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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554


In the Matter of:                  )
                                )
1998 Biennial Regulatory Review--            )         CS Docket No. 98-54
                                )
Part 76 -  Cable Television Service               )
Pleading and Complaint Rules            )


                    ORDER ON RECONSIDERATION

   Adopted:  September 23, 1999         Released:  September 29, 1999

By the Commission:

I.   INTRODUCTION

     1.   In 1998 Biennial Regulatory Review -- Part 76 - Cable Television Service Pleading
and Complaint Rules, Report and Order ("Part 76 Order"), the Commission adopted rules to
reorganize and simplify the Part 76 Cable Television Service pleading and complaint rules.  A
petition for reconsideration of the Part 76 Order was filed by EchoStar Communications Corporation
("EchoStar").  For the reasons discussed below, EchoStar's petition is denied.

II.  BACKGROUND

     2.   The Part 76 Order was adopted as an adjunct to the Commission's 1998 biennial
regulatory review pursuant to Section 11 of the Telecommunications Act of 1996 ("1996 Act"). 
Section 11 of the 1996 Act instructs the Commission "to conduct a biennial review of regulations that
apply to operations and activities of any provider of telecommunications service and to repeal or
modify any regulation it determines to be no longer in the public interest."  Although Section 11 does
not specifically refer to cable operators, the Commission determined that the first biennial review
presented an opportunity for a thorough examination of all of the Commission's regulations.

     3.   The Part 76 Order implemented several rule changes designed to consolidate the
procedural requirements for most Part 76 filings.  Provisions rendered redundant by the amendments
adopted in the Part 76 Order were eliminated.  Additionally, the Part 76 Order adopted a procedural
amendment clarifying essentially similar provisions related to the limitations period for filing program
access, program carriage and open video system complaints.  These changes made the Part 76 rules
more concise and easier to use and serve the public interest by lessening confusion and reducing the
regulatory burden on franchising authorities, cable operators, and other interested persons making
filings under Part 76.  
          
III. DISCUSSION
     
     4.   Congress enacted the Cable Television Consumer Protection and Competition Act
of 1992 ("1992 Cable Act"), which instructed the Commission, inter alia, to promulgate regulations
that prohibit discrimination by a satellite cable programming vendor in which a cable operator has an
attributable interest.  In enacting the program access provisions, which are codified in Section 628
of the Communications Act, Congress was concerned about the market power of wired cable
companies and cable programmers in which cable operator's have an attributable interest.  The
program access provisions were designed to ensure that competition to incumbent cable operators
develops and to encourage competition from emerging competitors.  Similarly, the 1992 Cable Act
added Section 616 to the Communications Act, which governs the agreements between cable
operators, or other multichannel video programming distributors ("MVPDs"), and the programming
services they distribute.  Section 616 was intended to prevent a MVPD from requiring a financial
interest in a program service or exclusive rights as a condition for carriage on the MVPD's system. 
The Telecommunications Act of 1996 added Section 653 to the Communications Act, which
establishes the open video system framework, an option for the distribution of video programming
other than as a cable operator.

     5.   The dispute resolution processes in Part 76 for program access, program carriage and
open video system complaints follow similar procedural rules that were designed to achieve an
expedient resolution of complaints.  The rules contain three like provisions which set forth a one year
limitations period for bringing complaints.  The rules list three events that trigger the running of the
limitations period: (1) complainant and defendant enter into a contract alleged to violate the rules;
(2) unrelated to an existing contract, defendant makes an offer to complainant that allegedly violates
the rules; or (3) defendant unreasonably refuses to negotiate with complainant.  In the Part 76
Order, the Commission clarified the appropriate interaction between the limitations period for alleging
an existing contract violates the rules and the limitations period for alleging that an offer to the
complainant violates the rules.  For example, Section 76.1003(f), the program access limitations
period, was amended to include the highlighted language:

          (f) Time limit on filing of complaints.  Any complaint filed pursuant to this subsection
     must be filed within one year of the date on which one of the following events occurs:
     
     
                    (1) The satellite cable programming or satellite broadcast
          programming vendor enters into a contract with the complainant that
          the complainant alleges to violate one or more of the rules contained
          in this subpart;  or
     
                    (2) The satellite cable programming or satellite broadcast
          programming vendor offers to sell programming to the complainant
          pursuant to terms that the complainant alleges to violate one or more
          of the rules contained in this subpart, and such offer to sell
          programming is unrelated to any existing contract between the
          complainant and the satellite cable programming or satellite
          broadcast programming vendor.

The rules adopted in the Part 76 Order explain that complaints based on allegedly discriminatory
contracts must be brought within one year of entering into the contract and that an allegedly
discriminatory offer to amend such contract made more than one year after the execution thereof does
not reopen such contract to program access liability.  For example, in the program access context,
this amendment explains that an offer to amend an existing contract that has been in effect for more
than one year does not reopen the existing contract to complaints that the provisions thereof are
discriminatory.

     6.   Petitioner EchoStar seeks reconsideration of the adoption of this language.  EchoStar
argues that these amendments effect a significant rule change that was not addressed in the Notice
of Proposed Rule Making ("NPRM") that led to the Part 76 Order.  EchoStar maintains that the
adoption of the rules is inconsistent with the Administrative Procedure Act ("APA") because
substantive changes were made to the Commission's rules without providing notice and opportunity
for comment.  Ameritech New Media, Inc., ("Ameritech") supports EchoStar, maintaining that the
amendment establishes a significant new restriction on allowable program access complaints by
limiting the events that can trigger program access review.  Ameritech believes that the amendments
do not satisfy the APA as a logical outgrowth of the proposals in the NPRM.  Ameritech contends
that the public could not have contemplated these amendments because the NPRM stated that the
Commission was proposing to standardize the Part 76 complaint procedures and the three rules were
already procedurally the same prior to the amendment.

     7.   In opposition, Fox Sports Net LLC ("Fox") maintains that the amendments are
consistent with the stated purpose of the Part 76 Order to reorganize and simplify the Part 76
pleading and complaint process rules.  Fox argues that the amendments clarify when the limitations
period commences for complaints against existing contracts and complaints not based on existing
contracts.  Fox believes that since the rules adopted are interpretive rules which merely explain how
the existing rules would be enforced, the Commission was not required to publish its intentions in
advance.  In reply, EchoStar maintains that the amendments do not constitute interpretive rules
because the change is binding on potential Part 76 complainants, and accordingly, covered by the
notice and comment requirement of the APA.

     8.   We believe that the amendments conform with APA requirements.  The APA requires
publication of proposed agency rules that are substantive followed by a period of public consideration
and comment.  Section 553 of the APA excepts from the notice and comment requirements
interpretative and procedural rules.  Interpretative rules are agency statements of general effect in
which the agency announces an interpretation of a statute or of another rule.  Interpretative rules
thus serve an advisory function by explaining the meaning given to a particular word or phrase in a
statute or rule that an agency administers.  Procedural rules do not alter the substantive rights or
interests of a party, but rather govern the manner in which substantive positions are presented to the
agency.

     9.   The amendments at issue clarified the time period for filing complaints pursuant to the
existing rules.  The amendments are not substantive rule changes that impose new obligations, but
at most clarify how to file complaints under the existing rules, and thus, are interpretive and/or
procedural rules that are excepted from the notice and comment requirements.  The amendments
did not create any new rights or obligations.  The basic tenet that entering into a contract precludes
an unlimited time frame for bringing certain complaints was explicitly set forth in the rules prior to
their amendment.  The policy for the establishment of a limitations period was delineated in the
proceedings adopting the original rules.  The fact that EchoStar and commenter, Ameritiech,
misunderstood or disagree with the Commission's reading of the limitations period provisions at issue
in this proceeding does not transform the amendments adopted in the Part 76 Order from interpretive
and/or procedural rules to substantive amendments.  

     10.  In the Part 76 Order, we spell out more clearly the previously articulated criteria for
bringing specific types of complaints.  We intended that the amendments would apprise the public that
subsequent negotiations do not reopen an existing contract to program access, program carriage, or
open video system complaints after one year has elapsed from the execution of the contract.  Advising
the public regarding its construction and application of the rules which it administers is within the
Commission's rights, and consistent with the APA. 

     11.  As discussed above, we believe that the notice and comment provisions of the APA
do not apply to the amendments to the program access, program carriage and open video system
rules.  In addition, we disagree with petitioner's contention that the amendments are unrelated to the
objectives of the biennial review.  To the contrary, we believe that the amendments were undertaken
in a manner consistent with the purposes of the Part 76 Order.  The purpose of the review of the Part
76 rules was to make amendments to simplify and clarify the procedural rules so that the public would
find them less confusing and easier to use.  The Part 76 Order noted that confusion regarding the
limitation period for program access complaints led to the filing of untimely complaints.  The
amendments comport with the goals of the streamlining proceeding by providing greater detail
regarding the procedures encompassed in the original regulations.  The amendments give
complainants a clearer explanation of the existing limitations period for filing certain complaints. 
Contrary to petitioner's assertion, the amendments do not create any new duties.  Under Section
76.1003(f), parties were required to bring program access complaints within a specified time frame. 
The start of the limitations period depended on whether the parties in dispute had entered into a
contract.  If a contract had been executed, the rules required complaints to be filed within one year
of the date of the contract.  This obligation remains the same under the amended rule, although the
obligation is now better explained.  This conclusion is supported by a Cable Services Bureau decision
issued prior to the Part 76 Order.  In EchoStar v. Fox, the Bureau dismissed as untimely a program
access complaint because the complaint was not brought within one year of contract execution.  The
Bureau considered the triggering event of the limitations period the execution of the contract.  The
Bureau found that the fact that defendant subsequently offered to amend the contract after it had been
in effect for more than one year did not reopen the contract to program access liability.  The Bureau
recently reaffirmed this conclusion on reconsideration.
     
IV.  ORDERING CLAUSES

     12.  IT IS ORDERED that the Petition for Reconsideration filed by EchoStar
Communications Corporation IS DENIED.
     

                         FEDERAL COMMUNICATIONS COMMISSION


                         
                         Magalie Roman Salas
                         Secretary