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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 2K` KKKA"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$CWddddddddddddddddddddddddddddddddddddddddNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddI\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>>>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WddddddddddddddddddddddddddddddddddddddddNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\pBnnBmgg>Q\7"yyyy\njc\gnn\2KK KT K"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\"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%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMddddddddddddddddddddddddddddddddddddddddN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"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+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddN8HH"&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!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFddddddddddddddddddddddddddddddddddddddddN$<<$.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\"i~'^0?]SS999S]+9+/SSSSSSSSSS99]]]Snnnxnnx?Sngxxgxn]gxnngg9/9]S9SSISI9S]//S/]SSS??/]InSI?9%9]9+]]999+999999S9S/nSnSnSnSnSxnInInInInI?/?/?/?/x]xSxSxSxSx]x]x]x]gInSxSxSxSgIxSgSnSnSnSnInIn]nIx{nInInInIxSxSxSx]xS]]?/?S?9?S]]]nSg/gWg9g?g/x]ux]x]xSxSxn?n?n?]?]?]?]]gZg/g]x]x]x]x]x]x]ng]g?g?g?xSg9x]]?g9gS{+SS8/8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddNLXX"i~'K2^18MSS888S8888SSSSSSSSSS88Jxir{icx{8Aui{x`xoYi{xxxl888SS8JSJSJ8SS..S.SSSS>A.SSxSSJJSJS8SSSSS8SSSSSSSSS.xJxJxJxJxJorJiJiJiJiJ8.8.8.8.{SxSxSxSxS{S{S{S{SxSxJ{SxSxSxS{S`SxIxSxInInIrSrSxigIiSiSgIxSxSxSxSxS{S{S9.SSSS8Sz]SSuSg/gCiSi.i.xScxS{SxSxSxn9n9oS]?YA]?YSgFg/iS{SxS{S{SxS{SxxSgIlJgI{SiS{SYSiSxSi8SS888WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxSSS8JDDSSSSSS;SSSS;88VVS++SSffSSxSc]]8VS;"xxSxWxxS唔0S88xfxxxxxxxxxx8SxS]SxoS8SxJS`xlxxxxxxxxxxMxxxxxxofxGcxxxxxxxSxxxxxxxJxxxxJxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx8xxx8xxx8xxx8xxxxxxxxxxxxxxfi]f]oJiAlJ{SxJ8.uJo]]{JoSxJxf`SfSSiJxJofx]fffxi{8SxxxfJffffz88SSSSx{SSSxxxf8`SJ8x_lpKf&ZK__bbxx\p::K/2ZNZNKKKKKK0C99NN--KFFF]7DXHH5C<<:9AHIII_WNZMMMSKZW?Uibroadcast stations are entitled to assert mandatory carriage rights on cable systems located within the  xstation's market. A station's market for this purpose is its "area of dominant influence," or ADI, as"0*&&IIP"  x8defined by the Arbitron audience research organization. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing.  S( ` ~3.` ` With respect to the channel number on which stations asserting must-carry rights are to  xbe carried, Section 614(b)(6) of the Act and Section 76.57 of the Commission's rules provide commercial  S8( xtelevision stations with three possible options.~8o yO(#X\  P6G;QwP#э47 U.S.C.  534(b)(6); 47 C.F.R.  76.57.~ The station may elect to be carried on: (1) the channel  xnumber on which the station is broadcast over the air; (2) the channel number on which the station was  S( xcarried on July 19, 1985; or (3) the channel number on which the station was carried on January 1, 1992.Xo yO (#X\  P6G;QwP#э47 U.S.C.  534(b)(6); 47 C.F.R.  76.57(a).  x.The Act and the rules also provide that a broadcast station may be carried on any other channel number  S(mutually agreed upon by the station and the cable operator.o yO (#X\  P6G;QwP#э47 U.S.C.  534(b)(6); 47 C.F.R.  76.57(c).  SH (mq ARGUMENTS OF THE PARTIES x  S ( ` 4.` ` WXTV explains that it is a fullpower television station licensed to Paterson, New Jersey,  S ( xoperating on Channel 41, and located in the New York ADI.b xo yO(#X\  P6G;QwP#эWXTV petition at 2.b The station states that it is the sole  xbroadcast source of Univision Network Spanishlanguage programming to the New York ADI. It also  xstates that all of the cable communities are located in the New York ADI. It is WXTV's intention to have  xits signal uniformly carried by New York ADI cable systems on its overtheair channel so that the station  S0(is easier to locate and easier to market.X0o {O(#X\  P6G;QwP#эId.X  S( ` x5.` ` WXTV argues that Cablevision "dominates" cable television service in the New York ADI:  xthrough one or more subsidiaries, Cablevision provides cable television service to 52% of the total cable  xVtelevision subscribers, and 53% of the Hispanic cable television subscribers watching WXTV in the New  Sh( xYork ADI.ho {O(#X\  P6G;QwP#эId. citing Nielsen Code, Cable OnLine Data Exchange as of October 17, 1998. WXTV believes that securing a uniform channel position on Cablevision's systems would  x effectively secure a uniform channel position for WXTV throughout the market. WXTV states that  x`Cablevision currently carries its signal on Channel 41 on approximately ten of Cablevisions 42 headends  S( xserving the New York market.X , o {O!(#X\  P6G;QwP#эId.X WXTV asserts that, despite repeated requests by WXTV for onchannel  xcarriage since 1993, carriage of WXTV is distributed among no fewer than 15 different cable channels  xon Cablevision systems marketwide; because of this, only 67% of Hispanic cable subscribers viewing" 0*&&II"  S( x>WXTV in the New York ADI receive the station on Channel 41.` o {Oh(#X\  P6G;QwP#эId. at 23.` WXTV posits that if Cablevision  xRcarried its signal on Channel 41 throughout the market, as it is legally obligated to do, that percentage  S(would increase to 94%.^ Zo {O(#X\  P6G;QwP#эId. at 3.^  S`( ` 6.` ` WXTV explains that, except in Islip and Mt. Wurtsboro, where the station elected  xVretransmission consent in 1993, the issue of a uniform channel position for its signal throughout the New  S( xYork ADI was first raised in its initial mustcarry election letters sent in 1993.X o {O (#X\  P6G;QwP#эId.X WXTV explains that,  x$by these letters, it elected carriage on Channel 41. WXTV asserts that it was not carried on Channel 41  x by a majority of the Cablevision systems serving the New York ADI at any time during the 199496  xelection period. WXTV states that it reiterated its request for onchannel carriage when, on September  Sp( x24, 1996, it sent its second set of mustcarry election letters to Cablevision.Y p~o {O(#X\  P6G;QwP#эId. Y In each of these letters,  x$WXTV asserts that it notified Cablevision of its election of mustcarry status on each of the Cablevision  xVheadends serving the cable communities; in addition, the letters informed Cablevision that WXTV would  xlike to reach an agreement with Cablevision for carriage on a channel between 1 and 13, and that if this  xwas not possible, then the station elected carriage on its overtheair channel, Channel 41. WXTV asserts  S ( xthat Cablevision has been adamant that it cannot accommodate WXTV on a channel between 1 and 13.Y o {OX(#X\  P6G;QwP#эId. Y  S0( ` v7.` ` WXTV asserts that while it sought to secure carriage of its signal on Channel 41  S( xthroughout the market, Cablevision announced that it is initiating a local cable news channel.^o {OJ(#X\  P6G;QwP#эId. at 4.^ WXTV  xstates that the new programming service is being carried on Channel 12, one of the channels that  x Cablevision told WXTV could not be made available to accommodate the stations carriage request.  xWXTV also states that in the Bronx, Cablevision's news channel has been advertising that it will carry  xnews in Spanish on the weekends in direct competition with WXTV's own weekend news service.  xBWXTV also asserts that Cablevision unilaterally repositioned its signal to Channel 57 on various systems  xin keeping with the operators announced plans to classify WXTV as a foreign language programmer, and  xposition it with foreign language cable programming services, without regard for its status as a local  xVbroadcast television station. WXTV states that its signal was being carried on Channel 41 on the portion  xof certain systems that had not been rebuilt and on Channel 57 on those portions that had been rebuilt,"4 0*&&II"  xand that it was Cablevisions intent to move its signal to Channel 57 on the entire system at the conclusion  S(of the rebuilding project.SZo {O@( xB#X\  P6G;QwP#эId. Among the systems on which WXTV has been repositioned to Channel 57 or has been informed it will  xBbe repositioned to Channel 57 are: Jackson, Freehold, Huntington, Hicksville, Islip, Lakewood, Lynbrook and Norwalk. S  S( ` 8.` ` WXTV states that it made a written demand for carriage on channel 41 on October 6,  x1998, and advised Cablevision of its obligation to commence carriage of WXTV as requested within 30  S8( xdays or state in writing its reasons for failing to do so.g8o {O (#X\  P6G;QwP#эId. and Exhibit A.g WXTV asserts that Cablevision responded to the  xzrequest by refusing to carry the station on channel 41 and hinted of a nonbinding proposal that in the  S(future, as systems are rebuilt, its signal may be moved to an advantageous channel position.l|o {O (#X\  P6G;QwP#эId. at 5 and Exhibit B.l  S( ` 9.` ` WXTV argues that carriage of its signal on any channel other than its requested overthe Sp( xair channel in this case cannot be excused.^po {O(#X\  P6G;QwP#эId. at 6.^ WXTV argues that there is no bona fide allegation that its  xsignal quality is inadequate at system headends serving the cable communities, nor that the satellite  S ( xprogramming services currently carried on Channel 41 have a legal right to that channel.Y o {O`(#X\  P6G;QwP#эId. Y WXTV also  x&states that it has expended considerable sums to market itself throughout the New York ADI and  x>Cablevisions actions in this matter have frustrated such efforts. According to WXTV, Cablevision's  xvactions have caused it to incur substantial additional costs to promote the stations existence to its  S (viewers.Y 2 o {OR(#X\  P6G;QwP#эId. Y  S0( ` 10.` ` In it opposition, Cablevision first argues that WXTV's complaint should be dismissed  xbecause it fails to state fully and precisely all pertinent facts concerning its request for onchannel carriage,  S( xand fails to include all steps taken by the parties to resolve the dispute.k o yOD(#X\  P6G;QwP#эCablevision Opposition at 3.k Cablevision asserts that while  x*WXTV has sought carriage on Channel 41 throughout the New York ADI since its initial mustcarry  xLelections in 1993, WXTV has willingly engaged in discussions for carriage on other channels for the vast  Sh( xmajority of the period at issue.XhT o {O\"(#X\  P6G;QwP#эId.X In its continued negotiations with WXTV, Cablevision asserts that it  xthas offered various channel positions in an attempt to accommodate WXTV's desire for uniform channel"@0*&&II"  S( x`position across the New York ADI, and WXTV has willingly engaged in such discussions.Xo {Oh(#X\  P6G;QwP#эId.X Cablevision  xRexplains that it is developing a uniform channel lineup plan for its cable systems in order to eliminate  S( xthaving 40 different channel lineups in 20 systems across the New York ADI.^Zo {O(#X\  P6G;QwP#эId. at 4.^ In so doing, Cablevision  xhas identified channels 2130 and channels 5570 for broadcasters, in addition to channels 2, 4, 5, 7, 9,  S`( x11 and 13 where broadcasters have historically been carried, in its new channel lineup.X`o {O(#X\  P6G;QwP#эId.X According to  xCablevision, such a conversion is tentatively scheduled for completion in the year 2000, with the majority  xof systems being rebuilt in mid1999. As systems are rebuilt, each will convert to the new uniform  xchannel lineup. Cablevision has offered, for example, to carry WXTV uniformly across the New York  xADI on WXTV's choice of channels 22, 23 or 24, as soon as it converts its systems to a single channel  S( xlineup.X~o {O(#X\  P6G;QwP#эId.X Cablevision states that it has already reached several similar agreements with other broadcasters.  xCablevision states that it has engaged in several positive negotiating sessions with WXTV to discuss this  x alternative, but notes that the station sought to impose certain conditions on its acceptance of these channel  S ( xpositions that Cablevision could not accept.X o {O(#X\  P6G;QwP#эId.X Cablevision asserts that it was only recently that WXTV  xrejected Cablevision's offer, and threatened that unless it received a channel position between channels  xr113, it would file a mustcarry complaint at the Commission to enforce channel 41 placement  S (everywhere.` o {O(#X\  P6G;QwP#эId. at 45.`  SX( ` .11.` ` Cablevision argues that WXTV's alleged alternative placement on channels 1 13  S0( x.is no alternative at all.^04 o {O(#X\  P6G;QwP#эId. at 5.^ Cablevision asserts that, contrary to claims in a recent letter to the Commission  xfrom Henry Cisneros, the President of Univision Communications, which indirectly owns and operates  xWXTV, Univision's offer does not allow Cablevision fourteen channels from which to choose how to  S( xRmeet WXTV's demand.X o {O(#X\  P6G;QwP#эId.X Cablevision explains that other broadcasters exercising channel positioning  xrights in the New York area already occupy half of those channels( 2, 4, 5, 7, 9, 11 and 13) and in many  xother Cablevision New York area systems, it has agreed to carry other broadcasters entitled to mustcarry  S@( xon several of the remaining VHF channels.X @X o {O8#(#X\  P6G;QwP#эId.X Cablevision further explains that the remaining few channels  xare occupied either by pay cable services, which are difficult and expensive to move, or by highly rated" 0*&&II"  xcable networks who have occupied the same channel position for over a decade. Cablevision asserts that  S(moving these services would result in substantial customer disruption and dissatisfaction.-!$o {O@( x#X\  P6G;QwP#эId. Cablevision asserts that WXTV's complaint reveals a possible motive for its sudden interest in causing it  xfinancial hardship: the operator's emergence as a potential competitor for Hispanic viewers through the carriage of  {O( xda cableoriginated Spanish language news channel. Id. at 6. Cablevision denies that has anticompetitive motives for its resistance to WXTV's onchannel carriage request. -   S( ` 12.` ` In its negotiations with WXTV, Cablevision asserts that it has tried to accommodate  xWXTV's request. Cablevision has explained that if it were to use addressable (i.e., interdiction)  xtechnology across the ADI when it converts its systems to the uniform channel lineup, it could  S( x`accommodate WXTV's request for carriage on Channel 41 across the ADI.^"o {Od (#X\  P6G;QwP#эId. at 7.^ The operator explains that  xinterdiction technology, which is currently used in many Cablevision cable systems, allows the operator  xfto addressably jam channels it does not wish the subscriber to receive. In other systems, Cablevision  xstates that it uses traps to filter out, or allow in, separate signals; the removal or placement of traps  xrequires visits to each affected home for channel reconfigurations. Cablevision states that it cannot  xcommit to using interdiction technology, because since very few other cable operators use this more  xexpensive means of providing a separately delineated broadcast basic tier, its continued manufacture is  S ( xcurrently in question.X# Fo {O(#X\  P6G;QwP#эId.X Cablevision states that it will know in a few months which technology it will employ in its systems.  S ( ` t13.` ` The operator asserts that it would be required to reconfigure nearly 40 channel lineups  SX( xin order to carry WXTV on channel 41 through the New York ADI.^$Xo {O(#X\  P6G;QwP#эId. at 8.^ Cablevision explains that, because  x8channel 41 is located within the expanded basic tier, it has trapped the tier in various ways in 18 channel  S( x\lineups.%j o yO( x#X\  P6G;QwP#эAccording to the operator, traps prevent theft of service and allow it to provide its customers with unscrambled  {O(expanded basic service. Id. In those particular channel lineups, the total engineering costs of removing and replacing traps to park WXTV on channel 41 amount to nearly $4,000,000.  S( ` 14.` ` In each of the 18 channel lineups using traps, Cablevision states that its employees must  xvvisit those subscriber addresses where channel 41 is trapped, and carry out one of several actions,  x$depending on the current channel configuration of the system. Cablevision details which action must be  xjtaken in each system, based on the current channel configuration of the system and the present occupant of channel 41. These actions include:  S((1)` ` removing 1 trap;  Sx((2)` ` removing 1 trap and replacing it with 2 traps;  SP((3)` ` removing 1 trap, replacing it with 2 traps and swapping 2 channels;"P %0*&&II"Ԍ S((4)` ` removing 1 trap and replacing it with 3 traps; and  S((5)` ` replacing the broadcast basic with a new trap^&o {O@(#X\  P6G;QwP#эId. at 9.^  x`According to Cablevision, each of the above options has a cost associated with the trap and an additional  xHlabor cost. Thus, in a 1 trap scenario, the cost would be $9.00 for the trap, and $15.50 for labor per  xaffected address. In a 2 trap scenario, the cost would be $24.00 for the traps, and $15.50 for labor per  x2affected address. In a 3 trap scenario, the trap cost would be $33.00 and labor $15.50 per affected address.  x Cablevision asserts that in three of those 18 channel lineups, a special trap configuration would cost  S($75.00 for the trap, plus $15.50 for labor per affected address.'Zo {O ( xn#X\  P6G;QwP#эId. Cablevision explains that because the traps operate by reducing the signal to the point where the subscriber  xPcannot receive it, the more closely cut, or precise, the trap needs to be (to protect a narrow range of capacity, such  x2as one channel), the more expensive the trap will be, because a less precise trap would affect channels abutting the  xprotected channel. Therefore, as the number of traps needed in a particular situation increases, the precision, and thus the cost, of the required traps increases.   Sp( ` 15.` ` Cablevision explains that the action required in each channel lineup to accommodate  SH ( xWXTV's request depends on the current occupant of channel 41._(H o {O(#X\  P6G;QwP#эId. at 10._ Cablevision states, for example, if  xchannel 41 is currently within a band of pay services on channels 4050, and a particular customer has  xBnot subscribed to those services, the system is configured so that the pay service channels are trapped at  S ( xeach side.X) o {O(#X\  P6G;QwP#эId.X In order to make channel 41 an accessible broadcast channel, Cablevision asserts that it would  xBhave to remove those 2 traps, and replace them with a new trap configuration that traps channel 40, and  xchannels 4250, as well as place new traps around whatever new channel the pay service that has been  SX( xpmoved will occupy, if none already exist for that channel.X*X0 o {O((#X\  P6G;QwP#эId.X Cablevision further explains that, even in  xpsystems using the interdiction technology described above, some channels go beyond the range of the  xaddressable jamming capacity of the technology. In those cases, if the channel moved from channel 41  xneeded to be protected, Cablevision would have to install new traps. Finally, in some systems, such as  xthe Woodbury system, Cablevision states that it has ordered special traps cut to the precise channel  S( xconfiguration of the system.X+ o {O(#X\  P6G;QwP#эId.X In the Woodbury system, a new trap would have to be recut each time any  xchannel repositioning is required, at significant expense. According to Cablevision, the fact that  xvbroadcasters are given the right to make new channel elections every three years means that these  S(uncompensated costs are likely to be quite significant.X,T o {O $(#X\  P6G;QwP#эId.X ",0*&&II""Ԍ S( ` 16.` ` Cablevision states that there are several thousand affected subscriber addresses in many  xof the systems affected by WXTV's request. In the Hauppauge system alone, Cablevision would have  xto visit nearly 27,000 subscriber addresses, resulting in costs well over $1,000,000, while in other systems,  S( xtthe compliance costs would total several hundred thousand dollars._-o {O(#X\  P6G;QwP#эId. at 11._ Cablevision cites, for example, that  xreconfiguring the Monmouth Wall/Asbury system would cost over $170,000; reconfiguring the Morris  xVsystem would cost $215,000; and reconfiguring the Ramapo system would cost $446,000. According to  xCablevision, in only three of the 18 channel lineups affected would the cost for moving WXTV to  S(channel 41 be under $50,000.X.Zo {O (#X\  P6G;QwP#эId.X  S( ` ~17.` ` According to Cablevision, when these costs are examined on a persubscriber basis, the  xcosts it would incur to comply with WXTV's request would be out of proportion to any alleged public  SH ( xinterest benefit._/H o {O(#X\  P6G;QwP#эId. at 12._ Cablevision cites the following examples: (1) in the Monmouth/Seaside, New Jersey  xtsystem, the costs per subscriber would be $14.14; the costs per affected subscriber would be $39.50; (2)  xVin the Hauppauge, Long Island system, the costs per subscriber would be nearly $10, while the costs per  x8affected subscriber would be nearly $40; and (3) in the Ramapo, New Jersey system, the persubscriber  S (costs would be over $31; the costs peraffected subscriber would be $48.50.0 ~o {O( x#X\  P6G;QwP#эId. at 13. A complete table of costs persubscriber and costs peraffected subscriber is attached as Exhibit C to Cablevision's Opposition.  SX( ` 18.` ` Cablevision asserts that the costs are not limited to engineering expenses associated with  xHchannel repositioning. There are both tangible and intangible customer service costs that Cablevision  S( xXbelieves it will incur as a result of accommodating WXTV's request._1o {O(#X\  P6G;QwP#эId. at 12._ Cablevision asserts that its  xVcustomers are dissatisfied with, and inconvenienced by, any channel repositioning and such moves result  S( xin a large number of calls to Cablevision's customer service representatives.X2j o {O(#X\  P6G;QwP#эId.X Further, Cablevision states  xthat its subscribers generally do not understand that channel repositioning to accommodate mustcarry  xbroadcast stations is not within Cablevision's control; thus, it must absorb the negative goodwill that  xresults each time a channel lineup is rearranged. Cablevision also asserts that it will suffer a loss if its  S(budgets and business plans are disrupted by having to accommodate WXTV's request._3 o {O!(#X\  P6G;QwP#эId. at 13._ " 30*&&II""Ԍ S( ` 19.` ` Cablevision also claims that Fifth amendment constitutional concerns require rejection of  S( x\WXTV's complaint._4o {O@(#X\  P6G;QwP#эId. at 14._ Cablevision argues that the Commission's mustcarry regulations constitute an  xfuncompensated taking of private property in violation of the Fifth Amendment to the Constitution. It  xasserts that it is the Commission's obligation to construe its regulations that underlie this dispute so as to  xavoid "the grave constitutional concerns raised in instances, such as this, where a broadcaster asks the  x4Commission to require Cablevision to expend nearly four million dollars in engineering costs alone to  S(accommodate the channel positioning request of one broadcaster."X5Zo {O (#X\  P6G;QwP#эId.X  S( ` L20.` ` Cablevision argues that the must carry rules force cable operators to give up the use of  S( xvaluable channel capacity to unaffiliated broadcasters without compensation in return.X6o {O$ (#X\  P6G;QwP#эId.X According to  Sp( x`Cablevision, whether viewed as a per se physical taking of private property, or a per se regulatory taking  xthat deprives property owners of all viable use of their property, the mustcarry regulations violate the  S" ( xFifth Amendment.b7" ~o {O@(#X\  P6G;QwP#эId. at 1415.b Cablevision asserts that Supreme Court precedent compels a finding that the must  xcarry regulations invade and appropriate the private property of cable operators for the exclusive use of  S ( x\broadcasters, denying them any use of certain of their property, and thus effect a per se physical and  S ( xXregulatory taking.X8 o {O\(#X\  P6G;QwP#эId.X To support its position, the operator cites the Supreme Court's 1982 Loretto  S ( xdecision9 o {O(#X\  P6G;QwP#эLoretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).; in this case, the Court held that because the power to exclude unaffiliated persons from private  x4property "has traditionally been considered one of the most treasured strands in an owners bundle of  xLproperty rights", even a "minor but permanent physical occupation of an owner's property authorized by  S( xgovernment constitutes a physical taking of property for which just compensation is due.":4 o {O(#X\  P6G;QwP#эCablevision Opposition at 16 citing Loretto, 458 U.S. at 421, 435. In Loretto,  xapartment owners contested a state law that allowed cable operators merely to attach cable wires to the  xoutside of their buildings. Cablevision argues that the must carry rules specifically allow unaffiliated  S( x`broadcasters to occupy a far greater portion of the cable operators' property than that at issue in Loretto,  Sr(up to onethird of the cable operator's channel capacity for their own personal use.l;r o yO (#X\  P6G;QwP#эCablevision Opposition at 16.l  S"( ` 21.` ` Cablevision asserts that channel capacity is the essence of a cable operator's property.  x*It states that a cable operator's traditional video business involves selling one or more packages of its" V ;0*&&II@"  S( xtcable channels.X<o {Oh(#X\  P6G;QwP#эId.X It further states that, cable channels, like real estate property, are more or less valuable  x depending on the neighborhood in which they are located; the more valuable cable channels those  x.located lower in the channel lineup, or in neighborhoods with the most popular and significantly viewed  xchannels are, again like real estate, more scarce, and cable programmers compete for these spots in the  S`( x`marketplace.X=`Zo {OZ(#X\  P6G;QwP#эId.X But, under the mustcarry regulations, Cablevision asserts, broadcasters are able to claim  S8(this property at will for their own use.X>8o {O (#X\  P6G;QwP#эId.X  S( ` n22.` ` Cablevision also argues that governmental regulatory actions resulting in direct interference  S( x0with the use of property can constitute a regulatory taking.?~o {O ( x#X\  P6G;QwP#эId. citing Keystone Bituminous Coal Ass'n v. Duncan, 771 F.2d 707, 712 (3rd Cir.) aff'd, 480 U.S. 470, 488 (1987). Cablevision states that to the extent  S( xregulations deny all economically beneficial or productive use of the property, they are a per se regulatory  Sr( xtaking.@ro {O(#X\  P6G;QwP#эCablevision Opposition at 17 citing Lucas v. South Carolina Council, 505 U.S. 1003, 1015 (1992). The operator states that the mustcarry rules accomplish precisely this result. Cablevision  xexplains that a cable operator's channel capacity is made up of specific bands within its cable lines that  xare restricted to a single use; thus, when a broadcaster occupies a cable channel, the cable operator can  S ( xmake no further use of that channel, and the operator is deprived of that property altogether.lA j o yO(#X\  P6G;QwP#эCablevision Opposition at 17.l Cablevision  xargues that the wholesale nature of the deprivation particularly in light of the fact that the must carry  xregulations operate not by restricting use of the property, but by taking the property's intended use and  xgranting the control and benefits of that use to an outside party confirms that the mustcarry regulations  SZ(effect a per se regulatory taking.XBZ o {O(#X\  P6G;QwP#эId.X  S ( ` 23.` ` Cablevision argues that any alleged legitimate interest in preserving local broadcasting  S( x.cannot justify a taking.bC o {O(#X\  P6G;QwP#эId. at 1718.b Cablevision asserts that Congress has sought to justify the mustcarry rules by  x8citing to the public interest in preserving local broadcasting as a viable option but the Supreme Court has  xexplicitly rejected this defense in both the regulatory and physical taking context. Cablevision asserts that  xthe Court has held where government regulations compel property owners to suffer a physical invasion  xof their property, "no matter how minute the intrusion, and no matter how weighty the public purpose  S( xVbehind it, such a regulation is a per se taking in the absence of just compensation."Do {O$(#X\  P6G;QwP#эCablevision Opposition at 18 citing Lucas, 505 U.S. at 1015. Cablevision asserts" D0*&&IIx"  S( xthat the D.C. Circuit, in its 1994 Bell Atlantic Tel. Co. v. FCC decision, also confirmed that a permanent  xphysical occupation authorized by the government is a taking without regard to the public interests that  S( xit may serve.Eo {O(#X\  P6G;QwP#эCablevision Opposition at 18 citing Bell Atlantic Tel. Co. v. FCC, 24 F.3d 1441, 1445 (D.C. Cir. 1994). Cablevision explains that in Bell Atlantic, the D.C. Circuit held that the Commission's  x physical colocation rules, which granted competitive access providers the right to exclusive use of a  xportion of the local exchange carriers' central offices, resulted in such a governmentauthorized permanent  S<( xphysical occupation and thus a per se physical taking under the Fifth Amendment.F<Zo {O6(#X\  P6G;QwP#эCablevision Opposition at 18 citing Bell Atlantic, 24 F.3d at 144547. According to  x`Cablevision, the mustcarry rules grant of a cable operator's channel capacity to unaffiliated broadcasters  xconstitute a governmentauthorized invasion and occupation of private property and, unlike the physical  S(colocation rules, the mustcarry rules provide for no compensation whatsoever to cable operators.Go yOR (#d6X@`7 Oe@## X\  P6G;QwP#эCablevision Opposition at 18.  Sv( ` 24.` ` Cablevision explains that there has been considerable discussion in recent years about the  SN ( xtakings concerns raised by the must carry regulations._HN |o {Oj(#X\  P6G;QwP#эId. at 19._ Indeed, Cablevision states that it voiced its  xconcerns regarding this potential constitutional violation since at least 1993, when it articulated Fifth  xAmendment arguments to the Commission in response to a mustcarry complaint filed by television station  S ( xWNYC.I o {O(#X\  P6G;QwP#эId. citing Cablevision Systems Corp. Opposition to Must Carry Complaint, CSR 4148M (filed Nov. 24, 1993). Cablevision asserts that other legal authorities believe a takings challenge to the mustcarry  xrequirements may have significant merit. Cablevision cites, for example, Judge Williams, in his dissent to the first district court decision upholding the First Amendment challenge to the mustcarry requirements:  xXBecause of my conclusion on the First Amendment challenge to the mustcarry provisions,  I do not reach the contention that those provisions also represent an unconstitutional  taking of cablecasters property in violation of the Fifth Amendment. I do not, however,  Vregard the claim as frivolous. The creation of an entitlement in some parties to use the  S( facilities of another, gratis, would seem on its face to implicate Loretto v. Teleprompter  Sp( dManhattan CATV Corp., where the Court struck down a statute entitling cable companies  tto place equipment in an owner's building so that tenants could receive cable television.  FThe NAB responds that Loretto is limited to physical occupation of real property. . . . But  the insertion of local stations' programs into a cable operator's lineup presumably is not a metaphysical act, and presumably takes place on real property.   0XNAB also argues that cable operators have no historically rooted expectation of  4compensation for the right to use their cable services evidently because of (1) local  4governments practices of imposing carriage requirements as a condition of granting  Lfranchises and rightofway access, and (2) prior similar federal impositions, seemingly  granted in exchange for privileged entitlements to retransmit broadcasters' signals. Both" I0*&&II^"  ~seem of limited relevance because the local governments are not involved here, and the  S(federal government has removed the quid for which it now seeks a quo.Jo {O@( x.#X\  P6G;QwP#эCablevision Opposition at 20 citing Turner v. FCC, 819 F.Supp. 32, 67, n.10 (D.D.C. 1993) (Williams, J. dissenting).   S( ` 25.` ` Cablevision argues that the channel positioning requirements exacerbate the Fifth  S`( xAmendment violation occasioned by the mustcarry requirements.lK`"o yO"(#X\  P6G;QwP#эCablevision Opposition at 21.l Cablevision asserts that, by allowing  xbroadcasters to select the precise bands of channel capacity they obtain through the must carry regulations,  xthe rules not only cause cable operators to lose their property,"but also add significant extra  S( x:uncompensated costs for cable operators."XLo {O: (#X\  P6G;QwP#эId.X Cablevision further argues that since the rules allow  xbroadcasters to select from a number of channel positions, and to amend their channel preference elections  xevery three years, the potential costs to the cable operator from all broadcaster channel elections are  Sp("enormous."XMpDo {OT(#X\  P6G;QwP#эId.X  S ( ` Z26.` ` Cablevision asserts that broadcasters not only occupy the channel capacity they select, but  xtheir choice also impacts significant other bands of capacity, since operators are precluded from organizing  S ( xthose channels into logical tiers in accordance with their business plans._N o {OF(#X\  P6G;QwP#эId. at 22._ Cablevision states, for example,  xthat a single channel positioning demand can prevent a cable operator from creating thematically clustered  xprogramming blocks. Cablevision argues that all cable operators are expected to relinquish any control  xover the arrangement of their programming to satisfy the demands of each broadcaster every time that  S0( xbroadcaster makes a channel positioning request.XO0h o {O8(#X\  P6G;QwP#эId.X According to Cablevision, such requirements serve only to stifle creativity and progress in the marketplace.  S( ` 27.` ` Cablevision argues that because the mustcarry channel positioning requirements raise  xconstitutional concerns, and in light of the Commission's obligation to construe statutes and its regulations  xin a manner that minimizes constitutional conflict, the Commission cannot set the barrier too high to  S@( xobtain a waiver of those rules.XP@ o {O (#X\  P6G;QwP#эId.X Cablevision argues that the Commission should waive its channel  xpositioning requirements when an operator makes a reasonable showing of substantial hardship and impact  S( xunder the Commission's standards, and demonstrates compliance with the spirit of the rules._Q o {O$(#X\  P6G;QwP#эId. at 23._ Cablevision  xasserts that it has met those standards in this case by showing that granting WXTV's request will result" Q0*&&II"  xin substantial cost and hardship to the company, and that there is no evidence that Cablevision's intent  S( xHis to evade the Commission's rules.bRo {O@(#X\  P6G;QwP#эId. at 2324.b The operator concludes by stating that the Commission should  xwaive Cablevision's channel positioning obligations with regard to WXTV, at least with respect to those  xsystems where the costs are particularly burdensome, and dismiss or deny WXTV's complaint in all other  S`(respects.XS`Zo {OZ(#X\  P6G;QwP#эId.X  S( ` 28.` ` Cablevision asks that it be allowed a reasonable time to come into compliance if it is  xrequired to carry WXTV on Channel 41 on all of its New York ADI systems because compliance with  xthe request would require substantial time and expense to reconfigure the 18 channel lineups affected.  x8Cablevision therefore requests that the Commission grant it nine months to come it compliance with any  Sp(possible order.XTpo {O (#X\  P6G;QwP#эId.X  S ( ` 29.` ` In its reply, WXTV first notes that Cablevision has never challenged: (1) that WXTV is  xa television station in the New York ADI; (2) that the Cable Communities are also in the New York ADI;  xz(3) that WXTV provides a good quality signal at the headends in the Cable Communities; nor (4) that  S ( xWXTV's overtheair channel is Channel 41._U ~o yO(#X\  P6G;QwP#эWXTV Reply at 1._ WXTV states that it therefore qualifies for carriage on  xChannel 41 of Cablevision's systems and Cablevision's Opposition in no way negates WXTV's right to carriage on that channel under the Act.  S( ` <30.` ` WXTV argues that Cablevision forfeited the right to request a waiver five years ago when  x`it chose to ignore its must carry obligations rather than seek special relief from those obligations from the  S( xCommission based on its claimed undue burden.^Vo {Of(#X\  P6G;QwP#эId. at 2.^ WXTV asserts that the information provided by  xCablevision to support its belated waiver request is inadequate to permit the Commission to determine  Sh( xwhether the operator's alleged costs justify any waiver of the channel positioning requirements.^Who {O(#X\  P6G;QwP#эId. ^ WXTV  x*also asserts that the information provided by Cablevision demonstrates that the bulk of Cablevision's  xestimated costs attributable to carrying WXTV on Channel 41 are attributable to only a few of the  xoperator's systems. In any event, WXTV argues that there is no such exception to the channel positioning  S(requirement in the Cable Act or the Commission's regulations.XX2 o {O"(#X\  P6G;QwP#эId.X  Sx( ` 31.` ` WXTV asserts that Cablevision's own estimates show no cost of carrying WXTV on  xChannel 41 at all on several systems, yet no explanation is offered for its failure to comply with its"P X0*&&IIB"  xVcarriage obligation on these systems. WXTV specifically states that on 19 systems, no action is required  S( xand there is no cost associated with placing WXTV on Channel 41.Y"o {O@( x#X\  P6G;QwP#эId. at 3. These systems are: East End East Hampton, Rockville Center, Malvern, Islip, East End Riverhead  xjOptimum, New York City, Norwalk Optimum, Bridgeport Optimum, Cross River, YonkersOptimum, Yonkers xEssential, Bayonne, BayonneOptimum, BergenOptimum, HudsonOptimum, TCIHamilton, TCIHamiltonRebuild, TCIOaklandRebuild, and TCIRockland. Accordingly, WXTV argues that  xCablevision should be ordered to place WXTV on Channel 41 on these systems immediately not another  S( x$nine months from now as Cablevision requests.XZo {O(#X\  P6G;QwP#эId.X WXTV further states that, with respect to another 12  S`( xsystems,~[`Do yOD ( x#X\  P6G;QwP#эAccording to WXTV, these systems include the Woodbury Optimum Syosset, East End Riverhead Old Wire,  xFMonmouthMillstone, MonmouthOptimum, TCIOakland and TCITriSystem systems, where Cablevision's costs  xof compliance would be well less than half the amount approved in Greater Dayton Public Television, and on the  xMonmouthWall/Asbury, TCIMorris, TCIElizabeth, TCIPaterson, TCIWestchester and TCIBrookhaven systems, where the costs would approximate those approved in that case. ~ Cablevision's claimed persubscriber costs to comply with WXTV's channel position rights are  xless than or comparable to the persubscriber costs that the Commission has approved in other cases such  S( xas Greater Dayton Public Television, where the Commission required TCI to spend $4.52 per subscriber  S( xto accommodate a broadcast station's channel positioning request.`\ o {O~(#X\  P6G;QwP#эId. at 34.` Cablevision asserts that of all the  xzCablevision systems involved in this proceeding, only six raise any cost issue. WXTV argues that the  xCommission should not permit Cablevision to delay implementation of carriage of its signal on Channel  x41 on other systems where there is no cost barrier, particularly given that Cablevision itself has already  SJ (delayed over five years in complying.^]J o {Op(#X\  P6G;QwP#эId. at 4.^  S ( ` 32.` ` WXTV argues that the Commission should not allow Cablevision to benefit from its  S ( xfailure to comply with the law.X^ o {O(#X\  P6G;QwP#эId.X The station asserts that had Cablevision complied with the law at the  x\time WXTV made either of its elections, it could have avoided the costs it now claims it will incur by  S ( xremoving cable programming services it added on Channel 41 after WXTV made its election.^_ o {O(#X\  P6G;QwP#эId. at 5.^ The same  xis true of the customer dissatisfaction that Cablevision claims will affect it. WXTV further asserts that  x`had Cablevision placed WXTV on Channel 41, the only one of the current occupants of Channel 41 that  x has any legal right to it, at the time it (1) developed its initial October 6, 1993 lineups, (2) added the  x cable programming service currently on Channel 41 or even (3) rebuilt each system, the Channel 41  xrepositioning would have been only one of several occurring at the same time and any customer"<_0*&&II:"  xHdissatisfaction with respect to a repositioning of WXTV would have been minimal and overridden by  S(customer satisfaction with the other actions taken simultaneously.X`o {O@(#X\  P6G;QwP#эId.X  S( ` 33.` ` WXTV argues that Cablevision has failed to establish that the channel positioning  S`( x>implementation costs will substantially impact the systems involved.Xa`Zo {OZ(#X\  P6G;QwP#эId.X While Cablevision claims per xsubscriber costs of compliance as high as $31.00 on one system, WXTV claims that the operator has failed  S( xto show, as required, how that cost would affect its investment in and revenues from that system.^bo {O (#X\  P6G;QwP#эId. at 6.^  xWXTV states that even if Cablevision's claimed costs of compliance were accurate and not the fault of  xjCablevision itself, it is worth noting that when Cablevision acquired 830,000 of its subscribers from TCI,  S( xtit paid a reported $1 billion, or more than $1,000.00 per subscriber.Xc~o {O(#X\  P6G;QwP#эId.X WXTV believes that Cablevision's cost of compliance is therefore minuscule compared to the value of the systems at issue.  S ( ` 34.` ` WXTV argues that Cablevision's Fifth Amendment challenge to the Cable Act should be  S ( x8ignored.^d o {O(#X\  P6G;QwP#эId. at 7.^ WXTV claims that the constitutional argument is nothing more than an untimely Petition for  S ( x8Reconsideration of the Commission's adoption of mustcarry regulations.Xe o {O(#X\  P6G;QwP#эId.X WXTV notes that the must  xpcarry provisions of the Cable Act have already withstood constitutional scrutiny by the U.S. Supreme  xLCourt. It adds that while the challenge in that case was brought on First Amendment grounds, the Court  xcould hardly have permitted the Cable Act to stand had it really believed that it was unconstitutional on  S0( xVFifth Amendment grounds.Xf04 o {O(#X\  P6G;QwP#эId.X WXTV nevertheless argues that there is no basis for finding that the must  xcarry provisions are unconstitutional. WXTV asserts that the cable television industry is highly regulated,  xand as the Commission has recognized, cable operators are aware of the pervasive nature of the regulation  S( x8of the industry and the likelihood that new or changed requirements will impact them.Xg o {O(#X\  P6G;QwP#эId.X WXTV argues  xLthat the mere fact that the must carry or channel positioning requirements might exact some financial toll  xfrom cable operators does not render the requirements a taking any more than the requirement that  S@(broadcasters offer their lowest unit rate to political candidates constitutes a taking.@hZ@X o {O8#( x4#X\  P6G;QwP#эId. citing Andrus v. Allard, 444 U.S. 51, 65 (1979) ("Suffice it to say that government regulationby  x<definitioninvolves the adjustment of rights for the public good. often this adjustment curtails some potential for  xthe use or economic exploitation of private property. To require compensation in all such circumstances would"$g0*&&$" effectively compel the government to regulate by purchase.")@"@Xh0*&&II"Ԍ S( ` <ԙ35.` ` WXTV argues that Cablevision overlooks the many forms of compensation it receives for  S( xcomplying with the carriage regulations.^iXo {O(#X\  P6G;QwP#эId. at 8.^ WXTV states, for example, that Cablevision is allowed use  xof public rightsofway which permit the operator to conduct its business and that it has been provided  S( xa public franchise that allows it to charge the public subscriber fees for video programming.Xjo {O(#X\  P6G;QwP#эId.X WXTV  xargues that Cablevision receives a benefit from being allowed to carry local broadcast signals which result  x$in increased subscribership or increased subscriber loyalty from subscribers who wish to view both their  xLlocal broadcast stations and cable programming without having to make complicated equipment switches  S( xto do so, or from those who may receive a better quality signal via cable than via a settop antenna.Xk|o {O (#X\  P6G;QwP#эId.X  xbWXTV asserts that even if the must carry rules could be considered a taking, it is certainly not an  S(uncompensated one.Xlo {OF(#X\  P6G;QwP#эId.X  SH ( ` 36.` ` With specific regard to WXTV, the station states there are no special facts that would  S ( x8make application of the channel positioning requirements to Cablevision a taking.Xm o {O`(#X\  P6G;QwP#эId.X WXTV asserts that  xthere is no cost involved in placing WXTV on Channel 41 in more than half of Cablevision's systems.  xfWXTV adds that any of the other costs involved likely have resulted from, or are greater, because of Cablevision's past failure to comply with the regulations.  SX( ` $37.` ` WXTV also argues that Cablevision's claim that it will be "victimized in the future" by  S0( xWXTV and other broadcasters changing their elections, are unavailing.^n02 o {O(#X\  P6G;QwP#эId. at 9.^ WXTV states that television  xstations can only change their elections during the election periods, which occur three years apart; thus,  x8Cablevision has known for two and onehalf years now what channel every station in the market wishes  S( xto be carried on and could move to enforce.Xo o {O(#X\  P6G;QwP#эId.X In any event, WXTV argues that it does not wish to be moved from channel to channel every election cycle.  S@( ` v38.` ` With regard to Cablevision's complaint that enforcement of the station's channel  xpositioning rights thwarts the operator's efforts to establish a tiered lineup throughout the market, WXTV  xargues the following. First, under the Cable Act, Cablevision has no right to implement such a lineup"V o0*&&II""  S( xunless it secures channel positioning agreements with the broadcasters it carries.Xpo {Oh(#X\  P6G;QwP#эId.X WXTV also asserts  xthat Cablevision has never offered a viable option to WXTV and only began negotiating with WXTV long  S( xafter its planned lineup was in the implementation phase._qZo {O(#X\  P6G;QwP#эId. at 10._ Finally, WXTV asserts that had Cablevision  S(sought a uniform channel positioning agreement earlier, its lineup would not be in jeopardy.Xro {O(#X\  P6G;QwP#эId.X  S8( ` *39.` ` WXTV argues that Cablevision's claim that it has attempted to negotiate a uniform  S( x channel position with the station is "pure fabrication."Xs~o {O. (#X\  P6G;QwP#эId.X The station explains that following its 1996  xmustcarry/retransmission consent elections, it attempted to initiate discussions with Cablevision regarding  xthe disposition of those elections and its efforts to obtain a uniform channel position throughout the  S( xmarket._to {OH(#X\  P6G;QwP#эId. at 11._ According to the station, at no time during WXTV's extensive efforts to contact Cablevision  x and discuss its channel position rights did Cablevision cooperate or present any viable solution to the  SH ( x`current situation.XuH o {O(#X\  P6G;QwP#эId.X WXTV asserts that the channel positioning choices Cablevision has offered, and the  ximplementation schedule it has discussed, would not cover all of Cablevision's systems and would prevent  S ( xWXTV from enforcing its channel position rights until the end of the current threeyear election period.Xv 4 o {O(#X\  P6G;QwP#эId.X  xAs Cablevision's proposals did not provide WXTV with a uniform channel position throughout the market,  xRWXTV states that it continued to push for an agreement which would provide the necessary uniform  S ( x0channel position.bw o {O(#X\  P6G;QwP#эId. at 1112.b WXTV states that the parties finally reached an oral agreement under which  x8Cablevision agreed to move WXTV to Channel 41 on each of its systems as they were rebuilt, but in no  S0( xjevent later than July 1, 1999._x0X o {O((#X\  P6G;QwP#эId. at 12._ WXTV states that Cablevision agreed to this timetable because it would  x.permit the systems to conduct the necessary repositionings in conjunction with its rollout of systemby xjsystem upgrades already in progress. WXTV asserts, however, that after a written agreement containing  S(these terms was created, Cablevision refused to sign it.Xyo {OB"(#X\  P6G;QwP#эId.X "|y0*&&II\"Ԍ S( ` 40.` ` WXTV argues that Cablevision should be ordered to comply immediately and fined a  S( xsubstantial amount for its past failure to comply with the law._zo {O@(#X\  P6G;QwP#эId. at 13._ In response to Cablevision claims that  xit should be granted an additional nine months to come into compliance with the law, WXTV states that  xCablevision has already had five years to comply and should not be permitted to continue to violate the  S`( xlaw for yet another year.X{`Zo {OZ(#X\  P6G;QwP#эId.X WXTV notes that even in KDTV License Partnership, G.P. Against TCI  S:( xCablevision of California, Inc., a previous channel position case with issues similar to the instant case,  S( xthe Commission only allowed TCI six months to come into compliance.|o {O (#X\  P6G;QwP#эId. citing KDTV License Partnership, G.P., 13 FCC Rcd 10331 (Cab. Serv. Bur. 1998). WXTV argues that in no case  xshould Cablevision be granted any additional time to come into compliance on the 19 systems it  S( xacknowledges can carry WXTV as of this date without taking any action or incurring any costs.`}~o yO (#X\  P6G;QwP#эWXTV Reply at 13.` In  xRaddition, WXTV argues that the Commission should assess the maximum penalty for violation of the  xFbroadcast station carriage requirements, $7,500.00, per day since October 6, 1993 when Cablevision should  SL ( x\first have complied with the channel positioning requirements or sought a waiver of them.X~L o {O(#X\  P6G;QwP#эId.X WXTV  xVasserts that unless the Commission renders noncompliance more costly than compliance, cable operators  S (will continue to subvert the rules and take unfair advantage of broadcast stations._ o {O<(#X\  P6G;QwP#эId. at 14._   S ( DISCUSSION x  S\( ` B41.` ` It is not contested that WXTV is a qualified local commercial television station entitled  xto carriage pursuant to the mustcarry provisions of the Cable Act, nor is it disputed that WXTV is entitled  xto elect its overtheair channel as the channel it wishes to occupy on Cablevision's systems. The dispute  xis over whether Cablevision was warranted in not complying with these requirements as a consequence of insurmountable technical difficulties and costs of compliance.   Sl( ` 42.` ` With respect to 21 cable systems,l2 o yO>( xn#X\  P6G;QwP#эThese systems include (1) East End East Hampton; (2) Rockville Center; (3) Malvern; (4) Islip; (5) Lynbrook;  xF(6) East End Riverhead Optimum; (7) New York City; (8) Norwalk Optimum; (9) Bridgeport Optimum; (10) Cross  xRiver; (11) YonkersOptimum; (12) YonkersEssential; (13) Bayonne; (14) BayonneOptimum; (15) Bergen xOptimum; (16) HudsonOptimum; (17) TCIHamilton; (18) TCIHamiltonRebuild; (19) TCIOakland; (20) TCI {O^"(Rockland; and (21) TCIAllamuchy. See Cablevision's Opposition at Exhibit A. where it is documented that WXTV is not on Channel  xB41 already, Cablevision has essentially conceded that onair channel positioning is feasible because it has  xprovided no technical or financial justification for not carrying the station on the channel position it had  xelected. With respect to these systems Cablevision will be ordered to comply with the statutory channel"0*&&II""  xpositioning requirements as soon as practically possible or within 45 days from the release of this order,  xwhichever is sooner. In this regard, we recognize that immediate compliance would conflict with the need  xtto provide appropriate notice to subscribers of the change taking place. We view Cablevision's clear lack  xof compliance in these situations, and its cavalier approach to the basic statutory requirement, as a serious  xmatter warranting initiation of a forfeiture proceeding. However, to avoid any further delay in this proceeding the forfeiture matter will be addressed separately.  S( ` 43.` ` Regarding 17 other cable systems,eo yOP( x#X\  P6G;QwP#эThese systems include: (1) WoodburyOptimumSyosset; (2) WoodburyOptimum; (3) East End RiverheadOld  xwire; (4) Monmouth Millstone; (5) MonmouthWall/Asbury; (6) MonmouthLakewood; (7) MonmouthSeaside; (8)  xMonmouthOptimum; (9) TCIElizabeth; (10) TCIMorris; (11) TCIOakland; (12) TCIPaterson; (13) TCIRamapo;  {O ( x(14) TCIWarwick; (15) TCI TriSystem; (16) TCI Westchester; and (17) TCI Brookhaven. See Cablevision's Opposition at Exhibit A.e where the documented costs of compliance with the  xBstation's channel positioning request are between $4000 and $500,000, the issue is whether the technical  xand cost obstacles to carriage of WXTV's signal on channel 41 are of such magnitude as to excuse  xcompliance from the onchannel requirement. There is no dispute in the record of this proceeding that  xonchannel carriage as a technical matter can be accomplished on all of the systems in issue. The Act  xrequires cable operators to comply with a station's channel positioning request, absent a compelling  xtechnical reason. The Commission has specifically indicated that the need to replace traps, or to  xreconfigure the basic tier, or to make technological changes are generally not grounds for a waiver.  x`Nevertheless, in adopting the onchannel carriage rules, the Commission recognized that there might well  xVbe certain circumstances where the costs incurred by a cable operator to comply would be so compelling  xas to warrant a waiver. The question that we must answer in this instance is whether Cablevision has established such grounds.  S( `  44.` ` The standard that has been established for compliance with the channel positioning rules  xis one of unreasonability rather than impossibility. The Commission has specifically stated that "a cable  S( xoperator may present evidence as to the costs involved in remedying the technical problem."zo {O(#X\  P6G;QwP#эMemorandum Opinion and Order in MM Docket 92259, 9 FCC Rcd 6723, para. 57 (1994). The costs  xinvolved here are significant. However, Cablevision has not provided any information that would help  x`to place these figures in the context of the financial capacity of the systems in question. Cablevision also  xdid not document why the channel positioning request could not have been accommodated when its  xsystems were being upgraded or demonstrate any attempt to mitigate the cost of WXTV's request as it  xengineers were in the field rebuilding the systems in question. It is important to stress here that an operator  xwith a rebuild in progress, cannot unilaterally dictate which cable channel position a broadcast television  xstation will be on, as the Act is clear that the station is empowered to choose its channel position among  xthe statutory options. In the circumstances, given the statutory nature of the obligation at issue and the  x0high waiver burden established by the Commission in its implementation documents, it cannot be  xconcluded that Cablevision has met the waiver standard. Nevertheless, given the magnitude of the  xtransitional difficulties involved and the nature of the system reconfiguration needed to comply, Cablevision will be given 180 days from the release of this order to come into compliance. " 0*&&II"Ԍ S( ` 45.` ` With respect to carriage on the Hauppauge system in New York, where the documented  x`costs of compliance is $1,061,642, the facts are different from the other systems where there is a cost to  xcomply with the channel positioning request. In this circumstance, it would cost Cablevision more than  S( x$1 million in equipment and labor to place WXTV on channel 41 on this system alone.o {O(#X\  P6G;QwP#эSee Cablevision's Opposition at Exhibit A. The trap  S`( x\replacement costs on a persubscriber basis is documented to be $9.78.`Zo {OZ(#X\  P6G;QwP#эSee Cablevision's Opposition at Exhibit C. More significantly, almost  x27,000 cable subscribers will be affected and will have to be inconvenienced to accommodate Cablevision  xpersonnel who would need to remove one trap and replace two traps at their residences. Cablevision also  xreports that this particular system was upgraded many years ago before the dispute with WXTV began.  xGiven the magnitude of the costs to the operator, the intensive labor involved to comply with the station's  xrequest, the harm to the public, and the fact that the costs to the system were not aggravated by  xfCablevision's action, we find that Cablevision has sufficiently met its burden, even absent data on the  xzcosts to revenue ratio, and does not have to comply with WXTV's onair channel positioning request.  xWe note, however, that we expect Cablevision to comply with WXTV's channel positioning request if and when this particular system is rebuilt.  S ( ` 246.` ` Cablevision raises concerns that an order by the Commission to carry WXTV on Channel  xj41 would severely exacerbate the taking of property issue a mandatory carriage obligation would impose.  xTo the degree that Cablevision's arguments are intended as a frontal assault on the constitutionality of the  xonchannel carriage requirement of Section 614, it is a well-established principle of law that "regulatory  S( xHagencies are not free to declare an act of Congress unconstitutional."ho {O( xZ#X\  P6G;QwP#эSee Johnson v. Robinson, 415 U.S. 361, 368 (1974) ("Adjudication of the constitutionality of congressional  yO^(enactments has generally been thought beyond the jurisdiction of administrative agencies").#x6X@`72X@#h We note, moreover, that the  S( xSupreme Court has upheld the constitutionality of Section 614 in the only challenge to that provision.Fo {O(#X\  P6G;QwP#эTurner Broadcasting System v. FCC, 117 S.Ct. 1174 (1997).  xjAlthough the Commission may not have the authority to declare an act of Congress unconstitutional, and  xtherefore refuse to enforce it, it has the obligation to construe statutes it enforces in a constitutional  Sh( xmanner.8Xho yO(#X\  P6G;QwP#эCf. St. Martin Evangelical Lutheran v. South Dakota, 451 U.S. 777, 780 (1981) (courts must construe statute, if possible, to avoid raising doubts of its constitutionality).  ?p2#x6X@`72X@#8 We have attempted to do that here. We are, however, obligated to execute and enforce the provisions of the Communications Act as enacted by Congress. " 0*&&II"  S(1 ORDERING CLAUSES x  S(47.` ` Accordingly, IT IS ORDERED , pursuant to Section 614 of the Communications Act of 1934, as amended (47 U.S.C.  534), that the petition filed by WXTV License Partnership, G.P.,  S`(licensee of television broadcast station WXTV(TV), Paterson, New Jersey, IS GRANTED IN PART  S8(AND DENIED IN PART .  S(48.` ` IT IS FURTHER ORDERED THAT , Cablevision must comply with the schedule outlined in paragraphs 4346 above.  Sp(49.` ` This action is taken pursuant to authority delegated under Section 0.321 of the Commission's rules. XX` ` X ,XhFEDERAL COMMUNICATIONS COMMISSION(# XX` ` X ,XhWilliam H. Johnson(# XX` ` X ,XhDeputy Chief(# XX` ` X ,XhCable Services Bureau(#