**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | *  | MB Docket No. 06-151         |
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| Time Warner Cable,               | ** |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: August 7, 2006 Released: August 7, 2006**

By the Chief, Media Bureau:

# introduction

1.  Time Warner Cable ("Time Warner") seeks a stay and reconsideration
    of the Media Bureau's August 3 Order in the above-captioned
    proceeding, which required Time Warner temporarily to reinstate
    carriage of the NFL Network on systems that it recently acquired
    from Adelphia Communications and Comcast Corporation until the
    Commission is able to resolve on the merits the Emergency Petition
    for Declaratory Ruling ("Petition") filed by NFL Enterprises LLC
    ("NFL"). The NFL's Petition alleges that Time Warner discontinued
    carriage of the NFL Network without providing customers with the
    30-days notice mandated by section 76.1603 of the Commission's
    rules. For the reasons set forth herein, we deny Time Warner's
    Application for Stay and Petition for Reconsideration and Request
    for Referral to the Full Commission ("Petition for
    Reconsideration").

# background

2.  This controversy stems from Time Warner's action on August 1, 2006,
    to discontinue carriage of the NFL Network[^1] on cable systems that
    Time Warner had just acquired from Adelphia and Comcast ("newly
    acquired systems") in transactions approved by the Commission on
    July 13, 2006.[^2] The transactions involved a series of agreements
    between and among Time Warner, Comcast, and Adelphia, through which,
    among other things, Time Warner acquired control of cable systems
    from Adelphia and also gained control of cable systems from Comcast
    as a result of system swaps between the two companies.[^3] Pursuant
    to these transactions, Time Warner gained approximately 3.5 million
    subscribers.[^4]

3.  Before they were acquired by Time Warner, many of the systems
    transferred from Adelphia and Comcast carried the NFL Network. Time
    Warner, however, did not carry the NFL Network on any of its systems
    in the United States. As a result, prior to the closing of the
    Adelphia transactions, the NFL and Time Warner attempted to
    negotiate a carriage agreement that would have allowed the NFL
    Network to remain on Time Warner's newly acquired systems. With
    negotiations deadlocked and the projected closing date of the
    Adelphia transactions one week away,[^5] the NFL, on July 24, 2006,
    offered Time Warner authorization to carry the NFL Network on the
    systems it was about to acquire for a 30-day period on the same
    terms under which the network had previously been carried on those
    systems. This offer would have allowed Time Warner to provide
    subscribers with the 30-days notice of its decision to drop the NFL
    Network required by section 76.1603 of the Commission's rules, since
    Time Warner had yet to provide subscribers with any notice.[^6] On
    July 27, 2006, however, Time Warner rejected the NFL's offer,[^7]
    and on August 1, 2006, Time Warner discontinued carriage of NFL
    Network programming on its newly acquired systems.[^8] By its own
    acknowledgement, within two days of having dropped the NFL Network,
    Time Warner received at least 7,843 complaints and 88 requests for
    service disconnection as a result of dropping the network.[^9] In
    addition, the NFL has registered over 22,000 complaints from
    Designated Market Areas served by Time Warner.[^10]

4.  On August 1, 2006, the NFL filed with the Commission an Emergency
    Petition for Declaratory Ruling and Enforcement Order, or in the
    Alternative, for Immediate Injunctive Relief ("Petition"). In the
    Petition, the NFL alleged that Time Warner had violated section
    76.1603 of the Commission's rules when it dropped the NFL Network
    without providing subscribers the requisite notice 30 days in
    advance of its action.[^11] That section states, in pertinent part:

> \(b\) Customers will be notified of any changes in rates, programming
> services or channel positions as soon as possible in writing. Notice
> must be given to subscribers a minimum of thirty (30) days in advance
> of such changes if the change is within the control of the cable
> operator. . . .
>
> \(c\) In addition to the requirement of paragraph (b) of this section
> regarding advance notification to customers of any changes in rates,
> programming services or channel positions, cable systems shall give 30
> days written notice to both subscribers and local franchising
> authorities before implementing any rate or service change. . . . When
> the change involves the addition or deletion of channels, each channel
> added or deleted must be separately identified. . . .[^12]

5.  On August 3, 2006, the Media Bureau released an order ("August 3
    Order") concluding that the NFL had met its burden for injunctive
    relief and granting temporary injunctive relief in furtherance of
    the public interest, pending the outcome of our review on the
    merits.[^13] Because of the time-sensitive nature of the Petition,
    which sought immediate relief to restore the status quo pending
    review, the Media Bureau acted on the Petition two days after it was
    filed. At that time, notwithstanding the NFL's request for immediate
    relief, Time Warner had not yet filed a response to the NFL's
    Petition.

6.  The Media Bureau analyzed four factors before reaching its
    conclusion: (1) the likelihood of success on the merits; (2) the
    threat of irreparable harm absent the grant of preliminary
    relief; (3) the degree of injury to other parties if relief were
    granted; and (4) whether the preliminary relief would further the
    public interest.[^14] The August 3 Order concluded that the public
    interest factor, in particular, weighed heavily in favor of granting
    the temporary relief.[^15] The August 3 Order required Time Warner
    to immediately reinstate carriage of the NFL Network on all of its
    newly acquired systems on the previously applicable rates, terms,
    and conditions. The August 3 Order also established an expedited
    pleading cycle to afford the Commission the ability to promptly
    resolve the NFL's Petition on the merits.

7.  Later on August 3, 2006, Time Warner filed the instant Application
    for Stay of the Bureau Order and Petition for Reconsideration and
    Request for Referral to the Full Commission.[^16] At midnight that
    night, according to a press statement issued by the company, Time
    Warner complied with the August 3 Order by reinstating the NFL
    Network on the newly acquired systems.[^17] On August 4, 2006, the
    NFL filed an Opposition to Time Warner's Application for Stay.

# discussion 

8.  In this Order, we respond to Time Warner's Petition for
    Reconsideration and examine whether the relief granted in our August
    3, 2006 Order was lawful and appropriate. Recognizing that Time
    Warner had not responded before we issued the August 3 Order, we
    reexamine *de novo* the issues addressed in our earlier order,
    carefully considering Time Warner's submissions and all record
    materials. Based on this review, we believe that the relief granted
    in the August 3 Order was lawful and appropriate and therefore deny
    Time Warner's Petition for Reconsideration. Accordingly, Time Warner
    must carry the NFL Network on all of its newly acquired systems on
    the same terms under which it was carried prior to August 1, 2006.
    Time Warner must maintain carriage either until we resolve the NFL's
    Petition on the merits, or until 30 days after Time Warner has
    provided affected customers with adequate notice of its decision to
    drop the NFL Network, whichever comes first.

9.  In evaluating anew the interim relief granted in the August 3 Order,
    we once again consider the four criteria identified in that Order
    and used by federal courts to evaluate a request for a preliminary
    injunction: (1) the likelihood of success on the merits; (2) the
    threat of irreparable harm absent the grant of preliminary
    relief; (3) the degree of injury to other parties if relief is
    granted; and (4) whether the preliminary relief will further the
    public interest.[^18] We again recognize that in a situation such as
    this, involving "administration of regulatory statutes designed to
    promote the public interest," the public interest factor
    "necessarily becomes crucial."[^19] Additionally, the degree of harm
    that a petitioner must demonstrate varies with its chances for
    success on the merits. As the United States Court of Appeals for the
    Seventh Circuit has explained, "\[t\]he more likely the plaintiff is
    to win, the less heavily need the balance of harms weigh in his
    favor; the less likely he is to win, the more need it weigh in his
    favor."[^20]

    **A. Likelihood of Success on the Merits**

10. In light of the undisputed facts of the case, we conclude that the
    NFL has established a substantial likelihood of success on the
    merits. In its Petition for Reconsideration, Time Warner concedes
    that it: (1) failed to provide customers with 30-days notice before
    dropping the NFL Network; and (2) refused the NFL's offer "to allow
    Time Warner to continue to carry the network on the pre-existing
    terms and conditions" for those 30 days.[^21] Nevertheless, Time
    Warner argues that it did not violate section 76.1603 for two
    reasons, neither of which we find persuasive.

11. First, Time Warner claims that section 76.1603(b) is inapplicable on
    its face because Time Warner did not change "the service it offers
    to any of its subscribers."[^22] In other words, Time Warner argues
    that section 76.1603(b) does not require notification to customers
    for channel lineup changes that occur upon the sale of a cable
    operator's assets like those at issue here. As explained below, we
    reject Time Warner's interpretation of the rule as lacking any basis
    in the text or purpose of the provision. But as a preliminary
    matter, we find that Time Warner is precluded from advancing this
    interpretation here. This is because Time Warner's argument flatly
    contradicts the position taken by the company less than two weeks
    ago in the very proceeding approving Time Warner's acquisition of
    Adelphia and Comcast's assets ("the Adelphia transactions").

12. Specifically, on July 24, 2006, representatives of Time Warner,
    along with representatives of Comcast, had a phone conversation with
    Media Bureau personnel to discuss the Commission's Memorandum
    Opinion and Order approving the Adelphia transactions with
    conditions. During the phone call, Time Warner and Comcast requested
    alteration of the certification requirement described in paragraph
    54 of the Order, which originally required both companies to certify
    prior to closing that their systems would be in compliance with
    Commission's cap on the percentage of affiliated networks that may
    be carried by any cable operator. The two companies asked the
    Commission to postpone the certification requirement and allow the
    companies to make the certification 90 days after closing. Among
    other reasons, they argued that the postponement was necessary to
    give them "adequate time, pursuant to 47 C.F.R. § 76.1603(b)," to
    provide customers on newly acquired systems notice of any channel
    lineup changes required to bring the companies into compliance with
    the Commission's channel occupancy rules.[^23] Time Warner and
    Comcast asserted that the Commission's rules might require them to
    drop some affiliated networks from their newly acquired systems, and
    that they therefore needed time to make that determination and
    provide customers the 30-days notice required by section 76.1603(b)
    before the networks were dropped. The Media Bureau, acting under
    delegated authority, relied on these representations and granted
    Time Warner and Comcast the relief they sought.[^24]

13. Time Warner thus obtained regulatory relief from the Commission less
    than two weeks ago based upon an interpretation of section
    76.1603(b) -- that it does apply to channel changes made to newly
    acquired systems -- that is flatly inconsistent with the
    interpretation Time Warner offers now. We will not countenance such
    behavior by parties seeking relief from the Commission. After
    arguing successfully that section 76.1603(b) temporarily shields it
    from bringing newly acquired cable systems into compliance with the
    certification requirement, Time Warner cannot be heard to argue that
    those same cable systems are beyond the reach of section 76.1603(b).
    Accordingly, we find that Time Warner is estopped from arguing here
    that section 76.1603(b) does not apply to newly acquired
    systems.[^25]

14. Indeed, Time Warner has long been aware that section 76.1603 applies
    to newly acquired systems. In 1995, the company sought a waiver of
    section 76.964 (section 76.1603(c)'s predecessor) in advance of its
    acquisition of cable systems from Cablevision Industries
    Corporation.[^26] In that case, Time Warner argued, before the
    closing of the transaction, that the 30-days notice requirement
    should be waived so that Time Warner could expeditiously implement
    the initial rate restructuring and service changes required under
    the Social Contract that had been agreed to the year before by the
    company and the Commission. The Social Contract was designed to
    resolve all "tier rate cases" involving Time Warner then pending at
    the Commission. In light of the pro-consumer terms of the Social
    Contract, the Commission found that such a waiver would be in the
    public interest.[^27] Here, notably, Time Warner failed to seek any
    waiver of section 76.1603.

15. In any case, leaving aside Time Warner's past behavior, we also
    reject the company's interpretation of section 76.1603(b) on the
    merits. Because section 76.1603(b) is aimed at protecting
    subscribers, it is the subscribers' perspective -- not that of the
    cable operator -- that is relevant to determining whether a change
    in programming services has occurred. Here, it is undisputed that
    the programming provided to approximately 1.16 million households
    changed overnight,[^28] despite the lack of any action on the part
    of those consumers. Time Warner offers no basis in the text of the
    rule or elsewhere to support the conclusion that a change in
    programming services did not occur.

16. Second, Time Warner argues that even if section 76.1603(b) is
    generally applicable to newly acquired systems, it did not run afoul
    of the rule because the change in programming services at issue here
    -- the removal of the NFL Network -- was not within its control.
    Time Warner contends that this is because "\[t\]he plain and
    undisputed fact is that Time Warner had no right to carry \[the NFL
    Network\] on the former Adelphia and Comcast systems . . . after
    July 31, 2006." Moreover, it maintains that "\[h\]ad Time Warner
    continued carriage of \[the NFL Network\], it would have violated
    the copyright laws and been subject to the charge that it was
    unlawfully expropriating \[the NFL Network's property\]."[^29]

17. We disagree. The undisputed facts in this case demonstrate that the
    change in programming services was "within the control" of Time
    Warner. Had the NFL been unwilling to provide Time Warner with the
    legal right to continue to carry its programming, this might well be
    a different case. Here, however, it is undisputed that the NFL
    Network "offered to allow Time Warner to continue to carry the
    network on pre-existing terms and conditions" for 30 days and that
    Time Warner refused this offer.[^30] Time Warner's decision to
    reject this offer and drop the NFL Network appears to have been
    sufficiently within its control to fall within the rule. From all
    indications, it was a voluntary choice made by Time Warner, and the
    company does not argue to the contrary.[^31] A conclusion that this
    change was not in Time Warner's control is contrary to common sense
    and to the ordinary meaning of the word "control."[^32] Moreover,
    Time Warner's understanding of control is untenable, as it would
    mean that any time a programming contract expired, the cable
    operator could drop the programming at issue without any notice to
    subscribers. That result would substantially undermine the
    Commission's intent in adopting section 76.1603.

18. Perhaps recognizing the difficulties associated with its assertion
    that it lacked control over its decision to drop the NFL Network,
    Time Warner next argues that it could not have notified customers 30
    days before it dropped the NFL Network because it was uncertain when
    the Adelphia transactions would close. As an initial matter, Time
    Warner's argument is based on a misreading of section 76.1603(b).
    Under that provision, the relevant question is whether the change in
    programming services, *i.e.*, the decision to drop the NFL Network,
    was within the control of Time Warner, and we concluded above that
    this was the case. So long as Time Warner's decision to drop the NFL
    Network on August 1 from the cable systems in question was within
    its control, it is irrelevant for purposes of the rule that it may
    have lacked the ability to provide notice 30 days prior to that
    date.

19. In any event, Time Warner's argument that it "could not have
    possibly given effective notice" 30 days prior to its decision to
    drop the NFL Network is disingenuous. At the end of June, Time
    Warner was well aware that: (1) it had yet to secure an agreement to
    carry the NFL Network on its soon-to-be acquired systems; and (2) it
    was likely that the Adelphia transactions would close by the end of
    July. Notwithstanding Time Warner's claim that it could not predict
    the likely timeframe for the closing of the Adelphia
    transactions,[^33] multiple documents show that Time Warner was
    consistently planning over the course of a year for an orderly
    closing of the transaction by July 31, 2006, and that by late June,
    it was clear to the company that the closing would likely occur on
    or around that date. Among other things, the asset purchase
    agreements for the Adelphia transaction contained provisions
    allowing Time Warner and Comcast to terminate the transactions if
    they were not consummated by July 31, 2006.[^34] At the end of June,
    the bankruptcy court granted its approval for consummation of the
    transaction, thereby removing a large obstacle to the closing.[^35]
    Ex parte notices filed by Adelphia's counsel on July 5 and July 6,
    2006, made clear that the parties contemplated consummation of the
    transaction before the end of that month. According to those
    filings, counsel "stressed that the Commission should act
    expeditiously to approve the transactions so that the parties may
    close by the July 31, 2006 deadline established in the deal
    documents."[^36] Consequently, Time Warner easily could have
    provided customers with notice in late June or early July that,
    absent a change in circumstances, the NFL Network would be dropped
    from their systems.

20. Time Warner complains that, as of the beginning of July, it had
    failed to complete carriage agreements with numerous cable networks
    and broadcast stations. Thus, it contends that any notice that Time
    Warner gave under these circumstances "would have been of no value
    to consumers" and "would have created alarm and confusion among our
    subscribers," since it would have referenced many channels. This
    argument, however, has nothing to do with whether Time Warner
    complied with section 76.1603(b). Rather, it is an argument as to
    why Time Warner thinks that the rule, as applied in certain
    situations, may not be good policy. However, if Time Warner believed
    that complying with section 76.1603(b) in the context of the
    Adelphia transactions was not in the public interest, it was free to
    ask the Commission for a waiver of the rule in the Adelphia
    proceeding, as it did when acquiring cable systems from Cablevision
    Industries Corporation.[^37] Notably, it did not do so.
    Additionally, while Time Warner may explain why providing notice to
    customers in early July would not have been in Time Warner's private
    interest, it fails to advance a strong case that such notice would
    not have been in the interest of consumers. Time Warner adopts the
    paternalistic attitude that its soon-to-be customers were better off
    not knowing that Time Warner had yet to reach carriage agreements
    with certain networks and broadcast stations 30 days before the
    company was likely to assume control over those customers' cable
    systems and thus such networks and stations might soon be dropped.
    We do not agree. Had the customers in question been provided with
    this notice, they would have been able to make their voices heard,
    and Time Warner might have received additional valuable input from
    its soon-to-be customers with respect to the importance of the
    programming in dispute. Moreover, if a customer wanted to ensure
    that he or she would be able to view the threatened programming
    without interruption, he or she would have had time to research
    options offered by other multichannel video programming distributors
    and make alternative arrangements to switch. At the end of the day,
    Time Warner is really arguing that customers were better off being
    left in the dark because it was likely that carriage agreements
    would be reached with most of the networks and stations at issue.
    However, Time Warner provides no reason as to why it could not have
    explained this to consumers at the time, and we doubt that viewers
    of the NFL Network who awoke on August 1 to find that the network
    had been removed from their cable systems share Time Warner's view
    that the company was acting in the best interest of its subscribers.

21. Additionally, we note that, while Time Warner disputes our finding
    that the company apparently violated section 76.1603(b), nowhere
    does it contest our conclusion that it also apparently violated
    section 76.1603(c). That provision explicitly requires that cable
    operators provide subscribers and local franchising authorities with
    30 days written notice before implementing any change in programming
    services, and requires that each channel added or deleted must be
    separately added or identified in this notice. Significantly,
    section 76.1603(c)'s applicability is not limited to circumstances
    where the change in programming services is within the control of
    the cable operator. Leaving aside Time Warner's apparent violation
    of section 76.1603(b), the company's apparent violation of section
    76.1603(c) alone provides an independent ground to establish that
    the NFL has a substantial likelihood of prevailing on the merits and
    fully supports the interim relief ordered.

    **B. Balance of Equities**

22. We also conclude that the equitable factors support a grant of
    preliminary relief. We have carefully considered Time Warner's
    arguments with respect to these factors, and we find them
    unpersuasive.

23. To begin with, the August 3 Order is necessary to prevent
    irreparable harm to the NFL. As we observed in the August 3 Order,
    the NFL will be irreparably harmed by Time Warner's violation of the
    30-day notice rule, since the period just before the beginning of
    the football season is an important time for establishing viewing
    patterns.[^38] Time Warner argues that the NFL Network will not be
    harmed because, once the 30-day period is up, the NFL Network will
    no longer be available over Time Warner cable systems. For this
    reason, it concludes, "there are no viewership patterns to
    'establish.'"[^39] This overlooks one of the principal purposes of
    section 76.1603, which is to allow consumers to make alternative
    arrangements to view programming that is dropped by a cable
    provider. If Time Warner's subscribers were able to watch August
    pre-season activity on the NFL Network during the 30-day notice
    period, they might decide to switch from Time Warner to another
    provider so that they could continue to watch the NFL Network once
    the 30-day period was over.[^40]

24. Conversely, we conclude that the grant of preliminary relief will
    not cause significant injury to Time Warner. Time Warner argues that
    it will be unable to recover the fees it must pay the NFL to carry
    the NFL Network during the 30-day notice period. Whatever force this
    objection might otherwise have, in this case it is undermined by the
    NFL's offer to deposit the fees in an escrow account, and its
    commitment to repay the money should the Commission or a court
    determine that Time Warner did not violate section 76.1603.[^41]
    This promise ensures that Time Warner will not be irreparably harmed
    by having to pay for carriage of the NFL Network during the next 30
    days.

25. Time Warner also asserts that the August 3 Order harms its First
    Amendment interests by compelling it to carry a programming service
    that it wishes to discontinue.[^42] This is a criticism not of the
    August 3 Order, but of section 76.1603 itself, which states that
    cable operators must provide 30-days notice before they discontinue
    a programming service. Significantly, Time Warner makes no effort to
    argue that section 76.1603, which provides important consumer
    protections, is unconstitutional, either on its face or as applied
    to Time Warner's discontinuation of the NFL Network. Moreover, Time
    Warner, when it voluntarily acquired new systems from Adelphia and
    Comcast with Commission approval, was well aware that it would be
    expected to comply with the Commission's rules. If Time Warner
    believed that carrying the NFL Network or any other programming
    service for 30 days placed too onerous a burden on its First
    Amendment rights, then it should have sought a waiver of the
    Commission's rules or provided subscribers with 30-days notice so
    that it might drop the NFL Network as soon as it acquired the new
    systems. We also note that Time Warner has no objection in principle
    to carrying the NFL Network's programming. [^43] For all of these
    reasons, Time Warner's putative First Amendment interests provide no
    basis for relieving it of the plain requirements of the
    regulation.[^44]

26. Finally, and most importantly, the August 3 Order furthers the
    public interest. By enforcing the notice requirement of section
    76.1603, the grant of preliminary relief protects important
    interests of consumers. Cable subscribers typically pay for service
    one month in advance. For example, Time Warner's residential
    subscriber agreement provides: "I will be billed monthly in advance
    for recurring monthly charges."[^45] In other words, when
    subscribers pay their bills, they are paying for cable services that
    they have not yet received. The 30-day notice requirement of section
    76.1603 ensures that consumers actually receive the programming they
    were promised. Here, Time Warner's subscribers have paid their bills
    for August with the expectation that they will be able to view the
    NFL Network. Absent the August 3 Order, those expectations would be
    thwarted.

27. Moreover, the evidence in this case shows that this consumer
    interest is not merely theoretical. By Time Warner's own account,
    nearly 8,000 subscribers complained in just the first two days after
    the NFL Network was dropped.[^46] And the NFL points out that it
    received over 22,000 complaints from areas served by Time
    Warner.[^47] In addition, given that ownership of the systems in
    question recently shifted from Adelphia or Comcast to Time Warner,
    it is certainly possible that customer complaints were mistakenly
    directed to those companies as well. Time Warner argues that,
    because it gave notice in at least some communities on July 27 that
    it would drop the NFL Network on August 1, these consumers had
    sufficient time to change providers. This is simply an argument that
    the 30-day notice requirement is excessive and that some lesser
    period of notice would suffice. As we have observed, if Time Warner
    believed that the 30-day notice rule was inappropriate, it was free
    to ask for a waiver. Having failed to do so, it should not be
    permitted simply to disregard the rule, which reflects the
    Commission's considered judgment as to how much time customers
    should receive to arrange for alternative service.

28. Time Warner also argues that the August 3 Order will cause consumer
    confusion by requiring the removal or repositioning of the
    programming that Time Warner added in the NFL Network's place. This
    is a problem entirely of Time Warner's own creation, and it could
    have been avoided had Time Warner simply complied with section
    76.1603 in the first place. More importantly, the costs of any
    confusion associated with the August 3 Order have already been
    incurred, because Time Warner has complied with the Order and
    reinstated the NFL Network. If we were to grant the Petition for
    Reconsideration, we would be allowing Time Warner to switch its
    programming lineup for the third time in a week, and there would be
    a serious risk of additional consumer confusion. In addition, while
    Time Warner hypothesizes that placing the NFL Network on the newly
    acquired systems "may well result in the bumping of other cable
    programmers," thus abridging the First Amendment rights of those
    programmers and resulting in significant economic loss, Time Warner
    nowhere asserts that this, in fact, did happen between August 1 and
    August 3 and provides no information whatsoever about the identities
    of these other programmers. In any event, this too would be entirely
    a problem of Time Warner's own creation because it could have been
    avoided had Time Warner complied with section 76.1603.

    **C. Authority to Provide Interim Relief**

29. In light of the NFL's strong showing that it has a substantial
    likelihood of success on the merits, that the irreparable harm to
    the NFL from the foregoing interim relief outweighs any harm to Time
    Warner from granting interim relief, and that interim relief would
    further the public interest, we believe that our decision to provide
    the NFL with interim relief was entirely appropriate. Nevertheless,
    Time Warner contests our authority to issue interim relief in this
    case. Time Warner first argues that the Commission lacks authority
    to impose *any* remedy in this case because the company's violation
    of section 76.1603(b) does not constitute a systemic abuse that
    undermines the statutory objectives of the Cable Act of 1992, and
    that the Commission has limited its enforcement role to such
    cases.[^48]

30. As an initial matter, the Commission has never limited its
    enforcement role with respect to section 76.1603(c) to systemic
    abuses. Section 76.1603(b) originated as part of the Commission's
    customer service standards,[^49] and as explained below, the
    Commission has indicated that the primary responsibility for the
    enforcement of such standards rests with local franchising
    authorities. But section 76.1603(c), by contrast, was promulgated as
    part of the Commission's scheme of rate regulation,[^50] and the
    Commission has never limited its enforcement role in rate regulation
    matters to systemic abuses.[^51] Indeed, in adopting what is now
    section 76.1603(c) back in 1994, the Commission compared this new
    notice provision to the provision that is now section 76.1603(b).
    The Commission pointed out that the latter was primarily enforced by
    local franchising authorities but notably made no such statement
    about the new provision.[^52] And since 1994, the Commission has
    adjudicated cases involving the provision that is now section
    76.1603(c) involving only one cable system and one channel.[^53]
    Moreover, to the extent, as discussed below, that the Commission
    leaves to local franchising authorities the primary responsibility
    to enforce section 76.1603(b) where an abuse is not systemic, it is
    crucial that local franchising authorities receive timely notice of
    a cable operator's change in programming services. Section
    76.1603(c) is therefore also important to ensure that local
    franchising authorities can fulfill their responsibilities under
    section 76.1603(b).

31. In addition to determining that we have the authority to enforce
    section 76.1603(c), we conclude that Time Warner's challenged action
    also satisfies the threshold standard for Commission enforcement of
    section 76.1603(b) because it constitutes a systemic abuse that
    undermines statutory objectives. Although Time Warner characterizes
    this dispute as "an isolated instance of a single termination of a
    single channel,"[^54] the company dropped the NFL Network from
    multiple cable systems spanning numerous franchise areas, affecting
    approximately 1.16 million households from southern California to
    Maine.[^55] For that reason alone, Time Warner's actions appear to
    be systemic. Moreover, Time Warner's actions arise out of the
    transaction the Commission just approved in the Adelphia Order. As
    noted above, Time Warner indicated in that proceeding that section
    76.1603(b) would apply to channel lineup changes made in newly
    acquired systems and obtained regulatory relief on that basis. The
    Commission has an obvious interest both in ensuring that the
    implementation of transactions that it approves pursuant to 47
    U.S.C. § 310(d) serves the public interest,[^56] and in being able
    to rely on statements made by applicants in its proceedings. Indeed,
    it is disappointing that just days after the conclusion of a
    proceeding in which commenters as well as Commissioners had
    expressed serious concern about the impact that the Adelphia
    transactions would have on unaffiliated programmers,[^57] Time
    Warner chose to remove an unaffiliated network from former Adelphia
    and Comcast systems in a manner that apparently violated the
    Commission's rules. Time Warner's actions here thus implicate
    multiple interests of the Commission, making the Bureau's action
    particularly appropriate.

32. In short, this is not an isolated incident to be addressed by a
    single franchising authority; rather, it is a systemic abuse. As a
    practical matter, it does not make sense to require individual local
    franchising authorities to address a problem of nationwide scope.
    Agency action is therefore necessary and appropriate here to
    vindicate federal interests. To the extent that Time Warner implies
    that a systemic abuse must be repeated before the Commission may
    take action, we find that Time Warner's action here was repeated in
    that it spanned multiple local franchising authorities, from New
    York to Ohio to California. Moreover, an alleged violation need not
    be recurring in time to meet the threshold standard for Commission
    or Bureau action, and Time Warner does not cite to any Commission
    precedent, or statutory or regulatory text to the contrary.

33. Time Warner's decision to drop the NFL Network without providing its
    customers with the requisite 30-days notice also undermines one of
    the key objectives of the 1992 Cable Act. The key statutory
    objective is "to ensure that cable operators nationwide provide
    satisfactory service to their customers."[^58] Similarly, the
    legislative history of the Telecommunications Act of 1996 explains
    that Congress wanted "to ensure that consumers have sufficient
    warning about rate and service changes so they can choose to
    disconnect their service prior to the implementation of the
    change."[^59] Moreover, in that legislative history, Congress
    explicitly signaled its approval of the Commission's pre-existing
    30-day notice requirement, stating that "\[t\]he requirement that
    subscriber notice occur 30 days before the change is implemented
    achieves this purpose."[^60] Time Warner's apparent widespread
    violation of the Commission's 30-day notice requirement thus plainly
    undermines this important statutory objective.[^61]

34. Time Warner also argues that, even if Commission action were
    appropriate here, the interim relief granted in the August 3 Order
    exceeds our statutory authority. We reject this argument as well.
    The August 3 Order directed Time Warner to reinstate carriage of the
    NFL Network on all of its newly acquired systems "on the same terms
    under which it was carried prior to August 1, 2006, until we are
    able to resolve the NFL's Petition on the merits."[^62] Thus, in
    light of the showing made by the NFL, we merely returned the parties
    to the status quo ante to allow time for full consideration of the
    matter. Under section 4(i) of the Communications Act, "the
    Commission has been explicitly authorized to issue 'such orders, not
    inconsistent with this (Act), as may be necessary in the execution
    of its functions.'"[^63] Indeed, the Supreme Court affirmed the
    Commission's authority to impose such interim injunctive relief, in
    the form of a stand-still order, pursuant to section 4(i) in the
    *Southwestern Cable* decision.[^64]

35. Contrary to Time Warner's argument, the August 3 Order did not rely
    on section 4(i) for "independent substantive authority."[^65]
    Rather, the interim relief we ordered here represents the agency's
    enforcement of 47 U.S.C. §§ 543 and 552. In enforcing those
    statutes, section 4(i) merely authorizes us to tailor a remedy to
    "best meet the particular factual situation before \[us\]."[^66]

36. Time Warner does not dispute that the Commission has statutory
    authority under 47 U.S.C. §§ 543 and 552 to promulgate a 30-day
    notice rule, and any such argument would run contrary to both the
    statutory text as well as the explicit endorsement of the 30-day
    notice rule contained in the 1996 Telecommunications Act's
    legislative history.[^67] Thus, to the extent that the interim
    relief imposes a burden on Time Warner by forcing it to continue
    carrying the NFL Network on its newly acquired cable systems, the
    burden stems from customer service protections authorized by the
    Act. And because section 76.1603 is designed to protect subscribers
    from having programming services deleted without 30-days notice,
    directing that carriage be maintained until the network is removed
    pursuant to the requisite 30-days notice, or sooner if we are able
    to resolve the merits of a complaint -- in a case where there is a
    substantial likelihood that section 76.1603 has been violated -- is
    well within our authority under the Act.

37. Finally, Time Warner's reliance on *Complaint of WFXV-TV Against
    United Cablevision of Southern Illinois, Inc.,* for the proposition
    that the August 3 Order imposed a drastic sanction is
    inapposite.[^68] That case involved a situation where a cable
    operator was found to have terminated carriage of a low-power
    television station without providing the station itself with 30-days
    notice in violation of the Commission's rules.[^69] However, unlike
    the 30-days notice rule involving subscribers, the rule that a
    broadcast station is entitled to 30-days notice before carriage is
    discontinued is not a consumer protection regulation. Indeed, in
    *WFXV-TV*, the Commission explicitly found the cable operator *had
    complied* with the rule that subscribers receive 30-days notice
    before its carriage of the low-power station was discontinued. As a
    result, *WFXV-TV* lends no support to Time Warner's argument.[^70]

    **IV. CONCLUSION**

38. In the end, our role in this case is not to vindicate either the
    interests of the NFL or those of Time Warner. Rather, our lodestar
    is the interests of consumers. Here, the NFL has set forth a
    persuasive case that subscribers across the country were not
    provided with the requisite 30-days notice before Time Warner
    dropped the NFL Network from their cable systems. The interim relief
    we have granted provides a remedy for these subscribers until we are
    able to resolve the NFL's Petition.

    **V. ORDERING CLAUSES**

39. Accordingly, **IT IS ORDERED**, that pursuant to sections 4(i), 623,
    and 632 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 543, and 552, and 47 C.F.R. §§ 0.283, 0.61, 76.7, and
    76.1603, Time Warner Cable shall continue to carry the NFL Network
    on all systems newly acquired from Adelphia Communications and
    Comcast Corporation on the same terms under which the NFL Network
    was carried on those systems prior to August 1, 2006 until the NFL's
    Petition is resolved on the merits or until 30 days after Time
    Warner has provided affected customers with adequate notice of its
    decision to drop the NFL Network, whichever comes first.

40. **IT IS FURTHER ORDERED**, that Time Warner's Application for Stay,
    Petition for Reconsideration, and Request for Referral to the Full
    Commission are DENIED.

41. Finally, **IT IS FURTHER ORDERED**, that the Media Bureau SHALL
    IMMEDIATELY NOTIFY the NFL and Time Warner Cable of this Order and
    SHALL SEND it to the NFL and Time Warner Cable, by certified mail,
    return receipt requested.

    FEDERAL COMMUNICATIONS COMMISSION

Donna C. Gregg

Chief, Media Bureau

[^1]: The NFL Network is a programming service carried by cable
    operators and satellite providers that has in-depth coverage of the
    NFL, including pre-season and regular season games.

[^2]: *See Applications for Consent to the Assignment and/or Transfer of
    Control of Licenses, Adelphia Communications Corporation, Assignors
    to Time Warner Cable, Inc., Assignees, et al*. ("*Adelphia Order*"),
    Memorandum Opinion and Order, MB Docket No. 05-192, FCC 06-105 (rel.
    July 21, 2006).

[^3]: *See* Petition for Reconsideration at 6-7.

[^4]: *See Adelphia Order*, \_\_\_ FCC Rcd at \_\_\_, ¶ 9.

[^5]: *See* Petition at 6; Petition for Reconsideration at 7.

[^6]: 47 C.F.R. § 76.1603(b)-(c); *see* Petition at 2, 6. While it is
    undisputed that Time Warner failed to provide notice to subscribers
    before July 27, 2006, or four days before the company dropped the
    NFL Network, it is not clear from the record whether an unspecified
    number of newspaper advertisements run by Time Warner on July 27,
    2006, triggered the 30-day notice period. Time Warner provides no
    evidence as to how many newspapers these advertisements appeared in
    and does not assert that such advertisements were placed in each
    affected community across the country. *See* Petition for
    Reconsideration at 8.

[^7]: *See* Petition at 2.

[^8]: *See* Petition at 3.

[^9]: *See* Petition for Reconsideration, Exhibit 1 at 7.

[^10]: *See* Opposition at 6.

[^11]: *See* Petition at 3.

[^12]: 47 C.F.R. § 76.1603(b)-(c).

[^13]: *See* *Time Warner Cable*, DA 06-1587 (MB, rel. Aug. 3, 2006).

[^14]: *See* *id.* (citing *In re AT&T Corp., et al.*, 13 FCC Rcd 14508,
    14515-16 (1998)).

[^15]: *See* *id.* (citing *In re AT&T Corp., et al.*, 13 FCC Rcd at
    14516).

[^16]: While Time Warner requests that we refer its Petition for
    Reconsideration directly to the Commission, it chose not to file an
    Application for Review with the Commission. *See* 47 C.F.R. § 1.115.
    Therefore, we have the discretion to either to rule on the Petition
    for Reconsideration ourselves or to refer it to the Commission.
    *See* 47 C.F.R. §§ 1.104(b), 1.106(a)(1). In light of the
    time-sensitive nature of this dispute and Time Warner's request that
    the Bureau or the Commission act on its request by 10:00 AM on
    August 7, 2006, *see* Petition for Reconsideration at 2-3, we choose
    to dispose of the Petition for Reconsideration ourselves.

[^17]: *See* *Time Warner Reinstates NFL Net* [Broadcasting &
    Cable]{.smallcaps} (Aug. 4, 2006) (found at
    http://www.broadcastingcable.com/article/CA6359461.html?display=Breaking+News)
    (visited Aug. 5, 2006).

[^18]: *See In re AT&T Corp., et al.*, 13 FCC Rcd at 14515-16.

[^19]: *Id.* at 14516.

[^20]: *Roland Machinery Co.* *v*. *Dresser Indus., Inc.*, 749 F.2d 380,
    387-88 (7th Cir. 1984).

[^21]: *See* Petition for Reconsideration at 19.

[^22]: Petition for Reconsideration at 18.

[^23]: Letter from Michael H. Hammer, Willkie Farr & Gallagher, LLP, to
    Marlene H. Dortch, Secretary, FCC (July 25, 2006) (filed in MB
    Docket No. 05-192).

[^24]: *See Applications for Consent to the Assignment and/or Transfer
    of Control of Licenses, Adelphia Communications Corporation,
    Assignors to Time Warner Cable, Inc., et al*., Erratum, MB Docket
    No. 05-192, ¶ 10 (rel. July 27, 2006).

[^25]: *See* *Review Of The Section 251 Unbundling Obligations Of
    Incumbent Local Exchange Carriers*, Second Report and Order, 19 FCC
    Rcd 13494 ¶ 8 n.34 ("Judicial estoppel applies where a party assumes
    a successful position in a legal proceeding, and then assumes a
    contrary position simply because interests have changed . . . .");
    *cf. New Hampshire* *v*. *Maine*, 532 U.S. 742, 749 (2001); *Busse
    Broadcasting Corp. v. FCC*, 87 F.3d 1456, 1461 (D.C. Cir. 1996).

[^26]: *See In the Matter of Social Contract for Time Warner Cable*, 11
    FCC Rcd 3099, 3101 (Cable Services Bureau 1995).

[^27]: *See id*. There is no indication that implementation of the
    Social Contract would have caused Time Warner to terminate carriage
    of any programming services. Rather, it appears as though the waiver
    granted by the Commission had the principal effect of expediting the
    restructuring of rates and the creation of a low-cost, lifeline
    basic tier of service on Time Warner's newly acquired systems. *See
    id*. at 3099-3101.

[^28]: *See* Supplement to NFL Enterprises LLC's Opposition to Time
    Warner Cable's Application for Stay, Supplemental Declaration of
    David Proper at ¶ 1. The NFL Network was dropped from approximately
    785,000 households that were previously served by Adelphia, and from
    approximately 375,000 households formerly served by Comcast. *See
    id*. at ¶ 2.

[^29]: Petition for Reconsideration at 18.

[^30]: Petition for Reconsideration at 19. While it is undisputed that
    the NFL offered to allow Time Warner to carry the NFL Network on
    pre-existing terms and conditions, Time Warner complains in its
    Petition for Reconsideration that it does not know the terms of
    Comcast's deal with the NFL Network (it concedes that it knows the
    terms of Adelphia's deal with NFL Network). Notably, Time Warner
    nowhere contends that it made any effort to discover the terms of
    those agreements before rejecting the NFL's offer. In response, the
    NFL contends that its carriage agreement with Comcast is subject to
    confidentiality provisions and suggests that a Time Warner executive
    gave it mixed messages as to whether the NFL should nevertheless
    disclose the substantive terms of the contracts to Time Warner. In
    any event, the NFL indicates that it has now provided Time Warner
    with the substance of the terms of its carriage agreement with
    Comcast, thus enabling it to comply with the August 3 Order. *See*
    Opposition, Exhibit A, ¶¶ 12-14 (Affidavit of David Proper).

[^31]: Time Warner argues that our reading of section 76.1603(b) has
    given the NFL Network "the unilateral right to dictate carriage
    terms" (for 30 days) because "the NFL Network could as readily have
    offered carriage at twice or three times current rates." Our
    interpretation of the rule does no such thing. In this case, it is
    clear that the NFL Network offered to continue service for 30 days
    under preexisting terms and conditions. We need not decide here
    whether an offer to allow continued carriage at "patently
    unreasonable" rates for 30 days unlawfully deprives a cable
    operator, as a practical matter, of control over the decision to
    drop a programming service for purposes of the rule. Here, Time
    Warner makes no effort to demonstrate that the terms under which the
    NFL Network offered to allow temporary carriage were unreasonable.
    Moreover, given that Time Warner knew that it did not have a
    carriage deal with the NFL and that it would eventually be assuming
    control over new systems carrying that network, the company could
    have easily taken away from the NFL any "unilateral right to dictate
    carriage terms" simply by providing customers with 30-days notice
    that the NFL Network might be dropped.

[^32]: To illustrate Time Warner's control over the change in
    programming services here, imagine that Company X promises to
    deliver a package at a certain time "unless prevented by
    circumstances not within its control." Suppose further that Company
    X lacks a long-term contract with the supplier of fuel for its
    delivery vehicles, but that the supplier in question offers to
    continue selling it fuel on the same terms that it has sold fuel in
    the past. If Company X were to refuse the offer and decline to
    purchase fuel, no reasonable person would say that Company X's
    resulting inability to deliver the package was beyond its control.
    On Time Warner's theory, however, Company X could be relieved of its
    promise, because it has no legal ability to compel the supplier to
    sell fuel to it, even though fuel was offered to it on preexisting
    terms and conditions.

