Federal Communications Commission DA 96-1230

Before the Federal Communications Commission Washington, D.C. 20554

In re: ) ) Complaint of Maranatha Broadcasting ) Company, Inc. against ) CSR-4743-M Of Montgomecy County and Comcast ) Cablevision Corp. ) ) Request for Carriage )

MEMORANDUM OPINION AND ORDER

Adopted: August 2, 1996 Released: August 9, 1996

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

INTRODUCTION

1. On May 21, 1996, Maranatha Broadcasting Company,_ Inc., licensee of Station WFMZ-TV (Ind.,' Channel 69), Allentown, , filed a "Complaint" with· the Commission pursuant to §76.61 of the Commission's Rules claiming that, despite its requests, Comcast Cablevision ("Comcast"), operator of systems serving various Pennsylvania communities1 refused to carry the station even though Station WFMZ-TV and each of Comcast's systems is located in the Philadelphia Pennsylvania area of dominant influence (or "ADI"). This complaint is unopposed.

SUMMARY OF THE PLEADING

2. Station WFMZ-TV notes that it is a full power commercial television broadcast station and that no other television broadcast station substantially duplicates its signal. Station WFMZ-TV adds that prior to June 17, 1993, it had not sought mandatocy carriage on Comcast's systems, although it retained its must-carry rights, pursuant to the Commission's decision in the Clarification Order in MM Dockets No. 92-259, 90-4, and 92-295.2 However, following a major

'The communities served by Comcast Cablevision of Montgomery County ("CCMC") are Lower Marion Township, Narberth Borough, Bala Cynwyd, and portions of Montgomery County, while the Communities served by Comcast Cablevislc5n Corporation ("CCC") are Willow Grove, Abingdon Township, Althyn Borough, Cheltenham Township, Jenkintown Borough, Lower Moreland Township, Rockledge Borough, Upper Moreland Township, and portions of Montgomery County.

1 8 FCC Red 4142, 4144 (1993).

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facilities upgrade in November 1993 and passage of 1994 Satellite Home Viewer Act, which made carriage of its signal copyright for all cable systems in the Philadelphia ADI,3 it sought carriage both by CCC and by CCMC. In its letters requesting carriage dated Februacy 21 and February 22, 1996 to CCC and to CCMC, respectively, WFMZ-TV noted that it provided a good quality signal to the systems' headends, pursuant to §76.55(c)(3) of the Commission's Rules, but that it was willing to provide and to install, at its own expense, any equipment necessacy to provide a -45 dBm or better signal at both headends, including a custom-cut Channel 69 antenna and a Scala Model 80065/69 preamplifier for each headend. In these letters, WFMZ-TV noted that the systems already cany another television broadcast station licensed to Allentown, ·Pennsylvania, WLVT-TV, (Educ., Channel 39), which WFMZ-TV claims broadcasts with half its power, from a lower antenna height than WFMZ-TV, and from a location that is only 1,000 feet from WFMZ-TV's tower. Neither CCC nor CCMC added WFMZ-TV or responded to its letters.

DISCUSSION

3. Section 76.55(e) of the Commission's Rules specifies that the mark.et of a commercial television broadcast station, such as WFMZ-TV, is defined as its area of dominant influence (or "ADI"). A commercial station is entitled to request carriage on any cable system operating in that ADI. 47 C.F.R. §76.56(b). WFMZ-TV made its carriage request to CCC and to CCMC by letters dated February 21, 1996, and February 22~ 1996, respectively, but both Comcast systems failed to respond to WFMZ-TV within the thirty days allowed by §76.61(a)(2) of the Commission's Rules. Subsequently, WFMZ-TV filed a complaint within sixty days thereafter, as provided by §76.7(c)(4)(iii)(B) of the Commission's Rwes. WFMZ-TV is in the Philadelphia, Pennsylvania ADI, where Comcast's systems are also located; thus, WFMZ-TV is entitled to demand mandatory carriage on Comcast's systems.

4. A potential exception to the must-carry rule exists where a cable system has already .filled its must-cany complement by devoting one-third of its capacity to other must-cany signals. 4~ C.F.R. §76.56(b)(2). In this case;however, it does not appear that the systems are currently devoting a third of their activated channel capacity to mandatory carriage.4

5. Another potential exception to the mandatory carriage of a station with must-cany rights arises when a station demanding carriage fails to deliver a good quality signal to the system's principal headend. It is undisputed that WFMZ-TV places a good quality signal over Comcast's principal headends. In any event, we find that WFMZ-TV has satisfied this criteria for carriage by committing to provide and to install the equipment necessary to deliver a good quality signal to each of Comcast's principal headends, including custom-cut Channel 69 antennas

3 17 U.S.C. §Ill.

•station WFMZ-TV's claim is undisputed that CCC has 54 channels, of which 7 provide carriage for local broadcast stations. and that CCMC has 37 channels, of which 6 are devoted to transmitting local broadcast stations.

9186 Federal Communications Commission DA 96-1230 and Scala Model 80065/69 pre-amplifiers, if necessary. The 1992 Ca}?le Act requires only that a station " . . . agree to be responsible for the costs of delivering to the cable system a signal of good quality. "5 In this instance, WFMZ-TV has agreed to be responsible for installing all specialized equipment necessary to deliver a good quality signal. Comcast cannot, therefore, deny the station carriage on the premise that the Commission's signal quality standards have not been met.6

ORDERING CLAUSES

6. Accordingly, IT IS ORDERED, that the "Complaint" (CSR-4743-M) filed May 21, 1996, by Maranatha Broadcasting Company, Inc., licensee of Station WFMZ-TV (Ind., Channel 69), Allentown, Pennsylvania, IS GRANTED . in accordance with §614(d)(3) of the Communications Act of 1934, as amended (47 U.S.C. §534) and 47 C.F.R. §76.56(b).

7. IT IS FURTHER ORDERED, that WFMZ-TV shall notify the relevant cable systems in writing of its channel position elections (§76.57 of the Commission's Rules) within thirty (30) days of. the release date of this Memorandum Opinion and Order.

8. IT IS FURTHER ORDERED, that the affected cable systems shall commence - carriage of WFMZ-TV sixty (60) days from the date of such election.

9. 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 and Competition Division Cable Services Bureau

547 U.S.C. §534{h)(l)(B)(iii).

"We expect that Comcast will cooperate with WFMZ-TV's efforts to provide a good quality signal to the systems' headends.

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