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)^ `> XifQ ` Advanced Legal WordPerfect II Learning Guide   x )^ `> XifQ Advanced Legal WordPerfect II Learning Guide   j-n )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`6 >Page  jBX )^ `> XifQ   Style 3oDutch Roman 11.5 with Margins/Tabs )a [ PfQO  ddn  # c0*b, oT9 !Style 4 PSwiss 8 Point with MarginsDq Co> PfQ  dddd  #  2; | C  Style 1.5Dutch Roman 11.5 Font4h )a [ PfQO  dddn Style 2Dutch Italic 11.5$ )^ `> XifQ Style 5Dutch Bold 18 Point$RH$L T~> pfQ_  )a [ PfQO Style 7Swiss 11.5$$V )ao> PfQ ]  )a [ PfQO 2hU\cStyle 6Dutch Roman 14 Point$$N w [ PfQ   )a [ PfQO Style 10oInitial Codes for Advanced U )a [ PfQK  dddn  ##  [[ b, oT9 !b, oT9 !n )^ `> XifQ ` Advanced Legal WordPerfect Learning Guide   f )^ `> XifQ Advanced Legal WordPerfect Learning Guide   Q" )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`6 >Page  QN~ )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 Style 8PfInitial Codes for Beginninggi )a [ PfQK  dddn  # X` hp x (#%'b, oT9  [ &e )^ `> XifQ ` Beginning Legal WordPerfect Learning Guide   d )^ `> XifQ Beginning Legal WordPerfect Learning Guide   jH )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`6 >Page  j )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 Style 9Initial Codes for Intermediate )a [ PfQK  dddn  # X` hp x (#%'b, oT9 Њ [ e )^ `> XifQ ` Intermediate Legal WordPerfect Learning Guide   3 )^ `> XifQ Intermediate Legal WordPerfect Learning Guide   jf )^ `> XifQ    Copyright  Portola Systems, Inc.`+ >Page  jX )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 2(p#K $ Kk&UpdateInitial Codes for Update Module )a [ PfQK  dddn  #  [ X` hp x (#%'b, oT9 !n )^ `> XifQ ` Legal WordPerfect 5.0 Update Class Learning Guide   f )^ `> XifQ Legal WordPerfect 5.0 Update Class Learning Guide   Q" )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`7 CPage  jN~ )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 33`O5hT(G2PDocument Style&^aO5h.K+&,$@`O5Bȗ+&>` ` ` "i~'^5>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\"i~'^09]SS999S]+9+/SSSSSSSSSS99]]]Sxnxxng?Snxgx]nxxxxn9/9aS9S]I]I9S]/9]/]S]]I?9]SxSSIC%CW9+Wa999+999999S9]/xSxSxSxSxSxxInInInInI>/>/>/>/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 6( yO-ԍ47 U.S.C.  548(b).>  In Section 628(c), Congress instructed the Commission to promulgate regulations that:  BXx(A) establish effective safeguards to prevent a cable operator which has an attributable  interest in a satellite cable programming vendor or a satellite broadcast programming  vendor from unduly or improperly influencing the decision of such vendor to sell, or the  prices, terms, and conditions of sale of, satellite cable programming or satellite broadcast  S-programming to any unaffiliated multichannel video programming distributor; [and]j6( yO-ԍCommunications Act  628(c)(2)(A), 47 U.S.C.  548(c)(2)(A).j   Xx(B) prohibit discrimination by a satellite cable programming vendor in which a cable  #operator has an attributable interest or by a satellite broadcast programming vendor in the  prices, terms, and conditions of sale or delivery of satellite cable programming or satellite  %broadcast programming among or between cable systems, cable operators, or other  S-MVPDs or their agents or buying groups. . . . x* 6( yO"- xԍCommunications Act  628(c)(2)(B), 47 U.S.C.  548(c)(2)(B). Congress provided limited exceptions to this prohibition. A satellite programming vendor is not prohibited from:  Xx(i) imposing reasonable requirements for creditworthiness, offering of service, and financial  stability and standards regarding character and technical quality; (ii) establishing 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 or satellite broadcast programming;"B',`(`('"  (iii) establishing different prices, terms, and conditions which take into account economies of scale,  cost savings, or other direct and legitimate economic benefits reasonably attributable to the number  of subscribers served by the distributor; or (iv) entering into an exclusive contract that is permitted under subparagraph (D) [of this section].   {Mx-Id.ĺ "@ ,`(`(88"Ԍ S- ` 2ԙx4.` ` In Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and  xyCompetition Act of 1992: Development of Competition and Diversity in Video Programming Distribution  S- xand Carriage, MM Docket No. 92265, First Report and Order ("Program Access Report and Order"),> @6( yO -ԍ8 FCC Rcd 3359 (1993).>  xthe Commission concluded that nonprice discrimination is included within the prohibition against  xdiscrimination set forth in Section 628(c)(2)(B). While the Commission did not attempt to identify all  xtypes of nonprice discrimination that could occur, the Commission stated that "one form of nonprice  xdiscrimination could occur through a vendor's 'unreasonable refusal to sell', or refusing to initiate  xdiscussions with a particular distributor when the vendor has sold its programming to that distributor's  x]competitor." The Commission cautioned, however that "'unreasonable' refusals to sell" should be  xdistinguished from "certain legitimate reasons that could prevent a contract between a vendor and a  St-particular distributor."1 t6( {O-ԍId.1 Such legitimate reasons would include:  Xx(i) the possibility of [the] parties reaching an impasse on particular terms, (ii) the  $distributor's history of defaulting on other programming contracts, or (iii) the vendor's  Bpreference not to sell a program package in a particular area for reasons unrelated to an  S -existing exclusive arrangement or a specific distributor.E b 6( {O-ԍId. (footnote omitted).E   S\-  x5. "Satellite cable programming" is "video programming which is transmitted via satellite and  x which is primarily intended for the direct receipt by cable operators for their retransmission to cable  S - xsubscribers."A  6( yO-ԍ47 U.S.C. 601(d)(1).A "Satellite broadcast programming" is broadcast programming when such programming is  x<retransmitted by satellite and the entity retransmitting such programming is not the broadcaster or an entity  S-performing such retransmission on behalf of and with the specific consent of the broadcaster.A 6( yO-ԍ47 U.S.C. 548(i)(3).A  S-x  Sl-III.x THE FACTS  S- ` x6.` ` Complainant, EchoStar, is a direct broadcast satellite ("DBS") provider that offers  xmultichannel video programming distributor ("MVPD") service to approximately 950,000 subscribers  S- xacross the continental United States.B6( yO&-ԍComplaint at 2, Exhibit 2.B EchoStar operates three DBS satellites to offer up to 200 channels",`(`(88"  S- xof digital programming.76( {Oh-ԍId. at 2.7 As an MVPD, EchoStar competes directly with cable operators in  S-each and every cable franchise area, including the Philadelphia metropolitan area.7Z6( {O-ԍId. at 3.7  S- ` x7. ` ` Defendant Comcast is a multiple system operator ("MSO") based in Philadelphia that owns  S`- x/and operates several cable systems and cable programming services.`6( yO- xԍComcast has ownership interests in a number of cable television programming services, including QVC, E!, Outdoor Life and Speedvision. Answer at Exhibit 2. Comcast is one of the nation's  S8- xlargest cable operators, and an incumbent cable operator in the Philadelphia market.E8D6( yO -ԍComplaint at 4; Answer at 32.E In July 1996,  xComcast acquired a 66% interest in the Philadelphia Flyers L.P., to form a new partnership named  S- xMComcastSpectacor, L.P.E6( yO\-ԍComplaint at 3; Answer at 32.E ComcastSpectacor owns the following assets: 1) the Philadelphia Flyers  xNational Hockey League ("NHL") team; 2) the Philadelphia 76ers National Basketball Association  S- xk("NBA") team; and 3) the CoreStates Spectrum and Corestates Center sports arenas.Kd 6( yO-ԍComplaint at 3; Answer at 32.K Also in 1996,  xComcastSpectacor entered into a partnership with the Philadelphia Phillies Major League Baseball  SH -("MLB") team to form Philadelphia Sports Media, L.P.EH 6( yO-ԍComplaint at 3; Answer at 32.E  S - ` x8. ` ` The facts underlying EchoStar's complaint are undisputed. SportsChannel Philadelphia  x("SportsChannel") and PRISM were commonly owned cable networks that served the Philadelphia  S - xmarket.8 6( yO-ԍAnswer at 45. 8 SportsChannel was a satellite delivered basic tier network that offered numerous Philadelphia  S - xjprofessional major league sport contests, including Philadelphia Flyers hockey games, Philadelphia 76ers  SX- xbasketball games, and Philadelphia Phillies baseball games.1X6( {O -ԍId.1 PRISM was a network that produced and  xdistributed movies and other entertainment programming, including Philadelphia professional major league  S- xzsport contests.16( {ON!-ԍId.1 Unlike SportsChannel, PRISM was delivered through terrestrial technology, and its  S- xprogramming was available only as a premium priced subscription service.186( {O#-ԍId.1 Both SportsChannel and  S- xPRISM terminated operations on September 30, 1997.26( {O"&-ԍId. 2 Because SportsChannel distributed its"\,`(`(88"  x=programming through satellite technology, it was considered "satellite cable programming" subject to the  S-program access rules.M6( yO@-ԍ47 U.S.C.  548(a), 605(d)(1).M EchoStar never carried SportsChannel or PRISM programming.  S- ` x9.` ` On October 1, 1997, Comcast SportsNet ("SportsNet") debuted as a new channel on  x.Comcast's, and other cable operators', basic service tier ("BST") in the Philadelphia market. Defendants  S8- x{distribute SportsNet only through terrestrial microwave and fiber technology.<8X6( yO0-ԍAnswer at Exhibit 3.< In addition to the  x?professional sporting events previously offered through SportsChannel and PRISM, SportsNet's  S- xkprogramming includes various professional and collegiate sporting events that had not been carried on  S- xLeither channel.;6( {OH -ԍId. at 1617.; SportsNet offers locally produced programming, such as sportsrelated talkshows and  S- xsports news shows.?z6( {O-ԍId. at Exhibit 4.? These shows are all original and have never appeared before on any programming  Sp-service, including SportsChannel and PRISM.1 p 6( {O-ԍId.1  S - ` x 10.` ` Defendants have indicated that they license SportsNet programming to a wide variety of  S - x.MVPDs in the Greater Philadelphia market, including local cable operators, wireless cable systems, also  xknown as multichannel multipoint distribution systems ("MMDS"), satellite master antenna television  S - x("SMATV") providers, and potential open video systems ("OVS").5! 6( yO-ԍAnswer at 6. 5 In letters dated December 9, 1997,  xand December 31, 1997, EchoStar attempted to negotiate with Defendants for the carriage rights of  SX- xSportsNet's programming.B"X. 6( yO&-ԍComplaint at 5, Exhibit 2.B EchoStar requested that Defendants send a copy of SportsNet's affiliation  xagreement and applicable rate card. EchoStar's efforts were unsuccessful. In a letter to EchoStar dated  S- xJanuary 7, 1998, the general counsel of ComcastSpectacor, L.P. stated that SportsNet's programming  S- xwould not be available to "any satellite delivered service in the Philadelphia market."# 6( yO>- xԍComplaint at Exhibit 4 (letter from Philip Weinberg, General Counsel, ComcastSpectacor to Michael Schwimmer, Vice President Programming, EchoStar (Jan. 7, 1998)). After providing  S- xDefendants with the requisite notice of its intent to file a program access complaint, EchoStar filed the  xinstant action alleging that Defendants' refusal to sell SportsNet programming to EchoStar violates the  Sh-program access provisions of the Communications Act.k$h6( {O#-ԍ47 U.S.C. 548(b), (c); see 47 C.F.R.  76.1003(a).k   S@-  S- IV.xTHE PLEADINGS  S- ` x 11.` ` EchoStar alleges that Defendants' refusal to offer its regional sports programming to  S- x EchoStar and other DBS providers constitutes an impermissible refusal to sell prohibited by Section"$,`(`(88#"  S- xy628(c)(2)(B).D%6( yOh-ԍ47 U.S.C.  548(c)(2)(B).D EchoStar maintains that if the regional sports programming were transmitted by satellite,  S- xDefendants's refusal to sell would be an impermissible form of nonprice discrimination.7&X6( yO-ԍComplaint at 7.7 EchoStar  xargues that Defendants distribute SportsNet's programming through terrestrial means in order to evade  S- xapplication of the program access rules.='6( {O-ԍId. at 8.= EchoStar contends that the Commission has authority under  S`-Sections 4(i) and 303(r) to ensure that its regulations are not evaded.(`z6( {Oz - xԍId. at 89, citing Communications Act  4(i) and 303 (r), 47 U.S.C.  154(i) and 47 U.S.C.  303(r). Section  x4(i) states "The Commission may perform any and all acts, make such rules and regulations, and issue such orders,  xnot inconsistent with this Act, as may be necessary in the execution of its functions." Section 303(r) states that one  x;of the general powers of the Commission is to "[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act. . . . "  S- ` x 12. ` ` EchoStar argues that Defendants' claim of cost savings is not a valid basis to move to  S- x-terrestrial delivery of SportsNet.), 6( {O-ԍId. at 8, n.15. EchoStar stated that it would share in the costs of uplinking SportsNet programming to satellite. EchoStar alleges that Defendants' primary reason to switch to terrestrial  S- xfacilities was to avoid application of the Commission's rules and thus secure the additional monopoly rents  S- xavailable from exclusive carriage of SportsNet.=* 6( yO-ԍComplaint at 9.= EchoStar maintains that Defendants have no cost  xjustification to support its allegedly discriminatory conduct toward EchoStar, contending that it and other  SH - x=DBS providers offered to share in SportsNet's satellite distribution costs.>+H N 6( yO6-ԍ Complaint at 12.> EchoStar notes it has a well S - xkestablished and recognized record of creditworthiness and financial stability.1, 6( {O-ԍId.1 EchoStar believes that  xDefendants' decision to make its programming available to other MVPDs highlights Defendants'  S - xdiscriminatory treatment of EchoStar as compared to the other MVPDs.4- p6( yO-ԍReply at 13.4 EchoStar notes that even if the  S - xsports programming is considered a new service containing programming previously unavailable by  xsatellite in the Philadelphia area, if the use of terrestrial transmission was intended to evade the  xCommission's prohibition on refusing to sell satellite cable programming, it does not matter whether the  xprogramming was switched from satellite transmission or was transmitted by terrestrial means from the  S-outset.1.6( {O#-ԍId.1  S- ` x 13. ` ` EchoStar alleges that Defendants have unduly influenced the decision of Comcast S- xSpectacor and Philadelphia Sports Media, L.P. to deny EchoStar the opportunity to carry the regional".,`(`(88"  S- xsports programming in violation of Section 628(c)(2)(A).s/6( yOh-ԍ47 U.S.C.  548(c)(2)(A), 47 C.F.R.  76.1002(a). Complaint at 13. s EchoStar further states that Defendants'  S- xunwillingness to negotiate to carry SportsNet, while offering it to certain MVPDs (including Comcast),  S- xconstitutes an unfair practice under Section 628(b).V0X6( yO-ԍ47 U.S.C.  548(b), 47 C.F.R.  76.1001.V EchoStar maintains that the sports programming  xZoffered by Defendants is important to its success and ability to compete in the Philadelphia MVPD market,  S`- xand the unavailability of SportsNet precludes EchoStar from competing effectively with Comcast.81`6( yO-ԍComplaint at 16.8  xEchoStar believes that the statutory prohibition contained in Section 628(b) is broader than the specific  xprohibitions on discrimination in Section 628(c), arguing that the only requirement for triggering the  xprohibition in Section 628(b) is that the unfair conduct in question prevents an MVPD "from providing  S- xLsatellite cable programming or satellite broadcast programming to subscribers or consumers."]2x6( {O -ԍReply at 3 citing 47 C.F.R.  76.1001.] EchoStar  xyargues that if Defendant's refusal to sell its sports programming to EchoStar hinders EchoStar's provision  x|of satellite programming to consumers, the status of the sports programming as "satellite cable  xprogramming" is irrelevant as long as EchoStar can show it has been harmed in its ability to provide  S -satellite cable programming.33 6( yO-ԍReply at 3.3  S - ` Px 14.` ` EchoStar maintains its construction of Section 628(b) is consistent with the plain language  S - xof the statute.74 6( {O-ԍId. at 4.7 EchoStar also maintains that the Commission has read Section 628(b) as a "catchall"  xprovision intended to cover anticompetitive practices not directly covered by other regulations and  SX- xMstatutory provisions, such as the use of terrestrial transmission to avoid Section 628(c) obligations.75X, 6( {O$-ԍId. at 5.7  xEchoStar argues that a violation of Section 628(b) has occurred because Defendants' refusal to allow  xMEchoStar to carry regional sports programming in Philadelphia hinders EchoStar's ability to sell other  S- xprogramming which qualifies as "satellite cable programming.">6 6( yO>-ԍComplaint at 16.> EchoStar contends that regional sports  S- xprogramming is important to the success of an MVPD.37N 6( yO -ԍReply at 7.3 EchoStar claims the harm caused by Defendant's  xactions is demonstrated by the fact that there is a huge disparity between its and Comcast's subscriber  Sh- xLcount in the Philadelphia even though EchoStar offers less expensive services.^8Xh6( yO#- xԍEchoStar asserts its subscribers in the Philadelphia area are a small percentage of the number of Comcast  xJsubscribership the same area, although its entry level package costs $19.99 a month while comparable programming offered by Comcast costs $35.39 a month. Complaint at 16.^ EchoStar maintains that  S@- xbecause the effect of not having access to SportsNet is enough to find a violation of Section 628(b), the"@8,`(`(88"  x.Commission does not need to find that Defendants' purpose for not selling its programming to EchoStar  S-was to inhibit EchoStar as an MVPD competitor.396( yO@-ԍReply at 9.3  S- ` Ax15.` ` In their Answer, Defendants asserts that their conduct does not violate Sections 628(b) or  x?628(c) of the Communications Act. Defendants maintain that the SportsNet is not satellite cable  S8- xprogramming.5:8X6( yO0-ԍAnswer at 15.5 Defendants argue that the Commission is granted only limited authority to adjudicate  xdisputes regarding access to satellite cable programming, which is defined as "video programming which  S- xis transmitted via satellite."8;6( {Op -ԍId. at 16.8 Defendants cite Congress' deliberate, consistent, and repeated use of the  xphrase "satellite cable programming" as evidence that Congress intended to limit application of the  S- xprogram access rules to satellite programming.<z6( {O-ԍId. Defendants note the phrase "satellite cable programming" was used 18 times in Section 628. Defendants argue that the legislative history reveals that  xCongress considered and rejected the idea that the program access rules apply to terrestrially delivered  SH - xprogramming.Y=ZH 6( {O- xyԍId. Defendants maintain that the program access provisions that the Senate adopted provisions adopted  xZextended to terrestrially delivers programming services, but the House bill, which was ultimately enacted, applied only to satellite delivered programming services.Y Defendants reason that if the Commission were to extend the application of the statute  xto terrestrial programming, despite the clear language of the statute, it would violate well established  S - xprinciples of statutory construction.>^ . 6( {O- xwԍAnswer at 18 (citing Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 84243 (1984);  {O- xEstate of Colwart v. Nicklose Drilling Co., 505 U.S. 469, 476 (1992); Consumer Prod. Safety Comm'n v. GTE  {OZ-Sylvania, Inc., 447 U.S. 102, 108 (1980)). Defendants state that because SportsNet falls outside of the scope  S -of the statute, the Commission does not have authority to grant the requested relief.8? T 6( {O-ԍId. at 19.8  S - ` x16.` ` Defendants also challenge EchoStar's claim that SportsNet is terrestrially delivered in  SX- xorder to evade the program access rules.2@X6( {O-ԍId. 2 According to Defendants, SportsNet constitutes a new and  S0- xoriginal programming service entirely unrelated to SportsChannel.8A0x6( {OH!-ԍId. at 20.8 In support of its claim, Defendants  S- xdetail how SportsNet is different in ownership, management, name, and content from SportsChannel.;B 6( yO#-ԍAnswer at 21.;  xDefendants allege that SportsNet will telecast significant amounts of programming never before seen on  S- xSportsChannel or PRISM, including various collegiate games, sports news shows, and a host of original"B,`(`(88 "  S- xKand locallyproduced shows.1C6( {Oh-ԍId.1 Defendants maintain that the only programming overlap between SportsNet  S- xand SportsChannel consists of Flyers, Phillies and 76ers games.2DZ6( {O-ԍId. 2 Defendants argue that SportsNet has  S-always been terrestrially delivered, and has never been moved from satellite delivery.AE6( {O<-ԍId. at 2122.A  S`- ` x17.` ` Defendants also dispute EchoStar's suggestion that its motivation for creating SportsNet  S8- xwas to deny competitors access to sports programming.5F8~6( yOV -ԍAnswer at 22.5 Defendants explain that adoption of terrestrial  xdistribution for SportsNet was a rational and legitimate business decision based on a determination that  S- xterrestrial distribution is significantly less expensive than satellite distribution.lGZ6( {O- xԍId. at 23. According to Defendants, terrestrial distribution of SportsNet costs approximately $600,000 per year,  xwhereas satellite distribution costs approximately $1,400,000 to $2,280,000 per year, depending upon the type of  yO(-satellite transponder employed. l In this regard, Defendants  xjnote that they had access to the preexisting terrestrial infrastructure of PRISM to deliver SportsNet and  S- xthat SportsNet was being offered to essentially the same base of terrestrial operators that formerly  Sp- xkdistributed PRISM.9Hp0 6( {O@-ԍId. at 24.9 Because a microwave and fiberoptic distribution system was already in place,  SH - xDefendants argue that it was both logistically simple and economical to adopt terrestrial distribution for  xSportsNet. Defendants also claim that satellite distribution substantially increases the costs of policing  S - xagainst signal theft.;I 6( yOZ-ԍAnswer at 24.; Defendants believe that because SportsNet is a regional service, there is no reason  S - xto incur the higher costs associated with satellite distribution.2J R 6( {O-ԍId. 2 Defendants maintain that their decision  xto refuse EchoStar's offer to pay to have SportsNet uplinked to a satellite cannot be characterized as an  x/evasion of the program access rules. Defendant's argue that EchoStar's offer to pay for the uplink to  xsatellite does not transform terrestrially delivered programming into satellite cable programming.  xkDefendants note that other competing MVPDs in the Greater Philadelphia market will have access to  S-SportsNet including MMDS, OVS providers, SMATV, as well as all local cable systems.8K6( {O -ԍId. at 26.8  S- ` x18. ` ` Defendants assert that EchoStar has failed to state a claim under Section 628(b) and that  x.there is no legal support for EchoStar's theory. Defendants argue that, under EchoStar's view of Section  x628(b), anything that Defendants do to compete in the marketplace will constitute a program access  xviolation because such an action could help Comcast gain or retain subscribers at the expense of  S- xEchoStar.8Lv6( {O.'-ԍId. at 27.8 Defendants further argue that the decision not to offer SportsNet to EchoStar is not an unfair" L,`(`(88"  S- xypractice because this decision is specifically permitted under law.5M6( yOh-ԍAnswer at 28.5 Defendants contend that because the  x]program access provisions of the 1992 Cable Act and the Commission's rules exclude terrestrially  S- xdelivered programming, Defendants may decide whether or not to offer SportsNet to any MVPD.8NX6( {O-ԍId. at 28.8  xzFinally, Defendants argue that EchoStar fails to state a claim under Section 628(b) because it does not  S`- xmake a showing of harm as required by Section 76.1000(c)(1)(xii) of the Commission rules.8O`6( {O-ԍId. at 29.8 Defendants  xcontend that EchoStar presents no evidence to support its claim that the absence of SportsNet has directly lead to a low subscriber count.  S- V.xDISCUSSION x  Sp- ` }x 19. ` ` At the outset of our discussion, we note that EchoStar's complaint presents essentially the  SH - x=same facts and legal issues recently resolved by the Cable Services Bureau in DIRECTV, Inc. v. Comcast  S" - xCorporation, et al.P" |6( {O>-ԍDIRECTV, Inc. v. Comcast Corporation, et al., DA 982151 (rel. October 27, 1998), app. for rev. pending. In resolving EchoStar's complaint, we rely substantially on the analysis set forth  S -therein. As in DIRECTV, there appear to be three interrelated matters of dispute in this proceeding: x  S - Xx(1) Is the programming in question "satellite cable programming" so that Defendants' conduct is actionable under Section 628(c) of the program access rules?  x   XxPxPx (2) Does the Commission have the authority to take action against evasions of the program access rules and, if so, is Defendants' conduct actionable as an evasion?(# x   ^XxPxPx(3) Does Defendants' conduct involve unfair or anticompetitive action to deprive EchoStar of "satellite cable programming" under Section 628(b)?(#  SF- ` x20. ` ` Section 628 is generally understood to be a mechanism for ensuring that MVPDs that are  xNcompeting with traditional cable television systems are not deprived, through exclusive contracts,  x/discriminatory pricing, or otherwise, of access to vertically integrated "satellite cable programming."  xSection 628(c)(2)(A) prohibits a cable operator from unduly or improperly influencing the decision of a  x"satellite cable programming vendor" to sell, or the prices terms and conditions of sale, of satellite cable  S~- xkprogramming to unaffiliated MVPDs.kQ~6( yO,!-ԍCommunications Act  628(c)(2)(A), 47 U.S.C.  548 (c)(2)(A).k Section 628(c)(2)(B) prohibits a "satellite cable programming  xvendor" in which a cable operator has an attributable interest from engaging in discrimination in the  S.- xjprices, terms or conditions of the sale or delivery of satellite cable programming to competing MVPDs.kR.6( yOl$-ԍCommunications Act  628(c)(2)(B), 47 U.S.C.  548 (c)(2)(B).k  S- xAs in DIRECTV, the success of EchoStar's Section 628(c) claim hinges upon whether SportsNet can be said to be a satellite cable programming vendor. " . R,`(`(88<"Ԍ S- ` x21. ` ` EchoStar's complaint makes little effort to demonstrate that SportsNet is in fact "satellite  xcable programming." Rather, it argues that, if the programming were satellite delivered, it would be  xysubject to the program access provisions of the Communications Act. The first step in our analysis is to  x=determine what Congress intended the term "satellite cable programming" to mean. The Supreme Court,  S`- xin its Chevron decisionrS^`6( {O- xԍ Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). See also Estate  {O- xof Colwart v. Niclose Drilling Co.,505 U.S. 469, 476 (1992); Consumer Product Safety Comm'n v. GTE Sylvania,  {O\-Inc., 447 U.S. 102, 108 (1980). r speaks to the proper statutory interpretation analysis in situations such as this. That decision states:  RXx[f]irst, always, is the question whether Congress has directly spoken to the precise  question at issue. If the intent of Congress is clear, that is the end of the matter; for the  Bcourt, as well as the agency, must give effect to the unambiguously expressed intent of  QCongress. ... if the statute is silent or ambiguous with respect to the specific issue, the  question for the court is whether the agency's answer is based on a permissible  S" -construction of the statute.1T" 6( {O-ԍId.1   xWe believe that the correct reading of Section 628(c) is that the provisions in question apply to satellite  xzcable programming, not programming that was "previously" satellitedelivered, or the "equivalent" of  xsatellite cable programming, or programming that would qualify as satellite cable programming, but for  SZ- xLits terrestrial delivery. The statute defines "satellite cable programming" as that which is transmitted via  S4- xsatellite.QU46( yOT-ԍ47 U.S.C. 605(d)(1)(emphasis added).Q This reading is consistent with the legislative history of Section 628 which indicates that the  xzversion of the program access provision that the Senate adopted would have extended to terrestrially S- xdelivered programming services but the House bill, that was eventually adopted, did not.oV6( {O-ԍSee H.R. Conf. Rep. No. 862, 102d Cong., 2d Sess. at 913 (1993).o This indicates  S- xa specific intention to limit the scope of the provision to satellite services.eW6( {O- xiԍINS v. CardozaFonseca, 480 U.S. 421, 44243 (1987) ("Few principles of statutory construction are more  {O- xcompelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has  {O- xearlier discarded in favor of other language."); Tanner v. United States, 483 U.S. 107, 125 (1987) ("the legislative  xhistory demonstrates with uncommon clarity that Congress specifically understood, considered and rejected" other language.)e Given the new content of the  xservice in question it is also not clear that this is a service which can be considered "previously"  x distributed by satellite. Because we find that SportsNet is not satellite cable programming, we deny  xEchoStar's Section 628(c)(2)(B) refusal to sell claim and its Section 628(c)(2)(A) undue influence claim.  S- ` x22. ` ` The next question presented has to do with the scope of the Commission's authority to  xact against evasions of Section 628 and whether the conduct of Defendants could in fact be considered  x an evasion. Assuming for the sake of argument that the Commission has the authority to act against" X W,`(`(88"  S- xlevasions in some circumstances (an issue the Commission has considered elsewhere),X6( {Oh- xYԍSee Report and Order, FCC 98189 at 71 (released Aug. 7, 1998). In the Report and Order, the Commission stated:  {O- _XxThe record developed in this proceeding fails to establish that the conduct complained of, i.e.,  moving the transmission of programming from satellite to terrestrial delivery to avoid the program  access rules, is significant and causing demonstrative competitive harm at this time. The  ^Commission has received only two complaints against the same verticallyintegrated programmer  "related to moving the transmission of programming from satellite to terrestrial delivery to avoid  the program access rules. Where the record fails to indicate a significant competitive problem, we  are reluctant to promulgate general rules prohibiting activity particularly where reasonable issues  ^are raised regarding the scope of the statutory language. In circumstances where anticompetitive  harm has not been demonstrated, we perceive no reason to impose detailed rules on the movement  of programming from satellite delivery to terrestrial delivery that would unnecessarily inject the  Commission into the daytoday business decisions of verticallyintegrated programmers. While  the record does not indicate a significant anticompetitive impact necessitating Commission action  at this time, 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.  2We note that Congress is considering legislation which, if enacted, would introduce important  @changes to the program access provisions, including clarification of the Commission's jurisdiction  over terrestriallydelivered programming. The Commission will continue to monitor this issue and its impact on competition in the video marketplace.   {M-Id. we are not persuaded here that the totality of the circumstances demonstrates an intent to evade our rules.  S- ` Bx23.` ` Here, for instance, we find evidence that the service in question is not simply a service  S`- xthat has moved from satellite to terrestrial distribution but is in fact a new service.5Y`6( yO-ԍAnswer at 14.5 The majority of the  xprogramming content on SportsNet is not duplicative of content on SportsChannel Philadelphia. A  x[significant amount of the sports content on the channel consists of sports events that were on PRISM, a  xterrestrially delivered service, operating in the Philadelphia market for over two decades, that in its last  xseason distributed some 124 games of the Philadelphia Flyers, Philadelphia 76ers and the Philadelphia  S- xPhillies.7Z6( {OT-ԍId. at 2.7 In contrast, in its last year of operation, SportsChannel Philadelphia distributed 67 such games.  x]In this regard, we believe that it bears repeating that EchoStar never purchased programming from  xSportsChannel or PRISM. SportsNet is a brand new service in ownership, name, management, and  S - xcontent.7[ 6( {On"-ԍId. at 3.7 It is described as featuring more locallyproduced sports coverage including events, news,  S - xLopinion, and programming than any other regional sports network in the United States.1\ @6( {O$-ԍId.1 As a further" \,`(`(88 "  xdeparture from its predecessors, Defendants have returned 22 games of the Philadelphia 76ers back to  S-broadcast television.;]6( {O@-ԍId. at 3, 16.;  S-  S- ` x24.` ` In addition, according to Defendants, the terrestrial distribution of this service is  S`- xdramatically less expensive than satellite distribution.8^`Z6( {OZ-ԍId. at 23.8 An affidavit filed by Defendants, indicates that  xit costs approximately $600,000 per year to deliver the SportsNet service terrestrially. The cost of  xdelivering the service would be approximately $2,280,000 per year using a full band satellite transponder,  xM$1,400,000 using a second tier satellite transponder, or between $720,000 and $900,000 using shared  S- xLdigital capacity.@_6( {OL -ԍId. at 2324, n.5.@ In addition, a one time cost of $250,000 for an uplink facility would be required plus  xy$24,000 a year to uplink and a cost of $190,000 for encoding the signal prior to uplinking it and decoding  x.at the headend of the individual recipients. Although not cited as an extra cost by Defendants, EchoStar  xitself notes if it received the service it would split the cost of uplinking SportsNet to a satellite if that was  S - xythe only thing standing in the way of Comcast's making the sports programming available to DBS.8` ~6( yO>-ԍComplaint at 12.8 The  xyterrestrial infrastructure used by PRISM, according to Defendants, had available capacity and the base of  xoperators receiving the Service is substantially that same as that which received PRISM, so use of that  S - xnetwork became a logistically simple and economical choice.5a 6( yOV-ԍAnswer at 24.5 None of these facts are disputed by EchoStar. x  S0- ` ` x25.` ` Given all these facts, including the differences between the old and the new service, the  xincorporation of the old PRISM terrestrially delivered content and distribution process, and the  xunchallenged cost advantages of terrestrial distribution, we cannot conclude that evasive conduct is  x]involved. Because we conclude that evasive conduct is not present, we do not address EchoStar's  xargument that the Commission can act to prevent such conduct under Sections 4(i) and 303(r) of the Communications Act. x  S- ` x26. ` ` We also find unpersuasive EchoStar's assertion that Defendants' failure to pursue  xEchoStar's offer to share the cost of uplinking SportsNet for satellite delivery constitutes evidence that  x[the primary purpose for terrestrially delivering SportsNet was evading the program access requirements,  xrather than selecting the most cost effective delivery method. As discussed above, Defendants have  xpresented evidence that they enjoy significant cost savings by employing terrestrial distribution methods.  xEchoStar's subsequent offer to share the costs of uplinking SportsNet's signal for purposes of satellite  xydistribution by EchoStar and, perhaps, other DBS providers, does not alter the logic of defendants' initial  xMbusiness decision to utilize terrestrial delivery methods. Having employed terrestrial distribution for  xlegitimate business means and not for purposes of evading the program access rules, Defendants'  xintroduced SportsNet, a new programming service. As a new, terrestrially delivered service, SportsNet  S- xis not subject to the program access rules and not required to provide access to all interested MVPDs. " a,`(`(88"  x>Accordingly, EchoStar's subsequent offer to share uplinking costs after Defendants have legitimately  S-chosen terrestrial delivery methods is not relevant to our determination.b6( yO@- xZԍWe note that EchoStar presents no evidence that its uplinking offer, although publicly articulated, was ever formally presented to SportsNet. x  S- ` x27.` ` The final argument that EchoStar makes is that Defendants' conduct violates Section 628(b) of the Communications Act. This provision reads as follows:  QXx It 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  3to 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.   xkEchoStar asserts that Section 628(b) has broad applicability and does not specifically require that the  x=unfair practices in question hinder the distribution of the programming at issue. Because its own service  xjis satellite delivered, EchoStar asserts that Defendants' unfair denial of SportsNet violates Section 628(b) because it hinders the provision of EchoStar's satellite delivered service.  S0- ` Qx28. ` ` We are not persuaded that the facts alleged are sufficient to constitute a Section 628(b)  xzviolation. In order to find a violation of Section 628(b), the Commission must make two independent  xLdeterminations. First, the Commission must determine that the defendant has engaged in unfair methods  xjof competition or unfair or deceptive acts or practices. Second, the Commission must determine that the  xunfair acts or practices, if found, had the purpose or effect of hindering significantly or preventing a  xyMVPD from providing satellite cable programming to subscribers or consumers. Here, we do not believe  xthat the record supports a conclusion that Defendants have engaged in unfair or deceptive acts in creating,  S- xpackaging and distributing SportsNet.FcX 6( yO- xԍBecause we do not find Comcast's actions to be unfair or deceptive, we need not address whether such actions  x>had the purpose or effect of hindering significantly or preventing a MVPD from providing satellite cable programming to subscribers or consumers.F In enacting Section 628, Congress determined that while cable  x=operators generally must make available to competing MVPDs verticallyintegrated programming that is  xjsatellitedelivered, they do not have a similar obligation with respect to programming that is terrestrially xdelivered. EchoStar's argument would have us find that it is somehow unfair for a cable operator to move  xa programming service from satellite delivery to terrestrial delivery if it means that a competing MVPD  xmay no longer be afforded access to the service. We find no evidence in Section 628 that Congress  xintended such a result. Congress did not prohibit cable operators from delivering any particular type of  x=service terrestrially, did not prohibit cable operators from moving any particular service from satellite to  xterrestrial delivery, and did not provide that program access obligations remain with a programming  xservice that has been so moved. Thus, given our prior finding that Defendants' actions do not amount  xto an attempt to evade our rules, we decline to find that, standing alone, Defendants' decision to deliver SportsNet terrestrially and to deny that programming to EchoStar is "unfair" under Section 628(b).  S - ` x29.` ` Section 628(b) remains, as the Commission has stated previously, "a clear repository of  xzCommission jurisdiction to adopt additional rules or to take additional action to accomplish statutory" @c,`(`(88e""  xobjectives should additional types of conduct emerge as barriers to competition and obstacles to the  S- xbroader distribution of satellite cable and broadcast programming."bd6( {O@-ԍProgram Access Report and Order, 8 FCC Rcd at 3374.b It cannot, however, be converted  S- xinto a tool that, on a per se basis, precludes cable operators from exercising competitive choices that Congress deemed legitimate.  Sb-x  S:- ` x30. ` ` Following the release of our DIRECTV order, EchoStar filed a Motion to Compel  xProduction of Documents ("Motion"). Defendants filed an Opposition and Request to Strike to which  xEchoStar filed a Reply. While stating numerous times in its Motion that the record in this proceeding  S- xkcontains sufficient evidence to establish violations of Section 628,BeZ6( yO -ԍMotion at 12, 3, 4, 5, 6.B EchoStar states that it must seek  S- x[discovery in light of the Bureau's DIRECTV decision. In support of its Motion, EchoStar states that the  Sv- xLBureau in DIRECTV found that "the record in that case did not contain enough evidence to establish that  SP - x1Comcast's conduct was unfair for purposes of the Section 628(b) prohibition."afP 6( {O-ԍMotion at 2, citing DIRECTV, DA 982151 at  32.a EchoStar  S( - x]mischaracterizes the Bureau's decision in DIRECTV. In that case, the Bureau stated "[w]e are not  xpersuaded that the facts alleged are sufficient to constitute a Section 628(b) violation. . . . Here, we do  x=not believe that the record supports a conclusion that Comcast has engaged in unfair or deceptive acts in  S - xcreating, packaging and distributing Comcast SportsNet."Lg |6( {O-ԍDIRECTV, DA 982151 at 32.L Contrary to EchoStar's assertion, the Bureau's  S - xdecision in DIRECTV did not deny DIRECTV's claim based on insufficient evidence. Rather, the Bureau,  xassuming the facts alleged by DIRECTV to be true, determined that DIRECTV failed to establish a violation of Section 628(b). x  S- ` #x31. ` ` EchoStar also argues in its Motion that "the facts underlying the EchoStar and DIRECTV  xycomplaints are different in at least one significant respect . . . Comcast [publicly admitted that it] decided  S- xto withhold its sports programming from certain competitors to counter those competitors' own exclusive  St- xprogramming. Echostar, however, does not enjoy any such exclusive rights, unlike DIRECTV."4ht6( yO"-ԍMotion at 3.4 These  xfacts do not serve to alter our conclusions herein or persuade us that discovery is warranted. As stated above:  S-x  XxEchoStar's argument would have us find that it is somehow unfair for a cable operator  Bto move a programming service from satellite delivery to terrestrial delivery if it means  Bthat a competing MVPD may no longer be afforded access to the service. . . . [G]iven  . . . that Defendants' actions do not amount to an attempt to evade our rules, we decline  to find that, standing alone, Defendants' decision to deliver SportsNet terrestrially and to  S -deny that programming to EchoStar is "unfair" under Section 628(b).oi 6( {OJ%-ԍSee supra  28; see also DIRECTV, DA 982151 at  31.o  x"0 i,`(`(88["Ԍ S- xOur decision herein, as in DIRECTV, is unrelated to the complainant's possession, or lack thereof, of an  xexclusive source of sports programming. Echostar has not persuaded us that discovery is necessary or that the record compiled herein is insufficient. Accordingly, EchoStar's Motion is denied. x  Sb- VI.xORDERING CLAUSES  S- ` x32. ` ` Accordingly, IT IS ORDERED , that the complaint filed in CSR 5244P by EchoStar  S-Communications Corporation IS DENIED .  S- ` x 33.` ` IT IS FURTHER ORDERED , that EchoStar Communications Corporation's Motion to  Sr-Compel Production of Documents IS DENIED.  S" - ` _x!34. ` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. x x` `  hhFEDERAL COMMUNICATIONS COMMISSION x x` `  hhDeborah A. Lathen x` `  hhChief, Cable Services Bureau