**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | *  | CSR-7028-M                   |
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| Hudson Valley Television, Inc.   | ** |                              |
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| Mid-Hudson Cablevision, Inc.     | ** |                              |
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| Request for Carriage             | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 22, 2006 Released: September 25, 2006**

By the Deputy Chief, Policy Division, Media Bureau:

# introduction

1.  Hudson Valley Television, Inc., licensee of low power television
    station WSSN-LP, Hudson, Kinderhook, Germantown and Coxsackie, New
    York ("WSSN-LP"), filed the above-captioned complaint against
    Mid-Hudson Cablevision, Inc. ("Mid-Hudson"), for its failure to
    carry WSSN-LP on its cable system serving the communities of
    Catskill, Hudson and Coxsackie, New York. An opposition to this
    complaint was filed on behalf of Mid-Hudson to which WSSN-LP
    replied. For the reasons discussed below, we grant WSSN-LP's
    request.

# background

2.  Both the Communications Act of 1934, as amended, and the
    Commission's rules require the carriage of "qualified" low power
    television ("LPTV") stations in certain limited circumstances.[^1]
    An LPTV station that conforms to the rules established for LPTV
    stations in Part 74 of the Commission's rules will be considered
    "qualified" if: (1) it broadcasts at least the minimum number of
    hours required pursuant to 47 C.F.R. Part 73; (2) it adheres to
    Commission requirements regarding non-entertainment programming and
    employment practices, and the Commission determines that the
    programming of the LPTV station addresses local news and
    informational needs that 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 station's
    community of license; (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; (5) the
    community of license of the station and the franchise area of the
    cable system were both located outside the largest 160 Metropolitan
    Statistical Areas ("MSAs") 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.[^2]

# discussion

3.  In support of its complaint, WSSN-LP argues that it meets all of the
    requirements set forth in Section 614(h)(2) of the Communications
    Act of 1934, as amended, and Section 76.55(d) of the Commission's
    rules and is therefore entitled to carriage on Mid-Hudson's cable
    system.[^3] WSSN-LP states that it broadcasts for the required
    minimum number of hours, meets all the relevant requirements imposed
    on full-power television stations, broadcasts news and informational
    programming that is locally oriented and addresses local needs not
    addressed by full-power stations, complies with the Commission's
    interference rules, and transmits from a location well within the
    required 35-miles from the cable system headend.[^4] WSSN-LP points
    out that the cable communities at issue are all outside of the top
    160 MSAs, as determined by OMB on June 30, 1990, and are located in
    Columbia and Greene Counties, New York, where no full-power
    television stations are licensed.[^5] WSSN-LP maintains that because
    Mid-Hudson's system has more than 36 channels, carries broadcast
    stations on fewer than one-third of its activated channels and does
    not carry two or more LPTV stations, carriage of its station is
    required pursuant to Section 76.56(b)(3) of the Commission's
    rules.[^6]

4.  WSSN-LP states that it made a proper must carry election on
    September 25, 2005 and a formal must carry demand on February 24,
    2006.[^7] WSSN-LP states that Mid-Hudson rejected the carriage
    demand, by letter dated March 14, 2006, indicating that WSSN-LP did
    not meet the signal strength criteria as required by Section
    76.55(d) of the Commission's rules.[^8] WSSN-LP argues, however,
    that the signal strength tests conducted by Mid-Hudson were not
    conducted in full compliance with the Commission's requirements.[^9]
    WSSN-LP states that there are three problems with Mid-Hudson's
    tests: 1) the antenna range and pattern were not submitted; 2) the
    tests were not spaced over 2 hours (only 1 hour, 48 minutes); and 3)
    Mid-Hudson did not use the same kind of antenna for WSSN-LP as it
    uses to receive other broadcast stations at its headend.[^10]
    WSSN-LP states subsequent to Mid-Hudson's signal measurement report,
    a visit to the cable system's headend indicated that Mid-Hudson used
    an inappropriately small antenna, approximately 50-60 feet above
    ground, to measure WSSN-LP's signal.[^11] Despite bringing a
    12-element yagi antenna, Sitgo Model MU48-4-21, to re-test WSSN-LP's
    signal, station staff were unable to raise the antenna more than 35
    feet above ground.[^12] As a result, WSSN-LP maintains that no
    proper test of its signal has yet been conducted.[^13] WSSN-LP
    argues that, unless and until it submits proper, mutually-conducted,
    tests to support its assertion of poor signal quality, Mid-Hudson
    should be directed to commence carriage of WSSN-LP.

5.  In opposition, Mid-Hudson argues that WSSN-LP is not a qualified
    LPTV station entitled to carriage on its system because it does not
    deliver an adequate over-the-air signal and it has not demonstrated
    that it airs sufficient local programming.[^14] Mid-Hudson states
    that, because WSSN-LP disputes the signal strength tests referenced
    in the March 8^th^ letter denying WSSN-LP carriage, it re-tested
    WSSN-LP's signal using a "professional quality" single channel
    antenna over a 24-hour period.[^15] This test demonstrates that
    WSSN-LP does not provide a good quality signal to the cable system
    headend.[^16] Mid-Hudson states that, although WSSN-LP complains
    that its own antenna was not used in conducting the signal tests,
    the Commission has stated that "\[a\] low power television station,
    . . . unlike a full power station, is not authorized to cure a poor
    quality signal with additional specialized equipment, such as new
    receive antenna, at the cable headend."[^17] Mid-Hudson maintains
    that, in this instance, the antenna used was entirely appropriate
    and the measurement was taken at a tower height comparable to that
    used for other broadcast stations.[^18]

6.  With regard to programming, Mid-Hudson argues that WSSN-LP failed to
    prove that it consistently broadcasts the types of programming that
    would "address local news and informational needs which are not
    being adequately served by full power television stations because of
    the geographic distance of such full power stations from the low
    power station's community of license."[^19] Mid-Hudson states that
    WSSN-LP only references 2 shows - "Hudson Values" and "Antiques on
    the Hudson" -- it did not quantify the programming contained therein
    or show that other full-power stations do not already adequately
    serve the communities at issue.[^20] Mid-Hudson states that, in
    letters dated May 24, and June 5, 2006, it notified WSSN-LP of its
    concerns regarding its programming and requested more specific
    information such as programming logs and the number of original
    episodes.[^21] Mid-Hudson argues that WSSN-LP's responses, however,
    did not provide the details it requested.[^22] Mid-Hudson asserts
    that this failure makes it impossible to determine whether WSSN-LP
    truly satisfies the local programming requirement for qualified LPTV
    stations.[^23]

7.  WSSN-LP maintains in reply that Mid-Hudson has still not performed
    sufficient and proper tests of its signal nor has it, as requested,
    consented to a joint testing of the signal.[^24] WSSN-LP states that
    the tests conducted by Mid-Hudson on June 12 and 13, 2006 have
    several deficiencies. First, the measurement report indicates that
    the signal had almost no audio or low audio. WSSN-LP states that
    this was because it was having transmitter problems during that
    period and had Mid-Hudson tested on another day, the signal strength
    level would be in excess of -45 dBm.[^25] Second, the tests did not
    strictly conform to the requirements of 6 readings over a 24-hour
    period with measurements not more than 4 hours apart.[^26] WSSN-LP
    states that the first 2 measurements were four hours, eight minutes
    apart and the 4^th^ and 5^th^ measurements four hours, fifteen
    minutes apart.[^27] WSSN-LP argues that both an independent analysis
    and an informal test taken by WSSN-LP indicate that, given the close
    proximity between WSSN-LP's transmitter and the cable system
    headend, a good quality signal can be obtained.[^28] WSSN-LP
    maintains that the only proper way to resolve any signal quality
    issues is to require joint testing to assure that the tests are made
    at the correct time intervals, with the correct equipment, and at a
    time when WSSN-LP's transmitter is fully functioning.[^29] WSSN-LP
    states that it is not attempting to supply special amplifiers or an
    alternative delivery technology, but merely attempting to obtain the
    full cooperation between cable television operators and television
    stations in conducting signal strength tests that the Commission
    expects.[^30]

8.  WSSN-LP argues further that Mid-Hudson's demand for detailed
    information about its programming is beyond anything the Commission
    has ever required or sanctioned in a must carry case.[^31] WSSN-LP
    states that Mid-Hudson demanded a comprehensive list of every local
    informational program broadcast since WSSN-LP started operations,
    with written descriptions or tapes along with a program schedule for
    the remainder of May and June and a description of each episode of
    each show.[^32] WSSN-LP argues that programming aired prior to its
    must carry complaint is irrelevant.[^33] Moreover, WSSN-LP states
    that it did provide its program grid with a detailed description of
    its local public affairs programming as requested by
    Mid-Hudson.[^34] As a result, WSSN-LP maintains that Mid-Hudson has
    more than sufficient data to establish that WSSN-LP has, and will
    continue to, broadcast local information programming and, unlike the
    cases cited by Mid-Hudson, broadcasts it local informational
    programs every week.[^35]

9.  There are two main issues in this case. The first is WSSN-LP's
    argument that Mid-Hudson's did not conduct the re-test of WSSN-LP's
    signal according to the engineering criteria required by the
    Commission. The second is Mid-Hudson's allegation that WSSN-LP does
    not meet the local programming criteria for LPTV stations. We will
    take them in turn.

10. A review of the second signal strength test performed by Mid-Hudson
    indicates that the test was, in general, conducted according to
    sound engineering practice. While WSSN-LP argues that Mid-Hudson
    strayed from the required 4-hour minimum, we find that the minor
    variations in the timing of the test are trivial. Several minutes
    removed from a 4-hour test interval will not affect the signal
    strength in a meaningful way nor will it affect the accuracy of the
    test. Moreover, the antenna used during the test appears to be
    appropriate, the equipment used was recently calibrated, and the
    cable lengths were reasonable. WSSN-LP has argued, however, that
    because the test was conducted on a day when its audio was
    inoperable, the test was not a fair measure of its signal. We agree.
    Under ordinary circumstances, the lack of audio would have little
    effect on the overall test results. In this case, however, because
    WSSN-LP is less than 10 miles from the cable system headend and only
    barely failed to meet the signal strength criteria, the lack of
    audio may make a difference in determining the station's actual
    signal level. As a result, we will require Mid-Hudson and WSSN-LP to
    conduct a joint test within twenty days of the release date of this
    order at a time when WSSN-LP's audio is operable. Should this joint
    re-test indicate that WSSN-LP meets the Commission's signal strength
    minimums, Mid-Hudson will be required to carry the station.

11. With regard to programming, we do not agree with Mid-Hudson that
    WSSN-LP fails to meet the programming criteria for LPTV stations.
    WSSN-LP has provided detailed descriptions of the locally-oriented
    programs that it broadcasts, as well as a program log of its
    schedule. Despite Mid-Hudson's contentions, this information is
    sufficient to determine WSSN-LP's eligibility.

# ordering clauses

12. Accordingly, **IT IS ORDERED**, pursuant to Section 614 of the
    Communications Act of 1934, as amended, 47 U.S.C. § 534, and
    Sections 76.55(d) and 76.56(b)(3) of the Commission's rules, that
    the complaint filed by Hudson Valley Television, Inc. **IS GRANTED**
    to the extent indicated above with respect to the communities of
    Catskill, Hudson and Coxsackie, New York. Mid-Hudson Cablevision,
    Inc. **IS ORDERED** to commence carriage of WSSN-LP within
    sixty (60) days of the date that WSSN-LP provides a good quality
    signal to the cable system's principal headend.

13. **IT IS FURTHER ORDERED,** that Mid-Hudson and WSSN-LP shall conduct
    a joint re-test of WSSN-LP's signal within twenty (20) days of the
    release date of this order. Mid-Hudson and WSSN-LP shall report the
    results of this joint test to the Commission within ten (10) days of
    performing the re-test of WSSN-LP's signal.

14. **IT IS FURTHER ORDERED** that WSSN-LP shall notify Mid-Hudson in
    writing of its channel position election within thirty (30) days of
    the date it provides a good quality signal, pursuant to Sections
    76.57 and 76.64(f) of the Commission's rules.[^36]

15. This action is taken pursuant to authority delegated by Section
    0.283 of the Commission's rules.[^37]

    FEDERAL COMMUNCIATIONS COMMISSION

    Steven A. Broeckaert

    Deputy Chief, Policy Division

    Media Bureau

[^1]: ^?^47 U.S.C. § 534(c)(1); 47 C.F.R. § 76.56(b)(3).

[^2]: ^?^47 U.S.C. § 534(h)(2); 47 C.F.R. § 76.55(d).

[^3]: ^?^Complaint at 1-2; *see also* 47 U.S.C. § 614(h)(2) and 47
    C.F.R. § 76.55(d).

[^4]: ^?^*Id.* at 2. WSSN-LP notes that its transmitter is within 5
    miles of Mid-Hudson's headend.

[^5]: ^?^*Id.*

[^6]: ^?^*Id.,* citing 47 C.F.R. § 76.56(b)(3).

[^7]: ^?^*Id.* at Exhibits 1 and 2.

[^8]: ^?^*Id.* at Exhibit 3.

[^9]: ^?^*Id.* at 3, citing *Citrus County Association for Retarded
    Citizens v. Mickelson Media, Inc. d/b/a Century Cable,* 10 FCC Rcd
    960, 961 (1995) (". . . signal strength surveys should, at a
    minimum, include the following: 1) specific make and model numbers
    of the equipment used, as well as its age and most recent date(s) of
    calibration; 2) description(s) of the characteristics of the
    equipment used, such as antenna ranges and radiation patterns; 3)
    height of the antenna above ground level and whether the antenna was
    properly oriented; and 4) weather conditions and time of day when
    tests were done."); *see also* 47 C.F.R. § 76.61(a)(2).

[^10]: ^?^*Id.* at 3-4, citing *Vision 3 Broadcasting, Inc. v. Time
    Warner Cable,* 14 FCC Rcd 15348 (1999); *Larry L. Schrecongost v.
    TCI of Pennsylvania, Inc.,* 12 FCC Rcd 13194, 13201 (1997)
    ("\[W\]hile the Commission does not specify which type of antenna
    must be used to determine signal strength, a cable operator is
    required to take measurements with 'generally accepted' equipment
    that is currently used to receive signals of similar frequency
    range, type or distance from the principal headend.").

[^11]: ^?^*Id.* at Exhibit 4.

[^12]: ^?^*Id.*

[^13]: ^?^*Id.* at 4.

[^14]: ^?^Opposition at 2-3.

[^15]: ^?^*Id.* at Exhibit 1.

[^16]: ^?^*Id.* at 3.

[^17]: ^?^*Id.* at 3 n.8, citing *Tri-State Christian TV, Inc. v.
    Blytheville TV Cable Company,* DA 06-60 at ¶ 2 (rel. Jan. 13, 2006).

[^18]: ^?^*Id.*

[^19]: ^?^*Id.* at 4, citing 47 C.F.R. § 76.55(d)(2).

[^20]: ^?^*Id.*

[^21]: ^?^*Id.* at Exhibits 2 and 4.

[^22]: ^?^*Id.* at Exhibits 3 and 5. Mid-Hudson states that WSSN-LP
    merely supplied a lists of guests on the 2 shows and nothing about
    the number of original episodes.

[^23]: ^?^*Id.* at 6. Mid-Hudson argues that the 10 "local" guests
    identified by WSSN-LP as appearing over the past 7 months is
    insufficient to satisfy the local programming requirement.
    Similarly, if every episode of "Hudson Values" and "Hudson Antiques"
    is original, it would still amount to a minimal amount of local
    programming.

[^24]: ^?^Reply at 1-2.

[^25]: ^?^*Id.* at Exhibit A.

[^26]: ^?^*Id.* at 2 n.4, citing *Implementation of the Cable Television
    Consumer Protection and Competition Act of 1992, Broadcast Signal
    Carriage Issues,* 9 FCC Rcd 6723, 6736 (1994) ("where initial
    readings are between -51 dBm and -45 dBm, inclusive, readings must
    be taken over a 24-hour period with measurements not more than four
    hours apart to establish reliable test results.").

[^27]: ^?^*Id.* at 3.

[^28]: ^?^*Id.* at 3 and Exhibits A and B.

[^29]: ^?^*Id.*

[^30]: ^?^*Id.* at 4, citing *WMTY, Inc. v. West Alabama Cable Co.,
    Inc.,* 19 FCC Rcd 8172 (2004).

[^31]: ^?^*Id.*

[^32]: ^?^*Id.* at 5, citing Opposition at Exhibits 2 and 4.

[^33]: ^?^*Id.*

[^34]: ^?^*Id.,* citing Opposition at Exhibits 3 and 5.

[^35]: ^?^*Id.* at 6, citing *The Vacation Channel, Inc. v. TCI Cable of
    the Rockies,* 13 FCC Rcd 12, 13-14 (1997) (weekly interview shows
    and a regularly-scheduled "Newsline" program are sufficient to meet
    local programming requirement); *Dan Reynolds v. TCA Cable Partners
    d/b/a Cox Communications,* 18 FCC Rcd 26693 (2003) (provision of
    regularly-scheduled local interest program and an announcement
    bulletin board are sufficient to demand carriage).

[^36]: ^?^47 C.F.R. §§ 76.57 and 76.64(f).

[^37]: ^?^47 C.F.R. § 0.283.