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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-5183-M against Robin Cable Systems, L.P. ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 9, 1998 Released: April 13, 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 Robin Cable Systems, L.P. ("Robin") has failed to commence carriage of WQHB on its system serving the communities of Saluda and Saluda County, South Carolina as required by Section 614 of the Communications Act and Section 76.56 of the Commission's rules. Robin 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 Robin 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 Robin that WQHB was conducting on-air program tests and that the station intended to commence broadcasting of regular programming in the near future. MBI contends that on September 19, 1997 Robin responded, in writing, stating that MBI's must-carry election was premature because WQHB had not yet commenced regular broadcasting. MBI states that in that letter Robin also asserted that delivery of a good quality signal was a prerequisite to mandatory carriage, that signal tests would be conducted and, in addition, Robin requested information about the station. MBI asserts that WQHB began regular broadcast operations on September 22, 1997. MBI claims that in September and October it discussed the issue of Robin's carriage of WQHB with counsel for Intermedia, who indicated that Robin was a subsidiary of Intermedia. MBI asserts that on October 1, 1997 it responded in writing to Robin's September 19th letter, refuting the allegation that its election and request for a written commitment of carriage were premature. MBI contends that it wrote to Robin again on October 20, 1997, inquiring whether signal tests had been conducted and requesting the results of those tests. MBI states that Robin ultimately denied WQHB's carriage request based on inadequate signal strength by letter dated October 28, 1997. MBI contends that in that letter, Robin stated that it conducted a signal strength test which showed that WQHB did not meet the -45 dBm standard required by the Commission for mandatory carriage on Robin's system. MBI argues that Robin's signal test is unreliable because it fails to comply with Section 76.61(a)(2) of the Commission's rules and does not meet the Commission's definition of sound engineering practices. MBI maintains that deficiencies in the signal test, alone, provide a sufficient reason for granting MBI's carriage complaint. MBI asserts that it responded to Robin's carriage denial in a letter, dated November 21, 1997, which stated that, in any event, WQHB would install, at its own expense, any equipment necessary to deliver a good quality signal to Robin's principal headend. MBI argues that WQHB's equipment installation commitment qualifies it as a "local commercial television station" entitled to carriage on Robin's system under Section 76.55(c)(3) of the Commission's rules. MBI claims that Robin did not respond to MBI's November 21, 1997 letter. MBI requests that the Commission order Robin to commence carriage of WQHB's signal. 4. In its opposition, Robin argues that WQHB is not entitled to carriage on its system because the station fails to deliver a good quality signal to Robin's headend as required by federal law. Robin notes, too, that WQHB's city of license, Sumter, South Carolina, is located over 80 miles from Robin's headend in Saluda, South Carolina. Robin contends that MBI did not dispute that WQHB failed to meet the Commission's signal strength standard at Robin's headend. Robin claims that MBI, instead, stated that it would provide any equipment necessary to deliver a good quality signal but did not explain or provide any information as to how it would deliver such a signal to Robin's Saluda headend. Robin asserts that on December 10, 1997, it sent MBI a detailed summary of the signal test and invited MBI to conduct its own tests for WQHB's signal strength if it believed that specialized antennas or other equipment would improve the station's signal quality. Robin contends that the burden is on MBI to demonstrate that it will deliver a good quality signal to Robin's Saluda headend and that MBI has yet to show that it can provide such signal with or without specialized equipment. Robin insists that if MBI proposes to satisfy its burden by utilizing special equipment, MBI must first demonstrate that such equipment will produce an adequate signal and that the equipment will not burden the cable system facilities. Robin contends that MBI is not entitled to an order granting carriage until it demonstrates that it will provide a signal consistent with the Commission's regulations. 5. In reply, MBI argues that Robin's carriage denial was invalid because it fell short of establishing, under the Commission's rules and decisions, that WQHB did not deliver an adequate signal to Robin's principal headend. MBI acknowledges that it received a more detailed summary of Robin's signal test on December 11, 1997 but still questions the reliability of the test. MBI further argues that while delivery of an adequate signal is a prerequisite to mandatory carriage, it is not a prerequisite to the grant of a carriage complaint if a station has agreed to pay for the costs of delivering to the cable system a good quality signal. MBI contends that Section 76.55(c)(3) of the Commission rules, as well as prior Commission decisions, make clear that all that is required of a broadcast station seeking to assert its must-carry rights is a commitment to provide the necessary equipment to assure a good quality signal and an agreement to be responsible for the costs of installing such equipment. MBI argues that it has agreed to pay for and provide such equipment and is, therefore, entitled to a grant of its complaint. MBI further asserts that, if necessary, it is prepared to use a television translator to resolve any signal quality issues and that use of such translator would not burden Robin's facilities. DISCUSSION 6. We will grant MBI's complaint. Section 614(a) of the Communications Act of 1934, as amended, provides that each cable operator shall carry the signals of local commercial television stations. A local commercial television station is defined as any full power broadcast television station that is within the same television market as the cable system. It is undisputed that WQHB and Robin are located in the same ADI. Under the Commission's must-carry rules, a cable operator has the burden of showing that a commercial station that is located in the same television market as the operator 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, Robin has denied MBI's carriage request based on a signal test which purports to show that WQHB does not deliver a sufficiently strong signal to Robin's Saluda headend. MBI has, nevertheless, agreed to provide equipment at its own cost, if necessary, to ensure delivery of a good quality signal to Robin's principal headend. In particular, MBI has stated that it is prepared to use a translator to deliver a quality signal. The Commission has stated that translators are a permissible means for delivering a good quality signal to the cable operator's headend. Because MBI has committed to provide and pay for the equipment necessary to provide a good quality signal to Robin's Saluda headend, we find that WQHB is a qualified UHF station that is entitled to carriage on Robin's cable system serving Saluda and Saluda County, 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. Robin Cable Systems, L.P. ("Robin") IS ORDERED to commence carriage of television station WQHB(TV) on its cable system serving Saluda and Saluda County, South Carolina sixty (60) days from the date that WQHB provides a good quality signal at Robin's principal headend. 9. IT IS FURTHER ORDERED, that WQHB shall notify Robin 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 under 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau