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Federal Communications Commission DA 99- 232 Before the
Federal Communications Commission Washington, D. C. 20554
In the Matter of: ) )
Complaint of Joan and Kenneth ) CSR- 5309- M Wright, licensees of WGBS- LP, )
Moyock, North Carolina ) )
Against Cox Communications, ) Currituck, North Carolina )
for Refusal to Carry WGBS- LP ) )
Request for Carriage )
MEMORANDUM OPINION AND ORDER
Adopted: January 22, 1999 Released: January 26, 1999
By the Chief, Consumer Protection and Competition Division, Cable Services Bureau:
INTRODUCTION
1. On September 14, l998, Joan and Kenneth Wright (" Petitioners"), licensees of low power television (" LPTV") station WGBS- LP, Moyock, North Carolina, filed a complaint, pursuant to Section
76.61 of the Commission's rules, against Cox Communications Hampton Roads, Inc. (" Cox") on the grounds that Cox had declined to carry the station. Petitioners' complaint alleges that WGBS- LP is a qualified LPTV
station within the meaning of Section 76.55( d) of the Commission's rules and is entitled to carriage on the cable television system operated by Cox in Currituck County, North Carolina. Cox filed an opposition, to
which Petitioners responded. 1
BACKGROUND
2. Section 614( a) of the Communications Act of l934, as amended, requires the carriage of "qualified" LPTV stations in certain limited circumstances. Under Section 76.56( b)( 3) of the Commission's
rules, promulgated pursuant to Section 614, a cable system that has insufficient full power television signals to reach its channel set aside shall carry at least one qualified low power station. 2 Thus, if a cable system is
carrying its full complement of commercial full power stations, it need not carry a LPTV station. A LPTV station that conforms to the rules established for LPTV stations in Part 74 of the Commission's rules will be
considered "qualified" only if: 1) it broadcasts for at least the minimum number of hours of operation required under 47 C. F. R. Part 73; 2) it adheres to Commission requirements regarding nonentertainment
1 Cox filed a Motion for Leave to Submit an Additional Pleading on January 5. l999. Petitioners opposed the motion
and filed a supplement in opposition on January 19, l999. In order to complete the record in this matter, we shall grant Cox's motion and accept its additional pleading, as well as Petitioners' opposition.
2 47 C. F. R. § 76.56( b)( 3).
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programming and employment practices and "the Commission determines that the provision of such programming by the station would address local news and informational needs which are not being
adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power television station's community of license;" 3 3) it complies with
interference regulations consistent with its secondary status; 4) it is located no more than 35 miles from the cable system's headend and delivers to the principal headend an over- the- air signal of good quality; 4 5) the
community of license of the station and the franchise area of the cable system are both located outside the largest 160 Metropolitan Statistical Areas (" MSAs"), ranked by population, as determined by the Office of
Management and Budget on June 30, 1990, and the population of such community of license on that date did not exceed 35,000; and 6) there is no full power television broadcast station licensed to any community
within the county or other political subdivision (of a State) served by the cable system. 5 Petitioners state that WGBS- LP, Channel 7, meets all of the above qualifying criteria under Section 76.55( d) of the Commissions
rules.
ARGUMENTS OF THE PARTIES
3. Petitioners state that the station was previously licensed to Hampton/ Newport News, Virginia, and was carried on a voluntary basis on Cox's Hampton, Virginia system, but that Cox informed
Petitioners that the station would be dropped no later than July 30, l998. Prior to this date, Petitioners notified the Commission that they were changing the station's community of license to Moyock, North
Carolina, and subsequently filed a request for special temporary authority (" STA") with the Commission. The STA requests authority to change the station's transmitter to a site less than 7 miles from the Cox
headend serving Currituck County, which will place a Grade A signal over the Cox headend. 6 Petitioners informed Cox on June 15, l998 that the station now met the definition of a qualified low power station with
respect to Cox's Currituck County system, and requested carriage on that system. 7 Cox rejected Petitioners'
3 Section 76.55( d)( 2) provides that the LPTV station must meet "all obligations and requirements applicable to full
power television broadcast stations under part 73 of [Title 47, Code of Federal Regulations], with respect to the broadcast of nonentertainment programming; programming and rates involving political candidates, election issues,
controversial issues of public importance, editorials, and personal attacks; programming for children; and equal employment opportunity; ..." 47 C. F. R. §76.55( d)( 2).
