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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: ) ) R y F Broadcasting, Inc. ) ) v. ) CSR 5303-M ) TCI Cablevision of Puerto Rico, Inc.) ) Complaint for Carriage of Television Station) WZDE, Carolina, Puerto Rico ) MEMORANDUM OPINION AND ORDER Adopted: June 21, 1999 Released: June 23, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. R y F Broadcasting, Inc. ("R y F"), permittee of television station WZDE, Carolina, Puerto Rico, filed the above-captioned complaint pursuant to Section 76.2(a)(2) and 76.61(a)(3) of the Commission's rules for carriage of WZDE on the cable television system of TCI Cablevision of Puerto Rico, Inc. ("TCI-P"), serving Vega Baja, Dorado, Monati and Vega Alta, Puerto Rico. TCI-P filed an Opposition, to which R y F replied. Between November 10, 1998 and March 26, 1999, R y F filed several motions for extension of time in which to respond to TCI-P's Opposition. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), and implementing rules adopted by the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues Report and Order ("Must Carry Order"), commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. In areas outside the contiguous 48 states, such as Puerto Rico, station markets are defined using Nielsen's 1991-1992 DMA Market and Demographic Rank Report, and Puerto Rico is considered a single market. Therefore, for the purposes of this proceeding, the Puerto Rico communities served by TCI-P are considered to be in WZDE's market. 3. 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 of 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 systems's principal headend, it still may obtain carriage rights because ;under our rules a television station may provide a cable operator with specialized equipment, at the station's expense, to improve the station's signal to an acceptable quality at a cable system's principal headend. ALLEGATION OF THE PARTIES 4. R y F is currently operating WZDE under program test authority pending issuance of a license. According to R y F, by letter dated June 3, 1998, it requested carriage of WZDE on the TCI-P cable system at issue. R y F asserts that since no response to that request from the cable operator was received, the instant complaint was timely filed pursuant to Section 76.7(c)(4)(iii) of the Commission's rules. R y F further asserts that WZDE and the communities served by the cable system are both located within the San Juan, Puerto Rico DMA and that WZDE is a "local" station under Section 76.55(e) of the rules. Accordingly, R y F requests that the Commission issue an order requiring TCI-P to carry WZDE. 5. TCI-P opposes the instant complaint asserting that WZDE does not provide a good quality signal to the Vega Baja headend. In support, TCI-P provided the results of five readings of a signal strength study conducted between 5:00 p.m. and 7:00 p.m. on September 10, 1998. TCI-P contends that the study shows that WZDE is not entitled to carriage because of its failure to deliver an adequate signal to the Vega Baja cable system headend, and requests dismissal of WZDE's complaint. 6. R y F asserts in reply that the study TCI-P submitted was conducted while WZDE was off of the air and, therefore, does not provide any basis for denial of station carriage. R y F points out that WZDE operated only between 1:00 p.m. and 5:00 p.m. daily when TCI-P conducted the study on September 10, 1998. R y F further states that, although TCI-P has not met its burden to show that WZDE fails to provide an adequate signal to the cable system in question, it will provide special equipment for delivery of a good quality signal to the cable systems should that prove to be necessary. R y F requests that an order requiring TCI-P to cooperate with it in establishing WZDE's signal strength at the Vega Baja cable system headend and mandating carriage of WZDE consistent with precedent. DISCUSSION 7. We find that the representations made by R y F demonstrate that WZDE is a local full power commercial station qualified for carriage on TCI-P's system serving Vega Baja, Dorado, Monati and Vega Alta, Puerto Rico. Both WZDE and TCI-P are located in the Puerto Rico television market. Moreover, as noted above, 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 of 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. However, a cable operator's burden of showing the inadequacy of a station's signal is not satisfied by studies conducted while a station is not broadcasting. Such studies do not provide information that will assist broadcasters "in determining whether they wish to pay for appropriate signal improvements" nor do they represent full cooperation by cable operators in supplying broadcasters with relevant data, as contemplated by the Commission in connection with the resolution of disputes regarding the adequacy of signal levels delivered to cable system headends. In the instant case, R y F's letter requesting mandatory carriage provided TCI-P with information, including a telephone number, that enabled the cable operator to contact the station and confirm whether the station would be broadcasting at the time the study was undertaken. In any event, R y F has made a commitment to acquire and install any and all necessary improvements and equipment needed to provide TCI- P's Vega Baja headend with a good quality signal. Accordingly, we grant R y F's Complaint. ORDERING CLAUSES 8. 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 R y F Broadcasting, Inc. in File No. CSR 5303-M IS GRANTED, and TCI Cablevision of Puerto Rico, Inc. IS ORDERED to commence carriage of television station WZDE within sixty (60) days after R y F Broadcasting, Inc. installs the necessary equipment for WZDE to deliver a good quality signal to the principal headend serving Vega Baja, Dorado, Monati and Vega Alta, Puerto Rico. 9. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Deborah E. Klein, Chief Consumer Protection and Competition Division Cable Services Bureau