WPC  2MBKRVZ3|a "i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDdDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddxHxxHvppDXd<"dxtldpxxd7jC:,!Xj\  P6G;XPHP LaserJet 5SiHPLAS5SI.PRSXj\  P6G;\&UPXP2> K Z3|a "i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+999999S9S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNI\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>\>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\nBnnBmgg>Q\7"yyyy\njc\gnn\Times New RomanTimes New Roman BoldTimes New Roman Italic S- I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#&a\  P6G;u&P#"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\nBnnBsgg>\\7"yyyy\nlc\gnn\2uKI KKK*"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDdDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddxHxxHvppDXd<"dxtldpxxd"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%7%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lBTn(nBB(AZZ>>n%07\n!"IIIITTenn7TnB@;7>lBBn7fy.X80,ɒX\  P6G;Pg2a=5,u&a\  P6G;&P h2e=5,&e4  pG;&i7jC:,ynXj\  P6G;XPj7nC:,M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\nBnnBb\\>g\7"yyyy\njc\}nn\2  S' X    S'  Federal Communications Commission`(#kDA 99723 ă   yxdddy Pb #&a\  P6G;u&P#Before the Federal Communications Commission  S'"2Washington, D.C. 20554 ă  S`'#Xj\  P6G;ynXP##&a\  P6G;u&P#In the Matter of:) )  S'Complaint of CTV of Derry, Inc.)ppCSR4679M  S'v. Cablevision of Framingham, Inc.)ppMA0094 )  S'Complaint of CTV of Derry, Inc.)ppCSR4680M v. AR Cable Services, Inc.) )  S 'Must Carry Complaint hhCq )   S 'P ORDER ON RECONSIDERATION \  SX'X` hp x (#%'0*,.8135@8:2. ` ` In the original must carry complaints filed against Cablevision, signal strength  xmeasurements conducted by Cablevision purported to show that WNDS failed to provide a good quality  xsignal at the cable systems' principal headends. WNDS claimed that these signal strength tests were not  x^conducted according to Commission criteria and were thus inadequate to prove whether its signal met the  xCommission's signal strength criteria with regard to Cablevision's systems. In any event, WNDS  xZmaintained that it would bear the expense of any equipment necessary to ensure the delivery of a good  x&quality signal at the systems' headends. As a result, WNDS claimed that it was entitled to carriage on Cablevision's systems.  S"' e Ԋ3. ` ` The Bureau Orders agreed with WNDS and concluded that the cable operators in question  xhad failed to demonstrate that WNDS provided a signal of poor quality at the cable systems' principal  x*headends. The Bureau found that the signal quality tests conducted by the cable operators did not follow"H$,**88X#"  xgood engineering practices and the cable systems were ordered to commence carriage of WNDS within  S'sixty (60) days of the orders' release dates. {O@' x& ԍCTV of Derry v. AR Cable, 11 FCC Rcd 7641, 7642 (1996); CTV of Derry vs. Cablevision of Framingham,  yO '11 FCC Rcd 7645, 7646 (1996).   S' III.  ARGUMENTS  S8' e 4. ` ` In support of its reconsideration request, Cablevision argues that the Bureau's action in  xxgranting WNDS' must carry requests was based solely on broad allegations put forth by WNDS. Initially,  x*Cablevision states that it was unaware that the respondents had filed carriage complaints and thus did not  x&have the opportunity to file a response at that time. It points out that WNDS served copies of its two  xcomplaints on Cablevision's main regional office. According to Cablevision, WNDS did not serve the  xFramingham and Norwood/Westwood sytstems' General Manager, Assistant General Manager, Director  SH ' xof Programming or Cablevision's inhouse or FCC counsel.H " yO ' xk ԍPetition for Reconsideration at 4. This is fact confirmed by the certificates of services attached to WNDS' two must carry complaints. Due to an associated breakdown in  xZCablevision's document handling procedures by clerical staff, Cablevision states that it did not become  S ' xaware of WNDS's complaints until the issuance of the Bureau's orders granting the complaints.1 z {O'ԍId.1 In the interests of equity, Cablevision therefore requests that these proceedings be reopened.  S ' e 5. ` ` Cablevision argues that WNDS' initial complaints were untimely filed. It points out that  xxon November 21 and December 9, 1994, respectively, WNDS first requested carriage on the Framingham  S0' xand Norwood/Westwood systems.70  {O'ԍId. at 9.7 Cablevision alleges that it unequivocally denied these requests by  x^letters dated February 14 and 16, 1995, and that the deadlines for WNDS to file its must carry complaints  S' xwould have been April 15 and 17, 1995.IZ {O' x ԍId. at 10. Cablevision points out that if WNDS had based the filing of its complaints on the systems' failure  x to respond within thirty days of its requests for carriage, the deadlines would have been even earlier, i.e., February 19 and March 9, 1995.I Cablevision maintains that these February letters were the  x*triggering events for the must carry statutory time limits and not, as claimed by WNDS in its complaints,  xcCablevision's followup responses of December 21, 1995. Since WNDS did not file its must carry  xcomplaints until February 20, 1996, over ten months beyond the expiration of its statutory deadlines, Cablevision concludes that WNDS' must carry complaints were untimely.  S' e 6. ` ` Cablevision maintains that even if WNDS' complaints can be accepted, the station has  xQfailed to provide a signal of adequate strength to the cable systems' principal headends. In support of this  xcontention, Cablevision submits signal quality tests conducted on August 2, 1996 at the Framingham and  Sx' xNorwood/Westwood headends.?x  {O%'ԍId. at Exhibit 2.? Cablevision indicates that at the Framingham site, its system engineers  x@tested WNDS' signal and measured a signal strength for WNDS of only 80.2 dBm over the twohour"PR ,`(`(88"  S' xQtesting period, which is 35 dBm below the required levels.1 {Oh'ԍId.1 In addition, Cablevision states that the picture  x7quality was substantially deficient due to heavy snow. With regard to the Norwood headend, Cablevision  xMstates that a similar twohour test at an antenna height of over 110 feet above ground level produced a  xtsignal strength average of 88.87 dBm and the picture quality was so poor that system engineers could  S`' xbarely detect a picture due to heavy snow and substantial loss of color.8 `Z {OZ'ԍId. at 12.8 Cablevision states that although  xpit invited WNDS to participate in the August 2nd tests, no representative from the station appeared.  xQNevertheless, Cablevision indicates its willingness to retest the signal with the participation of the station.  xgGiven the poor quality of WNDS' signal at both system headends, however, Cablevision maintains that the Bureau should grant the instant reconsideration and dismiss WNDS' complaints.  Sp' e 7. ` ` In opposition, WNDS argues that its complaints were properly served on Cablevision's  xregional main office and that, therefore, Cablevision cannot claim that it did not receive notice of the  xcomplaints. WNDS states that it is not responsible for Cablevision's mishandling of its own documents  xZand such mishandling is no basis for reconsideration. In any event, WNDS points out that a March 1,  x71996 Commission public notice reported the filing of these two complaints which should have been more  xthan adequate to alert Cablevision and/or its counsel as to their existence. WNDS argues further that its  xinitial must carry complaints were timely filed and that the Bureau properly ruled in its original decisions  xthat Cablevision's December 21, 1995 letters constituted denial of the station's requests for carriage.  x^WNDS argues that the February letters relied on by Cablevision as the specific triggering event stated that  x"within the next week we will be retesting the signal strength for WNDS at our headend and we will be  xhappy to supply you with all pertinent information at that time," were clear indicators that Cablevision  S'was leaving open the possibility of changing its position should a retest of the signal prove positive.@  yOD'ԍOpposition at Exhibit B.@  Sh' e 8. ` ` In addition, WNDS maintains that the signal strength measurements provided by  xZCablevision do not foreclose its rights to must carry status. WNDS points out that in a November 27,  x1995 letter to Cablevision, it stated that "WNDS would like to engage a professional tower rigging  xcompany to install a four element array and transmission line on the tower for the purpose of testing the  x3signal. This will determine what type of receiving system will be required in order to achieve the plus  S' xkthree point seven five (+3.75) dBmV required for MustCarry status."m | yO'ԍFramingham complaint at Exhibit 3 and Norwood complaint at Exhibit 4.m WNDS states that because it was  xnever given the opportunity to install such equipment for the purpose of testing its signal, the  SP' xmeasurements provided by Cablevision are of no decisional significance.8 P  yO!'ԍOpposition at 6.8 WNDS argues that it has  xgrepeatedly stated its willingness to bear the costs of delivering a good quality signal to the Framingham  x7and Norwood/Westwood cable system headends, but Cablevision has refused to cooperate in this regard.  