Before the

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

AOL Time Warner, Inc. )

> )

Texas Networking, Inc. )

("Texas.net"), Petitioner ) CS Bureau File
No.\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> )

Petition for Declaratory Ruling and )

Complaint Regarding Violations )

Of Merger Conditions and for )

Enforcement of Merger Conditions )

To: The Chief, Cable Services Bureau

**PETITION AND COMPLAINT**

**TEXAS NETWORKING, INC.**

**("TEXAS.NET")**

W. Scott McCollough

David Bolduc

**Stumpf Craddock Massey & Pulman**

1801 North Lamar Blvd.

Suite 104

Austin, TX 78701

\(512\) 485-7820

August 9, 2001

# Table Of Contents

Table Of Contents [ii](#table-of-contents)

EXECUTIVE SUMMARY [iii](#executive-summary)

PETITION AND COMPLAINT [1](#petition-and-complaint)

I. DESCRIPTION OF THE PARTIES [1](#i.-description-of-the-parties)

A. AOL Time Warner [1](#a.-aol-time-warner)

*1.* *AOL* [2](#aol)

*2.* *Time Warner* [4](#time-warner)

*3.* *Time Warner Cable* [5](#time-warner-cable)

B. Texas.net [5](#b.-texas.net)

II\. BACKGROUND -- THE MERGER [6](#ii.-background-the-merger)

A. "Under Pressure" - The Merger's Dangers to Competition
[6](#a.-under-pressure---the-mergers-dangers-to-competition)

B. "Stand By Me" -- Protection of Unaffiliated ISPs
[7](#b.-stand-by-me-protection-of-unaffiliated-isps)

III\. BACKGROUND -- "NEGOTIATIONS" [9](#iii.-background-negotiations)

A. "Can't You Hear Me Knocking?" - Refusal to Negotiate and Undue Delay
of Negotiations
[10](#a.-cant-you-hear-me-knocking---refusal-to-negotiate-and-undue-delay-of-negotiations)

B. "The Letter" - More Delay, Still No Negotiations
[12](#b.-the-letter---more-delay-still-no-negotiations)

C. "I Hear You Knocking But You Can't Come In" - Refusal to Discuss
Technical Matters
[14](#c.-i-hear-you-knocking-but-you-cant-come-in---refusal-to-discuss-technical-matters)

D. "You Can't Hurry Love" - Refusal to Divulge National Contract Terms
[14](#d.-you-cant-hurry-love---refusal-to-divulge-national-contract-terms)

E. "Hello, Hello, Hello, Is There Anybody In There?" - Refusal to Offer
Terms
[15](#e.-hello-hello-hello-is-there-anybody-in-there---refusal-to-offer-terms)

F. "The Waiting Is The Hardest Part" - Local And Regional ISPs On Hold
[16](#f.-the-waiting-is-the-hardest-part---local-and-regional-isps-on-hold)

F. "Wait A Minute, Mister Postman" - Notice to AOL Time Warner
[16](#f.-wait-a-minute-mister-postman---notice-to-aol-time-warner)

IV\. DISCUSSION [17](#discussion)

A. "I Don't Want To Talk About It Now" -- Non-Negotiation and Delay
[17](#a.-i-dont-want-to-talk-about-it-now-non-negotiation-and-delay)

B. "Time Is On My Side" -- Costs Of Delay
[18](#b.-time-is-on-my-side-costs-of-delay)

C. "Short People Got No Reason To Live" -- Local and Regional ISPs
[18](#c.-short-people-got-no-reason-to-live-local-and-regional-isps)

V. CONCLUSION [19](#v.-conclusion)

VI\. PRAYER [21](#vi.-prayer)

CERTIFICATE OF SERVICE [23](#certificate-of-service)

VERIFICATION [25](#verification)

# EXECUTIVE SUMMARY

The Commission approved the merger of America Online, Inc. ("AOL") and
Time Warner Inc. ("Time Warner") into AOL Time Warner, Inc. ("AOL Time
Warner"), by allowing the transfer of certain licenses and
authorizations (in particular, licenses essential to the operation of
the cable systems then owned by Time Warner), on January 19, 2001,
subject to certain conditions.[^1]

The Commission found that the MOU on open access proffered by AOL and
Time Warner "by itself affords insufficient protection against the
potential harms to the public interest that could result from the
proposed merger."[^2] Similarly, the Commission found cause for concern
that the terms of the Consent Agreement entered into by AOL and Time
Warner before the FTC[^3] were not sufficient. The Commission therefore
imposed additional conditions upon the merger. Chief among those
conditions were that AOL Time Warner "must engage with local and
regional ISPs in a good faith, non-discriminatory manner"[^4] and
several other requirements "narrowly tailored to augment \[the FTC
Consent Agreement\] by preventing AOL Time Warner from utilizing certain
indirect means to disadvantage unaffiliated ISPs on its cable systems
due to their lack of affiliation."[^5]

Texas Networking, Inc. ("Texas.net") is a regional ISP unaffiliated with
AOL Time Warner, and is headquartered in Austin, Texas. Beginning in
August of 2000, during the pendency of the FCC's consideration of the
license transfers, and continuing to the present, Texas.net has
unsuccessfully attempted to negotiate with AOL Time Warner in order to
offer its services over AOL Time Warner's cable system on
non-discriminatory terms and conditions.

AOL Time Warner has consistently failed and refused to engage in
meaningful, good faith negotiations over substantive terms, and has
simply stalled and frittered away the last year without entering into
any real negotiations. AOL Time Warner will not meet with Texas.net,
will not discuss contract terms, and will not discuss technical issues.

AOL Time Warner has made it clear that it would be fruitless for
Texas.net to propose terms for AOL Time Warner's consideration by orally
indicating on several occasions that AOL Time Warner is not negotiating
and was not yet prepared to discuss substantive terms. It has become
apparent that AOL Time Warner does not intend to negotiate in good faith
with local and/or regional ISPs such as Texas.net for commercially
viable terms and conditions for access to AOL Time Warner's cable plant.
The unreasonable delay only serves to lengthen the time that AOL Time
Warner's own broadband ISP operations have a monopoly on cable broadband
access, and will certainly serve to protect AOL from meaningful
competition from local and/or regional ISPs after AOL is given access to
AOL Time Warner's plant.

Texas.net is aware that AOL Time Warner has executed an agreement (or an
agreement in principle) with at least three national ISPs, and was
informed by AOL Time Warner on February 20, 2001 that AOL Time Warner
was in active, substantive negotiations with other national ISPs.
Texas.net has also been told on at least two occasions that AOL Time
Warner plans to implement "third party ISP access" some time around the
end of the 3^rd^ quarter of 2001. This causes Texas.net to conclude that
AOL Time Warner's plan is to implement access arrangements with its
national ISP contracting partners at about that time.

AOL Time Warner informed Texas.net on or about March 12, 2001 that AOL
Time Warner still was not prepared to engage in substantive negotiations
with local and/or regional ISPs, and would not do so until after its
national agreements were approved. This necessarily means that local and
regional ISPs will not be allowed access to AOL Time Warner's cable
plant on commercially reasonable and viable terms until many months
after AOL and its national ISP contracting partners have such access.

AOL Time Warner has failed to negotiate with local and regional ISPs in
general, and Texas.net in particular, in a "good faith
non-discriminatory manner." First, it has essentially refused to
negotiate by engaging in stalling tactics, by failing to propose
substantive terms and conditions that are commercially viable, and by
indicating that any attempt by Texas.net to propose terms would be
fruitless and would be ignored until AOL Time Warner deigns to
negotiate. Second, the three AOL Time Warner "negotiators" have never
had and do not at present have the authority to bargain and conclude
negotiations with local and/or regional ISPs. Third, AOL Time Warner has
not agreed to meet at reasonable times, and has purposely acted in a
manner that unduly delayed the course of negotiations. Fourth, AOL Time
Warner is blatantly discriminating against local and regional ISPs by
delaying discussions with them while engaging in active negotiations
with national ISPs.

Texas.net therefore asks that the Commission take expedited action to
enforce the *AOL-Time Warner Order,* require AOL Time Warner to
negotiate with Texas.net, and supervise those negotiations in view of
AOL Time Warner's continued refusal to negotiate with local and regional
ISPs.

# PETITION AND COMPLAINT

## I. DESCRIPTION OF THE PARTIES

1.  The Commission is well aware of the nature and structure of AOL Time
    Warner and its major components, AOL and Time Warner, from its
    recently completed review of the merger. The descriptions below of
    AOL and Time Warner are essentially taken from their Public Interest
    Statements filed with the Commission and from the Commission's
    findings in the *AOL-Time Warner Order*.[^6]

2.  The actions complained of in this petition are those of AOL Time
    Warner, acting by and through its affiliate Time Warner Cable. As is
    apparent from the description below, the cable entities involved are
    controlled by Time Warner Cable, a subsidiary of Time Warner, a
    subsidiary of AOL Time Warner. The Commission recognized this
    structure in the *AOL-Time Warner Order*, and was aware of the kind
    of coordinated action complained of herein when it expressly bound
    all AOL Time Warner affiliates in that Order:

    "IT IS FURTHER ORDERED that all references to AOL, Time Warner, and
    AOL Time Warner in this *Order* shall also refer to their respective
    officers, directors, and employees, as well as to any affiliated
    companies, and their officers, directors, and employees, except as
    otherwise noted."[^7]

### A. AOL Time Warner

3.  Pursuant to an Agreement and Plan of Merger ("Agreement") dated as
    of January 10, 2000, America Online, Inc. ("AOL") and Time Warner,
    Inc. ("Time Warner") merged with subsidiaries of a newly formed
    holding company, AOL Time Warner, Inc. ("AOL Time Warner") in a
    stock-for-stock transaction. At the time of the merger announcement,
    this was the largest corporate merger in history, noted by the
    Commission as being "remarkable not only for its size, but also for
    the nature of the companies and the assets they control."[^8] The
    merged company accounts for more than \$34 billion in annual
    revenues.[^9]

4.  As a result of the merger, both AOL and Time Warner became wholly
    owned subsidiaries of AOL Time Warner. Upon consummation of the
    merger, the ultimate ownership and control of various entities
    holding FCC licenses was transferred from Time Warner and AOL to the
    new AOL Time Warner. AOL Time Warner provides Internet access
    service and content over the Internet, is the world's largest
    Internet access provider,[^10] and is a major cable system operator.
    At the time of the merger, through the Time Warner subsidiary, AOL
    Time Warner was the second largest cable provider in the country,
    serving 18.9% of the 67 million cable subscribers nationwide.[^11]
    It is apparently attempting to expand through a merger of its cable
    operations with those of AT&T.[^12]

####  *1. AOL*

5.  AOL is a worldwide provider of interactive services, Web brands,
    Internet technologies, and electronic commerce services. AOL has
    four principal operating groups: Interactive Services, Interactive
    Properties, AOL International, and Enterprise Solutions. AOL's
    operations can generally be characterized as follows:

-   *Interactive Services.* The Interactive Services Group develops and
    operates branded interactive services. AOL currently serves more
    than 28 million members worldwide through the Company's flagship AOL
    service (the world's largest Internet online service, serving more
    than 26 million members) and CompuServe (another Internet online
    service serving 2.8 million customers). The Interactive Services
    Group also includes (i) AOL's Netscape Netcenter, an Internet portal
    serving 20 million registered users; (ii) the AOL.com Internet
    portal; and (iii) the Netscape Communicator client software,
    including the Netscape Navigator browser. The Interactive Services
    Group also offers AOLTV, an advanced interactive television service,
    which allows access to AOL features over an interface laid over the
    television screens of subscribers.

-   *Interactive Properties.* The Interactive Properties Group consists
    of an array of branded properties that operate across multiple
    services and platforms, including: Digital City, Inc., a local
    content network and community guide on the Internet; ICQ, a
    communications portal providing instant communications as well as
    chat technology; AOL MovieFone, a movie guide and ticketing service
    provided both through interactive telephony and online; and the
    company's Internet music brands, Spinner.com, WINamp and SHOUTcast,
    which provide online music services.

-   *International.* The AOL International Group oversees the AOL and
    CompuServe services and joint ventures outside the United States
    (including Australia, Austria, Canada, France, Germany, Japan, the
    Netherlands, Sweden, Switzerland, and the United Kingdom), as well
    as the Netscape Online service in the United Kingdom. Globally,
    members are able to access these services in more than 100
    countries. AOL owns approximately 80% of America Online Latin
    America.

-   *Enterprise Solutions.* AOL's Enterprise Solutions Group consists
    primarily of the Netscape Enterprise Group, which provides
    businesses with a range of software products, technical support,
    consulting and training services, primarily in the electronic
    commerce infrastructure and electronic commerce solutions areas.

-   *Other Ventures, Including Satellite, TV, and Telephony.* AOL also
    has entered into a number of ventures with other companies serving a
    broad range of Internet and related industries. For example, AOL has
    entered into a strategic alliance with Sun Microsystems, Inc. (Known
    as the "Sun-Netscape Alliance") to develop and market client
    software and network application and server software for electronic
    commerce, extended communities and connectivity. Similarly, AOL made
    a \$1.5 billion investment in General Motors Corporation designed to
    enhance the ability of Hughes Electronics Corporation to develop and
    market integrated digital entertainment and Internet services
    through Hughes' DirecTV direct broadcast satellite service and
    DirecPC satellite-based broadband Internet delivery system, as well
    as to market AOL TV interactive television and AOL-Plus services.
    AOL also has made strategic investments in Internet-related
    companies such as Oxygen Media, iVillage, The Knot, Liberate
    Technologies, Multex, Net2Phone, Preview Travel and Talk.com.
    Talk.com and Net2Phone offer what the Commission refers to as
    "telephony services."

####  *2. Time Warner*

6.  Time Warner is a worldwide media and entertainment company. Time
    Warner's principal business objective is to create and distribute
    branded information and entertainment throughout the world. Time
    Warner's business interests fall into the following fundamental
    areas:

-   *Video Programming Networks.* Time Warner holds interests in
    numerous national, international, and regional programming networks,
    consisting principally of interests in cable television programming,
    including TBS, TNT, Turner Classic Movies, Cartoon Network, Turner
    South, CNN , CNN Headline News, CNN/SI, CNNfn, Home Box Office, and
    the WB Network, as well as 24-hour news channels in New York City,
    New York; Tampa Bay, Florida; Orlando, Florida; Rochester, New York;
    and Austin, Texas.

-   *Sports.* Through wholly owned subsidiaries of TBS, Time Warner owns
    the Atlanta Braves, Atlanta Hawks, and Atlanta Thrashers.

-   *Publishing.* These interests consist principally of interests in
    magazine publishing and direct marketing, including *Time*,
    *People*, *Sports Illustrated*, *Money*, *Fortune*, Warner Books and
    Time Life Inc., as well as book-of-the-month clubs and interactive
    media sites.

-   *Music.* These interests consist principally of interests in
    recorded music and music publishing, including Warner Music Group
    and its labels Atlantic, Elektra, Maverick Recording Co., Rhino,
    Sire, Warner Bros. Records and Warner Music International;[^13]

-   *Filmed Entertainment.* These interests consist principally of
    interests in filmed entertainment, television production and
    television broadcasting, including Warner Bros. Pictures, New Line
    Cinema, Castle Rock, Warner Home Video, Telepictures Distribution,
    and Warner Bros. Television.

-   *Telephony.* Time Warner provides both business and residential
    telephony services through Time Warner Cable, Time Warner Telecom,
    Inc., and Time Warner Connect, as well as through joint marketing
    agreements with AT&T.

-   *Internet Services.* Time Warner controls Road Runner (the nation's
    second largest high-speed ISP, and 13^th^ overall), a joint venture
    providing high-speed Internet access and content optimized for
    broadband networks with more than 1.1 million subscribers, of whom
    more than 719,000 are served by Time Warner Cable systems.

-   *Cable systems and MVPD Services.* Time Warner is the second largest
    cable provider in the country, serving 12.7 million subscribers,
    18.9% of nationwide cable subscribers, and 15.4% of MVPD
    subscribers. These interests consist principally of interests in
    cable television systems, including Time Warner Cable. Time Warner's
    cable systems are held through three entities managed by Time Warner
    Cable: Time Warner Entertainment ("TWE"); Time Warner Entertainment
    -- Advance/Newhouse Partnership (TWE-A/N"); and TWI Cable, Inc.
    ("TWI Cable). Time Warner owns 74.5% of TWE, approximately 67% of
    TWE-A/N, and all of TWI Cable.

####  *3. Time Warner Cable*

7.  Time Warner's cable systems are held through three entities managed
    by Time Warner Cable: Time Warner Entertainment ("TWE"); Time Warner
    Entertainment -- Advance/Newhouse Partnership (TWE-A/N"); and TWI
    Cable, Inc. ("TWI Cable). Time Warner owns 74.5% of TWE,
    approximately 67% of TWE-A/N, and all of TWI Cable.

8.  Through Time Warner Cable and Road Runner, Time Warner and therefore
    AOL Time Warner provide cable service and Internet access service in
    several cities served by Texas.net.

### B. Texas.net

9.  Texas Networking, Inc. ("Texas.net") is a regional ISP unaffiliated
    with AOL Time Warner, and is headquartered in Austin, Texas.
    Texas.net provides Internet access service in Austin, Bandera,
    Boerne, Dallas, Dripping Springs, Georgetown, Houston, New
    Braunfels, San Antonio, and Spring, Texas. AOL Time Warner, through
    Time Warner Cable, is the incumbent cable television provider in
    several of these cities.

## II. BACKGROUND -- THE MERGER

10. The Commission approved the merger of America Online, Inc. ("AOL")
    and Time Warner Inc. ("Time Warner") into AOL Time Warner, Inc.
    ("AOL Time Warner"), by allowing the transfer of certain licenses
    and authorizations (in particular, licenses essential to the
    operation of the cable systems then owned by Time Warner) on January
    19, 2001. This approval was not given without some concern on the
    part of the Commission about the possible anticompetitive
    implications of the merger, and the Commission's approval was made
    subject to certain conditions.[^14]

###  A. "Under Pressure" - The Merger's Dangers to Competition[^15]

11. The Commission noted that the FTC, in its review of the merger, had
    found that the merger would harm competition in the residential
    Internet access marketplace and imposed conditions on the merging
    parties requiring them to afford access to Time Warner's cable plant
    to unaffiliated ISPs. The Commission had its own concerns as well,
    and found it necessary to impose its own conditions on the merger.

12. The Commission focused on four major potential harms in its review
    of the proposed merger. First and foremost among these was that:

> "the proposed merger would give AOL Time Warner the ability and
> incentive to harm consumers in the residential high-speed Internet
> access services market by blocking unaffiliated ISPs' access to Time
> Warner cable facilities and by otherwise discriminating against
> unaffiliated ISPs in the rates, terms and conditions of access."[^16]

13. The Commission noted that, "absent mitigating conditions, the
    proposed merger would undermine competition in the provision of
    residential high-speed Internet services."[^17] It found that the
    MOU on open access proffered by AOL and Time Warner "by itself
    affords insufficient protection against the potential harms to the
    public interest that could result from the proposed merger."[^18]

###  B. "Stand By Me" -- Protection of Unaffiliated ISPs[^19]

14. Having determined that the merger as proposed, and as approved by
    the FTC, still offered real dangers to competition, the Commission
    determined to ameliorate those dangers as a condition of approving
    the merger.

