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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 Seeway Broadcasters) CSR-4213-M against Continental Cablevision of) OH0030 Ohio, Inc. ) ) Petition for Reconsideration ) MEMORANDUM OPINION AND ORDER Adopted: October 14, 1998 Released: October 20, 1998 By the Deputy Chief, Cable Services Bureau INTRODUCTION 1. Pending in the captioned proceeding is a petition for reconsideration that was filed on behalf of Continental Cablevision of Ohio, Inc. ("Continental"), operator of a cable system serving Bellevue, Clyde, Green Creek Township, Green Springs, Vickery, York Township, and parts of Groton Township, Ohio. Continental requests that the Commission reconsider its February 3, 1995 decision ordering its cable system to carry low power television Station W21BF (Channel 21), Fremont, Ohio. An opposition to this petition was filed by W21BF to which Continental replied. ARGUMENTS 2. In support of its request, Continental states that W21BF fails to deliver a good quality signal to Continental's principal headend and submits engineering data to substantiate that allegation. It avers that measurements taken of W21BF's signal at both the system's current Bellevue, Ohio site and at its proposed new headend site at Peru Township, Ohio indicate a signal strength of -54.48 dBm for the Bellevue headend and an even worse measurement of -89.43 dBm for its proposed new headend. Continental states that both these measurements are substantially below the level of -45 dBm required by the Commission's rules for mandatory carriage of UHF stations and that, therefore, it should not be required to carry W21BF. 3. W21BF argues initially in its opposition that the issue of its signal strength was addressed and answered in the Commission's original decision and that Continental's attempt to revisit the issue may be an usurpation of the Commission's powers and procedures. In any event, W21BF states that engineering data submitted by Continental has numerous deficiencies and should not be accepted. W21BF states that: 1) Continental conducted all of its tests during a single day from two separate headend sites instead of conducting them over a period of several days and during all segments of the day; 2) equipment used by Continental was not typical or illustrative of that normally used by the system to receive signals at its Bellevue headend; 3) the 30 foot height at which the tests were performed was considerably lower than that which Continental uses to receive other UHF stations; 4) Continental did not use an antenna preamplifier in its tests although it normally uses them to receive channels at its Bellevue headend; and 5) there is no mention in the test data of Continental's use of the Hardline low loss antenna lead-in cable used by the system which calls into question the procedures used by Continental. In addition, W21BF maintains that the eleventh hour revelation of a new headend site raises questions of Continental's candor on this proceeding and may only be a means for Continental to delay its compliance with the must carry provisions. In conclusion, in view of the deficiencies in the signal test, W21BF argues that Continental should be ordered to commence carriage of its signal on whatever headend Continental is contemplating, particularly as the proposed new headend site was raised after the filing of the original complaint and alternate means exists (i.e., microwave, fiber optics) to enable W21BF to provide a good quality signal. 4. In reply, Continental argues that W21BF overlooks the procedural and substantive rules of the Commission which permit parties to petition for reconsideration and the fact that the Commission has, on several occasions permitted cable operators to raise the issue of signal strength at a later date. Indeed, it maintains that cable operators have routinely been extended the opportunity to resubmit signal test data when the original engineering test was flawed and that, therefore, it is well within its rights to submit such data herein. Moreover, Continental argues that the signal strength issue does not merely go away with the passage of time. The fact remains, Continental states, that W21BF's signal is well below the Commission's standards both at the current and proposed headends and it should not be required to carry it. Further, Continental states that W21BF wrongly alleges that the cable system's signal testing was faulty. It points out that Commission guidelines require that "if the test results are less than -51 dBm for a UHF station . . . at least four readings must be taken over a two-hour period." Continental states that it abided by this guideline. In addition, Continental states that it used readily available testing equipment which is comparable to the facilities which would be employed to carry W21BF and the elevation of the testing antenna or the use of a preamplifier are neither feasible nor required by Commission policy. In any event, Continental points out that W21BF has not volunteered to reimburse the cable systems for the costs of any of these measures. Finally, Continental defends its move in measuring W21BF's signal at both its current and future headend sites and concludes that it should not bear the burden and cost of importing the station to the new site. 5. In a supplement, Continental submitted the results of more current signal strength tests conducted on April 29, 1998 at the system's present headend site located at Peru Township, Ohio. These tests are intended to supersede the tests originally submitted by Continental in its petition for reconsideration and we will consider them in lieu of those earlier tests. These tests indicate that W21BF achieves a signal strength of -60.25 dBm at its principal headend. DISCUSSION 6. With respect to the standard to be used to determine what constitutes a "good quality" signal, we note that 614(h)(1)(b)(iii) of the Communications Act of 1934, as amended, and the 1992 Cable Act provide the requisite signal levels for VHF and UHF commercial stations at a cable system's headend. To establish the availability of a VHF commercial station's signal, a standard of -49 dBm was set at a cable system's headend while a standard of -45 dBm was established for UHF commercial stations' signals. In this case, Continental has determined that W21BF's signal strength falls below the requisite level for a UHF station at its system's principal headend. While the concerns expressed by W21BF in its opposition to the reconsideration related to the test originally submitted by Continental, we feel it expedient to address those concerns relative to the more current test as well. 7. In our review, we note initially that W21BF's concerns relative to the equipment used and the height of the antenna appear to have been corrected in Continental's April 29th test. The Wade PB-82-BB Dual Parabolic Antenna is comparable to that used by Continental to receive other UHF stations and the measured height of 280 feet is comparable to the height of other UHF station antennas on the system's tower. With regard to W21BF's concern that Continental did not conduct its tests during the proper time period, we find that Continental correctly noted in its response that we require only four readings taken over a two-hour period in those instances where test results are less than -51 dBm. In both its original test and the April 29th test, we find that Continental followed these guidelines. Morever, there is no requirement that a cable operator use a preamplifier in signal quality tests. We therefore find, based on the April 29th signal strength measurements performed by Continental on W21BF's signal at the Peru Township headend site, that W21BF does not provide a good quality signal to Continental's principal headend. 8. Finally, we note that W21BF has expressed its willingness, particularly with regard to Continental's Peru Township headend, to provide whatever equipment or means of delivery are necessary to ensure the delivery of a good quality signal. It should be pointed out, however, that neither the 1992 Cable Act nor our rules allows a low power television station to cure a signal quality deficiency with additional equipment as full power television stations are allowed to do. ORDERING CLAUSES 9. Accordingly, in view of the foregoing, and pursuant to 1.106 of the Commission's Rules, the petition for reconsideration filed on behalf of Continental Cablevision of Ohio, Inc. IS GRANTED and the Bureau's February 2, 1995 action granting W21BF's must carry complaint IS RESCINDED. 10. This action if taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson, Deputy Chief Cable Services Bureau