Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5460-M                   |
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| Gary M. Cocola                   | ) |                              |
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| Complaint for Carriage of        | * |                              |
| KGMC(TV)                         |   |                              |
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| Clovis, California               | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: April 7, 2000 Released: April 10, 2000**

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

# INTRODUCTION

1.  Gary M. Cocola, licensee of KGMC(TV) (Ch. 43), Clovis, California,
    has filed a must carry complaint, pursuant to Section 614 of the
    Communications Act,[^1] as amended, and Sections 76.7 and 76.61(a)
    of the Commission's rules,[^2] alleging that Falcon Cable Systems
    Company, II, L.P. ("Falcon" or "Cable Operator") has denied carriage
    of KGMC(TV) on Falcon's cable system serving Porterville, Hot
    Springs and Posey, California, (the "Falcon cable communities"). An
    opposition to the complaint was filed by Falcon and KGMC(TV) filed a
    reply.[^3]

**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"*),[^4]
    commercial television broadcast stations are entitled to assert
    mandatory carriage rights on cable systems located within the
    station's market. A station's market for this purpose is its
    "designated market area," or DMA, as defined by Nielsen Media
    Research.[^5] A DMA is a geographic market designation that defines
    each television market exclusive of others, based on measured
    viewing patterns.

**III. DISCUSSION**

3.  In support of its request for carriage, KGMC(TV) states that the
    station meets the definition of a "local commercial television
    station"[^6] and therefore is eligible to invoke the mandatory
    carriage provisions of Section 614 of the Communications Act in the
    Falcon cable communities.[^7] Specifically, KGMC(TV) states
    that: (1) KGMC(TV) and Falcon's cable systems are located within the
    Fresno-Visalia, California, DMA; (2) Falcon's cable systems will not
    incur copyright liability for the carriage of KGMC(TV); and (3)
    KGMC(TV) has worked with Falcon to ensure the delivery of a good
    quality signal to the Falcon cable system headend.[^8] In addition,
    KGMC(TV) argues that, pursuant to Section 76.56(b)(2) of the
    Commission's rules, Falcon's cable system has ample carriage
    capacity in order to accommodate the carriage of KGMC(TV).[^9]

4.  The only issue in dispute between the parties is that regarding the
    delivery of a good quality signal to Falcon's cable system headends.
    KGMC(TV) states that it purchased and mounted on Falcon's
    Porterville tower, at its own expense, a specially cut antenna and
    amplifier for the KGMC(TV) signal.[^10] According to KGMC(TV), on
    September 9, 1999, engineers for both Falcon and KGMC(TV) went to
    the Porterville headend to measure the KGMC(TV) signal which,
    KGMC(TV) represents, was +12 dBm, well above the Commission's
    requirement for carriage.[^11]

5.  In response, Falcon argues that KGMC(TV) is in error by assuming
    that the Falcon cable communities are all served by the same headend
    facility. Falcon states that the cable communities are served by
    three separate headends located in Porterville, Pine Flat, and
    Posey.[^12] Falcon contends that KGMC(TV) does not deliver a signal
    of sufficient strength to any of these three system headends and
    refers to signal test results taken by Falcon in January 2000
    ("January 2000 tests").[^13] Falcon also notes that in addition to
    KGMC(TV)'s failure to provide a signal of sufficient strength to the
    headends at issue, it is not satisfied that KGMC(TV) is able to
    provide an adequate quality signal.[^14]

6.  KGMC(TV) responds by arguing that it was never informed by Falcon
    that Falcon's cable system was served by more than one headend.[^15]
    KGMC(TV) states that it recognizes its obligation to deliver an
    adequate signal to each Falcon headend, and it has done so with
    respect to the Porterville system, and will do so for the Hot
    Springs and Posey systems if Falcon is able to demonstrate, by
    proper joint signal testing measurements, that KGMC(TV) signal
    improvement is necessary in those communities.[^16] KGMC(TV) also
    reiterates its claim regarding the sufficiency of its September 9,
    1999 test results taken at the Porterville headend and that testing
    was done with proper equipment and in the presence of Falcon's
    engineer.[^17] With regard to the January 2000 tests, KGMC(TV)
    argues that these tests are invalid because no notice was given by
    Falcon to KGMC(TV) that such tests were being taken and, in
    addition, it appears that Falcon measured the signal before it
    passed through the equipment installed by KGMC(TV) at the
    Porterville headend.[^18] Finally, KGMC(TV) reiterates its claim
    that it agrees to be responsible for delivering a good quality
    signal to the Falcon headends.[^19]

7.  We grant KGMC(TV)'s complaint. We find that the representations made
    by KGMC(TV) demonstrate that it is a local full-power commercial
    television station qualified for carriage on Falcon's cable systems.
    Under the Commission's must carry rules, cable operators have the
    burden of showing that a commercial station that is located in the
    same television market as a cable operator is not entitled to
    carriage.[^20] It is undisputed that all of the Falcon cable
    communities are located within the Fresno-Visalia DMA, and, as such,
    all are located within the same television market as KGMC(TV). In
    addition, because KGMC(TV) is located within the same television
    market as the Falcon cable communities, KGMC(TV) is a "local signal"
    under Section 111 of the Copyright Act.[^21] Therefore, carriage of
    KGMC(TV) would not expose Falcon to any increased copyright
    liability.

8.  With regard to the signal strength, we believe that the Cable
    Operator has demonstrated that KGMC(TV) provides insufficient signal
    strength to the headends in question; however, we note that the
    station has agreed to provide specialized equipment and, in fact,
    already has done so, at least at the Porterville headend, in order
    to deliver a good quality signal. The Commission has held that a
    cable operator cannot refuse to carry a television station that
    agrees to purchase and install, at its own expense, the equipment
    necessary to deliver an adequate signal to the operator's
    headend.[^22] To determine whether an adequate signal level is
    delivered to a system's principal headend, the Communications Act
    mandates that measurements be taken at the input terminals of a
    system's signal processing equipment using the specialized equipment
    provided by a television station. In this regard, we believe that
    such measurements should be taken at the input to the first piece of
    active processing equipment relevant to the signal at issue.[^23]
    Falcon should follow this procedure when measuring the strength of
    KGMC(TV)'s signal at each of its respective headends and determine
    whether a good quality signal of adequate strength is being
    provided. Consequently, in view of the foregoing, we order Falcon to
    carry KGMC(TV)'s signal.

**IV. ORDERING CLAUSES**

9.  Accordingly, **IT IS ORDERED**, pursuant to Section 614 of the
    Communications Act of 1934, as amended (47 U.S.C. § 534), that the
    complaint filed by Gary M. Cocola, licensee of KGMC(TV), Clovis,
    California, **IS GRANTED.** Falcon Cable Systems Company II, L.P.
    **IS** **ORDERED** to commence carriage of KGMC(TV) within
    sixty (60) days after KGMC(TV) provides a good quality signal to
    Falcon Cable Systems Company II, L.P.'s headends.

10. **IT IS FURTHER ORDERED** that KGMC(TV) shall notify Falcon Cable
    Systems Company II, L.P. in writing of its carriage and channel
    position elections (§§ 76.56, 76.57, and 76.64(f) of the
    Commission's rules) within thirty (30) days of providing a good
    quality signal.

11. This action is taken pursuant to authority delegated by Section
    0.321 of the Commission's rules.[^24]

FEDERAL COMMUNICATIONS COMMISSION

Deborah Klein, Chief

Consumer Protection and Competition Division

Cable Services Bureau

[^1]: 47 U.S.C. § 534.

[^2]: 47 C.F.R. §§ 76.7, 76.61(a).

[^3]: Both Falcon and KGMC(TV) filed an extension of time request in
    order to file their respective opposition and reply pleadings. Both
    requests are unopposed and are granted.

[^4]: 8 FCC Rcd 2965, 2976-2977 (1993).

[^5]: 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 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).
    Until January 1, 2000, Section 76.55(e) of the Commission's rules
    provided that Arbitron's "Areas of Dominant Influence," or ADIs,
    published in the "*1991-1992 Television Market Guide,*" be used to
    implement the mandatory carriage rules. Effective January 1, 2000,
    however, Section 76.55(e) now requires that a commercial broadcast
    television station's market be defined by Nielsen Media Research's
    DMAs. For the must-carry/retransmission consent elections that took
    place on October 1, 1999, commercial television stations were
    required to make their elections based on 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*").

[^6]: 47 U.S.C. § 534(h)(1); 47 C.F.R. § 76.55(c).

[^7]: KGMC(TV) states that on September 16, 1999, it notified Falcon by
    letter that it was electing mandatory carriage of its television
    signal, pursuant to 47 C.F.R. § 76.65(b). *See* Letter from Todd
    Lopes, Vice President, KGMC(TV), to Gary Watson, Falcon
    Communications, September 16, 1999. Complaint at 2, Exhibit A.
    KGMC(TV) states that Falcon did not respond to its September 16
    letter and it sent a subsequent letter to Falcon on October 27,
    1999. *See* Letter from Todd Lopes, Vice President, KGMC(TV), to
    Gary Watson, Falcon Communications, October 27, 1999. *Id.* at 3,
    Exhibit B. KGMC(TV) also did not respond to its October 27, 1999
    letter and KGMC(TV) is therefore filing this Complaint to preserve
    and enforce its rights to mandatory carriage on Falcon's cable
    system. KGMC(TV) requests carriage for the election period beginning
    January 1, 2000. *Id.* at 5.

[^8]: Complaint at 4.

[^9]: 47 C.F.R. § 76.56(b)(2). Under the Commission's rules, a cable
    system with more than 12 usuable activated channels is required to
    carry local commercial television stations on up to one-third of the
    aggregate number of usuable activated channels of such system.
    KGMC(TV), citing the *1999 Television & Cable Factbook*, states that
    the Falcon system has 39 usuable activated channels. KGMC(TV) states
    that the cable system is therefore obligated to carry at a minimum
    13 local full-power commercial television stations. Presently,
    KGMC(TV) notes that Falcon only carries 8 local full-power stations.
    *See Television and Cable Factbook*, Vol. 67, at D-158(1999).
    Complaint at 2, 4.

[^10]: Complaint at 4.

[^11]: *Id.*; KGMC(TV) Reply at 5. KGMC(TV) does not supply the results
    for the September 9, 1999 test, but does submit two Declarations
    regarding the results. *See* Declaration of Steven R. LeBel,
    independent enginner hired by KGMC(TV) and Declaration of Jeff Penn,
    engineer for low power television station KKAK-LP, Porterville,
    California. KGMC(TV) Reply, Exhibits A and B, respectively.

[^12]: Falcon Opposition at 1.

[^13]: *Id.* at 2, Exhibit 1. Falcon represents that the signal strength
    tests taken at the Porterville headend were performed using the
    antenna that was specifically cut for Channel 43 and provided by
    KGMC(TV). *Id.* at 2.

[^14]: *Id.* at 2.

[^15]: KGMC(TV) Reply at 2.

[^16]: *Id.* at 4.

[^17]: *Id.* at 5.

[^18]: *Id.* at 6. Citing Falcon's test results submitted with Falcon's
    opposition, Exhibit 1, KGMC(TV) notes that the signal measurements
    taken at the three different headend sites are comparable, and to
    KGMC(TV)'s knowledge, there was no special equipment installed at
    the Pine Flat and Posey headends. KGMC(TV) states that when it took
    measurements together with Falcon at the Porterville headend site,
    the signal measured at +12 dBm, in sharp contrast to the alleged
    --53.4 dBm measured in January 2000. KGMC(TV) contends that when a
    station has installed equipment to improve its signal at a cable
    headend, signal tests should be conducted at the output of any
    equipment supplied to the cable system. *See, e.g., CTV of Derry,
    Inc.,* 11 FCC Rcd 1826 (1996).

[^19]: *Id.*

[^20]: *See Must Carry Order* at 2990.

[^21]: 17 U.S.C. § 111.

[^22]: *See, e.g., WMFP,Inc.,* 11 FCC Rcd 17264 (1996); *KSLS,Inc.,* 11
    FCC Rcd 12718 (1996).

[^23]: *See Must Carry Order* at 2990, n.299.

[^24]: 47 C.F.R. § 0.321.