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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 WRNN-TV Associates ) CSR-4774-M Limited Partnership against Cablevision) Systems Corporation ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: June 30, 1998 Released: July 1, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. WRNN-TV Associates Limited Partnership, licensee of television broadcast station WRNN-TV (Channel 62), Kingston, New York ("WRNN" or the "Station"), has filed a must-carry complaint against Cablevision Systems Corporation ("Cablevision") requesting that the Commission order carriage of WRNN on five Cablevision cable systems serving 37 communities in Bergen County, New Jersey, Westchester County, New York, and Fairfield County, Connecticut. In addition, WRNN requests that the Commission impose a monetary forfeiture and/or other sanctions against Cablevision for denying WRNN carriage on its systems. Cablevision filed an opposition to the complaint, and WRNN filed a reply. The parties have also filed numerous supplemental letters. 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. We note that prior to the filing of WRNN's must-carry complaint, Cablevision filed a petition for modification of WRNN's area of dominant influence ("ADI") with respect to the 37 communities at issue. The Cable Services Bureau denied Cablevision's request to delete these communities from WRNN's ADI. Cablevision subsequently filed a petition for reconsideration of the Bureau's order. The Commission denied Cablevision's petition. WRNN filed its must-carry complaint while Cablevision's petition for reconsideration of the Bureau's market modification order was still pending. Cablevision and WRNN raised arguments in the must-carry proceeding concerning the propriety of resolving WRNN's complaint during the pendency of Cablevision's reconsideration petition. Because Cablevision's petition for reconsideration was denied, we do not address the arguments relating to its pendency. SUMMARY OF PLEADINGS 4. In its complaint, WRNN argues that Cablevision has failed to commence carriage of the Station on five of its cable systems as required by Section 614 of the Communications Act and Section 76.56 of the Commission's rules. WRNN contends that carriage of the Station is also mandated by the Cable Services Bureau's Cablevision Systems Corporation ("Cablevision Systems") order which denied Cablevision's request to delete 37 communities, served by Cablevision's five systems, from WRNN's ADI. WRNN states that in denying Cablevision's market modification request, the Bureau instructed WRNN to notify Cablevision of its carriage and channel position elections within 30 days of May 31, 1996. WRNN states that the Bureau's order further directed Cablevision to come into compliance with the applicable rules within 60 days of receipt of such notification. WRNN argues that Cablevision disregarded the Bureau's directives. WRNN asserts that it notified Cablevision of its carriage and channel position elections on May 31, 1996, the release date of the Cablevision Systems order. WRNN argues that, as a consequence, Cablevision was legally bound to begin carriage of WRNN on all five systems no later than July 30, 1996. WRNN states that in response to its notification, Cablevision asserted that WRNN may not be entitled to carriage because, according to Cablevision's engineering showing, the Station failed to deliver a good quality signal to the systems' headends. WRNN states that, in addition, on June 25, 1996, Cablevision's counsel called to inform the Station that it planned on filing a petition for reconsideration of the Cablevision Systems order and that it did not intend to carry WRNN unless and until its petition for reconsideration was denied. WRNN asserts that it regarded Cablevision's statement as an affirmative denial of carriage thereby triggering the instant complaint. 5. WRNN argues that it is entitled to carriage on Cablevision's systems for a number reasons. First, WRNN states that it is located in the same ADI as the five cable systems at issue. Second, WRNN maintains that it can deliver a good quality signal to Cablevision's principal headends through the use of fiber optic lines and microwave relays, or by translator and that it will bear the costs of such delivery. Third, WRNN asserts that its carriage would not trigger any additional copyright liability. Fourth, the Station states that it does not duplicate the programming of other stations carried on the five systems. Fifth, WRNN asserts that none of the systems in question has allocated up to one-third of its usable channel capacity for must-carry channels. In addition, WRNN requests that the Commission impose sanctions on Cablevision for failing to comply with must-carry requirements. 6. In opposition, Cablevision argues that it has not disregarded the Bureau's directive in Cablevision Systems, but has legitimately exercised its rights under the Commission's must-carry rules. Cablevision contends that, contrary to WRNN's assertions, the Bureau's order does not automatically obligate Cablevision to commence carriage of WRNN on its systems. Rather, Cablevision argues, carriage is required only on the condition that WRNN meet the Commission's signal quality requirements. Cablevision claims that it surveyed WRNN's signal at each of the relevant headends, determined the signal quality was deficient, and promptly notified the Station. Cablevision contends that it refused WRNN's carriage request on a basis consistent with Cablevision's rights under the Commission's rules. 7. In reply, WRNN states that Cablevision's continued refusal to carry WRNN is unlawful. WRNN reiterates that Cablevision was required to carry the station as a result of the Cablevision Systems decision. WRNN argues that it perfected its carriage rights by establishing that it can deliver a good quality signal to Cablevision's headends via fiber optic lines and microwave relays, or by translator. WRNN asserts that it provides a good quality signal to systems throughout the New York ADI through similar means and that it will be responsible for the costs of delivering a good quality signal to Cablevision's headends. The Station argues that its lack of over-the-air signal has no effect on its carriage rights. WRNN requests that the Commission grant its complaint to facilitate carriage on Cablevision's systems. WRNN contends that despite must-carry rules which require Cablevision to cooperate with the Station to provide a good quality signal, Cablevision has refused to assist WRNN in coordinating signal delivery. Specifically, WRNN states that Cablevision has frustrated the Station's attempts to gain access to Cablevision's facilities. WRNN claims that such access is necessary to conduct an engineering survey in order for the Station to complete the requisite steps to guarantee delivery of a good quality signal. WRNN reiterates its request that the Commission impose sanctions against Cablevision for its conduct. 8. Following WRNN's reply, the parties filed a series of supplemental letters. In an August 28, 1997 letter, WRNN informed the Cable Services Bureau that Cablevision had commenced carriage of the Station on four of the five cable systems originally cited in its complaint. WRNN states that the only system on which WRNN still seeks carriage is Cablevision of Westchester/Cablevision Systems Westchester Corp. serving Yonkers, New York (the "Yonkers System"). In its August 28th letter, WRNN also states that on August 14, 1997, WRNN personnel, an independent radio engineering consultant, and Cablevision personnel conducted a signal test of WRNN's signal at the system headend in the Bronx, which serves viewers in Yonkers. WRNN asserts that it demonstrated delivery of a good quality signal to the headend by delivering a signal well within the Commission's requirements set forth in Section 76.55(c)(3) of the Commission's rules. WRNN states that it confirmed the test results in a letter to Cablevision which also requested notification from Cablevision of the Station's launch date and channel position. According to WRNN, Cablevision responded with a letter stating that it did not believe that the Station had satisfied the Commission's requirements for delivery of a good quality signal and, therefore, was not entitled to carriage. 9. In a September 30, 1997 letter, Cablevision argues that WRNN has not yet satisfied its threshold obligation of delivering a good quality signal to the Yonkers System headend. Cablevision explains that, in view of the August 14, 1997 signal tests, it does not dispute that, with the use of specialized amplification equipment, WRNN is now able to deliver a signal that meets the Commission's minimum strength requirements. Cablevision argues, however, that because the use of amplification equipment adversely affects the Station's picture quality, WRNN has not satisfied its obligation to deliver a good quality signal. Cablevision attaches a copy of an August 25, 1997 letter from Cablevision to WRNN indicating that Cablevision's engineer observed problems with the Station's picture during the August 14 signal test. According to Cablevision, its engineer observed that when the picture was viewed on a monitor at Cablevision's headend, there was significant background static, a constant cluster of horizontal lines, and intermittent interference causing temporary loss of the picture. Cablevision further states that it took carrier-to-noise ("C/N") measurements on August 22, 1997 which indicated that WRNN's C/N ratio was well below that which Cablevision ordinarily requires from off-air signals. Cablevision asserts that it also took signal-to-noise ("S/N") measurements which indicated that WRNN's S/N ratio was lower than that of two other New York UHF stations and below the poorest quality signal currently carried on the system. Cablevision argues that the S/N ratio of a signal is important to picture quality. Cablevision states that it does not believe that carriage of WRNN's signal with an S/N ratio of 41.5 dB would comport with good engineering practices. Cablevision claims that according to standards published in the National Cable Television Association's ("NCTA") Recommended Practices for Measurements on Cable Television Systems, a station's S/N ratio should be greater than or equal to 53 dB. 10. In its September 30, 1997 letter, Cablevision also argues that if the Yonkers System were required to carry WRNN's signal in its present condition, the New York State Public Service Commission ("NYSPSC") would deem the picture quality unacceptable for carriage. Cablevision asserts that while it is willing to cooperate with the Station's efforts to provide a good quality signal, it should not be placed in the position of having to carry a signal that does not meet local standards. Cablevision explains that, in an effort to address the signal quality problem, it invited the NYSPSC to inspect WRNN's signal to provide an independent evaluation of the picture quality. Cablevision proposed in its letter to the Commission that if the NYSPSC finds the picture quality acceptable, Cablevision should begin carriage of WRNN on the Yonkers System, but if the NYSPSC determines that WRNN's picture quality is not acceptable then Cablevision should not be required to carry the signal until the Station makes whatever improvements might be necessary to deliver a picture acceptable to the NYSPSC. 11. In a November 3, 1997 letter, WRNN disputes Cablevision's claims regarding the Station's C/N ratio. WRNN argues that its C/N ratio exceeds the C/N level required by the Commission and that Cablevision's self-serving C/N ratio standards are irrelevant in determining whether WRNN delivers a good quality signal. In response to Cablevision's allegations regarding background static, horizontal lines, and intermittent interference in WRNN's signal, the Station submits a videotape of WRNN's programming allegedly carried on Cablevision's Yonkers System on the evening of September 23, 1997. WRNN contends that a review of the tape demonstrates that WRNN's broadcast did not exhibit any of the picture quality problems alleged by Cablevision. As to the S/N levels, WRNN argues that the Commission has not established minimum S/N ratios and that Cablevision fails to demonstrate why the NYSPSC's subjective standard or NCTA's recommended practices are relevant to a determination of whether a broadcast station should be entitled to enjoy its federally established right to carriage. WRNN states that Cablevision's attempt to tie federally-mandated must-carry rights to the subjective standards established by a state regulatory agency should be dismissed on the grounds of preemption. WRNN asserts that it strongly objects to the involvement of the NYSPSC in this proceeding. WRNN further argues that Cablevision does not cite any precedent supporting its contention that such independent standards should be applied in this case. 12. In a November 10, 1997 letter, Cablevision informs the Commission that on October 24, 1997, inspectors from the NYSPSC conducted an assessment of the picture quality of WRNN as delivered to the headend of the Yonkers cable system. Cablevision encloses a copy of the NYSPSC report and a letter summarizing the results of that report. The report finds that the "signal and picture quality of the received signal is very poor" and that the "quality of this signal is significantly poorer than that seen and expected on cable television systems." A follow-up letter from NYSPSC states that the system's current reception of WRNN "seems to be of marginal quality at best" and is "substantially below that of other signals carried on this system." 13. In a January 15, 1998 letter, Cablevision argues that the videotape submitted by WRNN is not a reliable indicator of the Station's signal quality and that the Commission should, instead, rely on the NYSPSC report in making a decision. Cablevision contends that the tape was created by a WRNN employee, while the NYSPSC report was prepared by an "independent, unbiased" state regulatory agency with a mandate to insure that cable consumers are delivered an acceptable picture. Cablevision asserts that the manner in which WRNN's programming was recorded is questionable. Cablevision argues that no information was provided about the quality of the video machine, such as when it was last cleaned. Cablevision also contends that recordation often fails to capture picture effects otherwise noticeable to the naked eye. Cablevision notes that the Commission has itself stated that it would generally not consider videotape to establish the presence or absence of a good quality signal for must-carry purposes because the videotaping, video playback equipment, and television receiver may interject impairments which could make it difficult to judge whether the tape accurately represents the station's signal. Cablevision admits that WRNN's videotape does not show the defects observed by Cablevision's engineers or by the NYSPSC. But Cablevision argues that the NYSPSC has no reason to evidence any bias in favor of Cablevision. Cablevision further states that WRNN was advised of Cablevision's invitation to the NYSPSC to conduct a signal quality inspection but failed to express interest in observing the test. Cablevision asserts that it is not arguing that state signal quality standards should dictate the Commission's standards for what constitutes a good quality signal, but only that WRNN's failure to meet the NYSPSC's standards is relevant in judging whether WRNN has met its federally established burden to deliver a good quality signal. Finally, Cablevision states that numerous alternatives are available to WRNN for delivering a good quality signal, such as direct delivery by microwave of fiber optic link, and that Cablevision is ready to cooperate in such delivery. 14. In a January 20, 1998 letter, WRNN argues that the videotape of its signal demonstrates that Cablevision's allegations of deficient signal quality are not supported by the evidence. WRNN argues that while a videotape may result in a lessening of the picture quality, the fact that the defects alleged by Cablevision are not present on the tape and that the true picture quality of WRNN's signal may be even better than depicted on the tape only strengthen WRNN's position. WRNN asserts that the Commission, in the past, has considered videotape evidence in a must-carry case. Although Cablevision states that WRNN failed to express interest in the NYSPSC tests, WRNN suggests, without elaboration, that its requests to take part in the testing were not accepted. DISCUSSION 15. The sole issue in contention in this case is the picture quality of WRNN's signal when carried on Cablevision's Yonkers System. It is undisputed that WRNN meets the Commission's signal strength requirements and that, but for the issue of picture quality, WRNN is entitled to carriage on the Yonkers System. The Commission does not have picture quality standards for broadcast must-carry stations other than its signal strength requirements. The presumption is that satisfaction of the Commission's signal strength requirements will produce a good quality signal. Signal strength, however, is only one element of picture quality determination. There are some instances where amplifying a signal in order to obtain the required signal strength does not produce a satisfactory picture but, rather, simply results in an amplification of signal defects. When picture quality is at issue in must-carry proceedings, the Commission must weigh the evidence presented by the parties to the case, but the burden of proof lies with the cable operator alleging poor quality. Cablevision has the burden of proving that WRNN is not entitled to carriage because it does not deliver a quality picture. We find that Cablevision has met its burden. Cablevision has presented evidence concerning WRNN's S/N ratio as well as a separate but corroborating report prepared by the NYSPSC on WRNN's signal quality which, taken together, persuade us that WRNN does not deliver a good quality signal to the Yonkers System headend. We, therefore, deny WRNN's must-carry complaint. 16. The Commission's signal strength rules require that a television broadcast station deliver to the cable operator's principal headend a signal level of 45 dBm for UHF signals. In a signal strength test conducted by the parties and an independent consultant on August 14, 1997, WRNN delivered to the Yonkers System headend a visual carrier signal level of 25.5 dBm which is well within the Commission's requirements. Cablevision does not dispute that WRNN delivers a sufficiently strong signal to the principal headend. Cablevision argues, however, that the amplification equipment used to deliver such a signal adversely affects the Station's picture quality. 17. In support of its assertion of poor picture quality, Cablevision presents evidence of WRNN's signal-to-noise or S/N level. The Commission has specifically stated that in cases where a broadcaster meets the signal strength requirements, yet there is a dispute over picture quality, the Commission would "consider all relevant technical issues, including the signal-to-noise ratio." A station's S/N ratio is a ratio of the desired signal to the level of noise present in the signal. Noise present in a signal adversely affects picture quality. The lower the S/N level, the greater the noise level as compared to the video signal level, and the poorer the picture quality. Cablevision contends that WRNN's S/N ratio of 41.5 dBm is below the poorest quality signal regularly carried on its system. Cablevision additionally argues that WRNN's S/N level is below the relevant standards published in NCTA's Recommended Practices for Measurements on Cable Television Systems ("NCTA's Recommended Practices") which indicate that a station's S/N ratio should be greater than or equal to 53 dBm when received at the headend. Cablevision submits an excerpt from the Operation and Application Manual for the CATV Video Analyzer that Cablevision used to assess WRNN's signal which also cites NCTA's Recommended Practices in reference to the S/N ratio. WRNN does not dispute the 41.5 dBm S/N level calculated by Cablevision nor does it object to the procedures used to obtain that measurement. Rather, WRNN argues that there is no precedent supporting the use of independent S/N standards. As noted above, the Commission has stated that it would consider S/N ratios when picture quality is at issue. The Commission has not specifically established minimum S/N ratios. It has, however, used NCTA's Recommended Practices in the past in developing cable signal quality standards and we see no reason why taking into consideration NCTA's S/N standards would be inappropriate here. Applying these standards, we find that WRNN's S/N ratio is significantly below the recommended level. WRNN's S/N ratio of 41.5 dBm is a full 11.5 dB below the 53 dBm recommended level. In view of the large differential between NCTA's recommended S/N level and WRNN's actual S/N level, we believe that WRNN's S/N ratio may be indicative of poor picture quality. 18. We conclude that WRNN's S/N level, combined with the results of a picture quality evaluation conducted by the NYSPSC, an independent state agency, persuade us that WRNN does not deliver a good quality signal to the Yonkers System headend. Regarding Cablevision's reception of WRNN, the NYSPSC found that "[o]verall, the signal and picture quality of the received signal is very poor," and that the signal "exhibited moderate to severe levels of interference." A follow-up letter from the NYSPSC states that the signal is "experiencing some unidentified interference which... yields visible impairments." We do not believe that the NYSPSC has any reason to favor Cablevision in this proceeding and regard the agency's report as an unbiased and objective assessment. In addition, the NYSPSC is charged with the responsibility of ensuring that consumers in the state receive quality cable service and the NYSPSC periodically evaluates the signals received at a system's headend for issues relating to picture quality. Our consideration of the NYSPSC report in this case is not intended to supplant Commission standards for what constitutes a good quality signal in favor of state standards. We simply believe that, in this particular instance, the NYSPSC report is relevant evidence that, combined with the S/N level, demonstrates that WRNN fails to deliver a quality picture to the relevant headend. 19. WRNN submits a videotape of its programming to refute allegations of poor picture quality. Balanced against the NYSPSC report and WRNN's low S/N levels, however, the videotape evidence is not persuasive. The tape was taken by WRNN personnel, without the involvement of a neutral third party. In addition, WRNN has not provided information concerning the conditions under which Cablevision was carrying WRNN's signal at the time the tape was made, including, in particular, whether the picture quality performance reflected was typical or atypical in terms of the types of noise interference Cablevision measured. As to the issue of carrier-to-noise or C/N level, WRNN's assertion that it meets the Commission's C/N requirements based on measurements taken by Cablevision is incorrect. Cablevision's measurements of WRNN's C/N level were taken at the input of the distribution plant (i.e., the headend). The rules require that C/N measurements be taken at the output of the distribution plant (i.e., subscriber terminals) in order to limit noise added by the cable plant, a different issue from the matter in dispute here. Therefore, WRNN's C/N level, as measured by Cablevision, cannot be accurately compared to the Commission's C/N levels. 20. Finally, we deny WRNN's request to impose sanctions on Cablevision. Cablevision is not required to carry a station that does not deliver a good quality signal to its headend. Various alternatives are available to WRNN to deliver a good quality signal such as direct microwave or fiber optic link, which the Station had previously indicated it was prepared to provide. The record indicates that Cablevision currently carries the Station on four of the five cable systems at issue in WRNN's complaint. Cooperation between the parties should ensure carriage of WRNN on the Yonkers System. Based upon the record, we do not believe that Cablevision's failure to carry WRNN during the pendency of this proceeding violated the Commission's rules. ORDERING CLAUSES 21. 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 WRNN-TV Associates Limited Partnership, licensee of television broadcast station WRNN-TV (Channel 62), Kingston, New York, Inc. IS DENIED. 22. 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 APPENDIX 1) Cablevision of Connecticut -- Norwalk, Connecticut Greenwich, Connecticut Standord, Connecticut Darien, Connecticut New Canaan, Connecticut Wilton, Connecticut Easton, Connecticut Westport, Connecticut Weston, Connecticut Redding, Connecticut 2) Cablevision Systems of Southern Connecticut, L.P. Bridgeport, Connecticut Fairfield, Connecticut Stratford, Connecticut 3) Cablevision of New Jersey Bergenfield, New Jersey New Milford, New Jersey Dumont, New Jersey Cresskill, New Jersey Tenafly, New Jersey Demarest, New Jersey Oradell, New Jersey Paramus, New Jersey Emerson, New Jersey Closter, New Jersey Old Tappan, New Jersey Harrington Park, New Jersey Norwood, New Jersey Connecticut, New Jersey Northvale, New Jersey Fair Lawn, New Jersey Woodcliff Lake, New Jersey Hillsdale, New Jersey River Vale, New Jersey Saddle River, New Jersey Rockleigh, New Jersey 4) Cablevision of Westchester/Cablevision Systems Westchester Corp. (Yonkers System) City of Yonkers, New York 5) A-R Cable Services-NY, Inc. Village of Portchester, New York Town of Harrison, New York Village of Harrison New York