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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: ) ) Sonshine Family Television, Inc.) ) v. ) CSR 5401-M ) Suburban Cable TV ) ) Complaint for Carriage of ) WBPH, Bethlehem, Pennsylvania ) MEMORANDUM OPINION AND ORDER Adopted: September 14, 1999 Released: September 16, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Sonshine Family Television, Inc. ("Sonshine"), licensee of independent UHF television broadcast station WBPH ("WBPH" or the "Station"), Channel 60, Bethlehem, Pennsylvania, filed a complaint pursuant to Section 76.7(a)(2) of the Commission's rules claiming mandatory carriage rights for WBPH on Suburban Cable TV's cable television serving Bedminster, Dublin, East Rockhill, Franconia, Green Lake, Hatfield, Hatfield Township, Hilltown, Lower Frederick, Lower Salford, Marlborough, Milford, Perkasie, Quakertown, Richland, Richlandtown, Salford, Silverdale, Soudertown, Telford, Trumbauersville, Upper Frederick, Upper Salford, and West Rockhill, Pennsylvania. Suburban Cable TV Co. Inc. ("Suburban") filed an opposition to the complaint, and Sonshine filed a reply. Prior to filing its opposition, Suburban had filed two Motions for Extension of Time. On August 30, 1999, Suburban made a supplemental filing. In turn, WBPH filed a Response to Supplemental Declaration and Motion to Strike. 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. 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 exclusively of others, based on measured viewing patterns. II. SUMMARY OF ARGUMENTS 3. WBPH asserts that it is entitled to mandatory carriage on Suburban's Sellersville, Pennsylvania cable system because WBPH is a qualified local full-power commercial station as defined under the Commission's must carry rules. WBPH explains that it is licensed to Bethlehem, Pennsylvania, which is in the same television market as Suburban. WBPH contends that because it is located within the same ADI as Suburban, it is entitled to carriage. In addition, WBPH claims that it provides a good quality signal to Suburban's principal headend without the need of additional or specialized equipment. WBPH asserts that it requested mandatory carriage on Suburban's Sellersville system in a letter February 3, 1999. WBPH claims that Suburban did not respond to the February 3, 1999 letter in violation of Section 76.61(a)(2) of the Commission's rules, which requires cable operators to respond in writing to requests for carriage within 30 days of such requests. The Station asserts that it filed the instant complaint within sixty days of Suburban's failure to respond to the February 3, 1999 letter. 4. WBPH maintains that Suburban informed the Station that the cable system's headend tower is owned by American Tower Corporation ("American") and that if the Operator carried the WBPH signal, Sonshine would have to enter into a lease with American "at a rate of $500.00 per month, for space for a custom antenna tuned to Channel 60." WBPH asserts that this requirement is in violation of the must carry statute and rules, because other UHF stations using the tower are not required to pay a rental fee. 5. WBPH states that signal strength testing it conducted at Suburban's principal headend on September 23, 1998 showed that the Station provided a signal of -31.95 dB, with a maximum gain of 20 dB. WBPH notes that Suburban "uses one or more standard Scientific Atlanta QCA all-channel UHF antennas with 12.5 dB of gain for reception of other UHF station signals," and that "[a]fter taking into account the difference in gain between the test antenna and the antenna used by Suburban to receive other UHF signals, WBPH(TV)'s signal at the Suburban head [sic] is at least -39.45 dBm, or nearly 6 dBm better than the maximum signal strength required by Section 76.55(c)(3) of the Rules." 6. In opposition, Suburban declares that effective September 30, 1999, and pursuant to Section 76.5(pp) of the Commission's rules, its designated principal headend serving the communities for which WBPH has requested carriage will be relocated to New Castle, Delaware. Suburban indicates that in order to serve the communities at issue, the facilities that serve them have been connected to the newly-designated principal headend by a fiber ring, and that, as a result, and contrary to what it indicated in its Motions for Extension of Time, soon, it will no longer have a legal obligation to carry WBPH because the Station will not be able to deliver a good quality signal to its new principal headend. Suburban asserts that two signal strength tests it conducted "in exact conformity with the FCC's requirements at two receive sites located on the fiber ring closest to WBPH's transmitter site," show that WBPH does not deliver a good quality signal to the soon-to-be relocated principal headend. Suburban alleges that tests conducted on at its Jamison, Pennsylvania headend revealed a reading of -69.45 dBm, with a similar test conducted at the Pottsgrove, Pennsylvania headend, measuring -70.25 dBm. Suburban asserts further that the designation of the New Castle as its principal headend is part of a system reconfiguration that "was planned well before WBPH asserted any carriage rights." Suburban contends that since WBPH's complaint is "moot," the Commission does not have to resolve the issue of a rental fee for the use of the tower to install WBPH's antenna. Finally, Suburban argues that "[i]t makes no sense for the Commission to require carriage of WBPH on the soon-to-be defunct [Sellersville] principal headend." 