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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: ) ) Vision 3 Broadcasting, Inc., ) ) v. ) CSR 5403-M ) Time Warner Cable ) ) Complaint for Carriage of ) WVBX-LP, Easton, Glens Falls, ) and Hudson Falls, New York ) MEMORANDUM OPINION AND ORDER Adopted: September 10, 1999 Released: September 14, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Vision 3 Broadcasting, Inc. ("Vision 3"), licensee of low power television ("LPTV") station WVBX-LP ("WVBX-LP" or the "Station"), Easton, et al., New York, filed a complaint pursuant to Sections 76.7 and 76.61 of the Commission's rules claiming mandatory carriage rights for WVBX on Time Warner's cable system serving Glens Falls, Fort Ann and surrounding communities in Washington County, New York ("cable communities"). Time Warner Entertainment-Advance/Newhouse Partnership, d/b/a Time Warner Cable ("Time Warner") filed an opposition to the complaint, and Vision 3 filed a reply. II. BACKGROUND 2. Both the Communications Act of 1934, as amended, and the Commission's rules require the carriage of "qualified" low power television ("LPTV") stations in certain limited circumstances. An LPTV station that conforms to the rules established for LPTV stations in Part 74 of the Commission's rules will be considered "qualified" if: (1) it broadcasts at least the minimum number of hours required under 47 C.F.R. Part 73; (2) it adheres to Commission requirements regarding non-entertainment programming and employment practices, and the Commission determines that the programming by the LPTV station would address local news and informational needs which are not being adequately served by full power television broadcast stations because of geographic distance of such full power stations from the low power station's community of license; (3) it complies with interference regulations consistent with its secondary status; (4) it is located no more than 35 miles from the cable system's headend and delivers to the principal headend an over-the-air signal of good quality; (5) the community of license of the station and the franchise area of the cable system are both located outside the largest 160 Metropolitan Statistical Areas on June 30, 1990, and the population of such community of license on that date did not exceed 35,000; and (6) there is no full power television broadcast station licensed to any community within the county or other political subdivision (of a State) served by the cable system. III. MARKET FACTS AND ARGUMENTS 3. In support of its petition, Vision 3 argues that WVBX is eligible for carriage because it meets the requirements of Section 76.55(d), which contain the Commission's standards for cable carriage of low power television stations. Specifically, WVBX asserts that it: 1) is a 24-hour per day low power television station and meets the minimum operating requirements for full power stations set forth in Section 73.1740(a)(2)(ii) of the Commission's rules; 2) is located within 35 miles of the principal headend for the Glens Falls system, and its community of license is not located within the 160 largest metropolitan statistical areas; 3) is in full compliance with Part 73 of the Commission's rules governing children programming, political broadcasting and equal employment opportunity; has been in compliance with the Commission's interference rules and has not received any complaints of interference to reception of any other station; 5) provides locally- originated programming; and 6) there are no full power television stations licensed to the county or other political subdivision of the State served by the cable system. 4. Vision 3 states that it requested mandatory carriage on Time Warner's Glens Falls cable system in a letter dated February 10, 1999. Vision 3 notes that Time Warner denied WVBX's must carry request on March 10, 1999, alleging that the Station's signal strength was inadequate. WVBX asserts that its signal is sufficiently strong to meet the requirements of the Commission's rules, and argues that Time Warner used inferior equipment to measure the Station's signal. Specifically, WVBX states that Time Warner used a Radio Shack 15-1261 Log Periodic Antenna with an approximate gain of 15 db to conduct the measurement. 