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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 the Matter of: ) ) Complaint of Jasas Corporation ) CSR-5340-M against Tele-Media Company ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: May 3, 1999 Released: May 5, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Jasas Corporation, licensee of Station WBDC-TV (Ind., Ch. 50), Washington, D.C. ("WBDC- TV"), has filed a must carry complaint against Tele-Media Company for its failure to carry WBDC-TV on its cable system serving Barton, Maryland. An opposition to this petition has been filed on behalf of CMA Cablevision Associates VII, L.P. d/b/a Tele-Media Company to which WBDC-TV has replied. II. 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 ("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 Arbitron research organization. III. THE PLEADINGS 3. In support of its request, WBDC-TV states that in the summer of 1998 it attempted to contact Tele-Media, without success, to discuss carriage on the Barton cable system. By letter dated September 18, 1998, WBDC-TV states that it notified Tele-Media, pursuant to Section 76.61(a)(1) of the Commission's rules, that it had failed to meet its carriage obligations. When Tele-Media failed to respond to this letter within thirty (30) days, WBDC-TV filed the instant complaint. 4. WBDC-TV indicates that, subsequently, negotiations did occur between it and Tele-Media in which Tele-Media expressed a willingness to carry the station if it delivers a good quality signal to the system's headend. WBDC-TV understands from the negotiations, however, that Tele-Media currently receives the other four Washington, D.C. signals it carries via an over-the-air Telecommunications, Inc. ("TCI") facility at Capon Mountain, Maryland. While it has offered to pay any additional out-of-pocket expenses associated with Tele-Media's receipt of its signal, WBDC-TV argues that Tele-Media's reliance on TCI's facilities for receipt of its signal makes it impossible to finalize an agreement regarding carriage until TCI commences receiving WBDC-TV's signal at its Iron Mountain headend and delivering it to its own Cumberland cable system. WBDC-TV states that a separate must carry complaint seeking carriage on TCI's Cumberland system (CSR-5341-M) was filed at the same time as the instant complaint. 5. WBDC-TV maintains that it is entitled to carriage on Tele-Media's cable system because a) it is a local commercial television station located in the same market as Barton, Maryland; b) it has committed to paying all the costs necessary to ensure delivery of a good quality signal at the system's principal headend; c) Tele-Media has not fulfilled its must carry requirement to provide one-third of its channel space to local stations; d) no distant signal copyright liability would be triggered by WBDC-TV's carriage; and e) no station currently carried by Tele-Media substantially duplicates WBDC-TV's programming. WBDC-TV concludes that the Commission should therefore order Tele-Media to commence carriage of its signal. 6. In opposition, Tele-Media argues that WBDC-TV's complaint is premature and fails both procedurally and substantively. Tele-Media states that it has not failed to fulfill its mandatory carriage obligations because WBDC-TV fails to transmit any detectable signal to the cable system's principal headend. Moreover, Tele-Media maintains that not only has WBDC-TV never provided anything in writing to Tele- Media that it will be responsible for the costs of delivering a good quality signal, but its vague, undocumented plan to provide its signal via a third party is apparently contingent upon the resolution of another must carry complaint. Tele-Media asserts that without a firm offer to pay associated costs and the ability to provide the signal to the headend, WBDC-TV's statements in the complaint are hollow and do not satisfy the requirements of the Commission's rules. Tele-Media points out that while WBDC-TV has purportedly filed the instant complaint to preserve its mandatory carriage rights, a review of the must carry rules shows that WBDC-TV has no mandatory carriage rights to preserve until it satisfies all eligibility requirements. Tele-Media argues that WBDC-TV's complaint merely represents another instance of a broadcaster attempting to manipulate the must carry procedures to take advantage of a small cable company, an abuse which only increases the administrative burdens and costs of compliance. As a result, Tele-Media states that the Commission should dismiss WBDC-TV's complaint. 7. In reply, WBDC-TV states that it believes that Tele-Media did not fully understand the contingent nature of the instant complaint or WBDC-TV's need to file the complaint in order to protect its carriage rights. WBDC-TV states that it does not contest the fact that currently it does not provide a signal of minimum signal strength to Barton's principal headend. However, it maintains that while delivery of its signal to the Barton headend would be easier and quicker using TCI's Iron Mountain facilities, it stands ready to deliver its signal at its own cost to Tele-Media by other means should its complaint filed against TCI be denied. In view of this commitment, WBDC-TV concludes that it is entitled to carriage. IV. DISCUSSION 8. According to Section 76.55(e) of the Commission's rules, commercial television broadcast stations, such as WBDC-TV, are entitled to carriage on cable systems located in the same ADI. WBDC-TV is located in the Washington, D.C. ADI, which is also where the cable system served by Tele-Media is located. Tele-Media has argued that WBDC-TV's complaint was premature because it does not currently provide a signal of good quality to the cable system's principal headend. WBDC-TV maintains that its complaint was filed to protect its must carry rights on Tele-Media's system and that it intends to provide the necessary equipment, at its own cost, to ensure delivery of a good quality signal. 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 the 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. . . . WBDC-TV, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Tele-Media's headend. Consequently, we order Tele-Media to carry WBDC- TV's signal in the event that WBDC-TV provides a good quality signal at Tele-Media's principal headend. V. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED that the petition filed December 16, 1998, by Jasas Corporation IS GRANTED pursuant to Section 614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C. 534). Tele-Media Company IS ORDERED to commence carriage of WBDC-TV on its Barton, Maryland cable system sixty (60) days from the date that WBDC-TV provides a good quality signal at Tele- Media's principal headend. WBDC-TV shall notify Tele-Media in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's rules) within thirty (30) days of providing a good quality signal. 10. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Chief Consumer Protection and Competition Division Cable Services Bureau