PRESS STATEMENT OF COMMISSIONER KEVIN J. MARTIN
APPROVING IN PART, CONCURRING IN PART

Re:	Implementation of the Cable Television Consumer Protection and Competition Act of 
1992; Development of Competition and Diversity in Video Programming Distribution: 
Section 628(c)(5) of the Communications Act; Sunset of Exclusive Contract Prohibition, 
Report and Order, CS Docket No. 01-290 (adopted June 13, 2002).

      The Program Access rules, and in particular the prohibition against exclusive contracts,  
have been instrumental to the growth of viable competitors to the incumbent cable operators in 
the multichannel video programming distribution market.  When Congress enacted the program 
access provisions in 1992, however, Congress placed a limit on the prohibition against exclusive 
contracts.  Section 628(c)(5) of the Communications Act provides that the exclusivity ban would 
cease to be effective in October of 2002 (ten years from the date of passage) unless the 
Commission makes an affirmative finding that the prohibition continues to be necessary to 
preserve and protect competition and diversity in the in the distribution of video programming. 
      I am very cognizant of the D.C. Circuits recent rulings criticizing the Commissions 
application of the term necessary.   I also am aware that the courts have been reviewing our 
decisions with increasing scrutiny, demanding both adherence to statute and reasoned 
decisionmaking based on specific evidence.  I believe these decisions must inform how we 
articulate and meet the legal standard set forth in  628(c)(5), particularly given the close 
parallels between that language and 202(h).  Section 628(c)(5) states that:
The prohibition required by paragraph (2)(D) shall cease to be 
effective 10 years after October 5, 1992, unless the Commission 
finds  that such prohibition continues to be necessary to preserve 
and protect competition and diversity in the distribution of video 
programming. 
Section 202(h), passed four years later and applying to cable as well as broadcast rules, states:
The Commission  shall determine whether any of such rules are 
necessary in the public interest as the result of competition. The 
Commission shall repeal or modify any regulation it determines to 
be no longer in the public interest. 
      Both provisions address communications regulations.  Both create a presumption in favor 
of eliminating (or modifying) a rule.  Both instruct the Federal Communications Commission to 
make specific findings regarding whether a rule is necessary.  I am troubled that the Order 
does not acknowledge these similarities.  More fundamentally, I am concerned that the Orders 
articulation of the legal standard we must meet is not sufficiently rigorous or responsive to recent 
court rulings, and I therefore concur in this aspect of the order.  
      I have approached the statutory test in  628(c)(5) as creating a presumption that the rules 
should sunset and that specific evidence is needed to justify a conclusion that without the 
prohibition, competition and diversity in the distribution of video programming could not be 
preserved and protected.  I agree with parties that argue, for instance, that: 
Congress has clearly directed the restrictions on exclusive 
programming arrangements sunset absent solid proof of their 
necessity to preserve and protect competition and diversity.  It is 
not sufficient to show that exclusivity restrictions are merely 
helpful or beneficial to some particular competing 
multichannel video programming distributors.  The statutory 
language is clear and ambiguous  the exclusivity restrictions can 
be retained only if necessary to preserve and protect competition 
and diversity in the distribution of video programming. 
A finding that the exclusivity ban promotes competition, or remains beneficial to the 
marketplace, would not be sufficient.  Nor could the Commission merely rely on some notion of 
its expert judgement, unrelated to the record.  To do so would be to apply too low a standard, 
as the D.C. Circuit recently explained in Fox Television, Inc.  
      For me, this was a very close call.  On balance, I have concluded that the record does 
support the Orders conclusion that the prohibition against exclusive contracts continues to be 
necessary to preserve and protect competition and diversity, and therefore I support the item in 
this regard.  
  	Section 628(c)(2)(D) generally prohibits, in areas served by a cable operator, exclusive contracts for 
satellite cable programming or satellite broadcast programming between vertically integrated programming vendors 
and cable operators.  47 U.S.C.  548(c)(2)(D).
  	47 U.S.C.  548(c)(5).
  	See, e.g., Fox Television Stations, Inc., et al. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002) (interpreting 
Section 202(h) of the Telecommunications Act); Sinclair Broadcast Group, Inc. v. FCC, 284 F.3d 148 
(D.C. Cir. 2000) (interpreting Section 202(h) of the Telecommunications Act); United States Telecom 
Association, et al., v. FCC, No. 00-1012 (D.C. Cir. 2002) (interpreting Section 251(d)(2) of the 
Communications Act).
  	47 U.S.C.  548(c)(5).
  	 202(h) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56.
  	Reply Comments of AOL Time Warner at i (describing statements made by several commenters in the 
initial round of comment) (emphasis in original).
  	Fox Television Stations, 280 F.3d at 1049 (D.C. Cir. 2002)