5. WVBX maintains that the fact that applicable law does not allow it to provide Time Warner with specialized equipment to improve the Station's signal should not excuse Time Warner from not using "generally acceptable equipment," such as the antennas that Time Warner currently uses "to receive signals of similar frequency range, type or distance from the principal headend," to measure the Station's signal strength. WVBX argues that because Time Warner used inferior equipment to measure WVBX's signal strength, the test results Time Warner submitted in this proceeding should not be credited. WVBX suggests that Time Warner should use a Sitco MU48-4 UHF Yagi Array, "which [it] already uses to receive another area television station on its tower," to measure the Station's signal at the Glens Falls headend. WVBX states that Time Warner would not allow Vision 3 to perform a signal strength test on its tower using a Sitco antenna. As a result, Vision 3, using a "truly `comparable' antenna (in fact, the same used by Time Warner to receive Station WYPX(TV), Amsterdam, New York at the same headend) ... performed the same test on a neighboring tower roughly 100 feet further away from the Station than the Time Warner tower." And, according to WVBX, the signal strength tests thus conducted "were dramatically better than Time Warner's," and resulted in readings between -46 dBm and -45 dBm. 6. Time Warner asserts that WVBX does not qualify as an LPTV station under Section 614(h)(2) of the Communications Act and Section 76.55(d) of the Commission's rules because the Station does not meet the Commission's requirements concerning local programming. Time Warner maintains that there is no "evidence that WVBX-LP broadcasts non-entertainment programming that addresses local news and informational needs of Washington County residents, or programming that addresses the educational and informational needs of children. In fact, Time Warner points out, the weekly program schedule WVBX submitted with its complaint to support the Station's allegations that it meets the Commission's requirements for LPTV broadcasts of local news, informational and children's programming is that of WVBX's sister station WVBG-LP, licensed to Albany-Schenectady-Troy-Greenwich, New York. Also, Time Warner argues, that weather and lunch menu graphics do not rise to the level of 'local' new/informational and children's programming required of LPTVs seeking mandatory carriage. 7. Time Warner also question's WVBX's ability to deliver a good quality signal to the Glens Falls headend. Time Warner states that it has measured WVBX's signal strength on two occasions and, each time, the results were below the -45 dBm threshold level required by the Commission's rules. Time Warner notes that the first time it measured the Station's signal was on March 8, 1999, in response to WVBX's must carry request. According to Time Warner, those tests produced "snowy and grainy picture quality" with readings between -57 dBm and -56 dBm, which indicate that WVBX does not qualify for must carry status. Subsequently, on May 20, 1999, Time Warner conducted another signal strength test. Time Warner submits a report showing that the latter testing was conducted over a period of 1 hour and 21 minutes, and resulted in the following readings: 12:25 p.m. (EDT), -52.3 dBm; 12:40 p.m., -53.94 dBm; 12:41 p.m., -52.2 dBm; 1:06 p.m., -52.4 dBm; 1:24 p.m., -52.11 dBm; and 1:41 p.m., -51.97. According to Time Warner, on May 20th, it used a Scientific-Atlantic Model QCA-UHF antenna, with a 12.5 dB gain, which "was mounted at a higher elevation on the headend than the other off-air antennas." Time Warner maintains that such an antenna "is substantially identical" to the antenna it uses to receive the signal of another Glens Falls LPTV station, WNCE- LP (68). Time Warner asserts that the technical performance of the antenna it used for the latter tests, is superior to the antennae it uses to receive three full-power UHF stations carried by the Glens Falls system." Time Warner argues that the Sitco MU48-4 UHF Yagi antenna WVBX mentions in its complaint "cannot be deemed `comparable' to Time Warner Cable's other off-air UHF antennas or the Scientific-Antenna QCA- UHF" because the former is "specialized equipment provided by distant, full power, must-carry Station WYPX (together with a pre-amplifier) in order to deliver a good quality signal to the Glens Falls System." In that regard, Time Warner notes that unlike WYPX, WVBX cannot use specialized equipment to remedy its signal deficiency. 8. In reply, WVBX reiterates its argument that Time Warner has used an antenna of inferior quality to measure the Station's signal, and asserts that the Station provides a good quality signal to the headend in question. WVBX asserts that Time Warner must have been unsure about the validity of the results of the initial testing, or otherwise, it would not have gone through the added expense of measuring the Station's signal a second time. WVBX disputes Time Warner's assertion that the antenna it used to measure WVBX's signal strength on May 20, 1999, is "substantially identical" to the one Time Warner uses to receive the signal of Station WNCE-LP. Furthermore, WVBX maintains that it "clearly broadcasts a sufficient amount of [local, informational and children's] programming to meet its legal requirements." In support of it assertion that it satisfies the children programming requirements, WVBX submits a list of six programs "targeted to children," which it broadcasts for a total of three hours per week. In addition, WVBX argues that it satisfies the local news and informational programming requirement by broadcasting a "half-hour [of] local weather reports and lunch menus for area schools each weekday morning at 5 a.m." In support of its allegation that such programming constitutes local news and informational programming, WVBX cites Lankenau Small Media Network, Inc. where, according to WVBX, the Commission found that an "LPTV station qualified as must- carry station where weather and local school information was aired on a regular basis." WVBX also argues that Time Warner "does not provide any evidence to the contrary but merely states generally that the cable system carries other stations that provide Grade B service to the area." 9. Contrary to Time Warner's contentions, WVBX points out that the antenna used to receive WNCE-LP by Time Warner's cable system is different because "the signal received by that antenna is part of a point-to-point intercity relay link (and not a direct over the air reception) from WNCE-LP to the headend," and therefore, "the SA antenna cannot be representative of the type of antenna used at the headend to receive broadcast signals, especially for such a remote site, where high gain receiving antennae are needed for many stations." Furthermore, WVBX maintains that measuring its signal strength with an antenna mounted at a higher elevation, as Time Warner did, is detrimental rather than beneficial to WVBX because the higher elevation creates a line loss and signal strength reduction. WVBX argues that contrary to the antennae Time Warner used to measure the Station's signal, the antenna WVBX used to conduct its own testing from a tower farther away from the Time Warner tower, meets the Commission's definition of "generally accepted equipment," and shows that the Station can deliver a signal of sufficient strength to qualify for must carry status. IV. DISCUSSION 10. In the instant case, the main issues in dispute are whether or not WVBX meets the Commission's standards for carriage of low power television stations, and whether the antenna model used by Time Warner in its signal strength test of WVBX-LP's signal can be considered to be "generally accepted equipment" as envisioned by the Commission's rules. 11. With respect to the issue of children's programming pursuant to Section 73.671 of the Commission's rules, we find that WVBX addressed Time Warner's criticism concerning the lack of programming in this area by showing in its reply that the Station carries six programs, which WVBX argues, are "specifically targeted to children" and run for a total of three hours weekly. Pursuant to Section 73.671 of the Commission's rules, television licensees, including LPTVs, are required to broadcast some programming that serves "the educational and informational needs of children," but the Commission does not substitute its judgment in the place of broadcasters to determine how they should provide such programming. 12. Concerning the issue of local news and informational programming required by Section 76.55(d)(2) of the Commission's rules, WVBX has not proffered any evidence that its programming addresses important news and local informational needs of the communities Time Warner serves. The instant case can be distinguished from Lankenau. In that case, the station in question "provided program logs that detail[ed] the specific types of local information that it provide[d] its viewers." Thus, the Commission found that "the station ha[d] made a prima facie case that it addresse[d] local news and informational" requirements. Here, we only have unsupported allegations by WVBX that its programming meets local needs not addressed by the area's full power stations. Moreover, we disagree with WVBX's contention that Time Warner had the burden of rebutting WVBX's assertions that the Station meets its local programming responsibilities. In that regard, the Commission has held that it is only after "an LPTV station meets its burden of proof by proffering evidence of its local programming" that the burden of proof shifts to the cable operator. WVBX has failed to meet that burden. Furthermore, we disagree with WVBX's characterization of its alleged local and informational programming, and the application of the precedent it cites. In Lankenau, the Commission did not hold that "weather and local school information" aired on a regular basis, constituted local and informational programming as required by Section 76.55(d)(2) of the Commission's rules. Rather, the Commission held that "weather and news announcements" constituted "program service" under Section 73.1740(2)(iii) of the Commission's rules. 13. In conclusion, and as noted above, Section 76.55(d)(2) requires that in order for an LPTV station to be accorded qualified status for must carry purposes in a matter such as this, the Commission must determine that the Station's nonentertainment programming addresses local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of the full power stations from the LPTV's community of license. We are not convinced that WVBX has met its burden of proof demonstrating that it meets the Commission's standards for local and informational programming responsibilities required of low power television stations seeking mandatory carriage rights. WVBX has failed to introduce any programming logs or other evidence supporting its contention that it provides local news and informational programming. In view of WVBX's failure to introduce such evidence, we therefore are unable to conclude that WVBX is a qualified low power station as contemplated by Section 614(h)(2) of the Act or Section 76.55(d)(2) of the Commission's rules. Consequently, WVBX is not entitled to mandatory carriage on the Time Warner system in question. 14. Although WVBX has not demonstrated that it is a qualified LPTV station for must carry purposes, we believe it instructive to note that Time Warner, in response to the Station's request for carriage, has apparently not conducted engineering tests in accord with accepted Commission standards. The Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act") provides "that a cable operator is not required to carry a low power 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 that the initial burden of demonstrating the lack of a good quality signal appropriately falls on the cable operator. In meeting this burden, the cable operator must show that it used good engineering practices, as defined below, to measure the signal delivered to the headend. 15. With respect to the standard to be used to determine what constitutes a good quality signal, the 1992 Cable Act adopted a standard for determining the availability of VHF and UHF commercial stations at a cable system's headend: for VHF commercial television station signals, the standard is -45 dBm; for UHF commercial television station signals, the standard is -45 dBm. Consistent with Congress' guidance with respect to VHF and UHF commercial station availability, we believe it is reasonable to utilize the same standards as prima facie tests to initially determine, absent other evidence, whether VHF or UHF low-power stations place adequate signal levels over a cable system's principal headend. 16. To measure a station's signal to see if it meets the Commission's requirements, a cable operator's signal strength surveys should, at a minimum, include the following: 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; 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. 17. In this instance, Time Warner, using a Radio Shack antenna and a Scientific Atlanta QCA- UHF log periodic antenna with a gain of 12.5 dB, determined that WVBX's signal strength at the Glens Falls headend was below the requisite level of -45 dBm for a UHF commercial station. Time Warner's initial reading at the Glens Falls system headend had three readings between -57 dBm and -56 dBm. Subsequent readings on May 20, 1999, over a period of an hour and twenty-one minutes showed a range in signal strength between -53.94 dBm and -51.97 dBm. When measured against our criteria for sound engineering practices, we conclude that the technical determination reached by Time Warner is insufficient to demonstrate that WVBX's signal is not of "good quality." In this regard, the Commission's rules require that a cable operator must conduct multiple signal quality tests to ensure accurate results and, in turn, provide that testing information to the affected station where there is a dispute over signal level measurements. Generally, if the tests results are less than -51 dBm for a UHF station, we have said that at least four readings must be taken over a two hour period. Where the initial readings are between -51 dBm and -45 dBm, inclusive, we believe that the readings should be taken over a 24-hour period with measurements not more than four hours apart to establish reliable test results. In this case, however, Time Warner did not cover the two-hour period to establish reliable test results. Moreover, it should be pointed out that the measurement height used by Time Warner in its second test of WVBX's signal is detrimental to the signal strength, considering that the tower is situated at a much higher elevation than the Station's transmitter. In addition, we are persuaded by WVBX that the methodology used by the cable system operator in performing the tests does not meet sound engineering practices. Furthermore, while the Commission does not specify which type of antenna must be used to determine signal strength, a cable operator is required to take measurements with "generally accepted equipment that is currently used to receive signals of similar frequency range, type or distance from the principal headend. V. ORDERING CLAUSES 18. 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 Vision 3 Broadcasting, Inc. in file No. CSR 5403-M IS DENIED. 19. 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