******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 the Matter of: ) ) SAH Acquisition Corporation II ) ) vs. ) CSR-5268-M ) Olmstead Cable Company Corporation) ) Request for Mandatory Carriage ) of Television Station WOAC-TV, ) Canton, Ohio ) MEMORANDUM OPINION AND ORDER Adopted: October 30, 1998 Released: November 4, 1998 By the Acting Chief, Consumer Protection and Competition Division, Cable Services Bureau: 1. SAH Acquisition Corporation II ("SAH"), licensee of television broadcast station WOAC- TV, Canton, Ohio ("WOAC-TV" or the "Station"), has filed a must-carry complaint with the Commission, pursuant to Sections 76.7 and 76.61 of the Commission's rules, claiming that Olmstead Cable Company Corporation ("Olmstead") has failed to commence carriage of WOAC-TV on Olmstead's system serving Cuyahoga County, Ohio and the surrounding areas (the "cable communities") as required by Section 614 of the Communications Act and Section 76.56 of the Commission's rules. Olmstead filed an opposition to this Complaint, and SAH has replied. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in its Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues, ("Must Carry Order"), 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 patterns. SUMMARY OF ARGUMENTS 3. SAH states that in a letter dated March 27, 1998, it notified Olmstead that it had acquired the license for WOAC-TV and requested mandatory carriage of the Station's signal on Olmstead's Cuyahoga County system. WOAC-TV notes that Olmstead received the letter on March 31, 1998. WOAC-TV states that Olmstead responded on April 2, 1998, arguing that SAH's predecessor in interest, Whitehead, had already made a demand for carriage in September 1996, and that on December 30, 1996, Olmstead had denied that demand for carriage because the purported signal strength measurements conducted at the time showed that WOAC-TV did not meet the Commission's standards for the delivery of a good quality signal to the headend in question. WOAC-TV claims that Olmstead's April 2nd letter of denial is deficient because it did not comply with the standards outlined in Section 76.61(a)(2) of the Commission's rules. WOAC-TV maintains that it is committed to acquire and install any and all equipment necessary to deliver a good quality signal to Olmstead's Cuyahoga County headend. WOAC-TV asserts that the instant Complaint is timely filed. WOAC-TV requests that the Commission order Olmstead to commence carriage of its signal on channel 67 of the cable system at issue. 4. WOAC-TV asserts that it is entitled to mandatory carriage on Olmstead's Cuyahoga County, Ohio cable system because WOAC-TV is a qualified local commercial station as defined under the Commission's must-carry rules. WOAC-TV explains that it is licensed to Canton, Ohio, which is in the Cleveland ADI. WOAC-TV states that Olmstead operates a cable television system serving Cuyahoga County and the surrounding areas, which also are within the Cleveland ADI. WOAC-TV contends that because it is located within the same ADI as Olmstead, it is entitled to carriage. 5. In opposition, Olmstead asserts that prior to WOAC-TV's request, it conducted signal level tests which purport to show that WOAC-TV fails to deliver of a good quality signal to the Olmstead headend. Olmstead submitted two sets of signal strength studies with its opposition. Olmstead notes that on September 27, 1996, WOAC-TV "elect[ed] mandatory carriage for the 1997-1999 period" and "formally request[ed] carriage on the System." Olmstead states that on December 30, 1996, it notified WOAC-TV that its signal would not be carried on the Olmstead system because the Station failed to meet the Commission's standards for delivery of a good quality signal to the Cuyahoga County headend. Olmstead contends that it heard nothing further from WOAC-TV until March 27, 1998. Olmstead maintains that WOAC-TV's March 27th must-carry demand is not valid because SAH's predecessor in interest, Whitehead, already exercised, and was denied, those rights for the current must-carry election period. To support this argument, Olmstead cites Paxson San Jose License, Inc. v. Viacom Cable, for the proposition that the Bureau does not allow the start of a new must-carry election cycle when a new owner assumes control of a station subject to actions or non-actions of the prior licensees. Olmstead asserts that on April 2, 1998, it again denied WOAC-TV's demand for mandatory carriage, by incorporating by reference Olmstead's December 1996 letter denying Whitehead must-carry request. Olmstead also argues that the instant appeal should be dismissed because it was filed well past the mandated statutory deadline. 6. In reply, SAH argues that Olmstead mistakenly concluded that the instant appeal was untimely filed. SAH maintains that WOAC-TV's September 27, 1996 letter was a must-carry election letter pursuant to Sections 76.64 and 76.57 of the Commission's rules, not a demand for mandatory carriage pursuant to Section 76.61(a)(1). Thus, SAH argues the December 30, 1996 letter did not trigger the timing deadline under Section 76.7(c)(4(iii) of the Commission's rules. SAH reiterates its argument that Olmstead's purported letter of denial, dated April 2, 1998, was deficient. SAH asserts that the Bureau has held that deficient letters denying must-carry demands will be "insufficient to act as a signal deficiency notification letter." Therefore, SAH maintains that the instant complaint was filed in a timely fashion because the specific event that triggered the 60-day period in which to file a complaint was Olmstead's failure to respond to WOAC-TV's must-carry request in accordance with Section 76.7(c)(4)(iii). DISCUSSION 7. We grant WOAC-TV's complaint. We disagree with Olmstead's argument that the instant complaint was untimely filed. We find that WOAC-TV's September 27, 1996 letter was an election letter only, not a demand for mandatory carriage on the Olmstead Cuyahoga County system. As a result, WOAC- TV was not required to file a must-carry complaint with the Commission because neither the Section 76.61(a)(2), or the Section 76.7(c)(4)(iii) deadlines were triggered. The September 27th letter specifically stated that WOAC-TV was electing must-carry status pursuant to Section 76.64(f) of the Commission's rules. Thus, we find that WOAC-TV did not exercise its mandatory carriage rights for the current election period until March 27, 1998, when the Station notified Olmstead that, based on its September 27, 1996 election, and pursuant to Sections 76.55 and 76.56 of the Commission's rules, it was requesting must-carry status on the Cuyahoga County system. At that time, WOAC-TV also complained that Olmstead was not carrying the WOAC-TV signal on the cable system in question. The notice provisions of Sections 76.61 and 76.7 of the Commission's rules, were then triggered. 8. Under Section 76.7(c)(4)(iii), the Commission will accept must-carry complaints, filed pursuant to Section 76.61(a), if they are filed within 60 days after the denial by a cable television system operator of a request for carriage, or the failure of a cable operator to respond to such request. We find that Olmstead's April 2, 1998 letter was "insufficient to act as a signal deficiency notification letter," and did not trigger the 60-day period in which to file a complaint. In such a situation, the specific event that triggers the timing deadline for filing a must-carry complaint, is the cable operator's "failure to respond to such notice within the time period allowed by  76.61(a)(2)," i.e., "within 30 days of receipt of such written notification." In the instant case, Olmstead received the March 27th demand letter on March 31, 1998. WOAC-TV, therefore, had until June 29, 1998, as it did, to file the instant complaint. 9. 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 for 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. 10. In this instance, Olmstead has submitted signal strength studies which fail to comply with the Commission requirements for use of sound engineering practices. In particular, in neither of the two studies were the requisite four readings taken at the Cuyahoga County headend. Olmstead, therefore, has not shown that WOAC-TV does not provide a sufficient off-the-air signal to the Olmstead headend in question. We find that WOAC-TV has satisfied the criteria for carriage by committing to acquire and install all the equipment necessary to deliver a good quality signal to Olmstead's Cuyahoga County headend. The Cable Television Consumer Protection and Competition Act of 1992 requires only that a station "agree to be responsible for the costs of delivering to the cable system a signal of good quality." In this case, WOAC-TV has agreed to be responsible for installing all specialized equipment necessary to deliver a good quality signal to Olmstead Cuyahoga County headend. Thus, we conclude that WOAC-TV is entitled to carriage on Olmstead's system serving Cuyahoga County, Ohio and the surrounding areas. 11. Concerning WOAC-TV's channel positioning request, we find that it has properly requested carriage on channel 67 on Olmstead's cable system, the same channel number on which it is broadcast over- the-air. Under our rules, cable operators must comply with the channel positioning requirements absent a compelling technical reason. ORDERING CLAUSES 12. 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 SAH Acquisition Corporation II IS GRANTED. Olmstead Cable Company Corporation IS ORDERED to commence carriage of television station WOAC-TV on channel 67 of its cable system serving Cuyahoga County, Ohio within sixty (60) days from the date that station WOAC-TV delivers a good quality signal. 13. This action is taken pursuant to authority delegated under  0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Deborah E. Klein, Acting Chief Consumer Protection and Competition Division Cable Services Bureau