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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: ) ) CTV of Derry, Inc. ) ) vs. ) CSR-5231-M ) Paragon Cable ) ) Request for Mandatory Carriage of ) television station WNDS, Channel 50, ) Derry, NH ) MEMORANDUM OPINION AND ORDER Adopted: June 25, 1998 Released: June 29, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. CTV of Derry, Inc. ("CTV") licensee of commercial television station WNDS (Channel 50), located in Derry, New Hampshire ("WNDS" or "the Station"), filed a complaint pursuant to Sections 76.7(a)(2) and 76.61(a) of the Commission's rules, claiming that Paragon Cable ("Paragon"), a cable operator serving Keene, New Hampshire, has unlawfully refused to carry the signal of WNDS on its cable television system. Paragon filed a Motion to Dismiss Complaint. 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 Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. SUMMARY OF ARGUMENTS 3. CTV asserts that WNDS is located in the Boston, Massachusetts ADI, which is the same ADI in which Keene, New Hampshire is located. Therefore, the Station argues that it is entitled to mandatory carriage on Paragon's Keene system pursuant to Sections 76.55(c), (e) and 76.56(b) of the Commission's rules. CTV relates that on October 4, 1997, after WNDS completed the installation of certain receiving equipment on the Paragon headend tower serving Keene, New Hampshire, the Station's consultant, John A. Fergie, P.E., its Chief Engineer, Paul Hunter, and Paragon's Chief Technician, Ray Murdough, conducted a joint signal strength test, which they found to be less than -45 dBm when measured at the "output of a Channel Master amplifier and two hundred feet of one half inch cable." In an October 25, 1997 letter to Paragon, CTV acknowledged that the Station's signal did not meet the Commission's signal strength threshold requirements, but notes that it is willing to install additional equipment to improve its signal strength. 4. On November 12, 1997, Paragon responded to the WNDS October 25, 1997 letter. According to CTV, Paragon's letter informed WNDS that the Station did not qualify for mandatory carriage. In response, by letter dated November 22, 1997, WNDS requested certain information from Paragon that it needed to purchase the additional equipment it wanted to install. On December 20, 1997, WNDS contacted Paragon requesting a reply to its November 22, 1997 letter. In response, Paragon requested that the Station conduct a tower stress test prior to installing any additional equipment on the Keene tower. WNDS argues that Paragon should allow WNDS to install the additional receiving equipment without requiring the Station to conduct a structural analysis of the Paragon tower. WNDS argues that the structural analysis test requirement places a heavy financial burden upon it, and that Paragon is using it as a pretext to forestall its must-carry obligations. WNDS states that on January 8, 1998, it requested a copy of Paragon's most recent tower stress analysis without avail. 5. In its response, Paragon states that WNDS' complaint should be dismissed as untimely, pursuant to Section 76.7(c)(4)(iii) of the Commission's rules, because it was filed more than 60 days after the November 12, 1997 letter in which Paragon's General Manager asserted that the Station did not qualify for must-carry status. Paragon also argues that WNDS failed to comply with Section 76.7(c)(4)(iii) of the Commission's rules that require a broadcaster to "affirmatively state" the specific event that gave rise to its must-carry complaint and to establish that its complaint is filed in a timely fashion. DISCUSSION 6. Paragon maintains that WNDS failed to file a complaint within the mandated 60 day period after being informed by Paragon that it would not carry the station. Consequently, Paragon argues that WNDS' complaint should be dismissed pursuant to Section 76.7(c)(4)(iii) of the Commission's rules. Paragon premises this argument on the allegation that WNDS' letter of October 25, 1997 was a request for mandatory carriage and that Paragon's letter of November 12, 1997, constituted a denial for carriage. Based upon our reading of both letters, we cannot conclude that the former was a request for mandatory carriage, pursuant to Section 76.61(a)(1) of the Commission's rules, or that the latter was a refusal of carriage under Section 76.7(c)(4)(iii). Moreover, since WNDS had not made a demand for carriage even were we to consider Paragon's November 12, 1997 letter a refusal of carriage, it would not operate to bar WNDS from subsequently making a demand for carriage. However, because the parties have raised arguments relative to the must-carry status of WNDS on Paragon's Keene cable system, we will treat this as a formal must-carry complaint and will not dismiss WNDS' complaint as untimely filed. 7. Based on the information before us, it is undisputed that WNDS does not, at the present time, deliver a good quality signal to Paragon's Keene headend. WNDS, however, has stated that it is willing to strengthen its signal by installing additional equipment on the Paragon-Keene tower. WNDS has also said that it is willing to consider changing its antenna array currently mounted on Paragon's tower and replace it with a Scala Parareflector similar to the ones Paragon's utilizes. In this regard, 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 .... Consistent with this clarification, the use of signal enhancement equipment has been approved in several proceedings involving issues concerning carriage of full power commercial stations, including Montgomery Cablevision, L.P., Greater Dayton Public Television, Citrus County Association for Retarded Citizens, and Silver King Broadcasting of Massachusetts, Inc. vs. Cablevision of Brookline Limited Partnership and Cablevision of Boston, Inc. WNDS, by committing to provide and use the equipment it wants to install on Paragon's Keene tower satisfies its obligation to bear the costs associated with delivering a good signal to Paragon's headend in Keene. WNDS' commitment to provide the above-mentioned equipment is consistent with that previously approved by the Commission and this Bureau. Thus, we will grant CTV's must-carry complaint conditioned upon WNDS delivering a good quality signal to the Paragon-Keene headend. 8. With respect to Paragon's request for a tower stress test, we note that Paragon's has failed to introduce its most recent tower stress test into evidence. In the past, we have required structural tests when the record at hand has raised public safety concerns that merited further study. In this case, however, no public safety concern issues have been raised nor has any documentation been submitted by Paragon to indicate that an evaluation from an independent engineering firm is warranted. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C.  534), that the complaint filed by CTV of Derry, Inc. IS GRANTED. Paragon Cable IS ORDERED to commence carriage of television station WNDS on its cable system serving Keene, New Hampshire within sixty (60) days from the date that station WNDS delivers a good quality signal, and Paragon provides it with its channel position election. 10. IT IS FURTHER ORDERED, that WNDS shall notify Paragon in writing of its channel position election ( 76.57 of the Commission's rules) within 30 days of the date that it delivers a good quality signal to the Paragon-Keene headend. 11. This action is taken pursuant to authority delegated under  0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau