9692 Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 07–198; FCC 10–17] 

Review of the Commission’s Program 

Access Rules and Examination of 

Programming Tying Arrangements 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The FCC establishes rules, 

policies, and procedures for the 

consideration of complaints alleging 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

in violation of Section 628(b) of the 

Communications Act of 1934, as 

amended. This action will provide 

competitors to incumbent cable 

operators with an opportunity to obtain 

access to certain cable-affiliated 

programming that they are currently 

unable to offer their subscribers, thereby 

promoting competition in the delivery 

of video to consumers. 

DATES: Effective April 2, 2010, except 

for §§ 76.1001(b)(2) and 76.1003(l), and 

the amendment to § 76.1003(c)(3), 

which contain information collection 

requirements that are not effective until 

approved by the Office of Management 

and Budget. The FCC will publish a 

document in the Federal Register 

announcing the effective date for those 

sections. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact David Konczal, 

David.Konczal@fcc.gov; or Diana 

Sokolow, Diana.Sokolow@fcc.gov; of the 

Media Bureau, Policy Division, (202) 

418–2120. For additional information 

concerning the Paperwork Reduction 

Act information collection requirements 

contained in this document, contact 

Cathy Williams at 202–418–2918, or via 

the Internet at PRA@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s First 

Report and Order (‘‘Order’’), FCC 

10–17, adopted and released on January 

20, 2010, and the Erratum thereto, FCC 

10–30, adopted on February 5, 2010 and 

released on February 16, 2010. The full 

text of this document is available for 

public inspection and copying during 

regular business hours in the FCC 

Reference Center, Federal 

Communications Commission, 445 12th 

Street, SW., CY–A257, Washington, DC 

20554. This document will also be 

available via ECFS (http://www.fcc.gov/ 

cgb/ecfs/). (Documents will be available 

electronically in ASCII, Word 97, and/ 

or Adobe Acrobat.) The complete text 

may be purchased from the 

Commission’s copy contractor, 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Paperwork Reduction Act of 1995 

Analysis 

This document adopts new or revised 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13 (44 

U.S.C. 3501–3520). The requirements 

will be submitted to the Office of 

Management and Budget (OMB) for 

review under Section 3507 of the PRA. 

The Commission will publish a separate 

notice in the Federal Register inviting 

comment on the new or revised 

information collection requirements 

adopted in this document. The 

requirements will not go into effect until 

OMB has approved it and the 

Commission has published a notice 

announcing the effective date of the 

information collection requirements. In 

addition, we note that pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4), we previously sought 

specific comment on how the 

Commission might ‘‘further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees.’’ In this present document, 

we have assessed the potential effects of 

the various policy changes with regard 

to information collection burdens on 

small business concerns, and find that 

these requirements will benefit many 

companies with fewer than 25 

employees by promoting the fair and 

expeditious resolution of program 

access complaints. In addition, we have 

described impacts that might affect 

small businesses, which includes most 

businesses with fewer than 25 

employees, in the Final Regulatory 

Flexibility Analysis (‘‘FRFA’’) below. 

Summary of the Report and Order 

I. Introduction 

1. In this Order, we take an important 

step to further promote competition in 

the video distribution market. We 

establish rules to address unfair acts, 

including exclusive contracts, involving 

terrestrially delivered, cable-affiliated 

programming. Throughout this Order, 

we use the terms ‘‘cable-affiliated 

programming’’ and ‘‘cable-affiliated 

programmer’’ to refer to a cable 

programming vendor in which a cable 

operator has an attributable interest, as 

defined by the Commission’s cable 

attribution rules. See 47 CFR 76.1000(b); 

see also 47 CFR 76.501, Notes 1–5. 

2. The rules established herein will 

provide competitors to incumbent cable 

operators with an opportunity to obtain 

access to certain cable-affiliated 

programming that they are currently 

unable to offer to their subscribers, 

thereby promoting competition in the 

delivery of video to consumers. Our 

existing program access rules have been 

a boon to such competition, and we 

anticipate that the rules we adopt today 

will have similar procompetitive effects. 

Our efforts to spur competition in the 

marketplace for video programming are 

also aimed at increasing consumer 

benefits, including better services, 

innovations in technology, and lower 

prices. Moreover, we believe broadband 

adoption to be a further benefit from 

increased competition and diversity in 

video programming distribution. 

Specifically, today we adopt rules 

permitting complainants to pursue 

program access claims involving 

terrestrially delivered, cable-affiliated 

programming similar to the claims that 

they may pursue with respect to 

satellite-delivered, cable-affiliated 

programming, where the purpose or 

effect of the challenged act is to 

significantly hinder or prevent the 

complainant from providing satellite 

cable programming or satellite broadcast 

programming. The types of claims 

potentially involved include challenges 

to: (i) Exclusive contracts between a 

cable operator and a cable-affiliated 

programmer that provides terrestrially 

delivered programming; (ii) 

discrimination in the prices, terms, and 

conditions for the sale of programming 

among multichannel video 

programming distributors (‘‘MVPDs’’) by 

a provider of terrestrially delivered 

programming that is wholly owned by, 

controlled by, or under common control 

with one or more of the following: a 

cable operator or operators, a satellite 

cable programming vendor or vendors 

in which a cable operator has an 

attributable interest, or a satellite 

broadcast programming vendor or 

vendors; and (iii) efforts by a cable 

operator to unduly influence the 

decision of its affiliated provider of 

terrestrially delivered programming to 

sell its programming to a competitor. 

3. The Commission has previously 

established goals of resolving program 

access complaints within five months 

from the submission of a complaint for 

denial of programming cases, and 


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Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Rules and Regulations 9693 

within nine months for all other 

program access complaints, such as 

price discrimination cases. See 2007 

Program Access Order, 72 FR 56645, 

October 4, 2007, appeal pending sub 

nom. Cablevision Systems Corp. et al v. 

FCC, No. 07–1425 et al (D.C. Cir). These 

goals will also apply to complaints filed 

pursuant to the rules established in this 

Order. 

4. MVPDs seeking to compete with 

incumbent cable operators have 

provided the Commission with 

examples of actions by cable operators 

involving terrestrially delivered, cableaffiliated programming that they allege 

have harmed competition in the video 

distribution market. In light of these 

claims, the Commission adopted a 

Notice of Proposed Rulemaking (the 

‘‘NPRM’’) in September 2007 seeking 

comment on, among other things, 

whether to extend the program access 

rules to terrestrially delivered, cableaffiliated programming. See 72 FR 

61590, October 31, 2007. In the NPRM, 

the Commission stated its belief that 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

are a significant concern because they 

can adversely impact competition. Since 

adoption of the NPRM in September 

2007, MVPDs have filed three program 

access complaints involving terrestrially 

delivered, cable-affiliated programming. 

This Order addresses only the issues of 

terrestrially delivered, cable-affiliated 

programming and a temporary standstill 

of an existing contract pending 

resolution of a program access 

complaint. This Order does not address 

the other issues raised in the NPRM. 

5. We find below that Section 628 of 

the Communications Act of 1934, as 

amended (the ‘‘Act’’), grants the 

Commission authority to address unfair 

acts involving terrestrially delivered, 

cable-affiliated programming. Section 

628 was passed as part of the Cable 

Television Consumer Protection and 

Competition Act of 1992 (‘‘1992 Cable 

Act’’). See Cable Television Consumer 

Protection and Competition Act of 1992, 

Public Law 102–385, 106 Stat. 1460 

(1992); see also H.R. Rep. No. 102–628 

(1992); S. Rep. No. 102–92 (1991), 

reprinted in 1992 U.S.C.C.A.N. 1133; 

H.R. Rep. No. 102–862 (1992) (Conf. 

Rep.), reprinted in 1992 U.S.C.C.A.N. 

1231. Congress expressly declared that a 

purpose of Section 628 was ‘‘to promote 

the public interest, convenience, and 

necessity by increasing competition and 

diversity in the multichannel video 

programming market. * * *’’ See 47 

U.S.C. 548(a). Congress found that the 

‘‘cable industry has become vertically 

integrated’’ and that ‘‘[v]ertically 

integrated program suppliers * * * 

have the incentive and ability to favor 

their affiliated cable operators over 

nonaffiliated cable operators and 

programming distributors using other 

technologies.’’ See H.R. Rep. No. 102– 

862 (1992) (Conf. Rep.), at 2, reprinted 

in 1992 U.S.C.C.A.N. 1231. Congress 

‘‘expect[s] the Commission to address 

and resolve the problems of 

unreasonable cable industry practices, 

including restricting the availability of 

programming and charging 

discriminatory prices to non-cable 

technologies.’’ See id. at 93, reprinted in 

1992 U.S.C.C.A.N. at 1275. To arm the 

Commission for that effort, Congress 

granted the Commission broad authority 

in Sections 628(b) and 628(c)(1) of the 

Act to prohibit unfair acts of cable 

operators that significantly hinder or 

prevent their competitors from 

providing video programming to 

consumers. 

6. Section 628(b) provides that it shall 

be unlawful for a cable operator to 

‘‘engage in unfair methods of 

competition or unfair or deceptive acts 

or practices, the purpose or effect of 

which is to hinder significantly or to 

prevent any multichannel video 

programming distributor from providing 

satellite cable programming or satellite 

broadcast programming to subscribers or 

consumers.’’ See 47 U.S.C. 548(b). 

Section 628(c)(1) authorizes the 

Commission to prescribe regulations to 

specify the particular conduct 

prohibited by Section 628(b). See 47 

U.S.C. 548(c)(1). Throughout this Order, 

we use the term ‘‘unfair act’’ as 

shorthand for the phrase ‘‘unfair 

methods of competition or unfair or 

deceptive acts or practices.’’ 

7. In addition to the broad grant of 

authority, Congress in Section 628(c)(2) 

required the Commission to adopt 

specific regulations partly implementing 

Section 628(b) by prohibiting cable 

operators or affiliates from engaging in 

unfair acts involving cable-affiliated 

programming that is delivered to cable 

operators via satellite (‘‘satellitedelivered programming’’). See 47 U.S.C. 

548(c)(2). Section 628(c)(2) pertains 

only to ‘‘satellite cable programming’’ 

and ‘‘satellite broadcast programming.’’ 

See 47 U.S.C. 548(c)(2)(A)–(D). Both 

terms are defined to include only 

programming transmitted or 

retransmitted by satellite for reception 

by cable operators. See 47 U.S.C. 

548(i)(1) (incorporating the definition of 

‘‘satellite cable programming’’ as used in 

47 U.S.C. 605); id. 548(i)(3). 

8. The three unfair acts Congress 

required the Commission to address 

were: (i) Exclusive contracts between a 

cable operator and a cable-affiliated 

programmer; (ii) discrimination by a 

cable-affiliated programmer in the 

prices, terms, and conditions for sale of 

programming among MVPDs; and (iii) 

efforts by a cable operator to unduly 

influence the decision of its affiliated 

programmer to sell programming to 

competitors. See 47 U.S.C. 548(c)(2)(A)– 

(D). The Commission has adopted rules 

to carry out that congressional 

command (the ‘‘program access rules’’). 

See 47 CFR 76.1000–1004. Those rules 

are a success. While competitors to 

incumbent cable operators served less 

than five percent of video subscribers 

nationwide when the program access 

provision of the 1992 Cable Act was 

passed (see Implementation of Section 

11 of the Cable Television Consumer 

Protection and Competition Act of 1992, 

Further Notice of Proposed Rulemaking, 

16 FCC Rcd 17312, 17326 (2001)), that 

percentage has increased to over 30 

percent today. Competitors to 

incumbent cable operators widely credit 

the program access rules for this 

increase in competition. 

9. An outgrowth of this increase in 

competition is an increase in 

employment in the video programming 

sector of the economy. The relationship 

between competition and employment 

in an industry is an obvious one. Firms 

maximize profits in a concentrated 

industry by reducing output in order to 

increase prices. This exertion of market 

power has, as a natural outcome, a 

negative effect on industry employment. 

Increasing the level of competition in an 

industry increases output, reduces 

prices, and increases employment. This 

intuitive result has been shown to hold 

in practice. Christoph Weiss found a 

negative relationship between the longrun equilibrium level of employment 

and the level of concentration in U.S. 

industries. See Christoph Weiss, ‘‘Is 

Imperfect Competition in the Product 

Market Relevant for Labour Markets?’’ 

Labour, Vol. 12 No. 3, at 451–71 (1998). 

10. Congress did not require the 

Commission to adopt program access 

rules for cable-affiliated programming 

that is delivered to cable operators via 

terrestrial means, such as programming 

transmitted to cable operators by fiber 

(‘‘terrestrially delivered programming’’). 

While an earlier version of the 

legislation that became Section 628(c)(2) 

would have encompassed terrestrially 

delivered programming, Congress did 

not explain why the final version of its 

bill removed this provision. This gap in 

the coverage of Section 628(c)(2) is 

commonly referred to as the ‘‘terrestrial 

loophole.’’ See, e.g., 2002 Program 

Access Order, 67 FR 49247, July 30, 

2002. Under Sections 628(b) and 

628(c)(1), however, Congress granted the 

Commission broad authority to address 


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9694 Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Rules and Regulations 

this ‘‘loophole’’ by adopting additional 

regulations beyond those listed in 

Section 628(c)(2) to address unfair acts 

of cable operators. 

11. As discussed below, we take 

action pursuant to Sections 628(b) and 

628(c)(1) of the Act to facilitate 

competition in the video distribution 

market by establishing rules for the 

consideration of complaints alleging 

that a cable operator, a satellite cable 

programming vendor in which a cable 

operator has an attributable interest, or 

a satellite broadcast programming 

vendor, has engaged in unfair acts 

involving terrestrially delivered, cableaffiliated programming. Our action 

today attempts to chart a middle course 

between two extremes proposed by 

commenters. On one hand, vertically 

integrated cable operators argue that 

there is no need and no statutory 

authority for the Commission to address 

unfair acts involving terrestrially 

delivered, cable-affiliated programming. 

In their view, exclusive arrangements 

for terrestrially delivered, cableaffiliated programming should be 

permitted because they enhance 

innovation, programming diversity, and 

competition. On the other hand, 

competing MVPDs urge the Commission 

to adopt a per se prohibition on 

exclusive arrangements involving most, 

if not all, terrestrially delivered, cableaffiliated programming. In their view, 

all such exclusive arrangements should 

be prohibited because they hamper 

competition. The case-by-case approach 

we adopt today establishes a fair process 

to address those situations in which 

MVPDs may be significantly hindered 

from competing, while at the same time 

allowing cable operators to use 

exclusive arrangements in cases where 

competition is not significantly harmed. 

12. We begin by analyzing the 

statutory language and legislative 

history of Section 628 as well as the 

Commission’s program access rules. We 

discuss our statutory authority under 

that section to consider complaints 

alleging unfair acts involving 

terrestrially delivered, cable-affiliated 

programming. We then discuss the bases 

for our conclusion that there is a need 

for Commission action to address such 

complaints: Cable operators have an 

incentive and ability to engage in unfair 

acts involving their affiliated 

programming; record evidence indicates 

that cable operators have engaged in 

unfair acts involving certain terrestrially 

delivered, cable-affiliated programming; 

and these unfair acts have impacted 

competition in the video distribution 

market in certain cases. We conclude, 

however, that there is insufficient 

record evidence to conclude that unfair 

acts involving terrestrially delivered, 

cable-affiliated programming will have 

the purpose or effect set forth in Section 

628(b) in every case. Accordingly, we 

adopt a case-by-case approach rather 

than a per se rule for addressing these 

unfair acts. We then explain how 

addressing unfair acts involving 

terrestrially delivered, cable-affiliated 

programming on a case-by-case basis 

comports with the First Amendment. 

13. We next set forth the requirements 

for complaints alleging unfair acts 

involving terrestrially delivered, cableaffiliated programming. A complainant 

alleging such an unfair act will have the 

burden of proof that the defendant’s 

activities have the purpose or effect set 

forth in Section 628(b). We conclude 

that a complainant is unlikely to satisfy 

this burden when seeking access to 

readily replicable programming, such as 

local news and local community or 

educational programming. We also 

explain, however, that some 

programming may be non-replicable and 

sufficiently valuable to consumers that 

an unfair act regarding this 

programming presumptively—but not 

conclusively—has the purpose or effect 

set forth in Section 628(b). Based on 

Commission precedent in which the 

Commission has considered certain 

Regional Sports Networks (‘‘RSNs’’) and 

the record in this proceeding, we find 

that such networks fall within this 

category. In program access cases 

alleging an unfair act involving such 

programming, the defendant will be 

required to overcome the presumption 

that arises from our precedent and the 

record evidence here. In all program 

access cases involving terrestrially 

delivered, cable-affiliated programming, 

we provide the defendant with 45 

days—rather than the usual 20 days— 

from the date of service of the complaint 

to file an Answer to ensure that the 

defendant has adequate time to develop 

a full, case-specific response. 

14. This distinction between 

replicable and non-replicable 

programming will promote innovation 

and continued investment in 

programming. If particular programming 

is replicable, our policies should 

encourage MVPDs or others to create 

competing programming, rather than 

relying on the efforts of others, thereby 

encouraging investment and innovation 

in programming and adding to the 

diversity of programming in the 

marketplace. Conversely, when 

programming is non-replicable and 

valuable to consumers, such as regional 

sports programming, no amount of 

investment can duplicate the unique 

attributes of such programming, and 

denial of access to such programming 

can significantly hinder an MVPD from 

competing in the marketplace. In 

addition, in light of the growing 

importance of high definition (‘‘HD’’) 

programming in the marketplace today 

and its distinctive characteristics, we 

will analyze the HD version of a 

network separately from the standard 

definition (‘‘SD’’) version with similar 

content for purposes of the statutory 

analysis. Thus, the fact that a 

complainant offers the SD version of a 

network to subscribers will not alone be 

sufficient to refute the complainant’s 

showing that lack of access to the HD 

version has the purpose or effect set 

forth in Section 628(b). Similarly, in 

cases involving the category of RSN 

programming addressed by our 

precedent and the evidence here, 

withholding the HD feed will be 

rebuttably presumed to cause significant 

hindrance even if an SD version of the 

network is made available to 

competitors. 

15. We next describe how the rules 

applicable to terrestrially delivered, 

cable-affiliated programming will differ 

from the rules applicable to satellitedelivered, cable-affiliated programming. 

We also discuss how these rules will be 

applied to common carriers and 

terrestrially delivered programming that 

is subject to the program access rules as 

a result of merger conditions. In 

addition, we explain that the new rules 

will apply to existing contracts, but not 

to the unfair acts of cable operators 

involving terrestrially delivered, cableaffiliated programming that preceded 

the effective date of these rules. With 

respect to pending complaints alleging 

unfair acts involving terrestrially 

delivered, cable-affiliated programming, 

complainants may continue to prosecute 

these complaints pursuant to Section 

628(d) of the Communications Act. In 

addition, a complainant that wants a 

currently pending complaint considered 

under the new rules can submit a 

supplemental filing alleging that the 

defendant has engaged in an unfair act 

after the effective date of the rules. 

Finally, we establish procedures for the 

Commission’s consideration of requests 

for a temporary standstill of the price, 

terms, and other conditions of an 

existing programming contract by a 

program access complainant seeking 

renewal of such a contract. 

II. Background 

A. Section 628 

16. Congress enacted Section 628 as 

part of the 1992 Cable Act to ‘‘promote 

the public interest, convenience, and 

necessity by increasing competition and 

diversity in the multichannel video 


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Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Rules and Regulations 9695 

programming market, to increase the 

availability of satellite cable 

programming and satellite broadcast 

programming to persons in rural and 

other areas not currently able to receive 

such programming, and to spur the 

development of communications 

technologies.’’ 47 U.S.C. 548(a). The 

term ‘‘satellite cable programming’’ 

means ‘‘video programming which is 

transmitted via satellite and which is 

primarily intended for direct receipt by 

cable operators for their retransmission 

to cable subscribers,’’ except that such 

term does not include satellite broadcast 

programming. 47 U.S.C. 548(i)(1) 

(incorporating the definition of ‘‘satellite 

cable programming’’ as used in 47 U.S.C. 

605). The term ‘‘satellite broadcast 

programming’’ means ‘‘broadcast video 

programming when such programming 

is retransmitted by satellite and the 

entity retransmitting such programming 

is not the broadcaster or an entity 

performing such retransmission on 

behalf of and with the specific consent 

of the broadcaster.’’ 47 U.S.C. 548(i)(3). 

17. To advance Congress’ goals, 

Sections 628(b) and 628(c)(1) grant the 

Commission broad authority to adopt 

rules to prohibit unfair acts of cable 

operators that have the purpose or effect 

of preventing or hindering significantly 

an MVPD from providing satellite cable 

programming or satellite broadcast 

programming to subscribers or 

consumers. See 47 U.S.C. 548(b), (c)(1). 

Section 628(b) provides that: 

[I]t shall be unlawful for a cable operator, a 

satellite cable programming vendor in which 

a cable operator has an attributable interest, 

or a satellite broadcast programming vendor 

to engage in unfair methods of competition 

or unfair or deceptive acts or practices, the 

purpose or effect of which is to hinder 

significantly or to prevent any multichannel 

video programming distributor from 

providing satellite cable programming or 

satellite broadcast programming to 

subscribers or consumers. 

47 U.S.C. 548(b). Section 628(c)(1) 

provides that ‘‘the Commission shall, in 

order to promote the public interest, 

convenience, and necessity by 

increasing competition and diversity in 

the multichannel video programming 

market and the continuing development 

of communications technologies, 

prescribe regulations to specify 

particular conduct that is prohibited by’’ 

Section 628(b). 47 U.S.C. 548(c)(1). A 

federal court of appeals recently held 

that Section 628(b) is written in ‘‘broad 

and sweeping terms’’ and therefore 

‘‘should be given broad, sweeping 

application.’’ Nat’l Cable & Telecomm. 

Ass’n v. FCC, 567 F.3d 659, 664 (D.C. 

Cir. 2009) (quoting Consumer Elecs. 

Ass’n v. FCC, 347 F.3d 291, 298 (D.C. 

Cir. 2003)). 

18. We find no merit in Cablevision’s 

argument that the Commission cannot 

rely on Section 628(c)(1) because that 

provision ‘‘limits’’ rulemaking authority 

to the 180 days after the date of 

enactment of Section 628(c)(1). The 

Commission has an obligation to 

consider, on an on-going basis, whether 

its rules should be modified in response 

to changed circumstances. As the 

Supreme Court has observed: ‘‘ ‘An 

initial agency interpretation is not 

instantly carved in stone. On the 

contrary, the agency * * * must 

consider varying interpretations and the 

wisdom of its policy on a continuing 

basis,’ Chevron, supra, at 863–864, 104 

S.Ct. 2778, for example, in response to 

changed factual circumstances, or a 

change in administrations. * * *’’ 

National Cable & Telecomm. Ass’n v. 

Brand X Internet Servs., 545 U.S. 967, 

981 (2005) (quoting Chevron U.S.A. Inc. 

v. Natural Resources Defense Council, 

Inc., 467 U.S. 837, 863–64 (1984)). That 

is precisely what the Commission is 

doing in this Order. Cablevision’s 

interpretation would prevent the 

Commission from fulfilling its 

obligation to consider whether its rules 

should be revised based on new 

evidence that has come to light. There 

is no evidence that Congress intended to 

tie the Commission’s hands in this 

manner by carving its initial regulations, 

which were adopted back in 1993, ‘‘in 

stone.’’ See 1993 Program Access Order, 

8 FCC Rcd 3359 (1993), recon., 10 FCC 

Rcd 1902 (1994), further recon., 10 FCC 

Rcd 3105 (1994). Nor is there any 

indication Congress intended to strip 

the Commission of its rulemaking power 

under Sections 4(i) and 303(r) after 180 

days. See 47 U.S.C. 154(i), 303(r). 

19. Moreover, Cablevision’s 

interpretation is at odds with judicial 

precedent regarding statutory deadlines. 

Statutory deadlines are generally 

considered directory, rather than 

mandatory, and even where an agency 

has failed to meet such a deadline— 

which is not the case here—it has not 

been found to remove an agency’s 

authority to act or impose any other 

penalty, unless the statute delineates a 

specific remedy for agency inaction. See 

Thomas v. Barry, 729 F.2d 1469, 1470 

n.5 (D.C. Cir. 1984) (quoting Fort Worth 

Nat’l Corp. v. Fed. Savings & Loan Ins. 

Corp., 469 F.2d 47, 58 (5th Cir. 1972)); 

see also Brock v. Pierce County, 476 

U.S. 253, 260, 262 (1986) (mere use of 

the word ‘‘shall’’ not enough to remove 

Secretary of Labor’s power to act after 

lapse of a deadline, and ‘‘[w]hen * * * 

there are less drastic remedies available 

for failure to meet a statutory deadline, 

courts should not assume that Congress 

intended the agency to lose its power to 

act’’); Gottlieb v. Pen ̃ a, 41 F.3d 730 (D.C. 

Cir. 1994) (statute mandating Secretary 

of Transportation to act by certain 

deadline was directory, not mandatory); 

Ralpho v. Bell, 569 F.2d 607, 627 (D.C. 

Cir. 1977) (‘‘Statutes that, for guidance of 

a government official’s discharge of 

duties, propose ‘to secure order, system, 

and dispatch in proceedings’ are usually 

construed as directory, whether or not 

worded in the imperative, especially 

when the alternative is harshness or 

absurdity.’’ (citations omitted)). Here, 

there is no indication in the statute that 

Congress intended the Commission’s 

rulemaking authority to lapse after the 

180-day deadline. 

20. In addition to the broad grant of 

authority, Congress in Section 628(c)(2) 

directed the Commission to include 

‘‘minimum contents’’ in its regulations 

specifying certain unfair acts, relating to 

satellite-delivered programming, that 

are among those prohibited by Section 

628(b). See 47 U.S.C. 548(c)(2). First, 

Congress required the Commission to 

prohibit efforts by cable operators to 

unduly influence the decision of cableaffiliated programming vendors that 

provide satellite-delivered programming 

to sell their programming to competitors 

(‘‘undue or improper influence’’). See 47 

U.S.C. 548(c)(2)(A). 

21. Second, Congress required the 

Commission to address discrimination 

by cable-affiliated programming vendors 

that provide satellite-delivered 

programming in the prices, terms, and 

conditions for sale of programming 

among MVPDs (‘‘discrimination’’). See 

47 U.S.C. 548(c)(2)(B). 

22. Third, Congress required the 

Commission to prohibit exclusive 

contracts between cable operators and 

cable-affiliated programming vendors 

that provide satellite-delivered 

programming subject to certain 

exceptions in areas served by a cable 

operator as of October 5, 1992 (the 

‘‘exclusive contract prohibition’’). See 47 

U.S.C. 548(c)(2)(D). These exceptions 

are: (i) Exclusive contracts entered into 

prior to June 1, 1990 are not subject to 

the exclusive contract prohibition (see 

47 U.S.C. 548(h)(1); see also 47 CFR 

76.1002(e)(1)); (ii) exclusive contracts 

that the Commission deems to be in the 

public interest based on the factors set 

forth in the statute are not subject to the 

exclusive contract prohibition (see 47 

U.S.C. 548(c)(4); see also 47 CFR 

76.1002(c)(4)); and (iii) the exclusive 

contract prohibition will cease to be 

effective after October 5, 2002 unless the 

Commission finds that it ‘‘continues to 

be necessary to preserve and protect 


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competition and diversity in the 

distribution of video programming’’ (see 

47 U.S.C. 548(c)(5); see also 47 CFR 

76.1002(c)(6)). The public interest 

factors are: (i) The effect of such 

exclusive contract on the development 

of competition in local and national 

multichannel video programming 

distribution markets; (ii) the effect of 

such exclusive contract on competition 

from multichannel video programming 

distribution technologies other than 

cable; (iii) the effect of such exclusive 

contract on the attraction of capital 

investment in the production and 

distribution of new satellite cable 

programming; (iv) the effect of such 

exclusive contract on diversity of 

programming in the multichannel video 

programming distribution market; and 

(v) the duration of the exclusive 

contract. See 47 U.S.C. 548(c)(4); see 

also 47 CFR 76.1002(c)(4). In areas that 

were not served by a cable operator as 

of October 5, 1992, the exclusive 

contract prohibition is absolute and is 

not subject to exceptions. See 47 U.S.C. 

548(c)(2)(C). 

23. Section 628 was intended to 

address Congress’ concern that cable 

operators or their affiliates would 

engage in unfair acts, including acts 

involving programming they own, that 

impede competition in the video 

distribution market. See H.R. Rep. No. 

102–862 (1992) (Conf. Rep.), at 93, 

reprinted in 1992 U.S.C.C.A.N. 1231, 

1275; S. Rep. No. 102–92 (1991), at 26, 

reprinted in 1992 U.S.C.C.A.N. 1133, 

1159. 

24. The 1992 Cable Act and its 

legislative history reflect Congressional 

findings that increased horizontal 

concentration of cable operators, 

combined with extensive vertical 

integration of cable operators and 

program suppliers, created an imbalance 

of power between incumbent cable 

operators and their multichannel 

competitors. See 1992 Cable Act 

§ 2(a)(4); id. section 2(a)(5); S. Rep. No. 

102–92 (1991), at 24–29, reprinted in 

1992 U.S.C.C.A.N. 1133, 1157–62; H.R. 

Rep. No. 102–628 (1992), at 41–43. 

Congress concluded that vertically 

integrated program suppliers had the 

incentive and ability to favor their 

affiliated cable operators over other 

MVPDs, including direct broadcast 

satellite (‘‘DBS’’) providers. See 1992 

Cable Act section 2(a)(5); S. Rep. No. 

102–92 (1991), at 26, reprinted in 1992 

U.S.C.C.A.N. 1133, 1159; 1993 Program 

Access Order, 8 FCC Rcd at 3365–67, 

¶ 21. 

25. Through Section 628, Congress 

intended to encourage entry and 

facilitate competition in the video 

distribution market by existing or 

potential competitors to traditional 

cable systems by, among other things, 

making available to those entities the 

programming they need to compete in 

the video distribution market. See H.R. 

Rep. No. 102–862 (1992) (Conf. Rep.), at 

93, reprinted in 1992 U.S.C.C.A.N. 1231, 

1275; S. Rep. No. 102–92 (1991), at 28, 

reprinted in 1992 U.S.C.C.A.N. 1133, 

1161. As discussed above, competitors 

to incumbent cable operators credit the 

program access rules promulgated under 

Sections 628(b) and (c) for the increased 

competition to incumbent cable 

operators that has emerged since 

passage of the 1992 Cable Act. 

B. Program Access Rules Applicable to 

Satellite-Delivered, Cable-Affiliated 

Programming 

26. As required by Section 628(c)(2), 

the Commission has adopted program 

access rules which specifically prohibit 

undue or improper influence (see 47 

CFR 76.1002(a)), discrimination (see 47 

CFR 76.1002(b)), and exclusive 

contracts (see 47 CFR 76.1002(c)-(e)) 

involving cable operators and cableaffiliated programmers that provide 

satellite-delivered programming. The 

Commission has also established a 

complaint process to address claims that 

a cable operator or a cable-affiliated 

programmer that provides satellitedelivered programming has violated the 

program access rules. See 47 CFR 76.7, 

76.1003. Consistent with the definitions 

in the 1992 Cable Act, the Commission’s 

rules define the ‘‘satellite cable 

programming’’ and ‘‘satellite broadcast 

programming’’ to which the rules apply 

to include only programming 

transmitted or retransmitted by satellite 

for reception by cable operators. See 47 

CFR 76.1000(f), (h). The Commission 

has previously concluded that 

terrestrially delivered programming is 

outside of the direct coverage of Section 

628(c)(2) and the Commission’s program 

access rules under Section 628(c)(2). See 

DIRECTV, Inc. and EchoStar Commc’ns 

Corp. v. Comcast Corp. et al., 15 FCC 

Rcd 22802, 22807 (2000), aff’d sub nom. 

EchoStar Commc’ns Corp. v. FCC, 292 

F.3d 749 (D.C. Cir. 2002); see also 2007 

Program Access Order; 2002 Program 

Access Order. 

C. NPRM 

27. In September 2007, the 

Commission adopted an NPRM seeking 

comment on, among other things, 

whether to extend the program access 

rules to terrestrially delivered, cableaffiliated programming. The 

Commission noted examples of 

withholding of terrestrially delivered, 

cable-affiliated RSNs in San Diego and 

Philadelphia. The Commission stated its 

belief that ‘‘withholding of terrestrially 

delivered cable-affiliated programming 

is a significant concern that can 

adversely impact competition in the 

video distribution market.’’ To address 

this concern, the NPRM sought 

comment on whether it would be 

appropriate to address the terrestrial 

loophole in the current program access 

rules pursuant to provisions other than 

Section 628(c)(2) of the Act, such as 

Section 628(b) of the Act. The NPRM 

also sought comment on whether 

extension of program access 

requirements to terrestrially delivered, 

cable-affiliated programming by way of 

a general statutory provision such as 

Section 628(b) would be barred by the 

more specific provision in Section 

628(c)(2) that requires the promulgating 

of rules relating only to conduct 

involving satellite-delivered 

programming. 

28. In their comments filed in 

response to the NPRM, non-incumbent 

MVPDs contend that the Commission 

has statutory authority to address the 

terrestrial loophole in the current rules. 

They also argue that applying the 

program access rules to terrestrially 

delivered, cable-affiliated programming 

would promote competition in the video 

distribution market and broadband 

deployment. Conversely, vertically 

integrated cable operators contend that 

the Commission does not have the 

statutory authority to address the 

terrestrial loophole. Moreover, they 

argue that the market for video 

distribution is competitive and that 

additional regulations are not justified. 

D. Pending Program Access Complaints 

29. Since adoption of the NPRM in 

September 2007, MVPDs have filed 

three program access complaints 

involving terrestrially delivered, cableaffiliated programming. First, in 

September 2008, AT&T filed a program 

access complaint alleging that Cox is 

withholding a terrestrially delivered 

RSN (Cox-4) from AT&T in San Diego. 

In March 2009, the Media Bureau issued 

a decision denying this complaint 

without prejudice because (i) there was 

no precedent finding that withholding 

of terrestrially delivered programming is 

a violation of Section 628(b); and (ii) the 

pending NPRM, rather than an 

adjudicatory proceeding, is the correct 

forum for addressing this issue. See 

AT&T Services Inc. et al v. Coxcom, 

Inc., Memorandum Opinion and Order, 

24 FCC Rcd 2859, 2864 (MB, 2009), 

application for review pending. AT&T 

has filed an Application for Review of 

this decision, which is pending. In July 

2009, Verizon filed a program access 

complaint alleging that Cablevision is 


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withholding the terrestrially delivered 

HD feeds of its RSNs (MSG and MSG+) 

from Verizon in New York. In August 

2009, AT&T filed a program access 

complaint against Cablevision making a 

similar claim regarding the withholding 

of the terrestrially delivered HD feeds of 

MSG and MSG+ from AT&T in 

Connecticut. The latter two complaints 

are pending. 

30. We note that redacted versions of 

both of AT&T’s complaints, the 

defendants’ answers, AT&T’s replies, 

and Cox’s response to a declaration and 

survey included in AT&T’s reply were 

filed in the record of this proceeding. 

We do not reach a decision in this Order 

on the merits of these complaints, 

including whether AT&T has 

demonstrated that the defendants’ 

conduct violated Section 628(b). 

III. Discussion 

31. In Section A below, we begin with 

a discussion of our statutory authority 

under Section 628(b) to consider 

complaints alleging unfair acts 

involving terrestrially delivered, cableaffiliated programming. In Section B, we 

explain the bases for our conclusion that 

there is a need for Commission action to 

address such complaints. In Section C, 

we explain how addressing unfair acts 

involving terrestrially delivered, cableaffiliated programming on a case-bycase basis comports with the First 

Amendment. In Section D, we set forth 

the requirements for complaints alleging 

such unfair acts. In Section E, we 

discuss how these rules will be applied 

to common carriers, existing contracts, 

and terrestrially delivered programming 

that is subject to the program access 

rules applicable to satellite-delivered 

programming as a result of merger 

conditions. In Section F, we establish 

procedures for the Commission’s 

consideration of requests for a 

temporary standstill of the price, terms, 

and other conditions of an existing 

programming contract by a program 

access complainant seeking renewal of 

such a contract. 

A. The Commission’s Statutory 

Authority To Address Unfair Acts 

Involving Terrestrially Delivered, CableAffiliated Programming 

32. In this Section, we discuss our 

statutory authority under Section 628(b) 

to consider complaints alleging unfair 

acts involving terrestrially delivered, 

cable-affiliated programming in the 

circumstances described in that 

provision. Section 628(b) gives the 

Commission authority to promulgate 

rules applicable to unfair acts of cable 

operators (and certain other entities), 

including acts involving terrestrially 

delivered programming that have the 

purpose or effect of hindering 

significantly or preventing an MVPD 

from providing satellite cable 

programming or satellite broadcast 

programming to subscribers or 

consumers. See 47 U.S.C. 548(b). 

Section 628(c)(1) authorizes the 

Commission to prescribe regulations to 

specify particular conduct prohibited by 

Section 628(b). See 47 U.S.C. 548(c)(1). 

Our analysis reflects the Commission’s 

interpretation of Section 628(b) in the 

MDU Order, where the Commission 

held that it has authority pursuant to 

Section 628(b) to adopt rules prohibiting 

exclusive contracts between cable 

operators and owners of multiple 

dwelling units (‘‘MDUs’’) because those 

contracts prevent or significantly hinder 

the ability of competing MVPDs to 

provide all programming, including 

‘‘satellite cable programming’’ and 

‘‘satellite broadcast programming,’’ in 

those markets. See MDU Order, 73 FR 

1080, January 7, 2008, aff’d sub nom. 

Nat’l Cable & Telecomm. Ass’n v. FCC, 

567 F.3d 659 (D.C. Cir. 2009). This 

interpretation was recently upheld by a 

federal court of appeals. See NCTA, 567 

F.3d 659. Several commenters argue that 

applying the program access rules to 

terrestrially delivered, cable-affiliated 

programming pursuant to Section 628(b) 

is consistent with the Commission’s 

analysis in the MDU Order. 

33. Vertically integrated cable 

operators note that Section 628(c)(2) 

requires the Commission to prohibit 

unfair acts involving only satellitedelivered programming and assert that 

this specific mandate precludes the 

Commission from addressing 

terrestrially delivered programming 

pursuant to the general authority 

provided in Section 628(b). While 

Section 628(c)(2) lists specific unfair 

acts that the Commission is required to 

address as ‘‘minimum contents’’ in its 

regulations, the United States Court of 

Appeals for the District of Columbia 

Circuit has explained that this list does 

not preclude the Commission from 

adopting rules to address additional 

conduct that also is prohibited under 

Section 628(b). See NCTA, 567 F.3d at 

664–65. As the court stated, ‘‘Congress 

had a particular manifestation of a 

problem in mind, but in no way 

expressed an unambiguous intent to 

limit the Commission’s power solely to 

that version of the problem.’’ Id. at 665; 

see also MDU Order (‘‘nothing in these 

provisions indicate that they were 

intended to establish the outer limits of 

the Commission’s authority under 

Section 628(b)’’). The court also held 

that (i) the title of Section 628(c)(2), 

‘‘Minimum Contents of Regulations,’’ 

demonstrates that the Commission’s 

rules must at least address the unfair 

acts listed in Section 628(c)(2), but are 

not limited to addressing those acts (47 

U.S.C. 548(c)(2); see NCTA, 567 F.3d at 

665; see also MDU Order) and (ii) this 

interpretation of Section 628(b) is 

confirmed by Section 628(c)(1), which 

grants the Commission wide latitude to 

‘‘specify particular conduct that is 

prohibited by [Section 628(b)]’’ (see 

NCTA, 567 F.3d at 665 (quoting 47 

U.S.C. 548(c)(1)); see also MDU Order). 

The Commission too has explained 

previously that it is not limited to 

addressing only the specific unfair acts 

listed in Section 628(c)(2); rather, 

‘‘Section 628(b) is a clear repository of 

Commission jurisdiction to adopt 

additional rules or to take additional 

action * * * should additional types of 

conduct emerge as barriers to 

competition.’’ See 1993 Program Access 

Order, 8 FCC Rcd at 3374. 

34. Here, the record reflects evidence 

that unfair acts involving terrestrially 

delivered, cable-affiliated programming 

have occurred; such conduct is likely to 

persist absent Commission action; and 

this conduct can have the effect in some 

cases of hindering significantly an 

MVPD from providing satellite cable 

programming or satellite broadcast 

programming to subscribers and 

consumers. Thus, the plain language of 

Section 628(b), along with the authority 

provided by Section 628(c)(1) to adopt 

rules addressing conduct prohibited by 

Section 628(b), provide us with 

authority to adopt rules for the 

consideration of complaints alleging 

unfair acts with respect to terrestrially 

delivered, cable-affiliated programming. 

35. Moreover, despite the principle of 

statutory interpretation that, by 

mentioning one thing, Congress may 

have implied the exclusion of another, 

an explicit congressional directive to 

ban certain activities does not prevent 

the agency ‘‘from taking similar action 

with respect to activities that pose a 

similar danger.’’ See Texas Rural Legal 

Aid, Inc. v. Legal Servs. Corp., 940 F.2d 

685, 694 (D.C. Circ. 1991)); see also 

Oncale v. Sundowner Offshore Servs., 

Inc., 523 U.S. 75, 79 (1998) (‘‘[S]tatutory 

prohibitions often go beyond the 

principal evil to cover reasonably 

comparable evils, and it is ultimately 

the provisions of our laws rather than 

the principal concerns of our legislators 

by which we are governed.’’). The fact 

that Congress singled out a subset of 

practices with which it was particularly 

concerned in Section 628(c)(2) and 

required the Commission to focus on 

those practices expeditiously does not 

limit the broader rulemaking authority 


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expressly granted to the Commission 

through Sections 628(b) and 628(c)(1). 

Here, we find that unfair acts involving 

cable-affiliated programming, regardless 

of whether that programming is 

satellite-delivered or terrestrially 

delivered, pose the danger of 

significantly hindering MVPDs from 

providing satellite cable programming 

or satellite broadcast programming, 

thereby harming competition in the 

video distribution market and limiting 

broadband deployment. As the 

Commission recognized in the Adelphia 

Order, competitive harm from 

withholding of programming can occur 

regardless of how that programming is 

delivered to MVPDs. See 21 FCC Rcd 

8203, 8276 (2006). Thus, we conclude 

that Congress’ decision to require the 

Commission to adopt within 180 days 

program access rules to address unfair 

acts involving satellite-delivered, cableaffiliated programming does not 

preclude us from exercising our 

authority under Section 628(b) to take 

similar action where appropriate to 

address unfair acts involving 

terrestrially delivered, cable-affiliated 

programming. 

36. Section 628(c)(2)(B)(iv) does not 

conflict with this interpretation. This 

provision provides that a cable-affiliated 

programmer that provides satellitedelivered programming does not violate 

the program access discrimination 

prohibition by entering into ‘‘an 

exclusive contract that is permitted 

under [Section 628(c)(2)(D)].’’ See 47 

U.S.C. 548(c)(2)(B)(iv). The Commission 

has interpreted the phrase ‘‘an exclusive 

contract that is permitted under [Section 

628(c)(2)(D)]’’ to mean an exclusive 

contract for which the Commission has 

granted an exception pursuant to the 

public interest factors listed in Section 

628(c)(4). See 1996 OVS Order, 11 FCC 

Rcd 18223, 18319 (1996); see also 47 

U.S.C. 548(c)(4); 47 CFR 76.1002(c)(4). 

The Commission has declined to 

interpret this phrase more broadly to 

mean any exclusive contract that is not 

expressly prohibited by Section 

628(c)(2)(D). See 1996 OVS Order, 11 

FCC Rcd at 18319. 

37. We are aware that the former 

Cable Services Bureau stated that 

Section 628(b) may not be used 

categorically to preclude programming 

practices that are related to practices 

prohibited under Section 628(c)(2), but 

not themselves reached by Section 

628(c)(2). See Everest Midwest Licensee 

v. Kansas City Cable Partners, 18 FCC 

Rcd 26679, 26683–84 (CSB, 2003); RCN 

Telecom Servs. v. Cablevision Sys. 

Corp., 14 FCC Rcd 17093, 17105–06 

(CSB, 1999); EchoStar Commc’ns Corp. 

v. Comcast Corp., 14 FCC Rcd 2089, 

2102 (CSB, 1999); Dakota Telecom, Inc. 

v. CBS Broad., Inc., 14 FCC Rcd 10500, 

10507–08 (CSB, 1999); DIRECTV, Inc. v. 

Comcast Corp., 13 FCC Rcd 21822, 

21837 (CSB, 1998). The Cable Services 

Bureau qualified these statements, 

however, by explaining that Section 

628(b) may not be used ‘‘without more,’’ 

‘‘standing alone,’’ or ‘‘on a per se basis’’ 

against conduct that is permitted under 

Section 628(c). See Everest Midwest 

Licensee, 18 FCC Rcd at 26683–84; RCN, 

14 FCC Rcd at 17105–06; EchoStar, 14 

FCC Rcd at 2103; Dakota Telecom, 14 

FCC Rcd at 10507–08; DIRECTV, 13 FCC 

Rcd at 21838; see also American Cable 

Co. v. TeleCable of Columbus, Inc., 11 

FCC Rcd 10090, 10117 (CSB, 1996). In 

other words, complainants under 

Section 628(b) are required to show that 

a covered entity has engaged in unfair 

methods of competition or unfair or 

deceptive acts or practices, the purpose 

or effect of which is to hinder 

significantly or prevent an MVPD from 

providing satellite programming to 

consumers. Our holding today is 

consistent with that understanding. 

38. Moreover, staff-level decisions are 

not binding on the Commission. See 

Comcast Corp. v. FCC, 526 F.3d 763, 

769 (D.C. Cir. 2008). The Commission 

itself has specifically held that unfair 

acts involving terrestrially delivered, 

cable-affiliated programming can be 

cognizable under Section 628(b). See 

RCN Telecom Servs. v. Cablevision Sys. 

Corp., 16 FCC Rcd 12048, 12053 (2001) 

(‘‘[T]here may be circumstances where 

moving programming from satellite to 

terrestrial delivery could be cognizable 

under Section 628(b) as an unfair 

method of competition or deceptive 

practice if it precluded competitive 

MVPDs from providing satellite cable 

programming. However, we agree with 

the Bureau that the facts alleged are not 

sufficient to constitute such a violation 

here.’’); DIRECTV, Inc. and EchoStar 

Commc’ns Corp. v. Comcast Corp. et al., 

15 FCC Rcd 22802, 22807 (2000) (same), 

aff’d sub nom. EchoStar Commc’ns 

Corp. v. FCC, 292 F.3d 749 (D.C. Cir. 

2002); 1996 OVS Order, 11 FCC Rcd at 

18325 (‘‘[W]e do not foreclose a 

challenge under Section 628(b) to 

conduct that involves moving satellite 

delivered programming to terrestrial 

distribution in order to evade 

application of the program access rules 

and having to deal with competing 

MVPDs.’’). In any event, to the extent 

prior decisions could be read as 

precluding the consideration of program 

access complaints involving terrestrially 

delivered, cable-affiliated programming 

under Section 628(b), we reject that 

view. Section 628(b), by its plain 

language, allows the Commission to 

address unfair acts involving 

terrestrially delivered, cable-affiliated 

programming on a case-by-case basis 

where the other elements of Section 

628(b) are satisfied. 

39. The legislative history of the 1992 

Cable Act also is consistent with our 

decision to adopt rules addressing 

unfair acts involving terrestrially 

delivered, cable-affiliated programming. 

For example, the Conference Report on 

Section 628 specifically states an 

expectation that the Commission will 

‘‘address and resolve the problems of 

unreasonable cable industry practices, 

including restricting the availability of 

programming and charging 

discriminatory prices to non-cable 

technologies.’’ H.R. Rep. No. 102–862 

(1992) (Conf. Rep.), at 91, reprinted in 

1992 U.S.C.C.A.N. 1231, 1273; see also 

MDU Order. The Conference Report 

further indicates ‘‘that the Commission 

shall encourage arrangements which 

promote the development of new 

technologies providing facilities-based 

competition to cable and extending 

programming to areas not served by 

cable.’’ H.R. Rep. No. 102–862 (1992) 

(Conf. Rep.), at 91, reprinted in 1992 

U.S.C.C.A.N. 1231, 1273. The action we 

take today fulfills this Congressional 

mandate by providing a process by 

which unfair acts involving terrestrially 

delivered, cable-affiliated programming 

may be addressed, thereby fostering 

competition in the video distribution 

market. 

40. We recognize that the Senate 

version of what became Section 

628(c)(2) would have pertained to all 

programmers, including those that 

provide terrestrially delivered 

programming, but that language was, 

without explanation, removed in the 

final version of the bill. The Senate 

version of the legislation that became 

Section 628(c)(2) would have applied 

the program access provisions to all 

‘‘national and regional cable 

programmers who are affiliated with 

cable operators.’’ H.R. Rep. No. 102–862 

(1992) (Conf. Rep.), at 91–93, reprinted 

in 1992 U.S.C.C.A.N. at 1273–75; see 

also S. Rep. No. 102–92 (1991), at 64, 

77–78, 121–22, reprinted in 1992 

U.S.C.C.A.N. 1133, 1197, 1210–11. The 

House amendment, by contrast, 

expressly limited the provisions to 

‘‘satellite cable programming vendor[s] 

affiliated with a cable operator.’’ See 

H.R. Rep. No. 102–862 (1992) (Conf. 

Rep.), at 91–93, reprinted in 1992 

U.S.C.C.A.N. at 1273–75. The 

Conference agreement adopted the 

House version with amendments. See 

id. 


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41. Contrary to the claims of cable 

operators, however, we do not find this 

unexplained change in Section 628(c)(2) 

relevant in determining Congress’ intent 

with respect to Section 628(b)’s broadly 

worded prohibition. See, e.g., 

Drummond Coal Co. v. Watt, 735 F.2d 

469, 474 (11th Cir. 1984) (‘‘Unexplained 

changes made in committee are not 

reliable indicators of congressional 

intent.’’), quoted in Save Our 

Cumberland Mountains, Inc. v. Lujan, 

963 F.2d 1541, 1548 (D.C. Cir. 1992), 

cert. denied, 507 U.S. 911 (1993); 

Trailmobile Co. v. Whirls, 331 U.S. 40, 

61 (1947) (‘‘The interpretation of statutes 

cannot safely be made to rest upon mute 

intermediate legislative maneuvers.’’ 

(citation omitted)); see also Mead Corp. 

v. Tilley, 490 U.S. 714, 723 (1989). 

42. The change related specifically to 

the minimum contents of the program 

access rules that were required to be 

issued under Section 628(c)(2). Congress 

did not make any similar limiting 

amendment to Section 628(b) during its 

deliberations in 1992, and the inclusive 

language of Section 628(b) therefore is 

controlling here, just as it was in the 

MDU Order. Removal of the references 

to all ‘‘national and regional cable 

programmers’’ in the final version of the 

bill relate to Section 628(c)(2), which is 

thus expressly limited to satellitedelivered programming. We do not 

believe that this change to Section 

628(c)(2) indicates a Congressional 

intent to limit the broad statutory 

language of Section 628(b), which 

contains no such limitation. We find no 

significance in earlier characterizations 

of the legislative history, such as that 

presented in the 2002 Program Access 

Order, which viewed the removal of 

terrestrially delivered programming 

from the final version of the bill as an 

‘‘express decision by Congress to limit 

the scope of the program access 

provisions to satellite delivered 

programming.’’ Those discussions were 

considering the scope of Section 

628(c)(2), not Section 628(b), and thus 

did not address the issue we address 

here. 

43. AT&T contends that Congress 

chose the term ‘‘satellite cable 

programming’’ because Congress was 

unaware of, and thus had no reason to 

consider, unfair acts involving 

terrestrially delivered programming. 

While Comcast notes some examples of 

terrestrially delivered programming that 

existed at the time the 1992 Cable Act 

was drafted, we agree with AT&T’s 

broader point that ‘‘there is nothing to 

suggest that the phrase ‘satellite cable 

programming’ was anything other than 

a statement of the nature of the specific 

problem to be addressed at that time,’’ 

and that Congress could not be expected 

to predict future trends in programming 

delivery. 

B. The Need for Commission Action to 

Address Unfair Acts Involving 

Terrestrially Delivered, Cable-Affiliated 

Programming 

44. Having established that we 

possess authority to address unfair acts 

involving terrestrially delivered, cableaffiliated programming, in this Section 

we discuss whether there is a need for 

such action. As discussed below, we 

find three reasons for taking action in 

this area: (i) Cable operators continue to 

have an incentive and ability to engage 

in unfair acts or practices involving 

their affiliated programming, regardless 

of whether this programming is satellitedelivered or terrestrially delivered; (ii) 

our judgment regarding this incentive 

and ability is supported by real-world 

evidence that vertically integrated cable 

operators have withheld certain 

terrestrially delivered, cable-affiliated 

programming from their MVPD 

competitors; and (iii) there is evidence 

that, in some cases, this withholding 

may significantly hinder MVPDs from 

providing satellite cable programming 

and satellite broadcast programming to 

subscribers. 

1. Incentive and Ability to Engage in 

Unfair Acts 

45. Cable operators continue to have 

the incentive and ability to withhold or 

take other unfair acts with their 

affiliated programming in order to 

hinder competition in the video 

distribution market. See 2007 Program 

Access Order (concluding that vertically 

integrated cable operators continue to 

have the ability to withhold affiliated 

programming from competitive MVPDs 

such that competition and diversity in 

the distribution of video programming 

would not be preserved and protected 

absent extension of the ban on exclusive 

contracts); see also id. (concluding that 

vertically integrated cable operators 

continue to have the incentive to 

withhold affiliated programming from 

competitive MVPDs); Adelphia Order, 

21 FCC Rcd at 8271; 2002 Program 

Access Order. This incentive and ability 

do not vary based on whether the cableaffiliated programming is delivered to 

cable operators by satellite or by 

terrestrial means. A vertically integrated 

cable operator may raise the costs of its 

MVPD competitors by increasing the 

price of its affiliated programming or 

may choose not to sell its affiliated 

programming to rival MVPDs. This 

strategy is commonly referred to as the 

‘‘raising rivals’ costs’’ theory. See 

Adelphia Order, 21 FCC Rcd at 8256 

(citing Michael H. Riordan and Steven 

Salop, Evaluating Vertical Mergers: A 

Post-Chicago Approach, 63 Antitrust 

L.J. 513, 523–27 (1995)); see also 

Thomas G. Krattenmaker & Steven C. 

Salop, Anticompetitive Exclusion: 

Raising Rivals’ Costs to Achieve Power 

Over Price, 96 Yale L.J. 209, 234–38 

(1986). As the Commission noted in the 

Adelphia Order, ‘‘the integrated firm 

may be able to harm its rivals’ 

competitive positions, enabling it to 

raise prices and increase its market 

share in the downstream market, 

thereby increasing its profits while 

retaining lower prices for itself or for 

firms with which it does not compete.’’ 

21 FCC Rcd at 8256. 

46. Unfair acts involving cableaffiliated programming may harm the 

ability of MVPDs to compete with 

incumbent cable operators, thereby 

resulting in less competition in the 

marketplace to the detriment of 

consumers. For example, the 

Commission has noted previously that, 

although competitors have entered the 

video distribution market, there is 

evidence that cable prices have risen in 

excess of inflation. See 2007 Program 

Access Order (citing Implementation of 

Section 3 of the Cable Television 

Consumer Protection and Competition 

Act of 1992: Statistical Report on 

Average Rates for Basic Service, Cable 

Programming Service, and Equipment, 

Report on Cable Industry Prices, 21 FCC 

Rcd 15087, 15087–88 (2006)); see also 

Cable Price Report, 24 FCC Rcd 259, 260 

(MB, 2009) (concluding that from 1995 

to 2008, the price of expanded basic 

service has grown from $22.35 to 

$49.65, an increase of 122.1 percent, 

compared with an increase in the 

Consumer Price Index of 38.4 percent 

over the same period). 

47. In the 2007 Program Access Order, 

the Commission analyzed the incentive 

and ability of cable operators and their 

affiliates to engage in one type of unfair 

act—withholding of affiliated 

programming from rival MVPDs. If the 

vertically integrated cable operator 

engages in withholding, it can recoup 

profits lost at the upstream level (i.e., by 

licensing programming) by increasing 

the number of subscribers of its 

downstream MVPD division. See 

Adelphia Order, 21 FCC Rcd at 8256; 

see also 2007 Program Access Order; 

2002 Program Access Order. The 

Commission explained that, particularly 

‘‘where competitive MVPDs are limited 

in their market share, a cable-affiliated 

programmer will be able to recoup a 

substantial amount, if not all, of the 

revenues foregone by pursuing a 

withholding strategy.’’ 2007 Program 

Access Order. Although the cable 


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industry’s share of MVPD subscribers 

nationwide has decreased since the 

1992 Cable Act was passed, the 

Commission in the 2007 Program 

Access Order concluded that the cable 

industry’s 67 percent share of MVPD 

subscribers nationwide remained 

sufficient to enable vertically integrated 

cable firms to make withholding a 

profitable strategy. There is no evidence 

in this proceeding that market shares 

have changed materially since that time. 

To the contrary, the cable industry has 

elsewhere stated that its share of MVPD 

subscribers nationwide has declined 

only slightly since the 2007 Program 

Access Order, to approximately 63.5 

percent at the end of 2008. Moreover, 

the Commission observed that the 

regional market shares of cable 

operators sometimes exceed the national 

average. This makes withholding of 

local and regional programming, which 

is often terrestrially delivered and 

therefore beyond the reach of the 

program access rules, potentially an 

even more profitable strategy. See 2007 

Program Access Order (‘‘the cost to a 

cable-affiliated programmer of 

withholding regional programming is 

lower in many cases than the cost of 

withholding national programming’’). 

48. NCTA and Comcast state that 

cable operators are losing subscribers to 

competitors. CA2C disagrees, noting 

that ‘‘major cable operators dominate’’ 

the MVPD market, with regional market 

shares of 65 percent to 90 percent. 

Based on data from Nielsen Media 

Research, as of July 2009, the share of 

MVPD subscribers held by wired cable 

operators exceeds 70 percent in 78 out 

of 210 DMAs. See DMA Household 

Universe Estimates July 2009: Cable 

And/Or ADS (Alternate Delivery 

Systems), http://www.tvb.org/nav/ 

build_frameset.asp (follow ‘‘Research 

Central’’ hyperlink; then follow ‘‘Market 

Track’’ hyperlink; then follow ‘‘Cable 

and ADS Penetration by DMA’’ 

hyperlink). These include 27 of the Top 

50 most-populated DMAs and the 

following 13 of the Top 20 mostpopulated DMAs: New York (No. 1; 88.5 

percent cable market share); Chicago 

(No. 3; 77.1 percent cable market share); 

Philadelphia (No. 4; 83 percent cable 

market share); San Francisco-OaklandSan Jose (No. 6; 72.9 percent cable 

market share); Boston (No. 7; 87.5 

percent cable market share); 

Washington, DC (No. 9; 72.2 percent 

cable market share); Detroit (No. 11; 

76.3 percent cable market share); 

Tampa-St. Pete (No. 13; 84.2 percent 

cable market share); Seattle (No. 14; 78.9 

percent cable market share); 

Minneapolis-St. Paul (No. 15; 70.3 

percent cable market share); Miami-Ft. 

Lauderdale (No. 16; 70.4 percent cable 

market share); Cleveland-Akron (No. 17; 

77.1 percent cable market share); 

Orlando (No. 19; 76.7 percent cable 

market share). We note that the data 

refer to the market share held by ‘‘wired 

cable operators,’’ and thus reflect market 

share data for incumbent cable operators 

as well as cable overbuilders. Given the 

minimal market share held by 

overbuilders, however, we believe the 

data provide a useful estimate of the 

market share held by incumbent cable 

operators. See 13th Annual Report, 24 

FCC Rcd 542, 591 and 684, Table B–1 

(2009) (concluding that broadband 

service providers, most of which are 

overbuilders that compete with 

incumbent cable operators, serve only 

1.46 percent of MVPD subscribers). 

While Cox notes that it has met the 

‘‘effective competition’’ test in certain 

markets, that test is not relevant here. 

The Media Bureau’s review of data from 

Cox’s effective competition petitions 

indicated that the DBS penetration rates 

in nine out of 54 San Diego franchise 

areas served by Cox exceeded 15 

percent, and that a local exchange 

carrier (‘‘LEC’’) offered service in other 

franchise areas. See Cox 

Communications San Diego: Petition for 

Determination of Effective Competition 

in 27 Communities in California, 23 

FCC Rcd 7106, 7110–11, App. A, B (MB, 

2008). These numbers do not 

demonstrate that the entire San Diego 

DMA is competitive nor that this level 

of competition deprives cable operators 

of the incentive to withhold or to take 

other anticompetitive actions with their 

affiliated programming. 

49. The Commission has also found 

that the grouping of commonly owned 

cable systems into regional clusters 

enhances the ability and incentive of 

vertically integrated cable firms to 

engage in unfair acts with their affiliated 

programming. See 2007 Program Access 

Order. Recent data indicates that over 

77 percent of cable subscribers are 

served by systems that are part of 

regional clusters. See 13th Annual 

Report, 24 FCC Rcd at 684 (Table B–1) 

and 686 (Table B–2). In the 2007 

Program Access Order, the Commission 

relied on data indicating that the 

percentage of cable subscribers that are 

served by systems that are part of 

regional clusters was between 85 and 90 

percent. Commenters explain that 

clustering of a cable operator’s systems 

makes terrestrial delivery of affiliated 

regional programming more feasible. 

And the Commission has previously 

demonstrated through empirical 

analyses that clustering enhances the 

potential profitability of withholding 

regional programming from rival 

distributors. See 2007 Program Access 

Order (‘‘[I]n many cities where cable 

[multiple system operators (‘‘MSOs’’)] 

have clusters, the market penetration of 

competitive MVPDs is much lower and 

cable market penetration is much higher 

than their nationwide penetration rates. 

. . . As a result, the cost to a cableaffiliated programmer of withholding 

regional programming is lower in many 

cases than the cost of withholding 

national programming. Moreover, the 

affiliated cable operator will obtain a 

substantial share of the benefits of a 

withholding strategy because its share of 

subscribers within the cluster is likely 

to be inordinately high.’’); see id. 

(concluding that withholding of an RSN 

would be profitable in a significant 

range of cases). 

50. The Commission has also 

concluded that the recent emergence of 

new wireline entrants in the video 

distribution market enhances the 

incentive of incumbent cable operators 

to engage in unfair acts with their 

affiliated programming. See id. Data 

indicate that DBS operators do not 

constrain the price of cable service to 

the extent that wireline MVPDs do, 

thereby implying that incumbent cable 

operators perceive wireline MVPDs as a 

more significant competitive threat. See 

Cable Price Report, 24 FCC Rcd at 261. 

In addition, unlike DBS operators, 

wireline MVPDs can offer combinations 

of video, voice, and data services similar 

to those that incumbent cable operators 

offer to customers (the ‘‘triple play’’), 

thus posing a greater competitive threat 

than DBS to cable operators. (The 

Commission has noted a ‘‘shift from 

competition between stand-alone 

services to that between service 

bundles.’’ See Promotion of Competitive 

Networks in Local Telecommunications 

Markets, Report and Order, 23 FCC Rcd 

5385, 5388–89 (2008). Although DBS 

operators offer triple play packages to 

their customers, they partner with 

outside vendors to do so.) Moreover, 

because recent wireline entrants have 

relatively small subscriber bases in most 

areas at this time, withholding affiliated 

programming from these new entrants 

would not cause programmers to lose a 

significant current source of revenue. 

See 2007 Program Access Order 

(‘‘Because recent entrants have minimal 

subscriber bases at this time, the costs 

that a cable-affiliated programmer 

would incur from withholding 

programming from recent entrants are 

negligible.’’); see also 13th Annual 

Report, 24 FCC Rcd at 591 and 684, 

Table B–1 (concluding that broadband 


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service providers, most of which are 

overbuilders that compete with 

incumbent cable operators, serve only 

1.46 percent of MVPD subscribers). 

51. In the 2007 Program Access Order, 

the Commission noted the argument 

that, because of the non-discrimination 

provision of the program access rules, a 

vertically integrated programmer that 

withholds programming from one 

competitive MVPD in a market (such as 

a new entrant with a minimal subscriber 

base) would generally need to withhold 

the programming from all other 

competitive MVPDs in the market (such 

as an established competitor with a 

significant number of subscribers), 

thereby increasing the foregone 

revenues resulting from a withholding 

strategy. This condition does not apply 

in the case of terrestrially delivered, 

cable-affiliated programming, however, 

because the program access rules do not 

currently apply to this programming. 

Thus, the non-discrimination provision 

of the program access rules applicable to 

satellite-delivered, cable-affiliated 

programming does not preclude a 

vertically integrated programmer from 

withholding its terrestrially delivered 

programming from a new entrant in a 

market but providing the same 

programming to established competitors 

in the market. Moreover, even if the 

non-discrimination rule applied to 

terrestrially delivered, cable-affiliated 

programming, the Commission 

nonetheless found in the 2007 Program 

Access Order that this rule would not 

deter withholding because the long-term 

benefits to the vertically integrated cable 

operator would outweigh any short-term 

costs. 

2. Evidence of Unfair Acts 

52. Our judgment that cable operators 

continue to have the incentive and 

ability to withhold or take other unfair 

acts with their affiliated programming, 

including terrestrially delivered 

programming, is supported by realworld evidence. Because the program 

access rules currently apply only to 

satellite-delivered programming, 

terrestrial distribution allows a cableaffiliated programmer to bypass the 

program access rules. The record here, 

as well as our discussion in the 2007 

Program Access Order, reflects 

substantial evidence that cable firms 

withhold affiliated programming from 

competitors when not barred from doing 

so. Moreover, the record reflects that 

terrestrial distribution is becoming more 

cost effective, and that its use is likely 

to continue and possibly increase in the 

future. Below, we provide several 

examples of withholding of terrestrially 

delivered, cable-affiliated programming. 

Although we provide examples of 

terrestrially delivered, cable-affiliated 

programming networks that have been 

withheld from competitive MVPDs, we 

do not conclude in this Order that the 

withholding of any of these networks is 

currently significantly hindering or 

preventing any MVPD from providing 

satellite cable programming or satellite 

broadcast programming in violation of 

Section 628(b). Rather, that would be a 

point of fact to be proven or rebutted in 

each case. As discussed below, we will 

consider on a case-by-case basis 

whether an unfair act involving 

terrestrially delivered, cable-affiliated 

programming is significantly hindering 

or preventing an MVPD from providing 

satellite cable programming or satellite 

broadcast programming. 

53. HD Feeds of MSG and MSG+. 

Cablevision has withheld the 

terrestrially delivered HD feeds of its 

affiliated MSG and MSG+ RSNs from 

certain competitors in New York City, 

Buffalo, and Connecticut. See 2007 

Program Access Order. Consumers 

Union states that, even though 

Cablevision does not provide cable 

service in Buffalo, Cablevision has 

‘‘chosen to make this content available 

only to select MVPDs and has denied 

access to Verizon.’’ 

54. Cox-4 San Diego. Cox has 

withheld the terrestrially delivered Cox4 channel, which has exclusive rights to 

the San Diego Padres baseball games, 

from DIRECTV, EchoStar, and AT&T. 

See 2007 Program Access Order. As 

discussed above, the Media Bureau has 

denied without prejudice a program 

access complaint regarding access to 

this programming because (i) there is no 

precedent finding that withholding of 

terrestrially delivered programming is a 

violation of Section 628(b); and (ii) the 

pending rulemaking, rather than an 

adjudicatory proceeding, is the correct 

forum for addressing this issue. See 

AT&T v. Coxcom, 24 FCC Rcd at 2864. 

55. Comcast SportsNet Philadelphia. 

Comcast has withheld this terrestrially 

delivered RSN, which carries regional 

professional sports programming in 

Philadelphia, from DBS firms. See 

Adelphia Order, 21 FCC Rcd at 8276; 

see also 2007 Program Access Order. 

This RSN was the subject of previous 

program access complaints, which were 

denied because (i) the programming was 

terrestrially delivered and thus beyond 

the scope of the program access rules 

established pursuant to Section 

628(c)(2) and (ii) there were not 

sufficient facts alleged to find that 

Comcast delivered the programming 

terrestrially to evade the program access 

rules. See DIRECTV, Inc. v. Comcast 

Corp., 13 FCC Rcd 21822 (CSB, 1998) 

and EchoStar Commc’ns Corp. v. 

Comcast Corp., 14 FCC Rcd 2089 (CSB, 

1999), aff’d., DIRECTV, Inc. and 

EchoStar Commc’ns Corp. v. Comcast 

Corp. et al., 15 FCC Rcd 22802 (2000), 

aff’d EchoStar Commc’ns Corp. v. FCC, 

292 F.3d 749 (D.C. Cir. 2002). As a 

result of merger conditions adopted in 

the Adelphia Order, Comcast SportsNet 

Philadelphia is currently subject to the 

program access rules applicable to 

satellite-delivered programming with 

respect to some but not all of the 

competing MVPDs in Philadelphia. See 

Adelphia Order, 21 FCC Rcd at 8276 

(‘‘[W]e do not require that Comcast 

SportsNet Philadelphia be subject to 

[the program access] conditions to the 

extent it is not currently available to 

MVPDs. With regard to MVPDs that 

currently have contracts for SportsNet 

Philadelphia, both the program access 

and arbitration conditions will apply as 

set forth above.’’). 

56. Sports Programming in New York 

City. The Commission previously noted 

evidence that Cablevision withheld 

certain sports programming from RCN 

after Cablevision revised its distribution 

system from satellite to terrestrial 

delivery. See 2007 Program Access 

Order. RCN’s program access complaint 

regarding this dispute was denied 

because (i) the programming was 

terrestrially delivered and thus beyond 

the scope of the program access rules 

established pursuant to Section 

628(c)(2) and (ii) Cablevision did not 

change its distribution system from 

satellite to terrestrial delivery to evade 

the Commission’s rules. See RCN 

Telecom Servs. v. Cablevision Sys. 

Corp., 14 FCC Rcd 17093 (CSB, 1999), 

aff’d RCN Telecom Servs. v. Cablevision 

Sys. Corp., 16 FCC Rcd 12048 (2001). 

57. New England Cable News. The 

Commission previously noted claims 

that this terrestrially delivered, 

Comcast-affiliated regional news 

network had been withheld temporarily 

from RCN. See 2007 Program Access 

Order. 

58. CN8—The Comcast Network. The 

Commission previously noted claims 

that this terrestrially delivered, 

Comcast-affiliated local news and 

information channel is available only to 

Comcast and Cablevision subscribers 

and is withheld from competitors to 

incumbent cable operators. See id. 

59. iN DEMAND. The Commission 

previously noted claims that this 

terrestrially delivered, cable-affiliated 

network has been withheld from certain 

MVPD competitors. See id. 

3. Evidence of the Impact of Unfair Acts 

60. As discussed below, Commission 

action to address unfair acts involving 


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terrestrially delivered, cable-affiliated 

programming is also needed because (i) 

there is evidence suggesting that such 

conduct has significantly hindered 

MVPDs from providing satellite cable 

programming and satellite broadcast 

programming in some cases and (ii) by 

significantly hindering MVPDs from 

providing video programming to 

subscribers, such conduct may 

significantly hinder the ability of 

competitive MVPDs to provide 

broadband services, particularly in rural 

areas. 

a. Impact on Competition in the Video 

Distribution Market 

61. Our previous decisions, as well as 

the record here, demonstrate that unfair 

acts involving terrestrially delivered, 

cable-affiliated programming may 

‘‘hinder significantly’’ MVPDs from 

providing satellite cable programming 

and satellite broadcast programming in 

some cases, thereby harming 

competition in the video distribution 

market. See 2007 Program Access Order; 

Adelphia Order, 21 FCC Rcd at 8271. 

We note that AT&T and Verizon have 

submitted studies (some of which 

contain redacted information) and other 

evidence in the record of this 

proceeding to support their view that 

withholding of the MSG HD and Cox-4 

networks has had the purpose or effect 

that triggers Section 628(b). These 

studies and other evidence were 

submitted previously in pending 

complaint proceedings. We will assess 

the merits of those studies and other 

evidence in addressing the relevant 

complaints. 

62. In 2006, the Commission 

performed a regression analysis which 

concluded that Comcast’s withholding 

of the terrestrially delivered Comcast 

SportsNet Philadelphia RSN from DBS 

operators caused the percentage of 

television households subscribing to 

DBS in Philadelphia to be 40 percent 

lower than what it otherwise would 

have been. See Adelphia Order, 21 FCC 

Rcd at 8271; see also 2007 Program 

Access Order. The regression analysis 

also concluded that Cox’s withholding 

of the terrestrially delivered Cox-4 RSN 

from DBS operators in San Diego caused 

the percentage of television households 

subscribing to DBS in that city to be 33 

percent lower than it otherwise would 

have been. See Adelphia Order, 21 FCC 

Rcd at 8271; 2007 Program Access 

Order. This provides evidence that 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

can have the effect in some cases of 

significantly hindering MVPDs from 

providing satellite cable programming 

and satellite broadcast programming. 

63. The empirical model was based on 

the Wise and Duwadi model, which 

examines DBS penetration and the 

variables that affect it. See Andrew S. 

Wise and Kiran Duwadi, Competition 

between Cable Television and Direct 

Broadcast Satellite: The Importance of 

Switching Costs and Regional Sports 

Networks, 1 J. COMPETITION L. & 

ECON. 679 (2005). The data used in the 

analysis came from the Commission’s 

2005 Cable Price Survey, Nielsen Media 

Research, and Comcast and Time 

Warner filings. See Adelphia Order, 21 

FCC Rcd at 8344–47, App. D. In the 

2007 Program Access Order, the 

Commission responded to and refuted 

criticisms of the Commission’s 

regression analysis. 

64. We note that more than three 

years have passed since the Commission 

performed its regression analysis in the 

Adelphia Order regarding the impact of 

withholding of Comcast SportsNet 

Philadelphia and Cox-4 on the market 

shares of DBS operators in Philadelphia 

and San Diego, respectively. 

Commenters claim that there have been 

important developments in the video 

distribution markets in Philadelphia 

and San Diego since this time. Our 

reliance here on the Commission’s 

analysis in the Adelphia Order to 

conclude that unfair acts involving 

terrestrially delivered, cable-affiliated 

programming can significantly hinder 

MVPDs from providing video service in 

some cases should not be read to imply 

that withholding of Comcast SportsNet 

Philadelphia or Cox-4 is currently 

significantly hindering or preventing an 

MVPD from providing satellite cable 

programming or satellite broadcast 

programming in Philadelphia or San 

Diego, respectively. Rather, as discussed 

below, we establish a rebuttable 

presumption that an unfair act involving 

certain terrestrially delivered, cableaffiliated RSNs has the purpose or effect 

of significantly hindering or preventing 

an MVPD from providing satellite cable 

programming or satellite broadcast 

programming. A defendant to a program 

access complaint alleging an unfair act 

involving an RSN will have the 

opportunity to rebut this presumption. 

65. While the Commission concluded 

in the 1998 Program Access Order (63 

FR 45740, August 27, 1998) that the 

record developed in that proceeding did 

not demonstrate that unfair acts 

involving terrestrially delivered, cableaffiliated programming were having a 

‘‘significant anticompetitive effect,’’ that 

conclusion was based on the limited 

data that were available more than ten 

years ago. (In that decision, the 

Commission also noted that Congress 

was considering legislation at the time 

which, if enacted, would ‘‘introduce 

important changes to the program access 

provisions, including clarification of the 

Commission’s jurisdiction over 

terrestrially-delivered programming.’’ 

The Commission, however, never stated 

or implied that it did not have 

jurisdiction over such programming 

absent such clarification.) We now have 

evidence that unfair acts involving 

terrestrially delivered, cable-affiliated 

programming may well have the effect 

in some cases of significantly hindering 

MVPDs from providing all programming 

to subscribers and consumers. 

Moreover, while the Commission 

concluded in the 1998 Program Access 

Order that the record developed in that 

proceeding did not demonstrate that 

programming was being shifted from 

satellite to terrestrial delivery, the 

record here demonstrates that the MVPD 

marketplace has evolved, such that 

terrestrial distribution is becoming more 

cost effective and its use is likely to 

increase for new as well as established 

programming networks. Indeed, the 

record reflects that competitively 

significant networks, such as RSNs, are 

being delivered terrestrially today. 

66. Comcast argues that the 

percentage of vertically integrated 

programming networks affiliated with a 

cable operator has dropped from 57 

percent in 1992 to less than 15 percent 

today and contends that no program 

owner has market power. Moreover, 

cable operators contend that the digital 

transition will likely foster the 

development of more programming and 

that Internet programming is starting to 

develop as a competitive alternative. In 

addition, NCTA notes that competitors 

to incumbent cable operators market 

themselves as offering superior 

programming, and contends that such 

marketing undermines any justification 

for ‘‘retention of the existing regulation 

of cable-affiliated programming, let 

alone expansion of those regulations.’’ 

67. Accordingly, vertically integrated 

cable operators argue that MVPDs are 

not dependent on vertically integrated 

cable programming because multiple 

programming options exist. But that is 

not always the case. As the Commission 

concluded in the 2007 Program Access 

Order, cable operators own 

programming for which there may be no 

good substitutes, and this ‘‘must-have’’ 

programming is necessary for viable 

competition in the video distribution 

market. The Commission explained that 

this includes both satellite-delivered 

and terrestrially delivered programming. 

See 2007 Program Access Order 

(discussing withholding of terrestrially 

delivered, cable-affiliated RSNs in 

Philadelphia and San Diego). As the 


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Commission stated in the 2002 Program 

Access Order, ‘‘cable programming—be 

it news, drama, sports, music, or 

children’s programming—is not akin to 

so many widgets.’’ The salient point for 

purposes of Section 628(b) is not the 

total number of programming networks 

available or the percentage of these 

networks that are vertically integrated 

with cable operators, but rather the 

popularity of the particular 

programming that is withheld and how 

the inability of competitive MVPDs to 

access that programming in a particular 

local market may impact their ability to 

provide a commercially attractive 

MVPD service. See 2007 Program 

Access Order. 

68. Cable operators claim that unfair 

acts involving terrestrially delivered, 

cable-affiliated programming have not 

significantly hindered their competitors 

from providing satellite cable 

programming or satellite broadcast 

programming. For example, some 

commenters note that DBS operators 

continue to attract subscribers in San 

Diego and Philadelphia, despite the fact 

that cable operators in those markets 

have withheld the local RSN from the 

DBS operators. Cox and Cablevision also 

note that competitors to incumbent 

cable operators have entered the video 

distribution market despite the 

terrestrial loophole. Other commenters 

contend that withholding of certain 

terrestrially delivered, cable-affiliated 

programming, such as local news and 

community programming, does not raise 

competitive concerns. One new entrant 

MVPD, Verizon, urged the Commission 

to extend the program access rules only 

to (i) terrestrially delivered RSNs; and 

(ii) terrestrially delivered HD feeds of 

programming that is otherwise satellitedelivered. 

69. We believe that the cable 

operators’ general, sweeping claims are 

refuted by the Commission’s conclusion 

in the Adelphia Order that DBS market 

penetration was significantly reduced as 

a result of the denial of access to certain 

terrestrially delivered, cable-affiliated 

programming. See 2007 Program Access 

Order; Adelphia Order, 21 FCC Rcd at 

8271. We do not believe, however, that 

significant hindrance will result in 

every case. The Commission concluded 

in the Adelphia Order, based on the 

record evidence in that case, that lack of 

access to certain terrestrially delivered 

RSNs had a significant competitive 

impact. See 21 FCC Rcd at 8271 

(concluding that Comcast’s withholding 

of the terrestrially delivered Comcast 

SportsNet Philadelphia RSN from DBS 

operators caused the percentage of 

television households subscribing to 

DBS in Philadelphia to be 40 percent 

lower than what it otherwise would 

have been; concluding that Cox’s 

withholding of the terrestrially 

delivered Cox-4 RSN from DBS 

operators in San Diego caused the 

percentage of television households 

subscribing to DBS in that city to be 33 

percent lower than what it otherwise 

would have been); see also 2007 

Program Access Order. Lack of access to 

certain other programming, however, 

did not have a significant hindering 

effect. See Adelphia Order, 21 FCC Rcd 

at 8271–72 (concluding that 

withholding of a terrestrially delivered 

RSN in Charlotte did not show a 

statistically significant effect on 

predicted market share, and noting that 

the RSN showed the games of the 

Charlotte Bobcats, a relatively new team 

that did not yet have a strong enough 

following to induce large numbers of 

subscribers to switch MVPDs); id. at 

8279 (concluding that the record did not 

indicate that an MVPD’s lack of access 

to terrestrially delivered non-sports 

regional programming would harm 

competition or consumers). 

70. Thus, we believe that the potential 

impact on competition in some cases 

justifies a case-by-case consideration of 

the competitive impact of unfair acts 

involving specific terrestrially 

delivered, cable-affiliated programming. 

Rather than adopting a general 

conclusion about the effect of these 

unfair acts, we believe that case-by-case 

consideration of the impact on 

competition in the video distribution 

market is necessary to address whether 

unfair practices significantly hinder 

competition in particular cases. 

71. We note that the Commission 

adopted a different approach in the 

MDU Order, where it concluded that it 

would be unnecessarily burdensome for 

the Commission and parties to assess 

exclusive contracts between cable 

operators and MDU owners on a caseby-case basis. In that case, however, the 

Commission explained that ‘‘exclusivity 

clauses protect cable operators from 

competition in MDUs from new entrants 

into the MVPD business.’’ By definition, 

exclusive agreements in the MDU 

context prevent competitors from 

providing service. See also NCTA, 567 

F.3d at 664 (‘‘cable operators execute 

them precisely so that they can be the 

sole company serving a building. . .’’). 

Thus, the Commission categorically 

proscribes such agreements. In contrast, 

while some unfair acts involving 

terrestrially delivered, cable-affiliated 

programming can and historically have 

significantly hindered MVPDs from 

providing satellite cable programming 

and satellite broadcast programming, 

the record here indicates that others 

may not. Accordingly, a case-by-case 

approach to implementing Section 

628(b) is necessary in the present 

context based on the current record, 

whereas it was not necessary in the 

MDU Order. We note, however, that on 

an appropriate record the Commission 

would have authority to adopt a per se 

ban on particular unfair acts prohibited 

by Section 628(b). See 47 U.S.C. 548(b), 

(c)(1); NTCA, 567 F.3d 659. Nothing in 

this Order forecloses the Commission 

from adopting such a per se ban on 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

in the future. We will continue to 

monitor marketplace developments 

regarding terrestrially delivered, cableaffiliated programming, as well as the 

impact of the rules adopted in this 

Order on potential complainants. Based 

on these developments, we may initiate 

a new proceeding in the future that 

explores the adoption of a per se ban on 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

or certain classes of such programming. 

b. Impact on Ability To Provide 

Broadband Services 

72. Commission action to address 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

will have additional benefits, not 

specifically envisioned by Congress in 

1992, because such acts have the 

potential to limit the ability of MVPDs 

to provide broadband services, 

particularly in rural areas. The 

Commission has previously concluded 

that a wireline firm’s decision to deploy 

broadband is linked to its ability to offer 

video. See Implementation of Section 

621(A)(1) of the Cable Communications 

Policy Act of 1984 as Amended by the 

Cable Television Consumer Protection 

and Competition Act of 1992, Report 

and Order and Further Notice of 

Proposed Rulemaking, 22 FCC Rcd 

5101, 5132–33 (2006), aff’d., Alliance 

for Community Media v. FCC, 529 F.3d 

763 (6th Cir. 2008). Thus, by impeding 

the ability of MVPDs to provide video 

service, unfair acts involving 

terrestrially delivered, cable-affiliated 

programming can also impede the 

ability of MVPDs to provide broadband 

services. Allowing unfair acts involving 

terrestrially delivered, cable-affiliated 

programming to continue where they 

have this effect would undermine the 

goal of promoting the deployment of 

advanced services that Congress 

established as a priority for the 

Commission. See Telecommunications 

Act of 1996, Public Law 104–104, 

section 706, 110 Stat. 56, 153 (codified 

at 47 U.S.C. 157 note). This secondary 


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effect heightens the urgency for 

Commission action. 

73. We disagree with Cablevision’s 

contention that addressing the terrestrial 

loophole will not impact broadband 

deployment because AT&T and Verizon 

have already invested in broadband 

infrastructure. The record here contains 

no evidence that AT&T and Verizon 

have already deployed broadband 

networks throughout their service 

territories or that these providers will 

not face decisions regarding whether to 

upgrade existing networks. Moreover, 

Congress directed the Commission to 

promote the deployment of broadband 

throughout the nation, including in 

markets outside of the service areas of 

AT&T and Verizon. See American 

Recovery and Reinvestment Act of 2009, 

Public Law 111–5, 123 Stat. 115 (2009) 

(authorizing the Commission to create 

the National Broadband Plan that ‘‘shall 

seek to ensure that all people of the 

United States have access to broadband 

capability’’); Telecommunications Act of 

1996, Public Law 104–104, section 706, 

110 Stat. 56, 153 (codified at 47 U.S.C. 

157 nt. (2008)) (directing the 

Commission to ‘‘encourage the 

deployment on a reasonable and timely 

basis of advanced telecommunications 

capability to all Americans’’). 

c. Impact on Investment in 

Programming and Product 

Differentiation 

74. Vertically integrated cable 

operators argue that the Commission 

should refrain from addressing denials 

of terrestrially delivered, cable-affiliated 

programming because exclusive 

distribution contracts for this 

programming can promote investment 

in programming and product 

differentiation. Advance/Newhouse 

notes that it has developed regional 

non-sports programming that is 

terrestrially delivered and therefore not 

subject to the program access rules 

applicable to satellite-delivered 

programming. Advance/Newhouse 

states that its affiliated cable operators 

offer this programming exclusively, 

thereby differentiating their service 

offerings from MVPD competitors. 

Advance/Newhouse contends that 

applying program access requirements 

to this programming would force its 

affiliated cable operators to share this 

programming with their competitors, 

thereby eliminating any economic 

incentive to create this programming. 

Advance/Newhouse states that it is 

unlikely to continue investing in such 

programming unless its affiliated cable 

operators can offer the programming on 

an exclusive basis. 

75. We note that the Commission in 

the 2007 Program Access Order found 

unpersuasive arguments that the 

program access rules, including the 

exclusive contract prohibition, have 

reduced the incentives for cable 

operators and competitive MVPDs to 

create and invest in programming. 

While cable operators claim without 

empirical support that regional 

networks are less likely to be created if 

they are subject to the complaint 

procedure established in this Order, we 

find no basis for assuming that the 

impact of the case-by-case approach 

adopted here on the incentives to create 

programming will be different than the 

impact of the per se rule applicable to 

satellite-delivered programming. The 

Commission noted that the number of 

vertically integrated satellite-delivered 

national programming networks has in 

fact more than doubled since 1994 when 

the rule implementing the exclusive 

contract prohibition took effect. See 

2007 Program Access Order. While 

evidence was submitted in that 

proceeding that the percentage of 

vertically integrated satellite-delivered 

national programming networks had 

decreased over time, competitive 

MVPDs characterized the decrease as 

‘‘meaningless because it is attributable to 

an increase in the number of total 

programming networks available, most 

of which they contend have minimal 

subscriber bases and are targeted 

towards niche markets.’’ See id. 

Competitive MVPDs argued that the 

more relevant fact was the control of 

cable MSOs over ‘‘must have’’ 

programming, access to which is 

necessary to compete in the video 

distribution market. See id. The 

Commission agreed: ‘‘What is most 

significant to our analysis is not the 

percentage of total available 

programming that is vertically 

integrated with cable operators, but 

rather the popularity of programming 

that is vertically integrated and how the 

inability of competitive MVPDs to 

access this programming will affect the 

preservation and protection of 

competition in the video distribution 

marketplace.’’ See id. A similar analysis 

applies to the present matter, given our 

goal of increasing competition and 

diversity in the video distribution 

market. In addition, while vertically 

integrated cable operators claim that 

exclusive deals and other unfair acts are 

justified because they allow a cable 

operator to differentiate its services from 

other MVPDs, Section 628(b) 

specifically precludes such acts where 

they have the purpose or effect set forth 

in Section 628(b). 

76. In sum, Sections 628(b) and 

628(c)(1) of the Act give the 

Commission authority to address unfair 

acts of cable operators that have the 

purpose or effect of hindering 

significantly or preventing any MVPD 

from providing ‘‘satellite cable 

programming or satellite broadcast 

programming to subscribers or 

consumers.’’ 47 U.S.C. 548(b); see 47 

U.S.C. 548(c)(1). The focus of the statute 

is not on the ability of an MVPD to 

provide a particular terrestrially 

delivered programming network, but on 

the ability of the MVPD to compete in 

the video distribution market by selling 

satellite cable and satellite broadcast 

programming to subscribers and 

consumers. To be sure, unfair acts 

involving terrestrially delivered, cableaffiliated programming generally do not 

absolutely bar an MVPD from providing 

satellite cable programming or satellite 

broadcast programming to subscribers or 

consumers. For example, an incumbent 

cable operator’s exclusive contract with 

a terrestrially delivered, cable-affiliated 

RSN does not totally preclude a rival 

MVPD from providing other 

programming, including satellite cable 

programming and satellite broadcast 

programming, to subscribers or 

consumers. 

77. As discussed above, however, in 

some cases the effect of denying an 

MVPD the ability to provide certain 

terrestrially delivered, cable-affiliated 

programming may be to significantly 

hinder the MVPD from providing video 

programming in general, including 

satellite cable programming and satellite 

broadcast programming, as well as 

terrestrially delivered programming. See 

2007 Program Access Order; Adelphia 

Order, 21 FCC Rcd at 8271. The result 

of this conduct may be to discourage 

MVPDs from entering new markets or to 

limit the ability of MVPDs to provide a 

competitive alternative to the 

incumbent cable operator. The 

reduction in robust competition in the 

video distribution market that results 

may allow cable operators to raise rates 

and to refrain from innovating, thereby 

adversely impacting consumers. 

Consumers Union, for instance, asserts 

that large cable operators use the 

terrestrial loophole ‘‘to hold consumers 

hostage * * *.’’ This is consistent with 

the Commission’s analysis in the MDU 

Order. In that decision, the Commission 

found that exclusivity clauses 

significantly hinder MVPDs from 

providing satellite cable programming 

and satellite broadcast programming 

throughout a market, including to 

subscribers who do not reside in MDUs, 

because exclusivity clauses ‘‘deter[ ] 


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new entry into the MVPD market in 

many areas because they put a 

significant number of new customers off 

limits to new entrants.’’ MDU Order 

(‘‘Even if exclusivity clauses do not 

completely bar new entrants from the 

MVPD market everywhere, they 

foreclose new entrants from many 

millions of households, a significant 

part of the national marketplace. Such 

clauses could therefore deter new 

entrants from attempting to enter the 

market in many areas.’’). 

78. In addition to satisfying the plain 

language of Section 628(b), our action 

here will also further the goals 

established by Congress in Sections 

628(a) and 628(c)(1) of the Act. See 47 

U.S.C. 548(a), (c)(1); 1993 Program 

Access Order, 8 FCC Rcd at 3360. First, 

our action will increase competition and 

diversity in the video distribution 

market by providing MVPDs with an 

opportunity to obtain access to certain 

cable-affiliated programming that they 

are currently unable to offer. See 47 

U.S.C. 548(a), (c)(1). Second, our action 

will increase the availability of satellite 

cable programming and satellite 

broadcast programming to persons in 

rural and unserved areas by eliminating 

a barrier to entry in the video 

distribution market. See 47 U.S.C. 

548(a). Third, our action will spur the 

development of communications 

technologies by promoting the provision 

of broadband services by MVPDs. See 47 

U.S.C. 548(a), (c)(1). 

C. Constitutional Issues 

79. We conclude that addressing 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

on a case-by-case basis comports with 

the First Amendment. As the D.C. 

Circuit explained in rejecting a facial 

challenge to the constitutionality of the 

program access provisions dictated by 

Section 628(c)(2) and applicable to 

satellite-delivered, cable-affiliated 

programming, these provisions will 

survive intermediate scrutiny if they 

‘‘further[ ] an important or substantial 

governmental interest; if the 

governmental interest is unrelated to the 

suppression of free expression; and if 

the incidental restriction on alleged 

First Amendment freedoms is no greater 

than is essential to the furtherance of 

that interest.’’ Time Warner 

Entertainment Co. L.P. v. FCC, 93 F.3d 

957, 978 (D.C. Cir. 1996) (quoting 

Turner Broadcasting System, Inc. v. 

FCC, 512 U.S. 622, 662 (1994) (quoting 

United States v. O’Brien, 391 U.S. 367, 

377 (1968))). We conclude that the rules 

we adopt today with respect to 

terrestrially delivered, cable-affiliated 

programming comport with the First 

Amendment. 

80. First, in Time Warner, the court 

found that the governmental interest 

Congress intended to serve in enacting 

the program access provisions was ‘‘the 

promotion of fair competition in the 

video marketplace,’’ and that this 

interest was substantial. Id. Moreover, 

one of Congress’ express findings in 

enacting the 1992 Cable Act was that 

‘‘[t]here is a substantial governmental 

and First Amendment interest in 

promoting a diversity of views provided 

through multiple technology media.’’ 

1992 Cable Act, § 2(a)(6). Additionally, 

the court noted Congress’ conclusion 

that ‘‘the benefits of these provisions— 

the increased speech that would result 

from fairer competition in the video 

programming marketplace—outweighed 

the disadvantages [resulting in] the 

possibility of reduced economic 

incentives to develop new 

programming.’’ Time Warner, 93 F.3d at 

979 (citing S. Rep. No. 102–92 (1991), at 

26–28, reprinted in 1992 U.S.C.C.A.N. 

1133, 1159–61). We find that this 

governmental interest remains 

substantial today. As the Commission 

concluded in the 2007 Program Access 

Order, cable operators still have a 

dominant share of MVPD subscribers, 

there is evidence that cable prices have 

risen in excess of inflation, and cable 

operators still own significant 

programming. These factors lead us to 

believe that regulations intended to 

promote competition in the video 

distribution market in accordance with 

the objectives of Congress are still 

warranted. Our decision here furthers 

this substantial governmental interest by 

providing competitive MVPDs with an 

opportunity to obtain access to certain 

cable-affiliated programming that they 

are currently unable to offer, thereby 

promoting competition in the video 

distribution market for the benefit of 

consumers. 

81. We note that a federal court of 

appeals in recently vacating the 

Commission’s horizontal cable 

ownership cap stated that competition 

has increased in the video distribution 

market since the 1992 Cable Act was 

passed. See Comcast Corp. v. FCC, 579 

F.3d 1, 8 (D.C. Cir. 2009). While 

competition has increased since the 

1992 Cable Act was passed, cable 

operators still control close to twothirds of all pay television subscribers, 

and their market share exceeds 70 

percent in many markets. Accordingly, 

we believe that promoting competition 

in the video marketplace remains a 

substantial governmental interest. See 

2007 Program Access Order. 

82. Second, in Time Warner, the court 

held that the governmental objective 

served by the statutory program access 

provisions was unrelated to the 

suppression of free expression. See 93 

F.3d at 978 (‘‘[T]he vertically integrated 

programming provisions apply to only a 

limited number of companies for a 

perfectly legitimate reason: The antitrust 

concerns underlying the statute arise 

precisely because the number of 

vertically integrated companies is small. 

The vertically integrated programmer 

provisions are thus not ‘structured in a 

manner that raise[s] suspicions that 

their objective was, in fact, the 

suppression of certain ideas.’ ’’ (quoting 

Turner, 512 U.S. at 660)). Similarly, our 

decision to address unfair acts involving 

terrestrially delivered, cable-affiliated 

programming on a case-by-case basis is 

not based on programming content but 

is instead intended to address 

significant hindrances to competition in 

the video distribution market. It 

responds to concerns about competition, 

not content. Thus, the regulations are 

content-neutral and unrelated to the 

suppression of free speech. 

83. Third, any alleged restriction on 

speech resulting from our decision ‘‘is 

no greater than is essential to the 

furtherance’’ of Congress’ interest in 

promoting competition in the video 

distribution market. Id. The analysis in 

Time Warner applies here as well. 

Indeed, Time Warner upheld as 

narrowly tailored the categorical, 

prophylactic program access rules, 

whereas here we adopt a tailored caseby-case approach that examines actual 

competitive harms in each instance. 

Noting the Commission’s decision in the 

2007 Program Access Order, Comcast 

contends that applying an exclusive 

contract prohibition to all cableaffiliated programming is overinclusive 

because it regulates at least some 

programming that is not competitively 

significant. But that argument 

misconceives the action we take today. 

In the 2007 Program Access Order, the 

Commission was implementing Section 

628(c)(2)(D), which establishes a broad 

prophylactic rule that subjects all 

satellite-delivered, cable-affiliated 

programming to an exclusive contract 

prohibition, subject to a procedure 

whereby individual programmers can 

seek Commission approval to enter into 

exclusive arrangements. See 47 U.S.C. 

548(c)(2)(D), 548(c)(4). Here, we are not 

implementing the statutory scheme set 

forth in Section 628(c)(2)(D). Rather, we 

act pursuant to Sections 628(b) and 

628(c)(1), which give the Commission 

broad authority to adopt rules to address 

unfair acts of cable operators that have 


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the purpose or effect of hindering 

significantly any MVPD from providing 

satellite cable programming or satellite 

broadcast programming. See 47 U.S.C. 

548(b), (c)(1). We decline to adopt a 

broad prophylactic rule that subjects all 

terrestrially delivered, cable-affiliated 

programming to the program access 

rules because we lack sufficient record 

evidence to reach general conclusions 

that unfair acts involving terrestrially 

delivered, cable-affiliated programming 

will always prevent or significantly 

hinder an MVPD from providing video 

services. Rather, we adopt rules 

whereby the Commission will consider 

on a case-by-case basis whether an 

unfair act involving terrestrially 

delivered, cable-affiliated programming 

has the purpose or effect of preventing 

or significantly hindering an MVPD 

from providing satellite cable 

programming or satellite broadcast 

programming to subscribers or 

consumers, as required by Section 

628(b). The complaint process we 

establish today requires showings over 

and above those required by the 

program access rules applicable to 

satellite-delivered programming, and 

these additional showings (including a 

purpose or effect of preventing or 

significantly hindering an MVPD from 

providing satellite cable or satellite 

broadcast programming) prevent 

overinclusiveness. In short, our action 

today addresses any legitimate concerns 

about tailoring by adopting a case-bycase evaluation rather than a broad 

prophylactic rule. 

84. Again noting the Commission’s 

decision in the 2007 Program Access 

Order, Comcast contends that an 

exclusive contract prohibition that 

covers only cable-affiliated 

programming is underinclusive because 

it exempts programmers affiliated with 

non-cable MVPDs and unaffiliated 

programmers that may offer ‘‘must have’’ 

programming. We are in fact 

considering in this proceeding whether 

to expand the exclusive contract 

prohibition to apply to programmers 

affiliated with non-cable MVPDs. See 

NPRM. We do not resolve this issue in 

this Order. We also note that programaccess-type conditions already apply to 

DIRECTV by virtue of its merger with 

Liberty Media. See Liberty/DIRECTV 

Order, 23 FCC Rcd 3265, 3340–41, 

Appendix B, section III (2008). Finally, 

with respect to unaffiliated 

programmers, the Commission in the 

2007 Program Access Order found no 

record evidence to conclude that 

exclusive arrangements involving 

unaffiliated programmers have harmed 

competition in the video distribution 

market. Commenters offer no evidence 

in the record of this proceeding that 

would cause us to revisit this 

conclusion. While some commenters 

express concern with DIRECTV’s 

exclusive arrangements for certain outof-market, non-regional sports 

programming, they fail to provide 

evidence in the record of this 

proceeding of any harm to competition 

resulting from these arrangements. 

D. Complaint Filing Requirements 

85. In this Section, we review the 

types of complaints that MVPDs may 

file regarding unfair acts involving 

terrestrially delivered, cable-affiliated 

programming pursuant to the rules we 

establish in this Order. The rules we 

adopt herein do not limit the right of 

aggrieved parties to file complaints 

pursuant to Section 628(d) alleging 

other violations of Section 628(b). See 

47 U.S.C. 548(d). We also discuss below 

four related ways in which the rules we 

adopt to address unfair acts involving 

terrestrially delivered, cable-affiliated 

programming differ from the program 

access rules applied to satellitedelivered, cable-affiliated programming: 

(i) There is no per se prohibition on 

exclusive contracts between a cable 

operator and a cable-affiliated 

programmer that provides terrestrially 

delivered programming; rather, the 

Commission will assess such contracts 

on a case-by-case basis in response to a 

program access complaint; (ii) a 

complainant alleging an unfair act 

involving terrestrially delivered, cableaffiliated programming will have the 

burden of proof (sometimes with the aid 

of a presumption, as explained below) 

that the defendant’s activities have the 

purpose or effect of hindering 

significantly or preventing the 

complainant from providing satellite 

cable programming or satellite broadcast 

programming to subscribers or 

consumers; (iii) in program access 

complaints alleging discrimination by a 

cable-affiliated programmer that 

provides terrestrially delivered 

programming (rather than an entity 

specifically listed in Section 628(b)), the 

complainant shall have the additional 

burden of proof that the programmer 

that is alleged to have engaged in 

discrimination is wholly owned by, 

controlled by, or under common control 

with the defendant cable operator or 

cable operators, satellite cable 

programming vendor or vendors in 

which a cable operator has an 

attributable interest, or satellite 

broadcast programming vendor or 

vendors; and (iv) defendants will have 

45 days—rather than the usual 20 

days—from the date of service of a 

program access complaint involving 

terrestrially delivered, cable-affiliated 

programming to file an Answer to the 

complaint. 

1. Types of Claims 

86. Section 628(c)(1) gives the 

Commission authority to adopt 

regulations defining ‘‘particular 

conduct’’ that is within the scope of the 

‘‘unfair methods of competition or unfair 

or deceptive acts or practices’’ 

prohibited by Section 628(b). 47 U.S.C. 

548(b), (c)(1). In Section 628(c)(2), 

Congress itself defined certain conduct 

that must be included in the 

Commission’s implementing 

regulations. Congress thereby made a 

conclusive legislative judgment that the 

categories of conduct involving satellitedelivered programming that are 

enumerated in Section 628(c)(2) satisfy 

the requirements of Section 628(b), 

including the requirement of 

constituting an ‘‘unfair method[] of 

competition or unfair or deceptive act[] 

or practice[].’’ 47 U.S.C. 548(b). The 

unfair or deceptive conduct that 

Congress specifically identified in 

Section 628(c)(2) is: (i) An exclusive 

contract between a cable operator and a 

cable-affiliated programmer (see 47 

U.S.C. 548(c)(2)(C)–(D)); (ii) 

discrimination by a cable-affiliated 

programmer in the prices, terms, and 

conditions for sale of programming 

among MVPDs (see 47 U.S.C. 

548(c)(2)(B)); and (iii) efforts by a cable 

operator to unduly influence the 

decision of its affiliated programmer to 

sell programming to a competitor (see 

47 U.S.C. 548(c)(2)(A)). In the 1993 

Program Access Order, the Commission 

explained that the undue or improper 

influence provision of the program 

access rules ‘‘can play a supporting role 

where information is available (such as 

might come from an internal 

‘whistleblower’) that evidences ‘undue 

influence’ between affiliated firms to 

initiate or maintain anticompetitive 

discriminatory pricing, contracting, or 

product withholding. Although such 

conduct may be difficult for the 

Commission or complainants to 

establish, its regulation provides a 

useful support for direct discrimination 

and contracting regulation.’’ See 8 FCC 

Rcd at 3424. 

87. In this Order, we adopt rules 

specifically permitting complainants to 

pursue case-by-case claims involving 

conduct with respect to terrestrially 

delivered, cable-affiliated programming 

that is similar to the categorically 

prohibited conduct concerning satellitedelivered, cable-affiliated programming. 

We determine that this conduct 

constitutes ‘‘unfair methods of 


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competition or unfair or deceptive acts 

or practices’’ under Section 628(b). 

Congress has already established that 

these can be unfair acts for purposes of 

Section 628(b) by including them in 

Section 628(c)(2). The record here, 

moreover, indicates that these acts 

involving terrestrially delivered 

programming—like comparable acts 

involving satellite-delivered 

programming—have the potential to 

impede entry into the video distribution 

market and to hinder existing 

competition in the market. See MDU 

Order. We note that our determination 

here is consistent with the MDU Order, 

in which the Commission generally 

defined an ‘‘unfair method of 

competition or unfair act or practice’’ to 

include an act that ‘‘can be used to 

impede the entry of competitors into the 

market and foreclose competition based 

on the quality and price of competing 

service offerings.’’ Id. (‘‘[A]lthough we 

have never specifically defined what 

constitutes an ‘unfair method of 

competition’ or ‘unfair * * * act or 

practice’ beyond that conduct 

specifically proscribed in Section 

628(c)(2), we have recognized that there 

is additional conduct that could be 

proscribed under Section 628(b). * * * 

[T]he use of an exclusivity clause by a 

cable operator to ‘lock up’ a MDU owner 

is an unfair method of competition or 

unfair act or practice because it can be 

used to impede the entry of competitors 

into the market and foreclose 

competition based on the quality and 

price of competing service offerings.’’ 

(citations omitted)). 

88. Cablevision asks the Commission 

to add an additional element to the 

definition of an ‘‘unfair act,’’ specifically 

that the ‘‘conduct complained of was 

undertaken other than in pursuit of 

legitimate business or competitive 

purposes.’’ The Commission did not 

include this additional element in the 

MDU Order when it previously defined 

the term ‘‘unfair act’’ for purposes of 

Section 628(b). In that decision, despite 

acknowledging that contracts granting 

cable operators exclusive access to 

MDUs may have legitimate business 

purposes, such as helping to obtain 

financing to wire an entire building, the 

Commission nonetheless concluded that 

such contracts are ‘‘unfair acts’’ because 

they ‘‘can be used to impede the entry 

of competitors into the market and 

foreclose competition based on the 

quality and price of competing service 

offerings.’’ See id. 

89. We thus conclude that actions by 

cable operators, satellite cable 

programming vendors in which a cable 

operator has an attributable interest, or 

satellite broadcast programming vendors 

involving terrestrially delivered, cableaffiliated programming that would be 

prohibited by the program access rules 

under Section 628(c)(2) but for the 

terrestrial loophole (i.e., exclusive 

contracts, discrimination, and undue or 

improper influence) are ‘‘unfair methods 

of competition or unfair or deceptive 

acts or practices’’ within the meaning of 

Section 628(b). We note that there may 

be other acts or practices that are ‘‘unfair 

methods of competition or unfair acts or 

practices’’ under Section 628(b). See, 

e.g., MDU Order (holding that the use of 

an exclusivity clause by a cable operator 

to ‘‘lock up’’ an MDU owner is an unfair 

method of competition). This Order 

pertains only to exclusive contracts, 

discrimination, and undue or improper 

influence involving programming that is 

both terrestrially delivered and, 

consistent with Section 628(c)(2), cableaffiliated. We do not reach any 

conclusions in this Order, nor do we 

foreclose potential complaints, 

regarding other acts that may be ‘‘unfair 

methods of competition or unfair acts or 

practices’’ under Section 628(b). For 

example, the rules established by this 

Order do not address exclusive 

contracts between a cable operator and 

a non-cable-affiliated programmer. 

90. Accordingly, an MVPD may 

initiate a complaint proceeding alleging 

that a cable operator, a satellite cable 

programming vendor in which a cable 

operator has an attributable interest, or 

a satellite broadcast programming 

vendor has engaged in one or more of 

these three unfair acts involving 

terrestrially delivered, cable-affiliated 

programming, with the purpose or effect 

of preventing or significantly hindering 

an MVPD from providing satellite cable 

programming or satellite broadcast 

programming to subscribers or 

consumers. Cable operators argue that a 

‘‘cable operator’’ and a ‘‘satellite cable 

programming vendor’’ cannot violate 

Section 628(b) by withholding terrestrial 

programming. They claim that these 

entities are ‘‘captured’’ by Section 628(b) 

only to the extent that they are engaged 

in activities that meet the statutory 

definition of ‘‘cable operator’’ and 

‘‘satellite cable programming vendor’’ 

(which do not include distribution of 

terrestrial programming). See 47 U.S.C. 

522(5) (‘‘the term ‘cable operator’ means 

any person or group of persons (A) who 

provides cable service over a cable 

system and directly or through one or 

more affiliates owns a significant 

interest in such cable system, or (B) who 

otherwise controls or is responsible for, 

through any arrangement, the 

management and operation of such a 

cable system’’); 548(i)(2) (the ‘‘term 

‘satellite broadcast programming 

vendor’ means a person engaged in the 

production, creation, or wholesale 

distribution for sale of satellite cable 

programming, but does not include a 

satellite broadcast programming 

vendor’’); see also 47 U.S.C. 522(6) 

(defining ‘‘cable service’’); 522(7) 

(defining ‘‘cable system’’); 548(i)(1) 

(defining ‘‘satellite broadcast 

programming’’). They claim that to the 

extent they are engaged in other 

activities, such as the distribution of 

terrestrial programming, they are not 

covered under that section. This 

argument effectively reads into the 

statute an additional condition that is 

not there. Nothing in the statute 

excludes an otherwise covered entity 

from the reach of Section 628(b) simply 

because the conduct at issue is not 

covered by the statutorily defined 

activities of a ‘‘cable operator’’ or 

‘‘satellite cable programming vendor.’’ 

To the contrary, under Section 628(b), 

so long as the provider itself meets the 

statutory definition of a covered entity, 

it is prohibited from engaging in any 

unfair or deceptive acts or practices that 

hinder significantly or prevent any 

MVPD from providing satellite cable or 

satellite broadcast programming to 

consumers. In contrast, when Congress 

intends to restrict the circumstances 

under which an entity is covered under 

a category of providers, it has done so 

expressly. See 47 U.S.C. 153(44) (‘‘A 

telecommunications carrier shall be 

treated as a common carrier under this 

Act only to the extent that it is engaged 

in providing telecommunications 

services’’). There is no such restriction 

contained in Section 628(b). For this 

reason, we reject this argument. 

91. While our program access 

procedural rules provide a defendant 

with 20 days after service to file an 

Answer to a complaint (see 47 CFR 

76.1003(e)), we will provide the 

defendant with 45 days from the date of 

service of the complaint to file an 

Answer to a complaint involving 

terrestrially delivered programming to 

ensure that the defendant has adequate 

time to develop a response. We believe 

that additional time is appropriate 

because program access complaints 

involving terrestrially delivered 

programming, unlike complaints 

involving satellite-delivered 

programming, entail an additional 

factual inquiry regarding whether the 

unfair act has the purpose or effect set 

forth in Section 628(b). With the 

exception of the additional burdens 

described below and the additional time 

for defendants to file an Answer, these 

proceedings will be subject to the same 


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procedures set forth in Sections 76.7 

and 76.1003 of the Commission’s rules 

that apply to program access complaints 

involving satellite-delivered, cableaffiliated programming. 47 CFR 76.7, 

76.1003. Among other things, these 

rules provide for pre-filing notices, 

discovery, remedies, potential defenses, 

and the required contents of and 

deadlines for filing the complaint, 

answer, and reply. See id.; see generally 

1993 Program Access Order, 8 FCC Rcd 

3359. We remind potential 

complainants that filing a frivolous 

program access complaint is unlawful 

and an abuse of process subject to 

sanctions. See 47 CFR 76.6(c); see also 

47 U.S.C. 548(f)(3); 1993 Program 

Access Order, 8 FCC Rcd at 3426–28; 

1998 Biennial Regulatory Review, 

Report and Order, 1999 WL 4984 (1999) 

(adopting 47 CFR 76.6(c)). 

2. Additional Burdens in Program 

Access Complaint Proceedings Alleging 

Unfair Acts Involving Terrestrially 

Delivered, Cable-Affiliated 

Programming 

92. We are adopting rules to address 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

pursuant to the authority Congress 

provided the Commission in Sections 

628(b) and 628(c)(1) of the Act. Unlike 

the program access rules for satellitedelivered programming, which the 

Commission adopted pursuant to 

Section 628(c)(2), Section 628(b) 

requires that the ‘‘purpose or effect’’ of 

the unfair act is ‘‘to hinder significantly 

or to prevent any multichannel video 

programming distributor from providing 

satellite cable programming or satellite 

broadcast programming to subscribers or 

consumers.’’ 47 U.S.C. 548(b); see 2002 

Program Access Order (‘‘Section 628(b) 

addresses ‘unfair or deceptive acts or 

practices’ generally and carries with it 

an added burden ‘to demonstrate that 

the purpose or effect of the conduct 

complained of was to ‘hinder 

significantly or to prevent’ an MVPD 

from providing programming to 

subscribers or customers.’ ’’ (quoting 

1993 Program Access Order, 8 FCC Rcd 

at 3377–78)). The unfair acts listed in 

Section 628(c)(2) pertaining to satellitedelivered programming are presumed to 

harm competition, and complainants 

alleging such unfair acts are not 

required to demonstrate harm. See 1993 

Program Access Order, 8 FCC Rcd at 

3377–78; see also Implementation of 

Sections 12 and 19 of the Cable 

Television Consumer Protection and 

Competition Act of 1992: Development 

of Competition and Diversity in Video 

Programming Distribution and Carriage, 

Memorandum Opinion and Order on 

Reconsideration of the First Report and 

Order, 10 FCC Rcd 1902, 1930 (1994). 

93. Accordingly, to run afoul of 

Section 628(b), an unfair act involving 

terrestrially delivered, cable-affiliated 

programming (which, as defined in this 

Order, includes an exclusive contract, 

discrimination, or undue or improper 

influence) must have the purpose or 

effect of hindering significantly or 

preventing the complainant from 

providing satellite cable programming 

or satellite broadcast programming to 

subscribers or consumers. The 

prohibition in Section 628(b) makes 

unlawful any unfair or deceptive act or 

practice that has the ‘‘purpose or effect’’ 

of hindering significantly or preventing 

competitors from providing service. 47 

U.S.C. 548(b). Under the broad language 

of the statute, a case involving only a 

prohibited purpose, even without a 

likelihood of material effects, may 

nonetheless support a finding of a 

violation of Section 628(b). In the 

antitrust context, however, courts have 

found that a ‘‘desire to crush a 

competitor, standing alone, is 

insufficient to make out a violation of 

the antitrust laws.’’ Ocean State 

Physicians Health Plan v. Blue Cross & 

Blue Shield, 883 F.2d 1101, 1113 (1st 

Cir. 1989), cert. denied, 494 U.S. 1027 

(1990); see also Wisconsin Music 

Network v. Muzak Ltd. P’ship, 5 F.3d 

218, 222 (7th Cir. 1993) (under rule of 

reason standard in antitrust context, 

‘‘the factfinder must determine from all 

of the circumstances of a case whether 

a practice unreasonably restrains 

competition’’); Alliance Shippers v. 

Southern Pac. Transp. Co., 858 F.2d 

567, 570 (9th Cir. 1988) (essential 

element in antitrust context is injury to 

competition); United States Football 

League v. NFL, 842 F.2d 1335, 1359 (2d 

Cir. 1988) (‘‘hopes and dreams alone 

cannot support a Section 2 claim of 

monopolization’’). We leave for another 

day the question whether some 

additional showing analogous to that 

required under the antitrust standard 

should be required when a complainant 

under Section 628(b) alleges only a 

prohibited purpose to hinder or prevent 

competition, and not a prohibited effect. 

94. For most terrestrially delivered, 

cable-affiliated programming, the record 

contains no evidence that unfair acts 

involving such programming generally 

have the purpose or effect of 

significantly hindering or preventing 

MVPDs from providing satellite cable 

programming or satellite broadcast 

programming. Nonetheless, such an act 

may have the purpose or effect set forth 

in Section 628(b) in a particular case, 

especially given predictions that 

programming will increasingly shift to 

terrestrial delivery. Accordingly, in a 

program access complaint alleging an 

unfair act involving terrestrially 

delivered, cable-affiliated programming, 

the complainant will have the burden of 

proving that the unfair act has the 

purpose or effect of significantly 

hindering or preventing the MVPD from 

providing satellite cable programming 

or satellite broadcast programming. This 

burden under Section 628(b) is in 

addition to any other burdens imposed 

by the Commission’s rules on a 

complainant pursuing a program access 

complaint regarding an exclusive 

contract, discrimination, or undue or 

improper influence. See 47 CFR 

76.1003; see also 1993 Program Access 

Order, 8 FCC Rcd at 3390 (discussing 

complainant’s burden in a program 

access complaint alleging an exclusive 

contract); id. at 3416–17 (discussing 

complainant’s burden in a program 

access complaint alleging 

discrimination); id. at 3425 (discussing 

complainant’s burden in a program 

access complaint alleging undue or 

improper influence). 

95. We note that to satisfy its burden, 

a complainant cannot, consistent with 

the statute, simply rely on the fact that 

some impairment to providing service 

may have occurred because of its lack of 

access to cable-affiliated, terrestrially 

delivered programming. Cf. AT&T Corp. 

v. Iowa Utilities Bd., 525 U.S. 366, 389 

(1999). Rather, the statute requires a 

complainant to show that it was 

‘‘hindered significantly’’ or ‘‘prevented’’ 

from providing service. We will thus 

review individual complaints in light of 

the higher standard imposed under 

Section 628(b). It is not our intent, 

moreover, to remove incentives for 

MVPDs to improve their program 

offerings in order to differentiate 

themselves in the marketplace as long as 

such efforts do not have the purpose or 

effect of significantly hindering or 

preventing an MVPD from providing 

satellite cable programming or satellite 

broadcast programming. For example, 

we believe it highly unlikely that an 

unfair act involving local news and 

local community or educational 

programming will have the prescribed 

purpose or effect under Section 628(b). 

Unlike RSN programming, local news 

and local community or educational 

programming is readily replicable by 

competitive MVPDs. Indeed, the record 

indicates that at least one competitive 

MVPD, Verizon, has created its own 

local news channels. Moreover, the 

Commission previously found that 

exclusivity plays an important role in 

the growth and viability of local cable 

news networks and that permitting such 


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exclusivity ‘‘should not * * * dissuade 

new MVPDs from developing their own 

competing regional programming 

services.’’ See New England Cable News 

Channel, Memorandum Opinion and 

Order, 9 FCC Rcd 3231, 3236 and 3237 

(1994). 

96. We do identify one class of 

programming that, as shown by both 

Commission precedent and record 

evidence in this proceeding, is very 

likely to be both non-replicable and 

highly valued by consumers. In the 

Adelphia Order, the Commission 

analyzed the impact of the withholding 

of three terrestrially delivered, cableaffiliated RSNs on the market shares of 

DBS operators. In two cases, the 

Commission found a significant impact 

on predicted market share. See 

Adelphia Order, 21 FCC Rcd at 8271 

(concluding that Comcast’s withholding 

of the terrestrially delivered Comcast 

SportsNet Philadelphia RSN from DBS 

operators caused the percentage of 

television households subscribing to 

DBS in Philadelphia to be 40 percent 

lower than what it otherwise would 

have been; concluding that Cox’s 

withholding of the terrestrially 

delivered Cox-4 RSN from DBS 

operators in San Diego caused the 

percentage of television households 

subscribing to DBS in that city to be 33 

percent lower than what it otherwise 

would have been); see also 2007 

Program Access Order (addressing 

comments concerning the Adelphia 

Order study). In the third case, the 

Commission found no statistically 

significant impact where the RSN 

showed the games of a relatively new 

team ‘‘that did not yet have a strong 

enough following to induce large 

numbers of subscribers to switch 

MVPDs.’’ See Adelphia Order, 21 FCC 

Rcd at 8271–72 (concluding that 

withholding of a terrestrially delivered 

RSN in Charlotte did not show a 

statistically significant effect on 

predicted market share). Other evidence 

supports the conclusion that RSNs 

typically offer non-replicable content 

and are considered ‘‘must have’’ 

programming by MVPDs. See 2007 

Program Access Order; Liberty/ 

DIRECTV Order, 23 FCC Rcd at 3305 

and 3306–07; Adelphia Order, 21 FCC 

Rcd at 8258–59; News/Hughes Order, 19 

FCC Rcd 473, 535 (2004). Both the 

Commission and commenters have 

noted that RSN programming is unique 

and cannot be duplicated. See Adelphia 

Order, 21 FCC Rcd at 8287; News/ 

Hughes Order, 19 FCC Rcd at 535. The 

Commission on two prior occasions has 

extended the sunset date of the per se 

ban established by Congress on 

exclusive contracts involving satellitedelivered, cable-affiliated programming. 

See generally 2002 Program Access 

Order (extending the exclusive contract 

prohibition until October 5, 2007); 2007 

Program Access Order (extending the 

exclusive contract prohibition until 

October 5, 2012). In the most recent 

decision, the Commission stated that 

‘‘the record reflects that numerous 

national programming networks, RSNs, 

premium programming networks, and 

VOD networks are cable-affiliated 

programming networks that are 

demanded by MVPD subscribers and for 

which there are no adequate 

substitutes.’’ See 2007 Program Access 

Order. In that decision, the Commission 

was implementing Section 628(c)(5), 

which requires the Commission to 

assess the marketplace and extend the 

per se ban if it finds it ‘‘necessary to 

preserve and protect competition and 

diversity in the distribution of video 

programming.’’ 47 U.S.C. 548(c)(5). The 

Commission did not consider the 

question at issue here: Whether there 

are specific categories of programming 

that are non-replicable and sufficiently 

valuable to consumers such that an 

unfair act involving such programming 

has the ‘‘purpose or effect of 

significantly hindering or preventing the 

MVPD from providing satellite cable 

programming or satellite broadcast 

programming.’’ 47 U.S.C. 548(b). 

97. Although we reject the argument 

that the empirical evidence concerning 

RSNs is so uniform that it supports a per 

se rule that an unfair act involving a 

terrestrially delivered, cable-affiliated 

RSN always significantly hinders or 

prevents the MVPD from providing 

satellite cable programming or satellite 

broadcast programming, we will not 

require litigants and the Commission 

staff to undertake repetitive 

examinations of our RSN precedent and 

the relevant historical evidence. Instead, 

we recognize the weight of the existing 

precedent and categorical evidence 

concerning RSNs by allowing 

complainants to invoke a rebuttable 

presumption that an unfair act involving 

a terrestrially delivered, cable-affiliated 

RSN has the purpose or effect set forth 

in Section 628(b). Cablevision maintains 

that adopting special rules for 

implementing Section 628(b) in the 

context of RSNs, based on the content 

of the programming, would violate the 

First Amendment. Here, however, we 

place no content-related burden on a 

defendant in a case brought under 

Section 628(b) that involves RSN 

programming. We only recognize the 

import of existing precedent and record 

evidence before us in this matter. 

98. In a program access complaint 

alleging an unfair act involving a 

terrestrially delivered, cable-affiliated 

RSN, the defendant may overcome the 

presumption by establishing that the 

unfair act does not have the purpose or 

effect of significantly hindering or 

preventing the MVPD from providing 

satellite cable programming or satellite 

broadcast programming, as required by 

the language of Section 628(b). Except 

in the situation of a temporary standstill 

order, a terrestrially delivered, cableaffiliated RSN is not required to provide 

its programming to an MVPD under the 

rules we establish in this Order unless 

and until the Commission (or Bureau on 

delegated authority) concludes that the 

complainant is entitled to relief that 

includes access to the programming. We 

reiterate that we are adopting a case-bycase approach that allows us to consider 

the facts and circumstances of each 

case. Moreover, as discussed above, 

while our program access procedural 

rules provide a defendant with 20 days 

after service to file an Answer to a 

complaint (see 47 CFR 76.1003(e)), we 

will provide the defendant with 45 days 

from the date of service of the complaint 

to file an Answer in all cases involving 

terrestrially delivered, cable-affiliated 

programming, to ensure that the 

defendant has adequate time to develop 

a full, case-specific response. 

99. For purposes of the foregoing 

paragraphs, we define ‘‘RSN’’ in the 

same way the Commission has defined 

that term in previous merger 

proceedings for purposes of adopting 

program access conditions: ‘‘Any nonbroadcast video programming service 

that (1) provides live or same-day 

distribution within a limited geographic 

region of sporting events of a sports 

team that is a member of Major League 

Baseball, the National Basketball 

Association, the National Football 

League, the National Hockey League, 

NASCAR, NCAA Division I Football, 

NCAA Division I Basketball, Liga de 

Be ́isbol Profesional de Puerto Rico, 

Baloncesto Superior Nacional de Puerto 

Rico, Liga Mayor de Fu ́tbol Nacional de 

Puerto Rico, and the Puerto Rico 

Islanders of the United Soccer League’s 

First Division and (2) in any year, 

carries a minimum of either 100 hours 

of programming that meets the criteria 

of subheading 1, or 10% of the regular 

season games of at least one sports team 

that meets the criteria of subheading 1.’’ 

(In the Liberty/DIRECTV Order, the 

Commission expanded the definition of 

an RSN originally adopted in the 

Adelphia Order to include sports 

programming likely to be valued highly 

by residents of Puerto Rico. See 23 FCC 


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Rcd at 3308–09; see also Adelphia 

Order, 21 FCC Rcd at 8275.) The 

Commission has recently reaffirmed the 

appropriateness of the RSN definition 

for purposes of program access merger 

conditions. See TAC Order, 22 FCC Rcd 

17938, 17946–47 (2007); Liberty/ 

DIRECTV Order, 23 FCC Rcd at 3308– 

09. (The Commission suspended the 

program carriage merger condition for 

reasons that are not at issue here. See 

TAC Order, 22 FCC Rcd at 17946–47.) 

A complainant would have the burden 

of showing that the network at issue 

satisfies this definition. 

100. One commenter has further 

urged a per se ban on unfair acts and 

practices involving terrestrially 

delivered HD ‘‘feeds’’ of programming. 

According to Verizon, vertically 

integrated programmers are seeking to 

compete unfairly by withholding from 

competitive providers the HD version of 

programming subject to the program 

access rules by transporting the ‘‘HD 

feed’’ terrestrially, thus allowing the 

affiliated cable operator to offer a more 

robust line-up of HD programming. 

There is substantial evidence regarding 

consumers’ preference for HD 

programming in the context of MVPD 

services, and the record shows that 

MVPD subscribers do not consider SD 

programming to be an acceptable 

substitute for HD programming. The SD 

and HD versions of the same network 

have different technical characteristics 

and sometimes even different content. 

HD programming has thus become an 

important part of a competitive MVPD 

offering. 

101. Based on the record evidence 

described above, in particular the fact 

that SD and HD versions of the same 

network have different technical 

characteristics and sometimes even 

different content, we conclude that the 

HD version of a particular programming 

channel should be treated as a distinct 

service from the SD version of the same 

network. Thus, in considering a 

complaint regarding an unfair act 

involving terrestrially delivered HD 

programming, the mere fact that the 

complainant offers the SD version of the 

same network to subscribers will not 

alone be sufficient to refute a claim 

under Section 628(b); and, in the case of 

a covered RSN, it will not establish that 

the unfair act lacks the purpose or effect 

set forth in Section 628(b). In that 

regard, nothing in the statute requires a 

competitive provider to show complete 

foreclosure from particular 

programming to make a claim under 

Section 628(b). Rather, the competitive 

provider must show that a covered 

entity was engaged in an unfair act or 

practice that has the purpose or effect of 

hindering significantly or preventing a 

competitor from providing service. We 

note that in two pending complaints, 

the complainant is seeking access to the 

HD feed of a cable-affiliated RSN; at this 

time, only the satellite-delivered SD 

version of the programming is being 

made available to the competitive 

provider. See Verizon Telephone 

Companies et al, Program Access 

Complaint, File No. CSR–8185–P (filed 

July 7, 2009); AT&T Services, Inc. et al, 

Program Access and Section 628(b) 

Complaint, File No. CSR–8196–P (filed 

Aug. 13, 2009). As explained below, to 

the extent the complainants do not 

supplement their pleadings in the 

pending adjudicatory matter, their 

claims fall outside the framework 

established in this rulemaking, and we 

do not prejudge whether the records in 

those cases are sufficient to state a case 

under Section 628(b) based on the facts 

alleged. 

102. We will also treat other 

terrestrially delivered formats of 

programming, such as VOD, 3D, and 

other new formats, as distinct services 

subject to the rules established in this 

Order. We do not have precedents or 

record evidence at this point with 

respect to such new formats on which 

to base a conclusion whether any 

presumption should apply to 

complaints involving them, thus no 

presumptions will apply to them at this 

time. 

103. We decline to adopt specific 

evidentiary requirements with respect to 

proof, in a complaint brought under 

Section 628(b), that the defendant’s 

alleged activities have the purpose or 

effect of hindering significantly or 

preventing the complainant from 

providing satellite cable programming 

or satellite broadcast programming. The 

evidence required to satisfy this burden 

will vary based on the facts and 

circumstances of each case and may 

depend on, among other things, whether 

the complainant is a new entrant or an 

established competitor and whether the 

programming the complainant seeks to 

access is new or existing programming. 

In order to provide some guidance to 

potential litigants, however, we provide 

the following illustrative examples of 

evidence that they might consider 

providing. A litigant might rely on an 

appropriately crafted regression analysis 

that estimates what the complainant’s 

market share in the MVPD market 

would be if it had access to the 

programming and how that compares to 

its actual market share. See, e.g., 

Adelphia Order, 21 FCC Rcd at 8343– 

50, Appendix D; 2007 Program Access 

Order. A regression analysis might be 

particularly appropriate for an MVPD 

that is an established competitor 

operating in a large number of 

geographic areas that seeks access to an 

established programming network. 

Operation in a large number of 

geographic areas allows for an 

assessment in the variation in the 

MVPD’s penetration levels between 

areas where programming is withheld 

and where it is available to estimate the 

effect of withholding. Moreover, a 

regression analysis might be particularly 

appropriate for an established 

competitor, where it can be assumed 

that its market penetration may be 

approaching an equilibrium level, rather 

than a recent entrant, where it can be 

assumed that its market penetration will 

increase as consumers become more 

familiar with its service. A litigant 

might also rely on statistically reliable 

survey data indicating the likelihood 

that customers would choose not to 

subscribe to or switch to an MVPD that 

did not carry the withheld 

programming. 

104. We recognize that not all 

potential complainants will have the 

resources to perform a regression 

analysis or market survey, thus, we 

reiterate that these examples should be 

considered illustrative only. We will 

assess the reliability of the regression 

analysis, survey data, or other empirical 

data on a case-by-case basis. In that 

regard, we note that defendants, as well 

as complainants, are likely to have 

unique access to certain relevant 

evidence. For instance, although a 

competing MVPD seeking access to a 

cable-affiliated RSN has unique access 

to information about its own 

subscribership and the reasons 

consumers give for declining or 

terminating the MVPD’s service, a 

defendant cable operator or cableaffiliated programmer is likely to have 

the best information about the 

competitive significance of its RSN (e.g., 

value of subscribers and local demand 

for the RSN). Moreover, both 

complainants and defendants are 

capable of compiling survey data to 

assess the likelihood that customers 

would choose not to subscribe to or 

switch to an MVPD that did not carry 

the withheld programming. The 

discovery process enables parties to 

obtain additional evidence needed to 

satisfy their burdens. See 47 CFR 

76.1003(j). 

105. We note that the language of 

Section 628(b) requires the Commission 

to address the unfair acts of cable 

operators, satellite cable programming 

vendors in which a cable operator has 

an attributable interest, and satellite 

broadcast programming vendors, but not 

the unfair acts of other programmers 


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delivering programming only by 

terrestrial means. See 47 U.S.C. 548(b). 

We conclude that Section 628(b) allows 

complaints against the entities listed in 

Section 628(b) based on the unfair acts 

of their affiliated programmers 

delivering programming by terrestrial 

means, where the facts establish that the 

programmer is wholly owned by, 

controlled by, or under common control 

with one or more of these entities. (If 

two or more cable operators each have 

a minority interest in a terrestrial 

programmer but those interests exceed 

50 percent in the aggregate, we will 

consider the programmer to be cablecontrolled. For example, if three cable 

operators each have a 20 percent 

ownership interest in a terrestrial 

programmer, we would consider the 

programmer to be cable-controlled, 

despite the fact that no individual cable 

operator has a controlling interest, 

because the aggregate interests held by 

the cable operators exceed 50 percent.) 

Under these circumstances, the cable 

operator, satellite cable programming 

vendor in which a cable operator has an 

attributable interest, or satellite 

broadcast programming vendor can 

appropriately be held responsible for 

the discriminatory acts of its program 

supplier affiliate because it controls the 

supplier and the supplier’s unfair 

actions are designed to benefit these 

entities. 

106. This coverage is necessary to give 

Section 628(b) practical effect. For 

example, absent a Commission rule to 

address such discrimination, a cablecontrolled terrestrial program supplier 

could insist that a competitive MVPD 

pay an exorbitant rate for carriage that 

far exceeds the rate charged to the 

incumbent cable system, thereby 

precluding the MVPD from obtaining 

the programming on reasonable terms 

and achieving the same result as an 

exclusive contract. We believe that we 

have authority under Section 628(b) to 

prevent this and similar situations in 

which a terrestrial programmer that is 

wholly owned by, controlled by, or 

under common control with an entity 

covered by Section 628(b) acts 

presumptively to further the interests of 

such an entity. Accordingly, in program 

access complaints alleging that a cableaffiliated programmer that provides only 

terrestrially delivered programming has 

discriminated against an MVPD, the 

complainant will have the additional 

burden of proof that the programmer 

that is alleged to have engaged in 

discrimination is wholly owned by, 

controlled by, or under common control 

with the defendant cable operator or 

cable operators, satellite cable 

programming vendor or vendors in 

which a cable operator has an 

attributable interest, or satellite 

broadcast programming vendor or 

vendors. 

107. If it appears that a regulated 

entity has been organized in a manner 

to shield its terrestrial programming 

activities from the reach of Section 

628(b) and the Commission’s 

regulations, we may look beyond the 

corporate structural formalities to 

ensure that the goals of the statute and 

rules are not frustrated. Moreover, in 

cases where one or more of the entities 

listed in Section 628(b) does not have de 

jure control of a terrestrial programmer, 

we do not foreclose complaints alleging 

that one or more of the entities listed in 

Section 628(b) has nonetheless 

influenced the programmer to engage in 

discrimination. We will assess such 

claims of alleged influence on a case-bycase basis. In addition, as noted above, 

there may be acts or practices other than 

those specified in this Order that are 

‘‘unfair methods of competition or unfair 

acts or practices’’ under Section 628(b). 

For example, nothing in this Order 

forecloses a complaint alleging that the 

execution or enforcement of a 

discriminatory contract by one of the 

entities listed in Section 628(b) violates 

this section. 

3. Exclusive Contracts 

108. The rules we adopt here 

pursuant to Section 628(b) to address 

exclusive contracts between cable 

operators and cable-affiliated 

programmers that provide terrestrially 

delivered programming differ from the 

rules applicable to satellite-delivered, 

cable-affiliated programming pursuant 

to Section 628(c)(2)(C)–(D). The program 

access rules applicable to cableaffiliated programmers that provide 

satellite-delivered programming 

generally prohibit exclusive contracts 

with a cable operator subject to certain 

exceptions. Because we are adopting 

rules for terrestrially delivered, cableaffiliated programming pursuant to the 

authority provided in Sections 628(b) 

and 628(c)(1), we do not apply here the 

statutory scheme set forth in Section 

628(c)(2)(C)–(D) for satellite-delivered, 

cable-affiliated programming. Our 

approach to exclusive contracts for 

terrestrially delivered, cable-affiliated 

programming will differ from the 

exclusive contract prohibition 

applicable to satellite-delivered, cableaffiliated programming in the following 

ways. 

109. First, the Commission’s program 

access rules applicable to satellitedelivered, cable-affiliated programming 

generally prohibit exclusive contracts 

unless the cable operator or cableaffiliated programmer demonstrates that 

an exclusive contract serves the public 

interest based on the factors set forth in 

Section 76.1002(c)(4). 47 CFR 

76.1002(c)(4); see 2002 Program Access 

Order. The rules we adopt in this Order, 

however, assign the burden of proof to 

the complainant to demonstrate 

(sometimes with the benefit of a 

presumption) that the exclusive contract 

has the purpose or effect set forth in 

Section 628(b). 

110. Second, while the Commission’s 

rules applicable to satellite-delivered, 

cable-affiliated programming draw 

distinctions between exclusive contracts 

in served areas and unserved areas (see 

47 CFR 76.1002(c)(1)–(2); see also 47 

U.S.C. 548(c)(2)(C)–(D)), the rules we 

adopt in this Order for terrestrially 

delivered, cable-affiliated programming 

do not. Section 628(b) does not draw 

such a distinction, and our case-by-case 

approach will enable us to take into 

account relevant factual circumstances 

of a particular case. 

111. Third, while the exclusive 

contract prohibition generally 

applicable to satellite-delivered, cableaffiliated programming will sunset on a 

Commission determination that the 

categorical prohibition is no longer 

necessary to preserve and protect 

competition (see 47 CFR 76.1002(c)(6); 

see also 47 U.S.C. 548(c)(5)), the rules 

we adopt in this Order for terrestrially 

delivered, cable-affiliated programming 

do not contain a sunset provision 

because Section 628(b) does not contain 

such a provision. If the exclusive 

contract prohibition applicable to 

satellite-delivered, cable-affiliated 

programming sunsets, we will still 

consider complaints alleging unfair acts 

involving terrestrially delivered, cableaffiliated programming on a case-bycase basis unless and until we repeal the 

rule with respect to terrestrially 

delivered programming. Of course, the 

facts supporting a sunset of the 

exclusive contract prohibition under 

Section 628(c)(2) may bear on a 

particular complaint brought under 

Section 628(b). 

112. By contrast, with the exception 

of the additional burdens and the 

additional response time for defendants 

to file an Answer described above, we 

will apply the same rules, policies, and 

procedures to address claims of 

discrimination and undue or improper 

influence involving terrestrially 

delivered, cable-affiliated programming 

that currently apply to such claims 

involving satellite-delivered, cableaffiliated programming. See 47 CFR 

76.1002(b)(1)–(3) (listing actions that a 

cable-affiliated programmer is not 


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precluded from taking under the 

discrimination provision of the program 

access rules); id. § 76.1003(c)(4)–(5) 

(listing specific requirements for a 

program access complaint alleging 

discrimination); id. § 76.1003(e)(3)–(4) 

(listing specific requirements for an 

answer to a program access complaint 

alleging discrimination); see also 1993 

Program Access Order, 8 FCC Rcd at 

3400–23 (adopting rules, policies, and 

procedures for complaints alleging 

program access discrimination); see id. 

at 3423–26 (adopting rules, policies, and 

procedures for complaints alleging 

undue or improper influence). 

E. Application of the Rules 

113. In this Section, we discuss how 

the rules adopted here apply to common 

carriers, existing contracts, and 

terrestrially delivered programming that 

is subject to the program access rules 

applicable to satellite-delivered 

programming as a result of merger 

conditions. 

1. Common Carriers 

114. The rules we adopt in this Order 

will apply to common carriers and open 

video systems as well as cable operators 

because the Act so requires. Although 

Section 628(b) requires the Commission 

to address the unfair acts of cable 

operators, satellite cable programming 

vendors in which a cable operator has 

an attributable interest, and satellite 

broadcast programming vendors, 

Section 628(j) states that ‘‘[a]ny 

provision that applies to a cable 

operator under this section shall apply 

to a common carrier or its affiliate that 

provides video programming by any 

means directly to subscribers.’’ 47 U.S.C. 

548(j). Similarly, Section 653(c)(1)(A) 

provides that ‘‘[a]ny provision that 

applies to a cable operator under 

[Section 628] of this title shall apply 

* * * to any operator of an open video 

system [OVS].’’ 47 U.S.C. 573(c)(1)(A). 

Thus, pursuant to Sections 628(j) and 

653(c)(1)(A), the rules we adopt to 

address unfair acts involving 

terrestrially delivered, cable-affiliated 

programming must also apply to 

common carriers and OVS operators, 

and their affiliated programmers, to the 

extent that these entities provide video 

programming to subscribers or 

consumers. Accordingly, we are 

amending Section 76.1004(a) of our 

rules, which contains a limitation on 

what constitutes an attributable interest 

held by a common carrier in a satellite 

cable programming vendor, to also 

apply to an attributable interest held by 

a common carrier in a terrestrial cable 

programming vendor. See 47 CFR 

76.1004(a); see also 47 U.S.C. 628(j); 

Implementation of Cable Act Reform 

Provisions of the Telecommunications 

Act of 1996, Order and Notice of 

Proposed Rulemaking, 11 FCC Rcd 

5937, 5956–57 (1996). 

2. Existing Contracts 

115. Given the potential harms to 

video competition and broadband 

deployment that arise from unfair acts 

involving terrestrially delivered, cableaffiliated programming, we conclude 

that the public interest requires us to 

apply the rules adopted in this Order to 

existing contracts or other arrangements 

for terrestrially delivered, cableaffiliated programming, to the extent a 

cable operator’s reliance on or 

enforcement of those contracts or 

arrangements following the effective 

date of the rules is found to violate 

Section 628(b). Accordingly, although a 

cable operator may have entered into an 

exclusive contract prior to the effective 

date of the rules adopted in this Order, 

an MVPD may file a program access 

complaint after the effective date of the 

rules alleging that the cable operator’s 

continued reliance on or enforcement of 

this contract violates these rules. We 

decline, however, to apply the rules 

adopted in this Order to the unfair acts 

of cable operators involving terrestrially 

delivered, cable-affiliated programming 

that preceded the effective date of these 

rules. Thus, to the extent a terrestrially 

delivered, cable-affiliated programmer 

refused to deal with an MVPD prior to 

(and not after) the effective date of these 

rules, we would not entertain a program 

access complaint alleging that such 

conduct is unlawful under the rules 

adopted in this Order. Rather, an MVPD 

filing a program access complaint 

pursuant to the rules adopted in this 

Order regarding the allegedly unlawful 

conduct would need to demonstrate that 

the unfair act occurred after the effective 

date of the rules. 

116. Applying the rules to existing 

contracts in this manner is not 

impermissibly retroactive. See, e.g., 

Celtronix Telemetry, Inc. v. FCC, 272 

F.3d 585, 588 (D.C. Cir. 2001) (changing 

the grace period on auction debt was not 

impermissibly retroactive where new 

rule applied to payment delays 

occurring after the rule’s adoption; 

although it altered the future effect of 

the initial license issuance, it did not 

alter past legal consequences); Bell Atl. 

Tel. Cos. v. FCC, 79 F.3d 1195, 1207 

(D.C. Cir. 1996) (a regulation that 

governs future rates ‘‘is not made 

retroactive merely because it draws 

upon antecedent facts for its operation’’) 

(quotations and citations omitted); see 

also Landgraf v. USI Film Prods., 511 

U.S. 244, 269–70 and n. 24 (1994) (a law 

does not act retrospectively merely 

because it is applied in a case arising 

from conduct antedating its enactment 

or upsets expectations based in prior 

law; rather, the issue is whether the new 

provision attaches new legal 

consequences to events completed 

before its enactment); Chemical Waste 

Mgmt., Inc. v. EPA, 869 F.2d 1526, 1536 

(D.C. Cir. 1989) (‘‘[i]t is often the case 

that a business will undertake a certain 

course of conduct based on the current 

law, and will then find its expectations 

frustrated when the law changes. This 

has never been thought to constitute 

retroactive lawmaking’’). 

117. As discussed above, program 

access complaints filed pursuant to 

Section 628(d) are pending before the 

Commission that allege unfair acts 

involving terrestrially delivered, cableaffiliated programming that have the 

purpose or effect set forth in Section 

628(b). See Verizon Telephone 

Companies et al, Program Access 

Complaint, File No. CSR–8185–P (filed 

July 7, 2009); AT&T Services, Inc. et al., 

Program Access and Section 628(b) 

Complaint, File No. CSR–8196–P (filed 

Aug. 13, 2009). Complainants may 

continue to prosecute these complaints 

pursuant to Section 628(d). Because 

these complaints allege unfair acts that 

occurred before the effective date of the 

rules adopted in this Order, they will 

not be considered pursuant to these 

rules, unless supplemented as described 

below. A complainant that wants a 

currently pending complaint considered 

under these rules must submit a 

supplemental filing alleging that the 

defendant has engaged in an unfair act 

(such as a further refusal to provide 

programming) after the effective date of 

the rules. In such case, the complaint 

and supplement will be considered 

pursuant to the rules adopted in this 

Order, including the rebuttable 

presumption for RSNs. The defendant 

will have an opportunity to answer the 

supplemental filing within 45 days of 

service, and the complainant will have 

an opportunity to reply, as set forth in 

the rules. See 47 CFR 76.1003(f). 

118. Additionally, application of the 

rules to existing contracts will not pose 

economic hardship on cable operators 

or their affiliated programmers or 

constitute a ‘‘regulatory taking’’ under 

the Fifth Amendment. The Supreme 

Court has outlined the following 

framework to evaluate regulatory 

takings claims: ‘‘‘In all of these cases, we 

have eschewed the development of any 

set formula for identifying a ‘taking’ 

forbidden by the Fifth Amendment, and 

have relied instead on ad hoc, factual 

inquiries into the circumstances of each 

particular case. To aid in this 


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determination, however, we have 

identified three factors which have 

particular significance: (1) The 

economic impact of the regulation on 

the claimant; (2) the extent to which the 

regulation has interfered with distinct 

investment-backed expectations; and (3) 

the character of the governmental 

action.’’’ MDU Order (quoting Connolly 

v. Pension Ben. Guaranty Corp., 475 

U.S. 211, 224–25 (1986) (citations and 

internal quotation marks omitted)). 

None of these factors counsels in favor 

of finding a regulatory taking here. 

Moreover, because our decision does 

not involve the permanent 

condemnation of physical property, it 

does not constitute a per se taking. Cf. 

Loretto v. Teleprompter Manhattan City 

Corp., 458 U.S. 419, 427 (1982) (‘‘when 

faced with a constitutional challenge to 

a permanent physical occupation of real 

property, this court has invariably found 

a taking’’); Tahoe-Sierra Preservation 

Council, Inc. v. Tahoe Regional 

Planning Agency, 535 U.S. 302, 322 

(2002) (‘‘When the government 

physically takes possession of an 

interest in property for some public 

purpose, it has a categorical duty to 

compensate the former owner.’’). 

119. Under the first prong of the 

regulatory takings test, applying these 

rules to existing contracts for 

terrestrially delivered, cable-affiliated 

programming to the extent described 

above would not have a material 

adverse economic impact on cable 

operators or their affiliated 

programmers. Specifically, these rules 

would not interfere with the ability of 

cable operators to provide this 

programming to their subscribers or 

potential subscribers or the ability of 

cable-affiliated programmers to sell 

programming to MVPDs. Our decision 

may in fact expand the number of 

customers (i.e., MVPDs) to whom 

terrestrially delivered, cable-affiliated 

programmers sell their programming. 

This will result in increased revenues 

for the cable-affiliated programmer, 

which can be used to partially offset the 

decreased revenues its affiliated cable 

operator will experience as some 

subscribers switch to competitive 

MVPDs that now have access to the 

formerly withheld programming. 

Moreover, as the record demonstrates, 

unfair acts involving terrestrially 

delivered, cable-affiliated programming 

have in some cases enabled cable firms 

to significantly hinder competition in 

the video distribution market. Thus, 

under the first prong of the takings 

analysis, any economic impact on cable 

operators and terrestrially delivered, 

cable-affiliated programmers arising 

from compliance with these rules stems 

from correcting current market failures, 

and is outweighed by our public interest 

objective of promoting competition in 

the video distribution market. 

120. Under the second prong of the 

Supreme Court’s test, applying these 

rules to existing contracts for 

terrestrially delivered, cable-affiliated 

programming to the extent described 

above would not interfere with distinct 

investment-backed expectations. Several 

of the Commission’s prior decisions 

have reflected a concern about unfair 

acts involving terrestrially delivered, 

cable-affiliated programming, and our 

desire to craft appropriate remedies. The 

Commission has stated in previous 

program access complaint proceedings 

that vertically integrated cable operators 

that migrate their programming to 

terrestrial delivery could violate Section 

628(b) in some instances. See RCN, 16 

FCC Rcd at 12053; DIRECTV, 15 FCC 

Rcd at 22807; EchoStar, 14 FCC Rcd at 

2102–03; RCN, 14 FCC Rcd at 17104–06; 

DIRECTV, 13 FCC Rcd at 21837; see also 

1996 OVS Order, 11 FCC Rcd at 18325. 

121. Moreover, past Commission 

Orders in program access rulemaking 

proceedings have demonstrated 

continued concern with the harms 

associated with the terrestrial loophole. 

See 2002 Program Access Order (noting 

that withholding of terrestrially 

delivered, cable-affiliated programming 

‘‘could have a substantial impact on the 

ability of competitive MVPDs to 

compete in the MVPD market’’ but 

finding that the specific language of 

Section 628(c) applies only to satellitedelivered programming); 1998 Program 

Access Order (concluding that the 

record developed in this proceeding did 

not demonstrate that unfair acts 

involving terrestrially delivered, cableaffiliated programming were having a 

significant anticompetitive effect, but 

stating that ‘‘we believe that the issue of 

terrestrial distribution of programming 

could eventually have substantial 

impact on the ability of alternative 

MVPDs to compete in the video 

marketplace’’ and that ‘‘the Commission 

will continue to monitor this issue and 

its impact on competition in the video 

marketplace’’); see also 2007 Program 

Access Order. Moreover, the 

Commission noted in the 1993 Program 

Access Order that the objectives of 

Section 628(b) were to proscribe 

conduct ‘‘beyond those more specifically 

referenced in 628(c). The objectives of 

the provision, however, are clearly to 

provide a mechanism for addressing 

those types of conduct, primarily 

associated with horizontal and vertical 

concentration within the cable and 

satellite cable programming field, that 

inhibit the development of 

multichannel video distribution 

competition * * *. Section 628(b) is a 

clear repository of Commission 

jurisdiction to adopt additional rules or 

to take additional actions to accomplish 

the statutory objectives should 

additional types of conduct emerge as 

barriers to competition and obstacles to 

the broader distribution of satellite cable 

and broadcast programming.’’ 8 FCC Rcd 

at 3373–73. 

122. The Commission has also stated 

in Annual Reports to Congress on the 

status of competition in the video 

distribution market that unfair acts 

involving terrestrially delivered, cableaffiliated programming could have a 

substantial impact on the ability of 

competitive MVPDs to compete and that 

the Commission will ‘‘continue to 

monitor this issue and its impact on the 

competitive marketplace.’’ 6th Annual 

Report, 15 FCC Rcd 978 (2000); see 3rd 

Annual Report, 12 FCC Rcd 4358 (1997); 

see also 7th Annual Report, 16 FCC Rcd 

6005 (2001); 8th Annual Report, 17 FCC 

Rcd 1244 (2002); 9th Annual Report, 17 

FCC Rcd 26901 (2002); 10th Annual 

Report, 19 FCC Rcd 1606 (2004); 11th 

Annual Report, 20 FCC Rcd 2755 (2005); 

12th Annual Report, 21 FCC Rcd 2503 

(2006). 

123. In the Adelphia Order, the 

Commission demonstrated that it would 

act to mitigate the harm to competition 

resulting from withholding of 

terrestrially delivered, cable-affiliated 

programming. In the Adelphia Order, 

the Commission applied the program 

access rules, as well as arbitration 

conditions, to terrestrially delivered 

RSNs affiliated with the merger 

applicants based on record evidence 

demonstrating that withholding of 

terrestrially delivered, cable-affiliated 

programming had an adverse impact on 

competition in the video distribution 

market. See 21 FCC Rcd at 8275. 

Moreover, in the News/Hughes Order, 

the Commission noted that it has ‘‘long 

recognized that the terrestrial 

distribution of programming— 

particularly RSN programming—by 

vertically integrated cable operators 

could competitively disadvantage 

competing MVPDs if they were denied 

access to the terrestrially delivered 

programming.’’ 19 FCC Rcd at 535 

(citations omitted). In addition, in 

September 2007, the Commission 

adopted the NPRM in this proceeding, 

seeking comment on, among other 

things, whether to extend the program 

access rules to terrestrially delivered, 

cable-affiliated programming. Thus, for 

many years now, cable operators and 

their affiliated programmers have been 

on notice that withholding of 


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terrestrially delivered, cable-affiliated 

programming is a source of concern for 

the Commission, and that any 

programming investments had the 

potential to be impacted by the rules we 

adopt in this Order. Moreover, as the 

Commission explained in the MDU 

Order, a cable operator does not have a 

legitimate investment-backed 

expectation in profits obtained through 

anticompetitive behavior. See MDU 

Order (citing Otter Tail Power Co. v. 

United States, 410 U.S. 366, 380 (1973) 

(antitrust law proscribing monopolies 

‘‘assumes that an enterprise will protect 

itself against loss by operating with 

superior service, lower costs, and 

improved efficiency,’’ and a monopolist 

may not ‘‘substitute for competition 

anticompetitive uses of its dominant 

power’’); Delaware & Hudson Ry. Co. v. 

Consolidated Rail Corp., 902 F.2d 174, 

178 (2d Cir. 1990) (‘‘A monopolist 

cannot escape liability for conduct that 

is otherwise actionable simply because 

that conduct also provides short-term 

profits.’’)). 

124. Under the third prong of the 

regulatory takings test, we find that 

applying these rules to existing 

contracts for terrestrially delivered, 

cable-affiliated programming to the 

extent described above substantially 

advances the legitimate governmental 

interest in protecting consumers from 

‘‘ ‘unfair methods of competition or 

unfair acts or practices’—an interest 

Congress has explicitly recognized and 

protected by statute * * * and 

commanded the Commission to 

vindicate by adopting appropriate 

regulations.’’ See MDU Order (quoting 

47 U.S.C. 548(b)). It also comports with 

Congress’ directive to spur the 

development of communications 

technologies and to encourage the 

deployment of advanced 

telecommunications capabilities. See 47 

U.S.C. 157 nt. (2008); 47 U.S.C. 548(a). 

The rules we adopt here will further 

these governmental interests by 

promoting competition in the video 

distribution market and facilitating 

efforts to deploy broadband. 

3. Adelphia Order Merger Conditions 

125. Pursuant to merger conditions 

adopted in the Adelphia Order, certain 

terrestrially delivered RSNs (‘‘Covered 

RSNs’’) affiliated with Comcast or Time 

Warner Cable are currently required to 

comply with the program access rules 

applicable to satellite-delivered, cableaffiliated programming. See Adelphia 

Order, 21 FCC Rcd at 8274 (requiring 

terrestrially delivered RSNs in which 

Comcast or Time Warner has or acquires 

an attributable interest to comply with 

the program access rules applicable to 

satellite-delivered cable-affiliated 

programming, citing 47 CFR 76.1002), 

8276 and 8336, Appendix B, § B(1) 

(citing 47 CFR 76.1002); see also 

Applications for Consent to the 

Assignment and/or Transfer Control, 

Time Warner Inc., Assignor/Transferor, 

and Time Warner Cable Inc., Assignee/ 

Transferee, Memorandum Opinion and 

Order, 24 FCC Rcd 879, 893 (MB, WCB, 

WTB, IB, 2009) (approving transaction 

separating Time Warner from Time 

Warner Cable and explaining that the 

Adelphia Order program access 

conditions will continue to apply to 

Time Warner Cable post-restructuring 

but will no longer apply to Time 

Warner). A Covered RSN as defined in 

the Adelphia Order is ‘‘any nonbroadcast video programming service 

that (1) provides live or same-day 

distribution within a limited geographic 

region of sporting events of a sports 

team that is a member of Major League 

Baseball, the National Basketball 

Association, the National Football 

League, the National Hockey League, 

NASCAR, NCAA Division I Football, 

NCAA Division I Basketball and (2) in 

any year, carries a minimum of either 

100 hours of programming that meets 

the criteria of subheading 1, or 10% of 

the regular season games of at least one 

sports team that meets the criteria of 

subheading 1.’’ See Adelphia Order, 21 

FCC Rcd at 8336, Appendix B, section 

A. 

126. These Covered RSNs continue to 

be subject to these conditions until they 

expire or the program access rules 

applicable to satellite-delivered, cableaffiliated programming are modified. 

See Adelphia Order, 21 FCC Rcd at 

8336, Appendix B, section B(1)(d) 

(‘‘These exclusive contracts and 

practices, non-discrimination, and 

undue or improper influence 

requirements of the program access 

rules will apply to Comcast, Time 

Warner, and their Covered RSNs for six 

years, provided that if the program 

access rules are modified this condition 

shall be modified to conform to any 

revised rules adopted by the 

Commission.’’); see also id. at 8274 

(noting that the merger conditions could 

be modified if the exclusive contract 

prohibition applicable to satellitedelivered, cable-affiliated programming 

sunsets). The rules we adopt in this 

Order do not trigger modification of 

these conditions. The Covered RSNs 

subject to the Adelphia Order merger 

conditions are required to comply with 

the program access rules applicable to 

satellite-delivered, cable-affiliated 

programming. With the exception of the 

procedure for requesting a standstill 

discussed below, this Order does not 

modify the program access rules 

applicable to satellite-delivered, cableaffiliated programming; rather, we adopt 

new rules that address unfair acts of 

cable operators involving a class of 

programmers that are not currently 

subject to the rules: Cable-affiliated 

programmers that provide terrestrially 

delivered programming. Accordingly, 

the rules adopted in this Order do not 

trigger modification of the merger 

conditions adopted in the Adelphia 

Order. The program access conditions 

adopted in the Liberty/DIRECTV Order 

contain a similar modification clause. 

See Liberty/DIRECTV Order, 23 FCC 

Rcd at 3341, Appendix B, section III(6) 

(‘‘if the program access rules are 

modified these commitments shall be 

modified, as the Commission deems 

appropriate, to conform to any revised 

rules adopted by the Commission’’). For 

the reasons stated above, because the 

program access rules are not modified 

by this Order, this modification clause 

is not triggered. 

127. Accordingly, exclusive contracts, 

discrimination, and undue influence 

involving these Covered RSNs continue 

to be prohibited without the need for 

any showing as to whether the purpose 

or effect of the unfair act is to 

significantly hinder or prevent the 

complainant from providing satellite 

cable programming or satellite broadcast 

programming. If the conditions expire or 

the exclusive contract prohibition 

applicable to satellite-delivered, cableaffiliated programming sunsets, then 

exclusive contracts for these Covered 

RSNs will not be precluded. Rather, in 

accordance with the rules we adopt in 

this Order, we will consider exclusive 

contracts for these RSNs on a case-bycase basis in response to a program 

access complaint, where we will assess 

whether the defendant has rebutted the 

presumption that an exclusive contract 

for the RSN has the purpose or effect of 

significantly hindering an MVPD from 

providing satellite cable programming 

or satellite broadcast programming. 

128. Moreover, any terrestrially 

delivered network affiliated with 

Comcast or Time Warner Cable that is 

not a Covered RSN may be the subject 

of a complaint pursuant to the rules we 

adopt in this Order upon the 

effectiveness of these rules. 

129. We also note that the 

Commission in the Adelphia Order 

exempted Comcast SportsNet 

Philadelphia from these conditions to 

the extent that it was not available to an 

MVPD at the time of the Adelphia 

Order. See 21 FCC Rcd at 8276 (‘‘we do 

not require that Comcast SportsNet 

Philadelphia be subject to those 


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conditions to the extent it is not 

currently available to MVPDs’’). With 

regard to MVPDs that had contracts for 

Comcast SportsNet Philadelphia at the 

time of the Adelphia Order, the program 

access conditions adopted in the 

Adelphia Order apply. See id. Because 

Comcast SportsNet Philadelphia was 

delivered terrestrially before it was 

acquired by Comcast, the Commission 

found no anticompetitive ‘‘purpose’’ in 

Comcast’s decision to deliver this 

network terrestrially. See id. Section 

628(b), however, requires the 

Commission to prohibit unfair acts of 

cable operators that have the ‘‘purpose 

or effect’’ of significantly hindering an 

MVPD from providing satellite cable 

programming or satellite broadcast 

programming. 47 U.S.C. 548(b). 

Accordingly, although Comcast 

SportsNet Philadelphia was not 

available to certain MVPDs at the time 

of the Adelphia Order and the program 

access conditions adopted in the 

Adelphia Order accordingly do not 

apply to its dealings with those MVPDs, 

it may be the subject of a complaint 

pursuant to the rules we adopt in this 

Order upon the effectiveness of these 

rules. Thus, an MVPD that did not have 

access to Comcast SportsNet 

Philadelphia at time of the Adelphia 

Order may file a program access 

complaint alleging an unfair act in 

accordance with the rules adopted in 

this Order. As discussed above, the 

complainant would need to demonstrate 

that the defendant engaged in an unfair 

act after the effective date of the rules. 

Comcast argues that the doctrine of res 

judicata precludes DIRECTV and DISH 

Network from bringing program access 

complaints alleging an unfair act 

involving Comcast SportsNet 

Philadelphia under Section 628(b) 

because they have previously brought 

such claims and were denied. Comcast 

would have an opportunity to present 

such claim-specific arguments in the 

context of a specific complaint 

proceeding involving Comcast 

SportsNet Philadelphia, should such a 

complaint be filed. 

F. Temporary Standstill of Existing 

Contract Pending Resolution of a 

Program Access Complaint 

130. We establish specific procedures 

for the Commission’s consideration of 

requests for a temporary standstill of the 

price, terms, and other conditions of an 

existing programming contract by a 

program access complainant seeking 

renewal of such a contract. See NPRM. 

The specific procedures adopted herein 

only apply to requests for a standstill 

involving program access complaints 

filed pursuant to Sections 76.1001 or 

76.1003 of the Commission’s rules. 

Thus, a complainant may use these 

procedures to seek a temporary 

standstill in program access complaint 

proceedings involving terrestrially, 

cable-affiliated delivered programming 

as well as satellite-delivered, cableaffiliated programming. We note that of 

particular concern would be a situation 

where a cable-affiliated network that is 

satellite-delivered, and therefore subject 

to the per se prohibitions in Section 

76.1002, moves to terrestrial delivery 

and threatens to withhold the 

programming from an MVPD that 

formerly had access to the network. In 

such a case, absent a standstill, the 

MVPD’s subscribers would be deprived 

of the programming unless and until the 

Commission resolves a program access 

complaint in favor of the MVPD and 

grants relief to the MVPD, including 

carriage of the network. 

131. As competitive MVPDs note, 

such a process will have several 

benefits, such as minimizing the impact 

on subscribers who may otherwise lose 

valued programming pending resolution 

of a complaint; limiting the ability of 

vertically integrated programmers to use 

temporary foreclosure strategies (i.e., 

withholding programming to extract 

concessions from an MVPD during 

renewal negotiations); encouraging 

settlement; and increasing the 

usefulness of the program access 

complaint process. Regarding temporary 

foreclosure strategies, the Commission 

explained in the Adelphia Order that 

‘‘by temporarily foreclosing supply of 

the programming to an MVPD 

competitor or by threatening to engage 

in temporary foreclosure, the integrated 

firm may improve its bargaining 

position so as to be able to extract a 

higher price from the MVPD competitor 

than it could have negotiated if it were 

a non-integrated programming supplier. 

In order for a vertically integrated firm 

successfully to employ temporary 

foreclosure or the threat of temporary 

foreclosure as a strategy to increase its 

bargaining position, there must be a 

credible risk that subscribers would 

switch MVPDs to obtain the 

programming for a long enough period 

to make the strategy profitable.’’ See 21 

FCC Rcd at 8262. 

132. The Commission has statutory 

authority to impose a temporary 

standstill of an existing contract in 

appropriate cases pending resolution of 

a program access complaint. The 

Commission is authorized to ‘‘make 

such rules and regulations * * * as may 

be necessary in the execution of its 

functions,’’ and to ‘‘[m]ake such rules 

and regulations * * * not inconsistent 

with law, as may be necessary to carry 

out the provisions of this Act.’’ 47 U.S.C. 

154(i), 303(r). The Supreme Court has 

affirmed the Commission’s authority to 

impose interim injunctive relief, in the 

form of a standstill order, pursuant to 

Section 4(i). United States v. 

Southwestern Cable Co., 392 U.S. 157, 

181 (1968); see also AT&T Corp. v. 

Ameritech Corp., Memorandum 

Opinion and Order, 13 FCC Rcd 14508 

(1998) (standstill order issued pursuant 

to 47 U.S.C. 154(i) temporarily 

preventing Ameritech from enrolling 

additional customers in, and marketing 

and promoting, a ‘‘teaming’’ arrangement 

with Qwest Corporation pending a 

decision concerning the lawfulness of 

the program); Amendment of Rules 

Governing Procedures to be Followed 

When Formal Complaints Are Filed 

Against Common Carriers, Report and 

Order, 12 FCC Rcd 22497, 22566 (1997) 

(stating that the Commission has 

authority under section 4(i) of the Act 

to award injunctive relief); Time Warner 

Cable, Order on Reconsideration, 21 

FCC Rcd 9016 (MB, 2006) (standstill 

order issued pursuant to section 4(i) 

denying a stay and reconsideration of 

the Media Bureau’s order requiring 

Time Warner temporarily to reinstate 

carriage of the NFL Network on systems 

that it recently acquired from Adelphia 

Communications and Comcast 

Corporation until the Commission could 

resolve on the merits the Emergency 

Petition for Declaratory Ruling filed by 

the NFL). 

133. Pursuant to the rules we adopt 

herein, a complainant may submit along 

with its program access complaint a 

petition for a temporary standstill of its 

existing programming contract pending 

resolution of the complaint. We 

encourage complainants to file the 

petition and complaint sufficiently in 

advance of the expiration of the existing 

contract to provide the Commission 

with sufficient time to act prior to 

expiration. In its petition, the 

complainant must demonstrate how 

grant of the standstill will meet the 

following four criteria: (i) The 

complainant is likely to prevail on the 

merits of its complaint; (ii) the 

complainant will suffer irreparable 

harm absent a stay; (iii) grant of a stay 

will not substantially harm other 

interested parties; and (iv) the public 

interest favors grant of a stay. See, e.g., 

Virginia Petroleum Jobbers Ass’n v. FPC, 

259 F.2d 921, 925 (D.C. Cir. 1958); see 

also Washington Metropolitan Area 

Transit Comm’n v. Holiday Tours, 559 

F.2d 841 (D.C. Cir. 1977) (clarifying the 

standard set forth in Virginia Petroleum 

Jobbers Ass’n v. FPC); Hispanic 

Information and Telecomm. Network, 


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Inc., 20 FCC Rcd 5471, 5480 (2005) 

(affirming Bureau’s denial of request for 

stay on grounds applicant failed to 

establish four criteria demonstrating 

stay is warranted). As part of a showing 

of irreparable harm, a complainant may 

discuss, among other things, the impact 

on subscribers and the likelihood that 

subscribers will switch MVPDs to obtain 

the programming in dispute. In order to 

ensure an expedited decision, the 

defendant will have ten days after 

service to file an answer to the petition 

for a standstill order. In acting on the 

petition, the Commission may limit the 

length of the standstill to a defined 

period or may specify that the standstill 

will continue until the Commission 

resolves the program access complaint. 

In any event, the Commission may lift 

the temporary standstill to the extent 

that it finds that the stay is having a 

negative effect on settlement 

negotiations or is otherwise no longer in 

the public interest. 

134. If the Commission grants the 

temporary standstill, its decision acting 

on the complaint will make the terms of 

the new agreement between the parties, 

if any, retroactive to the expiration date 

of the previous agreement. See Liberty/ 

DIRECTV Order, 23 FCC Rcd at 3347– 

48, Appendix B, section IV(B)(8); 

Adelphia Order, 21 FCC Rcd at 8338, 

Appendix B, section 3(h); News/Hughes 

Order, 19 FCC Rcd at 554. For example, 

if carriage of the programming has 

continued uninterrupted during 

resolution of the complaint, and if the 

Commission’s decision requires a higher 

amount to be paid than was required 

under the terms of the expired contract, 

the MVPD will make an additional 

payment to the programmer in an 

amount representing the difference 

between the amount that is required to 

be paid pursuant to the decision and the 

amount actually paid under the terms of 

the expired contract during resolution of 

the complaint. See Liberty/DIRECTV 

Order, 23 FCC Rcd at 3347–48, 

Appendix B, § IV(B)(8); Adelphia Order, 

21 FCC Rcd at 8338, Appendix B, 

section 3(h); News/Hughes Order, 19 

FCC Rcd at 554. Conversely, if carriage 

of the programming has continued 

uninterrupted during resolution of the 

complaint, and if the Commission’s 

decision requires a lesser amount to be 

paid than was required under the terms 

of the expired contract, the programmer 

will credit the MVPD with an amount 

representing the difference between the 

amount actually paid under the terms of 

the expired contract during resolution of 

the complaint and the amount that is 

required to be paid pursuant to the 

Commission’s decision. See Liberty/ 

DIRECTV Order, 23 FCC Rcd at 3347– 

48, Appendix B, section IV(B)(8); 

Adelphia Order, 21 FCC Rcd at 8338, 

Appendix B, section 3(h). 

135. Vertically integrated cable 

operators contend that the Commission 

should not adopt a temporary standstill 

process, claiming that such an option 

will tilt the balance of negotiating 

leverage in favor of MVPDs; encourage 

MVPDs to file program access 

complaints to guarantee continued 

access to programming; and impede 

parties from settling disputes by 

removing any incentive for the MVPD to 

negotiate. On balance, we conclude that 

the benefits of establishing a temporary 

stay process outweigh these purported 

harms. We expect parties to deal and 

negotiate with one another in good faith 

to come to settlement while the program 

access complaint is pending at the 

Commission. Moreover, there is no 

reason to assume that carriage 

negotiations and attempts at a 

settlement during a temporary stay will 

necessarily be protracted. In this regard, 

we note that in three previous merger 

orders, the Commission adopted a 

standstill requirement in connection 

with arbitration of program access 

disputes. See Liberty/DIRECTV Order, 

23 FCC Rcd at 3346, Appendix B, 

§ IV(A)(3); Adelphia Order, 21 FCC Rcd 

at 8337, Appendix B, § 2(c); News/ 

Hughes Order, 19 FCC Rcd at 554. 

Commenters, however, provide no 

evidence that any of the purported 

harms actually resulted from the 

standstill in those cases. Moreover, the 

standstill requirement imposed in 

connection with those merger 

conditions is automatic upon notice of 

the MVPD’s intent to arbitrate (see 

Liberty/DIRECTV Order, 23 FCC Rcd at 

3346, Appendix B, § IV(A)(3); Adelphia 

Order, 21 FCC Rcd at 8337, Appendix 

B, § 2(c); News/Hughes Order, 19 FCC 

Rcd at 554, whereas the process we 

adopt here requires a complainant to 

seek Commission approval based on the 

four-criteria test described above. Thus, 

the Commission will be able to take into 

account all relevant facts in each case. 

Moreover, because the new carriage 

terms will be applied retroactively to 

the expiration of the previous contract, 

we believe that complainants will not 

have an incentive to seek a temporary 

standstill solely to continue the status 

quo or to gain leverage. 

136. Time Warner claims that, 

depending on the terms of the contract, 

it may be impractical to apply those 

terms beyond the expiration date of the 

contract. In addition, Time Warner 

notes unique concerns regarding a 

standstill imposed on a contract for a 

premium network. DISH Network states 

that Time Warner has overstated the 

complexity of a standstill, because the 

existing contract terms—including rate, 

carriage terms, as well as marketing and 

promotion provisions—would apply 

during the pendency of the complaint 

proceeding. To the extent difficulties 

arise, we believe we will be able to 

resolve such issues on a case-by-case 

basis when acting on a petition for a 

standstill. 

IV. Procedural Matters 

A. Final Paperwork Reduction Act 

Analysis 

137. This document adopts new or 

revised information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13 (44 U.S.C. 3501–3520). The 

requirements will be submitted to the 

Office of Management and Budget 

(OMB) for review under Section 3507 of 

the PRA. The Commission will publish 

a separate notice in the Federal Register 

inviting comment on the new or revised 

information collection requirements 

adopted in this document. The 

requirements will not go into effect until 

OMB has approved it and the 

Commission has published a notice 

announcing the effective date of the 

information collection requirements. In 

addition, we note that pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4), we previously sought 

specific comment on how the 

Commission might ‘‘further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees.’’ In this present document, 

we have assessed the potential effects of 

the various policy changes with regard 

to information collection burdens on 

small business concerns, and find that 

these requirements will benefit many 

companies with fewer than 25 

employees by promoting the fair and 

expeditious resolution of program 

access complaints. In addition, we have 

described impacts that might affect 

small businesses, which includes most 

businesses with fewer than 25 

employees, in the FRFA below. 

B. Congressional Review Act 

138. The Commission will send a 

copy of this Order in a report to be sent 

to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

C. Final Regulatory Flexibility Analysis 

139. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(‘‘RFA’’), 5 U.S.C. 604, the Commission 


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has prepared the following FRFA 

relating to the Order. An Initial 

Regulatory Flexibility Analysis (‘‘IRFA’’) 

was incorporated in the NPRM in MB 

Docket No. 07–198 (72 FR 61590, 

October 31, 2007). The Commission 

sought written public comment on the 

proposals in the NPRM, including 

comment on the IRFA. The comments 

received are discussed below. This 

present Final Regulatory Flexibility 

Analysis (‘‘FRFA’’) conforms to the RFA. 

See 5 U.S.C. 604. 

Need for, and Objectives of, the Rules 

Adopted 

140. Section 628(a) of the 

Communications Act establishes that 

the goals of Section 628 are to increase 

competition and diversity in the video 

distribution market, to increase the 

availability of satellite cable 

programming and satellite broadcast 

programming to persons in rural and 

other areas not currently able to receive 

such programming, and to spur the 

development of communications 

technologies. 47 U.S.C. 548(a). Section 

628(b) of the Act prohibits unfair acts 

and practices of cable operators that 

have the purpose or effect of hindering 

significantly any multichannel video 

programming distributor (‘‘MVPD’’) from 

providing satellite cable programming 

or satellite broadcast programming to 

consumers. 47 U.S.C. 548(b) (‘‘it shall be 

unlawful for a cable operator * * * to 

engage in unfair methods of competition 

or unfair or deceptive acts or practices, 

the purpose or effect of which is to 

hinder significantly or to prevent any 

multichannel video programming 

distributor from providing satellite cable 

programming or satellite broadcast 

programming to subscribers or 

consumers’’). Section 628(c)(1) provides 

the Commission with authority to adopt 

rules to specify the conduct prohibited 

by Section 628(b). 47 U.S.C. 548(c)(1). 

As required by Section 628(c)(2) of the 

Act (47 U.S.C. 548(c)(2)), the 

Commission adopted rules in 1993 (the 

‘‘program access rules’’) which 

specifically prohibit: (i) A cable operator 

from unduly or improperly influencing 

the decision of its affiliated satellite 

cable programming vendor to sell, or 

unduly or improperly influencing the 

vendor’s prices, terms, and conditions 

for the sale of, satellite cable 

programming to any unaffiliated MVPD 

(the ‘‘undue or improper influence’’ rule) 

(see 47 CFR 76.1002(a)); (ii) a cableaffiliated satellite cable programming 

vendor from discriminating in the 

prices, terms, and conditions of sale or 

delivery of satellite cable programming 

among or between competing MVPDs 

(the ‘‘non-discrimination’’ rule) (see 47 

CFR 76.1002(b)); and (iii) a cable 

operator from entering into an exclusive 

contract for satellite cable programming 

with a cable-affiliated satellite cable 

programming vendor, subject to certain 

exceptions (the ‘‘exclusive contract 

prohibition’’) (see 47 CFR 76.1002(c)– 

(e)). The Commission has also adopted 

procedures for resolving complaints 

alleging a violation of these program 

access rules. See 47 CFR 76.1003. 

141. Consistent with the text of 

Section 628(c)(2), the Commission’s 

program access rules currently apply to 

‘‘satellite cable programming’’ and 

‘‘satellite broadcast programming.’’ 47 

U.S.C. 548(c)(2). The Act and the 

Commission’s rules define both terms to 

apply only to programming transmitted 

or retransmitted by satellite for 

reception by cable operators. The term 

‘‘satellite cable programming’’ means 

‘‘video programming which is 

transmitted via satellite and which is 

primarily intended for direct receipt by 

cable operators for their retransmission 

to cable subscribers,’’ except that such 

term does not include satellite broadcast 

programming. 47 U.S.C. 548(i)(1); 47 

U.S.C. 605(d)(1); see also 47 CFR 

76.1000(h). The term ‘‘satellite broadcast 

programming’’ means ‘‘broadcast video 

programming when such programming 

is retransmitted by satellite and the 

entity retransmitting such programming 

is not the broadcaster or an entity 

performing such retransmission on 

behalf of and with the specific consent 

of the broadcaster.’’ 47 U.S.C. 548(i)(3); 

see also 47 CFR 76.1000(f). 

142. The Commission has previously 

concluded that terrestrially delivered, 

cable-affiliated programming (such as 

programming transmitted to cable 

operators by fiber) is outside of the 

direct coverage of Section 628(c)(2) and 

the Commission’s program access rules 

under Section 628(c)(2). See DIRECTV, 

Inc. and EchoStar Commc’ns Corp. v. 

Comcast Corp. et al., 15 FCC Rcd 22802, 

22807 (2000), aff’d sub nom. EchoStar 

Commc’ns Corp. v. FCC, 292 F.3d 749 

(D.C. Cir. 2002); see also 2007 Program 

Access Order, 72 FR 56645, October 4, 

2007, appeal pending sub nom. 

Cablevision Systems Corp. et al v. FCC, 

No. 07–1425 (D.C. Cir); 2002 Program 

Access Order, 67 FR 49247, July 30, 

2002. This is commonly referred to as 

the ‘‘terrestrial loophole,’’ because it 

allows cable-affiliated programmers to 

transmit their programming to cable 

operators via terrestrial means and 

thereby avoid application of the 

program access rules. See 2002 Program 

Access Order. 

143. In the Order adopted herein, the 

Commission establishes rules for the 

consideration of complaints on a caseby-case basis alleging that a cable 

operator, a satellite cable programming 

vendor in which a cable operator has an 

attributable interest, or a satellite 

broadcast programming vendor, has 

engaged in unfair acts involving 

terrestrially delivered, cable-affiliated 

programming (which, as defined in this 

Order, includes exclusive contracts, 

discrimination, and undue or improper 

influence). The Order notes that there 

may be other acts or practices that are 

‘‘unfair’’ under Section 628(b). The 

Order, however, pertains only to 

exclusive contracts, discrimination, and 

undue or improper influence involving 

programming that is both terrestrially 

delivered and, consistent with Section 

628(c)(2), cable-affiliated. The Order 

does not reach any conclusions 

regarding other acts that may be ‘‘unfair’’ 

under Section 628(b), nor does it 

foreclose potential complaints. The 

Order discusses the Commission’s 

statutory authority for adopting rules to 

consider complaints alleging unfair acts 

involving terrestrially delivered, cableaffiliated programming. The 

Commission concludes that Section 

628(b) grants the Commission authority 

to address unfair acts involving 

terrestrially delivered, cable-affiliated 

programming. 

144. The Order next establishes the 

following reasons for Commission 

action to address unfair acts involving 

terrestrially delivered, cable-affiliated 

programming: (i) Cable operators 

continue to have an incentive and 

ability to engage in unfair acts involving 

their affiliated programming, regardless 

of whether this programming is satellitedelivered or terrestrially delivered; (ii) 

the Commission’s judgment regarding 

this incentive and ability is supported 

by real-world evidence that cable 

operators have withheld certain 

terrestrially delivered, cable-affiliated 

programming from their MVPD 

competitors; and (iii) there is evidence 

that this withholding may significantly 

hinder MVPDs from providing video 

service in some cases. The Order 

concludes that Commission action to 

address unfair acts involving 

terrestrially delivered, cable-affiliated 

programming will facilitate broadband 

deployment and promote the goals of 

Section 628 to increase competition and 

diversity in the video distribution 

market. The Order also concludes that 

addressing unfair acts involving 

terrestrially delivered, cable-affiliated 

programming on a case-by-case basis 

comports with the First Amendment. 

145. The Order next explains that 

complainants may pursue similar claims 

involving terrestrially delivered, cableaffiliated programming that they may 


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pursue with respect to satellitedelivered, cable-affiliated programming 

under the program access rules: 

exclusive contracts, discrimination, and 

undue or improper influence. The Order 

also describes four ways in which the 

rules adopted to address unfair acts 

involving terrestrially delivered, cableaffiliated programming differ from the 

program access rules applied to 

satellite-delivered, cable-affiliated 

programming: (i) A complainant 

alleging an unfair act involving 

terrestrially delivered, cable-affiliated 

programming will have the burden of 

proof (sometimes with the aid of a 

presumption when the unfair act 

involves a terrestrially delivered, cableaffiliated regional sports network) that 

the defendant’s activities have the 

purpose or effect of hindering 

significantly or preventing the 

complainant from providing satellite 

cable programming or satellite broadcast 

programming to subscribers or 

consumers; (ii) in program access 

complaints alleging discrimination by a 

cable-affiliated programmer that 

provides only terrestrially delivered 

programming, the complainant shall 

have the additional burden of proof that 

the programmer that is alleged to have 

engaged in discrimination is wholly 

owned by, controlled by, or under 

common control with the defendant 

cable operator or cable operators, 

satellite cable programming vendor or 

vendors in which a cable operator has 

an attributable interest, or satellite 

broadcast programming vendor or 

vendors; (iii) there is no per se 

prohibition on exclusive contracts 

between a cable operator and a cableaffiliated programmer that provides 

terrestrially delivered programming; 

rather, the Commission will assess such 

contracts on a case-by-case basis in 

response to a program access complaint; 

and (iv)defendants will have 45 days— 

rather than the usual 20 days—from the 

date of service of a program access 

complaint involving terrestrially 

delivered, cable-affiliated programming 

to file an Answer to the complaint. The 

Order then discusses how these rules 

will be applied to common carriers, 

existing contracts, and terrestrially 

delivered programming that is subject to 

the program access rules applicable to 

satellite-delivered programming as a 

result of merger conditions. Finally, the 

Order establishes procedures for the 

Commission’s consideration of requests 

for a temporary standstill of the price, 

terms, and other conditions of an 

existing programming contract by a 

program access complainant seeking 

renewal of such a contract. 

Summary of Significant Issues Raised by 

Public Comments in Response to the 

IRFA 

146. In its Comments on the NPRM, 

the National Telecommunications 

Cooperative Association (‘‘NTCA’’) 

stated that program access rules may 

have a significant economic impact on 

a substantial number of small entities, 

such as small rural MVPDs. NTCA 

stated further that its proposed 

amendments to the Commission’s 

program access rules, which would 

include extending the program access 

rules to terrestrially delivered, cableaffiliated programming, would reduce 

the impact on small rural MVPDs. 

NTCA also stated that its proposed 

amendments will ‘‘promote the public 

interest, convenience, and necessity by 

increasing competition and diversity in 

the multi-channel video programming 

market and spur development of new 

communications technologies.’’ We 

conclude that allowing MVPDs to 

pursue program access claims involving 

terrestrially delivered, cable-affiliated 

programming will reduce the impact on 

small rural MVPDs by promoting 

competition and diversity in the MVPD 

market. 

Description and Estimate of the Number 

of Small Entities to Which the Proposed 

Rules Will Apply 

147. The RFA directs agencies to 

provide a description of, and where 

feasible, an estimate of the number of 

small entities that may be affected by 

the proposed rules, if adopted. The RFA 

generally defines the term ‘‘small entity’’ 

as having the same meaning as the terms 

‘‘small business,’’ ‘‘small organization,’’ 

and ‘‘small governmental jurisdiction.’’ 

In addition, the term ‘‘small business’’ 

has the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act. A ‘‘small business 

concern’’ is one which: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the Small Business 

Administration (‘‘SBA’’). 

148. Wired Telecommunications 

Carriers. The 2007 North American 

Industry Classification System 

(‘‘NAICS’’) defines ‘‘Wired 

Telecommunications Carriers’’ as 

follows: ‘‘This industry comprises 

establishments primarily engaged in 

operating and/or providing access to 

transmission facilities and infrastructure 

that they own and/or lease for the 

transmission of voice, data, text, sound, 

and video using wired 

telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services; wired 

(cable) audio and video programming 

distribution; and wired broadband 

Internet services. By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry.’’ 

The SBA has developed a small 

business size standard for wireline firms 

within the broad economic census 

category, ‘‘Wired Telecommunications 

Carriers.’’ Under this category, the SBA 

deems a wireline business to be small if 

it has 1,500 or fewer employees. Census 

Bureau data for 2002 show that there 

were 2,432 firms in this category that 

operated for the entire year. Of this 

total, 2,395 firms had employment of 

999 or fewer employees, and 37 firms 

had employment of 1,000 employees or 

more. Thus, under this category and 

associated small business size standard, 

the majority of firms can be considered 

small. 

149. Wired Telecommunications 

Carriers—Cable and Other Program 

Distribution. This category includes, 

among others, cable operators, direct 

broadcast satellite (‘‘DBS’’) services, 

home satellite dish (‘‘HSD’’) services, 

satellite master antenna television 

(‘‘SMATV’’) systems, and open video 

systems (‘‘OVS’’). The data we have 

available as a basis for estimating the 

number of such entities were gathered 

under a superseded SBA small business 

size standard formerly titled Cable and 

Other Program Distribution. The former 

Cable and Other Program Distribution 

category is now included in the category 

of Wired Telecommunications Carriers, 

the majority of which, as discussed 

above, can be considered small. Under 

the superseded SBA size standard, 

which had the same NAICS code, 

517110, a small entity was defined as 

one with $13.5 million or less in annual 

receipts. According to Census Bureau 

data for 2002, there were a total of 1,191 

firms in this previous category that 

operated for the entire year. Of this 

total, 1,087 firms had annual receipts of 

under $10 million, and 43 firms had 

receipts of $10 million or more but less 

than $25 million. Thus, we believe that 

a substantial number of entities 

included in the former Cable and Other 

Program Distribution category may have 

been categorized as small entities under 

the now superseded SBA small business 

size standard for Cable and Other 


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Program Distribution. With respect to 

OVS, the Commission has approved 

approximately 120 OVS certifications 

with some OVS operators now 

providing service. Broadband service 

providers (BSPs) are currently the only 

significant holders of OVS certifications 

or local OVS franchises, even though 

OVS is one of four statutorilyrecognized options for local exchange 

carriers (LECs) to offer video 

programming services. As of June 2006, 

BSPs served approximately 1.4 million 

subscribers, representing 1.46 percent of 

all MVPD households. See 13th Annual 

Report, 24 FCC Rcd 542, 684, Table B– 

1 (2009). Among BSPs, however, those 

operating under the OVS framework are 

in the minority. OPASTCO reports that 

fewer than 3 percent of its members 

provide service under OVS certification. 

See id. at 607. The Commission does not 

have financial information regarding the 

entities authorized to provide OVS, 

some of which may not yet be 

operational. We thus believe that at least 

some of the OVS operators may qualify 

as small entities. 

150. Cable System Operators (Rate 

Regulation Standard). The Commission 

has also developed its own small 

business size standards for the purpose 

of cable rate regulation. Under the 

Commission’s rules, a ‘‘small cable 

company’’ is one serving 400,000 or 

fewer subscribers nationwide. As of 

2006, 7,916 cable operators qualify as 

small cable companies under this 

standard. In addition, under the 

Commission’s rules, a ‘‘small system’’ is 

a cable system serving 15,000 or fewer 

subscribers. Industry data indicate that 

6,139 systems have under 10,000 

subscribers, and an additional 379 

systems have 10,000–19,999 

subscribers. Thus, under this standard, 

most cable systems are small. 

151. Cable System Operators 

(Telecom Act Standard). The 

Communications Act of 1934, as 

amended, also contains a size standard 

for small cable system operators, which 

is ‘‘a cable operator that, directly or 

through an affiliate, serves in the 

aggregate fewer than 1 percent of all 

subscribers in the United States and is 

not affiliated with any entity or entities 

whose gross annual revenues in the 

aggregate exceed $250,000,000.’’ There 

are approximately 65.3 million cable 

subscribers in the United States today. 

Accordingly, an operator serving fewer 

than 654,000 subscribers shall be 

deemed a small operator, if its annual 

revenues, when combined with the total 

annual revenues of all its affiliates, do 

not exceed $250 million in the 

aggregate. Based on available data, we 

find that the number of cable operators 

serving 654,000 subscribers or less totals 

approximately 7,916. We note that the 

Commission neither requests nor 

collects information on whether cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250 million. Although it seems 

certain that some of these cable system 

operators are affiliated with entities 

whose gross annual revenues exceed 

$250,000,000, we are unable at this time 

to estimate with greater precision the 

number of cable system operators that 

would qualify as small cable operators 

under the definition in the 

Communications Act. 

152. Wired Telecommunications 

Carriers—Direct Broadcast Satellite 

(‘‘DBS’’) Service. DBS service is a 

nationally distributed subscription 

service that delivers video and audio 

programming via satellite to a small 

parabolic ‘‘dish’’ antenna at the 

subscriber’s location. DBS is now 

included in the category of Wired 

Telecommunications Carriers. The size 

standard for that definition is 1,500 

employees. The majority of services in 

this category can be considered small 

under both the current SBA size 

standard definition and the superseded 

size standard definition, i.e., Cable and 

Other Program Distribution. Under the 

superseded SBA size standard, which 

had the same NAICS code, 517110, a 

small entity was defined as one with 

$13.5 million or less in annual receipts. 

Currently, three operators provide DBS 

service, which requires a great 

investment of capital for operation: 

DIRECTV, EchoStar (marketed as the 

DISH Network), and Dominion Video 

Satellite, Inc. (‘‘Dominion’’) (marketed as 

Sky Angel). See 13th Annual Report, 24 

FCC Rcd at 580. All three currently offer 

subscription services. Two of these 

three DBS operators, DIRECTV and 

EchoStar Communications Corporation 

(‘‘EchoStar’’), report annual revenues 

that are in excess of the threshold for a 

small business. The third DBS operator, 

Dominion’s Sky Angel service, serves 

fewer than 500,000 subscribers. See id. 

at 581. Dominion does not report its 

annual revenues. The Commission does 

not know of any source which provides 

this information and, thus, we have no 

way of confirming whether Dominion 

qualifies as a small business. Because 

DBS service requires significant capital, 

we believe it is unlikely that a small 

entity as defined by the SBA would 

have the financial wherewithal to 

become a DBS licensee. 

153. Wired Telecommunications 

Carriers—Private Cable Operators 

(PCOs) also known as Satellite Master 

Antenna Television (SMATV) Systems. 

PCOs, also known as SMATV systems or 

private communication operators, are 

video distribution facilities that use 

closed transmission paths without using 

any public right-of-way. PCOs acquire 

video programming and distribute it via 

terrestrial wiring in urban and suburban 

multiple dwelling units such as 

apartments and condominiums, and 

commercial multiple tenant units such 

as hotels and office buildings. PCOs are 

now included in the category of Wired 

Telecommunications Carriers. The size 

standard for that definition is 1,500 

employees. The majority of services in 

this category can be considered small 

under both the current SBA size 

standard definition and the superseded 

size standard definition, i.e., Cable and 

Other Program Distribution. Under the 

superseded SBA size standard, which 

had the same NAICS code, 517110, a 

small entity was defined as one with 

$13.5 million or less in annual receipts. 

The Independent Multi-Family 

Communications Council (‘‘IMCC’’), the 

trade association that represents PCOs, 

indicates that PCOs serve about 1 to 2 

percent of the MVPD marketplace. See 

id. at 609. Individual PCOs often serve 

approximately 3,000–4,000 subscribers, 

but the larger operations serve as many 

as 15,000–55,000 subscribers. In total, 

PCOs currently serve approximately 

900,000 subscribers. See id. at 684. 

Because these operators are not rate 

regulated, they are not required to file 

financial data with the Commission. 

Furthermore, we are not aware of any 

privately published financial 

information regarding these operators. 

Based on the estimated number of 

operators and the estimated number of 

units served by the largest ten PCOs, we 

believe that a substantial number of 

PCOs may have been categorized as 

small entities under the now superseded 

SBA small business size standard for 

Cable and Other Program Distribution. 

154. Wired Telecommunications 

Carriers—Home Satellite Dish (‘‘HSD’’) 

Service. HSD is now included in the 

category of Wired Telecommunications 

Carriers, the majority of which, as 

discussed above, can be considered 

small. The data we use herein to 

estimate the number of HSD services is 

based on a superseded SBA-recognized 

definition. Because HSD provides 

subscription services, HSD fell within 

the SBA-recognized definition of Cable 

and Other Program Distribution, which 

has been superseded by the category of 

Wired Telecommunications Carriers. 

The definition of Cable and Other 

Program Distribution provided that a 

small entity was one with $13.5 million 

or less in annual receipts. HSD or the 

large dish segment of the satellite 


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industry is the original satellite-to-home 

service offered to consumers, and 

involves the home reception of signals 

transmitted by satellites operating 

generally in the C-band frequency. 

Unlike DBS, which uses small dishes, 

HSD antennas are between four and 

eight feet in diameter and can receive a 

wide range of unscrambled (free) 

programming and scrambled 

programming purchased from program 

packagers that are licensed to facilitate 

subscribers’ receipt of video 

programming. There are approximately 

30 satellites operating in the C-band, 

which carry over 500 channels of 

programming combined; approximately 

350 channels are available free of charge 

and 150 are scrambled and require a 

subscription. HSD is difficult to 

quantify in terms of annual revenue. 

HSD owners have access to program 

channels placed on C-band satellites by 

programmers for receipt and 

distribution by MVPDs. Commission 

data shows that, between June 2005 and 

June 2006, HSD subscribership fell from 

206,538 subscribers to 111,478 

subscribers. See id. at 684, Table B–1. 

The Commission has no information 

regarding the annual revenue of the four 

C–Band distributors. 

155. Wireless Telecommunications 

Carriers (except Satellite)—Broadband 

Radio Service and Educational 

Broadband Service. Since 2007, the 

Census Bureau has placed wireless 

firms, including those providing 

wireless video service, within the new 

category of Wireless 

Telecommunications Carriers (except 

Satellite). Under the present and prior 

categories, the SBA has deemed a 

wireless business to be small if it has 

1,500 or fewer employees. The 

Broadband Radio Service (BRS) is 

composed of Multichannel Multipoint 

Distribution Service (MMDS) systems 

and Multipoint Distribution Service 

(MDS). MMDS systems, often referred to 

as ‘‘wireless cable,’’ transmit video 

programming to subscribers using the 

microwave frequencies of MDS and 

Educational Broadband Service (EBS) 

(formerly known as Instructional 

Television Fixed Service (ITFS)). We 

estimate that the number of wireless 

cable subscribers is approximately 

100,000, as of March 2005. Previously, 

wireless cable fell within the SBArecognized definition of Cable and 

Other Program Distribution. The 

definition of Cable and Other Program 

Distribution provided that a small entity 

is one with $13.5 million or less in 

annual receipts. 

156. Broadband Radio Service and 

Educational Broadband Service— 

Auction Data. The Commission has also 

defined small MDS (now BRS) entities 

in the context of Commission license 

auctions. For purposes of the 1996 MDS 

auction, the Commission defined a 

small business as an entity that had 

annual average gross revenues of less 

than $40 million in the previous three 

calendar years. This definition of a 

small entity in the context of MDS 

auctions has been approved by the SBA. 

In the MDS auction, 67 bidders won 493 

licenses. Of the 67 auction winners, 61 

claimed status as a small business. At 

this time, the Commission estimates that 

of the 61 small business MDS auction 

winners, 48 remain small business 

licensees. In addition to the 48 small 

businesses that hold BTA 

authorizations, there are approximately 

392 incumbent MDS licensees that have 

gross revenues that are not more than 

$40 million and are thus considered 

small entities. Hundreds of stations 

were licensed to incumbent MDS 

licensees prior to implementation of 

Section 309(j) of the Communications 

Act of 1934. 47 U.S.C. 309(j). For these 

pre-auction licenses, the applicable 

standard is SBA’s small business size 

standards for ‘‘other 

telecommunications’’ (annual receipts of 

$13.5 million or less). 

157. Broadband Radio Service and 

Educational Broadband Service— 

Licenses Not Received Via Auction. 

MDS (now BRS) licensees and wireless 

cable operators that did not receive their 

licenses as a result of the MDS auction 

fall within the new category of Wireless 

Telecommunications Carriers (except 

Satellite). Under the present and prior 

categories, the SBA has deemed a 

wireless business to be small if it has 

1,500 or fewer employees. Previously, 

wireless cable fell within the SBArecognized definition of Cable and 

Other Program Distribution. The 

definition of Cable and Other Program 

Distribution provided that a small entity 

is one with $13.5 million or less in 

annual receipts. Information available to 

us indicates that there are 

approximately 850 of these licensees 

and operators that do not generate 

revenue in excess of $13.5 million 

annually. Therefore, we estimate that 

there are approximately 850 small entity 

MDS (or BRS) providers under the now 

superseded SBA small business size 

standard for Cable and Other Program 

Distribution. 

158. Educational Broadband Service. 

Educational institutions are included in 

the analysis above as small entities; 

however, the Commission has not 

created a specific small business size 

standard for ITFS (now EBS). We 

estimate that there are currently 2,032 

ITFS (or EBS) licensees, and all but 100 

of the licenses are held by educational 

institutions. Thus, we estimate that at 

least 1,932 ITFS licensees are small 

entities. 

159. Wireless Telecommunications 

Carriers (except Satellite)—Local 

Multipoint Distribution Service. Local 

Multipoint Distribution Service (LMDS) 

is a fixed broadband point-to-multipoint 

microwave service that provides for 

two-way video telecommunications. 

Since 2007, the Census Bureau has 

placed wireless firms, including those 

providing wireless video service, within 

the new category of Wireless 

Telecommunications Carriers (except 

Satellite). Under the present and prior 

categories, the SBA has deemed a 

wireless business to be small if it has 

1,500 or fewer employees. Previously, 

LMDS providing wireless cable fell 

within the SBA-recognized definition of 

Cable and Other Program Distribution. 

The definition of Cable and Other 

Program Distribution provided that a 

small entity is one with $13.5 million or 

less in annual receipts. 

160. Wireless Telecommunications 

Carriers (except Satellite)—Local 

Multipoint Distribution Service 

(Auctions). The Commission has also 

defined small LMDS entities in the 

context of Commission license auctions. 

In the 1998 and 1999 LMDS auctions, 

the Commission defined a small 

business as an entity that had annual 

average gross revenues of less than $40 

million in the previous three calendar 

years. Moreover, the Commission added 

an additional classification for a ‘‘very 

small business,’’ which was defined as 

an entity that had annual average gross 

revenues of less than $15 million in the 

previous three calendar years. These 

definitions of ‘‘small business’’ and ‘‘very 

small business’’ in the context of the 

LMDS auctions have been approved by 

the SBA. In the first LMDS auction, 104 

bidders won 864 licenses. Of the 104 

auction winners, 93 claimed status as 

small or very small businesses. In the 

LMDS re-auction, 40 bidders won 161 

licenses. Based on this information, we 

believe that the number of small LMDS 

licenses will include the 93 winning 

bidders in the first auction and the 40 

winning bidders in the re-auction, for a 

total of 133 small entity LMDS 

providers as defined by the 

Commission’s auction rules and the 

now superseded SBA small business 

size standard for Cable and Other 

Program Distribution. 

161. Cable and Other Subscription 

Programming. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in operating studios 

and facilities for the broadcasting of 


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programs on a subscription or fee basis. 

* * * These establishments produce 

programming in their own facilities or 

acquire programming from external 

sources. The programming material is 

usually delivered to a third party, such 

as cable systems or direct-to-home 

satellite systems, for transmission to 

viewers.’’ The SBA has developed a 

small business size standard for firms 

within this category, which is all firms 

with $15 million or less in annual 

receipts. According to Census Bureau 

data for 2002, there were 270 firms in 

this category that operated for the entire 

year. Of this total, 217 firms had annual 

receipts of under $10 million and 13 

firms had annual receipts of $10 million 

to $24,999,999. Thus, under this 

category and associated small business 

size standard, the majority of firms can 

be considered small. 

162. Motion Picture and Video 

Production. The Census Bureau defines 

this category as follows: ‘‘This industry 

comprises establishments primarily 

engaged in producing, or producing and 

distributing motion pictures, videos, 

television programs, or television 

commercials.’’ The SBA has developed a 

small business size standard for firms 

within this category, which is all firms 

with $29.5 million or less in annual 

receipts. According to Census Bureau 

data for 2002, there were 7,772 firms in 

this category that operated for the entire 

year. Of this total, 7,685 firms had 

annual receipts of under $24,999,999 

and 45 firms had annual receipts of 

between $25,000,000 and $49,999,999. 

Thus, under this category and 

associated small business size standard, 

the majority of firms can be considered 

small. Each of these NAICS categories is 

very broad and includes firms that may 

be engaged in various industries, 

including cable programming. Specific 

figures are not available regarding how 

many of these firms exclusively produce 

and/or distribute programming for cable 

television or how many are 

independently owned and operated. 

163. Motion Picture and Video 

Distribution. The Census Bureau defines 

this category as follows: ‘‘This industry 

comprises establishments primarily 

engaged in acquiring distribution rights 

and distributing film and video 

productions to motion picture theaters, 

television networks and stations, and 

exhibitors.’’ The SBA has developed a 

small business size standard for firms 

within this category, which is all firms 

with $29.5 million or less in annual 

receipts. According to Census Bureau 

data for 2002, there were 377 firms in 

this category that operated for the entire 

year. Of this total, 365 firms had annual 

receipts of under $24,999,999 and 7 

firms had annual receipts of between 

$25,000,000 and $49,999,999. Thus, 

under this category and associated small 

business size standard, the majority of 

firms can be considered small. Each of 

these NAICS categories is very broad 

and includes firms that may be engaged 

in various industries, including cable 

programming. Specific figures are not 

available regarding how many of these 

firms exclusively produce and/or 

distribute programming for cable 

television or how many are 

independently owned and operated. 

164. Small Incumbent Local Exchange 

Carriers. We have included small 

incumbent local exchange carriers in 

this present RFA analysis. A ‘‘small 

business’’ under the RFA is one that, 

inter alia, meets the pertinent small 

business size standard (e.g., a telephone 

communications business having 1,500 

or fewer employees), and ‘‘is not 

dominant in its field of operation.’’ The 

SBA’s Office of Advocacy contends that, 

for RFA purposes, small incumbent 

local exchange carriers are not dominant 

in their field of operation because any 

such dominance is not ‘‘national’’ in 

scope. We have therefore included small 

incumbent local exchange carriers in 

this RFA, although we emphasize that 

this RFA action has no effect on 

Commission analyses and 

determinations in other, non-RFA 

contexts. 

165. Incumbent Local Exchange 

Carriers (‘‘LECs’’). Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for incumbent local 

exchange services. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 1,307 carriers have 

reported that they are engaged in the 

provision of incumbent local exchange 

services. Of these 1,307 carriers, an 

estimated 1,019 have 1,500 or fewer 

employees and 288 have more than 

1,500 employees. Consequently, the 

Commission estimates that most 

providers of incumbent local exchange 

service are small businesses. 

166. Competitive Local Exchange 

Carriers, Competitive Access Providers 

(CAPs), ‘‘Shared-Tenant Service 

Providers,’’ and ‘‘Other Local Service 

Providers.’’ Neither the Commission nor 

the SBA has developed a small business 

size standard specifically for these 

service providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 859 carriers have 

reported that they are engaged in the 

provision of either competitive access 

provider services or competitive local 

exchange carrier services. Of these 859 

carriers, an estimated 741 have 1,500 or 

fewer employees and 118 have more 

than 1,500 employees. In addition, 16 

carriers have reported that they are 

‘‘Shared-Tenant Service Providers,’’ and 

all 16 are estimated to have 1,500 or 

fewer employees. In addition, 44 

carriers have reported that they are 

‘‘Other Local Service Providers.’’ Of the 

44, an estimated 43 have 1,500 or fewer 

employees and one has more than 1,500 

employees. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

‘‘Shared-Tenant Service Providers,’’ and 

‘‘Other Local Service Providers’’ are 

small entities. 

167. Electric Power Generation, 

Transmission and Distribution. The 

Census Bureau defines this category as 

follows: ‘‘This industry group comprises 

establishments primarily engaged in 

generating, transmitting, and/or 

distributing electric power. 

Establishments in this industry group 

may perform one or more of the 

following activities: (1) Operate 

generation facilities that produce 

electric energy; (2) operate transmission 

systems that convey the electricity from 

the generation facility to the distribution 

system; and (3) operate distribution 

systems that convey electric power 

received from the generation facility or 

the transmission system to the final 

consumer.’’ The SBA has developed a 

small business size standard for firms in 

this category: ‘‘A firm is small if, 

including its affiliates, it is primarily 

engaged in the generation, transmission, 

and/or distribution of electric energy for 

sale and its total electric output for the 

preceding fiscal year did not exceed 4 

million megawatt hours.’’ According to 

Census Bureau data for 2002, there were 

1,644 firms in this category that 

operated for the entire year. Census data 

do not track electric output and we have 

not determined how many of these firms 

fit the SBA size standard for small, with 

no more than 4 million megawatt hours 

of electric output. Consequently, we 

estimate that 1,644 or fewer firms may 

be considered small under the SBA 

small business size standard. 

Description of Reporting, Recordkeeping 

and Other Compliance Requirements 

168. The rules adopted in the Order 

will impose additional reporting, 

recordkeeping, and compliance 

requirements on MVPDs, cable 


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operators, satellite cable programming 

vendors in which a cable operator has 

an attributable interest, and satellite 

broadcast programming vendors. The 

Order allows MVPDs to file complaints 

with the Commission alleging that a 

cable operator, a satellite cable 

programming vendor in which a cable 

operator has an attributable interest, or 

a satellite broadcast programming 

vendor, has engaged in an unfair act 

involving terrestrially delivered, cableaffiliated programming (which, as 

defined in this Order, includes 

exclusive contracts, discrimination, and 

undue or improper influence). The 

complaint proceeding will be subject to 

the same procedures set forth in 

Sections 76.7 and 76.1003 of the 

Commission’s rules that apply to 

program access complaints involving 

satellite-delivered, cable-affiliated 

programming (see 47 CFR 76.7, 

76.1003), except that (i) a complainant 

alleging an unfair act involving 

terrestrially delivered, cable-affiliated 

programming will have the burden of 

proof (sometimes with the aid of a 

presumption when the unfair act 

involves a terrestrially delivered, cableaffiliated regional sports network) that 

the defendant’s activities have the 

purpose or effect of hindering 

significantly or preventing the 

complainant from providing satellite 

cable programming or satellite broadcast 

programming to subscribers or 

consumers; (ii) in program access 

complaints alleging discrimination by a 

cable-affiliated programmer that 

provides only terrestrially delivered 

programming, the complainant shall 

have the additional burden of proof that 

the programmer that is alleged to have 

engaged in discrimination is wholly 

owned by, controlled by, or under 

common control with the defendant 

cable operator or cable operators, 

satellite cable programming vendor or 

vendors in which a cable operator has 

an attributable interest, or satellite 

broadcast programming vendor or 

vendors; and (iii) defendants will have 

45 days—rather than the usual 20 

days—from the date of service of a 

program access complaint involving 

terrestrially delivered, cable-affiliated 

programming to file an Answer to the 

complaint. In addition, these rules 

provide for pre-filing notices, discovery, 

remedies, potential defenses, and the 

required contents of and deadlines for 

filing the complaint, answer, and reply. 

See 47 CFR 76.7, 76.1003. The Order 

also establishes procedures for the 

Commission’s consideration of requests 

for a temporary standstill of the price, 

terms, and other conditions of an 

existing programming contract by a 

program access complainant seeking 

renewal of such a contract. 

Steps Taken To Minimize Significant 

Impact on Small Entities and Significant 

Alternatives Considered 

169. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in proposing 

regulatory approaches, which may 

include the following four alternatives 

(among others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities. The NPRM invited 

comment on issues that had the 

potential to have significant economic 

impact on some small entities. 

170. As discussed above, the decision 

to establish rules to address unfair acts 

involving terrestrially delivered, cableaffiliated programming on a case-bycase basis, and to establish procedures 

for the Commission’s consideration of 

requests for a temporary standstill, will 

facilitate competition in the video 

distribution market and promote 

broadband deployment. The decision 

therefore confers benefits upon various 

MVPDs, including those that are smaller 

entities. Thus, the decision benefits 

smaller entities as well as larger entities. 

In general, because the decision confers 

these benefits on smaller entities, a 

discussion of alternatives to the adopted 

rules is of secondary importance. We 

note that in the Order, the Commission 

found a lack of record evidence to reach 

a general conclusion that unfair acts 

involving this programming will 

significantly hinder an MVPD from 

providing video services in every case. 

A case-by-case approach is less 

burdensome than declining to consider 

complaints alleging that a cable operator 

has engaged in unfair acts involving 

terrestrially delivered, cable-affiliated 

programming, because small MVPDs 

would lack relief in such situations. 

Moreover, while the Order provides 

illustrative examples of evidence a 

complainant may provide, such as a 

regression analysis or market survey, it 

also recognizes that not all potential 

complainants will have the resources to 

provide this type of evidence. In 

addition, a case-by-case approach is 

consistent with the First Amendment. 

Report to Congress 

171. The Commission will send a 

copy of the First Report and Order in 

MB Docket No. 07–198, including this 

FRFA, in a report to be sent to Congress 

and the Government Accountability 

Office pursuant to the Congressional 

Review Act. In addition, the 

Commission will send a copy of the 

First Report and Order in MB Docket 

No. 07–198, including this FRFA, to the 

Chief Counsel for Advocacy of the SBA. 

A copy of the First Report and Order in 

MB Docket No. 07–198 and FRFA (or 

summaries thereof) will also be 

published in the Federal Register. 

V. Ordering Clauses 

172. It is ordered that, pursuant to the 

authority found in Sections 4(i), 303(r), 

and 628 of the Communications Act of 

1934, as amended, 47 U.S.C. 154(i), 

303(r), and 548, this First Report and 

Order Is Adopted. 

173. It is ordered that, pursuant to the 

authority found in Sections 4(i), 303(r), 

and 628 of the Communications Act of 

1934, as amended, 47 U.S.C. 154(i), 

303(r), and 548, the Commission’s rules 

Are Hereby Amended as set forth in the 

Rules Changes below. 

174. It is ordered that the rules 

adopted herein are effective April 2, 

2010, except for Sections 76.1001(b)(2), 

76.1003(c)(3), and 76.1003(l) which 

contain new or modified information 

collection requirements that require 

approval by the Office of Management 

and Budget (‘‘OMB’’) under the 

Paperwork Reduction Act (PRA) and 

will become effective after the 

Commission publishes a notice in the 

Federal Register announcing such 

approval and the relevant effective date. 

175. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this First Report and Order in MB 

Docket No. 07–198, including the Final 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

176. It is further ordered that the 

Commission shall send a copy of this 

First Report and Order in MB Docket 

No. 07–198 in a report to be sent to 

Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

List of Subjects in 47 CFR Part 76 

Administrative practice and 

procedure, Cable television, Equal 

employment opportunity, Political 

candidates, and Reporting and 

recordkeeping requirements. 


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Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Rules and Regulations 9723 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Rule Changes 

■ For the reasons stated in the preamble, 

the Federal Communications 

Commission amends 47 CFR part 76 as 

follows: 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

■ 1. The authority citation for part 76 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152, 153, 154, 

301, 302, 302a, 303, 303a, 307, 308, 309, 312, 

315, 317, 325, 339, 340, 341, 503, 521, 522, 

531, 532, 534, 535, 536, 537, 543, 544, 544a, 

545, 548, 549, 552, 554, 556, 558, 560, 561, 

571, 572, 573. 

■ 2. Section 76.1000 is amended by 

revising the first sentence of paragraph 

(b), (c)(1), the first sentence of paragraph 

(j), and adding paragraphs (l) and (m) to 

read as follows: 

§ 76.1000 Definitions. 

* * * * * 

(b) Cognizable interests. In applying 

the provisions of this subpart, 

ownership and other interests in cable 

operators, satellite cable programming 

vendors, satellite broadcast 

programming vendors, or terrestrial 

cable programming vendors will be 

attributed to their holders and may 

subject the interest holders to the rules 

of this subpart. * * * 

* * * * * 

(c) * * * 

(1) Agrees to be financially liable for 

any fees due pursuant to a satellite cable 

programming, satellite broadcast 

programming, or terrestrial cable 

programming contract which it signs as 

a contracting party as a representative of 

its members or whose members, as 

contracting parties, agree to joint and 

several liability; and 

* * * * * 

(j) Similarly situated. The term 

‘‘similarly situated’’ means, for the 

purposes of evaluating alternative 

programming contracts offered by a 

defendant programming vendor or by a 

terrestrial cable programming vendor 

alleged to have engaged in conduct 

described in § 76.1001(b)(1)(ii), that an 

alternative multichannel video 

programming distributor has been 

identified by the defendant as being 

more properly compared to the 

complainant in order to determine 

whether a violation of § 76.1001(a) or 

§ 76.1002(b) has occurred. * * * 

* * * * * 

(l) Terrestrial cable programming. The 

term ‘‘terrestrial cable programming’’ 

means video programming which is 

transmitted terrestrially or by any means 

other than satellite and which is 

primarily intended for direct receipt by 

cable operators for their retransmission 

to cable subscribers, except that such 

term does not include satellite broadcast 

programming or satellite cable 

programming. 

(m) Terrestrial cable programming 

vendor. The term ‘‘terrestrial cable 

programming vendor’’ means a person 

engaged in the production, creation, or 

wholesale distribution for sale of 

terrestrial cable programming, but does 

not include a satellite broadcast 

programming vendor or a satellite cable 

programming vendor. 

■ 3. Section 76.1001 is revised to read 

as follows: 

§ 76.1001 Unfair practices generally. 

(a) Unfair practices generally. No 

cable operator, satellite cable 

programming vendor in which a cable 

operator has an attributable interest, or 

satellite broadcast programming vendor 

shall engage in unfair methods of 

competition or unfair or deceptive acts 

or practices, the purpose or effect of 

which is to hinder significantly or 

prevent any multichannel video 

programming distributor from providing 

satellite cable programming or satellite 

broadcast programming to subscribers or 

consumers. 

(b) Unfair practices involving 

terrestrial cable programming and 

terrestrial cable programming vendors. 

(1) The phrase ‘‘unfair methods of 

competition or unfair or deceptive acts 

or practices’’ as used in paragraph (a) of 

this section includes, but is not limited 

to, the following: 

(i) Any effort or action by a cable 

operator that has an attributable interest 

in a terrestrial cable programming 

vendor to unduly or improperly 

influence the decision of such vendor to 

sell, or unduly or improperly influence 

such vendor’s prices, terms, and 

conditions for the sale of, terrestrial 

cable programming to any unaffiliated 

multichannel video programming 

distributor. 

(ii) Discrimination in the prices, 

terms, or conditions of sale or delivery 

of terrestrial cable programming among 

or between competing cable systems, 

competing cable operators, or any 

competing multichannel video 

programming distributors, or their 

agents or buying groups, by a terrestrial 

cable programming vendor that is 

wholly owned by, controlled by, or 

under common control with a cable 

operator or cable operators, satellite 

cable programming vendor or vendors 

in which a cable operator has an 

attributable interest, or satellite 

broadcast programming vendor or 

vendors; except that the phrase does not 

include the practices set forth in 

§ 76.1002(b)(1) through (3). The cable 

operator or cable operators, satellite 

cable programming vendor or vendors 

in which a cable operator has an 

attributable interest, or satellite 

broadcast programming vendor or 

vendors that wholly own or control, or 

are under common control with, such 

terrestrial cable programming vendor 

shall be deemed responsible for such 

discrimination and any complaint based 

on such discrimination shall be filed 

against such cable operator, satellite 

cable programming vendor, or satellite 

broadcast programming vendor. 

(iii) Exclusive contracts, or any 

practice, activity, or arrangement 

tantamount to an exclusive contract, for 

terrestrial cable programming between a 

cable operator and a terrestrial cable 

programming vendor in which a cable 

operator has an attributable interest. 

(2) Any multichannel video 

programming distributor aggrieved by 

conduct described in paragraph (b)(1) of 

this section that it believes constitutes a 

violation of paragraph (a) of this section 

may commence an adjudicatory 

proceeding at the Commission to obtain 

enforcement of the rules through the 

filing of a complaint. The complaint 

shall be filed and responded to in 

accordance with the procedures 

specified in § 76.7, as modified by 

§ 76.1003, with the following additions 

or changes: 

(i) The defendant shall answer the 

complaint within forty-five (45) days of 

service of the complaint, unless 

otherwise directed by the Commission. 

(ii) The complainant shall have the 

burden of proof that the defendant’s 

alleged conduct described in paragraph 

(b)(1) of this section has the purpose or 

effect of hindering significantly or 

preventing the complainant from 

providing satellite cable programming 

or satellite broadcast programming to 

subscribers or consumers. An answer to 

such a complaint shall set forth the 

defendant’s reasons to support a finding 

that the complainant has not carried this 

burden. 

(iii) A complainant alleging that a 

terrestrial cable programming vendor 

has engaged in conduct described in 

paragraph (b)(1)(ii) of this section shall 

have the burden of proof that the 

terrestrial cable programming vendor is 

wholly owned by, controlled by, or 

under common control with a cable 

operator or cable operators, satellite 

cable programming vendor or vendors 


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9724 Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Rules and Regulations 

in which a cable operator has an 

attributable interest, or satellite 

broadcast programming vendor or 

vendors. An answer to such a complaint 

shall set forth the defendant’s reasons to 

support a finding that the complainant 

has not carried this burden. 

■ 4. Section 76.1002 is amended by 

revising paragraph (b)(2) introductory 

text (the note remains unchanged) to 

read as follows: 

§ 76.1002 Specific unfair practices 

prohibited. 

* * * * * 

(b) * * * 

(2) The establishment of different 

prices, terms, and conditions to take 

into account actual and reasonable 

differences in the cost of creation, sale, 

delivery, or transmission of satellite 

cable programming, satellite broadcast 

programming, or terrestrial cable 

programming; * * * 

* * * * * 

■ 5. Section 76.1003 is amended by 

revising paragraph (c)(3), the first 

sentence of paragraph (e)(1), paragraphs 

(g)(1) through (3), and by adding 

paragraph (l) to read as follows: 

§ 76.1003 Program access proceedings. 

* * * * * 

(c) * * * 

(3) Evidence that the complainant 

competes with the defendant cable 

operator, or with a multichannel video 

programming distributor that is a 

customer of the defendant satellite cable 

programming or satellite broadcast 

programming vendor or a terrestrial 

cable programming vendor alleged to 

have engaged in conduct described in 

§ 76.1001(b)(1); 

* * * * * 

(e) * * * 

(1) Except as otherwise provided or 

directed by the Commission, any cable 

operator, satellite cable programming 

vendor or satellite broadcast 

programming vendor upon which a 

program access complaint is served 

under this section shall answer within 

twenty (20) days of service of the 

complaint. * * * 

* * * * * 

(g) * * * 

(1) The satellite cable programming 

vendor, satellite broadcast programming 

vendor, or terrestrial cable 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 

vendor, satellite broadcast programming 

vendor, or terrestrial cable 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 vendor, satellite broadcast 

programming vendor, or terrestrial cable 

programming vendor; or 

(3) The complainant has notified a 

cable operator, or a satellite cable 

programming vendor or a satellite 

broadcast programming vendor that it 

intends to file a complaint with the 

Commission based on a request to 

purchase or negotiate to purchase 

satellite cable programming, satellite 

broadcast programming, or terrestrial 

cable programming, or has made a 

request to amend an existing contract 

pertaining to such programming 

pursuant to § 76.1002(f) of this part that 

has been denied or unacknowledged, 

allegedly in violation of one or more of 

the rules contained in this subpart. 

* * * * * 

(l) Petitions for temporary standstill. 

(1) A program access complainant 

seeking renewal of an existing 

programming contract may file a 

petition along with its complaint 

requesting a temporary standstill of the 

price, terms, and other conditions of the 

existing programming contract pending 

resolution of the complaint. In addition 

to the requirements of § 76.7, the 

complainant shall have the burden of 

proof to demonstrate the following in its 

petition: 

(i) The complainant is likely to 

prevail on the merits of its complaint; 

(ii) The complainant will suffer 

irreparable harm absent a stay; 

(iii) Grant of a stay will not 

substantially harm other interested 

parties; and 

(iv) The public interest favors grant of 

a stay. 

(2) The defendant cable operator, 

satellite cable programming vendor or 

satellite broadcast programming vendor 

upon which a petition for temporary 

standstill is served shall answer within 

ten (10) days of service of the petition, 

unless otherwise directed by the 

Commission. 

(3) If the Commission grants the 

temporary standstill, the Commission’s 

decision acting on the complaint will 

provide for remedies that make the 

terms of the new agreement between the 

parties retroactive to the expiration date 

of the previous programming contract. 

■ 6. Section 76.1004 is amended by 

revising the last sentence of paragraph 

(a) to read as follows: 

§ 76.1004 Applicability of program access 

rules to common carriers and affiliates. 

(a) * * * For the purposes of this 

section, two or fewer common officers 

or directors shall not by itself establish 

an attributable interest by a common 

carrier in a satellite cable programming 

vendor (or its parent company) or a 

terrestrial cable programming vendor (or 

its parent company). 

* * * * * 

[FR Doc. 2010–4139 Filed 3–2–10; 8:45 am] 

BILLING CODE 6712–01–P 


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