**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, DC 20554**

In the Matter of: )

)

WXTV LICENSE PARTNERSHIP, G.P. )

) CSR No. 5327-M

Petition for Special Relief Concerning )

Carriage of Television Station )

WXTV, Paterson, New Jersey on )

Channel 41 on Certain Cablevision Cable )

Systems in the New York Television Market )

**ORDER ON RECONSIDERATION**

**Adopted: February 10, 2000 Released: February 16, 2000**

By the Commission: Commissioner Furchtgott-Roth concurring and issuing a
statement.

**I. INTRODUCTION**

1\. CSC Holdings, Inc. (hereinafter "Cablevision"), pursuant to Section
1.106 of the Commission's rules, has requested reconsideration of the
Cable Services Bureau's Memorandum Opinion and Order, DA 99-733 (rel.
April 16, 1999) (the "Order"), granting in part and denying in part a
Petition for Special Relief filed by WXTV License Partnership, G.P.
("WXTV"). WXTV filed an Opposition to the Petition for
Reconsideration,[^1] to which Cablevision filed a Reply. Pursuant to
Section 1.106(a)(1) of the Commission\'s rules, the matter has been
referred to the Commission.[^2]

2\. This proceeding concerns WXTV\'s requests for carriage on Channel 41
on several Cablevision cable systems in the New York television market.
After several attempts to gain carriage on channel 41, the station filed
a channel positioning complaint with the Commission. The Cable Services
Bureau, acting under delegated authority, granted WXTV\'s complaint with
regard to virtually all of Cablevision\'s systems involved and mandated
carriage of the station\'s signal on channel 41 according to a set time
schedule.

3\. Cablevision seeks reconsideration of the Bureau's Order on three
discrete issues. Cablevision first states that it has initiated efforts
to carry WXTV on channel 41 in 17 of the 21 systems in which on-channel
carriage was required within 45 days from release of the Order, but
certain technical difficulties render literal compliance with the terms
of the Order impracticable with respect to four cable systems.[^3]
Cablevision seeks relief from the Commission with regard to the terms
under which those systems must comply with the Order. Second,
Cablevision states that it seeks reconsideration of the Bureau's
determination that institution of a forfeiture proceeding is warranted
for its failure to position WXTV on channel 41 in 21 of the cable
systems at issue.[^4] While Cablevision acknowledges that there are few
engineering costs associated with repositioning WXTV in those systems,
it states that the Bureau's finding does not adequately appreciate the
fact that the parties were focused on actively negotiating an
alternative uniform channel position for WXTV on all of Cablevision's
cable systems throughout the market. Finally, Cablevision asserts that
the Bureau has the full authority to rule on Cablevision's claim that
the must carry rules violate the Takings Clause and requests that the
Bureau reconsider its initial Order and find the rules
unconstitutional.[^5] After examining the record, we grant in part and
deny in part Cablevision\'s Petition for Reconsideration of the
Bureau\'s Order. We grant the requested relief with regard to the terms
under which those systems must comply with the Order, find that the
Bureau was correct in initiating a forfeiture proceeding, and refrain
from issuing a decision on the merits of the Fifth Amendment matter
presented.

**II. BACKGROUND**

A. *The Law*

4\. Pursuant to Section 614 of the Communications Act of 1934 (\"Act\"),
as amended, and implementing rules adopted by the Commission in
*Implementation of the Cable Television Consumer Protection and
Competition Act of 1992*, *Broadcast Signal Carriage Issues*, Report and
Order in MM Docket 92‑259 (\"*Must Carry Order*\"),[^6] commercial
television broadcast stations are entitled to assert mandatory carriage
rights on cable systems located within the station\'s market. A
station\'s market for this purpose is currently its Designated Market
Area (\"DMA\"), as defined by the Nielsen audience research
organization.

5\. With respect to the channel number on which stations asserting must
carry rights are to be carried, Section 614(b)(6) of the Act[^7] and
Section 76.57 of the Commission\'s rules provide that commercial
television stations may elect to be carried on the channel number on
which the station is broadcast over the air.[^8] The Act also allows for
another channel number to be selected by the broadcaster as long as that
designation is mutually agreed upon by the station and the cable
operator.[^9] The Commission\'s rules provide that the broadcaster, not
the cable operator, is entitled to select which of the channel
positioning alternatives will apply in its case.[^10]

6\. The Commission found that inconvenience, marketing problems, the
need to reconfigure the basic tier, the need to employ additional traps,
or the need to make technical changes were not sufficient reasons for
denying the channel positioning request of a qualified television
station. [^11] Only where placement of a signal on a chosen channel
results in interference or degraded signal quality to the television
station or an adjacent channel, or causes a substantial technical or
signal security problem, did the Commission permit cable operators to
carry a broadcast signal on a channel not chosen by the station.[^12]
The Commission recognized that most systems were able to configure their
basic service tier to fulfill this requirement.[^13] The Commission
provided, however, that a cable operator claiming that it cannot meet a
channel positioning request for technical reasons would have to provide
evidence clearly demonstrating that it cannot meet its obligation.[^14]

B. *The Case*

7\. In its Order, the Bureau stated that it was not contested that WXTV
is a qualified local commercial television station entitled to carriage
pursuant to the must carry provisions of the Act, nor was it disputed
that WXTV is entitled to elect its over-the-air channel as the channel
it wishes to occupy on Cablevision\'s systems. According to the Bureau,
the dispute centered on whether Cablevision was warranted in not
complying with these requirements as a consequence of insurmountable
technical difficulties and costs of compliance.

8\. The Bureau found, with respect to 21 cable systems,[^15] where it
was documented that WXTV was not on Channel 41 already, that Cablevision
had conceded that on-air channel positioning is feasible because it did
not provide technical or financial justification for not carrying the
station on the channel position it had elected. With respect to these
systems Cablevision was ordered to comply with the statutory channel
positioning requirements as soon as possible or within 45 days from the
release of the Order, whichever was sooner. For these systems, the
Bureau found that Cablevision\'s lack of compliance was such a serious
matter that it warranted initiation of a forfeiture proceeding. The
Bureau, however, stated that it would address the forfeiture matter
separately to avoid further delay in issuing a timely Order.

9\. With regard to 17 other cable systems,[^16] where the documented
costs of compliance with the station\'s channel positioning request were
between \$4000 and \$500,000, the Bureau stated that the central issue
was whether the technical and cost obstacles to carriage of WXTV\'s
signal on channel 41 were of such magnitude as to excuse compliance from
the on-channel requirement. The Bureau found that there was no dispute
in the record that on-channel carriage as a technical matter could be
accomplished on all of the systems at issue and that the Act requires
cable operators to comply with a station\'s channel positioning request,
absent a compelling technical reason for not doing so.

10\. The Bureau noted that a cable operator may present evidence as to
the costs involved in remedying the technical problem; however,
Cablevision did not provide any information that would help to place its
cost calculations in the context of the financial capacity of the
systems in question. The Bureau found that Cablevision did not meet the
waiver standard, but allowed Cablevision 180 days from the release of
the Memorandum Opinion and Order to come into compliance in the case of
these 17 systems.[^17]

11. The Bureau, however, did find that Cablevision satisfied the waiver
    standard with regard to its Hauppauge system, where it would cost
    the operator more than \$1 million in equipment and labor to fulfill
    the station\'s channel positioning request. The Bureau found it
    important that almost 27,000 cable subscribers would be affected and
    inconvenienced. Given the magnitude of the costs to the operator,
    the intensive labor involved to comply with the station\'s request,
    the harm to the public, and the fact that the costs to the system
    were not aggravated by Cablevision\'s action, the Bureau held that
    Cablevision had sufficiently met its burden and did not have to
    comply with WXTV\'s on-air channel positioning request with respect
    to this one system.

12\. The Bureau also addressed Cablevision\'s concerns that an order by
the Commission to carry WXTV on channel 41 would aggravate the alleged
constitutional taking of Cablevision\'s property that a mandatory
carriage obligation would impose. To the degree that Cablevision\'s
arguments called into question the constitutionality of the on-channel
carriage requirement of Section 614, the Bureau relied on the axiom that
\"regulatory agencies are not free to declare an act of Congress
unconstitutional\"[^18] and that the Supreme Court had upheld the
constitutionality of Section 614 in the only challenge to that
provision.[^19] The Bureau also stated that although the Commission may
not have the authority to declare an act of Congress unconstitutional,
it has the obligation to construe statutes it enforces in a
constitutional manner, and had attempted to do that in the instant
proceeding.

**III. ISSUES ON RECONSIDERATION**

A. *Implementation of the Bureau\'s Order*

13\. Cablevision asserts that it should be granted relief from certain
limited aspects of the Bureau\'s Order where technical difficulties
preclude strict compliance.[^20] Cablevision states that in 17 of the 21
systems in which on-channel carriage was required within 45 days from
release of the Order, it will be carrying WXTV on channel 41 by May 31,
1999, and has provided notice to its subscribers of its intent to
reposition WXTV to channel 41. However, in four of the 21 systems \--
Allamuchy, Bayonne, Yonkers, and Rockland \-- Cablevision states that it
has discovered there are technical difficulties that prevent or
complicate strict compliance with the literal terms of the Order.[^21]

14\. In the Allamuchy, Yonkers, and Bayonne systems, Cablevision states
that it has discovered, for technical reasons, these systems do not have
a channel 41 in all or part of the systems.[^22] Cablevision states that
it is impracticable to comply with the Order to reposition WXTV to
channel 41 in all parts of those systems. Specifically, the operator
explains that:

o In Allamuchy, which Cablevision acquired only recently, the system is
a 300 MHz system. Since WXTV broadcasts on real frequency 325.25 MHz,
Allamuchy does not extend to channel 41. WXTV is carried on channel 10
in Allamuchy, and Cablevision requests that the Bureau amend its Order
to recognize that Cablevision is unable to reposition WXTV to channel 41
until such time as the system is rebuilt and the number of channels
increased.[^23]

o The Yonkers system is a "dual trunk" system, meaning that subscribers
may receive cable service either on a new cable wire ("Yonkers
Optimum"), which requires subscribers to obtain a converter box, or on
the old cable wire ("Yonkers Essential"), and Cablevision states that
compliance with the Order is possible only with regard to the Yonkers
Optimum subscribers. Cablevision states that it intends to fully comply
with the Commission's Order with regard to its Yonkers Optimum
subscribers, which constitute approximately 68% of the system's
subscribers. Cablevision asserts that the old cable wire, however, is a
300 MHz system, and accordingly, cannot accommodate WXTV on real
frequency 325.25 MHz. Cablevision believes that for this portion of the
system, strict compliance with the Order is impracticable.[^24]

o The Bayonne system is a dual trunk 300 MHz system and does not extend
to channel 41. Like the Yonkers system, 68% of the subscribers in
Bayonne receive cable service through a new cable wire, and those
"Bayonne Optimum" subscribers will receive WXTV on channel 41 in
compliance with the Order. Accordingly, Cablevision requests that the
Bureau amend its Order to recognize that Cablevision is unable to
reposition WXTV to channel 41 in those portions of the Bayonne system
and the Yonkers system operating on the older cable wire until such time
as those systems operate fully on the new wire.[^25]

15\. Cablevision argues that the Rockland system (\"TCI Rockland\")
should not have been categorized as a "no cost" system, and strict
immediate compliance would place a tremendous burden on Cablevision's
personnel and resources.[^26] Cablevision explains that the TCI Rockland
system must be significantly reconfigured in order to reposition WXTV to
channel 41. Cablevision states that the substantial costs associated
with reconfiguring the Rockland system were mistakenly combined and
listed with those associated with reconfiguring the Ramapo system.[^27]
Cablevision adds that it treats the Rockland and Ramapo systems as a
single system for operational purposes and mistakenly categorized all
the costs for the two systems under the "TCI- Ramapo" heading, rather
than dividing the costs between the two systems.[^28]

16\. Cablevision states that it must undertake the significant effort to
reconfigure its traps at thousands of subscriber homes in the Rockland
system.[^29] At each affected subscriber address, Cablevision asserts it
will have to remove one trap, and replace it with three new traps in
order to reposition WXTV to channel 41. Cablevision states that such an
effort would require it to incur an unanticipated and unbudgeted expense
of several hundred thousand dollars, for which resources have not been
allocated.[^30] Cablevision requests that the Bureau amend its Order to
group Rockland together with those 17 other systems for which the Order
granted Cablevision 180 days from the release date of the Order to come
into compliance.[^31]

17\. In response to a Cable Services Bureau request for more information
concerning the Rockland system, Cablevision provides more data on the
implementation costs to place WXTV on channel 41. Cablevision states
that in order to reposition WXTV to channel 41, engineers would have to
visit approximately 7,360 subscriber homes.[^32] At each affected
address, the current trap will have to be replaced with a new, more
expensive trap.[^33] Cablevision states that the new traps will cost
approximately \$33.00 each and labor costs per affected subscriber will
be approximately \$15.50, for a total anticipated cost of
\$356,960.[^34]

18\. Cablevision\'s request for relief with regard to these four systems
is granted. The operator has met its burden in showing that, insofar as
the Allamuchy, Bayonne, and Yonkers systems are concerned, it is
technically impracticable to place WXTV on cable channel 41 at this
point in time. WXTV has also conceded this point with regard to these
three systems. For these reasons, on-channel carriage is not now
required. We note, however, that once these systems are rebuilt,
Cablevision will be under an obligation to carry the station on cable
channel 41. As for the operator\'s Rockland system, we find that
Cablevision has satisfied its burden that the system should not have
been included in the \"no cost\" category requiring immediate
compliance.

B. *Forfeiture*

19\. Cablevision asserts that the institution of a forfeiture proceeding
is unwarranted. Cablevision claims that the Bureau did not adequately
appreciate the nature of its negotiations with WXTV that were taking
place almost until the Bureau issued its Order. The operator states that
WXTV, throughout its negotiations with Cablevision, wanted a uniform
channel position throughout the New York market in order to achieve
certain marketing objectives.[^35] Cablevision explains that it had
marketing plans of its own and intended to establish thematic tiering so
that groups of similar types of programming would be clustered together,
notwithstanding the channel positioning rights held by broadcast
stations.[^36] Cablevision argues that granting WXTV a uniform channel
position on channel 41 across the New York market is extremely
burdensome and not economical under the systems\' current technical
configuration; as such, it spent a significant amount of time attempting
to negotiate an alternative channel on which to carry WXTV.

20\. Cablevision states that these discussions were taking place as part
of a larger business relationship that Cablevision has with WXTV's
parent, Univision, and involved not only WXTV\'s channel positioning
requests, but also carriage of Galavision cable programming (Univision's
cable programming arm) on Cablevision\'s cable systems.[^37] Cablevision
states that WXTV's channel position was presented as one of a number of
items \"on the table\" that could be negotiated and it was not until
late 1998 that WXTV clearly stated its desire to be carried only on
channels 1-13 or 41, and then filed its complaint.[^38]

21\. Cablevision asserts that it would not have made sense, given WXTV's
clearly stated objectives, for it to offer to carry WXTV on channel 41
only in the individual systems identified as "no cost" systems.[^39]
Cablevision argues that had it moved WXTV to channel 41 in those
systems, and successfully negotiated an alternative channel position in
the high-cost systems, the result would have been a fragmented channel
position across the market for the station.[^40] Cablevision urges the
Bureau recognize that its delay in repositioning WXTV in those systems
was due to its good-faith belief that the parties were engaged in
potentially fruitful negotiations, not to a "cavalier approach" to its
legal responsibilities, and that it should refrain from instituting a
forfeiture proceeding.[^41]

22\. WXTV argues that the very fact that it was forced over the course
of years to negotiate for a uniform channel position demonstrates
Cablevision\'s \"intractable refusal to comply\" with the Commission\'s
rules.[^42] WXTV adds that if Cablevision truly acted in good faith, it
would have placed the station\'s signal on Channel 41 in compliance with
the rules and then sought to negotiate a more mutually advantageous
channel position; instead, Cablevision tried to use WXTV\'s lack of a
uniform channel position as leverage to force WXTV to accept whatever
channel the operator wished to make available on a system by system
basis.[^43]

23\. WXTV adds that the timing of the negotiations belies Cablevision\'s
claim that it acted in good faith. The station asserts that the operator
ignored WXTV\'s attempts to secure carriage on Channel 41 for several
years and only participated in negotiations when, in approximately May
of 1997, Cablevision needed WXTV\'s cooperation in moving WXTV to
channel 57 on the Norwalk system.[^44] WXTV asserts that when
Cablevision did not receive its consent to being repositioned to Channel
57 as part of a foreign-language programming tier, the operator ceased
further contacts with the station and moved WXTV to Channel 57 on
several systems without the station\'s knowledge or consent.[^45] The
station argues that while Cablevision alleges that negotiations were
underway at higher corporate levels concerning carriage of WXTV and
other matters, it was not until the station sent its March 1998 must
carry demand letters that the operator participated in discussions
addressing the channel positioning issue.[^46]

24\. WXTV states, assuming *arguendo*, that its discussions with
Cablevision could be characterized as acting in good faith, the
operator\'s conduct during the negotiations evidenced that it had no
intention of honoring the station\'s channel positioning rights.[^47]
WXTV states, for example, that a written proposal from Cablevision was
never completely drafted or transmitted to the station and did not, by
its terms, provide the uniform channel position that Cablevision now
claims it was anxious to provide to WXTV; instead, this agreement would
have allowed the operator to place WXTV on any one of four channel
positions on each of its individual cable systems.[^48] WXTV further
asserts that the station secured an oral commitment from Cablevision
that it would commence carriage of the station on a specific channel on
all systems by July 1, 1999, but Cablevision refused to commit to that
arrangement in writing. WXTV argues that the existence of negotiations
that commenced after the cable operator is already in noncompliance and
during which no viable solution to the noncompliance is proffered cannot
forestall enforcement of the Act\'s channel positioning provisions.[^49]

25\. We agree with the Cable Services Bureau that a forfeiture
proceeding should commence.[^50] The record indicates that Cablevision
has willfully and repeatedly disregarded the station\'s channel
positioning requests over the course of several years. While it may be
true that the issue of WXTV\'s channel position was raised in the
Univision-Cablevision discussions, the operator should have placed the
station\'s signal on channel 41 on those systems where there was no
additional cost of compliance during the pendency of the negotiations,
as the Act and the Commission\'s rules require.[^51] Moreover,
Cablevision failed to accommodate the station\'s channel positioning
requests in the period after negotiations broke down even on those
systems where there were no compliance costs. Based on the circumstances
set forth above, as well as the reasons set forth in the Notice of
Apparent Liability released concurrently with this Order, we find that
Cablevision willfully and repeatedly failed to comply with the must
carry provisions of the Act and our rules. We therefore find that the
initiation of a forfeiture proceeding is appropriate.

C. *The Fifth Amendment\'s Takings Clause*

26\. Cablevision argues that the Bureau can, and should, find the must
carry rules in violation of the Fifth Amendment to the United States
Constitution.[^52] The operator claims that forced carriage of WXTV
amounts to a *per se* physical taking because the station is permitted,
by government edict, to exclusively occupy valuable cable channel
capacity without just compensation in return.[^53] It contends that the
station\'s unilateral right to choose its preferred channel position on
the cable system further exacerbates the taking of its property.[^54]
Cablevision contends that the Bureau's reliance on the proposition of
law that regulatory agencies are not free to declare an act of Congress
unconstitutional, and its resulting refusal to find that the must carry
rules constitute an uncompensated taking of private property, fails to
recognize recent case law affirming the authority of federal agencies to
rule on the constitutionality of statutes.[^55] Cablevision believes
that the Bureau, through its delegated authority from the Commission,
has full authority to determine whether the must carry requirements
constitute an unconstitutional taking of private property, and should
issue a decision on the merits.[^56]

27\. Cablevision claims that the Supreme Court has held that while
adjudication of the constitutionality of statutes "has generally been
thought beyond the jurisdiction of administrative
agencies . . . .\[t\]his rule is not mandatory."[^57] Cablevision
further claims that, in reaching its determination, the Supreme Court in
*Thunder Basin* found it significant that the agency decision at issue
could be appealed to a federal court, and thus did not present the
"serious constitutional question" that might arise if judicial review of
the agency decision were precluded.[^58] Cablevision believes it is
significant that the Court found that the agency at issue had passed
judgment on constitutional questions prior to the case at issue.[^59]

28\. Cablevision argues that the takings claim it presents is suitable
for agency decisionmaking.[^60] Cablevision states that it has presented
a challenge to the must-carry rules, both facially and as applied, to
the individual circumstances that are before the Bureau. Cablevision
adds that a decision by the Commission is fully reviewable in federal
court. Finally, Cablevision asserts that the Commission has, in fact,
addressed constitutional challenges to statutes prior to this
proceeding, albeit with the aim of rejecting such claims.[^61]
Cablevision therefore requests that the Bureau reconsider its Order, and
issue a decision addressing the merits of its takings claim.

29\. In response to Cablevision\'s constitutional claim, WXTV first
disagrees with the operator\'s interpretation of the Supreme Court\'s
*Thunder Basin* decision. The station argues that the case clearly does
not stand for the proposition that federal agencies may freely declare
portions of their implementing statutes unconstitutional.[^62] Even if
the case could be interpreted in the manner suggested by Cablevision,
WXTV contends that the precedent set by the case has limited application
because it involved health and safety mining regulations administered by
the Department of Labor with regulatory challenges heard before a
Commission independent of the Department and then by a U.S. District
Court.[^63] WXTV asserts, in any event, that the consideration of a
constitutional claim by an administrative agency is the exception rather
than the rule, and that even when such a unique set of facts presents
itself, it is still entirely within the discretion of the agency to
refrain from adjudicating the constitutional issue.[^64]

30\. We decline Cablevision\'s invitation to declare Section 614 of the
Communications Act unconstitutional under the 5th Amendment\'s Takings
Clause. 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.[^65] In this case, we decline to
do so. While Cablevision\'s takings challenge is to our rules as well as
the statute, we believe that the challenge is fundamentally a statutory
challenge since it is the statute that is the source of the must carry
and channel positioning requirements that Cablevision challenges. In
this case, the statutory scheme has been in place, and applicable to
Cablevision, for at least seven years. Cablevision, however, did not
raise its Fifth Amendment claim until 1999 and has not provided any
legitimate reason for its delay. 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.

**IV. ORDERING CLAUSES**

31\. Accordingly, **IT IS ORDERED**, pursuant to Section 614 of the
Communications Act of 1934, as amended (47 U.S.C. § 534), that the
Petition for Reconsideration filed by CSC Holdings, Inc. **IS GRANTED IN
PART AND DENIED IN PART**.

32\. **IT IS FURTHER ORDERED** that Cablevision is not required to carry
WXTV on Channel 41 with regard to its Allamuchy, Bayonne, and Yonkers
systems unless and until it upgrades these systems and has the technical
capability to place the station\'s signal on Channel 41.

33\. **IT IS FURTHER ORDERED** that Cablevision has 90 days, from the
date this Order is released, to carry the station\'s signal on cable
channel 41 with regard to its Rockland system.

34\. This action is taken pursuant to statutory authority found in
Sections 1, 4(i), 5(c), 405, and 614(b)(6) of the Communications Act of
1934, as amended, 47 U.S.C. §§ 151, 154(i), 155(c), 405, 534(b)(6) and
47 C.F.R. §76.57 of the Commission's rules.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**CONCURRING STATEMENT**

**OF COMMISSIONER HAROLD W. FURCHTGOTT-ROTH**

In the Matter of WXTV License Partnership, G.P., Petition for Special
Relief Concerning Carriage of Television Station WXTV, Paterson, New
Jersey on Channel 41 on Certain Cablevision Cable Systems in the New
York Television Market, Order on Reconsideration, CSR No. 5327-M

I concur in the Order on Reconsideration. I would like to say just a few
words, however, about Cablevision's constitutional defense against
application of the must-carry rules in this enforcement proceeding.

For starters, I would have addressed the merits of Cablevision's
argument that application of the must-carry and subsidiary
channel-positioning regulations works an uncompensated taking of its
property in violation of the Fifth Amendment. Although it is true that
Congress does not normally grant independent agencies statutory
authority to "adjudicate" constitutional claims and to "declare"
statutes invalid in the sense that Article III courts do, *see* Order on
Reconsideration at paras. 27-30 (discussing *Thunder Basin Coal Co. v.
Reich*, 510 U.S. 200 (1994)), the Commission certainly is entitled to
consider the merits of constitutional arguments raised by parties in
opposition to proposed agency action, whether in the context of a
rulemaking or an adjudication, in deciding what action ultimately to
take. Here, the agency's decision to avoid any substantive discussion of
Cablevision's Takings claim pays silent tribute to the strength of the
claim.

As just indicated, I believe the Takings claim to be well grounded in
record fact and precedent. I will not repeat here the full argument made
by Cablevision. *See Cablevision's Opposition to Petition for Special
Relief* at 14-24 (filed Jan. 7, 1999). Suffice it to say that I find the
argument, for the reasons that follow, to have considerable merit.

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. *See generally Loretto
v. Teleprompter Manhattan CATV Corp.*, 458 U.S. 419 (1982); *Bell
Atlantic Tel. Co. v. FCC*, 24 F.3d 1441 (D.C.Cir. 1994); *Turner
Broadcasting System, Inc. v. FCC*, 819 F.Supp. 32, 67 n.10 (D.D.C. 1993)
(Williams, J., dissenting). And, to answer the Takings Clause question
presented here requires no abstract debate about ownership of radio
spectrum or possession of electromagnetic waves. Whatever one might say
about such matters, there 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. Moreover, the must-carry scheme does not just fail
to provide compensation for this occupation, but affirmatively prohibits
it. *See* 47 U.S.C. section 534 (b)(10); 47 CFR section 76.60.

In sum, this Order on Reconsideration presents a viable Takings
challenge to the must-carry regime. As such, the merits of the challenge
ought to have been discussed in the Order.

[^1]: ^?^WXTV states that the Bureau\'s Order correctly disposed of the
    matters before the Bureau and Cablevision has presented no new
    information requiring alteration of the Order. WXTV\'s Opposition at
    1.

[^2]: ^?^*See* 47 C.F.R. §1.106(a)(1) (\"Petitions requesting
    reconsideration of other final actions taken pursuant to delegated
    authority will be acted on by the designated authority or referred
    by such authority to the Commission.\") *See also* Section 1.429 of
    the Commission\'s rules similarly empowers a designated authority to
    refer a Petition for Reconsideration to the Commission in a
    rulemaking proceeding. 47 C.F.R. §1.429(a).

[^3]: ^?^Cablevision\'s Petition for Reconsideration at 1.

[^4]: ^?^*Id.* at 2.

[^5]: ^?^*Id.*

[^6]: ^?^8 FCC Rcd 2965, 2976‑2977 (1993).

[^7]: ^?^The legislative history of the 1992 Cable Act is replete with
    references concerning the need for channel positioning requirements.
    *See, e.g.,* Conf. Rep. No. 102-862, 102d Cong. 2d Sess. (1992) at
    75 (\"The conferees find that the must carry and channel positioning
    provisions in the bill are the only means to protect the federal
    system of television allocations, and to promote competition in
    local markets.\") and H.R. Rep. No. 102-628, 102d Cong. 2d Sess.
    (1992) at 55 (\"Channel position is important in ensuring the
    success of a signal carried on a cable system.\")

[^8]: ^?^47 U.S.C. § 534(b)(6); 47 C.F.R. § 76.57.

[^9]: ^?^47 U.S.C. §534(b)(6).

[^10]: ^?^47 C.F.R. §76.57.

[^11]: ^?^8 FCC Rcd at 2988.

[^12]: ^?^*Id.*

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

[^14]: ^?^*Id.* As part of such a showing, a cable operator must present
    evidence as to the costs involved in remedying the technical
    problem. *Implementation of the Cable Television Consumer Protection
    and Competition Act of 1992*, Memorandum Opinion and Order in MM
    Docket 92‑259 (\"Must Carry Recon\"), 9 FCC Rcd 6723, 6735 (1994);
    *see also Greater Dayton Public Television*, 10 FCC Rcd 1048 (1995)
    and *KDTV License Partnership*, 13 FCC Rcd 10331 (1998).

[^15]: ^?^These systems include (1) East End East Hampton; (2) Rockville
    Center; (3) Malvern; (4) Islip; (5) Lynbrook; (6) East End Riverhead
    Optimum; (7) New York City; (8) Norwalk Optimum; (9) Bridgeport
    Optimum; (10) Cross River; (11) Yonkers-Optimum; (12)
    Yonkers-Essential; (13) Bayonne; (14) Bayonne-Optimum; (15)
    Bergen-Optimum; (16) Hudson-Optimum; (17) TCI-Hamilton; (18)
    TCI-Hamilton-Rebuild; (19) TCI-Oakland; (20) TCI-Rockland; and (21)
    TCI-Allamuchy. *See* Cablevision\'s Opposition at Exhibit A.

[^16]: ^?^These systems include: (1) Woodbury-Optimum-Syosset; (2)
    Woodbury-Optimum; (3) East End Riverhead-Old wire; (4) Monmouth
    Millstone; (5) Monmouth-Wall/Asbury; (6) Monmouth-Lakewood; (7)
    Monmouth-Seaside; (8) Monmouth-Optimum; (9) TCI-Elizabeth; (10)
    TCI-Morris; (11) TCI-Oakland; (12) TCI-Paterson; (13) TCI-Ramapo;
    (14) TCI-Warwick; (15) TCI Tri-System; (16) TCI Westchester; and
    (17) TCI Brookhaven. *See* Cablevision\'s Opposition at Exhibit A.

[^17]: **^?^**We note that Cablevision recently filed a request for an
    extension of time to comply with the Bureau\'s Order for some of
    these systems until late Winter 2000 because of ongoing technical
    difficulties. The Bureau had recently granted Cablevision\'s request
    in an Order separate from this Reconsideration. *See Extension of
    Time Order*, CSR 5327-M, DA 00-97 (CSB-rel. Jan. 20, 2000).

[^18]: ^?^*See* *Johnson v. Robinson,* 415 U.S. 361, 368 (1974)
    (\"Adjudication of the constitutionality of congressional enactments
    has generally been thought beyond the jurisdiction of administrative
    agencies\").

[^19]: ^?^*Turner Broadcasting System v. FCC*, 117 S.Ct. 1174 (1997).

[^20]: ^?^Cablevision Petition for Reconsideration at 2.

[^21]: ^?^*Id.* at 3.

[^22]: ^?^*Id.*

[^23]: ^?^*Id.*

[^24]: ^?^*Id.* at 4.

[^25]: ^?^*Id.*

[^26]: ^?^*Id.*

[^27]: ^?^*Id.*

[^28]: ^?^*Id.*

[^29]: ^?^*Id.* at 5.

[^30]: ^?^*Id.*

[^31]: ^?^*Id.*

[^32]: ^?^Cablevision\'s Response to Cable Services Bureau Request for
    Additional Information Concerning the Rockland System at 2.

[^33]: ^?^*Id.*

[^34]: ^?^*Id.* at 3.

[^35]: ^?^*Id.*

[^36]: ^?^For example, all Spanish language programming would be found
    between cable channels 50-59.

[^37]: ^?^*Id.*

[^38]: ^?^*Id.*

[^39]: ^?^*Id.* at 7.

[^40]: ^?^*Id.* *See also* Cablevision\'s Reply at 2.

[^41]: ^?^*Id.*

[^42]: ^?^*Id.*

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

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

[^45]: ^?^*Id*.

[^46]: ^?^*Id*.

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

[^48]: ^?^*Id*. at 4-5.

[^49]: ^?^*Id*. *See* 47 U.S.C. §534(b)(6).

[^50]: ^?^*See* *Notice of Apparent Liability* released concurrently
    with this Order.

[^51]: ^?^47 U.S.C. §534(b)(6); 47 C.F.R. § 76.57.

[^52]: ^?^Cablevision Petition for Reconsideration at 7.

[^53]: ^?^See Cablevision\'s Opposition to WXTV\'s Petition for Special
    Relief at 14, 15.

[^54]: ^?^*Id.*

[^55]: ^?^*Id. citing Thunder Basin Coal Co. v. Reich*, 510 U.S. 200
    (1994); *see also* *Bonnichsen v. United States Dept. of Army*, 969
    F. Supp. 628, 650 (D. Ore. 1997) (noting that "in recent years, the
    traditional doctrine -- that an agency has no authority to declare a
    statute or regulation unconstitutional -- has come under attack").

[^56]: ^?^*Id.* at 7-8.

[^57]: ^?^*Id.* at 8 *citing Thunder Basin Coal Co. v. Reich*, 510
    U.S.at 215.

[^58]: ^?^*Id. citing* 510 U.S. at 215 n.20.

[^59]: ^?^Cablevision Petition for Reconsideration at 8.

[^60]: ^?^*Id.*

[^61]: ^?^*Id.* at 9 *citing* *Implementation of Telecommunications Act
    of 1996: Telemessaging, Electronic Publishing, And Alarm Monitoring
    Services*, 12 FCC Rcd. 5361, 5376-77 (1997).

[^62]: ^?^WXTV Opposition at 6.

[^63]: ^?^*Id.* at n.15.

[^64]: ^?^WXTV Opposition at 7. WXTV also disputes the substance of
    Cablevision\'s constitutional arguments. *Id*. at 8-9.

[^65]: ^?^*See* *Thunder Basin*, 510 U.S. at 215. (we note, however,
    that the reviewing body was not the agency itself but an independent
    Commission established exclusively to adjudicate Mine Act disputes).