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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 Northwest Indiana Public) CSR-4867-M Broadcasting, Inc. against Continental) Cablevision of Northern Illinois) ) Request for Reconsideration ) MEMORANDUM OPINION AND ORDER Adopted: July 8, 1998 Released: July 10, 1998 By the Deputy Chief, Cable Services Bureau: 1. Northwest Indiana Public Broadcasting, Inc., licensee of Television Broadcast Station WYIN (Channel 56), Gary, Indiana, has filed a petition for reconsideration of the Commission's April 8, 1997 decision denying WYIN's must carry complaint against Continental Cablevision of Northern Illinois ("Continental"). An opposition to this petition was filed on behalf of Continental to which WYIN replied. 2. In support of its request, WYIN argues that the only basis for denial of its complaint was due to its signal's picture quality problems at Continental's headend and the parties' apparent failure to resolve them. However, WYIN maintains that the Commission was misinformed in its belief that there was a long history of attempts between Continental and WYIN to try to resolve the station's picture quality problems. WYIN points to an affidavit of Mr. Pat Kreuger, an independent contractor, in which it is stated that there was no real cooperation between Continental and WYIN in attempting to resolve these problems because Continental refused to allow Mr. Kreuger access to its headend. As stated in the affidavit, Mr. Kreuger indicates that, initially, Continental's in-house technician was very cooperative and diligent in working with him regarding WYIN's signal problems, but that after it was determined that an acceptable signal could be easily achieved by making elevation adjustments to the antenna used to receive WYIN, he was denied access and was told that the correction could not be made due to a "marketing" decision. Moreover, WYIN argues that the assertion made by Continental in its opposition to the original complaint that it had relocated WYIN's antenna to a lower tower position is unsupported by the system's own exhibit which does not list relocation of WYIN's antenna among its activities. In addition, WYIN points out that a claim made by Continental in a June 24, 1996 letter to WYIN's General Manager that it had placed ". . . the antenna at such location as to take advantage of all possible earth shielding. . ." never took place. In view of the foregoing, WYIN requests that the Commission direct Continental to do that which it stated it had already done and allow WYIN access to the Rolling Meadows headend for the purpose of lowering the antenna to achieve ground shielding, and then conduct proper joint testing of the signal's picture quality. 3. In opposition, Continental states that WYIN concedes its signal's poor quality, and its reconsideration is merely an attempt to characterize Continental as uncooperative despite the system's extensive and extended efforts to work with WYIN to resolve the signal quality problems. Continental points out that it initially advised WYIN of its signal quality problem in October 1995. Subsequently, in an effort to rectify this problem, Continental states that, as attested to by Continental engineer Tom Arvidson in a sworn affidavit, WYIN's consultant Mr. Krueger had access to the Rolling Meadows headend on four separate occasions in early 1996 and each time a Continental technician was provided to work with WYIN's representative for the entire duration of the visit. Further, on its own initiative on April 17 and 18, 1996, Continental indicates that it directed its own technicians to test interference on WYIN's signal to determine if any other remedies could be suggested. Continental states, however, that such recommendations as it made to WYIN were rejected. While Continental concedes that it eliminated WYIN's access to its headend in June 1996, it argues that it did so only after it had become clear that further technical intervention would not resolve WYIN's signal deficiency. Moreover, the cable system maintains that in fairness to its responsibilities to its customers and programmers, it eventually had to make a business decision to discontinue the futile technical efforts on WYIN's behalf. In addition, Continental states that although WYIN seems to place great emphasis in its current reconsideration petition on the issue of whether or not the antenna was lowered, it should be noted that this fact was never previously challenged by WYIN. Continental maintains that its representation to the Commission regarding this matter was based on its understanding of what WYIN's consultant did when moving the receiving antenna from one tower leg to another during one of his visits. In any event, Continental argues that, from an engineering standpoint, it seems unlikely that the interference experienced by WYIN would be resolved by moving the station's antenna a few feet lower. Finally, Continental states that WYIN is not presenting any new facts herein, but merely raising new arguments which should have been raised in its original complaint. As such, it maintains that the public interest does not warrant reconsideration in this instance. 4. WYIN states in reply that its reconsideration was based on the "public interest" standard of 1.106(c)(2) and not, as was Continental's opposition, on the "new facts" standard of 1.106(b)(2)(ii). WYIN argues that 615(a) of the Communications Act of 1934, as amended requires the carriage of qualified noncommercial educational television stations, 615(g)(4) specifies that a good quality signal is required, and 615(j)(3) empowers the Commission to order the cable operator to take such remedial steps as necessary. WYIN submits that it is this statutory basis which proves that its reconsideration meets the standards under 1.106(c)(2). WYIN points out that its evidence as to Continental's refusal to allow the station's consultant to lower WYIN's reception antenna is unrebutted notwithstanding the conclusion presented in Continental's affidavit as to the effectiveness of such a move; a conclusion made, it should be noted, without any empirical evidence whatsoever. WYIN states that, apparently, Continental feels that it has the right to reject mandatory carriage of a qualified signal based merely on the speculation that a signal will not be consistently of the same quality. Moreover, WYIN states that Continental never disputed that it refused to allow WYIN's consultant access to the system headend to lower the receiving antenna nor does it address the fact that its statement that it cooperated with WYIN in its "relocation of its antenna to a lower tower position" was false. WYIN argues further that Continental's opposition contains many misstatements: 1) The system's statement that "WYIN concedes that its signal quality is deficient. . . ." is unsupported and opposite to the truth. WYIN's signal strength is sufficient for reception purposes -- the issue is eliminating interference from a distant station. 2) Continental's refusal of access based on the conclusion ". . . that further technical intervention would not resolve WYIN's signal deficiency. . . ." is unexplained and unsupported. 3) Continental provides no evidence to support its allegation of the recommendations its states it made to WYIN to solve the signal quality problems. In conclusion, WYIN argues that a review of Continental's opposition appears to indicate that Continental is fearful that if WYIN is given the opportunity to lower its receiving antenna, the interference would be cleared and carriage would be required. 5. In a subsequent letter from Continental, the cable system maintains that each and every one of its statements made in this case were made only after investigation and under oath. It argues that at the time of the original complaint neither WYIN nor its engineer contested these facts and it is only now, in its current petition, that charges of falsehood are laid. Continental asserts that apparently WYIN seeks to resume the previously endless efforts to improve a signal in which all prior ultimate solutions have failed. Continental submits that WYIN's dismay at its engineer's failure to solve the station's signal quality problems is no justification for false accusations or deriding Continental's evidence. WYIN filed a motion to strike Continental's letter as it is in violation of the filing requirements of 1.45 and 1.52 of the Commission's Rules. DISCUSSION 6. We are not persuaded by the arguments raised by WYIN herein and will deny its request for reconsideration. WYIN's reconsideration request appears to turn mainly on the argument that the station's poor signal quality experienced on Continental's system is directly attributable to interference from a Lexington, Kentucky station nearly 400 miles distant. The Bureau's engineering staff has reviewed the information presented herein and is not convinced that a signal from almost 400 miles away could carry enough strength to propagate over the horizon and interfere with WYIN's signal. The signal alleged to be causing the interference, WDKY-TV (Ch. 56), Lexington, Kentucky, is a full power UHF commercial broadcast station whose transmit antenna is located 1151 feet above average terrain. Using a standard engineering formula, the maximum transmit distance to the horizon for WDKY-TV would be 47.98 miles. Therefore, interference from WDKY-TV would appear unlikely. WYIN has not provided enough empirical evidence to convince us that simply being allowed to lower its antenna will solve the noted problems. Absent such empirical evidence, we will not order Cablevision to use a lower antenna height for testing WYIN's signal, especially since WYIN did not raise this issue initially. Furthermore, we note that WYIN has not claimed that it was being treated any differently than any other UHF station carried by Cablevision. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED, pursuant to 1.106 of the Commission's Rules, that the petition for reconsideration filed on behalf of Northwest Indiana Public Broadcasting , Inc. IS DENIED. 8. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson, Deputy Chief Cable Services Bureau