March 12, 2001

Statement of Commissioner Harold W. Furchtgott-Roth

**In the Matter of Time Warner Cable**

**Emergency Petition of ABC, Inc. for Declaratory Ruling and Enforcement
Order for Violation of Section 76.58 of the Commission's Rules, or in
the Alternative**

**For Immediate Injunctive Relief**

# Consent Decree Order

I am disappointed with the action taken by the Cable Services Bureau for
several reasons.

At the outset, I must express my dissatisfaction that the Commission
involved itself in the ABC-Time Warner controversy in the first place.
Of course, I am troubled when consumers are held hostage by major media
corporations. The Commission, however, should not react to every problem
in the world as if it is the sole source of a legal solution. All too
often the Commission is not the only source of a remedy, and in this
case, the Commission does not have the legal authority to act. In any
instance, I am confident that any harm suffered by ABC, Inc., would have
been more effectively remedied in court.

The dispute between the parties arose out of retransmission consent
contract negotiations and should have been adjudicated in the state
court system. Notwithstanding this point, the Commission felt compelled
to intervene in this private battle between media giants.[^1] The ABC
television stations at issue in this proceeding have all elected
retransmission consent under Section 325, rather than mandatory carriage
under Section 614, as a means of accessing cable television households
in Time Warner's franchise areas. When crafting Section 325, Congress
did not instruct the Commission to adopt notification rules for stations
that enter into voluntary carriage arrangements. [^2] Rather, it
directed the Commission to implement such requirements only for
television stations choosing mandatory carriage under Section 614.[^3]

In addition, I continue to find it extremely troubling that the
Commission, or the Cable Services Bureau in this case, has labeled its
Order as a "consent decree" and that the company has made a "voluntary
contribution" to the U.S. treasury. While it is now 17 years since 1984,
it is no less Orwellian to use such phrases when the long shadow of the
government hangs over the head of the firm at issue. This matter becomes
even more sordid when Time Warner "volunteers" to participate in the
structure and substance of its own penalization.

Finally, I find that the action at issue should have been scrutinized by
the Commission, not the Cable Services Bureau. I do not believe the
Bureau should have the power to act on delegated authority when the
penalty imposed by a Notice of Apparent Liability or consent decree is
higher than \$20,000. In this case, the forfeited amount is \$72,000. To
add insult to injury, it appears that the Bureau has failed to adhere to
the requirement that a Notice of Apparent Liability presuppose the
issuance of an apparent forfeiture Order.[^4] These rules should apply
to consent decrees as well, whether signed voluntarily or under duress.
Once again, it appears that the Commission has declined to follow its
own rules.

\####

[^1]: Assuming arguendo, that the Commission has the ultimate
    responsibility to settle retransmission consent disputes of the type
    implicated here, a cloud of doubt remains whether the notification
    and deletion rules contained in Section 76.58 are at all applicable.
    *Cf.* *Implementation of the Cable Television Consumer Protection
    and Competition Act of 1992, Broadcast Signal Carriage Issues*,
    Report and Order, 8 FCC Rcd 295, 3004 (1993); *Memorandum Opinion
    and Order*, 9 FCC Rcd 6723, 6745-46 (1994) (Holding, without
    analysis, that the notification and deletion rules apply to stations
    electing retransmission consent in addition to stations electing
    mandatory carriage.)

[^2]: It is important to note that Congress specifically bifurcated
    retransmission consent from mandatory carriage in the Act. *See* 47
    U.S.C. §325(b)(4) ("If an originating television station elects
    under paragraph (3)(B) to exercise its right to grant retransmission
    consent under this subsection with respect to a cable system, the
    provisions of section 614 shall not apply to the carriage of the
    signal of such station by such cable system.")

[^3]: *See* 47 U.S.C. §534(b)(9)("A cable operator shall provide written
    notice to a local commercial television station at least 30 days
    prior to either deleting from carriage or repositioning that
    station. No deletion or repositioning of a local commercial
    television station shall occur during a period in which major
    television ratings services measure the size of audiences of local
    television stations."

[^4]: *See* 47 C.F.R. §1.80(f).