**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of:                | *  | CSR-5651-M                   |
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| Paxson Boston License, Inc. v.   | ** |                              |
| RCN-BecoCom, LLC                 |    |                              |
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| Request for Mandatory Carriage   | *) |                              |
| of WPXB TV,                      | ** |                              |
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| Merrimack, New Hampshire         | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: January 22, 2003 Released: January 23, 2003**

By the Deputy Chief, Policy Division, Media Bureau:

#  {#section .unnumbered}

# INTRODUCTION

1.  Paxson Boston License, Inc. ("Paxson"), licensee of television
    broadcast station WPXB TV, (Channel 60) Merrimack, New Hampshire
    ("WPXB") filed, on February 9, 2001, the above-captioned must carry
    complaint against RCN-BecoCom, LLC ("RCN) for failing to carry WPXB
    on its cable systems serving Boston, Massachusetts and the
    surrounding communities. Thereafter, the parties filed two motions
    requesting additional time for RCN to file its answer to the
    complaint. This additional time was to allow for further
    investigation and possible resolution of the complaint. On April 3,
    2002 Paxson filed a Status Report and Notification of Resumption of
    Pleading Cycle. RCN filed an answer to which Paxson replied. For the
    reasons discussed below, we grant WPXB's must carry complaint.

**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.

# DISCUSSION

3.  Paxson states that it requested carriage of WPXB on cable systems
    operated by RCN on November 13, 2000.[^3] RCN responded that WPXB's
    signal quality was insufficient to qualify for must-carry status on
    RCN's Boston, Massachusetts cable system, based on tests conducted
    at RCN's headend.[^4] Paxson asserts that WPXB does qualify for
    carriage because the cable community and the station are located
    within the same DMA[^5] and because even if the station does not
    currently deliver a good quality signal to the system's principal
    headend, Paxson agrees to be responsible for the costs to do so.[^6]

4.  After the complaint was filed, the parties filed two requests for
    extension of time for RCN to file its answer.[^7] On April 3, 2002
    Paxson requested resumption of the pleading cycle and RCN filed its
    answer to Paxson's complaint. First, RCN states that the results of
    its tests indicate that WPXB's signal is inadequate to qualify for
    carriage and that during the past year when this proceeding was in
    abeyance, Paxson took no steps to deliver a quality signal.[^8] RCN
    states that it directed its employees to cooperate with Paxson but
    that nothing was accomplished. RCN also asserts that Paxson failed
    to meet its burden to provide an adequate signal and that this
    failure forced both RCN and the Commission to expend further time,
    expense, and resources in litigating this complaint. RCN requests
    that the Commission order Paxson to bear the costs of preparing
    RCN's answer and urges the Commission to deny the complaint pursuant
    to the doctrine of laches.[^9] Finally, RCN notes that it currently
    has no channel space to accommodate WPXB on its Boston system and
    that reconfiguring its basic service tier would impose substantial
    per subscriber costs.[^10]

5.  In reply, Paxson states that the fact that WPXB does not provide a
    good quality signal at the RCN headend does not disqualify it from
    carriage when Paxson agrees to be responsible for the costs of
    providing such a signal.[^11] Paxson also asserts that RCN fails to
    provide any legal support for its position that the complaint should
    be dismissed because of the doctrine of laches and argues that the
    only delay in this proceeding occurred as a result of the two
    motions for extension of time for RCN to file its answer.[^12]

6.  We find that WPXB qualifies for carriage on the RCN Boston,
    Massachusetts cable systems. First, WPXB meets the requirement of
    Section 76.55(e) of the Commission's rules that commercial
    television broadcast stations be located in the same DMA as the
    cable system on which they seek carriage. Second, RCN has not met
    its initial burden to show that WPXB does not provide an adequate
    signal at the cable system's headend because its engineering report
    fails to meet Commission standards. We also find that, even if RCN's
    engineering report were acceptable, because Paxson agrees to pay for
    the cost of adequate signal delivery, it qualifies for carriage on
    the RCN system.

7.  Although the Brio Engineering Report submitted by RCN attempts to
    show that WPXB's signal is inadequate, our review of that report
    shows that its conclusions are not based on good engineering
    practices. The Communications Act establishes a standard for signal
    availability for UHF commercial television stations of --45
    dBm.[^13] When test results are less than --51 dBm, we require at
    least four readings over a two-hour period. In addition, signal
    strength surveys should include the following: 1) the specific make
    and model numbers of the equipment used and its age and most recent
    date of calibration; 2) a description of the characteristics of the
    equipment used including antenna ranges and radiation patterns; 3)
    the height of the antenna above ground level and a statement that
    the antenna was properly oriented; and 4) weather conditions and
    time of day the tests were performed.[^14]

8.  In this case, the Brio engineering report failed to meet Commission
    standards in several ways. First, based on the initial measured WPXB
    signal strength of --64 dBm, an acceptable test would measure at
    least four signal strengths over a two hour period, not five
    measurements over a 30 minute period as the Brio Engineering report
    indicates. Second, the report does not contain the age or the
    antenna radiation pattern for the antenna used in the tests and the
    antenna characteristics and gain data are unreadable in the copy
    submitted to the Commission. Third, the report does not give the age
    or date of the most recent manufacturer calibration for the spectrum
    analyzer used for the tests. Finally, the exhibit describing local
    weather conditions at the time of the tests is unreadable in the
    copy submitted to the Commission.

9.  In addition, because the station has agreed to cover the expense of
    installing special equipment to assure delivery of a good quality
    signal, a cable operator cannot refuse to carry a station that
    agrees to cover any costs associated with adequate signal
    delivery.[^15] Because WPXB has committed to paying for any
    necessary special equipment in the event RCN can demonstrate that
    that its signal is inadequate, we find WPXB is a station qualified
    for must carry status.[^16] WPXB's complaint is granted, conditioned
    on its delivering a good quality signal to RCN's principal headend.
    Although RCN notes that, if it is required to carry WPXB, it will
    have to reconfigure its basic service tier at substantial per
    subscriber costs, it does not offer any specific information
    regarding this claim. Therefore, we have no way to judge its
    accuracy or merit.

# ORDERING CLAUSES

10. Accordingly, **IT IS ORDERED**, pursuant to Section 614 of the
    Communications Act of 1934, as amended, 47 U.S.C. §534, that the
    must carry complaint filed by Paxson Boston License Inc., licensee
    of television broadcast station WPXB against RCN-BECOCOM, LLC **IS
    GRANTED**.

11. **IT IS FURTHER ORDERED** that RCN **SHALL COMMENCE CARRIAGE** of
    the signal of WPXB within sixty (60) days from the date that WPXB
    provides a good quality signal at RCN's principal headend serving
    the Boston, Massachusetts area.

12. This action is taken pursuant to authority delegated by section
    0.283, 47 C.F.R. §0.283.

    FEDERAL COMMUNICATIONS COMMISSION

    Steven A. Broeckaert Deputy Chief, Policy Division, Media Bureau

[^1]: 8 FCC Rcd 2965, 2976-2977 (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. S*ee* 47 U.S.C. §534(h)(1)(C).
    Section 76.55(e) requires that a commercial broadcast television
    station's market be defined by Nielsen Media Research's DMAs. 47
    C.F.R. §76.55(e).

[^3]: Complaint at 2.

[^4]: *Id*.

[^5]: *Id.* at 3.

[^6]: *Id.* at 4.

[^7]: The first motion was filed on February 27, 2001 by RCN with
    Paxson's consent. The second joint motion was filed on March 16,
    2001 and requested an indefinite extension of time with the parties
    representing that they would inform the Commission of the status of
    their discussions.

[^8]: Answer at 4. RCN offers the results of these tests (Brio
    Engineering Report) as Exhibit 3 to its Answer.

[^9]: *Id.* at 6.

[^10]: *Id.*

[^11]: Reply at 3.

[^12]: *Id.* at 4.

[^13]: 47 U.S.C.§534 (h)(1)(B)(iii).

[^14]: M*aranatha Broadcasting Co. Inc., Licensee of WFMZ-TV, Allentown
    Pennsylvania v. Harron Communications Corp.*, 11 FCC Rcd
    10409,10413-4 (CSB1996)(*Marantha*). *See also* *Paxson San Jose
    License Inc. v. Century Cable of Northern California Inc*., 11 FCC
    Rcd 4796(CSB1996).

[^15]: 47 U.S.C.§534(h)(1)(B)(iii); *see also Marantha*, 11 FCC Rcd at
    10414.

[^16]: RCN's request for dismissal and for reimbursement of attorney's
    fees based on the doctrine of laches is without merit. RCN itself
    filed both extension of time requests and benefited from the
    additional time to file its answer. Further, when it became clear
    that a settlement would not be reached, WPXB requested a resumption
    of the pleading cycle within a reasonable time period.