WPCCR 2MBVRKZ3|X 7jC:,yoXj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP4M (PCL) (Additional); Local PrintHL4MPCAD.PRSXj\  P6G;\O!QXXP2yEK Z X-#XP\  P6QyoXP#3|X "i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNendnote referenceendnote reference/44#XP\  P6QXP##C\  P6QP#footnote referencefootnote reference04#XP\  P6QXP#"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(-((((((((((---#J:55:2-:::2F::-:5-2::K::2%(#(#(#(((>((((((:((#&&++%(:#:#:#:#:#F45#2#2#2#2#:(:(:(:(:(:(:(:(:(:(:#:(:':(:(:(-(:#:#:#5#5#5+5#:22#2#2#2#:(:(:(:+:(:+:(((8-++:(22 222:(/:(:(:(:(F:555----+2"22%:(:(:(:(:(:(K::+2#2#2#:(2:(-2:(2((W888888888888888888888888888888888888888888888888xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN00%(#((((M(==(==(=##(P0P((N1=PP00/CC--P#(CP"5555==JPP(=P0.+(-N00P("i~'^09FSS999Sq+9+/SSSSSSSSSS99qqqSggnxggxx9In]nxgxgS]xgg]]?/?FS9SSISI/SS//I/xSSSS??/SInII?C/CZ9+ZF999+999999S9S/gSgSgSgSgSnnIgIgIgIgI9/9/9/9/nSxSxSxSxSxSxSxSxS]IgSxSxSxS]IxSgSgSgSgSnInInZnIxdgIgIgIgIxSxSxSxZxSxZxS9/9S999SSZZnI]/]<]9]5]/nSanSnSxSxSng?g?g?S?S?S?ZZ]<]/]FxSxSxSxSxSxSn]Z]?]?]?xS]9nSS?]9]Sd+SS8%8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddNAmericast with distribution rights for HBO programming on its franchised cable systems in  xkMichigan, except in areas served by certain cable systems acquired by Continental through  X - xpurchases completed in two steps in 1992 and 1995. 7 yO8-ԍThese cable systems acquired by Continental are referred herein as the "NCOM systems." HBO claimed that the NCOM systems  xacquired by Continental were entitled to exclusive distribution rights to HBO programming by  xvirtue of the program distribution exclusivity and afteracquired system clauses contained in the  xAffiliation Agreement between Continental and HBO. HBO took the position that the Affiliation  XK- xAgreement antedated the cutoff date of June 1, 1990 contained in the grandfather provisions of  X4- x-Section 628(h)>4p7 yOU$-ԍ47 U.S.C.  548(h).> and that the program distribution exclusivity clause was therefore exempted from  xthe general prohibitions of Section 628. HBO and Americast subsequently entered into an  xaffiliation agreement limited to areas not served by the NCOM systems. Thus barred from HBO",N(N(ZZ("  xprogramming in areas in Michigan served by the NCOM systems, Americast filed its complaint with the Commission shortly thereafter.  X- ` "x4. ` ` The Bureau Order finds Section 628(h) to be clear and unambiguous and concludes  X- xkthat the Commission is required to give effect to that unambiguous expression. Noting that  X- xSection 628(h)(1) states, "Nothing in this section shall affect any contract that grants exclusive  Xz- xKdistribution rights to any person with respect to satellite cable programming and that was entered  Xe- xinto on or before June 1, 1990 . . . ," the Bureau Order finds that Section 628(h) contains a  x>straightforward mandate to the Commission and that there is no caveat with regard to what  X9- xprovisions such exempted contract can and cannot contain.97 {O -ԍBureau Order, 11 FCC Rcd at 7745 (quoting 47 U.S.C.  548(h)(1) (emphasis added in the Bureau Order). Pointing out that afteracquired  x<systems provisions such as that contained in the instant contract were commonplace throughout  X - xthe 1980s and are still common today, the Bureau Order states that the Congress easily could  x<have drafted Section 628(h) to limit exclusive contracts to those systems subject to an exclusivity  X - xprovision as of June 1, 1990 had it so intended, but it did not.1 Z7 {O-ԍId.1 Instead, the Bureau Order  X - xconcludes, Congress "applied Section 628(h) to contracts, regardless of their content, in place as  xkof that date," and parties to an exclusive contract may enforce an exclusivity provision with  xrespect to newlyacquired systems, where the contract included an afteracquired systems  X-provision that was made part of the contract prior to June 1, 1990.E7 {O"-ԍSee id. at 7747. E  Xn-  XW- ` x5. ` ` The Bureau Order finds further that, because the Affiliation Agreement is  x/exempted under Section 628(h), the public interest criteria of Section 628(c)(4), which apply  xysolely to exclusive contracts entered into after June 1, 1990 in areas served by a cable operator,  X- x[are inapposite.T~7 {OC-ԍId. (citing 47 U.S.C.  548(c)(4)).T The Bureau Order also finds that the Affiliation Agreement, as amended and  X-extended, terminates on December 31, 1997, not on December 31, 1996 as Americast contended.17 {O-ԍId.1  X- II. xTHE PLEADINGS  X-x6. ` ` The application for review states that two questions are presented for review:  ` V ` ` (1) Whether the grandfather provision of Section 628(h) of the  ` )Communications Act immunizes the inclusion in 1992 of after ` acquired and previously nonexclusive cable systems within the scope of a pre1990 grandfathered contract; and ",N(N(ZZ"Ԍ ` W(2) Whether a contract extension which, by its terms, is not  ` effective until 1996 is precluded from grandfather protection by  X-virtue of Section 628(h)(2) of the Communications Act.h {OK-ԍApplication for Review at 1, citing 47 U.S.C.  548(h).h  x< ` `  Americast asserts that the application for review presents the issue of whether a new competitive  xMentrant into the cable television markets in Michigan can be denied important programming  xrights, i.e., access to HBO programming, by virtue of the grandfather provision of Section 628(h).  X_- xAmericast states that the Bureau Order's interpretation of the grandfather provision transforms  xNCOM systems, which were not subject to any exclusive contractual rights on the June 1, 1990  xcutoff date specified in Section 628(h), into exclusive systems from the time of their acquisition  xby Continental during 1992 and 1995. Americast argues that this interpretation is anti x competitive, contrary to Congressional intent, and in violation of law, and has farreaching  ximportance for the Commission's statutory mandate to develop and ensure a strong competitive  X -market for the delivery of television programming.F Z7 yO-ԍApplication for Review at 12.F  X - ` x7. ` ` Americast argues that the text of Section 628 (h) is ambiguous on whether a  xiprogram distribution exclusivity clause contained in a preJune 1, 1990 contract could be extended  X{- xafter June 1, 1990 to cable systems that previously had been served on a nonexclusive basis.8{7 {O-ԍId. at 11.8  Xd- xIt argues further that, even if the Bureau Order were correct that Section 628(h) is not  xambiguous, the "plain meaning" rule for statutory construction requires an interpretation that is  xnot out of context and which does not disregard the overall structure of the statutory provision  X!-being construed and the basic purposes that underlie its enactment.;!|7 {ON-ԍId. at 1112.;  X- ` _x8. ` ` Americast contends that the focus of the Bureau Order on the plain meaning rule  X- xignores a more directly relevant principle of statutory construction that grandfather provisions  xbe narrowly construed. Grandfather provisions are exceptions to otherwise generally applicable  x-statutory provisions designed to enhance the public welfare, and, Americast contends, an overly  X- xexpansive reading of a grandfather provision such as that adopted by the Bureau Order frustrates  X- xKthe broader remedial purposes of Section 628.;7 {OC"-ԍId. at 1213.; Americast asserts that the Bureau Order permits  xa program distribution exclusivity clause that covered a discrete and identifiable number of cable  XX- xservice areas on the grandfather provision's cutoff date, to be expanded to other cable systems  xthereafter, without limit, by virtue of the afteracquired system clause of the Affiliation  X*- xAgreement.8*7 {O{'-ԍId. at 15.8 Americast argues that this interpretation allows the grandfather provision's exception"*2 ,N(N(ZZ"  xto the statutory general rule to virtually swallow the general rule, and defeats the otherwise clear  xand explicit Congressional goal of opening up new competition among cable operators by  xkprohibiting program distribution exclusivity arrangements that deny new entrants access to important programming.  X- ` x9. ` ` Americast also asserts that, even if the Commission concludes that the exclusivity  Xv- xclause may be enforced, those exclusivity rights should expire at the end of 1996, and not at the  X_- xend of 1997, as found in the Bureau Order. Americast argues that, because such extension will  xoccur by its terms "upon expiration" of the Affiliation Agreement on December 31, 1996, this  xis a contract extension that occurs after October 5, 1992 (the date of enactment of the 1992 Act),  xyand thus is not grandfathered. Ameritech concludes that Section 628(h)(2) does not permit the  X -exclusivity clause to be enforced during 1997.; 7 {O~ -ԍId. at 1819.;  X - ` Ox10. ` ` Continental and HBO support the conclusion of the Bureau Order that the language  xof Section 628(h) is clear and unambiguous in its exemption of "contracts," and argue that, since  x=the contract, including the 1988 and 1989 additions of the program distribution exclusivity and  xafteracquired system clauses, was entered into before the June 1, 1990 cutoff date contained in  x=Section 628(h), Continental's afteracquired systems (including the NCom systems) fall within  xthe protection of the grandfather provision and have Continental's exclusive distribution rights  x=to HBO programming. Continental and HBO contend that Americast's efforts to overcome the  xplain meaning of Section 628(h) with arguments concerning Congressional intent are without  xjmerit. They assert that the plain language of Section 628(h) makes clear that the statute clearly  xexempts "contracts" entered into prior to June 1, 1990, without any restrictions with regard to  X- xkafteracquired system provisions.?Z7 yO-ԍOpposition at 12.? Continental and HBO cite language from the legislative  xhistory of Section 628 as demonstrating Congress' belief that grandfathered exclusivity contracts  X- xmight have procompetitive effects.o7 {O`- xԍOpposition at 13, n.28, citing 1991 Senate Report at p.28. "This bill does not make exclusive contracts per se  xZillegal. The bill does not equate exclusivity with an unreasonable refusal to deal. The Committee does not make  xany findings with regard to existing exclusive contracts or arrangements. The Committee believes that exclusivity  {O- x/can be a legitimate business strategy." See Senate Report No. 10292, 1992 U.S. Code Congressional and Administrative News, Vol. 4, p. 1161.o Continental and HBO also dispute Americast's argument  X- xthat the Bureau Order fails to give a narrow reading to the grandfather provisions, arguing that  x=the narrow interpretation rule, "such as it may be," cannot take precedence here over the plain  X- x=language of the grandfather provision.7 {O#- xYԍOpposition at 1618, citing Finnegan v. Matthews, 641 F.2d 1340, 1346 (9th Cir. 1981); American Public Power  {O$-Ass'n v. NRC, 990 F. 2d 1309 (D.C. Cir. 1993). Finally, Continental and HBO assert that the Bureau  Xm- xOrder correctly concludes that the Affiliation Agreement and its program distribution exclusivity  x clause survive through December 31, 1997. Continental and HBO contend that, even if the"X ,N(N(ZZ"  xlanguage used to effect the contract extension leaves room for doubt, both of them understood  X-in 1989 when it was written that exclusivity was extended through 1997.87 {Ob-ԍId. at 22.8  X- ` x11. ` ` In reply, Americast acknowledges that Congress clearly indicated that the  X- xgrandfather provision would not apply in unserved areas (citing Section 628(h)(1)), and created  xa limited window for grandfathering in served areas (citing Section 628(h)(2)), but argues that,  xabsent an additional restriction to exclude afteracquired systems, the grandfather provision  X_- x"makes no sense."3_Z7 yOj -ԍReply at 1.3 Americast also argues that the Affiliation Agreement must, in any case,  xexpire on December 31, 1996, not December 31, 1997, as the extension "comes to life" at the end  x of 1996, and it is this factor, rather than the date of the amendment to extend the Affiliation  X -Agreement, that determines that this extension is invalid under Section 628(h)(2).7  7 {O-ԍId. at 4.7  X - III. xDISCUSSION AND ANALYSIS  X - ` x12. ` ` Section 628 of the Communications Act prohibits certain unfair or discriminatory  xypractices in the sale of satellite cable and satellite broadcast programming. The stated purpose of Section 628 is:  ` pXxX` ` to promote the public interest, convenience, and necessity by increasing  ` pcompetition and diversity in the multichannel video programming market,  ` pto increase the availability of satellite cable programming and satellite  ` pqbroadcast programming to persons in rural and other areas not currently  ` pable to receive such programming, and to spur the development of  X-communications technologies.I!|7 yO-ԍ47 U.S.C. 548(a).I `  xSection 628(c)(2)(D) required the Commission to adopt regulations which provided that exclusive  xcontracts entered into after June 1, 1990, or revised or extended after October 5, 1992, and  xapplicable to areas served by cable were not strictly prohibited, but could be approved by the  xjCommission if it made a determination that such contract served the public interest, taking into  Xe- xzconsideration certain statutory factors set forth in Section 628(c)(4)./""e 7 {O"#- xԍSee 47 U.S.C. 548(c)(2)(D) & 548(c)(4). As noted earlier, the Bureau Order held this section to be inapposite  xZto this case, as it found that the Agreement here is exempted from the general prohibition against exclusivity by  xvirtue of being grandfathered, and not through any public interest findings. Section 628(c)(2)(D) applies to contracts entered into after June 1, 1990, or revised or extended after October 5, 1992./ Section 628(h) of the  xCommunications Act sets forth an exemption to the general prohibitions of Section 628(c) to  X7-contracts containing program distribution exclusivity clauses."7 ",N(N(ZZ"Ԍ X- ` x13. ` ` This case presents the question of whether the Bureau Order properly interpreted  xMSection 628(h) in the context of the program distribution exclusivity clause contained in the  xjAffiliation Agreement between Continental and HBO. Resolving this purely legal dispute over  X- xjthe meaning of Section 628(h) begins with the language of that section itself.#\7 {O6- x;ԍSee, e.g,. Landreth Timber Co. v. Landreth, 471 U. S. 681, 685 (1985)(starting point in statutory construction is  {O- xKthe statutory language itself). See also Fawn Mining Corp. v. Hudson, 80 F. 3d 519 (D.C. Cir. 1996)(meaning of the text should control when the statutory text makes its application clear). If the language  X-of Section 628(h) is clear, we must enforce it according to its terms.h$7 {OC -ԍSee Caminetti v. United States, 242 U. S. 470, 485 (1917).h  X-  Xx- ` x14. ` ` We begin our analysis by noting that the application for review presents no  Xa- xargument that was not previously considered in the Bureau Order, nor does it suggest that the  XL- x>Bureau Order contains any erroneous findings as to important or material question of fact.  x[Briefly stated, the application for review requests that we reject the conclusions reached in the  X - xBureau Order that the language of Section 628(h) is clear and unambiguous and that the  X -Commission is therefore required to give effect to that unambiguous expression.  X - ` 1 x 15. ` ` As the Bureau Order stated, in ascertaining the intent of Congress, the Commission  X - xzmay be guided by Chevron U.S.A., Inc. v. Natural Resources Defense Council, in which the  X -Supreme Court put forth a twopart test for statutory interpretation.<% ~7 yO-ԍ467 U.S. 837 (1984).< In Chevron, the Court said:  ` pRXxX` ` [f]irst, always, is the question whether Congress has directly spoken to the  ` pprecise question at issue. If the intent of Congress is clear, that is the end  ` pof the matter; for the court, as well as the agency, must give effect to the  ` punambiguously expressed intent of Congress. . . . if the statute is silent  ` por ambiguous with respect to the specific issue, the question for the court  ` pis whether the agency's answer is based on a permissible construction of  X-the statute.&Z7 {O- xjԍChevron, 467 U.S. at 84243; see also INS v. CardozaFonseca, 107 S. Ct. 1207, 1221 (1987) (first step in  xKstatutory construction is to look to the plain meaning of the statute); North Dakota v. U. S., 460 U.S. 300, 312 (1983) (where language is clear and unambiguous "that language must ordinarily be regarded as conclusive"). `  X- ` _x16. ` ` The application for review fails to convince us that Section 628(h) is not clear and  X- xjunambiguous. Americast argues that the Bureau Order permits the extension of exclusivity as  X- xprovided in the Affiliation Agreement to cable systems not now subject to exclusivity.3'0 7 yO$-ԍReply at 1.3 Indeed,  xMthe statutory language permits this result. Section 628(h)(1) clearly states: "Nothing in this  Xu- xsection shall affect any contract that grants exclusive distribution rights to any person with"u ',N(N(ZZ"  x1respect to satellite cable programming and that was entered into on or before June1,  X- x1990...."P(7 yOb-ԍ47 U.S.C. 548(h)(1)(emphasis added).P This statutory language provides a clear directive to the Commission. As the  X- xBureau Order stated, if Section 628(h) were interpreted as Americast wishes, we would be  xZconstruing Section 628(h) as applying not to exclusive "contracts," but to "cable systems subject  X- xto exclusive contracts."S)X7 {O-ԍSee Bureau Order, 11 FCC Rcd at 7745.S An interpretation such as is sought by Americast "does not read the  X-words of the statute; it rewrites them."m*7 {O* -ԍFawn Mining Corp. v. Hudson, 80 F.3d 519, 522 (D.C. Cir. 1996).m  Xa- ` x17. ` ` The application for review does not refute the observations of the Bureau Order  xthat afteracquired systems provisions were commonplace throughout the 1980s and are still  xcommon today. We agree with the Bureau that, had Congress so intended, it could easily have  X - xMdrafted Section 628(h) to limit exclusive contracts to those systems subject to an exclusivity  X - xprovision as of June 1, 1990.~+Z |7 {O6- xJԍSee Time Warner Entertainment Co., L.P. v. FCC, 56 F.3d 151, 189 (D.C. Cir. 1995), cert. denied 116 S. Ct 911  x(1996) ("Had Congress intended to disqualify as overbuilds those systems that faced only a satellite competitor in at least 50% of their franchise area, it could have done so expressly").~ However, Congress did not do so. Instead, it applied Section  X - x[628(h) to contracts that were in place as of that date, regardless of their content. Accordingly,  xthe unambiguous expression of Section 628(h) must be given its intended effect and cannot be  X -trumped by the principle that grandfather clauses should be narrowly construed.,\ 7 yO- xyԍEven if some ambiguity were found to exist, it clearly would be a reasonable interpretation of the statute to  {O- xconclude that Congress meant the provision to apply to exclusive "contracts," not to any particular "system." See  {O-Chevron U.S.A Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).  X- ` x18. ` ` In view of the undisputed fact that the Affiliation Agreement between Continental  xand HBO, as amended and extended from time to time, was entered into before June 1, 1990 and  Xj- xMwas not amended or extended after October 5, 1992, we affirm the conclusion of the Bureau  XU- x=Order that the Affiliation Agreement is exempted under Section 628(h) of the Communications  xAct. We also affirm the conclusion that Continental may enforce this exclusivity agreement, and may deny HBO programming to Americast in the affected communities.  X- ` _x19. ` ` The Affiliation Agreement was amended in 1989 by a clause in an HBO "Standard  X- xForm SGIP Agreement," which stated, in pertinent part, "[i]f the term of the [Affiliation]  xAgreement currently expires after December 31, 1991, upon expiration of such term, the  X- x[Affiliation] Agreement shall be automatically renewed for an additional year." Since the  X- xAffiliation Agreement was amended in 1988 to terminate on December 31, 1996, this 1989 clause" ,,N(N(ZZQ"  X- xkestablished a termination date of December 31, 1997.-7 {Oy- xԍSee Continental Answer, Exhibit 4, Standard Form SGIP Agreement, p. 2  I(1). A 1988 amendment had extended  {OC-the Affiliation Agreement through December 31, 1996. See n.9, supra. Americast contends that, even if the  xAffiliation Agreement is grandfathered by Section 628(h)(1), the extension of it contemplated by  xthe 1989 clause is not exempted by the provisions of Section 628(h)(2). Section 628(h)(2)  xprovides, "[a] contract that was entered into on or before June 1, 1990, but that is renewed or  X- xextended after the date of enactment of this section shall not be exempt under paragraph (1)."<.$7 yOy-ԍ47 U.S.C. 548(h)(2).<  xAmericast argues that such extension will occur by its terms "upon expiration" of the Affiliation  xAgreement on December 31, 1996, and that the exclusivity clause cannot be enforced during 1997.  X1- ` x20. ` ` We affirm the Bureau's rejection of this argument. The Affiliation Agreement,  xincluding both the afteracquired systems clause and the extension clause, was complete prior to  xyJune 1, 1990. The oneyear extension, to December 31, 1997, occurred when the agreement was  X - xamended, in 1989, not when the extension "comes to life" on December 31, 1996.V/Z 7 yOQ- xԍNeither party contends that the amendment did not constitute a valid modification of the contract in 1989.  {O- x Accordingly, at the time of amendment (i.e., 1989), both parties had a legal right to performance under the agreement through December 31, 1997.V Accordingly,  xmwe conclude that the Affiliation Agreement, as amended and extended, terminates on  xDecember31, 1997. Section 628(h)(2) of the Communications Act precludes Continental and  xHBO from extending the termination date of the exclusivity provision of the Affiliation  xAgreement beyond December 31, 1997 without first obtaining a Commission determination  xZconsistent with the five criteria set forth in Section 628(c)(4) that such extension serves the public  Xb- xinterest.?0$b7 {O- x;ԍSee 47 U.S.C. 548(c)(4), setting forth the five public interest criteria of Section 628(c)(4). Because we find that  xthe Affiliation Agreement is exempted under Section 628(h), unless it is further extended, we affirm the conclusion  {O{- xreached by the Bureau Order that it need not satisfy the public interest criteria of Section 628(c)(4), which apply solely to exclusive contracts entered into after June 1, 1990 in areas served by a cable operator. ? Absent such a request and favorable public interest determination, Americast should not be denied access to HBO programming in the affected communities after December 31, 1997. "4 0,N(N(ZZ "  X- IV.x ORDERING CLAUSE  X- `  x21. ` ` Accordingly, IT IS ORDERED , pursuant to Sections 1, 4(i), 5(c), 405, and 628(h)  xof the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 155(c), 405, and  x548(h)), that the Application for Review filed by Corporate Media Partners d/b/a Americast and  X-Ameritech New Media, Inc. IS DENIED. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary