape had it known of any objection to WBPH being carried on its over-the-air channel. 13. In this connection, the Commission, in the Must Carry Order, pointed out that the statutory requirement that a station notify a cable operator of its failure to comply with its must carry obligations before a must carry complaint may be filed by a station "applies even if the cable operator first notifies the station of its intent to reposition the channel or discontinue carriage." The prerequisite for the filing of a must carry complaint in this case was the submission by Sonshine to RCN of a Section 76.61 demand for must carry. In this case, as of January 15, 1998, no demand for carriage of WBPH on Channel 51 was outstanding, although RCN had carried WBPH on Channel 53 for about two years. Sonshine, of course, had made two Section 76.64(f) must carry elections, in September 1993 and September, 1996. However, as we have indicated in other instances, such must carry elections of themselves did not establish any must carry complaint filing deadline. 14. The record shows in any event that Sonshine submitted to RCN a Section 76.61 demand for carriage of WBPH on Channel 51 on January 16, 1998. Despite this demand for carriage on Channel 51, On February 1, 1998, RCN never-the-less unilaterally moved WBPH to Channel 60, a channel which the record shows not all subscriber were able to receive. Sonshine filed the instant must carry complaint on January 30, 1998 well within ninety days thereafter. The balance that RCN seeks among the parties was established by the must carry statutory and regulatory provisions, including the provisions according WBPH the right to select carriage on the cable channel occupied on January 1, 1992. RCN has failed to presented information which persuades us that RCN's unilateral decision to carry WBPH on Channel 60 is consistent with that election provision, or that the complaint should be deemed untimely timely filed. ORDERING CLAUSES 15. Accordingly, the complaint filed on January 30, 1998 by Sonshine Family Television, Inc. in File No. CSR 5203-M IS GRANTED, in accordance with 47 U.S.C.  534, and RCN Telecom Services of Pennsylvania, Inc. IS ORDERED to commence carriage of WBPH on cable Channel 51 sixty days (60) from the release date of this Order. 16. 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 ATTACHMENT A RCN Telecom Services of Pennsylvania, Inc. Allentown, Allentown Township, Bangor, Bath, Bethlehem, Bethlehem Township, Bushkill Township, Catasaqua, Chapman, Coplay, East Allen Township, Easton, Forks Township, Freemansburg, Hanover Township, Heidelburg Township, Hellertown, Lehigh Township, Lower Macungie Township, Lower Nazareth Township, Lower Saucon Township, Lohill Township, Moore Township, Nazareth, North Catasaqua, North Whitehall Township, Palmer Township, Plainfield Township, Roseto, Salisbury Township, South Whithall Township, Stockertown, Wilson, Tatamy, Upper Macungie Township, Upper Nazareth Township, Upper Saucon Township, West Easton, Washington Township, Weisenburg Township, Whitehall Township, Williams Township, and Wind Gap, Pennsylvania, and Lehigh and Northhampton Counties, Pennsylvania.