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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 ) ) Athens Broadcasting Company, Inc. ) against TCI of Decatur, Inc. ) CSR 5045-M ) Request for Carriage of WTZT-LP, Athens, Alabama ) 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. Athens Broadcasting Company, Inc. ("Athens"), licensee of low power station WTZT-LP, Athens, Alabama, filed a "Must Carry Complaint" seeking mandatory carriage of its signal by TCI of Decatur, Inc. ("TCI"). TCI filed an opposition to the petition, and Athens filed a reply. THE PARTIES' ARGUMENTS 2. According to Athens, it sent TCI a letter on April 18, 1997, formally requesting carriage on TCI's system serving Decatur, Alabama. Athens adds that during a meeting the previous day between WTZT's engineers and an engineer for TCI, along with his supervisor, they observed that WTZT's signal level remained above -45 dBm for about thirty minutes. TCI's engineer and his supervisor then agreed that their system already carried two other low power stations with signal quality inferior to WTZT. However, TCI responded to Athens' carriage request by letter dated June 2, 1997, in which it claimed that it had no obligation to carry WTZT because of WTZT's signal problems, and because TCI already carried two other low power stations, WMJN-LP, Priceville, Alabama, and WYAM-LP, Decatur, Alabama. Athens, however, contends that it is a qualified low power station, pursuant to  74.701-74.784 of the Commission's Rules, and that it meets the six Commission criteria for carriage enumerated in  76.55(d) of the Commission's Rules. According to Athens, WTZT has been operating 24 hours daily since June 1994. Athens adds that it broadcasts five hours weekly of qualified children's programming, and that it meets the Commission's other programming requirements and obligations for low power stations. Athens states that it addresses local issues and informational needs that the full power stations outside Limestone and Morgan Counties do not. Athens adds that it airs news three hours in the morning and two hours in the afternoon. Athens also states that it complies with the Commission's interference regulations, and that it is located within 35 miles of TCI's headend. Athens contends that WTZT delivers a good quality off-the-air signal to TCI's headend. According to Athens, no full power station is licensed to any community either in Limestone County or in adjacent Morgan County. Athens adds that the population of its city of license does not exceed 35,000, and that both it and TCI's franchise area were located outside the largest 160 metropolitan statistical areas on June 30, 1990. Since TCI has more than 35 activated channels, and since it has not demonstrated that either WMJN- LP or WYAM-LP is a qualified low power station, Athens contends that TCI is obligated to carry WTZT. Athens also notes that WTZT had a good quality signal on April 17, 1997, even though TCI now claims that the signal measured above -45 dBm four times during tests conducted exclusively by TCI personnel on May 15-16, 1997, and that it measured below that level three times during those tests. Athens maintains that these tests are vague and unsupported, adding that two other cable systems currently carry WTZT, including Cablevision at Huntsville, which has a headend three miles farther from WTZT than TCI's headend is, and that the other two cable systems have reported no signal quality problems. Athens also states that it has spent $10,000 to replace the antenna and related coaxial cable at TCI's headend, and that it has a construction permit to increase its power and to change its antenna. 3. In opposition, TCI contends that Athens' complaint should be dismissed because it has not demonstrated that it is a qualified low power station under the Commission's rules. Initially, TCI states that its 24 hour test conducted between May 15 and May 16, 1997, under the supervision of TCI's Technical Operations Manager, Morris Ted Whittington, demonstrated that WTZT did not maintain the Commission's requisite minimum signal level of -45 dBm since three of the seven measurements taken, or forty percent, were below that level. Likewise, on April 17, WTZT's signal level fluctuated between -45.15 dBm and - 44.65 dBm. TCI adds that WTZT's power was also insufficient during four previous tests. In addition, TCI notes that WTZT's signal also suffers substantial signal distortions and material degrations, including an overall noisy picture, audio with noticeable static, over modulation (as manifest by excessive brightness), and shot noise (appearing as white specs in the video), as demonstrated in a two hour tape TCI made between 5:07 pm and 7:10 pm on August 9, 1997. TCI notes that it has no way to correct overmodulation and adds that other problems WTZT has include ghosting, electrical interference, beats, audio in video, hum, and digital blocks. TCI adds that it has already allowed WTZT to install a new antenna at its headend which is specifically tuned to WTZT's assigned frequency, and that carriage of WTZT requires deletion of another channel that is channel locked on the cable system. Despite its efforts and the unreimbursed staff hours, however, TCI believes that its subscribers should not be subjected to carriage of a station with as poor quality as WTZT. TCI notes, by comparison, the good quality over-the-air signal of Station WAAY-TV (Channel 31), Huntsville, Alabama, under similar conditions and using identical equipment. Moreover, TCI notes that WTZT has not shown that its programs address local news and informational needs which are not adequately served by full power stations due to their geographic distance. TCI contends that WTZT's morning news program is actually a televised version of a radio call-in talk show broadcast by WZYP, a standard broadcast station owned by Athens, and that its afternoon news program is the televised version of a radio call-in show aired by WVNN, which is another standard broadcast station owned by Athens. TCI notes that these programs are already available to its subscribers off-the-air, and that the five full power television broadcast stations it already carries that are licensed to Huntsville adequately serve the local news and informational needs of its subscribers. TCI notes that one of the two low power stations it now carries, WMJN-LP, also serves its subscribers by providing local coverage of meetings of the Morgan County Commission and of the Decatur City Council, as well as by broadcasting basketball and football games from Decatur High School and from Austin High School, in addition to airing a program called "Valley Happenings" which deals with issues pertinent to the City of Decatur and to Morgan and Limestone Counties. Finally, TCI contends that Athens has failed to identify any children's programming it broadcasts or whether any of it serves the educational and informational need of children under sixteen. 4. In reply, Athens asserts that it is entitled to carriage by TCI, which Athens states has not shown that the other low power stations it currently carries are qualified to request mandatory carriage by TCI. Athens adds that TCI's measurements from the data TCI collected on May 15-16, 1997 demonstrates that WTZT had a median field strength of -44.95 dBm (or .05 dB greater than the Commission's -45 dBm threshold), and that it had an average field strength of -44.98 dBm (or .02 dB higher than the Commission's standard). Athens also notes that four of the seven measurements, or sixty percent, exceeded the Commission's requirements. According to Athens, a signal level variation of +/- .35 dB is de minimis and may be resolved by using a higher gain antenna. With complete line-of-sight between TCI's headend and WTZT's center of radiation, and the fact that the station's 64 dBu contour is close to TCI's headend, Athens contends that it must be assumed that the station delivers a good quality signal to the cable system's headend on a regular basis, and implementation of WTZT's proposed power increase should resolve any remaining doubts about it. However, Athens argues that comparing the signal of a full power station, such as WAAY- TV, to that of a low power station, such as WTZT, is meaningless, and Athens contends that the two hour tape TCI made at its headend in the rain on August 9, 1997, without anyone from WTZT present to observe the equipment used, the procedures employed, or the conduct of taping personnel is also unpersuasive. Athens notes that WTZT is carried by a cable system that is located three miles farther from the station than is TCI, and that off-air viewers in Decatur and in Hartselle have yet to complain about WTZT's signal, despite the fact that they too are farther south of TCI. Athens adds that during 1996-1997, WTZT aired over 200 hours of local events of particular interest to TCI's subscribers, and that TCI has yet to show how the full power stations it already carries do, in fact, provide coverage of news information pertinent to the City of Decatur or to Morgan or Limestone Counties. Finally, Athens states that WTZT meets the children's programming requirements and that it exceeds the Commission's three hour minimum by broadcasting eight hours weekly of core children's programming. DISCUSSION AND ANALYSIS 5. Pursuant to  614 of the Communications Act of 1934, as amended, and implementing Commission rules, low power television broadcast stations are entitled to assert mandatory carriage rights on certain cable systems whose headends are located within thirty-five miles of the station, provided, among other things, all of the conditions described in  614(h)(2) of the Act are met. Among other factors,  614(h)(2)(D) requires that a low power station seeking carriage deliver an over-the-air signal of good quality, as determined by the Commission, to the cable system's principal headend. The note to  76.55(d) of the Commission's Rules specifies that a good quality signal in this context means a signal level of -45 dBm for UHF signals (or -49 dBm for VHF signals). Moreover, the Bureau has previously held that good engineering practices mandate that in cases where test results are less than -51 dBm for a UHF station, there must not only be four readings taken over a two hour period, but readings must also be taken over a 24-hour period with measurements not more than four hours apart to establish reliable test results where the initial readings are between -51 dBm and -45 dBm, inclusive. Nothing in these provisions grants carriage rights to stations whose signal level sometimes meet the specified standard and sometimes do not meet it, even in cases where their median and average signal strength levels do meet the given standard. Since TCI's measurements on May 15-16, 1997 satisfactorily demonstrate that WTZT's signal strength frequently does not meet this standard, we must deny WTZT's carriage request. In view of our holding on this issue, it is unnecessary to resolve the other issues raised by TCI. ORDER 6. In view of the foregoing, we find that TCI has adequately demonstrated WTZT's poor signal quality at TCI's designated headend. 7. Accordingly, IT IS ORDERED, pursuant to  76.55(d) of the Commission's Rules, that the "Must Carry Complaint" (CSR-5045-M) filed July 18, 1997 by Athens Broadcasting Company, Inc. IS DENIED. 8. This action is taken pursuant to authority delegated by  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