Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of:                | * | CSR 5543-C                   |
|                                  | * |                              |
| TIME WARNER CABLE                | ) |                              |
|                                  | * |                              |
| Emergency Petition of ABC, Inc.  | * |                              |
|                                  |   |                              |
| for Declaratory Ruling           | * |                              |
|                                  | * |                              |
| And Enforcement Order For        | ) |                              |
| Violation of                     | * |                              |
|                                  | * |                              |
| Section 76.58 of the             |   |                              |
| Commission's Rules,              | * |                              |
|                                  | * |                              |
| or in the Alternative For        | ) |                              |
| Immediate                        | * |                              |
|                                  | * |                              |
| Injunctive Relief                |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+
|                                  |   |                              |
+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: May 3, 2000** **Released: May 3, 2000**

By the Chief, Cable Services Bureau:

# Introduction

1.  On May 1, 2000, ABC, Inc. ("ABC") filed an Emergency Petition for
    Declaratory Ruling and Enforcement Order, or, in the Alternative,
    for Immediate Injunctive Relief ("Petition") seeking a Commission
    Order directing Time Warner Cable ("Time Warner") to immediately
    comply with the provisions of Section 76.58 of the Commission's
    rules which is based, in large part, on Section 614(b)(9) of the
    Communications Act of 1934, as amended (\"Communications Act\").
    Time Warner filed an Opposition to ABC's petition.[^1]

# BACKGROUND

2.  Section 614 of the Communications Act sets forth the mandatory
    carriage, or must-carry, obligations of cable operators. In
    pertinent part, Section 614(b)(9) provides that:

    No deletion or repositioning of a local commercial television
    station shall occur during a period in which major television rating
    services measure the size of audiences of local television
    stations.[^2]

    The Commission adopted Section 76.58 of its rules to effectuate this
    provision.[^3]

3.  The May 2000 local station audience rating period ("sweeps period")
    began on April 26^th^ and will end on the 24^th^ of May. During
    sweeps periods Nielsen Media Research's local market measurement
    service collects demographic viewing data which is used by local
    television stations, cable systems, advertisers and their agencies
    to buy and sell commercial advertising as well as make programming
    decisions.[^4]

4.  ABC is the controlling parent company of the licensees of eight
    commercial television stations (the "ABC Stations").[^5] Since 1993,
    Time Warner has carried the ABC Stations on its cable systems
    pursuant to a retransmission consent agreement entered into between
    Time Warner and ABC.[^6] This agreement expired on December
    31, 1999. Since the expiration of this agreement, Time Warner and
    ABC have entered into at least five extensions of varying duration
    of the original retransmission consent agreement to permit continued
    carriage of the ABC Stations on Time Warner's systems.[^7] At the
    time ABC filed its petition, the last of these extensions had
    expired at midnight on April 30, 2000 and Time Warner had ceased
    carriage of the ABC Stations on its cable systems.[^8]

    **III. DISCUSSION**

5.  ABC asserts that, because its most recent retransmission consent
    extension with Time Warner expired on April 30, 2000 -- four days
    after the commencement of the May 2000 sweeps period -- Time Warner
    is expressly precluded by Section 76.58 from deleting the ABC
    Stations from its systems until the current sweeps period ends on
    May 24, 2000. For its part, Time Warner argues that where a station
    elects retransmission consent rather than must-carry, Section
    325(b)(1)(A) of the Communications Act provides that no cable
    operator shall retransmit the signal of a television station except
    with the express authority of the originating station.[^9] Time
    Warner contends that, without a further extension of the
    retransmission consent agreement, which did not occur prior to
    midnight April 30, 2000, Time Warner ceased to have any ability or
    obligation to carry the ABC Stations' signals and appropriately
    ceased carriage.[^10] ABC responds that Section 76.58 affirmatively
    requires that Time Warner carry the ABC Stations through the end of
    the current sweeps period and that to the extent there is any
    question of the need for ABC's authorization to carry the signals it
    was resolved when ABC on three occasions provided written
    authorization to Time Warner to carry the ABC Stations through May
    24, 2000. In fact, ABC argues, the last of these authorizations
    extended to Time Warner "unconditional and unequivocal consent to
    retransmit the broadcast signals \[of the ABC Stations\] through May
    24, 2000, regardless of any extension of the retransmission consent
    agreement."[^11]

6.  In adopting rules to implement Sections 325 and 614 of the
    Communications Act, we believe the Commission addressed and
    effectively resolved the interpretative issue raised by ABC. In
    analyzing the impact of certain provisions of Section 614,
    particularly the obligation to "carry the entirety of the program
    schedule of any television station carried on the cable
    system,"[^12] on the carriage of local television signals by cable
    operators through retransmission consent, the Commission concluded
    that the entire program schedule obligation had "applicability to
    more than just television signals carried pursuant to the must-carry
    rules."[^13] The Commission stated:

    We are persuaded by commenters that the plain language of Section
    614(b)(3)(B), requiring cable operators to "carry the entirety of
    the program schedule of any television station carried on the cable
    system unless carriage of specific programming is prohibited, and
    other programming authorized to be substituted" applies to
    retransmission consent stations as well as must-carry stations.[^14]

    After reaching this conclusion, the Commission examined other
    similarly-worded provisions of Section 614 and, applying this same
    reasoning, found that the no deletion during sweeps period
    obligation of Section 614(b)(9) applies "to all local commercial
    television stations carried by a cable system, and not just to
    must-carry stations."[^15] The Commission affirmed this reasoning on
    reconsideration of the *Broadcast Signals Order* albeit with the
    modification that the entire program schedule provision applied only
    to television stations "eligible for must-carry status*.*"[^16]

7.  We believe that the dispute between ABC and Time Warner is resolved
    by the language of the *Broadcast Signals Order*, where the
    Commission stated that Section 614(b)(9) of the Communications Act
    applies equally to television stations carried under must-carry and
    television stations carried through retransmission consent. Section
    614(b)(9) and Section 76.58 are clear and absolute in their terms --
    no deletion of a local commercial television station shall occur
    during a sweeps period. The language of Section 614(b)(9) and
    Section 76.58 do not distinguish between television stations that
    are carried pursuant to must-carry and television stations that are
    carried pursuant to retransmission consent. Given the Commission's
    conclusion that Section 614(b)(3) and 614(b)(9) were parallel
    provisions, the Commission's decision on reconsideration that the
    programming of stations that are eligible for must-carry be carried
    in their entirety even when carried pursuant to a retransmission
    consent agreement, leads to a parallel conclusion under Section
    614(b)(9). Programming that is eligible for must-carry cannot be
    deleted during a current sweeps period even if the existing
    retransmission consent expires. Time Warner argues that absent
    retransmission consent, a cable operator would violate Section
    325(b)(1)(B) of the Communications Act by continuing to carry such
    programming.[^17] Time Warner is correct that, upon the expiration
    of retransmission consent, carriage of the affected programming is
    no longer authorized by Section 325(b)(1)(B). However, our analysis
    does not end here. Upon expiration of an existing retransmission
    consent during a sweeps period a cable operator is required to carry
    the signal of a local television station that is eligible for must
    carry under authorization provided by, and pursuant to, the
    requirements of Section 614 until the conclusion of the current
    sweeps period. For this reason, we reject Time Warner's arguments
    that carriage in this situation would be unworkable because neither
    party will know the terms of carriage and that such carriage exposes
    Time Warner to copyright liability.[^18] As discussed, the
    must-carry provisions of Section 614 provide the legal authority and
    procedural rules applicable to such carriage until the end of the
    sweeps period.

8.  Time Warner argues that Section 614(b)(9) should not be read so
    broadly, and that it was intended only to apply where existing
    retransmission consent is effective and the cable operator, under
    the terms of the retransmission consent, has the option to carry a
    television station, but not the obligation to do so.[^19] In such
    situations, argues Time Warner, Section 614(b)(9) and Section 76.58
    preclude a cable operator from exercising its option not to carry
    the programming until the current sweeps period ends.[^20] We
    disagree with Time Warner's interpretation. No such intent is
    expressed or implied in Section 614(b)(9), Section 76.58, or the
    *Broadcast Signals Order* adopting that rule. These provisions make
    no reference to permissive or mandatory retransmission consent. To
    the contrary, Section 614(b)(9) and Section 76.58 absolutely require
    that no deletion of any local commercial television station shall
    occur during a sweeps period.

9.  Portions of Time Warner's Opposition suggest that the requirement
    that a cable operator carry until the end of the sweeps period a
    television station for which retransmission consent has expired
    impinges upon its free speech rights under the First Amendment of
    the United States Constitution.[^21] We believe that, in reviewing
    the constitutionality of the must-carry provisions, the United
    States Supreme Court in *Turner Broadcasting System, Inc., et al. v.
    FCC*[^22] adequately addressed Time Warner's concerns. In *Turner*,
    the Supreme Court concluded that: (1) Congress' interests in
    preserving the benefits of free, over-the-air local broadcast
    television, promoting widespread dissemination of information from a
    multiplicity of sources, and promoting fair competition in the
    market for television programming were important governmental
    interests for First Amendment purposes; (2) the must-carry
    requirements served governmental interests in a direct and effective
    way; and (3) the must-carry provisions did not burden substantially
    more speech than necessary to further Congress' substantial
    interests.[^23] The prohibition on dropping a station during a
    sweeps period serves the same governmental interest in preserving
    local broadcast television that was upheld in *Turner*. The
    provision is narrowly-tailored to protect directly the integrity of
    the sweeps period, which is the basis for determining broadcast
    revenues.

10. Section 614(b)(9) requires that Time Warner carry the ABC Stations
    as must-carry programming until May 24, 2000 -- the expiration of
    the current sweeps period. After that time, absent the
    retransmission consent agreement between Time Warner and ABC
    announced on May 2, 2000, Time Warner could have ceased carriage of
    the ABC Stations without further obligation until the parties reach
    a new retransmission consent agreement, or any or all of the ABC
    Stations elect must-carry status in the next election cycle. After
    the expiration of the current retransmission consent agreement and
    any extension thereto, Time Warner may cease carriage of the ABC
    Stations, except that Time Warner may not do so during a future
    sweeps period. We will consider separately what enforcement action
    is warranted as a consequence of Time Warner's conduct.

# ORDERING CLAUSES 

11. Accordingly, we find that the removal of the ABC Stations' signals
    from its systems by Time Warner Cable was in violation of Section
    614(b)(9) of the Communications Act and Section 76.58 of the
    Commission's rules.

12. **IT IS ORDERED** that the Emergency Petition for Declaratory Ruling
    and Enforcement Order, or, in the alternative, for Immediate
    Injunctive Relief filed by ABC, Inc. **IS GRANTED** to the extent
    indicated herein.

13. This action is taken pursuant to delegated authority under Section
    0.321 of the Commission's rules.[^24]

    FEDERAL COMMUNICATIONS COMMISSION

> Deborah A. Lathen

Chief, Cable Services Bureau

[^1]: Pursuant to Section 1.1208 of the Commission's rules, this
    proceeding is classified as restricted for *ex parte* purposes. 47
    C.F.R. § 1.1208.

[^2]: Communications Act § 614(b)(9), 47 U.S.C. § 534(b)(9).

[^3]: In pertinent part, Section 76.58 provides:

    Note: No deletion or repositioning of a local commercial television
    station shall occur during a period in which major television rating
    services measure the size of audiences of local television stations.
    For this purpose, such periods are the four national four-week
    ratings periods -- generally including February, May, July and
    November -- commonly known as audience sweeps.

    47 C.F.R. § 76.58.

[^4]: *See* http://www.nielsenmedia.com.

[^5]: KABC-TV (Channel 7) Los Angeles, California; KSFN-TV (Channel 30)
    Fresno California; KTRK-TV (Channel 13) Houston, Texas; WABC-TV
    (Channel 7) New York, New York; WTVD-TV (Channel 11) Durham, North
    Carolina; WLS-TV (Channel 7) Chicago, Illinois; WPVI-TV (Channel 6)
    Philadelphia, Pennsylvania; and WTVG-TV (Channel 13) Toledo, Ohio.

[^6]: ABC Petition at 4.

[^7]: *Id.*

[^8]: ABC informed the Commission on the afternoon of May 2, 2000 that
    ABC service was being restored to the Time Warner cable systems
    until July 15, 2000 pursuant to a retransmission consent agreement.
    As a consequence, we treat ABC's Petition as a declaratory ruling
    request and no longer as a request for injunctive relief.

[^9]: *See* Communications Act § 325(b)(1)(A), 47 U.S.C. § 325(b)(1)(A).

[^10]: Time Warner Opposition at 13-14.

[^11]: ABC Petition, Exhibit 3.

[^12]: Communications Act § 325(b)(3)(B), 47 U.S.C. § 325(b)(3)(B).

[^13]: *Implementation of the Cable Television Consumer Protection and
    Competition Act of 1992, Broadcast Carriage Issues*, Report and
    Order, 8 FCC Rcd 2965, 3004 ("*Broadcast Signals Order*")

[^14]: *Id.* at 3003.

[^15]: *Id.* at 3304.

[^16]: *Implementation of the Cable Television Consumer Protection and
    Competition Act of 1992, Broadcast Carriage Issues*, Memorandum
    Opinion and Order, 9 FCC Rcd 6723, 6745-46 ("*Broadcast Signals
    Reconsideration*").

[^17]: Time Warner Opposition at 13-14.

[^18]: *See* Time Warner Opposition at 14-15, 21-22.

[^19]: Time Warner Opposition at 20.

[^20]: *Id.* at 22.

[^21]: Time Warner Opposition at 29-34.

[^22]: 520 U.S. 180 (1997).

[^23]: *Id.*

[^24]: 47 C.F.R. § 0.321.