15. The Commission elaborated upon the FTC merger conditions and the
    Consent Agreement entered into by AOL and Time Warner before the
    FTC,[^20] saying:

    We are convinced that the foregoing requirements will substantially
    ensure that unaffiliated ISPs are able to offer their services over
    AOL Time Warner's cable system on non-discriminatory terms and
    conditions**. However, we are concerned that AOL Time Warner will
    have insufficient incentives to enter contracts with local or
    regional ISPs that are unaffiliated with the merged firm.** We note
    that the FTC Consent Agreement requires AOL Time Warner to negotiate
    in good faith with any unaffiliated ISP seeking access to its cable
    systems. **Therefore, we reiterate here that AOL Time Warner must
    engage with local and regional ISPs in a good faith,
    non-discriminatory manner.** The requirements we discuss below
    regarding choice of ISPs, first screen, billing, technical
    performance, and disclosure of contracts are particularly relevant
    to the ability of smaller ISPs to negotiate carriage arrangements on
    non-discriminatory terms, and we expect that AOL Time Warner will
    negotiate in good faith to reach contract provisions that are
    consistent with the commercial viability of these entities.[^21]
    *(Emphasis added. Footnote omitted, but detailed below.)*

16. The requirement of good faith, non-discriminatory negotiation with
    local and regional ISPs was significant enough in the Commission's
    eyes to be singled out in the Commission's Public Notice[^22] and
    Fact Sheet[^23] issued the same day.

17. Commenting upon the phrase "good faith, non-discriminatory manner,"
    in footnote 295 to the text cited above, the Commission elaborated
    on the definition of "negotiate in good faith" in footnote 497 of
    the *AOL-Time Warner Order* (a discussion dealing with IM providers,
    but made applicable by footnote 295 to unaffiliated ISPs):

    By "negotiate in good faith," we mean that AOL Time Warner: (1) may
    not refuse to negotiate with another IM provider regarding
    interoperability; (2) must appoint a negotiating representative with
    authority to bargain and conclude an agreement on
    interoperability; (3) must agree to meet at reasonable times and
    locations and may not act in a manner that would unduly delay the
    course of negotiations; (4) may not put forth a single, unilateral
    proposal that is not subject to negotiation; (5) in responding to an
    offer proposed by another IM provider, must provide considered
    reasons for rejecting any aspects of the other provider\'s offer or
    proposal; (6) may not enter into an agreement that requires the
    other IM provider to interoperate exclusively with AOL Time Warner
    or authorizes AOL Time Warner to deny interoperability to any other
    IM provider; and (7) must agree to execute a written agreement that
    sets forth the full agreement between AOL Time Warner and the other
    IM provider. We add the seventh requirement to ensure that there are
    no misunderstandings as to the obligations of the parties to the
    agreement. In addition, because good faith determinations must be
    grounded on particular facts, we will also examine whether, based on
    the totality of the circumstances, AOL Time Warner has bargained in
    good faith. If we find that AOL Time Warner has not bargained in
    good faith, we will instruct AOL Time Warner to restart negotiations
    with the aggrieved IM provider, but will not mandate that the
    parties reach agreement or enter into a contract on specific terms
    or conditions. *Cf.* *Implementation of the Satellite Home Viewer
    Improvement Act of 1999, Retransmission Consent Issues: Good Faith
    Negotiation and Exclusivity*, CS Docket No. 99‑363, First Report and
    Order, 15 FCC Rcd 5445 (2000).\][^24]

18. The Commission went on to add further conditions of its own
    "narrowly tailored to augment \[the FTC Consent Agreement\] by
    preventing AOL Time Warner from utilizing certain indirect means to
    disadvantage unaffiliated ISPs on its cable systems due to their
    lack of affiliation."[^25] It further added a series of enforcement
    provisions designed to ensure AOL Time Warner's compliance with the
    *AOL-Time Warner Order*.[^26] These conditions were added because
    the Commission found it "necessary to impose remedial conditions to
    mitigate the merger's potential harms and in order to ensure that
    consumers enjoy the benefits the merger promises to offer."[^27]

## III. BACKGROUND -- "NEGOTIATIONS"

19. Until recently, AOL was "the leading voice in a movement led by
    narrowband ISPs to compel cable operators to allow competing ISPs to
    provide high-speed access to the Internet over their cable
    systems."[^28] With the AOL-Time Warner merger accomplished,
    however, this is no longer the case.[^29] AOL's voice is now silent
    (or, indeed, now speaking out of the other side of its mouth),
    especially as it pertains to the efforts of unaffiliated ISPs to
    gain access to cable plant.

20. The actions of AOL Time Warner, detailed below, speak louder than
    its words. Despite its attempts to *appear* willing to negotiate
    with local and regional ISPs, AOL Time Warner's actions actually
    demonstrate that:

-   **AOL Time Warner will not actually negotiate, that is, sit down and
    discuss terms and conditions for access to cable plant.**

-   **AOL Time Warner unduly delays negotiations.**

-   **AOL Time Warner will not discuss the technical matters necessary
    for access to the cable plant.**

-   **AOL Time Warner will not make available any contract terms,
    including the contract terms it has entered into with large national
    ISPs.**

-   **AOL Time Warner Will Not Negotiate With Local and Regional ISPs
    Until *After* it Completes Access Arrangements With Large National
    ISPs.**

-   **AOL Time Warner will not offer any terms at all to local and
    regional ISPs.**

21. Unfortunately, the Commission's reiteration of a requirement of good
    faith, non-discriminatory negotiations, even coupled with its added
    conditions and enforcement mechanism, has not been enough to ensure
    that AOL Time Warner actually engages in good faith
    non-discriminatory negotiations with unaffiliated local and regional
    ISPs. In fact, the record indicates clearly that AOL Time Warner is
    not interested in negotiating in good faith with unaffilated ISPs
    for access to its cable facilities. More action is needed
    immediately if the Commission intends to enforce its negotiation
    requirements.

### A. "Can't You Hear Me Knocking?" - Refusal to Negotiate and Undue Delay of Negotiations[^30]

22. For almost a year now, AOL Time Warner has refused to negotiate with
    Texas.Net over access to its cable plant, and has continuously
    unduly delayed any start of such negotiations. Beginning in August
    of 2000, during the pendency of the FCC's consideration of the
    license transfers, and continuing into 2001, Texas.net has attempted
    unsuccessfully to negotiate with AOL Time Warner in order to be able
    to offer its services over AOL Time Warner's cable system on
    non-discriminatory terms and conditions.[^31] Texas.net's attempts
    to get AOL Time Warner to negotiate in good faith have been
    fruitless, as the attached "Timeline for Open Access Negotiations
    With Time Warner" shows.[^32] Negotiations have been stalled a
    number of ways, including the refusal to discuss technical issues,
    the refusal to offer contract terms, and the repeated substitution
    of "negotiators," each of which entails new delays.

23. What limited "negotiations" Texas.net has been able to have with AOL
    Time Warner have, at best, been more negotiations over negotiating
    than negotiations over any concrete terms and conditions. In
    reality, they evidence AOL Time Warner's continued refusal to
    actually negotiate while trying to *appear* willing to negotiate.

24. A month (and four unanswered letters) went by before Time Warner
    Cable responded to Texas.net's original 8/25/00 request for
    negotiations. Delay after delay has occurred, and more time has been
    spent in discussing non-disclosure agreements than in any
    negotiations over concrete terms and conditions. A conference call
    finally scheduled for 11/29/00 to discuss technical interfaces was
    cancelled by AOL Time Warner on 11/27/00, and has never occurred.
    Almost four months passed before Texas.net was allowed to have its
    first (and only) conference call on 12/20/00 with Time Warner Cable
    to discuss access issues. Questions about technical issues and
    contract terms have gone unanswered.

25. On 1/29/01, after being asked repeatedly for the status of new
    contract terms, Time Warner Cable advised Texas.net that its
    negotiating personnel had changed, which delayed matters again.
    Negotiating personnel have changed again since that date.

### B. "The Letter" - More Delay, Still No Negotiations[^33]

26. On 7/30/01, Texas.net was advised by a letter from Edward Schor
    (attached hereto as "Attachment B") that negotiating personnel had
    changed yet again, and that Time Warner Cable was "now ready to
    begin discussions." There were, however, two catches: first, that
    after a year of attempting to negotiate with AOL Time Warner,
    Texas.net *now* needs to fill out a 4-page "questionnaire" before
    matters can proceed; and second, that matters will proceed (that is,
    AOL Time Warner "will be back in touch") at ... well, some point in
    the future. That is, it may "take time to get back to you."

27. The questionnaire is an excellent example of AOL Time Warner's lack
    of interest in good faith negotiation over terms and conditions of
    access to its cable plant. Not only does it request information
    which AOL Time Warner could (had it actually been interested in the
    substance, rather than the appearance of negotiating) have obtained
    during the last year, and which it admits "duplicates what you may
    have previously submitted to my colleagues," *the overwhelming
    majority of the information requested consists of confidential and
    proprietary information which is more geared to giving AOL Time
    Warner information about its local and regional competitors than it
    is to assisting with negotiations over access to the cable plant.*

28. The requested information is apparently *not* subject to the
    confidentiality agreements on which AOL Time Warner has spent so
    much time, and includes:

-   *The jurisdictions in which Texas.net is authorized to do business.*

-   *The names of Texas.net's principals and principal stockholders.*

-   *Texas.net's network vendor for toll-free dial-up connectivity and
    the boundaries of that service.*

-   *The geographic locations served by Texas.net.*

-   *The number of Texas.net DSL modems and the vendor.*

-   *The number and addresses of Texas.net's POPs.*

-   *The hours during which Texas.net's tech support is available.*

-   *The number of Texas.net dial-up lines.*

-   *Whether Texas.net resells dial-up or DSL services from another
    ISP.*

-   *Texas.net's pricing and average monthly number of customers for
    dial-up and DSL service.*

-   *Texas.net's total number of employees.*

-   *Texas.net's delinquent customer experience.*

-   *Texas.net's current number of customers, average number of monthly
    customers, and churn rate.*

-   *How much Texas.net plans to spend on marketing and promotion in the
    next 12 months.*

29. The questionnaire is not, in short, evidence of good-faith
    negotiation. It is, in fact, the opposite -- further evidence of
    intent to stall any actual negotiations for as long as possible by
    repeatedly delaying the point at which negotiations can actually
    begin. This technique should be familiar to the Commission, and the
    Commission should act swiftly to curb its use.

### C. "I Hear You Knocking But You Can't Come In" - Refusal to Discuss Technical Matters[^34]

30. Attempts by Texas.net to deal with technical issues have been
    similarly frustrated. A conference call finally scheduled for
    11/29/00 to discuss technical interfaces was cancelled by AOL Time
    Warner on 11/27/00, and has never occurred. Time Warner Cable says
    that it will refuse to answer these unless submitted in writing. On
    12/20/00, Time Warner Cable's negotiator informed Texas.net that
    Time Warner would respond only to technical questions related to
    their "MISP Master FAQ" which were submitted in writing.

31. However, submission of technical questions in writing is apparently
    not enough. Texas.net submitted a series of written technical
    questions to Time Warner Cable on January 3, 2001, and AOL Time
    Warner has to date not responded to those questions. Without those
    responses, little or no progress can be made in resolving technical
    issues.

### D. "You Can't Hurry Love" - Refusal to Divulge National Contract Terms[^35]

32. Texas.net is aware that AOL Time Warner has executed agreements (or
    agreements in principle) with at least three national ISPs
    (Earthlink, Juno, and High Speed Access), and was informed by AOL
    Time Warner on February 20, 2001 that AOL Time Warner was in active,
    substantive negotiations with other national ISPs. However,
    Texas.net has been unable, despite repeated written and oral
    requests for copies of agreements with large national ISPs, to get
    AOL Time Warner to divulge those contract terms.

### E. "Hello, Hello, Hello, Is There Anybody In There?" - Refusal to Offer Terms[^36]

33. AOL Time Warner has consistently failed and refused to engage in
    meaningful, good-faith negotiations over substantive terms with
    Texas.net. AOL Time Warner has made it clear that it would be
    fruitless for Texas.net to propose terms for AOL Time Warner's
    consideration, by orally indicating on several occasions before and
    after the FCC's approval of the merger that AOL Time Warner was not
    yet prepared to discuss substantive terms. Time Warner Cable has
    yet, despite repeated requests, to forward to Texas.net either
    proposed contract terms or a copy of its agreements with Earthlink
    (or any other national ISP).

34. After initially offering a proposed term sheet, AOL Time Warner has
    refused to offer any contract terms at all to Texas.net or other
    local and regional ISPs. Requests in January of 2001 for contract
    terms merely led to Texas.net being informed that negotiators had
    changed, and to further delays.

35. While Time Warner Cable finally (after repeated requests)
    represented to Texas.net on 2/20/01 that proposed contract terms
    would be available in March 2001, it announced on 3/12/01 that such
    terms, in the form of a proposed term sheet, would not be available
    until August, 2001. No such term sheet has been
    forthcoming.Texas.net has little faith, based on its record so far,
    that AOL Time Warner will indeed have any such terms to offer on
    that date.

36. The latest communication from AOL Time Warner (Attachment B) gives
    no ground for such faith. It demands information from Texas.net
    rather than offering information from AOL Time Warner, and deals
    with further progress in terms of "I'll be back in touch," and notes
    that it may "take some time to get back to you." How *much* time is
    still a mystery.

### F. "The Waiting Is The Hardest Part" - Local And Regional ISPs On Hold[^37]

37. Texas.net has also been told on at least two occasions by AOL Time
    Warner that it plans to implement "third party ISP access" some time
    around the end of the 3^rd^ quarter of 2001, but that there was no
    guarantee that this would occur in any city in Texas. This causes
    Texas.net to conclude that AOL Time Warner's plan is to implement
    access arrangements in some locations with several national ISPs at
    about that time.

38. AOL Time Warner informed Texas.net on or about March 12, 2001 that
    AOL Time Warner would not be prepared to engage in substantive
    negotiations with local and/or regional ISPs until after its
    national contracts were approved. This necessarily means that local
    and regional ISPs will not be allowed access to AOL Time Warner's
    cable plant on commercially reasonable and viable terms until many
    months after AOL and several national ISPs have such access. This
    delay violates the duty to negotiate in good faith imposed on AOL
    Time Warner by the Commission and is unreasonably discriminatory. It
    also deprives consumers of "the benefits the merger promises to
    offer."

### F. "Wait A Minute, Mister Postman" - Notice to AOL Time Warner[^38]

39. On April 9, 2001, Texas.net sent to Time Warner Cable a "Notice of
    Intention to File FCC Complaint," pursuant to the enforcement
    section of the *AOL-Time Warner Order*.[^39] A copy of that notice
    is attached hereto as "Attachment C." However, no meaningful good
    faith negotiations have occurred, and AOL Time Warner has never
    provided a written response to the notice.

## DISCUSSION

### A. "I Don't Want To Talk About It Now" -- Non-Negotiation and Delay[^40]

40. In the *AOL-Time Warner Order*, the Commission noted that it feared
    that without some action by the Commission:

> "the proposed merger would give AOL Time Warner the ability and
> incentive to harm consumers in the residential high-speed Internet
> access services market by blocking unaffiliated ISPs' access to Time
> Warner cable facilities and by otherwise discriminating against
> unaffiliated ISPs in the rates, terms and conditions of access."[^41]

and

> ... AOL Time Warner's ownership rights would also empower the merged
> company to deal with unaffiliated ISPs requesting carriage by offering
> them "take it or leave it" agreements based on terms that would render
> it difficult if not impossible for these ISPs to provide service over
> cable profitably.[^42]

41. The behavior of AOL Time Warner, detailed above, goes beyond the
    Commission's fears. It has not only failed to negotiate in good
    faith, it no longer even bothers to offer "take it or leave it"
    terms (admittedly, it did offer such terms initially, confirming the
    Commission's fears). It has refused to negotiate and has unduly
    delayed negotiations. It refuses to offer or discuss contract terms.
    Its negotiators change frequently and seem to have no authority to
    do anything more than ask for (not give) information. It refuses to
    discuss technical issues. It now apparently refuses to offer any
    terms at all, or to engage in any meaningful negotiations with
    Texas.net (and, presumably, other local and regional ISPs).

### B. "Time Is On My Side" -- Costs Of Delay[^43]

42. At the time of the merger, the Commission noted that:

> "We are guided both by the desire to avoid intervention and the
> realization that some degree of timely intervention to preserve
> competition may avoid a later need for more onerous intervention to
> either regulate where competition has disappeared or to attempt to
> reintroduce competition once it has been eliminated."[^44]

43. The Commission further noted that:

> "The record suggests that if AOL Time Warner were permitted to
> discriminate against unaffiliated ISPs in the terms and conditions of
> access to its cable network, many such ISPs would be unable to compete
> effectively, permitting the merged entity and its affiliated ISPs to
> attain a market-dominant position for residential high-speed Internet
> access within one to two years."[^45]

44. Arguably, half of that "one to two years" has already passed, and
    AOL Time Warner is well on its way to a market-dominant position.
    The danger of the disappearance or elimination of competition is
    real, and time is of the essence in this case. Every day that passes
    during which AOL Time Warner continues to refuse to negotiate in
    good faith with unaffiliated ISPs over access to its cable plant
    increases both AOL Time Warner's share of the broadband market and
    the danger that real competition will be eliminated. The Commission
    should, therefore, act immediately to ensure that AOL Time Warner
    obeys its directives enunciated in the *AOL-Time Warner Order*.

### C. "Short People Got No Reason To Live" -- Local and Regional ISPs[^46]

45. To the extent that AOL Time Warner has shown any inclination to
    negotiate with unaffiliated entities, this inclination has been
    restricted to large national ISPs. It does not extend to the smaller
    local and regional ISPs that the Commission tried to protect in the
    Time Warner Order.[^47] AOL Time Warner admits, in fact, that it
    will *not* negotiate with local and regional ISPs until *after* it
    has made deals with large national ISPs. It has clearly made no
    effort to do otherwise, and has steadfastly resisted efforts by
    Texas.net to negotiate.

46. In its discussion of public interest concerns in the *AOL-Time
    Warner Order*, the Commission noted the Communications Act's
    encouragement of "the widest possible diversity of information
    sources and services to the public"[^48] as well the Supreme Court's
    finding that decentralization of information production serves
    values that are central to the First Amendment and its conclusion
    that the Commission's interest in "promoting widespread
    dissemination of information from a multiplicity of sources" is "an
    important governmental interest."[^49]

47. These interests are important. They are, in fact, critical indeed,
    and they are not served when, as in this case, it is the
    centralization of information production that is served by
    restricting business opportunities only to large national
    enterprises and not to local and regional entities. The Commission
    should act to ensure that AOL Time Warner negotiates, as the
    Commission has already ordered it to, with local and regional ISPs
    as well as with large national ISPs.

## V. CONCLUSION

48. AOL Time Warner has failed to negotiate with local and regional ISPs
    in general, and Texas.net in particular, in a "good faith
    non-discriminatory manner" -- or in any real manner at all. First,
    it has essentially refused to negotiate by failing to propose
    substantive terms and conditions that are commercially viable (or
    any terms at all, for that matter), and by indicating that any
    attempt by Texas.net to propose terms would be fruitless and ignored
    until AOL Time Warner was ready to negotiate. Second, the three AOL
    Time Warner "negotiators" have never had, and do not at present
    have, the authority to bargain and conclude negotiations with local
    and/or regional ISPs, have never offered any terms, and have never
    been able to bargain over terms. Third, AOL Time Warner has not
    agreed to meet at reasonable times, has repeatedly changed
    "negotiators" in a way that effectively forced a re-start of
    "negotiations," and has purposely acted in a manner that unduly
    delayed the course of negotiations. Fourth, AOL Time Warner is
    blatantly discriminating against local and regional ISPs by delaying
    discussions with them while engaging in active negotiations with
    national ISPs.

49. It has become abundantly clear that AOL Time Warner does not intend
    to negotiate in good faith with local and/or regional ISPs for
    commercially viable terms and conditions for access to AOL Time
    Warner's cable plant, and that it has simply stalled and frittered
    away valuable time. The unreasonable delays only serve to lengthen
    the time that AOL Time Warner's own broadband ISP operations have a
    monopoly on cable broadband access, and will certainly serve to
    protect AOL from meaningful competition from local and/or regional
    ISPs after AOL is given access to AOL Time Warner's plant. It runs
    the danger of ensuring that competition is eliminated at the start
    of the race.

50. To remedy this situation, and ensure AOL Time Warner's compliance
    with the AOL Time Warner Order, the Commission should order AOL Time
    Warner to immediately engage in good faith non-discriminatory
    negotiations with Texas.net. It should further ensure that those
    negotiations are supervised and arbitrated by Commission staff,
    since AOL Time Warner either will not or cannot enter into such
    negotiations unaided.

51. The Commission should grant relief in this case in an expedited
    manner, certainly taking no more than the sixty (60) days provided
    in the *AOL-Time Warner Order*.[^50] There is, or should be, little
    or no dispute over the facts in this matter. Any delay only serves
    to lengthen the time that AOL Time Warner's own broadband ISP
    operations have a monopoly on cable broadband access, and will
    certainly serve to protect AOL from meaningful competition from
    local and/or regional ISPs after AOL is given access to AOL Time
    Warner's plant.

52. The Commission should also issue a declaratory ruling that the
    conduct of AOL Time Warner alleged above constitutes a violation of
    the *AOL-Time Warner Order*.

## VI. PRAYER

Wherefore, premises considered, Texas.net prays that:

1.  The Chief, Cable Services Bureau resolve this complaint under the
    procedure laid out in the AOL Time Warner Order;

2.  The Chief, Cable Services Bureau act within sixty (60) days to
    sustain the complaint and order AOL Time Warner to immediately
    negotiate in a good faith nondiscriminatory manner with Texas.net;

3.  The Chief, Cable Services Bureau order AOL Time Warner to furnish to
    Texas.net copies of all contracts with affiliated and unaffiliated
    ISPs for access to the AOL Time Warner cable plant;

4.  The Chief, Cable Services Bureau order the requested negotiations to
    be conducted on a strict timeline, under the supervision of his
    staff, and be arbitrated by his staff;

5.  The Chief, Cable Services Bureau, issue a declaratory ruling that
    the conduct of AOL Time Warner alleged above violates the *AOL-Time
    Warner Order*.

6.  The Commission and Chief, Cable Services Bureau order such other and
    further relief to which Texas.net may be justly entitled.

Respectfully submitted,

##### W. Scott McCollough

Texas State Bar No. 13434100

e-mail: wsmc@aus.scmplaw.com

> David Bolduc

Texas State Bar No. 02570500

e-mail: dbolduc@aus.scmplaw.com

[Stumpf Craddock Massey & Pulman, P.C.]{.smallcaps}

> 1801 North Lamar, Suite 104

Austin, Texas 78701

512/485-7920

512/485-7921 FAX

By:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

##### W. Scott McCollough

> Attorneys for Texas Networking, Inc.

# CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Petition
and Complaint has been served on the following by electronic mail and/or
by first class U.S. mail, properly addressed with postage prepaid, on
this 9th day of August, 2001.

W. Kenneth Feree Magalie Roman Salas

Chief, Cable Service Bureau Secretary

Federal Communications Commission Federal Communications Commission

445 12^th^ Street, S.W. 445 12^th^ Street. S.W.

Washington, D.C. 20554 Washington, D.C. 20554

Stephen M. Case Gerald M. Levin

AOL Time Warner, Inc. AOL Time Warner, Inc.

800 Connecticut Avenue, N.W. 800 Connecticut Avenue, N.W.

Suite 800 Suite 800

Washington, D.C. 20006 Washington, D.C. 20006

Chris Bogart Timothy A. Boggs

President and CEO Time Warner Inc.

Time Warner Cable 800 Connecticut Avenue, N.W.

290 Harbor Drive Suite 800

Stamford, CT 06902 Washington, D.C. 20006

George Vradenburg, III Peter D. Ross

AOL Time Warner, Inc. Wiley Rein & Fielding

1101 Connecticut Avenue, N.W. 1776 K Street, N.W.

Suite 400 Washington, D.C. 20006

Washington, D.C. 20036

Steven N. Teplitz Donna M. Lampert

Vice President, Communications Policy Lampert & O'Connor, P.C.

& Regulatory Affairs 1750 K Street, N.W.

AOL Time Warner, Inc. Suite 600

1101 Connecticut Avenue, N.W. Washington, D.C. 20006

Suite 400

Washington, D.C. 20036

Edward Schor

Time Warner Cable

290 Harbor Drive

Stamford, CT 06902

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

W. Scott McCollough

# VERIFICATION

**STATE OF TEXAS**

**COUNTY OF TRAVIS**

I, Ronald B. Yokubaitis, do on oath depose and state that the facts
contained in the foregoing document are true and correct to the best of
my knowledge and belief.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

SIGNATURE OF PERSON VERIFYING DOCUMENT

Name: Ronald B. Yokubaitis

Title: Chairman, Texas Networking, Inc.

SIGNED AND SWORN TO BEFORE ME THIS \_\_\_\_\_\_ DAY OF AUGUST, 2001.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

NOTARY PUBLIC

**ATTACHMENT A**

**TIMELINE**

**ATTACHMENT B**

**TIME WARNER CABLE LETTER**

**ATTACHMENT C**

**TEXAS.NET NOTICE LETTER**

[^1]: *Applications for Consent to the Transfer of Control of Licenses
    and Section 214 Authorizations by Time Warner Inc. and America
    Online, Inc., Transferors to AOL Time Warner Inc., Transferee*, CS
    Docket No. 00-30, Memorandum Opinion and Order ("*AOL-Time Warner
    Order*"), 16 FCC Rcd 6547 (2001).

[^2]: *AOL-Time Warner Order*, *supra*, at ¶ 96.

[^3]: *In the Matter of America Online, Inc. and Time Warner Inc.¸* FTC
    Docket No. C-3989, Agreement Containing Consent Orders; Decision and
    Order, 2000 WL 1843019 (FTC) (proposed Dec. 14, 2000) ("FTC Consent
    Agreement").

[^4]: *AOL-Time Warner Order*, *supra*, at ¶ 197.

[^5]: *AOL-Time Warner Order*, *supra*, at ¶ 126.

[^6]: *See generally* *Applications for Consent to the Transfer of
    Control of Licenses and Section 214 Authorizations by Time Warner
    Inc. and America Online, Inc., Transferors to AOL Time Warner Inc.,
    Transferee*, CS Docket No. 00-30, Memorandum Opinion and Order
    ("*AOL-Time Warner Order*"), 16 FCC Rcd 6547 (2001), at ¶¶ 27-46.

[^7]: *AOL-Time Warner Order*, *supra*, at ¶ 335.

[^8]: *AOL-Time Warner Order*, *supra*, at ¶ 2.

[^9]: *AOL-Time Warner Order*, *supra*, at ¶¶ 27, 36.

[^10]: *AOL-Time Warner Order*, *supra*, at ¶¶ 8, 75.

[^11]: *AOL-Time Warner Order*, *supra*, at ¶¶ 37, 76.

[^12]: *AT&T and AOL Discuss a Cable Merger*, [Wall Street
    Journal]{.smallcaps}, July 26, 2001 at A3.

[^13]: On January 24, 2000, Time Warner and EMI Group plc announced that
    they had signed definitive agreements to combine their recorded
    music and music publishing businesses into a global joint venture to
    be owned equally by Time Warner and EMI Group. The eleven-member
    Warner EMI Music board of directors, controlled by Time Warner, will
    consist of six Time Warner designees and five EMI designees. The
    transaction is subject to certain conditions, including regulatory
    consents and EMI Group shareholder approval, and was expected to be
    completed by the end of 2000.

[^14]: *Applications for Consent to the Transfer of Control of Licenses
    and Section 214 Licenses Time Warner Inc. and America Online, Inc.,
    Transferors to AOL Time Warner Inc., Transferee*, CS Docket No.
    00-30, Memorandum Opinion and Order ("*AOL-Time Warner Order*"), 16
    FCC Rcd 6547 (2001).

[^15]: Some section headings include song lyrics or titles. For the
    reader's convenience, the song title and artist(s) are noted. *Under
    Pressure*, David Bowie/Queen, 1981.

[^16]: *AOL-Time Warner Order*, *supra*, at ¶ 18.

[^17]: *AOL-Time Warner Order*, *supra*, at ¶ 57. *See also* *AOL-Time
    Warner Order*, *supra*, at ¶ 86-88.

[^18]: *AOL-Time Warner Order*, *supra*, at ¶ 96. The Commission also
    noted that the MOU was not legally enforceable. *AOL-Time Warner
    Order*, *supra*, at ¶ 95.

[^19]: Stand By Me, Ben E. King, 1961.

[^20]: *In the Matter of America Online, Inc. and Time Warner Inc.¸* FTC
    Docket No. C-3989, Agreement Containing Consent Orders; Decision and
    Order, 2000 WL 1843019 (FTC) (proposed Dec. 14, 2000) ("FTC Consent
    Agreement").

[^21]: *AOL-Time Warner Order*, *supra*, at ¶ 97

[^22]: "The Commission ... reiterated that AOL Time Warner must engage
    with local and regional ISPs in a good faith, nondiscriminatory
    manner." Public Notice FCC 01-11, located at:
    <http://www.fcc.gov/Bureaus/Cable/Public_Notices/2001/fcc01011.doc>
    .

[^23]: "... the FCC reiterated that AOL Time Warner must engage with
    local and regional ISPs in a good faith, nondiscriminatory manner."
    Fact Sheet, located at:
    <http://www.fcc.gov/Bureaus/Cable/Public_Notices/2001/fcc01011_fact.doc>
    .

[^24]: *AOL-Time Warner Order*, *supra*, at ¶ 96, footnote 297, footnote
    495.

[^25]: *AOL-Time Warner Order*, *supra*, at ¶ 126.

[^26]: *Id.*

[^27]: *AOL-Time Warner Order*, *supra*, at ¶ 314.

[^28]: *AOL-Time Warner Order*, *supra*, at ¶ 13; *see also AOL-Time
    Warner Order*, *supra*, at ¶ 54; *In the Matter of Application for
    Consent to the Transfer of Licenses and Section 214 Authorizations
    from MediaOne Group, Inc., Transferor, to AT&T Corp., Transferee*,
    CS Docket No. 99-251, AOL Comments at 12-17; *In the Matter of
    Application for Consent to the Transfer of Licenses and Section 214
    Authorizations from Tele-Communications, Inc, Transferor, to AT&T
    Corp., Transferee*, CS Docket No. 98-178, AOL Comments at 30-39.

[^29]: Pun intended.

[^30]: *Can't You Hear Me Knocking*, The Rolling Stones, 1971.

[^31]: Texas.net's negotiations with AOL Time Warner have generally been
    through Time Warner Cable personnel. The two, for the purposes of
    the "negotiations" discussed above, appear to be identical.

[^32]: A copy is attached hereto as "Attachment A."

[^33]: *The Letter*, The Box Tops, 1967; The Arbors, 1969; Joe
    Cocker/Leon Russell, 1971.

[^34]: From *I Hear You Knocking*, Smiley Lewis, 1955.

[^35]: *You Can't Hurry Love*, The Supremes, 1966.

[^36]: From *Brain Damage*, Pink Floyd, 1973.

[^37]: From *The Waiting*, Tom Petty and the Heartbreakers, 1981.

[^38]: From *Please Mr. Postman*, The Marvelettes, 1961.

[^39]: *AOL-Time Warner Order*, *supra*, at ¶ 126

[^40]: *I Don't Want To Talk About It Now*, Emmylou Harris, 2000.

[^41]: *AOL-Time Warner Order*, *supra*, at ¶ 18.

[^42]: *AOL-Time Warner Order*, *supra*, at ¶ 87.

[^43]: *Time Is On My Side*, Irma Thomas, 1964; The Rolling Stones,
    1964.

[^44]: *AOL-Time Warner Order*, *supra*, at ¶ 15.

[^45]: *AOL-Time Warner Order*, *supra*, at ¶ 83.

[^46]: From *Short People*, Randy Newman, 1977.

[^47]: See *AOL-Time Warner Order*, *supra*, at ¶ 97.

[^48]: 47 U.S.C. § 521(4).

[^49]: *AOL-Time Warner Order*, *supra*, at ¶ 23, citing *Turner
    Broadcasting System, Inc. v. FCC*, 512 U.S. 622, 663 (1994)
    (*quoting United States v. Midwest Video Corp.*, 406 U.S. 649, 668
    n.27 (1972)).

[^50]: *AOL-Time Warner Order*, *supra*, at ¶ 126.