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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 The Matter of: ) ) Complaint of United Broadcast Group II, Inc.)CSR-4967-M ) v. ) ) North Texas CableComm, Ltd. ) ) Request for Carriage ) ) ) MEMORANDUM OPINION AND ORDER Adopted: July 18, 1997Released: July 21, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1.United Broadcast Group II, Inc., licensee of broadcast television station KINZ(TV), Channel 68, Arlington, Texas ("KINZ") has filed with the Commission a petition requesting mandatory carriage of its signal on cable systems operated by North Texas Cablevision, Ltd., ("Texas CableComm") in the communities of Azle, Emory, Glen Rose, Granbury, Joshua, Lipan, Meridian, Rockwall, Valley Mills, and Wills Point, Texas (collectively, the "Communities"). Texas CableComm filed an opposition to which KINZ 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. SUMMARY OF PLEADINGS 3.In its petition, KINZ asserts that its city of license and the Communities are all located within the Dallas-Fort Worth ADI. KINZ states that on December 11, 1996, it informed Texas CableComm of KINZ's election of mandatory carriage on Texas CableComm's cable systems serving the Communities. KINZ further states that on January 6, 1997, it sent a second request to Texas CableComm to which Texas CableComm replied. KINZ asserts that Texas CableComm, in its response, stated that it would be conducting tests of KINZ's signal and would contact KINZ once those tests were completed. KINZ offered its assistance to Texas CableComm in evaluating KINZ's signal. KINZ further asserts that Texas CableComm did not respond to KINZ's offer of assistance nor did it provide a written commitment to KINZ to carry the television station's signals on its cable systems serving the Communities in violation of Section 76.61(a)(2) of the Commission's rules. 4.In opposition, Texas CableComm states that KINZ's petition should be dismissed with respect to the community of Rockwall because Texas CableComm is currently carrying KINZ on its cable system serving that community. With regard to the other communities at issue, Texas CableComm states that it has determined that KINZ does not provide a good quality signal to 6 of the 10 communities at issue as required by Section 76.61(a) of the Commission's rules. Texas CableComm notes that six of the communities at issue are located outside of KINZ's predicted Grade B contour and are, on average, 70 miles from KINZ's city of license, Arlington, Texas. 5.In reply, KINZ asserts that Texas CableComm has failed to support its allegation that KINZ does not provide a good quality signal. KINZ notes that Texas CableComm did not submit to KINZ engineering reports or other information which would indicate whether the tests were conducted in accordance with sound engineering practice and the Commission's rules. KINZ further asserts that it is prepared to provide, at its own expense, any specialized equipment necessary to upgrade KINZ's signal to the required signal strength. KINZ maintains that it is a qualified local commercial television station which is entitled to carriage under Section 76.55(c)(3) of the Commission's rules. DISCUSSION 6.We will grant KINZ's request for mandatory carriage on Texas CableComm's cable system serving the Communities with the exception of the community of Rockwall because Texas CableComm is already carrying KINZ's signal in that community. Section 614(a) of the Communications Act states that each cable operator shall carry the signals of local commercial television stations. A local commercial television station is defined as any full power broadcast television station that is within the same television market as the cable system. It is undisputed that KINZ and Texas CableComm are located within the same ADI. 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 this case, Texas CableComm supplemented its opposition with additional engineering studies of KINZ's signal strength in 6 of the 9 communities at issue, namely, Emory, Granbury, Lipan, Meridian, Valley Mills and Wills Point. We note that Texas CableComm did not submit an additional engineering report for the community of Azle and did not submit any engineering reports for the communities of Glen Rose and Joshua. 7.A review of Texas CableComm's engineering study with respect to the 6 communities for which it conducted additional tests establishes that KINZ fails to provide a good quality signal to Texas CableComm's principal headends. However, we note that KINZ has offered to provide specialized equipment to Texas CableComm to improve the station's signal. KINZ maintains that with the use of specialized equipment, it can provide a good signal to Texas CableComm's headends consistent with Commission criteria. Moreover, KINZ has stated that it will bear the costs of installing such equipment to assure a good quality signal. The Commission has stated that amplifiers and other equipment may be employed to deliver a good quality signal to a cable system headend. The Commission, in the Must Carry Clarification Order, after re-emphasizing that it was the television station's obligation to bear the costs associated with delivering a good quality signal to the system's principal headend, stated: This may include improved antennas, increased tower height, microwave relay equipment, amplification equipment and tests that may be needed to determine whether the station's signal complies with the signal strength requirements . . . KINZ, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Texas CableComm's headends. Consequently, we shall order Texas CableComm to carry KINZ's signals in the event that KINZ provides good quality signal employing the specialized equipment it has offered to install at Texas CableComm's principal headends. 8.With respect to the communities of Azle, Glen Rose, and Joshua, we find that the determination made by Texas CableComm is insufficient to demonstrate that KINZ's signal is not of good quality. Since Texas CableComm has failed to show cause why KINZ should not be carried, we direct Texas CableComm to commence carriage of KINZ on its cable system serving the communities of Azle, Glen Rose, and Joshua. ORDERING CLAUSES 9.Accordingly, IT IS ORDERED that, pursuant to 614 of the Communications Act of 1934, as amended, 47 U.S.C. 534, and 76.55(c)(3) and 76.61(a)(2) of the Commission's rules, 47 C.F.R. 76.55(c)(3) and 47 C.F.R. 76.61(a)(2), the Petition for Special Relief [CSR-4967] filed by United Broadcast Group II, Inc. against North Texas CableComm IS GRANTED. 10.IT IS FURTHER ORDERED that North Texas CableComm SHALL COMMENCE CARRIAGE of the signal KINZ(TV) within sixty (60) days from the date that KINZ provides a good quality signal at Texas CableComm's principal headend on its cable systems serving Emory, Granbury, Lipan, Meridian, Valley Mills, and Wills Point, Texas. KINZ shall notify Texas CableComm in writing of its carriage and channel position elections within thirty (30) days of providing a good quality signal, 47 C.F.R.  76.56, 76.57, and 76.64(f) of the Commission's rules. 11.IT IS FURTHER ORDERED that North Texas CableComm SHALL COMMENCE CARRIAGE of the signal of KINZ(TV) within sixty (60) days from the release of this Order on its cable system serving the communities of Azle, Glen Rose, and Joshua. KINZ shall notify Texas CableComm in writing of its carriage and channel position elections on Texas CableComm's cable system serving those communities within thirty (30) days of this Order, 47 C.F.R.  76.56, 76.57, and 76.64(f) of the Commission's rules. 12.This action is taken pursuant to authority delegated by 0.321, 47 C.F.R. 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden Chief, Consumer Protection and Competition Division Cable Services Bureau