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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,) CSR-5180-M Inc. against Pond Branch Cable, Inc.) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 6, 1998 Released: April 9, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. McLaughlin Broadcasting, Inc., licensee of Television Broadcast Station WQHB (Channel 63), Sumter, South Carolina, has filed a must carry complaint against Pond Branch Cable, Inc. ("Pond Branch"), for that cable operator's failure to carry WQHB on its systems serving Gilbert, Monetta, Summit, Lake Murray (E), Lake Murray (W), Lexington (W), Saluda, and Swansea, South Carolina. An opposition to the complaint was filed on behalf of Pond Branch to which WQHB has 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 Arbitron audience research organization. SUMMARY OF ARGUMENTS 3. In support of its complaint, WQHB states that, pursuant to 76.64(f)(4) of the Commission's Rules, it advised Pond Branch by letter dated September 12, 1997 that it was conducting on-air program tests of its signal and would be commencing operations shortly. At the same time, WQHB indicates that it informed Pond Branch that it was electing must carry status on Pond Branch's cable systems. Subsequently, after WQHB was informed of Pond Branch's acquisition of Galaxy Telecom LP's Lake Murray, South Carolina cable system, WQHB states that it sent a second letter on September 25, 1997, notifying Pond Branch that the Lake Murray communities were also included in its must carry election. WQHB states that Pond Branch responded to the initial notice on October 14, 1997, requesting the date of WQHB's commencement of regular programming and advising the station that its decision on carriage would await appropriate signal quality tests of WQHB's signal and a determination of what, if any, copyright liability might be incurred from its carriage. WQHB argues that Pond Branch's response was inadequate in that the operator did not either commit to carriage or deny carriage based on specifically stated reasons. Moreover, WQHB maintains that, despite several communications with Pond Branch regarding the testing of its signal, it has received no indication that such tests have been performed. WQHB concludes, therefore, that its complaint should be granted, due to Pond Branch's failure to comply with its must carry obligations without appropriate justification. 4. In opposition Pond Branch argues that nowhere in its complaint does WQHB claim that its signal is viewable off-the-air in the cable systems' communities. Section 614(h)(1)(B)(iii) of the Communications Act excludes from must carry status any UHF station which does not deliver a signal level of -45 dBm to the principal headend of a cable system. Pond Branch states that in a November 21, 1997 phone conversation, personnel from the Pond Branch attempted to arrange for coordinated signal quality tests with WQHB's representative, Gene Gibson. During this conversation, Pond Branch indicates that the parties discussed the distance of Pond Branch's cable systems from Sumter, WQHB's city of license, and the nature and timing of the signal quality tests to be performed. As a result of this discussion, WQHB states that Mr. Gibson expressed his opinion that readings for WQHB's signal could not be obtained due to the distances involved and that the signal quality tests would not be necessary. Pond Branch states that it was its belief that this telephone conversation had resolved the signal quality and carriage issues. After receiving WQHB's must carry complaint, however, Pond Branch indicates that it performed signal strength tests of WQHB's signal on December 10, 1997, and could find no trace of the station on any of the readings taken. Pond Branch states that it even called WQHB to verify that its signal was on-the-air and was informed that it was. As a result of the fact that signal quality tests demonstrate that WQHB does not deliver a perceptible signal to its headend and that WQHB has not asserted that it would agree to bear the costs of any equipment necessary to obtain a good quality signal should it be possible, Pond Branch concludes that WQHB's complaint should be denied. 5. In its reply, WQHB argues that, from the date of its October 14, 1997 letter to the filing of its opposition, Pond Branch has employed stalling tactics to avoid its must carry obligations. WQHB also disputes Pond Branch's contention that the station's engineer, Mr. Gibson, agreed in discussions with Pond Branch staff that signal tests would be unnecessary. On the contrary, WQHB asserts that, as stated in its complaint and in a November 21st letter, after the joint discussion Mr. Gibson clearly recommended that signal tests be conducted. Moreover, WQHB indicates that even after the signal quality tests were finally conducted, Pond Branch did not forward the results of those tests nor its carriage refusal until January 5, 1998, more than 70 days after the station's original request for such tests. In any event, WQHB alleges that the signal test submitted by Pond Branch does not meet the Commission's definition of sound engineering practices in that a) there is no description of the methodology employed in conducting the test; b) the range of the antennas used in the test is not provided; c) there is no indication whether the height of the antenna and the equipment used are of the type normally used to receive other commercial television stations; and d) there is no indication as to whether Tim Martin, Pond Branch's Cable Manager, is qualified to conduct such tests. Further, WQHB argues that, despite Pond Branch's assertions to the contrary, it stands ready to deliver its signal to the cable systems' principal headend via a television translator located approximately 15 miles east of the Gilbert headend tower. It states that the translator transmit antennas have been received and the translator will be operational by early February 1998. In addition, WQHB maintains that it will bear the costs of any equipment necessary to assure delivery of an adequate signal. DISCUSSION 6. While there was apprently no formal request for carriage on the part of WQHB, pursuant to 76.61(a)(1), the parties herein have raised arguments relative to the issue of WQHB's carriage on Pond Branch's cable systems. As such, in this instance, we will treat this as a formal must carry complaint. Initially we note that Cable Bureau staff review of the signal quality tests conducted by Pond Branch on December 10, 1997 finds that these tests were conducted in accordance with accepted Commission standards and they demonstrate that WQHB does not provide a signal of sufficient strength to meet the Commission's signal quality criteria for UHF stations of -45 dBm. The information that WQHB claims that Pond Branch was deficient in providing in its test was found, upon review, either to be included (i.e. range of antenna) or was information that, while helpful, is not ordinarily required to be provided (i.e. description of methodology and normalcy of testing antenna and equipment used). Moreover, we find no cause to conclude, as alleged by WQHB, that Pond Branch's Cable Manager lacks the expertise necessary to perform such tests. A review of the test data shows that Pond Branch followed the standard engineering practices. 7. We also note that WQHB has stated that, via the use of a translator and other specialized equipment, it will be capable of providing a good quality signal to Pond Branch's principal headend. Moreover, WQHB has stated that it will bear the costs of installing such equipment to assure a good quality signal. The Commission has stated that specialized equipment may be employed to deliver a good quality signal to a cable system headend. The Commission in the Must Carry Clarification Order, after re-emphasizing that it was the television station's obligation to bear the costs associated with delivering a good quality signal to the system's principal headend, stated: This may include improved antennas, increased tower height, microwave relay equipment, amplification equipment and tests that may be needed to determine whether the station's signal complies with the signal strength requirements. . . WQHB, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Pond Branch's headend. Consequently, we will order Pond Branch to carry WQHB when it supplies a good quality signal. We encourage Pond Branch and WQHB to work together in this regard. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, that the petition filed by Mclaughlin Broadcasting IS GRANTED pursuant to 614 of the Communications Act of 1934, as amended (47 U.S.C. 534). Pond Branch Cable, Inc. IS ORDERED to commence carriage of Station WQHB on its cable systems serving Gilbert, Monetta, Summit, Lake Murray (E), Lake Murray (W), Lexington (W), Saluda and Swansea, South Carolina, sixty (60) days from the date that WQHB provides a good quality signal at Pond Branch's principal headend. 9. IT IS FURTHER ORDERED, that WQHB shall notify Pond Branch 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 providing a good quality signal. 10. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau