Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5496-M                   |
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| Brunson Communications, Inc. v.  | ) |                              |
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| RCN Telecom Services, Inc.[^1]   | * |                              |
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| Channel Positioning Complaint    | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: May 18, 2000** **Released: May 23, 2000**

By the Acting Chief, Consumer Protection and Competition Division, Cable
Services Bureau:

# INTRODUCTION

1.  Brunson Communications, Inc., licensee of Television Broadcast
    Station WGTW (Ch. 48), Burlington, New Jersey ("WGTW"), filed the
    above-captioned complaint against RCN Telecom Services, Inc. ("RCN")
    for its failure to carry WGTW at channel position 48 on its cable
    systems serving communities in Lehigh and Northampton Counties,
    Pennsylvania.[^2] An oppposition to this complaint was filed on
    behalf of RCN to which WGTW replied.

# BACKGROUND

2.  Pursuant to Section 614 of the Communications Act and implementing
    rules adopted by the Commission in *Implementation of the Cable
    Television Consumer Protection and Competition Act of 1992,*
    Broadcast Signal Carriage Issues *("Must Carry Order"),* commercial
    television broadcast stations are entitled to assert mandatory
    carriage rights, including certain mandatory channel position
    rights, on cable systems located within the station's market.[^3]

3.  Section 614(b)(6) of the Act and Section 76.57 of the Commission's
    rules provide commercial television stations with three channel
    positioning options.[^4] The station may elect to be carried on: (1)
    the channel number on which the station is broadcast
    over-the-air; (2) the channel number on which the station was
    carried on July 19, 1985; or (3) the channel number on which the
    station was carried on January 1, 1992.[^5] The Act and the rules
    also provide that a broadcast station may be carried on any other
    channel number mutually agreed upon by the station and the cable
    operator.[^6]

# DISCUSSION

4.  In support of its request, WGTW states that it is a full service
    commercial television station which broadcasts from the Philadelphia
    DMA.[^7] WGTW is currently carried on channel 12 on RCN's cable
    system. WGTW indicates that it notified RCN on September 27, 1999
    that it was entitled to carriage on channel 48, the channel number
    on which it broadcasts over-the-air, on RCN's cable system serving
    communities in Lehigh and Northampton Counties, Pennsylvania.[^8]
    WGTW states that RCN failed to reply to this notification.
    Consequently, WGTW filed the instant complaint.

5.  In opposition, RCN states that it serves a total of 85,273
    subscribers, with 3,866 of those subscribers receiving service on
    the system's limited basic tier via analog channels 2-13, 19-22,
    57-64 and 97.[^9] RCN indicates that WGTW is currently offered on
    RCN's limited basic tier on cable channel 12 and has been carried on
    that channel since September 1, 1997. RCN states that its limited
    basic tier is provided through the use of three traps which block
    the programming offered on the bandwidth of channels 14-18, 23-56,
    and 65-68. RCN states that around the fourth quarter of 1999, it
    utilized the bandwidth of these channels, previously associated with
    analog channels, for the launch of its expanded digital programming.
    Specifically, RCN states that it converted the 6 MHz of bandwidth
    previously associated with analog channel 48 to eight channels of
    digital programming.[^10] As a result, RCN argues that analog
    channel 48 is not currently available to RCN's limited basic tier
    subscribers.

6.  RCN states that it does not dispute WGTW's right to carriage on its
    system. However, it asserts that WGTW's must carry status does not,
    in itself, justify WGTW's request for placement of its signal on
    channel 48 rather than channel 12. RCN asserts that WGTW's request
    for channel positioning should be denied for three reasons: 1) WGTW
    and RCN have previously agreed to continued carriage of the station
    on channel 12; 2) the enormous costs required to move WGTW to
    channel 48 would substantially impact RCN and its subscribers;
    and 3) to avoid an unconstitutional taking without just compensation
    in violation of the Fifth Amendment.

7.  RCN argues that although commercial television licensees are
    permitted by Section 76.57(a) of the Commission's rules to request
    carriage on their over-the-air channel, carriage is also permitted
    on any other channel mutually agreed upon by the broadcaster and the
    cable operator.[^11] RCN maintains that in a letter agreement
    entered into by RCN and WGTW, the parties mutually agreed to
    continue to have WGTW carried on channel 12, pursuant to Section
    76.57(c) of the Commission's rules.[^12] RCN states that this
    agreement was the result of negotiations prompted by WGTW's August
    1997 must carry complaint and reflects the fact that RCN's system is
    not currently configured to permit carriage of WGTW on channel 48 as
    part of the system's limited basic tier. RCN asserts that by signing
    the agreement, WGTW agreed to maintain its signal at channel 12
    until the occurrence of an express condition, *i.e.,* the
    reconfiguration of RCN's system to include channel 48 on the limited
    basic tier by December 31, 1999. RCN argues that the agreement never
    obligated it to proceed with such reconfiguration, but only that
    should such reconfiguration occur, it would be obliged to move WGTW
    to channel 48. RCN states that the condition obligating RCN to move
    WGTW to channel 48 did not occur and WGTW's must carry rights are
    contractually restricted to channel 12. By entering into the
    agreement, RCN argues, WGTW assumed the risk that RCN would not
    reconfigure its system within the time specified and that its signal
    would remain on channel 12. WGTW is now asking the Commission to
    void this agreement. However, RCN maintains that such a result would
    upset the reasonable expectations of the parties and would violate
    not only the Commission's channel positioning requirements, but also
    the Commission's well-established policy of not entering into
    private contractual disputes.[^13]

8.  Should the Commission determine that WGTW does not remain bound to
    the parties' agreement, RCN argues that it is entitled to a waiver
    of the channel positioning requirements based on the substantial
    costs which it would incur. RCN acknowledges that, although the need
    to reconfigure the basic tier is "generally not grounds for waiver"
    of the channel positioning requirements, it is clear that "there
    well might be certain circumstances where the compliance costs
    incurred by a cable operator would be so compelling as to warrant a
    waiver."[^14] RCN states that it is well aware that it cannot simply
    assert that such costs exist, but rather must demonstrate how such
    costs would impact the system. RCN points out that in *WXTV License
    Partnership, G.P.,* the Cable Services Bureau permitted the cable
    operator to deny a channel positioning request where the documented
    costs of compliance were \$39.50 "per affected subscriber" and the
    expenditure of such costs would cause the operator "to suffer a
    loss" through disruption of "budgets and business plans."[^15]
    Moreover, RCN states, the Bureau found that approximately 27,000
    cable subscribers would be affected in order to accomplish the
    change.[^16] RCN states that in the instant case, in order to move
    WGTW to channel 48 as part of the system's limited basic tier, the
    costs would amount to \$92.36 per limited basic tier
    subscriber.[^17] RCN points out that this cost is nearly three times
    higher than that discussed in *WXTV* and illustrates the magnitude
    of the impact on RCN and its subscribers. In addition, thousands of
    RCN's subscribers, both analog and digital, would be inconvenienced
    and RCN's business plans would be disrupted. RCN points out that the
    equipment and labor costs associated in making channel 48 available
    to WGTW and re-trapping the limited basic tier would be \$142,698.68
    and \$172,037, respectively.[^18] In addition, RCN states that it
    would incur substantial collateral administrative costs of
    \$42,000.[^19] RCN argues that because it has averaged a monthly
    loss of \$351,382 for the last eighteen months (August 1998 thru
    January 2000), the \$357,068.48 in compliance costs and the eighteen
    months needed to implement the channel positioning request would
    adversely impact its financial status.[^20] Further, RCN notes that,
    in light of its agreement, it has justifiably assumed that the issue
    of channel positioning with regard to WGTW was closed and no extra
    costs would be incurrred. It maintains, therefore, that it should
    not be made to pay a substantial penalty at this late date after
    having legally and responsibly handled all of the issues related to
    WGTW's placement.

9.  RCN argues that a grant of WGTW's channel positioning request would
    constitute an uncompensated taking of private property in violation
    of the Fifth Amendment. RCN argues that it is well settled that even
    a "minor but permanent physical occupation of an owner's property
    authorized by government constitutes a 'taking' of property for
    which just compensation is due" under the Fifth Amendment.[^21] RCN
    states that although the Commission has, to date, avoided applying
    the Fifth Amendment's 'takings' clause to must carry, it may conduct
    such an analysis at its discretion and has the obligation to
    construe the must carry statute in a constitutional manner.[^22] RCN
    argues that the cable channel capacity sought by WGTW is the private
    property of RCN, the access to which is purchased by the system's
    subscribers. This property, which is part of RCN's physical plant,
    is therefore capable of being permanently "occupied" by WGTW under
    the must carry and channel positioning regulations.[^23] RCN
    maintains that a grant of WGTW's request, would effectively permit
    WGTW to occupy channel 48 on RCN's system in perpetuity, while
    simultaneously denying RCN the opportunity to "possess, use and
    dispose of" its channel capacity in accordance with its property
    rights.[^24] Moreover, RCN states that, despite the exorbitant costs
    that would occur from a reconfiguration of its system, there are no
    statutory or regulatory bases upon which RCN may obtain just
    compensation for these costs from either the government or
    WGTW.[^25] As a result, RCN asserts that the Commission must find
    that the relief requested by WGTW would violate the Fifth Amendment.

10. RCN argues that the Commission must take this opportunity to
    substantively apply the strict prohibitions of the Fifth Amendment
    to the must carry and channel positioning requirements set forth in
    the Communications Act and the Commission's rules. While the Cable
    Bureau declined to do so in *WXTV* and its subsequent
    reconsideration, RCN maintains that the Bureau's reticence to
    address the cable operator's Fifth Amendment claim was based on
    fundamental misconceptions.[^26] RCN states that these
    misconceptions were that the Bureau found that it was "not free to
    declare an act of Congress unconstitutional," and by simply citing
    the Supreme Court's prior review and affirmation of the must carry
    rules in *Turner Broadcasting System v. FCC.*[^27] In other
    contexts, however, RCN points out that the Commission has
    specifically analyzed the constitutionality of Commission policy and
    rules.[^28]

11. Finally, RCN states that if WGTW's complaint is granted substantial
    lead time would be required for it to prepare for the massive
    reconfiguration of its system and to ensure that such plans provide
    the least disruption to RCN's financial commitments and overall
    business plan. Therefore, RCN requests that in the event of a grant
    the Commission provide RCN an eighteen month period within which to
    fully implement WGTW's channel positioning request.

12. In reply, WGTW argues that contrary to RCN's claims, its agreement
    for carriage at channel 12 was effective only through the must-carry
    election period ending December 31, 1999. As of January 1, 2000,
    WGTW states that a new three year election period commenced. [^29]
    Therefore, WGTW asserts that it is no longer barred from seeking
    carriage on its over-the-air channel for the current election
    period. Further, WGTW maintains that RCN's alleged costs of
    compliance are greatly inflated, but even if not, they are
    insufficient to excuse RCN's refusal to carry WGTW on its requested
    channel.[^30] WGTW points out that RCN's estimate to install and
    remove traps at \$44.50 per household is nearly three times the
    \$15.50 per household cited in *WXTV*.[^31] WGTW states that it is
    not credible that RCN's labor costs for its Pennsylvania system
    would be so much more than the New York cable system in the *WXTV*
    decision.

13. Moreover, WGTW maintains that while RCN has 2,280 traps which it
    evidently acquired in previous years and which have never been used,
    it would have the Commission believe that not only does it need to
    buy new traps but also that the traps already purchased should be
    counted in the cost of compliance. RCN has not demonstrated why it
    must attribute the cost of acquiring those earlier traps to
    compliance with the instant request, nor why it could not re-sell
    those units if unusable to defray expenses. WGTW also questions
    RCN's inclusion of an undocumented \$42,000 expenditure for
    administrative costs; a figure WGTW argues represents RCN's cost in
    not complying with the channel positioning request. If this amount
    is subtracted from the total, WGTW notes that RCN's total compliance
    cost is no more than \$155,000. Consistent with precedent, WGTW
    states that these costs are more properly spread over all system
    subscribers rather than allocated solely to those who subscribe only
    to RCN's limited basic tier. WGTW points out that in *WXTV* the
    costs of compliance with regard to seventeen of the cable systems at
    issue was between \$4,000 and \$500,000 and the these costs were not
    found to be a compelling basis for excusing the system from
    complying with the must carry requirements.[^32] Even if the costs
    were correctly estimated by RCN, WGTW argues that the cost per
    subscriber, \$4.19, is not out of line with the costs per
    subscribers in other similar cases where the Commission ordered
    compliance.[^33]

14. Finally, WGTW argues that the Bureau has already considered the
    costs of revised channel positioning for RCN for the same systems in
    *Sonshine Family Television, Inc. v. RCN Telecom Services of
    Pennsylvania, Inc*.[^34] In that decision, WGTW states RCN estimated
    the cost of necessary traps at \$8.00 per subscriber and labor costs
    at \$87,500, but the Commission still ordered RCN to comply. In this
    instance, WGTW maintains, the estimated costs are actually lower.

15. With regard to the Fifth Amendment issue, WGTW argues that RCN need
    not have devoted extensive arguments on the matter since the
    Commission extensively discussed the issue in its reconsideration of
    *WXTV* and declined to credit arguments questioning the
    constitutionality of the statute. WGTW states that there is no
    reason why the Commission should alter that stance herein since the
    mere fact that channel positioning requirements might exact some
    financial toll from cable operators does not render the requirements
    a taking.[^35]

16. In a brief letter in response to WGTW's reply, RCN asserts that the
    station erroneously mischaracterized certain factual and legal
    issues or allegations that were presented in RCN's opposition and
    that such mischaracterizations may have an adverse impact if
    accepted by the Commission. First, RCN points out that, despite
    WGTW's allegations, its \$42,000 administrative expenditure was
    fully documented and those costs unambiguously relate to RCN's
    compliance with WGTW's channel positioning request. Only the figure
    of \$332.80 listed under "Other Administrative Costs" includes any
    costs relative to the preparation of its answer to the instant
    complaint. Second, RCN notes that WGTW fails to provide any support
    for its allegation regarding the credibility of RCN's costs in the
    Allentown market. RCN states that its costs are based on actual
    contractor quotes. Moreover, RCN states that the \$44.50 per
    affected household figure is based on a combination of labor and
    equipment and other administrative costs. Third, RCN asserts that
    WGTW states without citation that these costs should be spread over
    all the system and not those subscribing to the basic tier. RCN
    points out that in *KDTV License* the Bureau noted that subscriber
    costs should be calculated by analyzing only those subscribers which
    will actually be affected by retrapping and that an analysis based
    primarily on total number of subscribers in a system produces an
    "exaggerated result."[^36] Finally, RCN argues that WGTW's
    contention that the Bureau's decision in *Sonshine* should somehow
    control the Bureau's decision herein is misplaced. In *Sonshine,*
    the Bureau found that RCN's trap installation costs were not
    specifically quantified. In the instant case, RCN argues that it has
    provided substantial explanation for each of its stated costs.

17. WGTW argues that RCN's letter is unauthorized and should be
    stricken.[^37] Moreover, WGTW asserts that RCN's letter alleges
    nothing of decisional significance to justify its addition to the
    record. Should the Commission consider the merits of the assertions
    made by RCN therein, WGTW states that it would need the opportunity
    to be heard on those issues. RCN, on the other hand, states that the
    misleading factual and legal arguments in WGTW's reply prompted the
    filing of its letter. RCN notes that on countless occasions the
    Commission has considered filings submitted outside the formal
    pleading cycle when such consideration serves the public interest.

18. RCN does not contest that WGTW is a qualified local commercial
    television station entitled to carriage pursuant to the must carry
    provisions of the Communications Act. However, the parties dispute
    whether there exists a valid agreement between RCN and WGTW which
    would preclude WGTW from seeking carriage on its over-the-air
    channel; whether RCN is warranted in not complying with the channel
    positioning requirements as a consequence of the cost of compliance;
    and whether forcing RCN to concede to WGTW's channel positioning
    demands constitutes a 'taking' under the Fifth Amendment. We will
    discuss each issue in turn.

19. RCN argues that its September 1997 letter agreement with WGTW
    stipulated that it would only move WGTW to channel 48 if RCN
    reconfigured its channel line-up prior to December 31, 1999. If it
    did not, RCN maintains that it was free to continue to carry WGTW on
    cable channel 12 after that date. We disagree with RCN's
    interpretation of the agreement. The agreement clearly states that
    "during the term of WGTW-TV's must-carry election (expiring December
    31, 1999)." Section 76.64(f) of the Commission's rules requires that
    commercial television stations make an election between must carry
    and retransmission consent every three years.[^38] While this
    requirement allows a station, should it so wish, to change its
    status from must carry or retransmission consent at specified
    intervals, it also limits the term in which such election is valid.
    As a result, any agreement geared to the term of an election period
    is also limited to that specific time frame, unless such agreement
    contains express language stating that a channel positioning
    agreement will continue for a period of years regardless of whether
    a broadcaster selects retransmission consent or must carry status.
    Here, the letter agreement contains no such express language and
    must be interpreted as terminating on December 31, 1999. Absent this
    conclusion, it would also necessarily follow that WGTW, as part of a
    one-page letter agreement settling a must carry complaint, ceded in
    perpetuity its right to elect retransmission consent, as well as its
    right to carriage on its over-the-air channel position. We perceive
    no such specific intent, express or implied, in the language of the
    letter agreement. Therefore, the September 1997 letter agreement
    between RCN and WGTW was valid only for the 1997-1999 election
    period and ceased to have effect on January 1, 2000.

20. The Communications Act requires cable operators to comply with a
    station's channel positioning request, absent a compelling technical
    reason. The Commission has specifically indicated that the need to
    replace traps, or to reconfigure the basic tier, or to make
    technological changes are generally not grounds for a waiver.[^39]
    Nevertheless, in adopting the on-channel carriage rules, the
    Commission recognized that there might be certain circumstances
    where the costs incurred by a cable operator would be so compelling
    as to warrant a waiver.[^40] The question that we must consider in
    this instance is whether RCN has established such grounds. RCN
    argues that the costs required to reconfigure its system to
    accommodate WGTW's channel positioning request would substantially
    impact RCN and its subscribers. RCN claims that the cost per limited
    basic subscriber would be \$92.36 and it compares this amount to the
    \$39.50 per subscriber in *WXTV* which the Bureau found to be
    sufficiently burdensome to justify the grant of a waiver of the
    channel positioning requirements.[^41]

21. We find that RCN's contention that its reconfiguring costs should be
    allocated to its limited basic subscribers to be unjustified because
    the repositioning of WGTW from channel 12 to its over-the-air
    channel position, channel 48, affects every RCN subscriber without
    regard to which tier they subscribe. In this regard, RCN's reliance
    on the Commission's decision in *KDTV License* is also
    misplaced.[^42] Contrary to RCN's contention, reconfiguration costs
    in *KDTV License* were applied to all system subscribers.[^43] In
    the case before us, RCN incorrectly applied the reconfiguration cost
    only to its limited basic subscribers. In *KDTV License,* the cable
    operator was found to have inflated its compliance costs by
    multiplying the cost of the traps by the total number of subscribers
    on each of its systems, rather than by the number of subscribers
    currently trapped out of the requested channel.[^44] While
    admittedly, the only subscribers for which traps would be necessary
    are those receiving limited basic service, all of RCN's 85,273
    subscribers would be affected by the change. In *WXTV*, the \$39.50
    per subscriber which RCN uses as comparison, is calculated using the
    total number of subscribers of the affected cable system.[^45] In
    this case, even accepting RCN's costs as correct, the total cost of
    reconfiguration when calculated using the total number of
    subscribers on its system is only \$4.19 per subscriber, an amount
    which is substantially less than that discussed in *WXTV.*

22. RCN asserts that a grant of WGTW's request would constitute an
    unconstitutional 'taking' of its property under the Fifth Amendment.
    The Commission extensively discussed this issue in *WXTV* and, after
    noting that the Supreme Court upheld the constitutionality of
    Section 614, stated:

    We recognize that the decision in *Thunder Basin* may provide
    administrative

    agencies an opportunity to consider the constitutionality of
    implementing

    statutes under certain circumstances. We note, however, that the
    Supreme

    Court has made clear that such a consideration is at the discretion
    of the agency

    involved. In this case, we decline to do so. . . . Given the clarity
    of the statutory

    carriage obligations imposed on cable operators and the settled
    expectations

    in this area, we do not address the Fifth Amendment takings claim
    here.[^46]

    Given the Commission's recent decision on this very issue declining
    to consider the Fifth Amendment implications of channel
    repositioning, we similarly decline to address RCN's arguments on
    this issue.

23. We decline to grant RCN's request for 18 months to accomplish its
    reconfiguration. In *WXTV,* where Cablevision was ordered to comply
    with the channel positioning requirements for more than 17 cable
    systems, the Bureau allowed the system 180 days in which to come
    into compliance.[^47] We find no justification to grant RCN a longer
    time period. Therefore, RCN will be given 180 days from the release
    date of this order to come into compliance.

# ORDERING CLAUSES

24. Accordingly, **IT IS ORDERED,** pursuant to Section 614 of the
    Communications Act of 1934, as amended (47 U.S.C. §534), that the
    complaint filed by Brunson Communications, Inc. **IS GRANTED.**

25. **IT IS FURTHER ORDERED,** that RCN Telecom Services, Inc. **SHALL
    COMMENCE CARRIAGE** of WGTW on cable channel 48 throughout its
    system serving communities in Lehigh and Northampton Counties,
    Pennsylvania, within 180 days of the release date of this *Order.*

26. This action is taken pursuant to authority delegated under Section
    0.321 of the Commission's rules.[^48]

    FEDERAL COMMUNICATIONS COMMISSION

    Steven Broeckaert, Acting Chief

    Consumer Protection and Competition Division

    Cable Services Bureau

    **APPENDIX I**

    The communities served by C-TEC are as follows:

    [Northampton County]{.underline}

    Allen

    Bath

    Bethlehem

    East Allen

    Freemansburg

    Hanover

    Lehigh

    Lower Saucon

    Moore

    North Catasququa

    Northampton

    Hellertown

    Lower Nazareth

    Bushkill

    Upper Nazareth

    Plainfield

    Pen Argyl

    Wind Gap

    Nazareth

    Easton

    Palmer

    West Easton

    Wilson

    Tatamy

    Stockertown

    Glendon

    Forks

    Washington

    Roseto

    Bangor

    Williams

    Upper Mount Bethel

    Portland

    [Lehigh County]{.underline}

    Allentown

    Catasauqua

    Coplay

    Fountain Hill

    Hanover

    Lower Macungie

    North Whitehall

    Salisbury

    South Whitehall

    Whitehall

    Upper Macungie

    Upper Saucon

    Lowhill

    Heidelberg

    Weisenburg

[^1]: ^?^Formerly C-TEC Cable Systems of Pennsylvania, Inc.

[^2]: ^?^See Appendix I.

[^3]: ^?^8 FCC Rcd 2965, 2976-2977 (1993).

[^4]: ^?^47 U.S.C. §534(b)(6); 47 C.F.R. §76.57.

[^5]: ^?^47 U.S.C. §534(b)(6); 47 C.F.R. §76.57(a).

[^6]: ^?^47 U.S.C. §534(b)(6); 47 C.F.R. §76.57(c).

[^7]: ^?^Section 614(h)(1)(C) of the Communications Act, as amended by
    the Telecommunications Act of 1996, provides that a station's market
    shall be determined by the Commission by regulation or order using,
    where available, commercial publications which delineate television
    markets based on viewing patterns. *See* 47 U.S.C. §534(h)(1)(C).
    Until January 1, 2000, Section 76.55(e) of the Commission's rules
    provided that Arbitron's "Areas of Dominant Influence," or ADIs,
    published in the *1991-1992 Television Market Guide,* be used to
    implement the mandatory carriage rules. Effective January 1, 2000,
    however, Section 76.55(e) requires that a commercial broadcast
    television station's market be defined by Nielsen Media Research's
    DMAs. For the must carry/retransmission consent elections which took
    place on October 1, 1999, commercial television stations were
    required to make their elections based on DMAs. *See Definition of
    Markets for Purposes of the Cable Television Broadcast Signal
    Carriage Rules,* Order on Reconsideration and Second Report and
    Order, 14 FCC Rcd 8366 (1999)(*"Market Modification Final Report and
    Order"*).

[^8]: ^?^Complaint at Exhibit B.

[^9]: ^?^RCN notes that while WGTW refers to more than one system, the
    communities which are the subject of this complaint are served from
    a single headend located in Northampton, Pennsylvania.

[^10]: ^?^Opposition at 3. RCN states that these 8 digital channels are
    used for the STARZ! cable network.

[^11]: ^?^47 C.F.R. §76.57(a) and (c).

[^12]: ^?^Opposition at Exhibit 1. *See also* 47 C.F.R. §76.57(c).

[^13]: ^?^*See e.g., Metromedia Company,* 3 FCC Rcd 595 (1986);
    *Sonderling Broadcasting Company,* 74 FCC 2d 657 (1979); *Far East
    Broadcasting Company,* 58 FCC 2d 60 (1976); *John F. Runner,* 36 RR
    2d 773 (1976); *Transcontinent Television Corp.,* 21 RR 2d 945
    (1961); and *A.A. Schmidt,* 14 RR 2d 1156 (1957).

[^14]: ^?^*See Greater Dayton Public Television v. TCI Cablevision of
    Ohio,* 10 FCC Rcd 1048, 1049 (1995), citing *Must Carry Order* at
    2988.

[^15]: ^?^14 FCC Rcd 6482 (1999), *recon. granted in part,* 15 FCC Rcd
    3308 (2000).

[^16]: ^?^*Id.*

[^17]: ^?^Opposition at Exhibit 2.

[^18]: ^?^*Id.* at 10 and Exhibit 2.

[^19]: ^?^*Id.* at 11 and Exhibit 2.

[^20]: ^?^*Id.* at 13.

[^21]: ^?^*See Loretto v. Teleprompter Manhattan CATV Corp.,* 458 U.S.
    419, 421 (1982); U.S. Const. amend. V.

[^22]: ^?^*WXTV License Partnership, G.P.,* 14 FCC RCd 6482, 6501.

[^23]: ^?^*See WXTV recon.,* 15 FCC Rcd 3308, Concurring Statement of
    Commissioner Furchtgott-Roth ("It is not unreasonable to argue that
    when a broadcast station's signal is mandatorily carried over a
    cable system, that carriage constitutes a permanent, physical
    occupation of the cable operator's private property -- and thus a
    *per se* taking of that property. . . . \[T\]here can be no question
    but that Cablevision's physical plant -- *e.g.,* the actual
    transmission cables, whether fiber optic or metal, that form its
    delivery 'pipe,' as well as the headend equipment that routes the
    broadcaster's signal -- are Cablevision's sole and private
    property.")

[^24]: ^?^*See Loretto,* 458 U.S. at 435, quoting *United States v.
    General Motors Corp.,* 323 U.S. 373, 378 (1945).

[^25]: ^?^*See* 47 U.S.C. §534(b)(10).

[^26]: ^?^Opposition at 19.

[^27]: ^?^*See WXTV* at 6501; *recon.* at 3318 and Furchtgott-Roth
    Statement at 1. *See also, Turner Broadcasting System v. FCC,* 520
    U.S. 180 (1997).

[^28]: ^?^*See e.g., In the Matter of Direct Access to the INTELSAT
    System,* Report and Order, 64 FR 54561 (1999); and *Implementation
    of the Telecommunications Act of 1996: Telemessaging, Electronic
    Publishing, and Alarm Monitoring Services,* 12 FCC Rcd 5361, 5376-77
    (1997).

[^29]: ^?^47 C.F.R. §76.64(f).

[^30]: ^?^*See* 47 U.S.C. §534(b)(6) and 47 C.F.R. §76.57.

[^31]: ^?^Reply at 4.

[^32]: ^?^Reply at 5-6. WGTW notes that only one system, where the costs
    would exceed \$1,000,000, were the costs found excessive.

[^33]: ^?^*See KDTV License Partnership,* 13 FCC Rcd 10331 (1998)(\$6.84
    per subscriber); *Greater Dayton Public Television,* 10 FCC Rcd 1048
    (1995)(\$11.37 per subscriber); and *WXTV* (\$11.17 per subscriber).

[^34]: ^?^13 FCC Rcd 10323 (1998).

[^35]: ^?^Reply at 7, citing *Andrus v. Allard,* 444 U.S. 51, 65
    (1979)("Suffice it to say that government regulation \-- by
    definition -- involves the adjustment of rights for the public good.
    Often this adjustment curtails some potential for the use or
    economic exploitation of private property. To require compensation
    in all such circumstances would effectively compel the government to
    regulate by purchase.").

[^36]: ^?^13 FCC Rcd 10331, 10337 (1998).

[^37]: ^?^In the interests of a complete record, we admit RCN's letter
    in response to WGTW's reply and WGTW's response thereto.

[^38]: ^?^47 C.F.R. §76.64(f).

[^39]: ^?^*Must Carry Order,* 8 FCC Rcd 2965, 2986.

[^40]: ^?^*Id.*

[^41]: ^?^14 FCC Rcd 6482, 6501.

[^42]: ^?^13 FCC Rcd 10331 (1998).

[^43]: ^?^*Id.* at 10337.

[^44]: ^?^*Id.*

[^45]: ^?^14 FCC Rcd 6482, 6501.

[^46]: ^?^*WXTV,* 15 FCC Rcd at 3318-19 (footnote omitted), citing
    *Thunder Basin Coal Co. v. Reich,* 510 U.S. 200 (1994).

[^47]: ^?^*Id.* at 6500.

[^48]: ^?^47 C.F.R. §0.321.