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 Federal  Communications  Commission  DA  01-  831 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of: 
 Paxson  Oklahoma  License,  Inc. 
 v. 
 Cox  Communications,  Inc. 
 Must  Carry  Complaint 

 )  ) 
 )  ) 
 )  ) 
 )  ) 
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 CSR-  5632-  M 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  April  2,  2001  Released:  April  3,  2001 
 By  the  Chief,  Consumer  Protection  and  Competition  Division,  Cable  Services  Bureau: 
 I.  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  Commissions  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  Commissions  rules.  2  Cox  filed  an 
 opposition  to  the  complaint.  Paxson  filed  a  reply. 

 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),  commercial  television  broadcast  stations 
 are  entitled  to  assert  mandatory  carriage  rights,  including  certain  mandatory  channel  position  rights,  on 
 cable  systems  located  within  the  stations  market.  3  A  stations  market  for  this  purpose  is  its  designated 

 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). 
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 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  Commissions  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 

 III.  DISCUSSION 
 4.  In  support  of  its  complaint,  Paxson  asserts  that  Cox  has  failed  to  comply  with  the  Bureaus 
 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  Commissions  must  carry  requirements.  Paxson 
 requested  that  Cox  relocate  KOPX-  TV  to  another  channel  position  on  Coxs  basic  tier  in  close  proximity 
 to  the  other  broadcast  stations  being  carried  by  Cox  and  available  to  all  of  Coxs  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  Coxs  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 

 4  Section  614(  h)(  1)(  C)  of  the  Communications  Act,  as  amended  by  the  Telecommunications  Act  of  1996,  provides 
 that  a  stations  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  stations  market  be  defined  by 
 Nielsen  Media  Researchs  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  Stations  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. 
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 Federal  Communications  Commission  DA  01-  831 
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 Coxs  subscribers  in  the  cable  communities,  and  to  carry  the  signal  on  that  channel  without  material 
 degradation.  13 

 5.  In  opposition,  Cox  requests  that  Paxsons  complaint  be  summarily  dismissed  as  both 
 unsubstantiated  and  an  abuse  of  process.  Cox  takes  issue  with  Paxsons  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  Paxsons  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  Paxsons 
 initial  expression  of  technical  concerns.  Moreover,  Cox  states  that  its  engineering  staff  has  been  unable  to 
 identify  any  technical  problem  with  KOPX-  TVs  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  Paxsons  claim  that  cable  Channel  62  is  categorically  unable  to  satisfy 
 Coxs  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  Coxs  decision  to  argue  Paxsons  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  Paxsons  petition.  As  an  initial  matter,  it  is  not  disputed  that  Coxs  cable  systems 
 serving  the  Oklahoma  City,  Oklahoma  DMA  currently  carry  KOPX-  TV  on  Channel  62.  21  Therefore, 
 Paxsons  petition  for  mandatory  carriage  mischaracterizes  the  relief  sought.  Rather,  Paxsons  petition 
 seeks  to  address  alleged  channel  reception  and/  or  technical  deficiencies  with  respect  to  Coxs  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 

 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. 
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 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  Paxsons  petition. 

 IV.  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  Commissions 
 rules.  26 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 Deborah  E.  Klein,  Chief 
 Consumer  Protection  and  Competition  Division 
 Cable  Services  Bureau 

 23  Opposition  at  4. 
 24  Must  Carry  Order,  at  2990-  2991  (1993)  (If  signal  degradation  occurs  between  the  cable  systems  principal 
 headend  and  the  subscribers  terminal,  it  is  the  sole  responsibility  of  the  cable  operator  to  ensure  that  it  is  operating 
 in  full  compliance  with  the  Commissions  technical  standards.). 

 25  Id.  at  2990  (If  the  problem  stems  from  an  unsatisfactory  quality  local  television  signal  received  at  the  cable 

 systems  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. 
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