7. In reply, WBPH reiterates that it provides Suburban's Sellersville headend with a good quality signal. WBPH argues that Suburban's designation of a new principal headend in New Castle, Delaware is only an excuse to not carry the WBPH signal and, thus, avoid its statutory obligation to carry a qualified must carry station. WBPH points out that Suburban plans to carry Station WLVT after the New Castle headend becomes operational, even though that station would no longer qualify as a "local noncommercial educational station." WBPH notes that WLVT, which is licensed to Allentown, Pennsylvania, will be carried by Suburban even though it "does not place a predicted Grade B service contour over New Castle," and is more than fifty miles away. According to WBPH, Suburban's decision to continue carriage of WLVT but not of WBPH is discriminatory and arbitrary. Moreover, WBPH maintains that Suburban acted in bad faith not only during negotiations for carriage, but also when it represented to the Station and to the Commission in the two Petitions for Extension of Time that carriage of the WBPH signal was imminent. WBPH contends that Suburban's argument concerning issues involving the newly-designated principal headend is premature because the alleged move will not happen until September 30, 1999, and, therefore, the Commission should decide the instant complaint on the "basis of facts as they now exist." WBPH insists that even if Suburban has connected its cable systems by a fiber ring, Suburban could insert the WBPH signal at any node on the "ring" and deliver to all of Suburban's systems, including the Sellersville system. 8. In a "Declaration" submitted in response to a Commission request for further documentation, Joseph Parkyn, Suburban's Compliance Manager, states that "[i]n 1996, Suburban decided to consolidate several of its headends and create a digital network linking its subscribers in Pennsylvania and New Jersey," and as a result, Suburban "will discontinue the use of its Sellersville, Pennsylvania headend on September 30, 1999." Mr. Parkyn adds that on that date, the principal headend serving the communities in question will be located in New Castle, Delaware. 9. In its response the the Declaration, WBPH argues that the Declaration should be stricken from the record of this proceeding because the staff's request violated the Commission's ex parte rules. WBPH then reiterates its prior arguments concerning signal quality, Suburban's bad faith throughout its negotiations with WBPH, and lack of candor. III. DISCUSSION 10. 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. In this case, Suburban failed to meet this burden. Instead, Suburban submitted results of signal strength testing conducted at two other headends unrelated to the instant complaint. In that regard, we note that Section 614(h)(1)(B)(iii) of the Communications Act, as amended, requires a broadcast station to deliver a good quality signal to the principal headend of the cable system. Therefore, signal strength measurements taken at Suburban's Jamison and Pottsgrove, Pennsylvania headends are irrelevant to the issue at hand. 11. Additionally, our analysis shows that Suburban failed to meet its burden to establish that WBPH is not entitled to mandatory carriage in the Sellersville system. On the contrary, as the record shows, until it raised the newly-designated principal headend issue, Suburban had already agreed to commence carriage of the Station on its Sellersville system. Therefore, Suburban is ordered to commence carriage of WBPH within sixty days of the release of this Order from whichever principal headend it is employing at that time. 12. While the issue regarding antenna rental fees appears to be moot due to the relocation of Suburban's principal headend, the Communications Act and the Commission mandate that cable operators may not shift the costs of routine reception of broadcast signals to those stations seeking must-carry status, but that they may "require a broadcast station to pay only for antennas, equipment and other needed improvements that are directly related to the delivery of its signal and not to contribute to the general maintenance of the cable system's facilities." Suburban is required to provide carriage of WBPH. The manner in which it provides WBPH to the communities in question is a business judgment left up to Suburban's discretion. 13. Moreover, it appears that Suburban has been less than candid with the Commission in its petitions for extension of time, representing that an agreement for carriage of WBPH had been reached, all while Suburban was dismantling the headend in question. We intend to pursue these issues separately. 14. Lastly, Station WBPH contends that the Commission's staff request for information regarding the move of Suburban's principal headend violated the ex parte rules. The Commission's staff made the request at issue pursuant to authority delegated pursuant to Section 1.1204(a)(10) of the Commission's rules, which permit requests for information by the Commission "for the clarification or adduction of evidence" provided that "any new information elicited from such request ... shall be promptly served by the person making the presentation on the other parties to the proceeding." Thus, WBPH's contention that the Commission's staff violated the ex parte rules when it asked for additional information is unfounded. IV. ORDERING CLAUSES 15. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 C.F.R.  534), that the complaint of Sonshine Family Television in file CSR 5401-M IS GRANTED, and that Suburban Cable TV Co. Inc. IS ORDERED to commence carriage of television station WBPH on its cable system serving Bedminster, Dublin, East Rockhill, Franconia, Green Lake, Hatfield, Hatfield Township, Hilltown, Lower Frederick, Lower Salford, Marlborough, Milford, Perkasie, Quakertown, Richland, Richlandtown, Salford, Silverdale, Soudertown, Telford, Trumbauersville, Upper Frederick, Upper Salford, and West Rockhill, Pennsylvania, within sixty (60) days. 16. IT IS FURTHER ORDERED that the Motion to Strike filed by Sonshine Family Television, Inc. IS DENIED. 17. 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