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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 McLaughlin Broadcasting, Inc.) against Charter Communications II LP ) CSR-5178-M ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 13, 1998 Released: April 16, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: 1. McLaughlin Broadcasting, Inc., ("MBI"), licensee of Television Broadcast Station WQHB (Channel 63), Sumter, South Carolina, has filed a must-carry complaint against Charter Communications II LP ("Charter") for that cable operator's failure to carry WQHB on its system serving Camden, South Carolina, and surrounding areas, even though the station and the cable communities are both located in the Columbia, South Carolina "area of dominant influence" (ADI). An opposition to the complaint was filed on behalf of Charter, to which Station WQHB has replied. 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 Arbitron's audience research organization. 3. MBI claims that it first notified Charter of its decision to elect must-carry status, rather than retransmission consent, by letter on September 12, 1997. MBI states that its letter further notified Charter that WQHB was conducting on-air programming tests and that the station intended to commence broadcasting of regular programming in the near future. MBI asserts that WQHB began operations on September 22, 1997. MBI contends that Charter did not respond to the station's initial notice of election and, by letter on October 17, 1997, MBI again requested that Charter provide a written commitment to carry the station's signal. Moreover, MBI states that it invited Charter to contact the station regarding any concerns about the station's facilities, programming, or signal. MBI, states that on November 21, 1997, for a third time, it contacted Charter to provide a written commitment to carry WQHB's signal. In the letter MBI states that it provided station programming information and broadcast times to assist Charter in acting on its request for carriage. MBI claims that Charter did not respond to the November 21, 1997 letter, and does not carry the Station's signal, nor has Charter provided MBI with a commitment, either written or oral, to carry the Station's signal in the future. 4. In its opposition, Charter argues that MBI's complaint should be denied because WQHB does not deliver a signal of sufficient strength to the System headend. Comcast attaches the results of signal tests which purport to show that WQHB fails to deliver a good quality signal. 5. In reply, MBI argues that Charter submitted two separate signal tests, the first conducted on December 19, 1997, and the second on January 6, 1998, which are wholly inadequate. MBI states that Charter's tests fall well short of the Commission's rules for its definition of "sound engineering practices". 6. We will grant MBI's complaint. 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. 7. In this instance Charter submitted signal strength studies which fail to show compliance with the Commission's requirements for use of sound engineering practices. Moreover, Charter failed to conduct the required number of signal strength tests as required by the Commission's rules. Additionally, the type of antennna is unknown; antenna range and radiation pattern is unknown; the calibration of the test equipment is more than a year old; there were no sketches or block diagrams to describe the methods used for processing; and the height of the antenna might be too low for a clear reception. Further, in the tests performed by Charter, it was not stated that the antenna was oriented for maximum signal or that it was oriented toward Sumter, South Carolina, the location of WQHB's transmitter and tower. We have previously stated that 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 the tests were made. When measured against these criteria, we conclude that Charter's signal strength tests are insufficient to demonstrate that WQHB's signal is not of good quality. We find, therefore, that WQHB is a qualified UHF station that is entitled to carriage on Charter's cable system. 8. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C. 534) that the petition filed by McLaughlin Broadcasting, Inc .("MBI") IS GRANTED. Charter Communications II LP ("Charter") IS ORDERED to commence carriage of television station WQHB(TV) within sixty(60) days of the release date of this Order. WQHB(TV) shall notify Charter in writing of its carriage and channel position elections ( 76.56, 76.57, and 76.64(f) of the Commission's rules) within thirty (30) days of the release date of this Order. 9. This action is take pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau