B
                                efore the
                    FEDERAL COMMUNICATIONS COMMISSION
                         Washington, D.C.  20554
  In the Matter of                 )
                                   )
  Implementation of Section 302 of      )    CS Docket No. 96-46
  the Telecommunications Act of 1996    )
                                   )
  In the Matter of                 )
                                   )    CC Docket No. 87-266
  Telephone Company-Cable               )    (Terminated)
  Television Cross-Ownership Rules,     )
  Sections 63.54-63.58                  )
  To:  The Commission
COMMENTS OF THE ASSOCIATION OF
AMERICA S PUBLIC TELEVISION STATIONS
            ASSOCIATION OF AMERICA S PUBLIC
  TELEVISION STATIONS
            Marilyn Mohrman-Gillis
            Vice President, Policy & Legal Affairs
            Lonna M. Thompson
            Director, Legal Affairs
            1350 Connecticut Avenue, N.W.
            Washington, D.C.  20036
  April 1, 1996
                                                       
Ta                      ble of Contents
                                                               Pa                                                           ge
I. Introduction and Summary of Position
1
II. Public Telecommunications Providers Should be Afforded Preferential
Rates by OVS Operators
3
     A. Granting Preferential Access for Public Telecommunications
     Entities Will Serve the Public Interest.             3
          1. OVS Offers Significant Opportunity to Extend and Enhance
          Public Telecommunications Services.            3
          2. Requiring Public Telecommunications Entities to Pay
          Commercial Rates for OVS Will Impair the Distribution of
          Public Telecommunications Services.             6
     B. Long-standing, National Policy Favors Facilitating Access to
     Distribution Technologies for Public Telecommunications Services  9
          1. The Access Policies of Congress              10
2. The Access Policies of the Commission                  12
III. Applying the Must Carry Provisions of Section 615 to OVS Must Take
Into Account The Congressional Purposes . . . . . . . . . 14
     A. Importance of Must Carry of Local Public Television Stations by
     OVS Providers                                        14
     B. Must Carry Regulations Must Be Adopted with Several Important
     Principles in Focus                                  16
          1. All Subscribers Must Have Access to All Must Carry
          Stations  Programming                           16
          2. Carriage of Analog/Digital Signals           17
 3. Carrying the Signal in its Entirety                   18
4. Qualifying Stations                                    19
5. Notification                                           20
6. Channel Positioning                                    20
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . 21
Before the
FEDERAL CO              MMUNICATIONS COMMISSION
Washington                   , D.C. 20554
                              In the Matter of                )
                                )
Implementation of Section 302 of          )    CS Docket No. 96-46
the Telecommunications Act of 1996   )
                                )
In the Matter of                )
                                )    CC Docket No. 87-266
Telephone Company-Cable              )    (Terminated)
Television Cross-Ownership Rules,    )
Sections 63.54-63.58                 )
To:  The Commission
COMMENTS OF THE ASSOCIATION OF
     AMERICA S PUBLIC TELEVISION STAT IONS
                        The Association of America s Public Television Stations ( APTS ) submits
these comments in response to the Commission s Notice of Proposed Rulemaking in
CS Docket No. 96-46 ( Notice ). The Notice seeks comment on the issues involved
in the development of rules applicable to open video systems, recently established
by the Telecommunications Act of 1996.
I.   Introduction and Summary of Position
     APTS is a nonprofit organization whose membership includes nearly all of
the nation s 179 public television licensees. APTS engages in planning and research
activities on behalf of its members, as well as representing them in legislative and
policy matters before the Commission, Congress, and the Executive Branch.
     The Telecommunications Act of 1996 ( Act ) repealed the telephone-cable
cross-ownership restriction and the video dialtone rules and established, inter  alia, a
new section 653 of the Communications Act, which provides for the delivery of
video programming by means of an  open video  system  ( OVS ). The Act
provides that OVS operators are subject generally to certain non-discrimination
requirements similar to Title II regulations and some specific requirements applicable
to cable operators under Title VI.
     Open video systems offer great promise as new distribution systems for video
programming. Public television stations can utilize OVS not only for carriage of
their traditional over-the-air programming, but also for distribution of a wide range
of educational and community service offerings. Multiple channels of educational
services are provided now by only a handful of stations generally state
networks that have more than a single broadcast channel available to them. These
stations use state or regional funded satellite systems, microwave and ITFS systems,
cable television, and telephone lines to deliver a wide range of educational services
to schools, libraries, hospitals, prisons, daycare centers, and state and local agencies.
OVS would provide every public television licensee with the capacity to deliver
educational services to these diverse users.
     In order to guarantee public television the ability to access OVS, it is
essential that the Commission, at a minimum, take the following two steps: (1)
include in its OVS rate regulations the requirement that OVS operators must
guarantee access to public telecommunications entities at preferred rates, and (2)
develop regulations to apply the must carry law specified in the Act to OVS
operators in a manner that is consistent with the principles that Congress intended
to foster.  APTS supports adoption of FCC rules to secure these two means of
allowing access by public television licensees to OVS operations for their
programming and related educational services.
II.    Public Telecommunications Providers Should be Afforded Preferential Rates
       by OVS Operators
     Access to OVS capacity on a preferred rate basis would provide public
television with a consistent, reliable, advanced distribution system to provide its
educational services.  This in turn would enable stations to realize Congress  intent
to extend affordable public services to all states and communities in the country.
Access to OVS at preferred rates will ensure that this powerful new technology will
be utilized for noncommercial educational services and that the educational potential
of the  information highway  will be realized. In addition, it will facilitate public
television s current efforts to extend the information highway s reach to
underserved, minority and economically disadvantaged communities nationwide.
 A.  Granting Preferential Access for Public Telecommunications Entities Will
       Serve the Public Interest
1.        OVS Offers Significant Opportunity to Extend and Enhance
            Public Telecommunications Services
     Along with public schools, college and libraries, public television stations
serve as an essential educational institution in communities across the country. By
1995, more than 30 million elementary and secondary school children could receive
classroom instruction and educational enrichment via public television, and more
than 2.8 million students had received college credit for courses provided by local
public television stations. More than 350,000 people were enrolled in such courses
during 1995 alone, making public television the largest  university  in the country.
     The educational services provided serve a multitude of local community
needs and reach into millions of homes, classrooms and workplaces. Children at
home and in childcare centers learn the alphabet from Sesame Street; rural high
school students take distance learning courses in advanced math and foreign
languages that would never be available in their local schools; high school drop-outs
earn their GEDs and then go on to earn college degrees through broadcast
telecourses; and workers upgrade their skills and expand their horizons through
continuing education courses and live, interactive video conferences.
     South Carolina Educational Television Network ( SC ETV ) provides a good
example of what services public television can offer if the access to technological
means is available.  SC ETV s digital satellite network was launched in 1993,
utilizing PBS transponders on Telstar 401. Using digital compression, the network
can provide up to 32 channels of programming simultaneously. The satellite
transmissions are linked with an extensive terrestrial network of broadcast
transmitters, ITFS stations, cable television distribution facilities, and microwave
links.
     These facilities have enabled SC ETV to provide video and audio
programming and live interactive teleconferences to locations throughout the State
of South Carolina and users in other states as well on an extremely cost-effective
basis.
  SC ETV provides instructional programming to over 98 percent of South
     Carolina s elementary and secondary school students, allowing an expanded
     curriculum on a live interactive basis and more equitable educational
     opportunities all over the state, particularly in rural  school districts where
     educational opportunities would otherwise
 be much more limited.
  In cooperation with the University of South Carolina, Clemson, MUSC, and
     South Carolina State University, SC ETV provides 160 college-credit courses
     to 12,884 students. All 33 public colleges and independent colleges in the
     state are equipped with satellite dishes and digital receivers.
  Working closely with the Medical University, the Department of Health and
     Environmental Control and other health agencies, SC ETV delivers more
     than 1,700 hours of closed circuit medically oriented programming to 89
     locations, including hospitals, mental health offices, health education centers,
     rural clinics, technical schools and even correctional institutions.
  SC ETV s Public Services Network delivers programming by satellite to all
     elements of the state s criminal justice system court houses, law enforcement
     agencies, local detention centers, correctional institutions as well as public
     safety agencies such as fire stations and paramedical units. The participating
     agencies realize substantial cost savings and achieve greater inefficiencies by
     using the network for continuing education and operational purposes.
  SC ETV transmits the Municipal Association s  Hometown Network  to
     local elected officials at ten Council of Government sites around the state.
     This network increases the effectiveness of local governments and reduces
     their costs by providing training sessions to local officials without requiring
     them to incur travel costs or leave their communities.
  Through its BusinessLink service, SC ETV provides undergraduate, graduate
     and technical training programming to businesses across the state.
     BusinessLink also permits state government offices to provide services and
     information directly to work sites. In addition, BusinessLink s
     teleconferencing capability permits employees at remote work sites to
     participate in interactive discussions with state agencies and business
     innovators around the country.
     Today, only some public television stations are capable of delivering the type
of services offered by SC ETV. These stations must rely on a variety of
technologies, including state-funded satellite, fiber or microwave networks,
partnerships  with cable operators and costly phone connections. Unfortunately,
these distribution technologies are unavailable or unaffordable for the majority of
public television licensees. The broadband, interactive, on-demand capabilities
expected with OVS would make it possible for each station to become a multiple
service provider rather than a single broadcast channel programmer. The broadband
capacity will allow for the delivery of multiple streams of educational services to
homes, schools, libraries, daycare facilities, training centers, medical facilities and job
sites. The interactive capability will allow public television to increase and enhance
its current interactive educational services, and the on-demand capacity will make
these services available to teachers, students and others when and how they need
them.
2.        Requiring Public Telecommunications Entities to Pay
            Commercial Rates for OVS Will Impair the Distribution of
            Public Telecommunications Services
     Paying commercial rates for the capacity to distribute educational services is
not an option for most public television stations. First, public broadcasters, in line
with Congress  mandates, are firmly committed to the widest possible dissemination
of educational services at the lowest possible cost. Commercial video information
providers recoup the costs of developing and disseminating services through
subscription fees, pay-per-view billing mechanisms or commercial advertisements.
None of these are options for public broadcasters. Charging for public
telecommunications services would directly undermine Congress  goal to  ensure
that all citizens . . . have access to public telecommunications services through all
appropriate available telecommunications distribution technologies . . . .  47
U.S.C.A.  396(a)(9).
      Moreover, such services simply cannot be fully supported by users. The long-
standing federal policy of facilitating access to public telecommunications services is
premised on the fundamental principle that the marketplace simply will not and
cannot support the development and dis
semination of certain educational and cultural services. Over the years, Congress has
recognized that  the economic realities of commercial broadcasting do not permit
widespread commercial production and distribution of educational and cultural
programs which do not have a mass audience appeal.   Congress found that public
television strives  to present the very best in television programming, to bring to
the American people that which is unavailable anywhere else, and to develop
programs that meet the needs  of underserved and diverse audiences throughout the
country.   Public television s  original mandate  is to serve as  an educational,
innovative and experimental alternative to commercial broadcasting.
      Public broadcasters, in line with Congress  direction, fill voids left by the
commercial marketplace. They provide quality, in-depth, educational, cultural and
public affairs programming (47 U.S.C  396(a)(1)); serve the unserved and
underserved audiences, particularly minorities and children (47 U.S.C.  396(a)(6));
utilize the electronic media to engage in community and outreach programs (47
U.S.C.  396(a)(8)); and provide an alternative to commercial programming that
must have mass audience appeal (47 U.S.C.  396(a)(5)). This type of service is not
and cannot be a marketplace-supported service.
      Finally, public broadcasting s scarce resources, obtained through
combinations of federal and state funding, underwriting, and viewer contributions,
are already stretched to maintain public broadcasting services. Given public
broadcasting s scarce resources, the costs of accessing OVS puts the technology out
of reach.
      If public television stations were required to pay commercial marketplace
rates to OVS, they generally would be faced with two undesirable alternatives:  1)
forego any use of OVS for distribution of public service programming to the public;
or 2) deliver only those services that are able to generate sufficient revenues to cover
the costs of access. Under the first alternative, public broadcasters the major
providers of noncommercial educational telecommunications simply would not
have access to this advanced and more versatile distribution technology. Further, the
public would be denied access to the enhanced educational services that will be
possible through OVS.
      The second alternative would, in essence, require public broadcasters to
distribute only commercially viable services on OVS. This would run counter to
Congress  directives to serve the culturally diverse, unserved and underserved
pockets of the American public and to provide an alternative to mass appeal,
commercial program services. Simply put, if the Commission decides to permit
public service providers access to OVS only on strict marketplace terms, it will
restrict the public s access to public  telecommunications services.
      OVS providers are likely to play an integral part in the development of this
nation s information superhighway. One of the overriding concerns is that new,
multichannel interactive services be available to all socio-economic groups, not
merely the  haves  of this country. Public telecommunications providers must be
able to access OVS technology on a preferential-rate basis to ensure that their
educational programming can be made available to the less-advantaged members of
our society for the lowest possible cost. To help maintain full public access to these
services, the Commission should require OVS providers to offer access to public
telecommunications entities at reduced rates.
B.   Long-standing, National Policy Favors Facilitating Access to Distribution
       Technologies for Public Telecommunications Services
     The nation s public telecommunications entities represent the only locally-
controlled programming services in the United States whose sole purpose is to
distribute educational, informational, cultural and instructional programming at the
community level. Congress and the Commission have long recognized the public
interest benefits of public telecommunications services and have adopted a policy of
ensuring that all citizens have access to public telecommunications programming.

1.
          The Access Policies of Congress
     In 1967, in the Public Broadcasting Act, Congress amended the
Communications Act to provide that  it is necessary and appropriate for the Federal
Government to complement, assist and support a national policy that will most
effectively make noncommercial educational radio and television service available to
all citizens of the United States.  In furtherance of this policy, Congress made it
explicit that public telecommunications entities may receive preferential access to
common carrier transmission facilities. The Public Broadcasting Act of 1967 added
Section 396(h) of the Communications Act, which provides that  [n]othing in [the
Communications Act], or in any other provision of law, shall be construed to
prevent United States communications common carriers from rendering free or
reduced rate communications interconnection services for public television or radio
services[.]   47 U.S.C.  396(h)(1).
      As new technologies for transmitting video programming to consumers have
developed, Congress has repeatedly responded to ensure that educational public
telecommunications services will be available to the public on these emerging
technologies. In 1978, Congress amended the Communications Act to provide that
it is in the public interest to  extend delivery of public telecommunications services
to as many citizens as possible by the most efficient and economical means,
including use of broadcast and nonbroadcast technologies.  This policy was
reiterated in the Public Telecommunications Act of 1992, which amended the
Communications Act to state that  it is in the public interest for the Federal
Government to ensure that all citizens of the United States have access to public
telecommunications services through all appropriate available telecommunications
distribution technologies....
      This policy of facilitating access for public telecommunications also has
applied to cable television. In the 1992 Cable Act, Congress required cable television
systems to carry public television stations, recognizing  a substantial governmental
and First Amendment interest in ensuring that cable subscribers have access to local
noncommercial educational stations....   Congress reaffirmed the  compelling
 interest in ensuring that [public telecommunications services] remain fully accessible
to the widest possible audience without regard for the technology used to deliver
these educational and informational services.  Congress further concluded that the
marketplace will not support carriage of public telecommunications programming,
finding a  substantial likelihood  that citizens will be deprived of these services
absent mandatory carriage requirements.
2.          The Access Policies of the Commission
     The Commission also has long recognized the unique needs of public
telecommunications entities and has adopted policies to ensure public access to such
services. In its original reservation in 1952, the Commission reserved 242 channels
on the Ultra High Frequency ( UHF ) spectrum for educational television. More
recently, in 1992, the Commission committed to carry over this channel reservation
policy in its allotment of advanced television channels to broadcasters.  In applying
this policy, the Commission acknowledged  the important role noncommercial
educational stations play in providing quality programming to the public and
financial constraints they face in building and running their stations.
      In implementing Section 396(h)(1) of the Act, the Commission found that
 the public interest is served by the expansion of noncommercial educational
broadcasting service to the public through free or reduced rate interconnection
common carrier services for education broadcast stations.   Though the
Commission opted not to mandate preferential interconnection rates, the
Commission advised the carriers that it  expected the carriers to provide
[interconnection service at preferential rates] and that the Commission considered it
to be in the public interest for the carriers to do so.
      With regard to cable, the Commission has concluded that mandatory carriage
of public telecommunications programming is necessary to ensure public access. In
its 1990 Cable Report to Congress, the Commission stated,  Because of the unique
service provided by noncommercial television stations, and because of the expressed
governmen
tal interest in their viability, we believe that all Americans should have access to
them. We believe that mandatory carriage of noncommercial television stations
would further this important goal.
      OVS offers great promise as a new video programming service and ultimately
may become the dominant technology for video transmission. Therefore, the long-
standing federal policy of ensuring that public telecommunications entities have
access to all available telecommunications distribution technologies must be applied
to OVS systems as well. In paragraph 32 of the Notice, the Commission raises the
issue  of what justification is necessary to reach the situation that Congress intended
to make  discrimination  in rates  just and reasonable.  Given Congress  well-
established precedent of assuring access to new technologies for public
telecommunications entities, any discrimination in favor of preferred rates for public
telecommunications services to allow access to OVS is mandated by Congress, is in
the public interest and could not conceivably be considered unjust or unreasonable.
The Commission therefore can and should require that OVS operators provide
preferential access and assurance of available capacity for public telecommunications
entities.
III. Applying the Must Carry Provisions of Section 615 to OVS Must Take Into
Account The Congressional Purposes
     Section 653 of the Telecommunications Act directs the Commission to
develop regulations to apply Section 615 of the Communications Act, which
contains the must carry provisions for public television stations on cable systems, to
OVS operators. The Commission s Notice raises various questions in terms of
adopting rules to implement the must carry law in relation to OVS operators. It is
difficult to speak with certainty regarding the actual applications of the must carry
provisions to OVS operators because  there are many unknowns in terms of how
such a system will function. However, APTS urges the Commission to keep in
mind several broad principles, discussed below, in developing its OVS must carry
regulations. The Commission must ensure that Congress  purposes in applying
Section 615 mandates to Section 653 will be fostered through OVS must carry
regulations.
A.  Importance of Must Carry of Local Public Television Stations by OVS
       Providers
     When Congress enacted the 1992 Cable Act, it required cable systems to
carry the signals of a minimum number of noncommercial television stations,
depending on the size of the cable system. That obligation was designed to achieve
two goals:  (1) to assure that cable subscribers have access to public television
programming and (2) to preserve the vibrancy and viability of the nation s public
television system. Congress found that cable systems effectively controlled the
television signals available to their subscribers and were able to deny more than 66
percent of the nation s households access to public broadcasting. Congress also
concluded that the loss of any significant portion of that cable audience would
jeopardize the financial viability of public television stations, thereby threatening the
availability of public television programming to all Americans.
     As public broadcasting stations provide programming that is not market-
driven, basic economic theory indicates that, without must carry provisions, OVS
operators, similar to cable operators, would carry that combination of programming
most likely to maximize their subscriber base and revenues without regard to
whether any of the programming includes signals of local public television stations
serving local community needs. Such actions would undermine the ability of local
public television stations to provide responsible local service by denying access to
audiences. This loss of access is especially injurious for stations that are trying to
provide alternative program services.
     The denial of access also results in the loss of important sources of revenue.
As the Commission is aware, most public television stations are highly dependent
on subscriber contributions in order to provide the quality of service they believe is
required. Those stations do not have the capital base of commercial operators and,
as the Commission and the courts have recognized, any loss of subscriber support
will affect the quality of public television services.   Given the economics of
broadcasting, these losses in revenue may translate into losses in local programming
or a reduction in the quality of that programming, which would be detrimental to
service to the public and contrary to the public interest.
B.   Must Carry Regulations Must Be Adopted with Several Important
       Principles in Focus
     In establishing rules to implement the must carry law  for OVS operators,
APTS implores the Commission to be guided by the following principles that will
serve to keep in focus the twofold purposes of Congress in enacting Section 615 of
the Communications Act.
1.        All Subscribers Must Have Access to All Must Carry Stations
            Programming
       In its Notice, paragraph 59, the Commission addresses the issue of how
OVS operators with multiple program packages can provide the must carry channels
to the subscribers, who may have the option of choosing among program packages.
Section 615(h) of the Communications Act makes clear the requirement that
 (s)ignals carried in fulfillment of the carriage obligations of a cable operator under
this section shall be available to every subscriber as part of the cable system s lowest
priced service tier . . .  (emphasis added). This requirement manifests the
overarching goals of Congress:  to assure that all subscribers have access to
noncommercial educational programming and to assure public television licensees
have access to their audiences.
     It is imperative that the Commission require no lesser standard of
accessibility in its development of the OVS rules. APTS cannot predict, until the
technology unfolds, whether the best means of packaging the must carry channels
will be in a lowest priced basic tier or within each program provider s package. At
this early stage, the Commission should articulate the basic principle that every
subscriber must have easy access to every must carry channel and leave the docket
open to prescribe specific rules as the technology unfolds.
2.          Carriage of Analog/Digital Signals
     With a view toward the transition from analog to digital transmission, it is
important that the must  carry OVS provisions apply to public broadcasters  analog
and digital signals. Because the policies underlying the must-carry rules apply equally
to both the NTSC and ATV channels, and OVS carriage of both is essential to an
orderly and rapid transition to ATV, the Commission should require OVS providers
to carry both broadcast signals. Such an obligation is required by the policy and the
language of Section 615 of the Communications Act. Section 615 requires cable
operators to carry, subject to certain restrictions, all signals of qualified stations.
Thus, Section 615 as applied to OVS operators would require carriage of both
analog and digital signals of stations qualified for carriage.
     Requiring both ATV and NTSC signals not only furthers the important
governmental interests that underlie Section 615, but also furthers the successful and
speedy transition to ATV broadcast services. Assured access on OVS will facilitate
broadcasters  ability to make the investments required for ATV construction and
program production, permit broad public acceptance of ATV/HDTV, advance the
penetration of reasonably priced ATV sets in the marketplace and ultimately
facilitate the transition to ATV.
3.          Carrying the Signal in its Entirety
     Section 615(g) requires the cable operator to  retransmit in its entirety the
primary video, accompanying audio, and line 21 closed caption transmission of each
qualified local noncommercial educational television station whose signal is carried
on the cable system(.)   In addition, cable systems are required to retransmit  to the
extent technically feasible, program-related material carried in the vertical blanking
interval, or on subcarriers, that may be necessary for receipt of programming by
handicapped persons or for educational or language purposes.  Similarly, OVS
operators should carry qualified public television signals in their entirety, including
all line 21 closed captioning and VBI materials.
     Further, APTS submits that OVS operators should carry all program-related
educational materials offered by qualified noncommercial stations. As discussed
above, public television licensees augment their broadcast services with program-
related materials designed to enhance their educational programming at the national,
state and local levels. Digital technology offers exciting possibilities to increase and
expand these offerings. Public television will be able to distribute program-related
course materials, textbooks, student and teacher guides, computer software and
content areas of the World Wide Web to students and faculty, concurrently with
the broadcast of educational programming. Distribution of these transmissions via
OVS under the must carry provisions is essential to allow subscribers to  receive the
educational offerings accompanying public television licensees  programming.
4.          Qualifying Stations
     In paragraph 60 of the Notice, the Commission asks for comments on what
broadcast stations would qualify for carriage under the must carry provisions. Under
Section 615(l)(1) a qualified noncommercial educational television is defined as any
television that: (1)(i) is licensed by the Commission as a noncommercial educational
television broadcast station and which is owned and operated by a public agency,
nonprofit foundation, corporation, or association; and (ii) has as its licensee an
entity which is eligible to receive a community service grant from the Corporation
for Public Broadcasting; or (2) is owned and operated by a municipality and
transmits predominantly noncommercial programs for educational purposes.
     Under Section 615(l)(2), a qualified  local  noncommercial educational
television station must satisfy one of two requirements: (1) it must be licensed to a
principal community whose reference point (as defined in 47 C.F.R.  76.53) is
within 50 miles of the principal headend of the cable system; or (2) its Grade B
service contour (as defined in 47 C.F.R.  73.683(a)) must encompass the principal
headend of the cable system.
     The number of qualifying local noncommercial stations carried under the
must carry provisions of Section 615 is structured in relation to the number of
channels available on the cable system. Cable systems with more than 36 channels
must carry all qualified local public television stations.
     As the Commission notes, the Telecommunications Act requires that, in
applying Section 615 to OVS operators, the implementing regulations should
establish no lesser or no greater obligations upon the OVS operators than those
imposed upon cable operators. Thus, adopting a similar qualifying scheme for OVS
operators logically leads to the conclusion that OVS operators should be required to
carry all qualified local public television stations. The number of channels on an
OVS will greatly exceed the number of channels currently available under any
existing cable system. In fact, with the use of  switched digital  video technology, as
discussed in paragraph 18 of the Notice, OVS operators may be capable of
expanding capacity on an almost unlimited basis.
5.          Notification
     In its Notice, paragraph 14, the Commission raises the issue of establishing
sufficient notification procedures for programmers generally to be made aware of
available capacity on OVS. Specifically with regard to the noncommercial stations
qualified for carriage under the must carry  provisions, APTS recommends the
following notification safeguards be put into place.
     Similar to the cable television must carry notification requirements contained
in Section 76.58 of the FCC s rules, the OVS operator should be required, at a
minimum, to serve by certified mail a written notification to all public television
stations qualified for carriage on the OVS. Further, the qualified noncommercial
stations should not be limited by a time period for asserting their must carry rights.
6.          Channel Positioning
     The Commission, in paragraph 22 of its Notice, requests comments on the
scheme that should be used for channel assignments by OVS providers. This issue is
particularly important in relation to the noncommercial stations carried under the
must carry provisions. Section 615(g) gives a noncommercial station the option of
electing to be carried on either the channel on which it was carried by the cable
system at the time, the station s off-air channel, or any other channel  mutually
agreed upon by the station and the cable operator.  Further, a station may not be
repositioned unless the cable system provides at least thirty days notice to the
station and to all the subscribers of the cable system.
     If there are conventional channels on OVS, rules that track these cable
provisions should apply. If the conventional channel scheme does not exist on OVS,
the FCC should establish rules that are guided by the following principle:  public
broadcasters must have preferred positioning on OVS to ensure that access by
subscribers is quick, easy and clear. The FCC should leave this proceeding open for
specific rules regarding channel positioning or accessibility as may be necessary.
CONCLUSION
With OVS, each public television station would have the capacity to offer a wide
range of educational and community outreach services simultaneously to different
audiences. In order to guarantee public television the ability to access OVS, it is
essential that the Commission include in its OVS rate regulations the requirement
that OVS operators must guarantee access to public telecommunications entities at
preferred rates. Further, the Commission must develop regulations to apply the
                       must carry law to OVS operators in a manner that is consistent with the principles that Congress intended
to foster, including assuring the public access to noncommercial television
programming services and preserving public television s viability through access to
                           its audience.
                      Respectfully submitted,
                      ________________________
                       Marilyn Mohrman-Gillis
               Vice President, Policy & Legal Affairs
                         Lonna M. Thompson
                      Director, Legal Affairs
                  ASSOCIATION OF AMERICA S PUBLIC
                        TELEVISION STATIONS
                   1350 Connecticut Avenue, N.W.
                       Washington, D.C. 20036
                           April 1, 1996