**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of:                | * | CSR-6317-M                   |
|                                  | * |                              |
| Educational Public TV            | ) | CSR-5830-M                   |
| Corporation                      | * |                              |
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| v\.                              |   |                              |
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| RCN-BecoCom, LLC                 | * |                              |
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| Request for Carriage             | * |                              |
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| Educational Public TV            |   |                              |
| Corporation                      | * |                              |
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| RCN-BecoCom, LLC                 | * |                              |
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| Application for Review           | * |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: August 19, 2004** **Released: August 23, 2004**

By the Deputy Chief, Policy Division, Media Bureau:

# introduction

1.  Educational Public TV Corporation, licensee of noncommercial ("NCE")
    television station WYDN-TV (Ch. 48), Worcester, Massachusetts
    ("WYDN-TV"), filed the above-captioned complaint against
    RCN-Becocom, LLC ("RCN")[^1] for its failure to carry WYDN-TV on all
    of its cable systems located in the Boston, Massachusetts designated
    market area ("DMA").[^2] An opposition to this petition was filed on
    behalf of RCN to which WYDN-TV replied.

# 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.[^3] A station's market for this purpose is its "designated
    market area," or DMA, as defined by Nielsen Media Research.[^4] A
    DMA is a geographic market designation that defines each television
    market exclusive of others, based on measure viewing patterns.

# discussion

3.  In support of its request, WYDN-TV states that because it is a
    non-qualified NCE television station licensed to a community in the
    Boston DMA, it is entitled to carriage on all cable systems within
    that DMA.[^5] On January 27, 2004, WYDN-TV states that it sent a
    letter to RCN, requesting carriage on all RCN systems within the
    Boston DMA.[^6] WYDN-TV states that RCN refused the request, by
    letter dated February 5, 2004.[^7] WYDN-TV states that while it has
    been in communication with RCN since the denial letter, and offered
    to correct any signal strength deficiencies at its own expense, its
    carriage request has not been resolved to date. WYDN-TV states that
    the instant complaint was filed in order to protect its must carry
    rights, but that if matters are resolved with RCN regarding
    carriage, it will voluntarily withdraw its complaint.

4.  In opposition, RCN states initially that WYDN-TV failed to note in
    its complaint, that during the previous election cycle: a) it twice
    sought and was denied carriage by RCN on its Boston system; b) the
    must carry complaint it filed against RCN was denied by the Media
    Bureau; and c) that it is currently prosecuting an application for
    review of that decision.[^8] In addition, RCN notes, WYDN-TV failed
    to include copies of all of the relevant correspondence and
    communications between the two parties with respect to WYDN-TV's
    present request for carriage for the current election cycle.

5.  RCN argues that WYDN-TV does not provide a signal of sufficient
    strength required to its principal headend site, as required by the
    Commission's rules.[^9] In signal strength tests, RCN states that
    measurements of WYDN-TV's signal demonstrate a signal strength that
    is more than 25 dB below the -45dBm minimum signal strength
    established by Section 614(h)(1)(B)(iii) of the Act and Section
    76.55(c)(3) of the Commission's rules.[^10] RCN states that WYDN-TV
    acknowledged its lack of an adequate signal and offered to provide a
    good quality, baseband video signal via satellite.[^11] RCN
    contends, however, that its research demonstrates that the satellite
    feed that WYDN-TV proposes is not a retransmission of WYDN-TV's
    broadcast signal, including all local material, but instead the
    national Daystar network feed.[^12] RCN maintains that it does not
    dispute WYDN-TV's right to provide, at its own cost, a good quality
    signal via satellite, however it asserts that it should not be
    obligated to accept WYDN-TV's alternate means of providing a good
    quality signal in this instance. RCN points out that both the Act
    and the Commission's rules state unequivocally that cable systems
    carry the signals of "local commercial television stations.[^13]
    Moreover, in *Jovon Broadcasting Corp. v. RCN Corp.,* the Commission
    explicitly stated that the broadcaster could employ its DTV
    transmitter as an alternate signal delivery mechanism so long as it
    "transmits exactly the same content over its digital signal as is
    contained in its analog signal."[^14]

6.  RCN states that even if proposed satellite delivery was the signal
    of WYDN-TV, the station's proposal should still be rejected because
    site restrictions at the headend location prevent implementation of
    WYDN-TV's proposal.[^15] RCN states that it is well-established that
    "cable operators need not employ extraordinary measures or
    specialized equipment" when taking signal strength measurements or
    when implementing alternate methods of delivering good quality
    signals by broadcast stations.[^16] RCN states that it is confronted
    with restrictions at its South Boston headend site that preclude
    implementation of WYDN-TV's satellite delivery proposal.[^17] RCN
    requests that the Commission should find, consistent with previous
    decisions, that it is not required to accept WYDN-TV's satellite
    delivery proposal or to take extraordinary measures to accommodate
    that proposal.

7.  In reply, WYDN-TV argues that the fact that there was a previous
    proceeding involving the parties herein is irrelevant. It maintains
    that once WYDN-TV was able to deliver a good quality signal to RCN's
    headend, it was entitled to carriage.[^18] WYDN-TV states that,
    without conceding the accuracy of the signal strength test performed
    by RCN, it has offered to deliver, at its own expense, a good
    quality signal through alternative means. As a result, it asserts,
    signal strength is not an issue.[^19] Further, WYDN-TV states that,
    despite RCN's assertions, the signal that WYDN-TV proposes to
    deliver via satellite is that of WYDN-TV and contains the same
    content as that broadcast over-the-air on channel 48, with local
    station identification, EAS, etc.[^20] Finally, WYDN-TV argues that
    RCN's contentions regarding site restrictions are based upon a
    faulty understanding of the feed which is to be delivered.[^21]
    WYDN-TV states that an attached Declaration provides all the
    specifics required in the way of receiving equipment, all of which
    will be supplied at WYDN-TV's expense.[^22]

8.  In a response to WYDN-TV's reply, RCN notes that, for the first
    time, WYDN-TV provided new facts about its proposed satellite
    delivery. RCN states that, based on this information, it would have
    to install a 4-foot diameter satellite dish at its headend[^23] RCN
    points out that the size of this dish is identical to that in
    *Arkansas 49* where the Commission rejected the equipment because it
    could not be "physically accommodated at the operator's existing
    \[local receive facility\]."[^24] RCN states that it has already
    demonstrated that it cannot install a dish of this size at its
    headend site due to site restrictions on the number of rooftop
    satellite dishes that can be accommodated and WYDN-TV failed to
    refute this evidence in its reply.[^25] As a result, RCN asserts
    that the new facts presented by WYDN-TV do not support its
    allegation of RCN's "faulty understanding," but rather confirm RCN's
    earlier showing.[^26]

9.  There appears to be no disagreement between the parties that WYDN-TV
    does not provide a good quality over-the-air signal to RCN's
    principal headend. Instead, the issue at hand involves WYDN-TV's
    proposal to improve the quality of its signal by delivering the
    station's local, broadcast feed via satellite and providing, at its
    own expense, all necessary equipment. RCN has claimed not only that
    it cannot accommodate an additional satellite dish on the rooftop
    structure at its headend, but that the signal WYDN-TV proposes to
    deliver is the national Daystar network feed and not a
    retransmission of WYDN-TV's full broadcast signal. Upon review we
    find that the information provided by RCN is not sufficient to make
    a determination regarding rooftop space at RCN's principal headend.
    In similar cases where a cable operator has claimed insufficient
    space on a receive tower to accommodate an additional antenna, the
    cable operator would be expected to provide such evidence as proof
    that the tower could not bear additional wind loading; interference
    from insufficient spacing, additional weight; or structural or
    logistical factors.[^27] RCN has not provided such specifics in this
    case. With regard to the issue of what signal WYDN-TV intends to
    deliver, WYDN-TV has flatly contradicted the allegation that it will
    not deliver its broadcast signal, in its entirety. As there is no
    evidence to contradict this claim, we will conditionally grant
    WYDN-TV's complaint with the proviso that delivery of a good quality
    signal be accompanied by the retransmission of its full,
    over-the-air broadcast signal.[^28]

# ordering clauses

10. Accordingly, **IT IS ORDERED,** that the must carry complaint filed
    by Educational Public TV Corporation (CSR-6317-M) **IS GRANTED**
    pursuant to Section 614(d)(3) of the Communications Act of 1934, as
    amended, 47 U.S.C. § 534. RCN-Becocom, LLC **IS ORDERED** to
    commence carriage of WYDN-TV on its cable systems serving the
    Boston, Massachusetts DMA sixty (60) days from the date on which
    WYDN-TV delivers a good quality signal to the cable system's
    principal headend.

11. **IT IS FURTHER ORDERED** that the signal delivered by WYDN-TV shall
    be the station's over-the-air signal.

12. **IT IS FURTHER ORDERED** that the application for review filed by
    Educational Public TV Corporation (CSR-5830-M) **IS DISMISSED** as
    moot.

13. This action is taken pursuant to authority delegated by Section
    0.283 of the Commission's rules.[^29]

    FEDERAL COMMUNICATIONS COMMISSION

    Steven A. Broeckaert

    Deputy Chief, Policy Division

    Media Bureau

[^1]: ^?^WYDN-TV filed its complaint against RCN Corporation, however,
    RCN indicated in its opposition that the correct cable operator name
    is RCN-Becocom, LLC.

[^2]: ^?^Although WYDN-TV is licensed as a noncommercial station, it is
    considered to be a "non-qualified" NCE station because it does not
    meet the qualification criteria established pursuant to Section
    76.55(a) of the Commission's rules. 47 C.F.R. § 76.55(a). It is
    therefore treated as a commercial station for must carry purposes.
    *See Frontiersvision Operating Partners, L.P., et al.,* 17 FCC Rcd
    9332 (2002).

[^3]: ^?^8 FCC Rcd 2965, 2976-2977 (1993).

[^4]: ^?^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. *See* 47 U.S.C. § 534(h)(1)(C).
    Section 76.55(e) of the Commission rules, requires that a commercial
    broadcast television station's market be defined by Nielsen Media
    Research's DMAs. *See Definition of Markets for Purposes of the
    Cable Television Broadcast Signal Carriage Rules, Order on
    Reconsideration and Second Report and Order,* 14 FCC Rcd 8366 (1999)
    (*"Modification Final Report and Order"*); 47 C.F.R. § 76.55(e).

[^5]: ^?^Complaint at 1.

[^6]: ^?^*Id.* at Attachment A.

[^7]: ^?^*Id.* at Attachment B. It should be noted that RCN's denial
    letter refers to its cable system serving the city of Boston,
    Massachusetts.

[^8]: ^?^Opposition at 2-3; *see also Educational Public TV Corporation
    v. RCN-BecoCom, LLC,* 17 FCC Rcd 9329 (2002), *app. for rev.
    pending.*

[^9]: ^?^*Id.* at 7.

[^10]: ^?^*Id.* at Exbibit 9 (Declaration of Danny Hartsoe, Headend
    Technician for RCN); *see also* 47 U.S.C. § 534(h)(1)(B)(iii) and 47
    C.F.R. § 76.55(c)(3).

[^11]: ^?^*Id.* at Exhibits 4, 5 and 6.

[^12]: ^?^*Id.* at 8-9.

[^13]: ^?^*Id.* at 10-11, citing 47 U.S.C. § 534(a); *Must Carry Order,*
    8 FCC Rcd at 2972; 47 U.S.C. § 534(b)(3)(B) and 47 C.F.R. §
    76.62(a).

[^14]: ^?^*Id.* at 11, citing 18 FCC Rcd 8145, 8147 (2003).

[^15]: ^?^*Id.* at 12.

[^16]: ^?^*Id.* at 12-13, citing *Implementation of the Cable Television
    Consumer Protection and Competition Act of 1992. Broadcast Signal
    Carriage Issues*, 8 FCC Rcd 4142, 4145 n.11 (1993) (*"Clarification
    Order"*); *Minority Television Project, Inc. v. AT&T Broadband ,
    LLC,* 17 FCC Rcd 22810, 22812-3 (2002); *Continental Cablevision of
    Western New England, Inc.,* 11 FCC Rcd 6488, 6512-3 (1996);
    *Arkansas 49, Inc. v. Echostar Communications Corporation,* DA
    03-4044 (rel. Dec. 22, 2003).

[^17]: ^?^*Id.* at Exhibit 9.

[^18]: ^?^Reply at 1.

[^19]: ^?^*Id.* at 2.

[^20]: ^?^*Id.,* citing Declaration of Neal Ardman.

[^21]: ^?^*Id.*

[^22]: ^?^*Id.*

[^23]: ^?^Response to reply at 3.

[^24]: ^?^*Id.,* citing DA 03-4044 at ¶¶ 6 and 8.

[^25]: ^?^*Id.* at 4, citing Opposition at 12-16 and Exhibit 9.

[^26]: ^?^*Id.*

[^27]: ^?^*See e.g., CTV of Derry, Inc. v. Paragon Cable,* 13 FCC Rcd
    12484 (1998); *All American TV, Inc. v. Mountain Brook Cablevision,*
    12 FCC Rcd 17545 (1997); *Norwell Television, LLC v. DIRECTV, Inc.,*
    17 FCC Rcd 10573 (2002).

[^28]: ^?^In view of our decision today, we will dismiss the earlier
    proceeding brought by WYDN-TV seeking carriage on RCN's cable system
    as moot (CSR-5830-M). *See Educational Public TV Corporation v.
    RCN-BecoCom, LLC,* 17 FCC Rcd 9329 (2002), *app. for rev. pending.*

[^29]: ^?^47 C.F.R. § 0.283.