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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 McLaughlin Broadcasting, Inc. ) CSR-5182-M against Winnsboro Cable TV ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 3, 1998 Released: April 8, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. McLaughlin Broadcasting, Inc. ("MBI"), licensee of television broadcast station WQHB(TV), Sumter, South Carolina ("WQHB"), has filed a must-carry complaint claiming that Winnsboro Cable TV ("Winnsboro") has failed to commence carriage of WQHB on its system serving Fairfield, South Carolina as required by Section 614 of the Communications Act and Section 76.56 of the Commission's rules. Winnsboro filed an opposition to the complaint and WQHB replied. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, 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. ARGUMENTS OF THE PARTIES 3. MBI claims that it first notified Winnsboro of its decision to elect must-carry status rather than retransmission consent by letter on September 12 1997. MBI states that its letter further notified Winnsboro that WQHB was conducting on-air program tests and that the station intended to commence broadcasting of regular programming in the near future. MBI asserts that WQHB began operations on September 22, 1997. MBI contends that Winnsboro did not respond to the station's initial notice and that, on October 17, 1997, MBI again requested that Winnsboro provide a written commitment to carry WQHB's signal. MBI states that Winnsboro did not respond to the October 17, 1997 letter. MBI asserts that Winnsboro violated Section 76.61(a)(2) of the Commission's rules by not responding in writing within 30 days of MBI's September 12, 1997 notice of election by either committing to carry the station or refusing to do so and providing reasons for such refusal. MBI requests that the Commission order Winnsboro to commence carriage of WQHB's signal. 4. In its opposition, Winnsboro argues that MBI's complaint should be denied because WQHB does not deliver a sufficiently strong signal to the System headend. Winnsboro attaches the results of signal tests which purport to show that WQHB fails to deliver a good quality signal. Winnsboro contends that the delivery of an adequate signal to the System headend is a necessary precondition to invoking must-carry rights. Winnsboro further states that MBI did not claim in its complaint that it provides an adequate signal. 5. In reply, MBI argues that Winnsboro's signal strength tests were not conducted in accordance with sound engineering practices as required by the Commission's rules. In particular, MBI asserts that Winnsboro's engineer wrongly oriented the UHF antenna toward Columbia, South Carolina instead of Sumter, South Carolina, the location of WQHB's transmitter and tower. MBI argues that because of this incorrect orientation as well as other inaccuracies, neither MBI nor the Commission can rely on Winnsboro's signal test to determine whether WQHB provides an adequate signal to Winnsboro's principal headend. MBI further adds that cable operators, not broadcast stations, have the burden of showing that a station located in the same television market as a cable operator is not entitled to carriage. DISCUSSION 6. We will grant MBI's complaint. 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. Should a station fail to provide the requisite over-the-air signal quality to a cable system's principal headend, its carriage nevertheless may not be foreclosed, because, under our rules, a station may provide a cable operator with specialized equipment, at the station's expense, which will improve the station's signal to an acceptable quality at a cable system's principal headend. 7. In this instance, Winnsboro submitted signal strength studies which fail to show compliance with Commission requirements for use of sound engineering practices. Most importantly, Winnsboro incorrectly oriented the UHF antenna toward Columbia, South Carolina instead of Sumter, South Carolina, the location of WQHB's transmitter and tower. We have previously stated that 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; 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. When measured against these criteria, we conclude that Winnsboro's signal strength tests are insufficient to demonstrate that WQHB's signal is not of good quality. We find, therefore, that WQHB is a qualified UHF station that is entitled to carriage on Winnsboro's cable system serving Fairfield, South Carolina. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C. 534), that the petition filed by McLaughlin Broadcasting, Inc. ("MBI") IS GRANTED. Winnsboro Cable TV ("Winnsboro") IS ORDERED to commence carriage of television station WQHB(TV) within sixty (60) days of the release date of this Order. WQHB(TV) shall notify Winnsboro 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 release date of this Order. 9. This action is taken pursuant to authority delegated under 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau