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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: ) ) ) PAXSON WASHINGTON LICENSE, INC. ) CSR-5380-M ) Complainant, ) v. ) ) JONES COMMUNICATIONS OF MARYLAND, ) INC. ) Defendant ) MEMORANDUM OPINION AND ORDER Adopted: July 8, 1999 Released: July 12, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Paxson Washington License, Inc., licensee of broadcast television station WPXW(TV), Channel 66, Manassas, Virginia ("WPXW") has filed with the Commission a petition requesting mandatory carriage of its signal on cable systems operated by Jones Communications of Maryland, Inc., ("Jones") in the communities of Prince George's, District Heights, Upper Marlboro, Seat Pleasant, Fairmont Heights, Capitol Heights, Morningside, Forest Heights, and Andrews Air Force Base, Maryland (collectively, the "Communities"). Jones filed an opposition to which Paxson replied. II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of 1992, 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. 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. III. ALLEGATIONS AND DISCUSSION 3. In its petition, WPXW asserts that its city of license and the Communities are all located within the Washington, D.C. ADI. WPXW states that by letter dated January 7, 1999, it informed Jones of WPXW's election of mandatory carriage on Jones' cable system serving the Communities. In its letter, WPXW indicated that it had acquired the equipment necessary for the station to deliver a good quality signal to the cable systems headend and was ready to install it on the cable system's tower on a mutually acceptable date. WPXW further asserts that on March 1, 1999, it filed the instant mandatory carriage Complaint because Jones failed to respond in writing to WPXW's request for carriage in violation of Section 76.61(a)(2) of the Commission's rules. 4. In opposition, Jones asserts that the delivery of an adequate signal to the system's headend is a necessary precondition to invoking must-carry rights under Section 76.55(c)(3) of the Commission's rules. Jones states that WPXW's petition should be dismissed because WPXW fails to deliver a "good quality" signal of sufficient strength to its cable system's headend located in Capitol Heights, Maryland. Jones notes that if WPXW prevails in the must-carry complaint proceeding, it may be appropriate for Jones to file a "Petition for Special Relief" requesting a modification of WPXW's television market to exclude the communities at issue. 5. In reply, WPXW asserts that Jones' opposition is predicated entirely on the results of preliminary signal strength surveys performed on April 7, 1999. WPXW contends that since Jones stated neither the height at which the preliminary tests were conducted nor whether the antenna was properly oriented, Jones failed to meet its initial burden of demonstrating a lack of good quality signal. WPXW further asserts that it is prepared to provide, at its own expense, any specialized equipment necessary to upgrade WPXW's signal to the required signal strength. WPXW maintains that it is a qualified local commercial television station which is entitled to carriage under Section 76.55(c)(3) of the Commission's rules. WPXW also contends that carriage will not cause increased copyright liability for Jones. 6. In its April 8, 1999 supplemental filing, Jones argues that the signal strength surveys performed on April 7, 1999, establish that WPXW fails to provide a good quality signal to Jones' headend. WPXW contends that its May 28, 1999 supplemental signal quality test establishes that its signal is sufficient to meet the Commission's requirements. Specifically, at a height of 80 feet on a Sitco Yagi antenna located at the headend of the cable system operated by Jones, the signal analysis worksheet shows WPXW's signal level to be -48.75 dBm. 7. We grant WPXW's request for mandatory carriage on Jones' cable system serving the Communities. Section 614(a) of the Communications Act states that each cable operator shall carry the signals of local commercial television stations. A local commercial television station is defined as any full power broadcast television station that is within the same television market as the cable system. It is undisputed that WPXW and Jones are located within the same ADI. The 1992 Cable Act provides that a cable operator is not required to carry a local commercial television station that does not deliver a good quality signal to the principal headend of a cable system. Because the cable operator is in the best position to know whether a given station is providing a good quality signal to the system's principal headend, we believe the initial burden of demonstrating the lack of good quality signal appropriately falls on the cable operator. 8. Section 614(h)(1)(b)(iii) of the Communications Act, as amended by the Telecommunications Act of 1996, sets out the requisite signal levels for VHF and UHF commercial stations at a cable system's headend. For UHF commercial stations, such as WPXW, the standard is -45 dBm. In applying this standard, however, we have determined that good engineering practices require that for UHF stations such as WPXW, if the initial test results show a signal level of less than -51 dbm, then at least four readings must be taken over a two hour period. If the initial readings show a signal between -51 dBm and -45 dBm, inclusive, then six readings should be taken over a 24-hour period, with measurements no more than four hours apart to establish reliable test results. This is the best evidence of the availability of a station at a subject system headend. At a minimum, signal strength surveys should include the following information, in addition to that noted above: 1) specific make and model numbers of the equipment used, as well as its age and most recent date(s) of calibration; 2) description(s) of the characteristics of the equipment used, such as antenna ranges and radiation patterns; 3) height of the antenna above ground level and whether the antenna was properly oriented; and 4) weather conditions and time of day when tests were done. 9. The May 28, 1999, test reflected one reading taken at 11:30 a.m. on a clear day. We believe that this fails to meet the requirements set forth above. Accordingly, the results of the May 28, 1999 are not sufficient to establish that WPXW provides a "good quality" signal to Jones' principal headend in Capitol Heights, Maryland. 10. We note, however, that WPXW has offered to provide specialized equipment to Jones to improve the station's signal. WPXW maintains that with the use of specialized equipment, it can provide a good quality signal to Jones' headend consistent with Commission criteria. Furthermore, WPXW has stated that it will bear the costs of installing such equipment to assure 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 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... WPXW's commitment to provide specialized equipment satisfies its obligation to bear the costs associated with delivering a good quality signal to Jones' headend. Therefore, we order Jones to carry WPXW's signals in the event that WPXW provides a good quality signal employing the specialized equipment it has offered to install at Jones' headend located in Capitol Heights, Maryland. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED, that pursuant to 614 of the Communications Act of 1934, as amended, 47 U.S.C. 534, and 76.55(c)(3) and 76.61(a)(2) of the Commission's rules, 47 C.F.R. 76.55(c)(3) and 47 C.F.R. 76.61(a)(2), the Must-Carry Complaint [CSR 5381] filed by Paxson Washington License, Inc., against Jones Communications of Maryland, Inc., IS GRANTED. 12. IT IS FURTHER ORDERED, that Jones Communications of Maryland, Inc., SHALL COMMENCE CARRIAGE of the signal WPXW(TV) within sixty (60) days from the date that WPXW provides a good quality signal at Jones Communications of Maryland, Inc.'s principal headend on its cable system serving Prince George's, District Heights, Upper Marlboro, Seat Pleasant, Fairmont Heights, Capitol Heights, Morningside, Forest Heights, and Andrews Air Force Base, Maryland. WPXW shall notify Jones in writing of its carriage and channel position elections within thirty (30) days of providing a good quality signal, 47 C.F.R.  76.56, 76.57, and 76.64(f) of the Commission's rules. 13. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Deborah E. Klein, Chief Consumer Protection and Competition Division Cable Services Bureau