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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 Community Television, Inc. ) CSR-5010-M against Comcast Communications, Inc. ) (formerly Scripps-Howard Cable) ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: April 15, 1998 Released: April 20, 1998 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Community Television, Inc., licensee of Television Broadcast Station WATC (Channel 57), Atlanta, Georgia, has filed a must carry complaint against Comcast Communications, Inc. (formerly Scripps-Howard Cable) for that cable operator's failure to carry WATC on its cable systems serving various Georgia communities. An opposition was filed on behalf of Comcast to which WATC has 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 ARGUMENTS 3. In support of its complaint, WATC states that it began regular broadcast operations on April 21, 1996 and informed Comcast by letter dated May 20, 1996 that it had elected must carry status in lieu of retransmission consent. WATC states that Comcast subsequently requested technical and programming information about the station and informed WATC that signal strength tests the system had performed at Comcast's Rome, Georgia headend indicated that the station did not provide a signal of sufficient strength at that headend site. WATC indicates that there followed a series of telephone calls with Comcast employees to address the signal quality concerns as well as several letters to Comcast which requested a written commitment regarding carriage, an offer on the part of WATC to supply any specialized equipment necessary to ensure a good quality signal at the Rome headend, and a request to engage in good faith negotiations to resolve any legitimate concerns regarding the station's carriage. WATC states that in a reply Comcast assured the station that it had not refused carriage, but considered itself to be in amicable negotiation with WATC regarding cable carriage. WATC asserts that, despite numerous occasions thereafter in which it held telephone conversations with Comcast personnel and was even informed that additional signal tests were performed, but not produced, it finally expressed its concerns in letters to Comcast that negotiations for carriage had not been successfully concluded and requested that the system live up to its prior commitment to negotiate in good faith. WATC states that a response from Comcast's counsel, however, indicated that the system was unaware of "any such negotiations." WATC maintains that the signal quality test Comcast conducted at its Rome headend site was not performed according to the specific engineering criteria required by the Commission and, therefore, cannot be relied upon. In any event, WATC argues that it has demonstrated its commitment to install any equipment necessary, at its own cost, to assure the delivery of a good quality signal and it requests that the Commission order the cable system to commence carriage of the station. 4. After a period in which the complaint was held in abeyance so that the parties could conduct further negotiations, WATC requested that its complaint be reinstated as Comcast has continued to resist its obligation to carry its signal. WATC states that Comcast conducted signal strength tests at Comcast's principal headend at Chamblee, Georgia and based on the results cable system engineers requested that WATC furnish the system with a high-gain antenna for use at the headend. WATC indicates that it immediately ordered the antenna and when delivery was imminent it contacted Comcast and requested that the system provide a commitment to a particular channel position and a launch date. However, WATC maintains that in several separate communications Comcast either refused to discuss the matter or stated that it would not cooperate with WATC in expediting subscriber notification and identification of a channel position. WATC states further that the high-gain antenna, purchased at Comcast's recommendation, has already been installed and the station delivers a signal to the Chamblee headend which is substantially better than the minimum required by the Commission. In addition, WATC maintains that Comcast continues to ignore the issue of carriage on the other headends on which it has requested carriage. In light of Comcast's refusal to cooperate and fulfill it must carry obligation, WATC requests that the Commission expedite resolution of its complaint. 5. In opposition, Comcast argues that WATC's complaint contains inaccurate assertions and should be dismissed as either moot or premature. Comcast states that, despite WATC's allegations, the main problem with carriage is the station's poor signal and the station's unrealistic expectations. For instance, Comcast points out that WATC's apparent outrage that the cable system failed to commit to carriage when the delivery of its antenna was "imminent" was premature, particularly as cable operators are not required to commence carriage of station prior to the delivery of a good quality signal. Comcast indicates that after WATC's antenna was finally installed in February 1998, signal tests revealed that WATC finally met the burden of delivering a good quality signal to the system's Chamblee headend. Moreover, at that time, Comcast states that its system's Technical Manager advised WATC that it should confer with the system manager as to channel positioning and related issues since carriage of WATC would necessitate the removal of a currently-carried station. However, for some reason, Comcast states that no one from WATC contacted the system about this matter and nothing further was heard until Comcast was informed the station would seek a ruling on its pending complaint. In any event, Comcast maintains that in its opinion, the signal carriage issue has been resolved with regard to the Chamblee headend and it is prepared to commence carriage of WATC within 30 days of completing subscriber notification. With regard to WATC's assertion regarding the cable operator's other headends, Comcast argues that there is no evidence that WATC has made any efforts to provide an adequate signal to any Comcast headend other than Chamblee, a system which, ironically, is not even listed in WATC's complaint. It notes, however, that system engineers conducted tests of WATC's signal at the Rome, Calhoun, Dallas, Villa Rica, Whitesburg and Mt. Zion principal headends and in each case WATC failed to provide an adequate signal. 6. Although Comcast states that the results of these tests were communicated to WATC and arrangements were made for WATC's engineers to visit these headends to verify the results, WATC has since cancelled the appointment and no rescheduling has taken place. Comcast asserts that, as WATC has neither conducted confirmation tests, nor added any specialized equipment to the other headends, it is premature for the station to seeking a ruling on carriage at these sites. 7. In reply, WATC argues that, despite Comcast's admission in its opposition that WATC provides a good quality signal to its Chamblee headend, and thus is entitled to carriage, the cable system still has not commenced carriage or even the process of subscriber notification. Moreover, WATC states that attempts to repeatedly contact Comcast by telephone have been unsuccessful. WATC maintains that it is evident that the cable system will never carry the station until ordered to do so by the Commission. Further, WATC argues that Comcast's claim that the station's signal is deficient at the system's other headends is unsupported by the record and Comcast has resisted any offers to work together to resolve the signal strength issues. WATC maintains that the signal strength tests submitted by Comcast in its opposition are insufficient because a) Comcast used an antenna cut to channel 36 when WATC broadcasts on channel 57; b) except for the test at the Mt. Zion headend, there is no accurate description of the transmission line employed; c) there is no indication of whether the testing equipment has ever been calibrated; d) there is no block diagram or other description of how the tests instrumentation was arrayed; e) there is no description of the methodology employed; and f) there is no indication that the test equipment used or the height of the antenna is similar to that used to receive similar UHF stations. In any event, WATC points out that it is a qualified local commercial station entitled to carriage on Comcast's various headends and has a written commitment to provide any specialized equipment necessary to assure the delivery of a good quality signal. DISCUSSION 8. We will grant WATC's petition in regard to Comcast's cable systems serving the communities Rome, Calhoun, Floyd, Tallapoosa, Gordon, Dallas, Paulding, Hiram, Fairmount, Plainville, Haralson, Carroll, Whitesburg, and Mt. Zion, Georgia. With regard to the Chamblee cable system, although Comcast states, as pointed out in its opposition, that it has tested WATC at Chamblee's principal headend and stands ready to carry the signal there, we note that that particular system was not listed as part of WATC's instant complaint nor does there appear to be any other pending must carry complaint relative to this system. Neverthess, Comcast has admitted that WATC's signal is adequate at Comcast's Chamblee headend. It further states that it stands ready to commence carriage of WATC on its Chamblee system. Consequently, we will order Comcast to carry WATC on its Chamblee system. With regard to the listed communities, we note that Comcast has not conducted engineering tests at its various headends in response to WATC's request for carriage in accordance with accepted Commission standards. Since the cable operator is at the outset in a superior position to know whether or not a given station is providing a good quality signal to the system's principal headend, we believe that the initial burden of demonstrating a lack of a good quality signal appropriately falls on the cable operator. In meeting this burden, the cable operator must show that it has used good engineering practices to measure the signal delivered to the headend. To measure a station's signal to see if it meets the Commission 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. While the Commission does not specify which type of antenna must be used to determine signal strength, a cable operator is required to take measurements with "generally accepted equipment that is currently used to receive signals of similar frequency range, type or distance from the principal headend. In addition, a cable operator must conduct multiple signal quality tests to ensure accurate results. 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. In the instant case, Comcast failed to provide the most recent calibration dates of the equipment it used nor how the antenna in the test was oriented. Without complete and accurate information provided by Comcast in conformance with our criteria, we cannot conclude that WATC provides a poor quality signal at Comcast's principal headends. 9. We also note that WATC has offered to provide any specialized equipment necessary to Comcast to ensure the delivery of a good quality signal. Moreover, WATC has stated that it will bear the costs of installing such equipment to assure a good quality signal. The Commission has stated that specialized 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. . . WATC, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to Comcast's headends. We expect Comcast and WATC to work together in this regard. In any event, Comcast, no later than 15 days after any necessary specialized equipment is provided by WATC, shall notify WATC regarding the quality of its signal at Comcast's various subject principal headends. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED, that the petition filed on behalf of Community Television, Inc. IS GRANTED pursuant to 614 of the Communications Act of 1934, as amended (47 U.S.C. 534). Comcast Communications, Inc. IS ORDERED to commence carriage of Station WATC in the communities of Rome, Calhoun, Floyd, Tallapoosa, Gordon, Dallas, Paulding, Hiram, Fairmount, Plainville, Haralson, Carroll, Whitesburg, and Mt. Zion, Georgia, sixty (60) days from the date that WATC provides a good quality signal to Comcast's principal headends. WATC shall notify Comcast 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 providing a good quality signal. 11. IT IS FURTHER ORDERED, that Comcast shall commence carriage of Station WATC on its Chamblee, Georgia, cable system within sixty (60) days of the release date of this Order. WATC shall notify Comcast 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. 12. IT IS FURTHER ORDERED, that Comcast shall notify WATC within fifteen (15) days after the provision of any necessary specialized equipment by WATC of that station's signal quality at its various principal headends. 13. 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 & Competition Division Cable Services Bureau