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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 ) In re: ) ) Complaint of Maranatha Broadcasting ) Company, Inc., licensee of WFMZ-TV, ) Allentown, Pennsylvania ) CSR-4720-M ) vs. ) ) Harron Communications Corp. ) ) Request for Carriage ) ) ) MEMORANDUM OPINION AND ORDER Adopted: August 22, 1996 Released: September 5, 1996 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Maranatha Broadcasting Company, Inc. ("WFMZ-TV"), licensee of UHF independent television broadcast station WFMZ-TV, Channel 69, Allentown, Pennsylvania, has filed the above-captioned complaint requesting mandatory carriage of its signal on Harron Communications Corp. ("Harron"), a cable television system located at Malvern, Pennsylvania. Harron filed an opposition to the complaint and WFMZ-TV replied. ARGUMENTS OF THE PARTIES 2. In support of its complaint, WFMZ-TV states that during the period ending June 17, 1993, it did not elect to be carried by Harron's cable system pursuant to the retransmission consent provisions of Section 325(b)(1) of the Communications Act of 1934, as amended, and Section 76.64(a) of the Commission's rules. According to WFMZ-TV, it is therefore deemed to have retained its right to insist on carriage under Section 76.56(b) of the Commission's rules. WFMZ-TV states that it did not pursue carriage on Harron's cable system until it completed a major upgrade of its technical facilities on November 17, 1993, and until the 1994 passage of the Satellite Home Viewer Act which made WFMZ-TV copyright free to cable systems throughout the Philadelphia Area of Dominant Influence ("ADI"), to which it belongs. 3. On February 21, 1996, pursuant to Section 76.61(a) of the Commission's rules, WFMZ-TV states that it wrote to Harron requesting carriage under the must carry rules on a mutually agreeable channel and setting forth its reasons for believing that Harron was now required to carry WFMZ-TV's signal, including WFMZ-TV's willingness to bear the cost of acquiring and installing the equipment necessary to provide a -45 dBm or better signal at Harron's principal headend. WFMZ-TV states that on February 29, 1996, Harron responded to its request and asserted that WFMZ-TV's signal did not qualify under Section 76.55(c)(3) of the Commission's rules. WFMZ-TV then states that it filed its complaint within 60 days of Harron's February 29, 1996, denial of its demand for carriage, in accordance with Section 76.7(b)(4)(iii)(A) of the Commission's rules. 4. WFMZ-TV argues that Harron's claim that the station does not deliver a signal of sufficient strength to qualify for must carry status fails to meet the minimal requirements of the Commission's rules. WFMZ-TV states that Section 76.61(a)(2) of the Commission's rules require an operator denying carriage for signal quality reasons to provide a list of equipment used to make the measurements, the point of measurement and a list and detailed description of the reception and over-the-air signal processing equipment used, including sketches such as block diagrams and a description of the methodology used for processing the signal at issue. In addition to the specific requirements outlined in the rules, WFMZ-TV points out that the Commission has set additional standards for tests of off-air signals, such that if the test results are less than -51 for a UHF station then at least four readings should be taken over a two hour period. In addition, where the initial readings are between -51 dBm and -45 dBm, inclusive, then the readings should be taken over a 24-hour period with measurements not more than four hours apart. WFMZ-TV argues that Harron's letter does not divulge the precise results of its measurements, or provide any other evidence showing that its measurement methods comply with the Commission's requirements. 5. WFMZ-TV argues further that Harron's asserted but unproven failure of the station to provide a -45 dBm or better signal at the system's principal headend is a sufficient basis for denying carriage only if WFMZ-TV does not agree to be responsible for the costs of delivering a good quality signal or a baseband video signal. WFMZ-TV states that it has met its burden under the rules because it has promised to supply, at its expense, all of the equipment necessary for delivery of a good quality signal to the cable system's principal headend. 6. In opposition, Harron contends that the Commission should deny mandatory carriage to WFMZ-TV on the basis that the station's request is untimely. Harron states that contrary to WFMZ-TV's representation of the facts, the station sought carriage in 1993. Harron states that under WFMZ-TV's version of the facts, the station first requested carriage under the must carry rules on February 21, 1996. Harron then responded in writing on February 29, 1996, stating that WFMZ-TV's signal did not qualify for carriage because of poor signal quality. WFMZ-TV, in turn, treated this response as a denial of carriage and filed its complaint. 7. Harron states that WFMZ-TV neglects to note that on May 3, 1993, Harron notified WFMZ-TV that it would not qualify for carriage without indemnification for copyright liability, and that the station's signal strength was too weak to qualify for must carry purposes. In contrast to WFMZ-TV's allegation that it did not pursue carriage, Harron points to a June 10, 1993 letter in which it claims that WFMZ-TV clearly and unequivocally requested carriage. However, Harron notes that despite WFMZ-TV's insistence on immediate, compulsory carriage of its signal, the station, in the same letter, sought to reserve itself an open-ended deferral to renew its request. Harron states that WFMZ-TV sought to defer implementation of its signal carriage request until a modification in the station facilities was completed and/or there was a change in the copyright status of WFMZ-TV. 8. Harron argues that the relevant facts in this case demonstrate that WFMZ-TV's must carry complaint was filed "out of time" because the filing deadline passed on September 8, 1993. According to Harron, WFMZ-TV's letter of June 10, 1993 requesting carriage triggered the filing period for a must carry complaint. Harron states that it did not respond to WFMZ-TV's June 10 letter because it already notified the station that its signal was inadequate to qualify for must carry status through its May 3, 1993 letter. Harron goes on to state that regardless of its reason for not issuing a written response to WFMZ-TV's June 10 letter, where a cable operator fails to respond to a carriage request within 30 days, a station licensee wishing to pursue carriage must file a complaint within 60 days of that failure. Harron argues that by waiting almost three years beyond the cut-off date to file a complaint, WFMZ-TV forfeited its right to object. 9. Harron also contends that because WFMZ-TV's attempt in 1996 to obtain carriage is untimely, WFMZ-TV's argument that Harron failed to explain and verify the inadequacy of the station's signal in Harron's letter of February 29, 1996 is irrelevant. Harron states that it tested the signal strength as a courtesy. Harron argues that because this letter did not deny carriage, it is not a "specific event" under the Commission's rules, and Harron is not bound under Section 76.61(a)(2) of the Commission's rules to provide a detailed explanation of the signal's deficiencies. Similarly, Harron contends that WFMZ-TV's offer to supply, at its own expense, the equipment necessary for delivery of a good quality signal is also irrelevant and it now comes too late. 10. In reply, WFMZ-TV states that Harron sent two separate letters dated May 3, 1993 indicating that WFMZ-TV would not qualify for must carry purposes on systems serving "the Malvern area" and "the Kennett Square area." WFMZ-TV states that its June 10, 1993 letter that it sent to Harron only concerned the system at Kennett Square. WFMZ-TV states that Harron has not shown that WFMZ-TV ever made a carriage demand with respect to its cable system serving the "Malvern area." WFMZ-TV contends that even assuming for present purposes that the June 10, 1993 letter in question related to all of Harron's cable operations, the claim of untimeliness is not well founded. 11. WFMZ-TV argues that its June 10, 1993 letter acknowledged that, for the time being, its qualifications for must carry status would be considered problematic, both for signal quality and copyright reasons. WFMZ-TV states that its notification to Harron of its election of must carry status, rather than retransmission consent, was without prejudice to renewal of its request when any signal and/or copyright impediments to carriage were removed. According to WFMZ- TV, Harron is now trying to penalize the station for not seeking carriage rights that it did not have in September 1993. WFMZ-TV claims that now that its signal and copyright obstacles to carriage are removed, it is entitled to pursue carriage of its station on Harron's and all other cable systems in the Philadelphia market. DISCUSSION 12. We will grant WFMZ-TV's petition. We disagree with Harron and will not deny mandatory carriage to WFMZ-TV on the basis that the station's must carry request is untimely. WFMZ-TV's June 10, 1993 letter to Harron notified the cable operator of its election of must carry status and made it clear that it would be necessary to defer implementation of the signal carriage request because of signal quality and copyright problems. WFMZ-TV's June 10, 1993 letter was informational in nature, and not a demand for carriage which would trigger our complaint process procedures. We agree with WFMZ-TV that now that its signal and copyright obstacles have been removed, it is entitled to pursue carriage of its station on Harron's and all other cable systems in the Philadelphia market. As we stated in our Clarification Order, broadcast stations may assert their carriage and channel positioning rights at any time, so long as they have not elected retransmission consent. We acknowledged that, in particular, a broadcast station's ability to deliver a good quality signal may depend on factors that it cannot control. As such, we noted that a time limit on the exercise of must carry rights is not only contrary to the 1992 Cable Act, but unrealistic. 13. In the instant case, WFMZ-TV made efforts to preserve its must carry rights. Therefore, WFMZ-TV's February 21, 1996 request for carriage pursuant to Section 76.61(a) of the Commission's rules was not untimely. On February 29, 1996, Harron responded to WFMZ- TV's request and stated that the station did not deliver a good quality signal pursuant to Section 76.55(c)(3) of the Commission's rules. However, Harron did not provide the Commission with an adequate showing in order 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 used good engineering practices, as defined below, to measure the signal delivered to the headend. 14. 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 station signals, the standard is -49 dBm; for UHF commercial television station signals, 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. 15. 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. When measured against these criteria, we conclude that the determination made by Harron is insufficient to demonstrate that WFMZ-TV's signal is not of good quality. Additionally, we note that even though WFMZ-TV believes that it delivers a good quality signal to Harron's principal headend, the station has offered to bear the costs of providing a good quality signal in the event that Harron can demonstrate that its signal does not meet Commission standards. We therefore find that WFMZ-TV is a qualified UHF station that is entitled to carriage on Harron's cable system. ORDERING CLAUSES 16. Accordingly, IT IS ORDERED that the petition (CSR-4720-M) filed on April 22, 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 Harron Communications Corp. IS ORDERED to commence carriage of television broadcast station WFMZ-TV within sixty (60) days of it providing the necessary equipment to receive a good quality signal at Harron's principal headend. 17. This action is taken by the Chief, Consumer Protection and Competition Division, Cable Services Bureau, 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