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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xj\  P6G;9XP##&a\  P6G;&P#"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\2KKKaK"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\2\)y.X80,X\  P6G;P7jC:,9Xj\  P6G;XP2a=5,&a\  P6G;&P2e=5,&e4  pG;&P:% ,J:\  P6G;JP H5!,i,5\  P6G;,P\!{,W80,%0W*f9 xr G;X\0_=5,%&_*f9 xr G;&X?(ư% 2F\J+NSG^XL28CGQYDBZ@Vm 掔cuqex~ntb}uc{ovpd~TKOYEQLJRH^AAWO[Z\HR@_m}YM`.b@vu\CYDJޅח S- X    S-  Federal Communications Commission`}(#<DA 972040 ă  yxdddy PK #&a\  P6G;&P#Before the Federal Communications Commission  S-""Washington, D.C. 20554 ă In the Matter ofj) j) CORPORATE MEDIA PARTNERSj) d/b/a AMERICAST andj) AMERITECH NEW MEDIA, INC.j) j)  Sp- v.j)ppFile No. CSR4873P j) RAINBOW PROGRAMMINGj) HOLDINGS, INC.j)  S -  MEMORANDUM OPINION AND ORDER lU  S0-X` hp x (#%'0*,.8135@8:Cablevision Systems Corporation Form 10K, Annual Report Pursuant to Section 13 or 15(d) of the   Securities Exchange Act of 1934 for the fiscal year ended December 31, 1995 ("Cablevision Form 10K"),  S`-  Rainbow is a wholly owned Cablevision subsidiary.F/`X yOX-ԍ Cablevision Form 10K at 23.F Cablevision conducts its programming activities   through Rainbow and Rainbow subsidiaries in partnership with unaffiliated entities. The Rainbow   businesses include SportsChannel services, AMCC, and Bravo. Rainbow officials have negotiated with  S-  Complainants about the carriage agreements at issue.j0 {Op -ԍ See Complaint, Exhibits 1, 7; Answer, Exhibits 2, 3, 4, 6.j Rainbow, as the managing partner of the   partnerships that distribute SportsChannel Chicago, SportsChannel Ohio, AMCC, and Bravo, is a satellite   ?cable programming vendor as that term is defined in  628(i)(2) of the Communications Act and   Sp-  76.1000(i) of the Commission's rules.k1pz {O-  ԍ See Bell Atlantic Video Services Company v. Rainbow Programming Holdings, Inc. and Cablevision Systems   ZCorp., CSR4983P, DA 971452, slip op. at 9  19 (Cab. Serv. Bur. released July 11, 1997) (Rainbow is satellite   [cable programming vendor). A "satellite cable programming vendor" is "a person engaged in the production,   creation, or wholesale distribution for sale of satellite cable programming . . . ." Communications Act  628(i)(2), 47 U.S.C.  548(i)(2); 47 C.F.R.  76.1000(i).k Because it is a wholly owned subsidiary of Cablevision,Y2Zp,  {O<-  xԍ See Answer at 24  7. Although denying that it is a satellite cable programming vendor, Rainbow admitted   Lthat it is a whollyowned subsidiary of Cablevision and that the attribution standard is met for SportsChannel Chicago, SportsChannel Ohio, AMCC, and Bravo.Y it meets   ythe attributable interest standard specified in  76.1000(b) and the notes to  76.501 of the Commission's  S -rules.$3" N  {O-  Kԍ 47 C.F.R.  76.501 Notes, 76.1000(b); see Program Access Order, 8 FCC Rcd at 3370. A cable operator   will be considered to have an attributable interest in a programming vendor if the cable operator holds five percent   or more of the stock of the programmer, whether voting or nonvoting. In addition, all officer and director positions, general partnership interests, and limited partnership interests of 5% or more are attributable.$  S -  18. ` ` Rainbow argues that the complaint is facially defective for failing to provide facts, which,  S -  if true, would constitute price discrimination,4  8 yO-  ԍ Rainbow criticized the showing in the Complaint for failing to provide prices and other information. Answer   at 12  20. Prices were stated in the Reply at 1011 nn.12,13. The prices were compared with the limited   ,information that was publicly available. Appendix; Complaint at 1213 & n.43 and Scharfberg Affidavit (12/4/96); Reply at 1012 & nn.1517 and Scharfberg Affidavit (1/29/97). but it acknowledges the disparate pricing treatment and   admits the disparate marketing treatment in the agreements for Ameritech New Media and Ameritech New  SX-  Media's competitors.O5X  {O%-ԍ Appendix; see n.33 supra.O The dispute here is whether that disparate treatment constitutes prohibited   {discrimination. Ameritech New Media has satisfied the pleading requirements of  76.1003 of the"05,`(`(88;"  S-  Commission's rules,6 {Oh-  ԍ 47 C.F.R.  76.1003(c); see Program Access Report, 8 FCC Rcd at 3417  126. The Commission stated that   \the Bureau's staff will accept as true a complaint based on information and belief of an impermissible rate   hdifferential, if the vendor refuses to provide specific comparative rate information and if the complaint is supported  {O-  Lby an affidavit. Program Access Report at  126. Rainbow does not contend that Ameritech New Media or Americast had available more comparative information than was included in the Complaint. and the burden shifts to Rainbow to justify the differences under the criteria set  S-forth in  628(c)(2)(B) of the Communications Act and  76.1002(b) of the Commission's rules.7| {O-ԍ See 47 C.F.R.  76.1003(c),(d); Program Access Report, 8 FCC Rcd at 3400  95, 3417  126127.  S-  19. ` ` Although acknowledging the disparate treatment of Ameritech New Media and its   competitors, Rainbow has not attempted to justify the different prices and marketing requirements under  S8-  !the factors specified in  76.1002(b), as required by  76.1003(d)(6) of the Commission's rules.88 {O -ԍ 47 C.F.R.  76.1003(d)(6); see Program Access Report, 8 FCC Rcd at 3417  127.   kRainbow has failed to provide information for evaluating the price differences in the Affected Market   communities at issue or any factual basis showing that comparison with a similarly situated distributor  S-  other than Ameritech New Media's competitors would be appropriate.9 yO-  ԍ Rainbow makes a general reference to broader application of its business strategy, Answer at 17  27, but offers no specific information about any agreements with other distributors. Rainbow's proffered explanation   Mfor the pricing differences between Complainants and their competitors is that Rainbow is seeking to  Sp-  rationalize its revised business strategy,:p  {O-ԍ See Answer at 3 5, 5  9, 1315  2122 & Exhibit. 18, 1718  2829. but Rainbow does not address this explanation to circumstances  SH -  =in the Affected Markets or the factors set forth in  76.1002(b).&;H  yOr-  ԍ The Declaration of Stanley M. Besen, on which Rainbow relies, does not establish that there is no pricing  {O:-differential or that the differential is consistent with  76.1002(b). See Answer, Exhibit 18; Appendix.& Rainbow makes a general comparison   between new entrants and incumbent cable operators, but does not show why this distinction would affect  S -  prices for the systems at issue here.)<  yO|-  ԍ A vendor's preexisting agreements with competitors could also be a distinguishing factor, but only if the  {OD-distinction is shown to be relevant. See Program Access Report, 8 FCC Rcd at 341718  127 & n.224.) Rainbow admits that there are no cost differences in serving   jAmeritech New Media and its competitors. It references  76.1002(b) only to make the general argument   that programmers have flexibility to set prices in any business manner that does not unlawfully  S -discriminate.d=Z > yO^ -  ԍ Answer at 15  23. Rainbow would refocus the discussion on Ameritech New Media's success in meeting  {O&!-  its goals. See Answer at 5, 7, 18; Appendix. The point is irrelevant unless supported and shown to relate to one of the factors recognized in  76.1002(b).d  S0-  20. ` ` Rainbow's arguments regarding the differences in marketing requirements also are  S-  -unsupported and unresponsive.3>` yO&-ԍ Appendix.3 If Rainbow is relying on Ameritech New Media's status as a new entrant" >,`(`(88+"  S-  to distinguish Ameritech New Media from its competitors and justify different treatment,A? {Oh-ԍ E.g. Answer at 2.A Rainbow must  S-  show the relevance of this status to one of the four factors in  76.1002(b).Q@Z {O-ԍ See 47 C.F.R.  76.1003(d)(6).Q Rainbow has not done so.   In addition, Rainbow fails to address the magnitude of the differences. A general concern that others have   established markets and value for Rainbow's programming from which Ameritech New Media could  S`-  jbenefitlA` {O-ԍ E.g., Answer at 2, 2223 & n.61, Bair Declaration at  9.l or that Ameritech New Media might not respond like its competitors does not justify imposing costs on Ameritech New Media not currently not imposed on its competitors.  S-  21. ` ` Therefore, Rainbow has failed to offer evidence pursuant to  76.1002(b) that would   justify the discrimination in the SportsChannel prices charged to Ameritech New Media for its Cleveland,   0Columbus, and Chicago market systems. Rainbow also has failed to offer evidence pursuant to    76.1002(b) that would justify the discrimination with respect to the marketing requirements in the   SportsChannel, AMCC, and Bravo agreements for Ameritech New Media. Because Rainbow has not   justified this discrimination in prices, terms and conditions pursuant to the factors cognizable under the Communications Act and the Commission's program access rules, this discrimination is prohibited.  S -  n22. ` ` In order to eliminate this prohibited discrimination, Rainbow, SportsChannel, AMCC, and   Bravo must revise the programming agreements covering the franchise areas of Naperville and Glendale   Heights, Illinois, and Columbus, Upper Arlington, Berea, and North Olmsted, Ohio in the Affected   Markets to eliminate differences in prices for SportsChannel programming and marketing requirements   [for SportsChannel, AMCC and Bravo programming between Ameritech New Media and its competitors   jthat are not justified by the factors in  628(c)(2)(B) of the Communications Act and  76.1002(b) of the  S-  Commission's rules.=B~ {O-ԍ See Appendix.= These revisions must be completed within fortyfive (45) days of the release of this  S-Memorandum Opinion and Order.eC yO@-  ԍ Section 628(e) of the Communications Act, 47 U.S.C.  548(e), provides the Commission with broad authority   to consider appropriate remedies. Although the Commission has the authority to create a damages remedy, it   declined to do so when it considered appropriate remedies. Implementation of the Cable Television Consumer   kProtection and Competition Act of 1992, MM Docket No. 92265, Memorandum Opinion and Order on Reconsideration of the First Report and Order, 10 FCC Rcd 1902, 191011 (1994).e  S@- V. ORDERING CLAUSES ă  S-  23. ` ` ACCORDINGLY, IT IS ORDERED that the Program Access Complaint, Corporate   Media Partners d/b/a Americast and Ameritech New Media, Inc. v. Rainbow Programming Holdings, Inc.,  S-CSR4873P, IS GRANTED IN PART AND DISMISSED IN PART as provided herein.  SP-  @24. ` ` IT IS FURTHER ORDERED that Rainbow Programming Holdings, Inc., SportsChannel   Chicago Associates and SportsChannel Ohio Associates revise the agreements with Americast and   .Ameritech New Media, Inc. for Ameritech New Media, Inc.'s cable systems operating in Naperville and" C,`(`(88k"   Glendale Heights, Illinois; Columbus and Upper Arlington, Ohio; and Berea and North Olmsted, Ohio   within fortyfive (45) days from the date of release of this Memorandum Opinion and Order in order to   provide nondiscriminatory rates or license fees in accordance with the terms of this Memorandum Opinion and Order.  S8-  O25. ` ` IT IS FURTHER ORDERED that Rainbow Programming Holdings, Inc., SportsChannel   Chicago Associates, SportsChannel Ohio Associates, American Movie Classics Company, and Bravo   jCompany revise agreements with Americast and Ameritech New Media, Inc. for Ameritech New Media,   Inc.'s cable systems operating in Naperville and Glendale Heights, Illinois; Columbus and Upper   yArlington, Ohio; and Berea and North Olmsted, Ohio within fortyfive (45) days from the date of release   of this Memorandum Opinion and Order in order to provide nondiscriminatory terms and conditions with respect to marketing requirements in accordance with the terms of this Memorandum Opinion and Order.  S -  26. ` ` This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated  S -by  0.321 of the Commission's Rules.?D  yO8-ԍ 47 C.F.R.  0.321.? ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,Meredith J. Jones ` `  hh,Chief, Cable Services Bureau " XD,`(`(88e"  S-X  S-5  CONFIDENTIAL NOT FOR PUBLIC INSPECTION ă  yx8dddyJ APPENDIX ă  S- SUMMARY OF CONFIDENTIAL MATERIAL AND CONCLUSIONS ă   yThis Appendix summarizes and discusses information which the parties have asserted is proprietary and   Lconfidential pursuant to 47 C.F.R.  76.1003(h). This information has been redacted from the published item.