x3WNDS states that it is confident that, given the appropriate equipment, it can provide a signal of good" ,`(`(88"  xquality to Cablevision's principal headends. Finally, WNDS notes that, despite Cablevision's assertions,  S'it received no invitation from Cablevision to participate in the August 2, 1996 signal strength tests.7  {O@'ԍId. at 7.7  S' e ,9. ` ` Cablevision states in reply that its reconsideration petition is not an attempt to stall in  xfulfilling its must carry obligations, but addresses matters that were not addressed in the original  S8' xproceedings.38Z yO2'ԍReply at 2.3 Cablevision reiterates its assertions regarding the untimeliness of WNDS's original  xcomplaints and maintains that the complaints should be dismissed. In addition, while it does not accuse  x7WNDS of any intentional foul play nor does it argue that WNDS' service was not "technically" sufficient,  xCablevision argues that WNDS' general method of service contributed to the complaints' ultimate  x"misdirection and Cablevision's inadvertent lack of response. Moreover, Cablevision maintains that  xpointing to the Commission's March 1, 1996 public notice is also insufficient in that the public notice  xmerely identified the station and the cable communities involved. Cablevision states that since it serves  xover 800 communities in 18 states, it is understandable that Cablevision's counsel overlooked the filing.  xCablevision asserts that FCC practice and custom dictate that a cable system's FCC counsel should have  xreceived actual service of the complaints and WNDS' failure to do so precluded Cablevision from  xparticipating in the proceedings. Further, Cablevision contends that WNDS has failed, and continues to  xfail, to deliver a good quality signal to the systems' principal headends and the August 2nd signal strength  x*tests are clear proof of that failure. While WNDS alleges that it never received an invitation to participate  xQin the August 2nd tests, Cablevision states that in the spirit of fairness it invited WNDS to attend a further  S' xktest on August 30, 1996, and that this test was attended by WNDS' Engineering Consultant.7 {O'ԍId. at 9.7 Cablevision  xindicates that WNDS' consultant witnessed four separate signal measurements at each system headend over  xa twohour testing period and that the station's signal was measured using a preamplifier and band pass  S' xfilter supplied by WNDS.1| {O'ԍId.1 Cablevision states that the strongest reading generated by WNDS at the  Sh' xVFramingham headend was 53.73 dBm and 60.06 dBm at the Norwood headend.1h {O'ԍId.1 In addition the  xstation's picture quality showed an extremely grainy picture and/or heavy snow. Cablevision concludes,  xtherefore, that the Bureau should not award WNDS carriage simply because WNDS states, without proof, that it is capable of delivering a signal of sufficient strength to the cable systems' headends.  S' e W 10. ` ` In a motion to strike, WNDS argues that Cablevision's postreconsideration August 30th  xDsignal strength measurements should be disregarded. WNDS maintains that it is clearly impermissible for  SP' xa reconsideration petitioner to present new data in its reply.P {O#'ԍCiting e.g., 47 C.F.R. 1.45(b), 1.106(h); and Oklahoma Press Publishing Co., 1 FCC 2d 952 (1965). Were the Commission to improperly give  x<consideration to these late measurements, WNDS asserts that it should be given the opportunity to  xdemonstrate their flaws. In any event, WNDS argues that such measurements are irrelevant because it has  xalready stated its willingness to bear the expense of delivering a good quality signal. WNDS asks that Cablevision cooperate in the installation of the necessary equipment."2 ,`(`(88"Ԍ S' e 5ԙ 11. ` ` Cablevision asks the Bureau to reject WNDS's motion to strike. Because WNDS  xchallenged the validity of the August 2nd tests it initially submitted with its reconsideration, Cablevision  xstates that it arranged for the subsequent August 30th tests so that any miscommunications with WNDS  xxwould be corrected and that the record in this proceeding would include the results of a mutuallyattended  xsignal strength survey. Cablevision points out that WNDS provides no justification for the Bureau to  S8' xreject these subsequent tests other than to claim that they are "new data."L8 yO'ԍOpposition to Motion to Strike at 2.L Cablevision states that the only  xdifference between the August 2nd and August 30th tests is that both parties observed the latter test.  xFinally, Cablevision argues that while WNDS's willingness to bear the costs of delivering a good quality  xsignal to the systems' headends is not in dispute, the station's ability to actually do so is debatable as WNDS, to date, has failed to do so.  SH ' IV. DISCUSSION  S ' e  12. ` ` There are three points of contention in the case before us. The first two are procedural  xcԩ WNDS' alleged failure to properly serve Cablevision with copies of its must carry complaints and  xlCablevision's contention that WNDS' complaints were not timely filed. The third issue involves  xMCablevision's argument that WNDS fails to provide a good quality signal to its cable systems' principal headends. We address each of these issues below.  