*Pages 1--4 from Microsoft Word - 9123.doc* Federal Communications Commission DA 01- 1267 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of: Norwell Television, LLC v. Frontiervision Operating Partners, L. P., a subsidiary of Adelphia Communications Corporation Request for Carriage ) ) ) ) ) ) ) CSR- 5642- M MEMORANDUM OPINION AND ORDER Adopted: May 22, 2001 Released: May 23, 2001 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Norwell Television, LLC, licensee of television broadcast station WWDP, Norwell, Massachusetts (“ WWDP”), filed the above- captioned complaint against Frontiervision Operating Partners, L. P., a subsidiary of Adelphia Communications Corporation (“ Adelphia”), for its failure to carry WWDP on its cable system serving Amesbury, Massachusetts and surrounding environs. An opposition to this petition was filed on behalf of Adelphia to which WWDP replied. II. BACKGROUND 2. 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. 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 (continued…) 1 Federal Communications Commission DA 01- 1267 2 III. DISCUSSION 3. In support of its request, WWDP states that it is licensed to Norwell, Massachusetts, which is located within the Boston, Massachusetts DMA, as are the communities served by Adelphia. WWDP points out that although the Amesbury cable system has 54 usable activated channels, Adelphia only carries 12 full power commercial and 3 full power noncommercial stations. WWDP states that Norwell Television acquired ownership in June 2000 and, on or about October 17, 2000, it formally requested carriage on Adelphia’s Amesbury system. 3 WWDP states that Adelphia never responded to this request and that its failure to respond therefore would be considered a refusal of carriage pursuant to Section 76. 61( a)( 5)( ii) of the Commission’s rules. 4 WWDP states that its complaint is timely in that it was filed within 60 days of Adelphia’s failure to respond. 5 WWDP argues that it is a fully qualified local commercial television station, as defined by Section 76. 55( c) of the Commission’s rules, because its carriage will not cause increased copyright liability for Adelphia and it specifically agrees to pay for any equipment necessary to ensure the delivery of a good quality signal at Adelphia’s principal headend. 6 Given the fact that Adelphia is obligated to carry its signal, WWDP requests that the Commission order the system to commence carriage of WWDP immediately, particularly since, as a station providing Spanish-language programming, WWDP’s carriage would serve the public interest by increasing diversity. 7 4. In opposition, Adelphia argues that WWDP’s complaint should be dismissed or denied for the following reasons. First, Adelphia points out that the certificate of service accompanying WWDP’s complaint fails to include the affected franchising authorities as required by Section 76. 7(( a)( 3) of the Commission’s rules. 8 Adelphia notes that in Pentecostal Revival Association, Inc. v. Cablevision Industries of Middle Florida, Inc., the Commission ruled that because a petitioning station failed to served its complaint on the local franchising authority, its complaint was moot. 9 Adelphia maintains that even if WWDP attempts to correct this omission after the fact it would be immaterial because such a filing would not have a retroactive effect. 10 Second, Adelphia asserts that WWDP fails to provide a good quality signal to its principal headend and the station is therefore ineligible for carriage. Adelphia indicates that it conducted three separate test measurements of WWDP’s signal on two separate occasions and WWDP failed to deliver a signal greater than –85.7 dBm during any of these measurements. 11 And third, Adelphia states that, prior to the filing of its complaint, WWDP did not offer to be responsible for the costs of the equipment necessary to deliver a good quality signal. Indeed, Adelphia states that WWDP’s October 17 th letter requesting carriage falsely states that it delivered a good quality signal. Adelphia maintains that (… continued from previous page) Broadcast Signal Carriage Rules, Order on Reconsideration and Second Report and Order, 14 FCC Rcd 8366 (1999)(“ Modification Final Report and Order”). 3 Petition at Exhibit 1. 4 47 C. F. R. §76.61( a)( 5)( ii). 5 47 C. F. R. §76.61(( a)( 3)( iii). 6 47 C. F. R. §76.55( c). 7 Petition at 4. 8 47 C. F. R. §76.7( a)( 3). 9 16 FCC Rcd 85, 86 (1995), recon. denied, 10 FCC Rcd 5011 (1995). 10 See Pentecostal recon. at 5011. 11 Opposition at Exhibit A. 2 Federal Communications Commission DA 01- 1267 3 because WWDP failed to agree to accept the responsibility for costs prior to the filing of the instant petition, its complaint should be dismissed. While Adelphia states that it stands ready to cooperate with WWDP should the station desire to undertake joint signal measurements or take steps to improve its signal in the future, it asserts that this issue is separate from the subject complaint. 5. In reply, WWDP argues that Adelphia’s contention that the complaint should be dismissed because WWDP does not currently provide a good quality signal to the Amesbury headend is without merit because WWDP has specifically agreed to be responsible for the costs of delivering a good quality signal to the system. WWDP states that as long as it has made such a commitment, Adelphia is obligated to commence carriage of its signal once that equipment is installed. 12 Further, WWDP states that Adelphia’s reliance on WWDP’s failure to serve the franchising authorities of the communities served is unpersuasive, particularly as the Commission has repeatedly found that such a procedural error is not necessarily fatal and such proceedings should be decided on their merits. 13 Moreover, WWDP points out that Adelphia’s reliance on Pentecostal is misplaced. In that case, WWDP states, the petitioner not only filed its complaint a year late, but it failed to include any certificate of service at all. WWDP states that it has provided an amended certificate of service for not only the town of Amesbury, but the town halls of Merrimac and Salisbury, Massachusetts and South Hampton, New Hampshire, the other communities served by the Amesbury system. 14 WWDP maintains that this filing, coupled with the release of the Cable Services Bureau’s Public Notice announcing this proceeding, should cure any deficiency. 15 6. We grant KALO’s complaint. First, with regard to procedural issues, we agree with WWDP that its failure to include service to the cable communities’ franchising authorities was not fatal and we accept its subsequent filing of an amended certificate of service. We disagree with Adelphia’s assessment that such subsequent service should not be accepted and its reliance on Pentecostal in support. In that decision, the Commission did not accept the filing of a subsequent certificate of service because it was first offered as part of the petitioner’s reconsideration petition. That is not the situation here. WWDP has cured its deficiency within the context of this proceeding. 7. Second, a review of the signal strength test Adelphia conducted of WWDP’s signal indicates that it was not conducted pursuant to the Commission’s engineering criteria because the antenna used by Adelphia in its measurements was not oriented properly. As a result, we cannot conclude that Adelphia has proven that WWDP fails to achieve a signal strength above the minimum signal strength criteria established by the Commission. 16 In any event, we note that WWDP has agreed to bear the costs of any equipment necessary to ensure the delivery of a good quality signal. Section 76. 55( c)( 3) of our rules allows local commercial television stations which fail to meet the signal strength criteria to provide, at their own expense, whatever equipment is necessary to ensure the delivery of a good quality signal to a cable 12 See Shop at Home, Inc., 14 FCC Rcd 20591 (1999). 13 See e. g., West Valley Cablevision, Inc., 42 RR 2d 1371, 1371 (1978); KMSO- TV, Inc., 41 RR 2d 1241 (1977); and Harriscope Broadcasting Corp., 40 RR 2d 439 (1977), recon. denied, 43 RR 2d 1451 (1978). 14 WWDP stated that it was unsure exactly which communities were included in the Amesbury system and served Merrimac, Salisbury and South Hampton merely because their geographic proximity made them likely to be part of that system. A check of Commission records, however, confirms that these communities are indeed part of the Amesbury cable system. 15 WWDP notes that no franchising authority has filed comments in this proceeding. 16 For UHF stations, such as KRPV, the minimum signal strength criteria is –45 dBm at the input terminals of the signal processing equipment, or a baseband video signal. 3 Federal Communications Commission DA 01- 1267 4 system’s principal headend. 17 WWDP has made this commitment and by doing so will be eligible to carried by Adelphia when it provides a signal which meets the Commission’s signal strength criteria, Finally, we do not agree with Adelphia that WWDP’s failure to specifically state in its carriage request letter that it would be responsible for equipment costs would preclude the filing of the instant complaint. Sections 76. 57( d) and 76. 64( f) of the Commission’s require only that stations electing or requesting must carry status notify the cable system of its election and of its choice of channel position. A station at that point would not know a signal quality problem existed unless it was informed in a letter of response from the cable operator. Adelphia failed to provide such information to WWDP or to respond to its carriage request in any way. Therefore, WWDP’s statement as to its commitment to bear the costs of equipment within the context of its complaint was proper. In view of the foregoing, we find grant of WWDP’s complaint to be in the public interest. IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that the petition filed by Norwell Television LLC IS GRANTED pursuant to Section 614( d)( 3) of the Communications Act of 1934, as amended (47 U. S. C. §534). Frontiervision Operating Partners, L. P., a subsidiary of Adelphia Communications Corporation, IS ORDERED to commence carriage of WWDP on its cable system serving Amesbury, Massachusetts, and surrounding environs sixty (60) days from the date on which WWDP provides a good quality signal to Adelphia’s principal headend. 9. IT IS FURTHER ORDERED that WWDP shall notify Adelphia 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 it provides a good quality signal. 10. This action is taken pursuant to authority delegated by Section 0.321 of the Commission’s rules. FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Chief Consumer Protection and Competition Division Cable Services Bureau 17 47 C. F. R. §76.55( c)( 3). 4