******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word 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: Paxson Boston License, Inc. v. Mountain Cable Company, a subsidiary of Adelphia Communications Corporation Request for Carriage ) ) ) ) ) ) ) CSR-5647-M MEMORANDUM OPINION AND ORDER Adopted: June 6, 2001 Released: June 7, 2001 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Paxson Boston License, Inc., licensee of television broadcast station WPXB (Ch. 60), Merrimack, New Hampshire ("WPXB"), filed the above-captioned complaint against Mountain Cable Company, a subsidiary of Adelphia Communications Corporation ("Adelphia"), for its failure to carry WPXB on its cable systems serving Andover, New Hampshire, and Springfield, Vermont and surrounding environs. An opposition to this petition was filed on behalf of Adelphia to which WPXB replied. II. BACKGROUND 3. 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, Broadcast Signal Carriage Issues ("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 "designated market area," or DMA, as defined by Nielsen Media Research. A DMA is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. IV. DISCUSSION 5. In support of its complaint, WPXB states that it requested carriage on Adelphia's systems by letter dated November 13, 2000. On November 27, 2000, WPXB states that Adelphia indicated that it was in the process of measuring WPXB's signal and would forward the results by December 16, 2000. When no results were forthcoming by that date, WPXB states that it sent a letter to Adelphia. Adelphia responded on January 16, 2001 with a copy of the test results of WPXB's signal and a refusal of carriage because the test results indicated that WPXB's signal strength was insufficient. WPXB states that it filed the instant complaint within sixty days of Adelphia's refusal of carriage. 6. WPXB argues that it is a qualified local commercial television station located in the Boston, Massachusetts DMA as are the communities served by Adelphia. WPXB states that it is therefore entitled to carriage on Adelphia's systems if its carriage does not increase the cable operator's copyright liability and it either delivers a good quality signal to the systems' principal headends or agrees to be responsible for the costs of any equipment necessary to ensure the delivery of a signal of sufficient strength. WPXB asserts that it meets both of these qualifications its carriage will not increase Adelphia's copyright liability and, in light of the signal strength tests which indicate that WPXB does not currently deliver an adequate signal, WPXB states that it agrees to assume the costs of delivering a good quality signal to Adelphia's principal headends. WPXB maintains that by failing to respond to its requests in a timely manner, Adelphia has not only delayed WPXB's ability to confirm the results of the signal strength tests Adelphia conducted, but has also delayed WPXB's delivery of a good quality signal to the systems. WPXB therefore requests that the Commission order Adelphia to cooperate with WPXB in its efforts to deliver a good quality signal and to commence carriage of its station. 7. In opposition, Adelphia argues that the signal strength tests it conducted on December 20, 2000 and January 11, 2001 indicate that WPXB fails to provide a signal strength greater than 56.75 dBm at the Andover headend and 66.75 dBm at the Springfield headend and therefore the station is currently ineligible for carriage. Adelphia points out that WPXB has not disputed the results of these tests. Moreover, Adelphia points out that nowhere in its correspondence prior to the filing of its complaint did WPXB offer to be responsible for the costs of delivering a good quality signal. Adelphia maintains that it has fully cooperated with WPXB in this matter and it is puzzled that instead of meeting with Adelphia to take steps to improve its signal, WPXB filed this complaint. Indeed, Adelphia indicates that, in its requests for carriage, WPXB falsely stated that it did deliver a good quality signal to the systems' principal headends. Adelphia maintains that even if WPXB now agrees to be responsible for the costs of delivering a good quality signal, its complaint is unwarranted and should be dismissed because WPXB failed to do so previously. Adelphia states that it stands ready to continue cooperating with WPXB should the station accept its responsibility to contact the system to arrange joint signal measurements or take steps to improve its signal quality. However, it asserts that this is a matter which is separate from the instant complaint. 8. In reply, WPXB states that Adelphia's sole basis for opposition is that the complaint should be dismissed because WPXB does not provide a good quality signal and WPXB did not, prior to tis complaint, agree to be responsible for costs. However, WPXB points out that it made this commitment in its complaint and the Commission has held that a station's commitment to provide a good quality signal as part of its must carry complaint is sufficient. WPXB contends that it filed its carriage complaint simply to protect its right to carriage. 9. We grant WPXB's complaint. A review of the signal strength tests Adelphia conducted of WPXB's signal indicates that they were not conducted employing good engineering practices because the equipment used by Adelphia in its measurements was not calibrated within a year as recommended by the manufacturer. As a result, we cannot conclude that Adelphia has proven that WPXB fails to achieve the minimum signal strength criteria established by the Commission. In any event, we note that WPXB has agreed to bear the costs of any equipment necessary to ensure the delivery of a good quality signal. Section 76.55(c)(3) of the Commission's rules allows local commercial television stations which fail to meet the signal strength criteria to provide, at their own expense, whatever equipment is necessary to ensure the delivery of a good quality signal to a cable system's principal headend. WPXB has made this commitment and by doing so will be eligible to be carried by Adelphia when it provides a signal which meets the Commission's signal strength criteria. Finally, we do not agree with Adelphia that WPXB's failure to specifically state in its carriage request letter that it would be responsible for equipment costs precludes the filing of the instant complaint. Sections 76.57(d) and 76.64(f) of the Commission's rules require only that stations electing or requesting must carry status notify the cable system of its election and of its choice of channel position. A station at that point would not know a signal quality problem existed unless it was informed of such a deficiency in a letter of response from the cable operator. Therefore, we believe that WPXB's statement as to its commitment to bear the costs of equipment within the context of its complaint was proper. In view of the foregoing, we find the grant of WPXB's complaint to be in the public interest. X. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that the petition filed by Paxson Boston License, Inc. IS GRANTED pursuant to Section 614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C. 534). Mountain Cable Company, a subsidiary of Adelphia Communications Corporation, IS ORDERED to commence carriage of WPXB on its cable systems serving Andover, New Hampshire, and Springfield, Vermont, and surrounding environs sixty (60) days from the date on which WPXB provides a good quality signal to Adelphia's principal headends. 12. IT IS FURTHER ORDERED that WPXB shall notify Adelphia in writing of its carriage and channel position elections (76.56, 76.57, and 76.64(f) of the Commission's rules) within thirty (30) days of the date it provides a good quality signal. 13. 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