Federal Communications CommissionDA00-905

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of:
USA Station Group Partnership of Atlanta
v. InterMedia
Request for Carriage / )
)
)
)
)
) / CSR-5468-M

MEMORANDUM OPINION AND ORDER

Adopted: April 20, 2000Released: April 24, 2000

By the Chief, Consumer Protection and Competition Division, Cable Services Bureau:

I.INTRODUCTION

  1. USA Station Group Partnership of Atlanta, licensee of Station WHOT-TV (Ch. 34), Athens, Georgia (“WHOT-TV”), filed the above-captioned complaint against InterMedia for its failure to carry WHOT-TV on its systems serving the communities of Grantville, Powder Springs and Peachtree City, Georgia. An opposition to this petition was filed on behalf of InterMedia Partners, a California Limited Partnership, to which WHOT-TV replied.

II.BACKGROUND

  1. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues (“Must Carry Order”), commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station’s market.[1] A station’s market for this purpose is its “designated market area,” or DMA, as defined by Nielsen Media Research.[2] A DMA is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns.

III.DISCUSSION

  1. In support of its request, WHOT-TV states that Athens, its city of license, is located in the Atlanta DMA, as are the cable communities served by InterMedia. WHOT-TV points out that its programming is not substantially duplicated by any other commercial television station the cable systems carry nor would its carriage increase InterMedia’s copyright liability. WHOT-TV states that, by letter dated October 1, 1999, it formally made a must carry election with regard to InterMedia’s systems.[3] Subsequently, WHOT-TV states that it demanded carriage on November 10, 1999, pursuant to Section 76.61(a) of the Commission’s rules.[4] When InterMedia failed to respond to its requests for carriage within the required thirty days, WHOT-TV filed the instant complaint. WHOT-TV argues that InterMedia has not claimed that it does not provide a signal of sufficient strength to any of its respective headends. To the extent that signal quality becomes an issue, however, WHOT-TV asserts that it will purchase and install, at its own expense, any equipment necessary to ensure the delivery of a good quality signal. In view of the above, and the fact that it is a fully-qualified signal pursuant to the must carry requirements, WHOT-TV requests that the Commission order InterMedia to commence carriage of its signal.
  2. In opposition, InterMedia argues that WHOT-TV’s complaint should be dismissed because the station does not deliver a signal of sufficient strength to the respective cable systems’ headends.[5] In addition, InterMedia maintains that not only is WHOT-TV geographically remote from the communities it serves, but WHOT-TV does not provide Grade B signal coverage to either Grantville or Peachtree City.[6] In view of these factors, as well as WHOT-TV’s failure to meet other market criteria, InterMedia concludes that WHOT-TV’s market should not include the cable communities in question. Should WHOT-TV prevail in its instant complaint, InterMedia maintains that it believes it would be appropriate to file a market modification petition to exclude WHOT-TV for must carry purposes.
  1. In the face of InterMedia’s signal strength allegations, WHOT-TV’s reply reasserts its intention to ensure the delivery of a good quality signal to InterMedia’s headends by supplying any equipment necessary, at its own expense. Moreover, WHOT-TV points out that its geographic distance, and indeed, the other market factors enumerated by InterMedia, are irrelevant to the present proceeding.
  2. We grant WHOT-TV’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 as a cable operator is not entitled to carriage.[7] 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.[8] Should a station fail to provide the requisite over-the-air signal quality to a cable system’s principal headend, its carriage nevertheless may not be foreclosed, because under our rules, a station may provide a cable operator with specialized equipment, at the station’s expense, which will improve the station’s signal to an acceptable quality at a cable systems’s principal headend.[9]
  3. In this instance, InterMedia submitted signal strength studies which indicate that WHOT-TV does not provide a good quality signal to the cable systems’ principal headends. Upon review, we find that it appears that in conducting its tests, InterMedia incorrectly oriented its antenna toward the receive site of WTBS in Powder Springs, Georgia, instead of toward the receive site of WHOT-TV in Athens, Georgia. We have previously stated that 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.[10] When measured against this criteria, we conclude that InterMedia’s signal strength tests are insufficient to demonstrate that WHOT-TV’s signal is not of good quality. Should InterMedia wish to conduct new tests, it should do so using the proper orientation for WHOT-TV’s signal.
  4. We also note that WHOT-TV has stated that, should it be necessary, it will provide any equipment necessary, at its own expense, to ensure the delivery of a good quality signal to InterMedia’s principal headends. The Commission has stated that specialized equipment may be employed to deliver a good quality signal to a cable system headend. WHOT-TV, by committing to provide specialized equipment, satisfies its obligation to bear the costs associated with delivering a good signal to InterMedia’s headends. Consequently, we order InterMedia to carry WHOT-TV when it supplies a good quality signal. We encourage InterMedia and WHOT-TV to work together in this regard.

IV.ORDERING CLAUSES

  1. Accordingly, IT IS ORDERED that the petition filed December 15, 1999, by USA Station Group Partnership of Atlanta IS GRANTED pursuant to Section 614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C. §534). InterMedia IS ORDERED to commence carriage of WHOT-TV on its Grantville, Powder Springs and Peachtree City, Georgia cable systems sixty (60) days from the date that WHOT-TV delivers a good quality signal to its cable systems’ principal headends.
  1. IT IS FURTHER ORDERED that WHOT-TV shall notify InterMedia 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 date in which it provides a good quality signal.
  2. This action is taken pursuant to authority delegated by Section 0.321 of the Commission’s rules.[11]

FEDERAL COMMUNICATIONS COMMISSION

Deborah Klein, Chief

Consumer Protection and Competition Division

Cable Services Bureau

1

[1]8 FCC Rcd 2965, 1976-2977 (1993).

[2]Section 614(h)(1)(C) of the Communications Act, as amended by the Telecommunications Act of 1996, provides that a station’s market shall be determined by the Commission by regulation or order using, where available, commercial publications which delineate television markets based on viewing patterns. See 47 U.S.C. §534(h)(1)(C). Until January 1, 2000, Section 76.55(e) of the Commission’s rules provided that Arbitron’s “Areas of Dominant Influence,” or ADIs, published in the 1991-1992 Television Market Guide, be used to implement the mandatory carriage rules. Effective January 1, 2000, however, Section 76.55(e) now requires that a commercial broadcast television station’s market be defined by Nielsen Media Research’s DMAs. For the must-carry/retransmission consent elections that took place on October 1, 1999, commercial television stations were required to make their elections based on DMAs. See Definition of Markets for Purposes of the Cable Television Broadcast Signal Carriage Rules, Order on Reconsideration and Second Report and Order, 14 FCC Rcd 8366 (1999)(“Modification Final Report and Order”).

[3]WHOT-TV states that while it did not make a formal election with regard to InterMedia’s Peachtree City cable system, Section 76.64(f)(3) of the Commission’s rules mandates that television stations that fail to make an election will be deemed to have elected must carry status.

[4]47 C.F.R. §76.61(a).

[5]Opposition at Exhibit 1.

[6]Id. at Exhibit 2.

[7]See Must Carry Order at 2990.

[8]47 C.F.R. §76.55(c)(3).

[9]See Must Carry Order at 2991.

[10]See Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues (“Clarfication Order”), 8 FCC Rcd 4142 (1993).

[11]47 C.F.R. §0.321.