******************************************************** 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 Jasas Corporation against) CSR-5341-M TCI Cablevision of Maryland, Inc.) ) 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 TCI Cablevision of Maryland, Inc. for its failure to carry WBDC-TV on its cable system serving Cumberland, Maryland. An opposition to this petition has been filed on behalf of TCI 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 throughout the summer and fall of 1998 it conducted negotiations with TCI regarding the construction of the facilities necessary to deliver a good quality signal to the TCI headend and indicated throughout those negotiations that it would pay all the costs involved. When the negotiations waned, WBDC-TV states that it notified TCI, in a September 18, 1998 letter, sent pursuant to Section 76.61(a)(1) of the Commission's rules, that TCI had failed to meet its carriage obligations. When TCI failed to respond to this letter within thirty (30) days, WBDC-TV filed the instant complaint. 4. WBDC-TV maintains that it is entitled to carriage on TCI's cable system because a) it is a local commercial television station located in the same market as Cumberland, 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) TCI 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 TCI substantially duplicates WBDC-TV's programming. WBDC-TV concludes that the Commission should therefore order TCI to commence carriage of its signal. 5. In opposition, TCI argues that WBDC-TV's complaint should be dismissed because the station does not deliver a signal of sufficient strength to the cable system's principal headend. TCI points out that WBDC-TV does not dispute that it cannot deliver a good quality signal, but instead insists that it is willing to pay the costs associated with delivering its signal to the Cumberland headend via microwave. However, TCI argues that WBDC-TV incorrectly suggests that TCI is obligated to provide WBDC-TV with access to, and transportation of, WBDC-TV's signal to its principal headend via TCI's Cacapon Mountain, West Virginia receive site and microwave facilities, as well as TCI's facilities at Iron Mountain, Maryland. TCI states that it acknowledges that the Commission has instructed cable operators to accommodate broadcasters who wish to deliver their signal to the cable headend by means other than over-the-air transmissions, but argues that that does not mean that the cable operator must turn over its own plant to accomplish that delivery. If it were so, TCI maintains, the statutory specifications regarding "principal headends" would be rendered meaningless. TCI points out that the Commission has explained that "[t]he concept of principal headend is statutorily- mandated and is, therefore, not something which can be arbitrarily changed at either the discretion of the cable operator or this Commission." In addition, TCI indicates that the Commission stated that "[t]he use of separate reception and microwave transmission equipment would fall within this category of extraordinary measures. . . ." Therefore, TCI argues that it is irrelevant that TCI chooses to receive other Washington, D.C. broadcast signals at its Cacapon Mountain receive site when the reception of signals at such a site constitutes "extraordinary" measures taken at the cable operator's discretion. In any event, TCI states that it should be pointed out that the Washington, D.C. stations it receives at these facilities have elected, and are voluntarily carried by, the operator pursuant to retransmission consent agreements. As a result, TCI argues that WDBC- TV cannot claim discrimination. TCI concludes that while it agrees that WDBC-TV is entitled to deliver a good quality signal to the Cumberland headend, it may not, even with compensation, appropriate TCI's plant in order to do so. 6. In reply, WBDC-TV states that it does not contest the fact that currently it does not provide a signal of minimum signal strength to TCI's Cumberland headend. However, it maintains that it is entitled to must carry because it has committed to deliver a good quality signal using microwave relay equipment and to bear all costs associated with such delivery. WBDC-TV argues that the only outstanding issue is whether TCI must cooperate by merely accepting the over-the-air receive antenna and microwave relay equipment offered. 7. WBDC-TV states that the cases cited by TCI in support of its position that it need not place the equipment offered at the sites used by TCI to transport four other Washington, D.C. stations to the Cumberland headend are misplaced. WBDC-TV points out that those cases only stated that a cable operator need not transport a station's signal to its principal headend for the purpose of measuring whether the station's signal meets the minimum requirements for carriage. WBDC-TV argues that it is not seeking TCI's transport of its signal for the purposes of measuring signal strength because there is no doubt that its signal will meet the requirements once it is transported. Moreover, WBDC-TV maintains that TCI's obligation to work cooperatively is not only not negated by the cited cases, but is a position which the Commission has restated on numerous occasions. 8. WBDC-TV asserts that its request for TCI to accept microwave relay equipment is functionally equivalent to accepting an over-the-air receive site antenna. In any event, WBDC-TV states that what was contemplated by both parties in the approximately eight teleconferences regarding carriage was that WBDC-TV would place, at its own cost, a new over-the-air receive antenna and microwave relay equipment at the existing TCI facilities. WBDC-TV points out that the obligation of a cable operator to cooperate with a station on signal issues was spelled out in both the Commission's Must Carry Order and the Clarification Order and that TCI's refusal to cooperate is a clear violation of WBDC-TV's must carry rights. IV. DISCUSSION 9. 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 TCI is located. WBDC-TV maintains that it is entitled to carriage on TCI's system, despite the fact that it currently does not provide a good quality signal, due to the fact that it has committed to provide, at its own cost, the equipment necessary to ensure delivery of a signal of sufficient strength to the Cumberland headend. TCI argues, however, that it is not obligated to allow WBDC-TV to install equipment at its microwave receive sites in order to transmit its signal. We agree with TCI. 10. As stated in the Clarification Order, ". . . the statute specifies that a broadcast station must deliver a good quality signal to the principal headend of the cable system to be entitled to must-carry rights. . . ." We do not accept WBDC-TV's interpretation that the Commission's intent was that the statutorily- mandated concept of principal headend applies only to the measurement of a signal and not to its delivery. The fact that TCI transmits other signals to its principal headend via its microwave receive sites does not necessarily obligate it to do so for every signal which subsequently requests carriage. Such an interpretation overlooks the fact that "cable operators need not employ extraordinary measures or specialized equipment . . ." in accommodating broadcast stations' carriage requests. The use of TCI's microwave receive sites would fall into this category. V. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that the petition filed December 16, 1998, by Jasas Corporation IS DENIED, pursuant to Section 614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C. 534). 12. 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