4 For purposes of this section, a good quality signal shall mean a signal level of -49 dBm for VHF signals at the input
terminals of the signal processing equipment, or a baseband video signal.
5 47 C. F. R. § 76.55( d).
6 Petition at 4.
7 Petitioners state that WGBS- LP: 1) operates 24 hours a day, seven days a week, 365 days a year; 2) meets all
obligations and requirements applicable to television broadcast stations under part 73 of the Commission's rules, with respect to programming and equal employment opportunity; 3) complies with interference regulations consistent with
its secondary status pursuant to Part 74 of the Commission's rules; 4) is located less than 35 miles the cable system headend; 5) is located, together with the franchise areas at issue, outside the largest 160 Metropolitan Statistical Areas
and WGBS- LP's community of license, Moyock, North Carolina, has a population of under 35,000; and 6) has no full power television station licensed to the county served by the cable system. While Petitioners concede in their petition
that WGBS- LP has not supplied a good quality signal to Cox's headend in the past, they contend that the station has cured its signal quality problem, and thus, complies with the requirement of supplying a good quality signal to the cable
system's headend. Petition at 2- 5.
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request on July 15, l998, based on signal quality and programming concerns. Petitioners state that the closest full power television stations are located in Norfolk, Virginia, approximately 25 miles from Moyock,
and argue that these stations do not provide regular news coverage of local events in Moyock and Currituck County. Petitioners contend that WGBS- LP provides the only local service to Moyock and surrounding
Currituck County. 8
4. In opposition, Cox explains that its Hampton Roads, Virginia cable system serves 390,000 subscribers in the Hampton Roads metropolitan area, and that the system serves 406 subscribers in two small
unincorporated areas of Currituck County, North Carolina, known as Knotts Island and Gibbs Woods, where WGBS- LP seeks carriage. 9 Cox contends that it conducted signal quality tests on June 30 and July 31, l998,
which demonstrated that the station's signal failed to meet the Commission's standard for signal strength at the system's headend. 10 In addition, Cox argues that three full power stations licensed to the Norfolk,
Virginia area provide Grade A service to Moyock and Currituck County and offer news and informational programming to the residents of these areas. Cox also contends that even if WGBS- LP is granted must- carry
status in Currituck County, the station's carriage rights would be limited to the de minimis service area of the cable system located in the county, and that the cable operator should not be obligated to carry the station in
those franchise areas served by the system which fall within the top 160 MSAs. 11 Cox states that its system has the technical capability to filter out carriage of WGBS- LP in such areas, and argues that if the Bureau
orders carriage of the station, such carriage should be restricted to Currituck County. 12 Cox also argues that the station does not provide an over- the- air signal to the residents of Moyock and surrounding Currituck
County, and will not do so even if it changes its technical facilities. Cox contends that it should not be required to carry a station purporting to provide programming of local interest when the station's signal is not
available over- the- air to the public it is licensed to serve.
5. In reply, Petitioners contend that Cox has not contested any of the criteria of Section 76.55( d) of the Commission's rules other than Cox's arguments regarding signal quality and local
programming. In regard to signal quality, Petitioners state that the Commission's Mass Media Bureau granted the station's request for STA on September 30, l998, and that the station has modified its facilities
and commenced operation under the newly authorized parameters. According to Petitioners, tests performed by station personnel indicate that the station produced a signal strength of -18dbmV at the Cox headend,
8 Petitioners state that the station broadcasts a locally produced one- half hour news program at 6: 00 p. m. and 11: 00
p. m., Monday through Friday, which provides substantial local news, information and weather to Currituck County residents. In addition, petitioners note the station's local coverage of Hurricane Bonnie, and emphasize the local nature
of the storm coverage which was not provided by the Norfolk stations. Petition at 7- 9.
9 Cox states that MediaCom, Inc. serves over 3,000 cable subscribers in Currituck County, including Moyock, and
the WGBS- LP has not requested carriage on MediaCom's system. Opposition at 6.
10 Opposition at 4.
11 Cox states that Currituck County is the only area served by its cable system that fall outside of the top 160 MSAs
according to the l990 census.
12 Petitioner cites Complaint of Larry L. Schrecongost, 12 FCC Rcd 13194, 13201 (1997), for the proposition that an
operator may filter out carriage of a LPTV station with mandatory carriage rights in those portions of a system which fall within the top 160 MSAs.
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well above the required minimum signal level. 13 Petitioners emphasize that in addition to broadcasting the only regularly scheduled news program directly solely to the residents of Moyock and Currituck county, the
station provides important local community information not available on full power stations carried by Cox's system. 14 Petitioners also provide letters from the Currituck County Sheriff and Superintendent of Schools
which indicate that WGBS- LP provides local coverage not available on full power stations carried by the cable system. Petitioners contend that Cox is attempting to add a new criterion to the definition of a
qualified LPTV station in evaluating the station's over- the- air coverage in addition to the requirement that the station deliver a good quality signal to the cable system's principal headend. Petitioners argue that such
an approach is contrary to the explicit language of Section 614 of the Act and the Commission's rules.
6. Petitioners also contend that to be carried on Cox's system only in Currituck County, and to have WGBS- LP's signal filtered out in those portions of the system which serve Chesapeake, Virginia
Beach, Norfolk and other Virginia communities, would contravene the intent of the l992 Cable Act. Petitioners argue that there is no direct guidance in the Act or the Commission's rules regarding carriage
rights of a LPTV station on a cable system serving areas both within and outside of the top 160 MSAs. Petitioners state that based on the STA and subsequent changes in the station's facilities, WGBS- LP is now
able to deliver a Grade A or B over- the- air signal to Chesapeake, Virginia Beach, Norfolk and other communities which they contend make up the station's economic market. Due to the high cable penetration
in those areas, Petitioners argue that the station will require cable carriage in these communities in order to attract the advertising and programming revenues necessary for the station to survive. 15
7. Cox contends in its supplement that although additional signal tests at its headend indicate that WGBS- LP currently meets the Commission's minimum signal strength requirements, the station still
fails in its obligation to provide a good quality signal because unacceptable carrier- to- noise (" C/ N") measurements and co- channel interference adversely affect WGBS- LP's picture quality. Cox states that it
conducted engineering surveys of the station's signal on December 17 and 22, l998, as delivered from its new transmitter location. Both tests demonstrated an adequate signal strength, but the December 17 test
measured an "unacceptable" C/ N measurement of 46 decibels, 16 and co- channel interference deltas measured at an "objectionable" 25 decibels. 17
8. Petitioners argue in their supplemental reply that Cox has misinterpreted the Commission's position on signal quality issues, and also fails to demonstrate that the station's signal is inadequate.
13 Reply at 4.
14 Petitioners cite the following examples: Highlights from the Currituck County Board of Commissioners Meeting
(once per month); Announcements for job openings in county agencies (at least once per week); Announcements from the Currituck County Department of Social Services regarding its food bank, health programs, etc.; Breakfast and
Lunch menus for county schools (daily); Schedules for after- school sports for county schools (weekly); and coverage of local school sporting events.
15 Reply at 14.
16 Cox states that in order to meet the Commission's technical standards, which requires a system signal- to- noise ratio
of not less than 43 decibels, Cox requires a minimum acceptable C/ N specification of 50 decibels from a broadcast signal received at its headend.
17 Cox Supplement at 4.
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Petitioners contend that once a station supplies a sufficient signal strength, a presumption exists that the station's signal quality is acceptable. Petitioners argue that Cox has no foundation in the Commission's rules
for determining that the station's C/ N ratio is insufficient, and that the Bureau has held that allegations regarding insufficient C/ N ratio are irrelevant in determining must- carry rights of stations. 18 In addition,
Petitioners contend that Cox's claim of an "objectionable" 25 decibel co- channel interference delta occurred only once out of seven readings, and that Cox has failed to overcome the presumption that the station's
admittedly sufficient signal strength also results in sufficient signal quality.
ANALYSIS AND DISCUSSION
9. We grant Petitioners' request for carriage on those portions of Cox's cable television system serving Currituck County, North Carolina. The evidence demonstrates that WGBS- LP is a qualified low
power television station in Currituck County, pursuant to Section 76.55( d) of the Commission's rules. Petitioners have demonstrated that the station provides local news and informational programming not
provided by other full power television stations. The station broadcasts a one- half hour locally- produced news program twice per weekday, which provides extensive local news coverage, and regularly broadcasts
important community information to residents of Currituck County. We find nothing in the record which demonstrates that this type of local coverage is forthcoming from the full power broadcast stations located in
Norfolk, Virginia. In addition, Cox has not demonstrated that the station provides an unacceptable signal at the system's headend. Furthermore, WGBS- LP's over- the- air coverage is not relevant to our analysis of
whether the station qualifies for carriage. The Act and the Commission's rules do not provide for an analysis of a LPTV station's over- the- air signal coverage in determining eligibility for carriage. 19
10. While we are ordering carriage in those portions of the system initially requested in the petition, i. e., Currituck County, we cannot accede to Petitioners' request that we order Cox to carry WGBS-LP
in those areas of the cable system where the cable operator has indicated that it may filter out or technically segregate the station's signal. 20 We do not agree with Petitioners that the Act and the
Commission's rules offer no guidance in regard to the carriage obligations of a cable operator in this situation. Both Section 614( h)( 2)( E) of the Act and Section 76.55( d)( 5) of the Commission's rules state that
a LPTV station will be accorded must- carry rights, inter alia, if the community of license of the station and the franchise area of the cable system are both located outside of the largest 160 MSAs. In this matter, the
cable system is comprised of franchise areas both within and outside of the largest 160 MSAs. Accordingly, the cable operator is obligated in this matter to carry WGBS- LP in that portion of its system outside of the
largest 160 MSAs.
18 Petitioners cite TCI Cablevision of Wyoming, 11 FCC Rcd 4054 (1996), where the Bureau held that allegations of
interfering carriers, insufficient C/ N ratio, and "grainy" picture were insufficient basis for denying carriage to station, and that TCI's arguments regarding C/ N ratio were deemed not decisional on the issue of carriage.
19 See 47 U. S. C. § 534( h)( 2), 47 C. F. R. §76.55( d).
20 See Implementation of the Cable Television Consumer Protection and Competition Act of l992, Broadcast Signal
Carriage Issues, 8 FCC Rcd 2965, 2975 (l993). In defining a television market, the Commission stated that a cable system providing service to two different markets, where technically feasible, may segregate the channels provided for
must- carry purposes to each community served. "Thus, where it is technically able to do so, the cable operator may offer different must- carry channel line- ups in different communities based on the locations of the particular
communities in the respective ADIs." Id. at 2976. We believe that this analysis for full power commercial stations also holds true in the instant matter.
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11. We cannot concede that the station should be accorded must- carry rights in portions of Cox's cable system outside of Currituck County based on the station's over- the- air coverage contours. We
agree with Petitioners that the station's over- the- air coverage of Moyock and Currituck County is irrelevant to its must- carry status in those areas, in that such an analysis would add a new criterion for qualification not
specified in the statute or the rules. However, to give credence to Petitioners' argument for expanded carriage rights outside of Currituck County, based on the station's coverage contours, would likewise add a
new dimension for carriage rights of LPTV stations not mentioned in either the statute or the rules.
12. With regard to Cox's contention regarding WGBS- LP's signal quality, the presumption is that satisfaction of the Commission's signal strength requirement will produce a good quality signal. 21 In the
instant matter, Cox concedes that WGBS- LP is complying with the Commission's requirement. Signal strength, however, is only one element of picture quality determination. When picture quality is at issue in
must- carry proceedings, the Commission must weigh the evidence presented by the parties to the case, but the burden of proof lies with the cable operator alleging poor quality. We find that Cox has not met this
burden. The Commission's technical standards cited by Cox require a cable system to maintain a 43 decibel C/ N ratio on its distribution plant, not that a station provide a 43 decibel signal to a system's headend. 22
Cox's contention that WGBS- LP's C/ N ratio of 46 decibels violated the cable operator's minimum acceptable C/ N specification of 50 decibels is not a basis upon which the cable operator can deny carriage. In addition,
Cox's contention of co- channel interference occurred in only one out of seven readings during two days of testing during which the cable operator contended that the station's signal quality was unacceptable.
ORDERING CLAUSES
13. Accordingly, IT IS ORDERED, pursuant to Section 614 of the Communications Act of l934, as amended, and Sections 76.55( d) and 76.56( b)( 3) of the Commission's rules, that the complaint filed
by Joan and Kenneth Wright, licensees of WGBS- LP, Moyock, North Carolina in File No. CSR 5309- M, IS GRANTED, to the extent indicated above, against Cox Communications Hampton Roads, Inc., and Cox
shall commence carriage of WGBS- LP within sixty (60) days of the release date of this order.
14. IT IS FURTHER ORDERED that WGBS- LP shall notify Cox 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 this order.
15. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. 47 C. F. R. Section 0.321.
FEDERAL COMMUNICATIONS COMMISSION
Deborah E. Klein, Chief Consumer Protection and Competition Division
21 Id. at 2990.
22 47 C. F. R. § 76.605 (a)( 7)( iii).
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Cable Sevices Bureau
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