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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 Maranatha Broadcasting) CSR-4866-M Company, Inc. against Suburban Cable) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 1, 1997 Released: April 3, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Maranatha Broadcasting Company, Inc., licensee of Station WFMZ-TV (Ind., Ch. 69), Allentown, Pennsylvania, filed a "Complaint" with the Commission, pursuant to 76.61 of the Commission's Rules, claiming that Suburban Cable has refused carriage of its station on its cable system serving Coatesville, Pennsylvania and surrounding communities even though the station and Suburban's system are both located in the Philadelphia, Pennsylvania ADI. Suburban has filed an opposition to the complaint to which WFMZ-TV replied. SUMMARY OF PLEADINGS 2. In support of its request, WFMZ-TV states that it requested carriage on Suburban's system by letter dated September 30, 1996. WFMZ-TV indicates that in that letter it pointed out to Suburban that it is a local commercial television station within the meaning of 76.56(b) and 76.55(c), that its signal is not substantially duplicated by any other station carried by the system, and that its carriage on Suburban's system would incur no copyright liability. WFMZ-TV states that Suburban refused carriage in an October 8, 1996 response, alleging that the station did not qualify for carriage as it failed to provide a good quality signal at its system headend. However, WFMZ-TV points out that the showing provided by Suburban as part of its allegation of poor signal quality failed to include information to substantiate that the signal test measurements conducted by Suburban were done in a manner which complied with established Commission criteria. Moreover, WFMZ-TV maintains that it appears, from the information provided, that Suburban's test measurements were taken at an antenna height of only 30 feet, when the system uses a 350 foot tower to receive all of its other signals. WFMZ-TV argues that the Commission's engineering criteria requires that potential must carry signals be tested for reception by cable operators in the same manner as currently-carried signals. In any event, WFMZ-TV avers that it will willingly provide, at its own expense, any equipment necessary to ensure a good quality signal at Suburban's principal headend. WFMZ-TV concludes, therefore, that in view of the fact that Suburban's only objection to carriage of its signal appears to be due to poor signal quality, a deficiency which WFMZ-TV states it has promised to correct, the Commission should order Suburban to carry the station. 3. In its opposition, Suburban states that after receiving WFMZ-TV's request for carriage, it undertook signal strength measurements which indicated that the station's signal did not meet Commission criteria. Suburban points out that while WFMZ-TV was provided with these measurements it made no attempt to either contact Suburban to request additional information concerning the methodology used in the signal test measurements or to cooperate with Suburban in conducting further joint tests to determine if the station's signal deficiencies could be remedied. Instead, it filed a complaint directly with the Commission. Suburban states that it disagrees with WFMZ-TV's assumption that merely because it has offered to provide any "reasonably necessary" equipment to ensure a good quality signal that it has fully met its statutory obligations. Suburban argues that Section 614 of the Communications Act of 1934, as amended, does not require cable operators to "employ extraordinary measures or specialized equipment when making measurements for stations that are not currently carried," but only that systems use good engineering practices when measuring a station's signal. Suburban states that it has done this. Further, Suburban argues that WFMZ-TV has not taken any concrete steps to overcome its signal deficiency. Suburban also points out that WFMZ-TV has not attempted to introduce its own signal strength tests to establish that its signal does meet the criteria. Therefore, Suburban argues that WFMZ-TV has no real basis for its complaint. 4. In reply, WFMZ-TV objects to Suburban's late-filed opposition and argues that it should not be accepted. In any event, WFMZ-TV argues that the signal tests submitted by Suburban do not answer the question of WFMZ-TV's alleged poor signal quality since the tests performed by Suburban were not conducted in the same manner as that used to receive the system's other over-the- air signals. Moreover, in addition to the defects in Suburban's signal tests it previously mentioned, WFMZ-TV states that Suburban used a Scientific Atlanta model QCA-UHF wide-band antenna whose performance is suspect. Indeed, WFMZ-TV notes that, on other systems where the cable operator has claimed results similar to those of Suburban, the installation of a custom-cut antenna and a pre-amplifier achieved a 40 dB improvement in its signal. WFMZ-TV argues that it is evident that signal tests performed at a comparable antenna height and using the right equipment would produce a good quality signal at Suburban's headend. Finally, WFMZ-TV maintains that, while it might have wished for a more cooperative attitude from Suburban in resolving the signal quality issue, it felt that Suburban's unequivocal description of its signal as "inadequate" required it to initiate the instant proceeding. DISCUSSION 5. We will grant WFMZ-TV's petition. According to 76.55(e) of the Commission's Rules, commercial television broadcast stations, such as WFMZ-TV, are entitled to carriage on cable systems located in the same Area of Dominant Influence (or "ADI"). WFMZ-TV is located in the Philadelphia, Pennsylvania ADI, which is also where the communities served by Suburban are located. WFMZ-TV's complaint was timely filed pursuant to 76.7(c)(4)(iii) within 60 days of Suburban's refusal of carriage. While Suburban's refusal was based on an allegation of poor signal quality, we find that the engineering data it used to support its showing is insufficient for this determination to be made. The 1992 Cable Act provides that a cable operator is not required to carry a local commercial television station that does not deliver a good quality signal to the principal headend of a cable system. Because the cable operator is in the best position to know whether a given station is providing a good quality signal to the system's principal headend, we believe that the initial burden of demonstrating the lack of a good quality signal appropriately falls on the cable operator. In meeting this burden, the cable operator must show that it has used good engineering practices, as defined below, to measure the signal delivered to the headend. 6. With respect to the standard to be used to determine what constitutes a good quality signal, the 1992 Cable Act adopted a standard for determining the availability of VHF and UHF commercial stations at a cable system's headend: for VHF commercial television stations the standard is -49 dBm; for UHF commercial television stations the standard is -45 dBm. Generally, if the test results are less than -51 dBm for a UHF station, we have said that at least four readings must be taken over a two-hour period. Where the initial readings are between -51 dBm and -45 dBm, inclusive, we believe that the readings should be taken over a 24-hour period with measurements not more than four hours apart to establish reliable test results. 7. To measure a station's signal to see if it meets the Commission's requirements, a 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. 8. In our review, we note that the engineering showing provided by Suburban failed to include the age and most recent date of calibration of the equipment used in its tests. In addition, it should also be pointed out that the 30-foot measurement height used by Suburban in its test of WFMZ-TV's signal is apparently considerably less than that called for when compared to the normal placement of antenna on Suburban's 350-foot headend tower. When measured against our criteria, we conclude that the determination reached by Suburban is insufficient to demonstrate that WFMZ- TV's signal is not of "good quality" at its system headend. Additionally, we note that WFMZ-TV has stated that it can provide equipment which will assure that its station provides a good quality signal. We encourage Suburban and WFMZ-TV to work together in this regard. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED that the petition filed November 27, 1996, by Maranatha Broadcasting Company, Inc. IS GRANTED pursuant to 614 of the Communications Act of 1934, as amended (4 U.S.C. 534), and Suburban Cable IS ORDERED to commence carriage of Station WFMZ-TV within sixty (60) days of the release date of this order unless Suburban provides within fifteen (15) days of the release date of this order an engineering showing substantiating its claim of poor signal quality. 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