Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5633-M                   |
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| Norwell Television, LLC v.       | ) |                              |
| Shrewesbury                      | * |                              |
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| Community Cablevision            |   |                              |
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| Request for Carriage             | * |                              |
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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.  Norwell Television, LLC, licensee of television station WWDP,
    Norwell, Massachusetts ("WWDP"), filed the above-captioned complaint
    against Shrewsbury Community Cablevision ("SCC") for its failure to
    carry WWDP on its system serving Shrewsbury, Massachusetts and the
    surrounding environs. An opposition to this petition was filed on
    behalf of SCC to which WWDP 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.[^1] A station's market for this purpose is its "designated
    market area," or DMA, as defined by Nielsen Media Research.[^2] A
    DMA is a geographic market designation that defines each television
    market exclusive of others, based on measured viewing patterns.

# DISCUSSION

3.  In support of its request, WWDP states that it is a full power,
    independent station licensed to the Boston, Massachusetts DMA, as is
    the cable system served by SCC. WWDP states that it acquired the
    station in June 2000 and broadcasts primarily Spanish-language
    programming provided by Telemundo.[^3] WWDP indicates that on July
    28, 2000, it formally requested carriage on the Shrewsbury cable
    system.[^4] WWDP states that SCC's August 29, 2000 response alleged
    that WWDP failed to provide a good quality signal to the cable
    system's principal headend.[^5] After receiving permission to
    measure its signal at the Shrewsbury headend site, WWDP states that,
    with the installation of an antenna and related equipment, it
    provided a good quality signal to the system on October 25,
    2000.[^6] However, despite this and its intention to improve its
    signal still further by the installation of a noise-reduction
    apparatus, WWDP states that SCC demanded, without explanation, the
    removal of all of WWDP's equipment from its headend tower.[^7] As a
    result of this demand, WWDP states that it filed the instant
    complaint.

4.  WWDP argues that its complaint was timely filed following the
    receipt of SCC's order to remove the station's equipment.[^8] WWDP
    asserts that because it is located within the same DMA as SCC's
    system, it is entitled to mandatory carriage if it satisfies the
    Commission's definition of a "qualified local commercial television
    station" under the must carry rules.[^9] WWDP states that it has
    satisfied this definition. WWDP points out that, as a station within
    the same DMA, its carriage will not cause increased SCC copyright
    liability.[^10] Further, WWDP states that it has specifically agreed
    to pay for the installation of any equipment necessary to ensure the
    delivery of a good quality signal.[^11] WWDP argues that the
    Shrewsbury cable system has 80 usable, activated channels and only
    carries 14 out of an obligated 26 local full power commercial and
    noncommerical television stations.[^12] WWDP therefore requests that
    the Commission grant its complaint and order SCC to commence
    carriage of its signal.

5.  In opposition, SCC states that, after receiving the must carry
    request from WWDP, it performed a signal strength test, utilizing
    the same testing techniques it has used for other must carry
    requests.[^13] SCC states that this test demonstrated that WWDP's
    signal level was --85 dBm, well below the required --45 dBm
    threshold required for a good quality signal.[^14] SCC points out
    that although WWDP's engineering consultant was able to achieve the
    receipt of a minimum level signal from WWDP, after the installation
    of additional signal boosting equipment, WWDP's picture quality
    still remains poor.[^15] SCC maintains that the picture quality of
    WWDP is not comparable with the other must carry broadcast stations
    its carries which meet the signal strength levels without the need
    to install additional equipment.

6.  In reply, WWDP argues that SCC's arguments are without merit since
    WWDP successfully provided a good quality signal to SCC's principal
    headend, until it was ordered to remove its equipment at SCC's
    request. WWDP points out that SCC has not refuted the fact that it
    is located within the same DMA as WWDP, that WWDP's carriage will
    not cause increased copyright liability, or that the cable system
    has the channel capacity to accommodate WWDP's signal. Although SCC
    has claimed that its signal strength test of WWDP resulted in a --85
    dBm signal level, WWDP argues that SCC has failed to provide any
    evidence to support this claim, as required by Section 76.61(a)(2)
    of the Commission's rules.[^16] Specifically, WWDP states that the
    cable operator must provide a list of the equipment used to make the
    measurements, the point of measurement, and a list and detailed
    description of the reception and over-the-air signal processing
    equipment used, including sketches such as block diagrams and a
    description of the methodology used for processing the signal at
    issue.[^17] As a result of SCC's failure to provide this
    information, WWDP maintains that its allegation of poor signal
    quality cannot be given any credence. WWDP asserts that once it
    purchased and installed the equipment necessary to deliver a good
    quality signal, SCC was obligated to commence carriage of its
    signal.[^18]

7.  We grant WWDP's complaint. The Commission's must carry regulations
    allow a commercial television signal to improve the reception of its
    signal at a cable system's principal headend by installing, at its
    own cost, the equipment necessary to ensure the delivery of a good
    quality signal.[^19] In initially testing the reception of its
    signal at SCC's headend, WWDP installed equipment which resulted in
    WWDP providing a signal that met the minimum signal strength
    criteria required by the Commission's rules. Furthermore, instead of
    commencing carriage of WWDP, SCC ordered WWDP to remove all of its
    equipment and denied any further access to its facilities. SCC in so
    doing alleged that WWDP was providing a poor quality signal.
    However, SCC provided no engineering evidence to support its
    allegations of poor signal quality. We find that SCC's actions
    contravene the intent of the must carry rules. As stated in the
    *Must Carry Order,* the Commission expects cooperation between cable
    operators and television stations where a station's signal quality
    is at issue.[^20] As a result, we order SCC to allow WWDP the
    opportunity to optimize its signal with equipment supplied by it,
    within 30 days of the release date of this Order.

# ORDERING CLAUSES

8.  Accordingly, **IT IS ORDERED** that the petition filed by Norwell
    Television, LLC. **IS GRANTED** pursuant to Section 614(d)(3) of the
    Communications Act of 1934, as amended (47 U.S.C. §534). Shrewsbury
    Community Cablevision **IS ORDERED** to commence carriage of WWDP on
    its cable system serving Shrewsbury, Massachusetts and the
    surrounding environs sixty (60) days from the release date of this
    Order.

9.  **IT IS FURTHER ORDERED** that Shrewsbury Community Cablevision
    allow WWDP to retest its signal using equipment supplied by WWDP at
    the system's principal headend, within thirty (30) days of the
    release date of this Order.

10. This action is taken pursuant to authority delegated by Section
    0.321 of the Commission's rules.

    FEDERAL COMMUNICATIONS COMMISSION

    Deborah Klein, Chief

    Consumer Protection and Competition Division

    Cable Services Bureau

[^1]: ^?^8 FCC Rcd 2965, 1976-2977 (1993).

[^2]: ^?^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).
    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"*).

[^3]: ^?^Petition at 1. WWDP indicates that its programming consists of
    news, entertainment, local public affairs, children's, and
    program-length presentations of local and national businesses and
    community organizations.

[^4]: ^?^*Id.* at Exhibit 1.

[^5]: ^?^*Id.* at Exhibit II.

[^6]: ^?^*Id.* at Exhibit IV.

[^7]: ^?^*Id.* at Exhibit V.

[^8]: ^?^47 C.F.R. §76.61(a)(3).

[^9]: ^?^47 C.F.R. §76.55(c)(2).

[^10]: ^?^17 U.S.C. §111(f).

[^11]: ^?^47 C.F.R. §76.56(b)(2).

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

[^13]: ^?^Opposition at 2.

[^14]: ^?^*Id.*

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

[^16]: ^?^47 C.F.R. §76.61(a)(2).

[^17]: ^?^*Id.*

[^18]: ^?^*See Shop at Home, Inc. v. Parnossos, L.P. d/b/a Adelphia
    Cable Communications,* 14 FCC Rcd 20591 (1999).

[^19]: ^?^*See Implementation of the Cable Television Consumer
    Protection and Competition Act of 1992, Broadcast Signal Carriage
    Issues ("Clarification Order"),* 8 FCC Rcd 4142, 4145 (1993).

[^20]: ^?^8 FCC Rcd at 2990.