S' e  13.` ` We do not agree with Cablevision that WNDS' original complaints were untimely.  xCablevision maintains that the triggering event for the filing of WNDS' complaints was the February 14  xand 16, 1995 letters, which it alleges unequivocably denied WNDS carriage on its systems. However, it  xshould be noted that in those letters Cablevision indicated that it would be retesting WNDS's signal the  x&following week and would apprise WNDS of the results. Moreover, it is clear from the evidence that  xMthere were periodic negotiations between Cablevision and WNDS regarding the station's carriage from  xthat time until well beyond the December 21, 1995 date relied on by WNDS in the filing of its  S' xcomplaints.X yO' x ԍFor example with regard to the Framingham system, on November 27, 1995, WNDS requested permission to  {O' x install equipment for testing. CTV of Derry v. Cablevision of Framingham, at Exhibit 3. Cablevision's response  x on December 21, 1995 submitted the results of further tests and indicated that system engineers needed to do a  {OB' xD further analysis regarding WNDS' equipment installation. Id. at Exhibit 5. On January 9, 1996, WNDS pointed to  x poor engineering practices used in Cablevision's tests and requested that the system work with the station on  {O' xI resolving the signal quality issues. Id. at Exhibit 6. Finally, on February 13, 1996, Cablevision indicated a  {O'willingness to resolve the problems. Id. at Exhibit 7.  Therefore, we cannot conclude that there was a clearcut denial of carriage in February 1995  x^and WNDS' filing of its must carry complaints based on Cablevision's December 21, 1995 letter is timely.  Sx' e q 14. ` ` Second, we are not persuaded by Cablevision's arguments that its failure to participate in  xthe initial must carry proceedings stemmed from improper service of WNDS' complaints. Section 76.7(b)  x^of the Commission's rules requires that a "mustcarry complaint . . . shall be accompanied by a certificate  xtof service on any cable television system operator, franchising authority . . . or other interested person  S' x^who may be directly affected if the relief requested is granted."> yO&'ԍ47 C.F.R. 76.7(b).> WNDS satisfied this requirement when  x7it served its original complaints. Contrary to Cablevision's contention, there is no requirement that copies"0 ,`(`(88"  xDof complaints be served directly on cable system personnel and/or counsel. Moreover, the Commission's  xkpublic notice clearly identified the cable communities of Framingham, Norwood and Westwood. We will,  xMhowever, consider the information in Cablevision's reply. In this instance, we believe that WNDS will  x3not be prejudiced by our considering the matters raised in Cablevision's reply as it had the opportunity to fully respond to such matters.  S' e 15. ` ` Finally, we need not reach the issue of the sufficiency of the tests conducted by the  x<parties, since WNDS has committed to providing specialized equipment for delivery of its signal at  xQCablevision's headend. The Commission has stated that amplifiers and other equipment may be employed  S' xZto deliver a good quality signal to a cable system headend. The Commission, in Implementation of the  xCable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues  SJ ' x("Must Carry Clarification Order"), after reemphasizing 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  S 'whether the station's signal complies with the signal strength requirements . . .D  yO'ԍ8 FCC Rcd 4142, 4243 (1993).D  xWNDS, by committing to provide specialized equipment, satisfies its obligation to bear the costs  xassociated with delivering a good signal to Cablevision's principal headends. Consequently, we order  xCablevision to carry WNDS' signal on its Framingham and Norwood/Westwood cable systems at such  x7time as WNDS provides a good quality signal employing the specialized equipment it has offered to install at Cablevision's principal headends. We expect Cablevision and WNDS to work together in this regard.  SD' V. ORDERING CLAUSES  S' e  16. ` ` Accordingly, the petition for reconsideration filed on behalf of Cablevision of  S' xFramingham, Inc. and AR Cable Services, Inc., IS DENIED. Cablevision of Framingham, Inc. and AR  S' x7Cable Services, Inc. ARE ORDERED to commence carriage of WNDS on their cable systems serving  xFramingham and Norwood/Westwood, Massachusetts, within sixty (60) days after WNDS provides a good quality signal at the cable systems' principal headends.  S' e 17. ` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's  S'Rules.<X yO'ԍ47 C.F.R. 0.321.< ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` `  hhCqWilliam H. Johnson, Deputy Chief  S"'` `  hhCqCable Services Bureau  St#' X` hp x (#%'0*,.8135@8: