Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR 5601-L                   |
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| Engle Broadcasting               | ) |                              |
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| Comcast of Southern New Jersey,  | * |                              |
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| Commercial Leased Access         | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: September 21, 2001** **Released: October 2, 2001**

By the Deputy Chief, Cable Services Bureau:

# introduction

1.  Engle Broadcasting ("Engle") has filed a complaint pursuant to
    Section 76.975 of the Commission's rules[^1] alleging that Comcast
    of Southern New Jersey, Inc. ("Comcast") is in violation of the
    Commission's commercial leased access regulations by failing to
    transmit Engle's leased access programming between the headends of
    two of its cable systems and by failing to provide space for
    antennas for the reception of Engle's programming on a tower serving
    one of those headends. Engle also requests imposition of forfeitures
    on Comcast for repeated and willful violations of its obligations
    under the leased access regulations. Comcast filed an Opposition to
    the petition.[^2]

# background

2.  The Cable Communications Policy Act of 1984 imposed on cable
    operators a commercial leased access requirement designed to assure
    access to cable systems by unaffiliated third parties who have a
    desire to distribute video programming free of editorial control of
    cable operators.[^3] Channel set-aside requirements were established
    proportionate to a system\'s total activated channel capacity. The
    Cable Television Consumer Protection and Competition Act of 1992
    revised the leased access requirements and directed the Commission
    to implement rules to govern this system of channel leasing.[^4] In
    *Implementation of the Cable Television Consumer Protection and
    Competition Act of 1992,* Report and Order and Further Notice of
    Proposed Rulemaking (\"*Rate Order*\"),[^5] the Commission adopted
    rules for leased access addressing maximum reasonable rates,
    reasonable terms and conditions of use, minority and educational
    programming, and procedures for resolution of disputes.[^6] The
    Commission modified some of its leased access rules in
    *Implementation of the Cable Television Consumer Protection and
    Competition Act of 1992*, Second Report and Order and Second Order
    on Reconsideration of the First Report and Order (\"*Second
    Order*\").[^7]

# discussion

## Transmission of Engle's Programming Between Headends

3.  Comcast operates two separate cable systems located in southern New
    Jersey, one served from a headend located at Vineland, New Jersey,
    and the other from a headend located at Pleasantville, New
    Jersey.[^8] The Vineland system receives most of its off-air
    television broadcast signals from a tower located at Turnersville,
    New Jersey.[^9] The Pleasantville system receives off-air signals
    from towers located at Egg Harbor, New Jersey and New Castle,
    Delaware. Comcast also operates a communication facility consisting
    of a 680 mile fiber "ring" that links several of its cable systems
    serving the Delaware Valley, including the systems at Vineland and
    Pleasantville.[^10] Among other things, Comcast utilizes the fiber
    ring for distribution of non-broadcast signals and several broadcast
    signals to the Vineland and Pleasantville systems.[^11]

4.  Engle is the licensee of low power television station WPSJ-LP
    serving four communities in southern New Jersey.[^12] Comcast
    received the programming of WPSJ-LP off-air at the towers serving
    the Vineland and Pleasantville systems until recently when Engle
    commenced delivering programming to the Pleasantville system via
    microwave.[^13] Engle alleges that Comcast is in violation of
    Section 76.971(c) of the Commission's rules by not providing for the
    transmission of Engle's leased access programming on the fiber ring
    from the Vineland headend to the Pleasantville headend.[^14] Engle
    contends that since Comcast is utilizing the fiber ring to provide
    non-leased access programming on the Vineland and Pleasantville
    cable systems, it is required by the technical support requirement
    of Section 76.971(c) to transport Engle's leased access programming
    on the fiber ring from the Vineland headend to the Pleasantville
    headend.[^15]

5.  Section 76.971(c) requires cable operators to provide leased access
    programmers with "the minimal level of technical support necessary
    for users to present their material" and "may not unreasonably
    refuse to cooperate with a leased access user in order to prevent
    that user from obtaining channel capacity."[^16] By way of
    explaining whether cable operators may charge for technical support
    provided to leased access users, the Commission gave as an example,
    "the operator cannot add a charge \[above the maximum leased access
    rate\] for providing a satellite dish if it provides that type of
    technical support to non-leased access programmers at no additional
    charge."[^17] Nothing in Section 76.971(c) or the *Second Order*
    suggests that a cable operator must transmit leased access
    programming from one cable system to another. In the case before us,
    Comcast uses the fiber ring for transmitting Comcast programming
    from a central processing point to its cable systems serving
    communities in the Delaware Valley. In that respect, the fiber ring
    serves a function entirely different from that of providing channel
    capacity on a particular cable system for non-leased access
    programming in the example discussed by the Commission. Accordingly,
    we reject the contention that Comcast is in violation of Section
    76.971(c) by refusing to transmit Engle's programming between cable
    systems on the fiber ring.

## Tower Space Leasing

6.  Engle also complains of Comcast's refusal to provide antenna space
    for the reception of Engle's programming on the tower serving the
    headend of the Pleasantville cable system. Engle asserts that
    Comcast is providing for microwave transmission of the signals of
    certain television broadcast stations to the Pleasantville cable
    system.[^18] Since Comcast provides for the carriage of those
    broadcast stations' signals, Engle argues that Comcast must also
    provide antenna space for the reception of microwave transmission of
    Engle's programming to the Pleasantville cable system. We reject
    these contentions. Engle's assertions regarding Comcast's provision
    of microwave transmission of broadcast stations signals are
    unverified. On the other hand, Comcast has provided a verified
    statement that it is not providing interconnection between broadcast
    station studios and its cable system headends.[^19] We resolve this
    evidentiary conflict by accepting the verified statement offered by
    Comcast. Moreover, Comcast stated that the tower serving the
    Pleasantville headend has been sold to a tower operator under an
    arrangement that permits its antennas to remain on those towers. It
    also stated that the antennas on the tower are used only for the
    purpose of receiving "must carry" television broadcast stations and
    not for non-leased access programming that may invoke the technical
    support requirements of Section 76.971(c).[^20] Comcast is not
    required to acquire or make arrangements with the tower owner for
    antenna tower space for Engle's benefit.

7.  The general principle embodied in the leased access rules is that
    cable operators must make available for leased access programming
    the same type of access that is made available on their system for
    the distribution of non-leased access programming. System operators
    generally provide non-leased access programmers with channel
    capacity and the minimal level of technical support necessary to
    input the programming into the system. The Commission\'s rules
    therefore require that operators provide a similar level of
    technical support for unaffiliated leased access users.[^21]
    However, system operators do not have any responsibility for
    assisting in the delivery of programming from a programmer\'s studio
    or production facility to the headend or input point of the cable
    system. Therefore, it follows that cable operators are not required
    to provide capacity between a leased access programmer\'s studio and
    the cable operator\'s headend in order to provide the leased channel
    access.[^22]

## Forfeitures

8.  Engle requests a forfeiture order against Comcast for alleged
    repeated and willful violations under the leased access regulations.
    We deny this request. First, no credible evidence of any repeated or
    willful violations by Comcast has been provided on the record. As
    indicated above, Engle failed to establish that Comcast violated the
    leased access regulations by refusing to transmit Engle's
    programming from the Vineland headend to the Pleasantville headend
    via the fiber ring or by refusing to provide antenna tower space at
    Pleasantville. Secondly, Comcast has provided access for Engle's
    leased access programming on both the Vineland and Pleasantville
    cable systems, first by off-air pickup in both cases and later via
    microwave radio at Pleasantville. Engle's allegation that Comcast
    failed to comply with the leased access regulations in other
    instances where Engle withdrew previously filed leased access
    complaints is insufficient to establish that repeated or willful
    violations have occurred.

# ordering clauses

9.  Accordingly, **IT IS HEREBY ORDERED**, that the complaint filed by
    Engle Broadcasting in File No. CSR 5601-L **IS DENIED.**

10. This action is taken pursuant to authority delegated by Section
    0.321 of the Commission\'s rules.[^23]

    FEDERAL COMMUNICATIONS COMMISSION

    William H. Johnson, Deputy Chief

> Cable Services Bureau

[^1]: *See* 47 C.F.R. §§ 76.970, 76.971 & 76.975.

[^2]: Engle also filed a Rebuttal to Opposition. Although Section 76.975
    does not provide for the filing of a response to the cable
    operator's opposition, Engle's rebuttal will be considered in order
    to have a more complete record.

[^3]: Pub. L. No. 98-549, 98 Stat. 2779 (1984).

[^4]: Pub. L. No. 102-385, 106 Stat. 1460 (1992). *See* Section 612(b)
    of the Communications Act of 1934, as amended, 47 U.S.C. §532(b).

[^5]: 8 FCC Rcd 5631 (1993).

[^6]: *See* 47 C.F.R. §76.970, 76.971, 76.975 and 76.977 (1995).

[^7]: 12 FCC Rcd 5267 (1997). *See also Implementation of the Cable
    Television Consumer Protection and Competition Act of 1992*, Order
    on Reconsideration of the First Report and Order and Further Notice
    of Proposed Rulemaking, 11 FCC Rcd 16933 (1996).

[^8]: Comcast Opposition at 3-5.

[^9]: *Id.*

[^10]: *Id.*

[^11]: *Id.*

[^12]: Engle Complaint at 1.

[^13]: Comcast Opposition at 5.

[^14]: Engle's leased access programming consists of "live, viewer
    interactive programs of an immediate and public service nature,"
    which cannot be delivered by videotape. Engle Complaint at 1.

[^15]: Engle contends that Section 76.971(c) obligates Comcast to
    provide the same level of technical support for its leased access
    programming as that provided to non-leased access programmers. *Id*
    at 2-4.

[^16]: 47 C.F.R. § 76.971(c).

[^17]: *See Second Order* at 5335.

[^18]: *See* Engle complaint at 4-5; Engle Rebuttal at 5-6.

[^19]: *See* Comcast Opposition at 8, n. 20 and Attachments 2 and 4.

[^20]: *Id*. at 10-12.

[^21]: *See* 47 C.F.R. S 76.971(c).

[^22]: *Response to Request for Clarification of Stephen R. Ross, Esq.*,
    Letter Ruling, DA-1074, CSB-ILR 97-3 (released May 2, 1997), 1997 WL
    268725 (FCC).

[^23]: 47 C.F.R. § 0.321.