DA 94-1533 Federal Communications Commission Record 10 FCC Red No. 1

provides a signal to Falcon©s principal headends of at least Before the -45dBm, as required by the Communications Act of 1934, Federal Communications Commission as amended.2 However, KRCA notes, Falcon sent the sta Washington, D.C. 20554 tion a letter suggesting that this was not the case, though without providing any evidence for this assertion. This, notes KRCA, is "in direct contravention of the Commis In re: sion©s rules and policies," citing, inter alia, the Clarification Order in MM Docket No. 92-259, 8 FCC Red 4142. 4143 Complaints of Fouce CSR-4272-M (1993) and Complaint of Greater Dayton Public Television against MW-l Cable Systems, 9 FCC Red 230 (1993). Never Amusement Enterprises, Inc. CSR-4273-M theless, states KRCA, despite Falcon©s failure to cooperate against Falcon Cable TV with KRCA. the station has offered to cover the costs of any equipment needed to provide a signal of adequate Thousand Oaks, California CA0850 strength to Falcon©s principal headends. Agoura Hills, California CA1187 3. In opposition to KRCA. Falcon states that its Agoura Malibu, California CA0249 Hills system contains 36 activated channels, 12 of which are already used to carry commercial must-carry stations, Requests for Carriage and that Falcon therefore need not carry KRCA pursuant to §614(b)(l)(B) of the Communications Act3 and §76.56(b)(2) of the Commission©s Rules.4 With respect to MEMORANDUM OPINION AND ORDER Thousand Oaks and Malibu. Falcon states that because it believed that KRCA was a distant signal for copyright Adopted: December 19, 1994; Released: December 27, 1994 purposes, "Falcon did not substantiate its claim of inad equate signal quality for those systems at that time . . . ." Falcon now submits copies of letters it sent to KRCA on By the Cable Services Bureau: July 28, 1994, summarizing signal quality tests performed by Falcon showing KRCA©s signal strength to be -69dBm at Falcon©s Thousand Oaks headend and -78dBm at Falcon©s INTRODUCTION Malibu headend. Accordingly, claims Falcon, it need not 1. On June 17. 1994, Fouce Amusement Enterprises, carry KRCA. Inc. ("KRCA"|, licensee of Television Broadcast Station 4. In reply, KRCA states that had Falcon timely in KRCA (Ind., Channel 62), Riverside, California, filed the formed the station that the Agoura Hills system was carry captioned petitions requesting mandatory carriage of its ing its full complement of must-carry signals. KRCA would signal on the cable television systems operated by Falcon not have had to file a complaint with respect to that Cable TV ["Falcon"] serving Thousand Oaks, Agoura Hills, system. KRCA urges the Commission to impose sanctions and Malibu. California. The petitions were placed on pub upon Falcon for its violations of §76.61(a)(2) of the Com lic notice on July 12, 1994. Falcon filed a consolidated mission©s Rules5 and concomitant frustration of the dispute opposition to these petitions on August 1, 1994, and KRCA resolution process promoted by the rule. KRCA notes that replied on August 15, 1994. inadequate signal strength is not a bar to carriage if, as KRCA has done, the station agrees to be responsible for the costs of delivering an adequate signal, citing SUMMARY OF PLEADINGS §614(h)(l)(B)(iii) of the Communications Act6 and 2. In support of its petitions, KRCA states that both its §76.55(c)(3) of the Commission©s Rules.7 KRCA submits city of license and the communities in question served by test results of its own that demonstrate it provides a signal Falcon are in the Los Angeles area of dominant influence strength of -31dBm at Falcon©s Thousand Oaks headend, (ADI). As a full power commercial television station, notes and a signal strength of -31dBm (horizontal polarization) KRCA. it is entitled to carriage on Falcon©s systems unless and -35dBm (vertical polarization) at Falcon©s Malibu the station fails to deliver a signal of sufficient strength to Falcon©s principal headends. 1 KRCA states its belief that it

1 In addition, KRCA notes that it would not be entitled to information provided by Falcon concerning its Agoura Hills carriage were it to be considered a distant signal pursuant to system©s channel complement listed just 10 commercial must- §lll(f) of the Copyright Act, 17 U.S.C. §lll(f), and did not carry stations carried in June 1993. KRCA states that Falcon agree to indemnify Falcon for any increased liability resulting never responded to the station©s letter of May 13, 1994, despite from the station©s carriage. While the Commission originally the requirement of §76.61(a)(2) of the Rules that a system designated the market in question as Los Angeles-San respond to a request for carriage within 30 days. KRCA further Bernardino-Corona-Fontana, California, in 1972, Cable Televi notes that in the Clarification Order in MM Docket No. 92-259, sion Report and Order, 36 FCC 2d 143, 220 app. A (1972), the supra, the Commission stated that notices that a station does not Commission has redesignated the market as Los Angeles-San deliver an adequate signal should reflect measurements already Bernardino-Corona-Fontana-Riverside. Report and Order in MM made, and that cable operators should respond to requests for Docket No. 93-207, 8 FCC Red 8472 (1993). Accordingly, Fal measurement information regarding signal quality disputes con©s objections to carriage of KRCA on grounds of increased within 3 business days of the request. In the present case, copyright liability are moot. Falcon admits it did not substantiate its allegations of poor 2 47 U.S.C. §534(h)(l)(B)(iii). See also 47 C.F.R. 76.55(c)(3). signal quality from KRCA until July 28, 1994, despite KRCA©s 3 47 U.S.C. §534(b)(l)(B). request for substantiation dated March 18, 1994. 4 47 C.F.R. §76.56(b)(2). 6 47 U.S.C. §534(h)(l)(B)(iii). 5 47 C.F.R. §76.61(a)(2). In addition, KRCA states that the only 7 47 C.F.R. §76.55(c)(3).

30 10 FCC Red No. 1 Federal Communications Commission Record DA 94-1533 headend.8 Accordingly, contends KRCA. Falcon©s obliga 8. In view of the foregoing, we find that grant of KRCA©s tion to carry KRCA©s signal in Thousand Oaks and Malibu petition CSR-4272-M with respect solely to Thousand is clear. Oaks, California is in the public interest, and also that grant of KRCA©s petition CSR-4273-M is in the public interest. DISCUSSION 5. With respect to Falcon©s Agoura Hills system, clearly Falcon is not required to carry more than its mandated ORDERING CLAUSES complement of must-carry signals. As Falcon©s Agoura 9. Accordingly, IT IS ORDERED, That the complaints Hills system contains 36 activated channels, the Commu filed June 17, 1994. by Fouce Amusement Enterprises, Inc. nications Act and our rules only require Falcon to carry ARE GRANTED to the extent indicated at paragraph 8, the signals of 12 local commercial television stations, supra, in accordance with §614(d)(3) of the Communica which KRCA concedes that Falcon currently does. Accord tions Act of 1934, as amended [47 U.S.C. §534(d)(3)|, and ingly, KRCA©s complaint must fail with respect to this in all other respects ARE DENIED. system. 9 10. IT IS FURTHER ORDERED. That Falcon Cable TV 6. Turning to KRCA©s complaint concerning Falcon©s SHALL COMMENCE CARRIAGE of the signal of KRCA Thousand Oaks and Malibu systems, we note that, accord forty-five (45) days from the release date of this Order on ing to §614(h) of the Communications Act of 1934, in Falcon Cable TV©s systems serving Thousand Oaks and order to qualify for must-carry rights, a UHF station such Malibu, California. This Order shall take effect unless Fal as KRCA must deliver to a cable system©s principal con Cable TV submits, within fifteen (15) days of the headend a signal level of -45dBm. Since the cable operator release date of this order, engineering data which dem is in the best position to know whether or not a given onstrates KRCA©s poor signal quality at Falcon Cable TV©s station is providing a good quality signal to the system©s principal headends serving Thousand Oaks, California, and principal headend, we believe that the initial burden of Malibu, California. demonstrating the lack of a good quality signal appro 11. These actions are taken pursuant to authority dele priately falls on the cable operator. In meeting this burden, gated by §0.321 of the Commission©s Rules. the cable operator must show that it has used good en gineering practices, as defined below, to measure the signal FEDERAL COMMUNICATIONS COMMISSION delivered to the headend. 10 7. In applying the above standard, we have determined that good engineering practices require that for UHF sta tions such as KRCA, if the initial test results show a signal level of less than -SldBm, then at least four readings must William H. Johnson be taken over a two-hour period. If the initial readings show a signal level between -SldBm and -45dBm, inclu Deputy Chief, Cable Services Bureau sive, then six readings should be taken over a 24-hour period, with measurements no more than four hours apart to establish reliable test results. See Complaint of Channel 5 Public Broadcasting, Inc. against WestStar Cable, 8 FCC Red 4953 (1993). In this instance, however. Falcon fails to submit any specific information concerning any of the number of readings taken including the number of read ings taken, time of day, and weather conditions nor spe cific equipment model numbers or full descriptions of equipment characteristics. Accordingly, Falcon©s summary engineering data submissions are insufficient to demon strate, consistent with Commission requirements, that KRCA©s signal strength is generally below the level of -45dBm required for UHF stations. See Complaint of Chan nel J Public Broadcasting, Inc. against WestStar Cable, supra. ©©

8 In addition, states KRCA, Falcon©s July 28. 1994 letter mis specific make and model numbers of the equipment used: (2) states the location of Falcon©s Thousand Oaks headend. description(s) of the characteristics of the equipment used, such Q We note, however, KRCA©s allegations of consistent behavior as antenna ranges and radiation patterns: (3) height of the by Falcon that manifests a strong disregard of our rules, includ antenna above ground level and whether or not the antenna was ing Falcon©s giving KRCA the impression that Falcon©s Agoura properly oriented; (4) the weather conditions and time of day Hills system did not carry its full complement of must-carry when the tests were done. signals, as well as Falcon©s failure to respond to legitimate 11 We note, too, in any event, that KRCA has offered to cover requests from KRCA in a timely fashion. Behavior such as this the costs of any equipment needed to provide a signal of ade frustrates informal dispute resolution and does not promote the quate strength to Falcon©s principal headends. See paragraph 2, efficient use of time and resources of this Commission and the supra. entities it regulates. 10 At a minimum, signal strength surveys should include the following information, in addition to that noted above: (1) the

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