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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 re: ) ) ) Complaint of All American TV, Inc. ) CSR-5041-M against Mountain Brook Cablevision ) ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: October 28, 1997 Released: October 30, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. All American TV, Inc., d/b/a All American Network, licensee of television broadcast station WTJP-TV (Ind., Channel 60), Gadsden, Alabama, has filed a petition for special relief with the Commission stating that it is being denied its right to mandatory carriage, pursuant to 614(d) of the Communications Act of 1934, as amended, by Mountain Brook Cablevision ("Cablevision") on its Alabama cable systems serving North Shelby County, and Mountain Brook, in Jefferson County. In response, Cablevision has filed an opposition, and WTJP-TV has replied. PARTIES' ARGUMENTS 2. WTJP-TV asserts that it is located in the Birmingham, Alabama area of dominant influence (or "ADI"), which is the same ADI in which the two specified cable communities, North Shelby County and Mountain Brook, in Jefferson County, are located. Therefore, the station argues that it is entitled to request mandatory carriage on Cablevision's systems, pursuant to 76.56(b) of the Commission's Rules. The station says that on March 21, 1997, its engineers met with Cablevision's management to discuss carriage, and that Cablevision then agreed to pay for a tower wind load test, while the station agreed to pay "all costs involved in having an antenna and cable video processor installed on the tower." The station unsuccessfully attempted to contact the system several times thereafter, and on April 21, 1997 it wrote Cablevision stating that it was exercising its right to mandatory carriage and reminding the system that " . . . it was prepared to pay for the installation of a receiving antenna and video processor . . . ." Cablevision responded on April 30, 1997, stating that it would not pay for the tower wind load test. Since carriage of WTJP-TV will not increase Cablevision's copyright liability, and since Cablevision does not already devote over one-third of its activated channel capacity to mandatory signal carriage, WTJP-TV asks the Commission to require that Cablevision immediately add its signal. 3. In response, Cablevision notes that WTJP-TV initially agreed to pay for the wind loading analysis, but that it later decided not to do so. Cablevision then offered to pay for the analysis, but it later retracted this offer, and it argues that it cannot now be forced to do so. According to Cablevision, the tower at issue is twenty years old. It is a triangular, guyed, tower that is 34 inches on each side, and its guy wires are anchored to telephone poles, rather than to the ground because of adjacent obstacles and structures. Cablevision adds that the tower was disassembled and stored on the ground for several years prior to being relocated and reassembled at its present site. In view of its history, Cablevision states that it has serious reservations about the tower's ability to handle additional antennas, and that it believes that it is WTJP-TV's responsibility to pay for a professional analysis. 4. In reply, WTJP-TV states that it will "provide all equipment necessary for receipt of a good quality signal . . . including underwriting the cost of a wind load study to be performed by an independent engineering concern." However, WTJP-TV states that, if the tower needs to be strengthened or re-guyed, it believes that Cablevision should be responsible for those costs, since there is no rule that requires stations entitled to mandatory carriage to bear the expense of such upgrades or capital improvements for cable systems. DISCUSSION 5. We will conditionally grant WTJP-TV's must-carry complaint. In view of the unique history of the tower herein, including the unusual method in which it is guyed, we believe the tower wind loading issue raises public safety concerns that merit further study. Accordingly, we will not require Cablevision to permit installation of WTJP-TV's equipment until the station produces an evaluation from an independent engineering firm verifying that such installation is safe and consistent with good engineering practice. As it is the station's burden to provide a good quality signal to the cable operator's principal headend, we believe that it also is WTJP-TV's responsibility to pay for the costs of the engineering study, purchase the necessary equipment, and pay the costs of installation. Moreover, if the wind load study indicates that Cablevision's tower cannot withstand the additional antenna, and WTJP-TV wishes to pursue carriage, the station will also bear the cost of strengthening, re-guying, or building any necessary additional facilities, such as a new tower, at the operator's headend. Upon submission of independent verification that the tower is capable of safely holding WTJP-TV's antenna, Cablevision shall then permit installation of WTJP-TV's equipment and shall, not later than sixty days thereafter, commence carriage of the station. No further testing of the station's signal shall be required, once the parties agree to the installation of the equipment necessary for reception of WTJP-TV's signal. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED, pursuant to 614(c) of the Communications Act of 1934, as amended, 47 U.S.C. 534, and 76.56 of the Commission's Rules, 47 C.F.R. 76.56, that the "Petition for Special Relief" (CSR-5041-M) filed June 30, 1997, by All American TV, Inc. d/b/a All American Network IS CONDITIONALLY GRANTED as explained in paragraph 5 above. Following completion of a satisfactory wind loading test on the subject tower, or on any necessary replacement tower, WTJP-TV shall notify Cablevision in writing of its carriage and channel position elections, (76.56 and 76.57 of the Commission's Rules), within thirty (30) days. Cablevision shall add the station in compliance with the provisions of the Communications Act of 1934, as amended, and the associated rules within sixty (60) days thereafter. 7. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATION COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau