Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3099

1Pub. L. No. 102–385, 106 Stat. 1460 section 19

(1992), amending Communications Act of 1934,

section 628.

Secs. 3 and 4.

T. 93 S., R. 177 W., (Unsurveyed)

Sec. 8.

T. 93 S., R. 179 W., (Unsurveyed)

Sec. 28.

The areas described aggregate

approximately 13,968.61 acres.

2. Prior to conveyance of any of the

lands withdrawn by this order, the

lands shall be subject to administration

by the Secretary of the Interior under

applicable laws and regulations, and his

authority to make contracts and to grant

leases, permits, rights-of-way, or

easements shall not be impaired by this

withdrawal.

3. This order constitutes final

withdrawal action by the Secretary of

the Interior under section 22(j)(2) of the

Alaska Native Claims Settlement Act, 43

U.S.C. 1621(j)(2) (1988), to make lands

available for selection by the Atxam

Corporation, to fulfill the entitlement of

the village for Atka under Section 12

and Section 14(a) of the Alaska Native

Claims Settlement Act, 43 U.S.C. 1611

and 1613 (1988).

4. This withdrawal will terminate 120

days from the effective date of this

order; provided, any lands selected shall

remain withdrawn pursuant to this

order until conveyed. Any lands

described in this order not selected by

the corporation shall remain withdrawn

as part of the Alaska Peninsula National

Wildlife Refuge or the Alaska Maritime

National Wildlife Refuge, pursuant to

Sections 302(1), 303(1) and 304(c) of the

Alaska National Interest Lands

Conservation Act, 16 U.S.C. 668(dd)

(1988); and will be subject to the terms

and conditions of any other withdrawal

of record.

5. It has been determined that this

action is not expected to have any

significant effect on subsistence uses

and needs pursuant to Section 810 of

the Alaska National Interest Lands

Conservation Act, 16 U.S.C. 3120(c)

(1988) and this action is exempted from

the National Environmental Policy Act

of 1969, 42 U.S.C. 4321 note (1988), by

Section 910 of the Alaska National

Interest Lands Conservation Act, 43

U.S.C. 1638 (1988).

Dated: January 4, 1995.

Bob Armstrong,

Assistant Secretary of the Interior.

[FR Doc. 95–973 Filed 1–12–95; 8:45 am]

BILLING CODE 4310–JA–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

[MM Docket No. 92–265; FCC 94–326]

Cable Television Act of 1992—Program

Distribution and Carriage Agreements

AGENCY: Federal Communications

Commission.

ACTION: Final rule; Petition for

reconsideration; denial.

SUMMARY: In this Memorandum Opinion

and Order (MO&O) the Commission

denies a petition for reconsideration of

its rule that prohibits exclusive

programming contracts between cable

operators and satellite cable or satellite

broadcast programming vendors in

which a cable operator has an

attributable interest, in areas unserved

by cable. The rule was promulgated to

implement section 19 of the Cable

Television Consumer Protection and

Competition Act of 1992 (1992 Cable

Act). The Commission held that the rule

is a reasonable interpretation of the

1992 Cable Act and that there are other

provisions in the Act under which a

distributor can challenge a non-cable

distributor’s exclusive contract.

EFFECTIVE DATE: February 13, 1995.

FOR FURTHER INFORMATION CONTACT:

Nancy Markowitz or Maura Cantrill,

Cable Services Bureau, (202) 416–0800.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commissions

Memorandum Opinion and Order

adopted December 15, 1994 and

released December 23, 1994. A synopsis

of the First Report and Order (First

R&O) that was reconsidered in the

MO&O may be found at 58 FR 27658

(May 11, 1993). This action will not add

or decrease the public reporting burden.

The full text of this Commission

decision is available for inspection and

copying during regular business hours

in the FCC Reference Center (room 239),

1919 M Street NW., Washington, DC.

The complete text of this decision also

may be purchased from the

Commission’s duplication contractor,

International Transcription Service,

(202) 857–3800, 2100 M Street NW.,

Washington, DC 20037.

Synopsis of Memorandum Opinion and

Order

I. Introduction

1. By this action, the Commission

denies National Rural

Telecommunications Cooperative’s

(NRTC) petition for reconsideration of

the Commission’s rule implementing

section 628(c)(2)(C) of the Cable

Television Consumer Protection and

Competition Act of 1992 (1992 Cable

Act).1 The rule was adopted in the First

Report and Order in MM Docket 92–265

(First R&O), 8 FCC Rcd 3359 (1993); 58

FR 27658 (May 11, 1993).

2. The 1992 Cable Act amended the

Communications Act of 1934, in part, by

adding a new section 628. Section 628

is intended to foster the development of

competition to traditional cable systems

by providing greater access by

competing multichannel systems to

cable programming services. Section

628(b) of the 1992 Cable Act generally

prohibits ‘‘unfair’’ or ‘‘deceptive’’

practices the purpose or effect of which

is to prevent a distributor from

providing programming to subscribers

or consumers and section 628(c)

proscribes specific conduct that the

Commission shall prohibit in its rules.

The Act provides that the regulations

promulgated to implement section

628(c)(2)(C) must:

Prohibit practices, understandings,

arrangements, and activities, including

exclusive contracts for satellite cable

programming or satellite broadcast

programming between a cable operator and a

satellite cable programming vendor or

satellite broadcast programming vendor, that

prevent a multichannel video programming

distributor from obtaining such programming

from any satellite cable programming vendor

in which a cable operator has an attributable

interest or any satellite broadcast

programming vendor in which a cable

operator has an attributable interest for

distribution to persons in areas not served by

a cable operator as of the date of enactment

of this section.

Section 76.1002(c)(1) of the

Commission’s rules adopted in the First

R&O to implement this section of the

1992 Cable Act prohibits exclusive

contracts between cable operators and

vertically integrated programmers in

areas that are not served by cable

operators. NRTC filed a petition for

reconsideration of the First R&O,

requesting the Commission to amend its

implementing rule to include any

behavior of a vertically integrated

programmer that prevents any

distributor from obtaining programming

in areas not served by cable, and

specifically exclusive contracts for the

distribution of programming between

direct broadcast satellite (‘‘DBS’’)

distributors and vertically integrated

satellite cable programming vendors.

II. Background

3. The 1992 Cable Act and its

legislative history indicate that Congress
3100 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

2 1992 Cable Act, sections 2, 19, Communications

Act section 628, 47 U.S.C. 548; House Comm. on

Energy and Commerce, H.R. Rep. No. 102–862,

(‘‘Conference Report’’) 102d Cong., 2d Sess. at 93

(1992); Senate Comm. on Commerce, Science and

Transportation, S. Conf. Rep. No. 102–92, (‘‘Senate

Report’’), 102d Cong., 1st Sess. at 23–29 (1991);

House Comm. on Energy and Commerce, H.R. Rep.

No. 102–628, (‘‘House Report’’) 102d Cong., 2d

Sess. at 165–68 (1992); 138 Cong. Rec. H6487–6571

(daily ed. July 23, 1992).

3 1992 Cable Act, section 2(a)(5).

4See 138 Cong. Rec. H6540 (daily ed. July 23,

1992) (statement of Rep. Eckart in support of the

Tauzin amendment).

5House Report at 165–66 (additional views of

Messrs. Tauzin, Harris, Cooper, Synar, Eckart,

Bruce, Slattery, Boucher, Hall, Holloway, Upton

and Hastert).

6The DBS–1 satellite at the 101° West Longitude

location can deliver a signal to the entire

continental United States (‘‘full-CONUS’’). Under

international treaties and agreements, the United

States is assigned eight orbital locations for highpower DBS satellites. These eighth orbital locations

are divided between eastern locations which

provide signals to the eastern half of the continental

United States (‘‘half-CONUS’’) and western

locations which provide signals to the western halfCONUS. Three of the four eastern orbital locations

(101° West Longitude, 110° West Longitude, and

119° West Longitude) can also deliver a full-CONUS

signal. The fourth eastern orbital location, 61.5°

West Longitude, may not be able to deliver an

adequate full-CONUS signal.

7United States v. Primestar Partners, 1994–1

Trade Cas. (CCH) ¶ 70,562 (S.D.N.Y. 1994); State of

New York ex rel. Abrams v. Primestar Partners,

1993–2 Trade Cas. (CCH) ¶¶ 70,403, 404 (S.D.N.Y.

1993). See also, Transcript of Hearing on Proposed

Consent Decree, State of New York ex rel. Abrams

v. Primestar Partners, No. 93–3868, at 22–23

(S.D.N.Y. Sept. 3, 1993) (presiding judge stating

‘‘there is nothing in this decree that binds the FCC

in any way * * * nor should any finding I make

in approving this decree be taken * * * as any

imprimatur of approval or suggestion that the

particular exclusive contracts are lawful or

unlawful. That is a matter for the FCC and a matter

as to which I would have to defer to the FCC’’).

Further, in its Amicus Curiae Memorandum of Law,

the Commission specifically recommended against

approval of the various decrees warning, inter alia,

that the court’s apparent blessing of exclusivity

would encourage arguments by proponents of

exclusivity that the Commission should find no

need to prohibit exclusivity in light of the court’s

apparent willingness not to prohibit it.

Memorandum of Law of the Federal

Communications Commission as Amicus Curiae at

14, filed August 23, 1993, State of New York ex rel.

Abrams v. Primestar Partners, No. 93–3868

(S.D.N.Y)(‘‘Memorandum’’). Indeed, in support of

its position the Commission noted the

reconsideration pending in this proceeding and

referenced USSB’s argument in this proceeding that

the Primestar decrees essentially sanction

exclusivity in the DBS context. Memorandum at n.

24.

8United States v. Iron Mountain Mines, Inc. 812

F. Supp. 1528, 1557 (E.D.Cal 1992) (citing

Sutherland Stat. Const. § 46.04 at 99 (5th ed. 1992)).

In this regard, we note that the Commission has

received letters from members of Congress involved

in legislative debates on the 1992 Cable Act that

support conflicting interpretations of that provision.

For example, compare Ex Parte Letter from

Representatives Rick Boucher, Ron Wyden, Jim

Slattery, Ralph Hall, Billy Tauzin, Jim Cooper,

Blanche Lambert and Mike Synar to Chairman

Hundt, June 15, 1994, with Ex Parte Letter from

Senator Jeff Bingaman to Chairman Hundt, July 6,

1994; Ex Parte Letter from Rep. Al Swift to

Chairman Hundt, July 8 1994; Ex Parte Letter from

Rep. Henry A. Waxman to Chairman Hundt, Aug.

16, 1994; Ex Parte Letter from Senators Bob

Packwood and Dan Coats to Chairman Hundt, Aug.

24, 1994; Ex Parte Letter from Rep. Thomas Manton

to Chairman Hundt, Aug. 30, 1994; Ex Parte Letter

from Representatives Harris W. Fawell, Philip M.

Crane, Steven H. Schiff, Carlos J. Moorhead, Scott

L. Klug, Cardiss Collins, Jack Fields and J. Dennis

Hastert to Chairman Hundt, Aug. 24, 1994.

was concerned with expanding the

availability of programming and

eliminating unjustified discrimination

in the price charged to non-cable

technologies.2 Congress noted that

vertically integrated program suppliers

have the incentive and ability to favor

their affiliated cable operators over

other multichannel video programming

distributors (‘‘MVPDs’’).3 Thus,

Congress concluded that program access

provisions targeted at breaking the

‘‘stranglehold’’ over programming

created by those vertical relationships in

the cable industry would lead to a more

balanced competitive environment in

the multichannel video programming

marketplace.4 Direct broadcast satellites

were among the technologies that were

to be fostered through the program

access provisions of the 1992 Cable

Act.5

4. As background on the DBS

industry, the first DBS satellite (‘‘DBS–

1’’) was launched in December 1993; it

is co-owned and jointly operated by

Hughes Communications Galaxy, Inc.,

(whose affiliated company, DirecTV, is

the DBS provider) and United States

Satellite Broadcasting, Inc. (‘‘USSB’’),

which is owned by Hubbard

Broadcasting, Inc. The satellite is

situated at the 101° West Longitude

orbital position. DirecTV owns eleven of

the sixteen transponders on DBS–1 and

USSB owns the remaining five. On June

17, 1994, DirecTV and USSB began

providing DBS service to the entire

continental United States. Currently,

DirecTV offers 150 channels and USSB

offers 20 channels. At present, DirecTV

and USSB are the only entities offering

high-power Ku-band (small dish) DBS

service in the United States, although

several other parties hold construction

permits for other orbital locations.

5. NRTC is the exclusive marketer and

distributor of DirecTV programming in

certain specified rural areas. The DBS

distribution agreement between DirecTV

and NRTC requires DirecTV to obtain

certain programming on behalf of NRTC.

USSB entered into exclusive

distribution agreements with Viacom

and Time Warner, two vertically

integrated satellite cable programming

vendors, to carry HBO and Showtime,

respectively, granting distribution rights

at the 101° West Longitude orbital

location.6 The agreements do not restrict

access to the programming by

multichannel multipoint distribution

services (‘‘MMDS’’), satellite master

antenna television (‘‘SMATV’’), or Cband satellite distributors; and the

agreements do not restrict access by any

DBS distributor at any other orbital

location.

III. Discussion

6. Because there are several possible

interpretations of the statutory

provisions involved here (sections

628(b) and (c)), to resolve this matter it

is appropriate to rely not just on the

language of the Act but also on a careful

analysis of the structure, legislative

history, and the underlying policy

objectives of section 628 of the 1992

Cable Act. This is the process that

previously has been followed in

implementing the provisions of the 1992

Cable Act and in developing a coherent

set of rules for their enforcement.

Having made careful use of that process

to assure that the various program

access provisions of the 1992 Cable Act

fit together in a coordinated fashion,

failure to follow that course now could

lead to anomalous results.

7. Based on a thorough review of

these factors, we believe our initial

interpretation of section 628(c)(2)(C) of

the 1992 Cable Act, as reflected in

implementing rule § 76.1002(c)(1), is

reasonable and should stand. We

believe that this interpretation is

supported by the findings and policy set

forth in the 1992 Cable Act and its

legislative history and best fulfills the

underlying purposes of the 1992 Cable

Act—to foster competition to traditional

cable systems. We note, however, that in

declining to broaden the scope of

§ 76.1002(c)(1)—to prohibit per se the

exclusive DBS contracts at issue—we do

not preclude the petitioner or any other

aggrieved party from seeking relief from

such contracts through other

appropriate provisions of the 1992 Cable

Act. We further find that contrary to all

parties’ assertions, the final judgments

issued in the federal antitrust actions

against Primestar Partners, that involved

allegations of anticompetitive

restrictions on access to cable

programming, have no relevance to the

disposition of the issue before us. The

Primestar Final Judgment specifically

provides that the decrees do not

preempt the 1992 Cable Act or the

Commission’s rules.7

8. We are not persuaded that section

628(c)(2)(C) is clear and unambiguous.

Indeed, ambiguity exists when a statute

is capable of being construed ‘‘by

reasonably well-informed persons in

two or more different senses.’’ 8 NRTC
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3101

9Puerto Rico Maritime Shipping Authority v.

Interstate Commerce Commission, 645 F.2d 1102,

1112 n. 26 (D.C. Cir. 1981) (‘‘It is hornbook law that

the use of the word ‘including’ indicates that the

specified list [] that follows is illustrative, not

exclusive.’’)

10 Indeed, if NRTC’s interpretation were adopted,

it could be argued that NRTC’s exclusive marketing

agreements, supra ¶ 5, could themselves violate this

provision of the 1992 Cable Act. Although DirecTV

is not a satellite cable programming vendor in

which a cable operator has an attributable interest,

its exclusive agreement with NRTC precludes

competitors of NRTC from accessing certain

vertically integrated services that are distributed

over DBS only by DirecTV.

11Conference Report at 92 (emphasis added).

12See 138 Cong. Rec. H6534 (daily ed. July 23,

1992) (statement of Rep. Tauzin); 138 Cong. Rec.

H6537 (daily ed. July 23, 1992) (statement of Rep.

Houghton); 138 Cong. Rec. H6539 (daily ed. July 23,

1992) (statement of Rep. Lancaster); 138 Cong. Rec.

H6540 (daily ed. July 23, 1992) (statement of Rep.

Eckart); 138 Cong. Rec. H6541 (daily ed. July 23,

1992) (statement of Rep. Harris).

13Sutherland Stat. Const. §§ 46.05, 4702 at 103,

139 (5th ed. 1992); See Kokoszka v. Belford, 417

U.S. 642, 650 (1974) (‘‘When interpreting a statute,

the court will not look merely to a particular clause

in which general words may be used, but will take

in connection with it the whole statute * * * and

the objects and policy of the law, as indicated by

its various provisions, and give to it such

construction as will carry into execution the will of

the legislature.’’); see also Richards v. United

States, 369 U.S. 1, 11 (1962); Philbrook v. Glodgett,

421 U.S. 707, 713 (1975).

14 Indeed, the contemporaneous understanding of

sections 628(c)(2) (C) and (D), that these sections

only restricted cable operators’ exclusive contracts,

was articulated by most parties involved in the

original rule making, including DirecTV. See Reply

Comments of DirecTV in MM Docket 92–265, filed

Feb. 16, 1993, at 12 n.11 and Appendix (summary

of Tauzin amendment) (‘‘The Commission is

directed to prohibit any arrangement between a

cable operator and a programming vendor,

including exclusive contracts, which would prevent

a distribution competitor from providing

programming to persons unserved by a cable

operator.’’).

15 47 U.S.C. 548(a).

suggests that the meaning of Section

628(c)(2)(C) can best be revealed by a

literal reading, without the parenthetical

phrase beginning with ‘‘including.’’

NRTC regards this phrase as merely

illustrative. While the use of the word

‘‘including’’ does support NRTC’s

interpretation that the reference to cable

operators is simply an example,9

NRTC’s reading would eliminate the

defining reference for the words ‘‘such

programming’’ that immediately follow.

An alternate interpretation of the

section is that the ‘‘including’’ phrase

supplies the definition for the whole

section through the words ‘‘such

programming,’’ i.e., programming that is

the subject of an exclusive contract with

a cable operator. Neither interpretation

is perfect. NRTC’s interpretation would

negate the predicate for use of the

phrase ‘‘such programming.’’ The

alternative interpretation would negate

the illustrative implication of the term

‘‘including.’’ The ‘‘including’’ and the

‘‘such programming’’ language cannot

be reconciled simply from the statutory

language. Although the language of

section 628(c)(2)(C) is capable of being

read to suggest that the Commission is

required to consider practices other than

exclusive contracts between cable

operators and their affiliated

programmers within the prohibition,

because the legislative history is silent

as to conduct that should be prohibited

per se, other than cable operators’

practices, the Commission believes that

its current implementing rule is the

most reasonable interpretation of

Section 628(c)(2)(C).10

9. The legislative history of Section

628 specifically, and of the 1992 Cable

Act in general, reveals that Congress

was concerned with market power

abuses exercised by cable operators and

their affiliated programming suppliers

that would deny programming to noncable technologies, and did not address

any such abuses exercised by non-cable

technologies, such as DBS.

10. The legislative history of section

628(c)(2)(C) more particularly illustrates

congressional concern over cable

operators’ use of exclusivity to stifle

competition from other technologies.

The Conference Report describes the

House provisions on unserved areas

(which ultimately were adopted in

section 628(c)(2)(C) with modifications)

as prohibiting ‘‘exclusive contracts and

other arrangements between a cable

operator and a vendor.’’ 11 During the

House floor debates on the amendment,

which ultimately was adopted in the

House bill, the sponsor and supporters

of the amendment emphasized its

importance in lifting barriers to entry

into the video distribution market by

competing technologies imposed by the

cable industry’s ‘‘stranglehold’’ over

programming through exclusivity.12 In

contrast, the legislative history is silent

with respect to the use of exclusive

programming contracts by non-cable

competing technologies. While we

recognize that silence as to non-cable

technologies is not inherently

dispositive in light of the ambiguous

statutory language, we give great weight

to the legislative history’s emphasis on

cable operators.

11. Our interpretation is bolstered by

the fact that, given the statute’s

distinction between cable operators’

exclusive contracts in areas served and

unserved by cable, the Commission’s

inclusion of DBS exclusive contracts

within the per se prohibition of section

628(c)(2)(C) could have an unintended

effect on the DBS industry. While

section 628(c)(2)(C) prohibits exclusive

contracts between cable operators and

programming vendors with cable

affiliation in areas that are not served by

cable, section 628(c)(2)(D) allows such

contracts in areas that are served and

where the Commission determines the

contracts are in the public interest.

Moreover, DBS distributors, unlike

cable operators, would not be required

to seek a public interest determination

for areas served by cable because section

628(c)(2)(D) specifically applies only to

cable operators’ exclusive contracts. If

section 628(c)(2)(C) is read to prohibit

per se DBS exclusive contracts, such

contracts would be completely

permissible in served areas but

prohibited in unserved areas. As a

result, the DBS operators who do not

possess the exclusive rights would have

to identify and ‘‘block out’’ the served

areas (where such exclusive contracts

would be valid), while their distribution

in the unserved areas could continue.

There is no indication in the legislative

history that Congress intended the DBS

industry to engage in such an odd and

potentially burdensome exercise. Nor is

it clear why the DBS exclusive

contracts, as opposed to cable exclusive

contracts, would turn on whether the

area is served by cable.

12. Our decision is supported by the

rules of statutory construction that

require us to examine the whole statute

when interpreting a part.13 While

NRTC’s interpretation of the

‘‘including’’ phrase, contained in

section 628(c)(2)(C), is a plausible

reading taken in isolation, we believe

that the more compelling rule of

statutory construction is to construe the

language in section 628(c)(2)(C) in a

manner most harmonious with the

policies and the other provisions of the

1992 Cable Act. We agree with

Opponents that section 628(c)(2)(C),

read in conjunction with section

628(c)(2)(D), supports the common

understanding of Congress’ intent in

this section to restrict cable operators’

use of exclusive contracts in served and

unserved areas.14 The stated purpose of

the program access provisions is to

increase competition from non-cable

technologies, to increase the availability

of satellite programming to persons in

rural areas and ‘‘to spur the

development of communications

technology,’’ 15 such as DBS. We believe

that an outright ban on any MVPD

exclusive contracts in areas unserved by

cable, without any determination of the

effect of such exclusivity on

competition, defeats the very purpose of

the 1992 Cable Act to foster competition

from other non-cable technologies.

13. In addition to our interpretation of

the statute, we find no evidence in the
3102 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

16First R&O, 8 FCC Rcd at 3369 (citing 1992

Cable Act section (2)(b)(2)).

17 Id. at 3374.

18 47 U.S.C. 548(b); 47 CFR 76.1001.

19First R&O, 8 FCC Rcd at 3377.

20 Id. at 3373.

pleadings submitted in this proceeding

that non-cable exclusive contracts of the

type involved here are either harmful to

the development of competition,

‘‘unfair’’ or ‘‘deceptive,’’ or have

negative effects on consumers. The

record does not demonstrate that such

contracts will hinder the development

of DBS as an effective competitor to

cable; that USSB’s contracts with

Viacom and Time Warner have impeded

the entry either of DirecTV or NRTC

into the DBS marketplace; or that the

contracts generally have harmed the

entry of DBS service into the

multichannel video programming

marketplace. Indeed, the evidence

presented suggests that a DBS

distributor’s exclusive contract for

programming covering one orbital

location may foster DBS as a significant

competitor to cable. Such contracts may

allow a distributor to distinguish its

service from that of another, avoid

duplication of programming, and

eventually lead to more diversity in

programming for the consumer. To the

extent such contracts allow a greater

number of DBS distributors to establish

distinctive competing services, we

believe they further congressional

policy to ‘‘rely on the marketplace, to

the maximum extent feasible, to achieve

greater availability of the relevant

programming.’’ 16 In contrast to cable

exclusivity in areas unserved by cable,

which would foreclose services from

non-cable multichannel video

programming distributors, consumers

will be able to receive all DBS

programming from one DBS provider or

another by being able to select specific

programming services without having to

purchase entire programming packages.

We agree with Opponents that

prohibiting a DBS distributor’s

exclusive contract for programming

covering one orbital location may in fact

create unnecessary inefficiencies

because the same programming could

then occupy multiple transponders on

the same satellite and decrease the

diverse mix of programming available.

Without prejudging any future

complaints, we currently believe that

the record before us provides no basis

to conclude that the market power

abuses, about which Congress was

concerned, are present in the exclusive

contracts at issue here.

14. Our reaffirmation of our

interpretation of section 628(c)(2)(C)

does not foreclose all remedies to an

MVPD who claims to be aggrieved by an

exclusive contract between a non-cable

MVPD and a vertically integrated

satellite cable programming vendor. In

the First R&O, we previously

determined that while section 628(b)

does not specify types of ‘‘unfair’’

practices that are prohibited, it ‘‘is a

clear repository of Commission

jurisdiction to adopt additional rules or

to take additional action to accomplish

statutory objectives should additional

types of conduct emerge as barriers to

competition and obstacles to the broader

distribution of satellite cable and

broadcast programming.’’ 17 The

Commission did not sanction exclusive

contracts between non-cable MVPDs

and vertically integrated cable

programming vendors, thus leaving

open the possibility that such contracts

could be challenged on the basis that

they involve non-price discrimination

or ‘‘unfair practices.’’ Section 628(b) of

the 1992 Cable Act and the

Commission’s implementing rule,

§ 76.1001, provide a broad prohibition

against ‘‘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.’’ 18 Also in the First R&O,

the Commission stated that section

628(b) does not prescribe specific

practices (in contract to section 628(c)),

but does require a showing of anticompetitive harm, i.e., that the purpose

or effect of the complained of conduct

is to ‘‘hinder significantly or to prevent

an MVPD from providing programming

to subscribers or customers.’’ 19 The

Commission has stated that the

objectives of the ‘‘unfair practices’’

provision are to provide a mechanism

for addressing conduct, primarily

associated with horizontal and vertical

concentration within the cable and

satellite cable programming fields, that

inhibits the development of

multichannel video programming

distribution competition.20 Therefore,

where future contracts cause a

restriction in the availability of

programming to alternative distributors

and their subscribers, an aggrieved

MVPD could seek redress by filing an

‘‘unfair practices’’ complaint under

§ 76.1001 of the Commission’s rules.

15. Finally, we believe that using

§ 76.1001 as an avenue to address noncable exclusive contracts, such as those

at issue here, will afford the

Commission the opportunity to consider

all the ramifications of such contracts,

including the effect on competition,

based upon the particular facts of each

case. This case-by-case review will

avoid amending a Commission rule to

create an overly broad per se prohibition

appears to be contrary to Congress’

intent.

16. For the reasons discussed above,

we reaffirm our interpretation of section

628(c)(2)(C) as reflected in our

implementing rule. We believe that this

is the most reasonable interpretation

based on the fact that Congress

specifically directed the Commission to

prohibit exclusive contracts between

cable operators and vertically integrated

programming vendors in unserved

areas, but did not specifically address

the inclusion of exclusive contracts

between non-cable MVPDs and

vertically integrated programming

vendors within section 628(c)(2)(C)’s

prohibition. We believe that any

complaints regarding exclusive

agreements are more appropriately

addressed through other provisions of

the statute. Thus, the Commission

denies NRTC’s request.

IV. Ordering Clause

17. Accordingly, it is ordered, that the

Petition for Reconsideration of the

National Rural Telecommunications

Cooperative is denied.

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 95–894 Filed 1–12–95; 8:45 am]

BILLING CODE 6712–01–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 651

[Docket No. 950109008–5008–01; I.D.

122894A]

Northeast Multispecies Fishery;

Amendment to an Emergency Interim

Rule

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Emergency interim rule;

amendment.

SUMMARY: NMFS issues this emergency

interim rule to amend an existing

emergency interim rule concerning the

Northeast Multispecies Fishery. This