[^33]: *See* Time Warner's Petition for Reconsideration at 19-21.

[^34]: *See* *In re Applications for Consent to the Assignment and/or
    Transfer of Control of License of Adelphia Communications
    Corporation to Time Warner Inc. and of Adelphia Communications
    Corporation to Comcast Corporation and of Comcast Corporation to
    Time Warner Inc*., Public Interest Statement, Exhibit A (Asset
    Purchase Agreement between Adelphia Communications Corporation and
    Time Warner NY Cable LLC) (Apr. 20, 2005) at Section 8.2
    (Adelphia-TWNY Asset Purchase Agreement"); *Id.*, Letter from Angie
    Kronenberg, Willkie, Farr & Gallagher LLP, Counsel for Adelphia
    Communications Corp., to Marlene H. Dortch, Secretary, FCC (June 8,
    2006) (filed in MB Docket No. 05-192), Amendment No. 2 to Asset
    Purchase Agreement Between Adelphia Communications Corporation and
    Time Warner NY Cable LLC at Section 8.6 ("Amendment No. 2 to
    Adelphia-TWNY Asset Purchase Agreement"). The asset purchase
    agreements initially filed with the Commission also contained large
    break-up fees (to be paid by Adelphia to Time Warner and Comcast) if
    the transactions were not consummated by July 31, 2006.
    Adelphia-TWNY Asset Purchase Agreement at Section 8.6. Although the
    outside date for payment of the break-up fees was extended from July
    31 to August 31, Amendment No. 2 to Adelphia-TWNY Asset Purchase
    Agreement at Section 8.6, the *Adelphia* Applicants made it clear in
    their dealings with the Commission, as noted below, that they were
    preparing for a July 31 closing.

[^35]: On June 28, 2006, the bankruptcy court stated that the debtor
    parties were authorized to execute the purchase agreements or other
    related documents and to take any other actions necessary or
    appropriate to effectuate the purchase agreement. *Adelphia Order* ,
    \_\_\_ FCC Rcd \_\_\_\_ at ¶ 31 n.119 (2006). The bankruptcy court
    approved the sale of Adelphia's interests in two joint ventures to
    Comcast on June 29, 2006. *Id.; see also* Letter from Michael H.
    Hammer, Willkie Farr & Gallagher, LLP, to Marlene H. Dortch,
    Secretary, FCC (June 29, 2006) (filed in MB Docket No. 05-192).

[^36]: Letter from Michael H. Hammer, Willkie Farr & Gallagher, LLP, to
    Marlene H. Dortch, Secretary, FCC (July 5, 2006) (filed in MB Docket
    No. 05-192); Letter from Michael H. Hammer, Willkie Farr &
    Gallagher, LLP to Marlene H. Dortch, Secretary, FCC (July 6, 2006)
    (filed in MB Docket No. 05-192).

[^37]: *See supra* ¶ 14.

[^38]: *See Time Warner Cable* at ¶ 8; *see also* Declaration of David
    Proper (Opposition, Exhibit A), at ¶ 3 (explaining that the
    pre-season period is "of particular importance with respect to
    acquisition of viewers and establishment of viewing patterns");
    *id.* ¶ 5 ("\[The NFL Network\] builds on this high level of
    viewership \[in August\] to establish a relationship with its
    fans."); *id*. ¶ 6 ("During this period, \[NFL Network\] viewership
    has traditionally been at its highest.").

[^39]: Petition for Reconsideration at 16.

[^40]: We note that both of the nationwide DBS providers, DirecTV and
    Dish Network, offer the NFL Network. DirecTV carries the NFL Network
    in its Total Choice Plus package for \$49.99 a month. *See*
    http:www.directv.com/DTVAPP/packProg/channelChart1.jsp?assetId=90040
    (visited Aug. 6, 2006). Dish Network carries the NFL Network, on its
    America\'s Top 180 package for \$49.99 a month. *See*
    http://www.dishnetwork.com/content/programming/packages/at_150/index.asp?viewby=1&packid=10045&sortby=1
    (visited Aug. 6, 2006).

[^41]: *See* Opposition at 7-8.

[^42]: While Time Warner also suggests in one sentence of its Petition
    for Reconsideration that the interim relief in this case raises
    "\[t\]akings concerns," Petition for Reconsideration at 12, it
    provides no argumentation to support this assertion so we do not
    address it here.

[^43]: According to Time Warner, a principal dispute between the company
    and the NFL in the carriage negotiations involved the issue of tier
    placement. The NFL wanted the NFL Network placed in the more widely
    distributed expanded basic tier while Time Warner wanted to place it
    on a sports tier. Time Warner argued that placing the NFL Network on
    the expanded basic tier "would force virtually all of its customers
    to pay for programming in which a great many of them have little or
    no interest." Petition for Reconsideration at 8. While we express no
    view on this dispute, we note that in the past, Time Warner has
    strenuously opposed allowing consumers to pay only for the channels
    that they want in an a la carte system, maintaining that such a
    system would lead to higher prices for consumers, fewer programming
    choices, and difficulties for niche networks or new programming
    services. Comments of Time Warner Cable Inc., *In the Matter of A La
    Carte and Themed Programming and Pricing Options for Programming
    Distribution on Cable Television and Direct Broadcast Satellite
    Systems*, MB Docket No. 04-207, at 9-10 (July 15, 2004). Moreover,
    Time Warner Cable itself has acknowledged that it plans to use any
    money it saves on programming "to upgrade networks and introduce new
    products," rather than to lower customers' cable bills. Ken
    Belson**, "**Adelphia Deal May Cut Time Warner's Programming Costs,
    but Not Customers' Bills," New York Times, July 31, 2006, at C6.

[^44]: Time Warner's further assertion that the August 3 Order is
    suspect under the First Amendment because it appears to be
    content-based, "showing a preference for \[football\] programming
    over other programming," likewise misses the mark. Petition for
    Reconsideration at 12, n.4. The Bureau's action is not based on any
    judgment that the NFL Network's programming is superior to the
    programming offered by any network that Time Warner may choose to
    carry in the NFL Network's place. Rather, it is based on our
    content-neutral assessment that Time Warner apparently did not
    provide subscribers with 30-days notice before dropping the NFL
    Network. If Time Warner has dropped other networks without providing
    requisite notice, we will move swiftly to provide an appropriate
    remedy in such cases as well if they are brought to the Commission.
    In that vein, we note that Time Warner appears to acknowledge
    dropping another network from its newly acquired systems without
    providing 30-days notice, and we are currently investigating the
    facts of that situation. *See* Petition for Reconsideration at 7.

[^45]: Time Warner Cable Residential Services Subscriber Agreement,
    available at http://help.twcable.com/html/twc_sub_agreement2.html
    (visited Aug. 4, 2006).

[^46]: *See* Declaration of Michelle Kim, ¶ 18 (Petition for
    Reconsideration, Exhibit 1). In fact, the NFL argues that this
    number may significantly understate the number of customers who have
    attempted to complain to Time Warner because anecdotal evidence
    suggests that customers attempting to complain have faced long hold
    times and disconnected calls. Opposition at 6.

[^47]: *See* Proper Decl., ¶ 10-11.

[^48]: *See* Petition for Reconsideration at 9-10.

[^49]: What is now section 76.1603(b) originated as section
    76.309(c)(3)(i)(B) in 1993. *Implementation of Section 8 of the
    Cable Television Consumer Protection and Competition Act of 1992,
    Consumer Protection and Customer Service*, MM Docket No. 92-263,
    Report and Order, 8 FCC Rcd 2892 (1993) (*Cable Consumer Protection
    Order*). In 1999, it was moved to section 76.1603(b) as part of
    housekeeping efforts to place similar notice requirements in one
    place, *see* *1998 Biennial Regulatory Review -- Streamlining of
    Cable Television Services Part 76 Public File and Notice
    Requirements*, CS Docket No. 98-132, Report and Order, 14 FCC Rcd
    4653 (1999) ("Cable Streamlining Order").

[^50]: What is now section 76.1603(c) was originally promulgated as
    section 76.964(b) in 1994. *See* *Implementation of Sections of the
    Cable Television Consumer Protection and Competition Act of 1992:
    Rate Regulation*, MM Docket No. 92-266, Second Order on
    Reconsideration, Fourth Report and Order, and Fifth Notice of
    Proposed Rulemaking, 9 FCC Rcd 4119 (1994). Then, after being folded
    into section 76.964(a) in 1996, *see* *Implementation of Cable Act
    Reform Provisions of the Telecommunications Act of 1996*, CS Docket
    No. 96-85, Order and Notice of Proposed Rulemaking, 11 FCC Rcd 5937,
    the provision was moved to section 76.1603(c) in 1999 as part of the
    housekeeping effort identified in note 49 above. *See* Cable
    Streamlining Order, 14 FCC Rcd 4653.

[^51]: While Time Warner implies that the notice requirement here
    concerns "regulation of programming" not "regulation of rates,"
    Petition for Reconsideration at 11, the company ignores the fact
    that the reasonableness of a rate depends not only on the amount
    charged by the cable operator but also on the package of programming
    services that is purchased by the amount charged. Accordingly, the
    record is clear that the Commission has long viewed a notice
    requirement not only as part of its customer service standards but
    also as part of its scheme of rate regulation. *See* *Implementation
    of Sections of the Cable Television Consumer Protection and
    Competition Act of 1992: Rate Regulation*, MM Docket No. 92-266,
    Second Order on Reconsideration, Fourth Report and Order, and Fifth
    Notice of Proposed Rulemaking, 9 FCC Rcd 4119 (1994).

[^52]: *See* *id.* at 4185 ¶ 139.

[^53]: *See, e.g.*, *Complaint of WFXV-TV Against United Cablevision of
    Southern Illinois, Inc.*, 16 FCC Rcd 433 (2000), *recon. denied*, 18
    FCC Rcd 22782 (2003).

[^54]: Petition for Reconsideration at 10.

[^55]: *See* Supplement to NFL Enterprises LLC's Opposition to Time
    Warner Cable's Application for Stay, Supplemental Declaration of
    David Proper at ¶ 1-2. Specifically, the NFL Network was dropped
    from cable systems in at least the following Designated Market
    Areas: Albany-Schenectady-Troy, New York; Bangor, Maine; Binghamton,
    New York; Buffalo, New York; Burlington-Plattsburgh, New York;
    Cleveland-Akron, Ohio; Dallas-Fort Worth, Texas; Erie, Pennsylvania;
    Green Bay-Appleton, Wisconsin; Los Angeles, California;
    Portland-Auburn, Maine; Syracuse, New York; Toledo, Ohio; Utica, New
    York; and Youngstown, Ohio. *Id.* at ¶ 2.

[^56]: *See Adelphia Order* at ¶ 4 ("To obtain Commission approval, the
    Applicants must demonstrate that the proposed transactions will
    serve the public interest, convenience, and necessity pursuant to
    sections 214 and 310(d) of the Communications Act.").

[^57]: *See* *Adelphia Order* at ¶ 182-183; Dissenting Statement of
    Commissioner Copps at 2-3; Statement of Commissioner Adelstein
    Approving in Part and Dissenting in Part at 2; Statement of
    Commissioner Tate at 1.

[^58]: *Cable Consumer Protection Order*, 8 FCC Rcd at 2893 ¶ 4.

[^59]: H.R. Rep. 104-204(I), 104th Cong., 1st Sess. at 112 (1995),
    reprinted in 1996 U.S.C.C.A.N. 10.

[^60]: *Id.*

[^61]: *See id.*

[^62]: August 3 Order, at ¶ 10.

[^63]: *United States v. Southwestern Cable Co*., 392 U.S. 157, 181
    (1968), (quoting 47 U.S.C. § 154(i)).

[^64]: *Id. See AT&T Corp. v. Ameritech Corp.*, 13 FCC Rcd 14508 (1998)
    (stand-still order issued pursuant to 47 U.S.C. § 154(i) temporarily
    preventing Ameritech from enrolling additional customers in, and
    marketing and promoting, a "teaming" arrangement with Qwest
    Corporation pending a decision concerning the lawfulness of the
    program); *Amendment of Rules Governing Procedures to be Followed
    When Formal Complaints Are Filed Against Common Carriers*, 12 FCC
    Rcd 22497, 22566 ¶ 159 and n. 464 (1997) (stating that the
    Commission has authority under section 4(i) of the Act to award
    injunctive relief).

[^65]: Petition for Reconsideration at 11.

[^66]: *Ashtabula Cable TV, Inc. v. Ashtabula Tel. Co.*, 17 FCC 2d 113,
    119 ¶ 116, *recon. denied*, 18 FCC 2d 193 (1969).

[^67]: *See supra* ¶ 33.

[^68]: *See* Petition for Reconsideration at 13.

[^69]: *See* *Complaint of WFXV-TV Against United Cablevision of
    Southern Illinois, Inc.*, 16 FCC Rcd 433 (2000), *recon. denied*, 18
    FCC Rcd 22782 (2003).

[^70]: In *WFXV-TV*, the Commission in dicta did note that even had it
    found that the form of notice provided to subscribers by the cable
    operator had been improper, it would not have imposed a carriage
    remedy there. Given that the Commission in that case was issuing its
    decision on reconsideration *almost six years* after the low-power
    station had been dropped by the cable operator, it should come as no
    surprise that the Commission would note that a finding of a
    violation of the 30-days notice requirement would not have justified
    a carriage remedy many years after the fact. That case makes clear
    the importance of swift Commission action to maintain the status
    quo. Here, by contrast, we are confronting a case where the NFL is
    seeking temporary carriage (as opposed to permanent carriage) and
    where such relief has been granted only days after the programming
    was dropped. Moreover, in *WFXV-TV*, it was undisputed that the
    cable operator did attempt to provide 30-days notice to subscribers
    and the only question in dispute was whether the particular form of
    notice utilized was proper. Here, by contrast, Time Warner makes no
    claim that it made any effort to provide subscribers with 30-days
    notice.