Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | * | CSR-5632-M                   |
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| Paxson Oklahoma License, Inc.    | ) |                              |
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| Cox Communications, Inc.         | * |                              |
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| Must Carry Complaint             | ) |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: April 2, 2001** **Released: April 3, 2001**

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

# introduction

1.  Paxson Oklahoma License, Inc. ("Paxson"), licensee of commercial
    television station KOPX-TV (Channel 62), Oklahoma City, Oklahoma,
    ("KOPX-TV") filed a must carry complaint with the Commission,
    pursuant to Sections 76.7 and 76.61 of the Commission's rules,
    against Cox Communications ("Cox").[^1] Paxson alleges that Cox has
    failed to carry the signal of KOPX-TV without material degradation
    on a basic service tier channel uniformly available to all Cox
    subscribers on its systems serving Edmond, Oklahoma and communities
    in Logan, Canadian, and Cleveland Counties, Oklahoma (the "cable
    communities"), as required under the Commission's rules.[^2] Cox
    filed an opposition to the complaint. Paxson filed a reply.

# 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, including certain mandatory channel position
    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 measured viewing patterns.

3.  With respect to the channel number on which stations asserting must
    carry rights are to be carried, Section 614(b)(6) of the Act and
    Section 76.57 of the Commission's rules provide commercial
    television stations with three channel positioning options.[^5] The
    station may elect to be carried on: (1) the channel number on which
    the station is broadcast over-the-air; (2) the channel number on
    which the station was carried on July 19, 1985; or (3) the channel
    number on which the station was carried on January 1, 1992.[^6] The
    Act and the rules also provide that a broadcast station may be
    carried on any other channel number mutually agreed upon by the
    station and the cable operator.[^7]

# discussion

4.  In support of its complaint, Paxson asserts that Cox has failed to
    comply with the Bureau's previous channel placement order.[^8]
    Specifically, Paxson argues that Cox has failed to carry KOPX-TV on
    Channel 62 without material degradation, on a basic service tier at
    a channel position uniformly viewable by its subscribers.[^9] By
    letter dated September 15, 2000, Paxson informed Cox that carriage
    of KOPX-TV on channel 62 did not conform to the Commission's must
    carry requirements. Paxson requested that Cox relocate KOPX-TV to
    another channel position on Cox's basic tier in close proximity to
    the other broadcast stations being carried by Cox and available to
    all of Cox's basic cable subscribers.[^10] In response, by letter
    dated September 24, 2000, Cox informed Paxson that it had taken
    steps to remove traps and scrambling that might prevent reception of
    Channel 62 without use of a converter box.[^11] Cox also stated that
    the initial repositioning of KOPX-TV to cable Channel 62 was
    accomplished in strict compliance with the must carry rules. Paxson
    subsequently conducted a telephone survey, the results of which
    allegedly reveal that some of KOPX-TV viewers experience either poor
    reception or no reception on Cox's Channel 62.[^12] Paxson maintains
    that whatever steps were undertaken by Cox to improve reception were
    wholly inadequate. Thereafter, Paxson filed the instant petition and
    asks that Cox be ordered to move KOPX-TV to a mutually agreeable
    basic service tier channel uniformly viewable by Cox's subscribers
    in the cable communities, and to carry the signal on that channel
    without material degradation.[^13]

5.  In opposition, Cox requests that Paxson's complaint be summarily
    dismissed as both unsubstantiated and an abuse of process. Cox takes
    issue with Paxson's use of a subscriber survey as proof of the claim
    asserted. [^14] Cox asserts that the survey results are a poor
    substitute for a detailed list of disgruntled subscribers with
    specific reception problems; that Paxson's reliance on survey
    results without providing the underlying survey text is misplaced;
    and that Paxson relies on selective survey results without providing
    expert testimony attesting to the propriety of the survey
    methodology and statistical significance of the results.[^15]
    Additionally, Cox maintains that Paxson made no effort to work
    cooperatively to remedy the alleged technical problems although Cox
    responded promptly to Paxson's initial expression of technical
    concerns. Moreover, Cox states that its engineering staff has been
    unable to identify any technical problem with KOPX-TV's carriage and
    has not received any calls from dissatisfied subscribers regarding
    poor reception or no reception of KOPX-TV.[^16] Finally, Cox argues
    that there is no evidence in the record supporting Paxson's claim
    that cable Channel 62 is categorically unable to satisfy Cox's must
    carry obligations.[^17] Nevertheless, Cox states that it is prepared
    to remedy any specific and substantiated technical problems
    regarding channel reception.[^18]

6.  In reply, Paxson reiterates its argument that Cox has failed to
    deliver KOPX-TV on Channel 62 to all subscribers in the cable
    community in a manner that is uniformly viewable and without
    material degradation.[^19] Paxson asserts that Cox's decision to
    argue Paxson's failure to provide "statistically significant"
    evidence of carriage problems rather than argue that it has met its
    duty to provide service that is uniformly viewable and without
    material degradation is without merit.[^20]

7.  We deny Paxson's petition. As an initial matter, it is not disputed
    that Cox's cable systems serving the Oklahoma City, Oklahoma DMA
    currently carry KOPX-TV on Channel 62.[^21] Therefore, Paxson's
    petition for mandatory carriage mischaracterizes the relief sought.
    Rather, Paxson's petition seeks to address alleged channel reception
    and/or technical deficiencies with respect to Cox's carriage of
    KOPX-TV.[^22] In any case, Paxson fails to offer any empirical
    evidence to support its claim that Cox has failed to carry KOPX-TV
    on Channel 62 without material degradation, on a basic service tier
    at a channel position uniformly viewable by its subscribers.
    Moreover, Paxson failed to introduce the study itself into evidence,
    which makes it impossible for us to judge its efficacy.
    Nevertheless, Cox has indicated its willingness to work with KOPX-TV
    and Paxson to remedy any specific technical deficiencies, to the
    extent they exist.[^23] This is consistent with the approach we have
    taken in the past with respect to this issue. Cable operators are
    required to make reasonable efforts and use good engineering
    practices and proper equipment to guard against unnecessary
    degradation of the broadcast television signals.[^24] Cable
    operators are further encouraged to work with broadcasters to
    resolve problems affecting the quality of a particular signal prior
    to its reception at the cable headend.[^25] The record indicates
    that Cox is willing to work with KOPX-TV and Paxson to remedy any
    specific and substantiated technical problems. We expect the parties
    to work together to correct any alleged problems subscribers may
    have viewing KOPX-TV. Accordingly, we deny Paxson's petition.

# ordering clauses

8.  Accordingly, **IT IS ORDERED**, pursuant to Section 614 of the
    Communications Act of 1934, as amended \[47 U.S.C. § 534(d)(3)\],
    that the complaint (CSR-5632-M) filed by Paxson Oklahoma License,
    Inc. against Cox Communications, Inc., **IS DENIED**.

9.  This action is taken pursuant to authority delegated under Section
    0.321 of the Commission's rules.[^26]

    FEDERAL COMMUNICATIONS COMMISSION

    Deborah E. Klein, Chief

    Consumer Protection and Competition Division

    Cable Services Bureau

[^1]: 47 C.F.R. §§ 76.7 and 76.61.

[^2]: *See* Petition at Exhibit 1 (listing communities served by Cox
    systems).

[^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) requires that a commercial broadcast television
    station's market be defined by Nielsen Media Research's DMAs.

[^5]: 47 U.S.C. § 534(b)(6); 47 C.F.R. § 76.57.

[^6]: 47 U.S.C. § 534(b)(6); 47 C.F.R. § 76.57(a).

[^7]: 47 U.S.C. § 534(b)(6); 47 C.F.R. § 76.57(c).

[^8]: *See Paxson Oklahoma License, Inc. v. Cox Communications, Inc.*,
    15 FCC Rcd 17374 (2000) (Paxson filed a channel positioning
    complaint against Cox asking that the Commission require Cox to
    carry station KOPK-TV on its over-the-air channel position, or on a
    mutually agreeable channel throughout its cable systems serving the
    communities. The Bureau concluded that Cox was required to carry
    KOPX-TV on Channel 62, the Station's over-the-air position, or on a
    channel position agreeable to both parties.).

[^9]: *See Adell Broadcasting Corporation*, 12 FCC Rcd 15169 (1997);
    Petition at 3, *citing* 47 C.F.R. § 76.62(b).

[^10]: Petition at Exhibit 3.

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

[^12]: *Id.* at 2; Exhibit 2.

[^13]: *Id.* at 5.

[^14]: Opposition at 3.

[^15]: *Id.*

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

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

[^18]: *Id.* at Exhibit B.

[^19]: Reply at 2.

[^20]: *Id*. at 4.

[^21]: Petition at Exhibit 3 (Letter from Petra Redchuk, Associate
    General Counsel, Paxson Communications, to Steven J. Horvitz, Esq.,
    Cole Raywid & Braverman, L.L.P., counsel for Cox Cable, dated
    September 15, 2000).

[^22]: Paxson commissioned a telephone survey of Cox subscribers in the
    cable communities and submitted the alleged survey findings in the
    form of sworn declaration of its Associate General Counsel
    concluding that Cox failed to carry KOPX-TV on Channel 62 without
    material degradation, on a basic service tier at a channel position
    uniformly viewable by its subscribers.

[^23]: Opposition at 4.

[^24]: *Must Carry Order*, at 2990-2991 (1993) (If signal degradation
    occurs between the cable system's principal headend and the
    subscriber's terminal, it is the sole responsibility of the cable
    operator to ensure that it is operating in full compliance with the
    Commission's technical standards.).

[^25]: *Id*. at 2990 (If the problem stems from an unsatisfactory
    quality local television signal received at the cable system's
    principal headend, the cable operator is not required to bear the
    burden of improving the signal; however, we expect the cable
    operator to cooperate with the television station to resolve the
    problem.).

[^26]: 47 C.F.R. § 0.321.