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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 SKNJ Broadcasting Partnership) CSR-5058-M against TCI of New York, Inc. ) ) Request for Carriage of WHSE-TV ) MEMORANDUM OPINION AND ORDER Adopted: November 24, 1997 Released: November 26, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. SKNJ Broadcasting Partnership ("SKNJ"), licensee of television broadcast station WHSE- TV, Newark, New Jersey, has filed a must-carry complaint requesting that the Commission order TCI of New York, Inc. ("TCI New York"), operator of cable television systems serving the communities listed below, to commence carriage of WHSE-TV. TCI New York has opposed SKNJ's complaint, and SKNJ 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 the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing. ARGUMENT OF THE PARTIES 3. SKNJ states that on August 23, 1996 it formally elected must carry on TCI New York's cable system and on May 1, 1997, requested carriage on TCI New York's cable system. SKNJ asserts that it informed TCI New York that WHSE-TV and TCI New York's cable system were both within the New York ADI and that TCI New York had provided no valid reason for not adding WHSE-TV to the cable system. SKNJ also asserts that it has made a commitment to TCI New York to provide equipment necessary for its cable system to receive a good quality signal, but that none-the-less TCI New York refuses to carry WHSE- TV. SKNJ filed its must-carry complaint with the Commission on July 30, 1997. 4. In opposition, TCI New York submitted the results of signal strength studies for the purpose of showing that WHSE-TV fails to deliver a good quality signal to the Woodstock, Port Ewen and Poughkeepsie headends of its cable systems serving the relevant communities. TCI New York also provided information about the test equipment used to measure the signal strength of WHSE-TV at the system headends and the procedures followed in conducting the test. TCI New York states further that it intends to file a petition for special relief seeking to exclude the communities served by its systems from WHSE- TV's market. 5. In reply, SKNJ argues that because it offers to provide, at its own expense, any equipment necessary to deliver a good quality signal to TCI New York's cable system headend, the results of the signal strength measurements lack legal significance, and that its commitment warrants grant of the complaint. SKNJ asserts that TCI New York should not be excused from carriage of WHSE-TV simply because of a stated intention to file a market modification petition some time in the future. DISCUSSION 6. 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, it still may obtain carriage rights 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. The signal strength test reports provided by TCI New York show that SKNJ does not provide an off-air signal of -45 dBm or better to the headends of TCI New York's cable systems. However, we will grant SKNJ's complaint. SKNJ has made a commitment on this record to deliver an adequate signal to TCI New York's cable system headends serving the communities at issue here and to pay any associated costs, in accordance with 614(h)(1)(B)(iii) of the Communications Act of 1934. We will direct TCI New York to carry WHSE-TV within sixty (60) days after SKNJ installs the equipment necessary to provide a good quality signal to the principal headend of TCI New York's cable system. We expect TCI New York to cooperate fully in making any such installations that SKNJ may undertake at it's own expense. 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 complaint of SKNJ Broadcasting Partnership ("SKNJ") IS GRANTED. TCI of New York, Inc. ("TCI New York") IS ORDERED to commence carriage of television station WHSE-TV on the cable system serving Kingston Town, Esopus, Hurley, Kingston City, Marbletown, Ulster, Woodstock, Poughkeepsie City, Lagrange, Pleasant Valley, and Poughkeepsie Town, New York within sixty (60) days after SKNJ installs the equipment necessary to provide a good quality signal to TCI New York's headend of that cable system. 9. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau