SIERRA EAST TELEVISION v. WESTSTAR CABLE, CV-F-90-698 OWW.
| Decision Date | 31 October 1991 |
| Docket Number | No. CV-F-90-698 OWW.,CV-F-90-698 OWW. |
| Citation | 776 F. Supp. 1405 |
| Court | U.S. District Court — Eastern District of California |
| Parties | SIERRA EAST TELEVISION, INC., Plaintiff, v. WESTSTAR CABLE TELEVISION, INC., Defendant. And Related Counterclaims. |
Robert C. Vanderet, Katherine W. Pownell, Jens B. Koepke, O'Melveny & Myers, Los Angeles, Cal., Eric K. Hansen, Jory, Peterson & Sagaser, Fresno, Cal., for plaintiff.
Christopher Q. Britton, Michael R. Weinstein, Ferris & Britton, San Diego, Cal., for defendant.
The evidentiary hearing pursuant to Order Bifurcating Issue of Channel Capacity and Setting Evidentiary Hearing was held September 5 and 6, 1991.
Sierra filed this lawsuit November 13, 1990, seeking declaratory and injunctive relief, to enforce WestStar's alleged obligation under the 1984 Cable Act, 47 U.S.C. § 532 to designate channels for commercial use by unaffiliated persons based on the allegation that WestStar has 36 or more "activated channels." Sierra sought and obtained a temporary restraining order under which it operated Channel 12 until January 4, 1991. The Court upon the recommendation of both parties appointed an expert who rendered his report concluding that WestStar did not have 36 activated channels.
WestStar sought summary judgment. Upon the submission by Sierra of the opinion of its retained expert that WestStar had 36 or more "activated channels," an evidentiary hearing was ordered to determine whether the cable system operated by WestStar as of November 19, 1990, had 36 activated channels as that term is defined by 47 U.S.C. § 532(b)(1)(A) and related rules and regulations of the Federal Communications Commission. The evidentiary hearing was held September 5 and 6, 1991.
WestStar owns and operates a cable television system, which it purchased from Bishop Cable TV, Ltd., in early 1986. The cable system serves the City of Bishop and Inyo County under separate franchises. WestStar's TV cable system is operated from a single headend facility located in a windowless 15' × 20' building located on Airport Road near the Bishop Airport in Inyo County, California. The antenna site is located adjacent to the headend.
Sierra, under written lease with WestStar's predecessor, leased Channel 12, which it operated as ICTV Channel 12. The lease expired November 18, 1990. Sierra operated under the temporary restraining order till January 4, 1991. Since January 4, 1991, WestStar has operated Channel 12.
Sierra's Channel 12 was the sole independent television station in Inyo County, a rural sparsely populated area, which receives local television only through cable. Sierra offered diverse programming from an independent source. Sierra established a favorable and loyal audience.
Prior to the lease expiration, Sierra attempted unsuccessfully to negotiate with WestStar for lease renewal.
The WestStar cable system was inspected by Dane Ericksen of the firm Hammett & Edison, Consulting Engineers, Inc. A principal of that firm, Robert Hammett, was originally recommended to the Court by both parties to aid in the activated channel determination. Mr. Ericksen's inspection was conducted December 14, 1990.
Mr. Ericksen is a registered electrical engineer who previously worked for 12 years for the Federal Communications Commission (FCC) as a field engineer. He has performed field tests, enforced regulations for cable television systems, and has extensive additional experience in the cable television industry as a consulting electrical engineer. Mr. Ericksen concluded the cable system did not have 36 activated channels.
Mr. Ericksen was retained by WestStar to testify on its behalf at the evidentiary hearing. He has never testified on behalf of a cable operator. He tested the WestStar system while he was with the FCC. His current employer performed work for WestStar before Mr. Ericksen joined the firm. This prior work was disclosed to both parties before the appointment of his firm as court expert.
Sierra retained Jonathan Kramer, who is not an engineer, but has performed approximately 500 cable system tests and approximately 60 cable system evaluations. Mr. Kramer inspected the WestStar cable system May 8, 1991. His report concluded that the headend of WestStar's Bishop cable system is capable of combining 44 channels onto the cable distribution trunk.
Mr. Kramer almost exclusively represents cable franchisors, who are interested in providing the widest possible access to cable television. He has never testified on behalf of a cable operator. He acknowledged that it was in the interests of all his clients to see that Sierra obtained access to channel capacity in this case.
The WestStar cable system has two essential parts: the headend and the distribution system. The entire cable system is served by a single headend located near the Bishop Airport. Television broadcast signals reach the headend from various sources, including satellites, microwave system, over-the-air signals and local origination. Each broadcast signal is received at the headend, processed, assigned a specific radio frequency (RF) carrier for the desired cable channel, and combined with other RF carriers (cable channels) onto a single coaxial cable for transportation and delivery to subscribers via the distribution system.
The dispute between the parties arises out of their differing interpretations of the meaning of the term "activated channel" to determine commercial access requirements. Sierra contends that the headend of WestStar's cable system consists of three 12-port combiners and one 8-port combiner. From this Sierra argues that WestStar's headend is capable of combining 44 channels onto the cable distribution system trunk. Sierra offered Mr. Kramer's opinion that it is the number of input ports in the headend combiners that dictates the number of activated channels the headend can combine onto the single cable trunk. Sierra argues that the channel capacity of a cable distribution system is solely determined by counting the number of input ports in the headend combiners, here 44.
Sierra maintained that while it is common to place additional equipment such as modulators, processors, receivers, scramblers, and descramblers in the headend building in proximity to the headend as a matter of convenience and economy, such equipment need not be located at the headend and is not an integral part of the headend. Both parties agreed that receiving, modulating and processing equipment is required for a cable operator to actually deliver an RF carrier signal to subscribers. According to Sierra, it does not matter that modulators and/or processors are not in place because the cable operator does not provide programming on channels which could be made available to subscribers; if combiner ports exist, even if they are unavailable to receive RF carriers, "activated" channels exist, equal to the total number of combiner ports.
WestStar refers to the language of the Cable Act, FCC regulations, and legislative history to contend that "activated channels," defined as "those channels engineered at the headend of the cable system ..." (Emphasis added) (47 U.S.C. § 532(b)(5)(A)), means that the necessary equipment, including modulators and processors, must be in place to make channels generally available to residential subscribers of the cable system. It contends that its system has never had 36 "activated" channels, engineered at the headend.
Resolution of the difference in the parties' positions requires understanding the technology of cable television systems, statutory construction and application of the Cable Act definition of "activated channels."
WestStar's distribution system delivers signals for cable channels at assigned frequencies. The distribution system emanates from the headend. It consists of the trunk, distribution or feeder cable, and service drops (both overhead and underground). Trunk amplifiers are spaced along the trunk lines (distribution cable) to maintain signal strength and balance. Subscribers are served by service drops from taps on the distribution cable, which in turn is connected to the trunk and the trunk amplifiers. Both experts observed that the WestStar headend was comprised of electronic equipment racks, satellite and microwave receivers, satellite descramblers, modulators, processors, and a combining network. All modulators and processors utilized to transmit television signals for each cable channel are located at the headend of the WestStar cable system.
Cable channels are assigned standard 6 megahertz (MHz) segments of the frequency bandwidth as part of industry practice and custom.1 A distribution system designed for a 300 MHz bandwidth has the nominal capability of transmitting 35 to 37 cable channels (depending if channels A-1 and A-2 are included).2 Since early 1986 the non-rebuilt area of the WestStar cable system has been designed (equalized) for a 220 MHz bandwidth.
A modulator is an active device which accepts as input, video and audio signals. It generates a television signal modulated as a radio frequency (RF) carrier for the desired cable channel. A processor is an active device which accepts a television signal already modulated as an RF carrier, often at a weak level; it amplifies and frequency converts or heterodynes, the signal to the desired channel.
The experts agree that whatever the signal source, either a modulator (for satellite and microwave systems) or a processor (for over-the-air and local origination) is necessary to modulate or convert the signal to the standard RF carrier for each desired television channel. One modulator or processor must transmit each television signal for each cable channel from the headend through the distribution system. The time required to remove or add a modulator or processor, is comparable within 5-10 minutes, to the time to remove or...
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