******************************************************** 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: ) ) Complaint of CTV of Derry, Inc. ) CSR-4679-M v. Cablevision of Framingham, Inc.) MA0094 ) Complaint of CTV of Derry, Inc. ) CSR-4680-M v. A-R Cable Services, Inc. ) ) Must Carry Complaint ) ORDER ON RECONSIDERATION Adopted: April 13, 1999 Released: April 19, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Cablevision of Framingham, Inc., operator of a cable system serving Framingham, Massachusetts, and A-R Cable Services, Inc., operator of a cable system serving Norwood and Westwood, Massachusetts (hereinafter "Cablevision"), have requested reconsideration of the Bureau's June 26, 1996 decisions ordering Cablevision to commence carriage of Station WNDS (Ind., Ch. 50), Derry, New Hampshire. An opposition to this request was filed on behalf of CTV of Derry, Inc., licensee of Station WNDS to which Cablevision filed a reply. II. BACKGROUND 2. In the original must carry complaints filed against Cablevision, signal strength measurements conducted by Cablevision purported to show that WNDS failed to provide a good quality signal at the cable systems' principal headends. WNDS claimed that these signal strength tests were not conducted according to Commission criteria and were thus inadequate to prove whether its signal met the Commission's signal strength criteria with regard to Cablevision's systems. In any event, WNDS maintained that it would bear the expense of any equipment necessary to ensure the delivery of a good quality signal at the systems' headends. As a result, WNDS claimed that it was entitled to carriage on Cablevision's systems. 3. The Bureau Orders agreed with WNDS and concluded that the cable operators in question had failed to demonstrate that WNDS provided a signal of poor quality at the cable systems' principal headends. The Bureau found that the signal quality tests conducted by the cable operators did not follow good engineering practices and the cable systems were ordered to commence carriage of WNDS within sixty (60) days of the orders' release dates. III. ARGUMENTS 4. In support of its reconsideration request, Cablevision argues that the Bureau's action in granting WNDS' must carry requests was based solely on broad allegations put forth by WNDS. Initially, Cablevision states that it was unaware that the respondents had filed carriage complaints and thus did not have the opportunity to file a response at that time. It points out that WNDS served copies of its two complaints on Cablevision's main regional office. According to Cablevision, WNDS did not serve the Framingham and Norwood/Westwood sytstems' General Manager, Assistant General Manager, Director of Programming or Cablevision's in-house or FCC counsel. Due to an associated breakdown in Cablevision's document handling procedures by clerical staff, Cablevision states that it did not become aware of WNDS's complaints until the issuance of the Bureau's orders granting the complaints. In the interests of equity, Cablevision therefore requests that these proceedings be reopened. 5. Cablevision argues that WNDS' initial complaints were untimely filed. It points out that on November 21 and December 9, 1994, respectively, WNDS first requested carriage on the Framingham and Norwood/Westwood systems. Cablevision alleges that it unequivocally denied these requests by letters dated February 14 and 16, 1995, and that the deadlines for WNDS to file its must carry complaints would have been April 15 and 17, 1995. Cablevision maintains that these February letters were the triggering events for the must carry statutory time limits and not, as claimed by WNDS in its complaints, Cablevision's follow-up responses of December 21, 1995. Since WNDS did not file its must carry complaints until February 20, 1996, over ten months beyond the expiration of its statutory deadlines, Cablevision concludes that WNDS' must carry complaints were untimely. 6. Cablevision maintains that even if WNDS' complaints can be accepted, the station has failed to provide a signal of adequate strength to the cable systems' principal headends. In support of this contention, Cablevision submits signal quality tests conducted on August 2, 1996 at the Framingham and Norwood/Westwood headends. Cablevision indicates that at the Framingham site, its system engineers tested WNDS' signal and measured a signal strength for WNDS of only -80.2 dBm over the two-hour testing period, which is 35 dBm below the required levels. In addition, Cablevision states that the picture quality was substantially deficient due to heavy snow. With regard to the Norwood headend, Cablevision states that a similar two-hour test at an antenna height of over 110 feet above ground level produced a signal strength average of -88.87 dBm and the picture quality was so poor that system engineers could barely detect a picture due to heavy snow and substantial loss of color. Cablevision states that although it invited WNDS to participate in the August 2nd tests, no representative from the station appeared. Nevertheless, Cablevision indicates its willingness to re-test the signal with the participation of the station. Given the poor quality of WNDS' signal at both system headends, however, Cablevision maintains that the Bureau should grant the instant reconsideration and dismiss WNDS' complaints. 7. In opposition, WNDS argues that its complaints were properly served on Cablevision's regional main office and that, therefore, Cablevision cannot claim that it did not receive notice of the complaints. WNDS states that it is not responsible for Cablevision's mishandling of its own documents and such mishandling is no basis for reconsideration. In any event, WNDS points out that a March 1, 1996 Commission public notice reported the filing of these two complaints which should have been more than adequate to alert Cablevision and/or its counsel as to their existence. WNDS argues further that its initial must carry complaints were timely filed and that the Bureau properly ruled in its original decisions that Cablevision's December 21, 1995 letters constituted denial of the station's requests for carriage. WNDS argues that the February letters relied on by Cablevision as the specific triggering event stated that "within the next week we will be retesting the signal strength for WNDS at our headend and we will be happy to supply you with all pertinent information at that time," were clear indicators that Cablevision was leaving open the possibility of changing its position should a retest of the signal prove positive. 8. In addition, WNDS maintains that the signal strength measurements provided by Cablevision do not foreclose its rights to must carry status. WNDS points out that in a November 27, 1995 letter to Cablevision, it stated that "WNDS would like to engage a professional tower rigging company to install a four element array and transmission line on the tower for the purpose of testing the signal. This will determine what type of receiving system will be required in order to achieve the plus three point seven five (+3.75) dBmV required for Must-Carry status." WNDS states that because it was never given the opportunity to install such equipment for the purpose of testing its signal, the measurements provided by Cablevision are of no decisional significance. WNDS argues that it has repeatedly stated its willingness to bear the costs of delivering a good quality signal to the Framingham and Norwood/Westwood cable system headends, but Cablevision has refused to cooperate in this regard. WNDS states that it is confident that, given the appropriate equipment, it can provide a signal of good quality to Cablevision's principal headends. Finally, WNDS notes that, despite Cablevision's assertions, it received no invitation from Cablevision to participate in the August 2, 1996 signal strength tests. 9. Cablevision states in reply that its reconsideration petition is not an attempt to stall in fulfilling its must carry obligations, but addresses matters that were not addressed in the original proceedings. Cablevision reiterates its assertions regarding the untimeliness of WNDS's original complaints and maintains that the complaints should be dismissed. In addition, while it does not accuse WNDS of any intentional foul play nor does it argue that WNDS' service was not "technically" sufficient, Cablevision argues that WNDS' general method of service contributed to the complaints' ultimate misdirection and Cablevision's inadvertent lack of response. Moreover, Cablevision maintains that pointing to the Commission's March 1, 1996 public notice is also insufficient in that the public notice merely identified the station and the cable communities involved. Cablevision states that since it serves over 800 communities in 18 states, it is understandable that Cablevision's counsel overlooked the filing. Cablevision asserts that FCC practice and custom dictate that a cable system's FCC counsel should have received actual service of the complaints and WNDS' failure to do so precluded Cablevision from participating in the proceedings. Further, Cablevision contends that WNDS has failed, and continues to fail, to deliver a good quality signal to the systems' principal headends and the August 2nd signal strength tests are clear proof of that failure. While WNDS alleges that it never received an invitation to participate in the August 2nd tests, Cablevision states that in the spirit of fairness it invited WNDS to attend a further test on August 30, 1996, and that this test was attended by WNDS' Engineering Consultant. Cablevision indicates that WNDS' consultant witnessed four separate signal measurements at each system headend over a two-hour testing period and that the station's signal was measured using a pre- amplifier and band pass filter supplied by WNDS. Cablevision states that the strongest reading generated by WNDS at the Framingham headend was -53.73 dBm and -60.06 dBm at the Norwood headend. In addition the station's picture quality showed an extremely grainy picture and/or heavy snow. Cablevision concludes, therefore, that the Bureau should not award WNDS carriage simply because WNDS states, without proof, that it is capable of delivering a signal of sufficient strength to the cable systems' headends. 10. In a motion to strike, WNDS argues that Cablevision's post-reconsideration August 30th signal strength measurements should be disregarded. WNDS maintains that it is clearly impermissible for a reconsideration petitioner to present new data in its reply. Were the Commission to improperly give consideration to these late measurements, WNDS asserts that it should be given the opportunity to demonstrate their flaws. In any event, WNDS argues that such measurements are irrelevant because it has already stated its willingness to bear the expense of delivering a good quality signal. WNDS asks that Cablevision cooperate in the installation of the necessary equipment. 11. Cablevision asks the Bureau to reject WNDS's motion to strike. Because WNDS challenged the validity of the August 2nd tests it initially submitted with its reconsideration, Cablevision states that it arranged for the subsequent August 30th tests so that any miscommunications with WNDS would be corrected and that the record in this proceeding would include the results of a mutually-attended signal strength survey. Cablevision points out that WNDS provides no justification for the Bureau to reject these subsequent tests other than to claim that they are "new data." Cablevision states that the only difference between the August 2nd and August 30th tests is that both parties observed the latter test. Finally, Cablevision argues that while WNDS's willingness to bear the costs of delivering a good quality signal to the systems' headends is not in dispute, the station's ability to actually do so is debatable as WNDS, to date, has failed to do so. IV. DISCUSSION 12. There are three points of contention in the case before us. The first two are procedural -- WNDS' alleged failure to properly serve Cablevision with copies of its must carry complaints and Cablevision's contention that WNDS' complaints were not timely filed. The third issue involves Cablevision's argument that WNDS fails to provide a good quality signal to its cable systems' principal headends. We address each of these issues below. 13. We do not agree with Cablevision that WNDS' original complaints were untimely. Cablevision maintains that the triggering event for the filing of WNDS' complaints was the February 14 and 16, 1995 letters, which it alleges unequivocably denied WNDS carriage on its systems. However, it should be noted that in those letters Cablevision indicated that it would be re-testing WNDS's signal the following week and would apprise WNDS of the results. Moreover, it is clear from the evidence that there were periodic negotiations between Cablevision and WNDS regarding the station's carriage from that time until well beyond the December 21, 1995 date relied on by WNDS in the filing of its complaints. Therefore, we cannot conclude that there was a clearcut denial of carriage in February 1995 and WNDS' filing of its must carry complaints based on Cablevision's December 21, 1995 letter is timely. 14. Second, we are not persuaded by Cablevision's arguments that its failure to participate in the initial must carry proceedings stemmed from improper service of WNDS' complaints. Section 76.7(b) of the Commission's rules requires that a "must-carry complaint . . . shall be accompanied by a certificate of service on any cable television system operator, franchising authority . . . or other interested person who may be directly affected if the relief requested is granted." WNDS satisfied this requirement when it served its original complaints. Contrary to Cablevision's contention, there is no requirement that copies of complaints be served directly on cable system personnel and/or counsel. Moreover, the Commission's public notice clearly identified the cable communities of Framingham, Norwood and Westwood. We will, however, consider the information in Cablevision's reply. In this instance, we believe that WNDS will not be prejudiced by our considering the matters raised in Cablevision's reply as it had the opportunity to fully respond to such matters. 15. Finally, we need not reach the issue of the sufficiency of the tests conducted by the parties, since WNDS has committed to providing specialized equipment for delivery of its signal at Cablevision's headend. 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 Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues ("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 . . . WNDS, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Cablevision's principal headends. Consequently, we order Cablevision to carry WNDS' signal on its Framingham and Norwood/Westwood cable systems at such time as WNDS provides a good quality signal employing the specialized equipment it has offered to install at Cablevision's principal headends. We expect Cablevision and WNDS to work together in this regard. V. ORDERING CLAUSES 16. Accordingly, the petition for reconsideration filed on behalf of Cablevision of Framingham, Inc. and A-R Cable Services, Inc., IS DENIED. Cablevision of Framingham, Inc. and A-R Cable Services, Inc. ARE ORDERED to commence carriage of WNDS on their cable systems serving Framingham and Norwood/Westwood, Massachusetts, within sixty (60) days after WNDS provides a good quality signal at the cable systems' principal headends. 17. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson, Deputy Chief Cable Services Bureau