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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 Butler University against) CSR-5054-M Time Warner Cable ) ) Channel Positioning Complaint ) 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. Butler University, licensee of Television Broadcast Station WTBU (Educ., Ch. 69), Indianapolis, Indiana, filed a must carry complaint asking the Commission to require Time Warner Cable to reposition Station WTBU to a mutually acceptable channel on its system serving Marion County, Indiana. An opposition to this complaint was filed on behalf of Time Warner Cable to which WTBU has replied. SUMMARY OF PLEADINGS 2. In support of its petition, WTBU argues that it is a qualified noncommercial educational station (NCE) which is currently transmitted on Time Warner's system on cable channel 13. By letter dated April 21, 1997, WTBU states that it informed Time Warner of a recurrent problem with the quality of its station's audio and video signals as received by Time Warner's subscribers. WTBU indicates that Time Warner acknowledged in reply that the station's signal was "subject to potential direct pickup problems," but contended this "ingress" problem could be remedied by the installation of optional converters in subscribers' homes. WTBU states that it sent a formal written request to Time Warner on June 27, 1997, requesting that its signal be moved from channel 13 to another mutually acceptable channel due to the proximity of an Indianapolis station, WTHR, which broadcasts over-the-air on channel 13. WTBU maintains that the proximity of WTHR's transmitter to Time Warner's headend often degrades the audio and video portions of WTBU's cable channel. In reply, WTBU states that Time Warner indicated that it currently had no unused channels on its basic tier and would be willing to discuss WTBU's repositioning after the system upgrade in early 1999. 3. WTBU argues that as a qualified NCE station it is entitled to be carried without material degradation and treatment equivalent to that provided to commercial television stations. It maintains, however, that it is not receiving such equivalent treatment due to the degraded audio and video signals subscribers receive when they view cable channel 13. In a declaration provided by WTBU, Dr. Kenneth C. Creech, General Manager of WTBU, states that, due to this signal degradation, WTBU has experienced difficultly in selling sponsorships within the Time Warner viewing area, has lost audience and been hampered in its ability to serve important segments of the audience. While Time Warner claims that the station's signal is "in compliance with FCC rules when it leaves [the system's] headend" and seems to conclude that WTBU's signal problems "develop at or around the customer's homes," WTBU argues that it has determined that the vast majority of the harmful interference it experiences is attributable to the incorrect placement of its signal on the cable system. In the five years since its signal problems began, WTBU states that it has attempted to resolves its differences with Time Warner but without success. Moreover, it does not feel that it should be required to wait until 1999 for a resolution. Therefore, WTBU requests that the Commission direct Time Warner to comply with the Communications Act and Part 76 of the Commission's Rules in its treatment of its signal. 4. In opposition, Time Warner states that the Commission's intervention in this matter is completely unnecessary and unwarranted as it has in place successful procedures to deal with the few interference complaints it receives from subscribers with respect to the quality of WTBU's signal. Time Warner states that WTBU is carried on cable channel 13 pursuant to 76.56 of the Commission's rules as neither channel positioning option dictated by 76.57 of the rules was applicable. Time Warner points out that in its Report and Order in MM Docket 92-259, the Commission stated that ". . . if signal degradation occurs between the cable system's principal headend and the subscriber's terminal, it is the sole responsibility of the cable operator to ensure that it is operating in full compliance with the Commission's technical standards." Time Warner states that the few instances of signal quality problems reported regarding WTBU's signal appear to be related primarily to the subscriber's terminal device and, in each instance, it has worked with the subscriber to resolve the problem. Moreover, to the extent that signal quality problems may be caused by spurious signal ingress, Time Warner indicates that it has taken immediate steps to identify and cure the cause of any such problems. In a major metropolitan market such as Indianapolis, with many television stations transmitting at high power close to various portions of the system's cable plant and a multitude of Ham radio, CB and pager transmissions, Time Warner states that there are many different cable channels that can be affected by signal ingress problems. However, Time Warner indicates that its system technicians immediately attempt to determine if the ingress occurs somewhere along the cable transmission route or is the result of direct pick-up interference (DPI) caused by older television receivers or VCR tuners which are not sufficiently shielded. It further indicates that it then makes the necessary repairs. 5. Time Warner continues that in its complaint WTBU fails to offer any concrete supporting information regarding the number of subscribers supposedly affected by its signal problems other than six calls described in the declaration of Mr. Mark E. Harris, attached to WTBU's petition. Indeed, Time Warner states that out of its 75,000 subscribers, these six complaints would amount to only 0.0008% of the system's total subscribers. In reality, Time Warner maintains that, out of 6,850 service calls over the past four months, only 461 (or 0.62% of total subscribers) concerned signal ingress problems with respect to four of the system's channels, including WTBU. Even after WTBU temporarily provided an on-screen name and phone number for Time Warner's Customer Operations Manager for subscribers to contact regarding picture quality, Time Warner maintains that it received only one such telephone call. Finally, Time Warner submits a declaration from the system's Vice President of Engineering, which notes that while WTHR, the signal most likely to interfere with cable channel 13 is strongest within 2-3 miles of its transmission tower, all of the cable system subscribers live beyond this radius and it is thus not surprising that the number of subscribers reporting problems has been minimal. 6. In reply, WTBU argues that Time Warner's claims that during the past four months a "de minimis" number of subscribers have complained about WTBU's poor signal quality is immaterial where it is clear, as here, that an interference condition on cable channel 13 has existed for years with adverse consequences for WTBU. Indeed, WTBU points out that Time Warner's Customer Operations Manager's Declaration admits that Mark E. Harris of WTBU "has referred complaints regarding ingress problems to me because he was tired of receiving such complaints and because the persons who called WTBU with complaints had informed him that they had called Time Warner Cable's predecessor, American Cablevision, and that our customer service representatives had referred them back to WTBU [emphasis supplied]." WTBU states that it is obvious that, due to such run-around, many cable subscribers who experience ingress problems on cable channel 13 do not necessarily report them to the cable operator. Finally, WTBU argues that it is not the promptness and efficiency of Time Warner's post hoc corrective measures which is at issue here. Rather, it concludes, it is whether Time Warner's flat refusal to eliminate the cause of these complaints is lawful. DISCUSSION 7. We find WTBU's arguments to be unpersuasive and its request to be relocated from cable channel 13 on Time Warner's Marion County cable system will be denied. Section 614(b)(6) of the Communications Act of 1934, as amended, permits a commercial television station such as WTBU to elect as its channel position on a cable system either a) its over-the-air channel number, b) the channel on which it was carried on July 19, 1985 or January 1, 1992, or c) such other channel number as is mutually agreed upon by the station and the cable operator. WTBU commenced operations on June 1, 1992. Since its over- the-air channel of 69 is not currently available on Time Warner's cable system and it had not commenced on-air service as of July 19, 1985 or January 1, 1992, it has been broadcast on cable channel 13 on the Marion County cable system since it first requested carriage. While WTBU argues that it is not good engineering practice to use cable channels on a system which are occupied by nearby full power over-the-air broadcast stations, it should be noted that it is a standard cable industry practice to use the RF radio frequencies, including the broadcasting spectrum assigned to local television stations, in order to maximize the number of channels available on cable television systems. Futhermore, we have no record evidence that Time Warner has violated the Commission's technical standards in carrying WTBU over cable channel 13. In addition, we find WTBU's conclusion that ingress problems due to its position on Time Warner's system as the cause of its interference problems to be inconclusive and unsubstantiated. After a review by our engineering staff of the technical information provided by Time Warner it appears more likely that the interference experienced results from direct pickup problems. Moreover, Time Warner appears to have followed well established cable industry practices in its efforts to remedy the interference referred to in this case. When problems occur due to improperly shielded customer premises equipment, the standard remedy is to provide a set-top converter. Time Warner has suggested this remedy in those instances where such interference has been reported. Finally, WTBU has provided no evidence to support its allegation that it has lost audience and sponsorships due to interference. ORDERING CLAUSES 8. Accordingly, the petition filed July 25, 1997, by Butler University IS DENIED in accordance with 614(d)(3) (47 U.S.C. 534) of the Communications Act of 1934, as amended. 9. 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