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This Memorandum Opinion and Order observes the requested confidentiality.N WSNet also alleges", ,**88""  S' xtthat SSI is in violation of Section 628(c)(2)(B) of the Communications ActD yOh'ԍ47 U.S.C.  548(c)(2)(B).D and Section 76.1002(b) of  S' x@the Commission's rulesAX yO'ԍ47 C.F.R.  76.1002(b)A because SSI has discriminated against WSNet and in favor of Netlink and the TCI cable systems by refusing to distribute or sell any SSI programming to WSNet.  S`' e 2.` ` In addition, WSNet alleges that TCI, SSI and Netlink are in violation of Section  S8' x628(c)(2)(C) and (D) of the Communications ActL8 yO 'ԍ47 U.S.C.  548(c)(2)(C) and (D).L and Section 76.1002(c)(1) and (2) of the Commission's  S' xrulesMx yO( 'ԍ47 C.F.R.  76.1002(c)(1) and (2).M because they have engaged in practices or activities tantamount to exclusivity with respect to SSI  xprogramming. Finally, WSNet alleges that TCI, through SSI and Netlink, has violated the cable/SMATV  S' xcross ownership prohibition set forth in Section 613(a)(2) of the Communications ActA  yOh'ԍ47 U.S.C.  533(a)(2).A and Section  S'76.501(e)(2) of the Commission's rules.  yO' xt ԍ47 C.F.R.  76.501(e)(2). Satellite master antenna television service ("SMATV") systems are multichannel  x; video programming distribution systems that serve residential, multipledwelling units ("MDUs"), and various other  x buildings and complexes. A SMATV system is defined by the Communication's Act as an exception to the definition of a cable system:  {O'  X(a) Cable system or cable television system. A facility consisting of a set of closed transmission   paths and associated signal transmission paths and associated signal generation, reception, and   control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:  X(2) A facility that serves subscribers without using any public rightofway.   {O2' x 47 U.S.C.  522(7); 47 C.F.R.  76.5(a)(2); see also 47 C.F.R.  76.501(d) which notes that SMATV is defined by 47 C.F.R.  76.5(a)(2).   SH ' e 3.` ` TCI and SSI filed a consolidated answer and motion to dismiss arguing that WSNet does  xnot have standing to bring a program access complaint and that both TCI and SSI are not proper parties  x&to this proceeding. Netlink filed an answer and request for dismissal and sanctions also asserting that  x&WSNet does not have standing to file a complaint and arguing further that WSNet has failed to state a  xclaim against Netlink. WSNet filed a reply pleading. TCI and SSI filed a joint surreply and a motion  xfor leave to file that pleading. WSNet filed an opposition to that motion and TCI and SSI filed a joint  SX'reply to WSNet's opposition, along with Netlink filing its own reply. XT yOL$' x ԍIn their "Motion for Leave to File Joint Surreply," TCI and SSI request leave to file their Joint Surreply  x because they argue that WSNet did little more than outline its argument in its program access complaint and only  x later provided specific factual allegations in its reply pleading. In addition, they argue that contrary to 47 C.F.R.  x  76.1003(e), which expressly prohibits the complainant in a program access proceeding from raising new issues in  x its reply pleading, WSNet introduced new issues in its reply. We agree with TCI and SSI and grant the motion filed"l' ,p(p(r'" by TCI and SSI to file their Joint Surreply.  "XX ,p(p(88"Ԍ S'ԙ II.BACKGROUND  S' e 4.` ` Congress enacted the Cable Television Consumer Protection and Competition Act of 1992  S' x("1992 Cable Act") to promote competition, with the view that regulation would be transitional until the  Sd' xvideo programming distribution market becomes competitive.w ZdX {O\' x ԍ1992 Cable Act  2(b)(2), 106 Stat. 1463. See Communications Act  601(6), 47 U.S.C.  521(6) ("The  x purposes of this title are to . . . (6) promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems."). w By enacting the program access  S<' xDprovisions, which are codified in Section 628 of the Communications Act,; <z yOV 'ԍ47 U.S.C.  548.; Congress sought to minimize  xthe incentive and ability of vertically integrated programming suppliers to favor affiliated cable operators  xMover nonaffiliated cable operators or other multichannel video programming distributors ("MVPDs") in  S'the sale of satellite cable and satellite broadcast programming.g  yOn'ԍ1992 Cable Act  2(a)(2), 2(b)(5), 106 Stat. 1460, 1463.g  St'5.` ` In Section 628(b) of the Communications Act, Congress states that:  XIt shall be unlawful for a cable operator, a satellite cable programming vendor in which  Ja cable operator has an attributable interest, or a satellite broadcast programming vendor  to 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  S\'programming to subscribers or consumers.>\ yO'ԍ47 U.S.C.  548(b).>  ` ` In Section 628(c)(2), Congress instructed the Commission to promulgate regulations that:  X(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  Wvendor 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]E*  yO 'ԍ47 U.S.C.  548(c)(2)(A). E    'oV Ԋ 'oV X(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  dprices, terms and conditions of sale or delivery of satellite cable programming or satellite"| ,p(p(88"  broadcast programming among or between cable systems, cable operators, or other  S'MVPDs or their agents or buying groups . . . .* ~ yO@' x ԍ47 U.S.C.  548(c)(2)(B). Congress provided limited exceptions to this prohibition. A satellite programming vendor or satellite broadcast programming vendor is not prohibited from:   X(i) imposing reasonable requirements for creditworthiness, offering of service, and financial  A 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;   (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].   {O 'Id.    S'  S' e '6.` ` In Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and  xCompetition Act of 1992: Development of Competition and Diversity in Video Programming Distribution  S:' xMand Carriage, Report and Order, MM Docket No. 92265 (Program Access Order),>: ~ yO'ԍ8 FCC Rcd 3359 (1993).> the Commission  xconcluded that nonprice discrimination is included within the prohibition against discrimination set forth  xin Section 628(c)(2)(B). While the Commission did not attempt to identify all types of nonprice  xdiscrimination that could occur, the Commission stated that "one form of nonprice discrimination could  xDoccur through a vendor's `unreasonable refusal to sell,' or refusing to initiate discussions with a particular  xdistributor when the vendor has sold its programming to that distributor's competitor." The Commission  xcautioned, however that "`unreasonable' refusals to sell" should be distinguished from "certain legitimate  S$ ' xZreasons that could prevent a contract between a vendor and a particular distributor.";$ J ~ {O'ԍId. at 3412.; Such legitimate reasons would include:  0X(i) the possibility of parties reaching an impasse on particular terms, (ii) the distributor's  history of defaulting on other programming contracts, or (iii) the vendor's preference not  to sell a program package in a particular area for reasons unrelated to an existing  S4'exclusive arrangement or a specific distributor.E4~ {O'ԍId. (footnote omitted).E   S' e 7.` ` The term "satellite cable programming" is video programming which is transmitted via  xsatellite and which is primarily intended for the direct receipt by cable operators for their retransmission  S' xQto cable subscribers.]n~ yO$'ԍ47 U.S.C.  605(d)(1); 47 C.F.R. 76.1000(h). ] The term "satellite broadcast programming" is broadcast programming when such  xcprogramming is retransmitted by satellite and the entity retransmitting such programming is not the"l,p(p(88"  xQbroadcaster or an entity performing such retransmission on behalf of and with the specific consent of the  S'broadcaster.\~ yO@'ԍ47 U.S.C.  548(i)(3); 47 C.F.R.  76.1000(f).\  S' III.THE PARTIES  S8' e 8.` ` WSNet states that it is a corporation engaged in the acquisition and distribution of satellite  S' x7television programming services (the "WSNet programming").7X~ yO 'ԍComplaint at 1.7 WSNet states that it competes with TCI  S' xDcable systems that sell satellite television programming to SMATV companies and bulk buyers.k\~ {Op ' x& ԍId. at 34; see also TCI and SSI Answer at 21. SMATV companies and bulk buyers who acquire satellite  x television programming from a TCI cable system use the signal provided by the TCI cable system in lieu of their  {O 'own satellite reception equipment. Id.k WSNet  x"states that it purchases programming directly from vendors and sells it to Satellite Master Antenna  S' xTelevision ("SMATV") companies who then sell the WSNet programming to consumers.I ~ yOD'ԍComplaint at 2.I WSNet also  xsells the WSNet programming in bulk directly to the owners and managers of multiple dwelling units  x("MDUs"), mobile home parks, planned unit developments ("PUDs"), recreational vehicle ("RV") parks,  S ' xnursing/retirement homes, prisons and college dormitories ("bulk buyers").2 ~ {O\'ԍId. 2 WSNet states that bulk  xbuyers own or manage the facilities where consumers of satellite television programming reside and bulk  x*buyers also own and operate the satellite television reception equipment used to provide the programming  S ' x to the residents of those facilities.7 . ~ yOv'ԍComplaint at 2.7 WSNet notes that bulk buyers are not engaged in the business of  xselling satellite television programming to consumers, but rather acquire and provide the programming to  xresidents as an amenity and without direct payment by residents of a separate subscription fee for  S0'programming.10 ~ {O'ԍId.1  S' e 9.` ` According to WSNet, it delivers WSNet programming to over 4,200 satellite headend sites  S' xthroughout the United States.1P ~ {O 'ԍId.1 WSNet also states that the SMATV companies and the bulk buyers that  S' x^it does business with pass an estimated two million homes nationwide.1~ {O#'ԍId.1 Thus, WSNet states that it is the  Sh'largest buying group in the country for SMATV companies and bulk buyers.Rht~ {O|%'ԍId. at 23 and WSNet Reply at 1122.R "@,p(p(88"Ԍ S' e  10.` ` TCI is a cable operator that is engaged in the production, acquisition and distribution of  S' xmultichannel video programming services. ~ yO@' xQ ԍComplaint at 3. We note that on September 14, 1998, after the instant program access complaint was filed on  x} July 1, 1998, AT&T Corporation ("AT&T") and TCI filed joint applications under 47 U.S.C.  310(d) of the  x Communications Act, requesting Commission approval of the transfer of control to AT&T of licenses and  x authorizations controlled by TCI or its affiliates or subsidiaries due to the proposed merger of AT&T and TCI. The  x Commission approved the transfer of control of Commission licenses and authorizations from TCI to AT&T on  x February 18, 1999 and the merger was consummated on March 9, 1999. As a result of the consummation of the  x proposed merger, TCI became a wholly owned subsidiary of AT&T and the licenses and authorizations held by the  x affiliates or subsidiaries of TCI continue to be held by those entities. For our purposes in this matter and for ease of reference, we will refer to the parties as named in the complaint TCI, SSI and Netlink. SSI is a wholly owned subsidiary of TCI through TCI  S' xCommunications, Inc. and TCI Development.A!~ yO 'ԍTCI and SSI Answer at 21.A TCI and SSI state that SSI's function is to purchase  S' xprogramming from programmers on behalf of TCI and TCI affiliates.g"( ~ yOP'ԍTCI and SSI Answer at 12; Joint Surreply of TCI and SSI at 13. g Thus, SSI is described as TCI's  xway of centrally purchasing programming, which TCI and SSI state is the same way other multiple system  S8' xoperators ("MSOs") buy programming.1#8 ~ {O'ԍId.1 Netlink is a satellite cable programming vendor in which TCI  S' xhas an attributable interest.^$J ~ {O'ԍNetlink Answer at 24; see also Complaint at 78.^ Netlink states that it obtains through SSI the right to purchase distribution  S' x^rights for all of the programming services which it is entitled to sell.=%~ yOd'ԍNetlink Answer at 20.= Netlink states that it obtains access  S'to the programming rights negotiated by SSI because it qualifies as an affiliate of TCI.1&l~ {O'ԍId.1  Sp' IV.THE PLEADINGS  S ' e 11.` ` WSNet argues that SSI and Netlink have engaged in unfair acts and methods of  x3competition in violation of Section 76.1001 of the Commission's rules because SSI refuses to sell SSI  xprogramming to WSNet and because Netlink sells SSI programming at a price that is at or below WSNet's  S ' xQcost for the same programming.&,P- ~ yOF 'ԍComplaint at 13; 47 C.F.R.  76.1001.P WSNet also contends that these same practices on the part of SSI and  xNetlink are tantamount to prohibited exclusivity agreements in violation of Section 76.1002(c)(1) and (2)  SX' xcof the Commission's rules.g.X~ yO#'ԍComplaint at 1415; 47 C.F.R.  76.1002(c)(1) and (2).g In addition, WSNet asserts that SSI has discriminated against WSNet  S0' xQbecause it has refused to deal with WSNet in violation of Section 76.1002(b) of the Commission's rules.b/0~ yO%'ԍComplaint at 1314; 47 C.F.R.  76.1002(b).b  S' xWSNet also argues that TCI has, through SSI and Netlink, been using SMATV companies and bulk buyers  xto offer SSI programming for sale to consumers in TCI franchise areas in a manner other than pursuant"/,p(p(88"  xto the terms of the applicable franchise agreements in the TCI franchise areas in violation of Section  S'76.501(e)(2) of the Commission's rules.]0~ yO@'ԍComplaint at 1516; 47 C.F.R. 76.501(e)(2).]  S' e d12.` ` TCI, SSI and Netlink all respond by arguing that WSNet does not have standing to bring  xa program access complaint because WSNet is not an MVPD and WSNet's resale of programming to  S8' xMSMATVs and bulk buyers does not make it a buying group or agent under the program access rules.[18X~ yO0'ԍTCI and SSI Answer at 311; Netlink Answer at 613.[  x3TCI, SSI and Netlink contend that in order for WSNet to be an MVPD, WSNet must be an entity that  S' xmakes available for purchase multiple channels of video programming to subscribers or customers.2~ yOp 'ԍSection 76.1000(e) of the Commission's rules defines the term multichannel video programming distributor as:   X[A]n entity engaged in the business of making available for purchase, by subscribers or customers,   multiple channels of video programming. Such entities include, but are not limited to, a cable   operator, a multichannel multipoint distribution service, a direct broadcast satellite service, a   television receiveonly satellite program distributor, and a satellite master antenna television system operator, as well as buying groups or agents of all such entities.  47 C.F.R.  76.1000(e).   xxAccording to TCI, SSI and Netlink, neither SMATVs nor bulk buyers qualify as subscribers or customers  S' xZunder the Commission's rules.Y3 ~ yO'ԍTCI and SSI Answer at 45; Netlink Answer at 67.Y The parties argue that the Commission has made clear that an MVPD  xis an entity which offers programming directly to end users, not to other MVPDs which then provide  SH 'programming to end users, i.e., subscribers or customers.4H H ~ {O0'ԍId.; see Wizard Programming, Inc. v. Superstar/Netlink Group et al., 12 FCC Rcd 22102 (1997).  S ' e 13.` ` TCI, SSI and Netlink contend that WSNet is neither an agent nor a buying group as  xkdefined by the Commission's rules, but instead is a commercial entity that purchases programming for the  S ' xpurpose of making a profit by then selling it to SMATVs or bulk buyers. 5 ~ yO"' x ԍTCI and SSI Answer at 911; Netlink at 713. Section 76.1000(c) of the Commission's rules describes buying groups as follows:  ` XThe term "buying group" or "agent" for purposes of the definition of a multichannel video   programming distributor set forth in paragraph (e) of this section, means an entity representing the interests of more than one entity distributing multichannel video programming that:   e i  X` ` (1) Agrees to be financially liable for any fees due pursuant to a satellite cable  u programming, or satellite broadcast programming, contract which it signs as a contracting party as   a representative of its members or whose members, as contracting parties, agree to joint and several liability; and   e i X` ` (2) Agrees to uniform billing and standardized contract provisions for individual members; and   e i, X` ` (3) Agrees either collectively or individually on reasonable technical quality standards for the individual members of the group. "J'4,p(p(#'"Ԍ47 C.F.R.  76.1000(c).  The parties argue that WSNet" X5,p(p(88q "  xdoes not act as an agent or representative of its "members" or MVPD constituency as required by the  S' xCommission's rules.\6X~ yO'ԍTCI and SSI Answer at 910; Netlink Answer at 1011.\ Netlink also argues that WSNet does not fit the description of a buying group  xxbecause it does not impose uniform billing or standard contract terms and conditions upon the entities that  S' xit represents.<7~ yO'ԍNetlink Answer at 8.< Netlink asserts that although WSNet may begin with a standardized form of agreement,  xit negotiates contractual terms and conditions as well as price, just as any programmer or wholesaler would  S8' x*do when conducting business.C88x~ {OP 'ԍId. at 9.C The parties contend that the relationship between WSNet and its MVPD  x^clients cannot be characterized as anything more than a sales relationship in which WSNet is a middleman  xpor broker that buys program distribution rights from vendors and resells them, at differing rates, to  S'SMATV operators and bulk buyers.W9 ~ yOj'ԍTCI and SSI Answer at 11; Netlink Answer at 13.W  Sp' e 14.` ` In response to WSNet's allegations, TCI and SSI argue that SSI is not a satellite cable  xprogramming vendor and therefore is not subject to the program access rules. The parties argue that while  xNetlink and the TCI cable systems sell programming, SSI does not engage in the wholesale distribution  S ' xfor sale of programming, but merely purchases programming on behalf of TCI and its affiliates.D: ~ yO2'ԍTCI and SSI Answer at 1213.D TCI  x^and SSI also argue that SSI's refusal to engage in the business of making programming generally available  x^for sale to third parties does not constitute a refusal to deal under the program access rules. TCI and SSI  xtassert that the Communications Act's exclusivity provision is designed to restrict a vertically integrated  x3satellite programmer from selling to only one MVPD and refusing to sell to other MVPDs on the basis  xof exclusivity. TCI and SSI assert that the exclusivity provision is not intended to involve an entity such  S' xas SSI that sells no programming at all.8;* ~ {O'ԍId. at 16.8 Netlink argues that WSNet can purchase distribution rights for  xthe programming services offered by Netlink either from Netlink itself or directly from programmers, thus  S'WSNet cannot state a claim against Netlink based on program exclusivity.=< ~ yO'ԍNetlink Answer at 16.=   Sh' e  15.` ` With regard to the alleged cable/SMATV cross ownership violation, TCI and SSI argue  S@' xlthat WSNet misunderstands and misapplies the cable/SMATV rule.A=@L ~ yO,#'ԍTCI and SSI Answer at 16.A TCI and SSI note that the  xcable/SMATV rule prohibits a cable operator or affiliate from offering service through SMATV facilities  S' xwithin the cable operator's franchise area, unless such service is offered in accordance with the terms and"=,p(p(88"  S' xconditions of a cable franchise agreement.O>~ {Oh'ԍId.; 47 C.F.R.  76.501(e)(2).O TCI and SSI argue that this restriction applies only where  S' x}TCI or an affiliate offers service through SMATV facilities to subscribers.A?Z~ yO'ԍTCI and SSI Answer at 16.A TCI and SSI note that  xWSNet accuses TCI, "through SSI and Netlink," of using SMATV companies and bulk buyers to offer  x&the SSI programming for sale to consumers; however, neither SSI nor Netlink offers service through  S`' xSMATV facilities to subscribers.8@`~ {O'ԍId. at 17.8 TCI and SSI assert that SSI is only a purchasing agent for  S8' xprogramming for TCI and its affiliates, and does not engage in the sale of programming.7A8|~ {OT 'ԍId.7 While Netlink  x@does sell programming to SMATVS, TCI and SSI argue that Netlink does not provide service through  S' xSMATV facilities to subscribers.1B~ {O'ԍId.1 TCI notes that in any of its cable franchise areas where it offers  xservice through a SMATV facility to subscribers, it does so in accordance with the terms and conditions  S'of its cable franchise agreements.8C~ {O'ԍId. at 18.8  SH ' e W16.` ` In response, WSNet argues that it is an MVPD with standing to file this program access  S ' xcomplaint because it makes available multiple channels of video programming to its customers.9D 2 ~ yO'ԍWSNet Reply at 6.9 WSNet  S ' xcontends that it treats the SMATV operators to whom it sells programming as its customers.1E ~ {OZ'ԍId.1 WSNet  xargues that there is no support in the legislative history of the 1992 Cable Act for the assertion made by  xtTCI, SSI and Netlink that WSNet fails to qualify as an MVPD because its customers are not end users  S ' xof video programming.7F T ~ {Ot'ԍId. at 7.7 WSNet argues, however, that the Commission has already held, in the context  SX'of retransmission consent, that one MVPD can serve another MVPD as a customer.:GX~ {O' xk ԍId., citing In re Implementation of the Cable Television Consumer Protection and Competition Act of 1992,  {O' x Broadcast Carriage Issues, Report and Order, 8 FCC Rcd 2965, 2997 (1993) ("Must Carry Order"). WSNet argues  x that the Commission ruled that for purposes of obtaining retransmission consent from broadcasters, a satellite  x& broadcast programming vendor is an MVPD for all home satellite dish ("HSD") sales, i.e., all sales of satellite  x broadcast programming to HSD users and to television receiveonly satellite program distributors, who WSNet states  {O"'are MVPDs themselves, for redistribution to HSD users. Id., n. 7. :  S' e m17.` ` WSNet also contends that the terms subscribers, end users and customers cannot be  S' xtconsidered as having one and the same meaning.9Hd~ yO&'ԍWSNet Reply at 7.9 WSNet argues that a customer is not the same as a" H,p(p(88"  S' xQsubscriber.7I~ {Oh'ԍId. at 8.7 WSNet states that Section 76.5(e) of the Commission's rules expressly defines a subscriber  S' xas someone served by a cable system.JJZ~ {O'ԍId.; 47 C.F.R.  76.5(e).J According to WSNet, because a SMATV system is not a cable  S' xsystem, a SMATV operator does not serve subscribers.9K~ yO<'ԍWSNet Reply at 8.9 WSNet contends therefore that an MDU resident  S' xserved by a SMATV system is a customer.1L|~ {O 'ԍId.1 However, WSNet argues that unlike a subscriber, a customer  xis not limited to an end user in the MVPD definition because the Commission has already determined, in  S8'the context of the retransmission consent, that one MVPD can be the customer of another MVPD.1M8~ {O 'ԍId.1  S' e 18.` ` In addition, WSNet asserts that there are distinctions between SMATV systems, SMATV  S' xoperators and MVPDs.9N~ {O'ԍId. at 78.9 WSNet states that "SMATV systems are facilities that provide video  S' x7programming to the residents of MDUs without using public rights of way."KO2 ~ {Ol'ԍId. at 7 (emphasis original).K In turn, WSNet points out  Sr' xthat "SMATV operators are persons who own and operate SMATV systems."MPr ~ {O'ԍId. at 78 (emphasis original).M WSNet states that  SL ' x"MVPDs include SMATV operators but not all SMATV operators are MVPDs."KQL V ~ {OB'ԍId. at 8 (emphasis original).K Excluded from the  x3MVPD definition, states WSNet, are "all SMATV operators who provide programming as an amenity"  S ' xMto MDU residents.;R ~ {O'ԍId. at 8, 10.; WSNet states that this "class of SMATV operator" is known as a "bulk buyer."MS z~ {O'ԍId. (emphasis original). M  xFor purposes of the Commission's retransmission consent requirement, WSNet notes these bulk buyers  S ' xVare not considered MVPDs.pT ~ {O\ 'ԍId. at 10, citing Must Carry Order at 22972298.p For purposes of the program access rules, WSNet argues that if the  xCommission determines that MVPDs can only serve end users as customers, then the vast number of MDU  S`' xresidents who obtain their programming from bulk buyers will be denied the protection of the these rules.<U`~ yO#'ԍWSNet Reply at 910.<  xWSNet therefore argues that the Commission must recognize that bulk buyers themselves are customers  S'in order to afford them the protection of the program access rules.1V.~ {O&'ԍId.1" V,p(p(88 "Ԍ S' e Wԙ19.` ` WSNet also argues that WSNet functions as a buying group as opposed to a broker or a  S' xDmiddleman.1W~ {O@'ԍId.1 In support of its argument, WSNet asserts that its method of doing business is the same as  xtthat of the National Satellite Programming Network, Inc. ("NSPN"), which WSNet states was the first  S' x}company to pioneer the program buying group concept.X&Z~ {O' x ԍId. at 12. WSNet states that WSNet acquired NSPN in 1992 and the founder of NSPN, Robert L. Vogelsang,  {OL' xk is now a major shareholder and senior executive in WSNet. WSNet also notes that in the Commission's Program  {O' x Access Order, NSPN was recognized as a buying group for SMATV operators. Program Access Order, 8 FCC Rcd at 33973398. WSNet argues further that it has been in  xbusiness for fifteen years and that all of the programming vendors in the country, including those owned  S8' xVby TCI, have always recognized WSNet as a buying group.Y8H~ yO ' x ԍWSNet Reply at 1415. WSNet notes that it participated in a recent Commission proceeding representing itself  x as a buying group and that TCI owned programmers who also participated in that same proceeding did not object  {O ' x then to WSNet's status as a buying group. See Implementation of the Cable Television Consumer Protection and  xt Competition Act of 1992, Petition for Rulemaking of Ameritech New Media, Inc. Regarding Development of  {OB' x! Competition and Diversity in Video programming and Carriage, First Report and Order, 13 FCC Rcd 15822, 15857 {O '15859 (1998).   Moreover, WSNet asserts that if the  xCommission finds that WSNet is not a buying group, there will be no buying groups at all in the SMATV  xindustry and SMATV operators will have to buy programming either directly from programmers or a DBS  S'company or indirectly through Netlink.8Z ~ {O&'ԍId. at 15.8  Sp' e 20.` ` In addition, WSNet asserts that it represents the entities that its does business with as  x"members" of its buying group. According to WSNet, the only express requirement for anyone to become  x7a "member" of a buying group is to agree to uniform billing and standardized contract provisions with the  S ' xZbuying group.a[ X ~ {O'ԍId. at 16; see 47 C.F.R.  76.1000(c)(2). a WSNet contends that members decide for themselves the terms and conditions under  xIwhich they join a buying group and how the buying group represents their interests in dealing with  S ' x*programmers.@\ ~ yO2'ԍWSNet Reply at 16.@ WSNet argues that members of a buying group have a choice with regard to how much  xfinancial responsibility to the programming vendor they will assume as participants in the buying group.  xAccording to WSNet, members can accept joint and several liability to the programmers for the financial  xobligations of all group members; or, members can decide to assume no liability to the programming  S' xvendor provided the buying group alone commits to pay for the programming.>]z~ {O""'ԍId. at 17.> WSNet asserts that the  xMlatter option necessarily requires the buying group to buy from the vendor on its own behalf and resell  S' xthe programming to its members.=^ ~ {Od%'ԍId.= WSNet states that when the entities that it does business with become" ^,p(p(88k"  xWSNet members by executing WSNet's affiliate agreement, they know that WSNet has a contract with  S'the programming vendor to which they are not a party and for which they assume no liability._~ {O@' x ԍId. WSNet argues that TCI and SSI are incorrect when they assert that WSNet has to assume fiduciary  x obligations to the SMATV operators and bulk buyers to whom it sells programming. WSNet contends that the  xk relevant statute 47 U.S.C.  548(c)(2)(B) prohibits discrimination by program vendors in dealing with MVPD's  {O' x% "agents or buying groups (emphasis added)." According to WSNet, the statute makes clear that a buying group either  {Od'acts on its own behalf or as the agent for its members not both. Id. at 18.  S' e z21.` ` WSNet also argues that a buying group may charge different rates to those entities to  xDwhom it sells programming and still be considered to be providing uniform billing and contract provisions  S8' xas required by Section 76.1000(c)(2).p`8~~ {OV 'ԍWSNet Reply at 19; 47 C.F.R.  76.1000(c)(2).p WSNet argues that being able to set different rates for those  xZentities is essential to its business and that even vertically integrated programmers are permitted, under  xQcertain circumstances, to charge different rates to different customers and that there are no limitations on  S' xVnonvertically integrated programming vendors.<aZ~ {Op' x& ԍId. WSNet argues that the business of selling programming to SMATV operators is highly competitive.  x WSNet notes that the buying groups that it competes with are Netlink, SMS, 4Com and the National Cable Television Cooperative ("NCTC"). < WSNet further argues that the presence of price  xDdifferentials among and between those entities that WSNet sells programming to does not affect WSNet's  xDstatus as a buying group because such differentials have no effect on the convenience and security of the  SH 'programming vendor in dealing with WSNet as a single purchaser.8bH 2 ~ {O'ԍId. at 20.8  S ' V.DISCUSSION  S ' e 22.` ` For the reasons discussed below, we dismiss WSNet's program access complaint against  xTCI, SSI and Netlink because WSNet lacks standing to file the complaint. TCI, SSI and Netlink allege  xthat WSNet lacks standing to file this program access complaint against them because WSNet is not an  xMVPD and WSNet's resale of programming to SMATVs and bulk buyers does not qualify it as a buying  xgroup or agent under the program access rules. Section 76.1000(e) of the Commission's rules defines a multichannel video programming distributor ("MVPD") as:   X[A]n entity engaged in the business of making available for purchase, by subscribers or  customers, multiple channels of video programming. Such entities include, but are not  \limited to, a cable operator, a multichannel multipoint distribution service, a direct  broadcast satellite service, a television receiveonly satellite program distributor, and a  qsatellite master antenna television system operator, as well as buying groups or agents of  S'all such entities.Bc ~ yO,$'ԍ47 C.F.R.  76.1000(e).B   Sx' e 23.` ` An MVPD must be an entity that makes available for purchase multiple channels of video  SP' xprogramming to subscribers or customers. Because neither SMATVs nor bulk buyers qualify as  xsubscribers or customers under our rules, WSNet is not an MVPD and therefore lacks standing to bring"( T c,p(p(88~"  x^a program access complaint. By its own admission, WSNet does not makes video programming available  xto end users, but instead sells programming to other MVPDs who then make the programming available to its subscribers or customers.  S`' e 24.` ` WSNet argues that the term "customers" in the definition of MVPD encompasses WSNet's  xtSMATV and bulk buyer clients, which qualifies WSNet as an MVPD. We believe, however, that there  xis support in the legislative history of the 1992 Cable Act to support the view that the term "customers,"  xalong with the term "subscribers," means "end users." In the Senate version of the 1992 Cable Act, the  xSenate used the term "available to a household" or "available to a home" when referring to an MVPD. Specifically, the Senate version stated:  XThe term "available to a household" or "available to a home" when used in reference to  a multichannel video programming distributor means a particular household which is a  Jsubscriber or customer of the distributor or a particular household which is actively and  currently sought as a subscriber or customer by a multichannel video programming  distributor and which is capable of receiving the service offered by the multichannel video  S 'programming distributor.d ~ {O'ԍS. Rep. No. 10292, 102nd Cong., 2nd Sess. (1992), reprinted in 1992 U.S.C.C.A.N. 1133, 1204.   S0' e F25.` ` Thus, in adopting the program access provisions, we believe that Congress meant to  xpromote competition among MVPDs at the retail level so that subscribers or customers could receive the  xbenefits of that competition through more programming choices at lower prices. We do not believe that  xCongress intended to extend the program access rules to wholesale level relationships such as those that  xgexist between a program purchaser, such as WSNet, and MVPDs such as the SMATV and bulk buyer clients served by WSNet.  S' e 26.` ` In support of its argument that one MVPD can serve another MVPD as a customer,  S' xWSNet relies on the Commission's decision in Implementation of the Cable Television Consumer  S' xProtection and Competition Act of 1992, Broadcast Carriage Issues ("Must Carry Order").beZ~ yO'ԍWSNet Reply at 7; 8 FCC Rcd 2965, 2997 (1993).b We disagree  S' xwith WSNet's interpretation of the Commission's Must Carry Order. In discussing retransmission consent,  xthe Commission noted that while satellite carriers themselves sell retransmitted broadcast signals directly  SV' xto home satellite dish ("HSD") households, i.e., end users, they also license a variety of agents, e.g.,  xMprogram packagers, equipment distributors, and satellite equipment retailers, to sell the signals on their  S' x<behalf.f~ {O 'ԍMust Carry Order, 8 FCC Rcd at 2997; see also Joint Surreply of TCI and SSI at 12. The Commission stated that, in order to avoid any ambiguity regarding responsibility for  xMsecuring retransmission consent with respect to HSD sales, the satellite carrier is the MVPD and must  S' xsecure retransmission consent.g\|~ {O#' x ԍId. The Commission also stated in the Must Carry Order that satellite carriers generally also retransmit  x television signals to cable systems. With respect to cable subscribers, it is the cable operator rather than the satellite  {Of%'carrier that is the multichannel distributor. Id. at 2997, n. 367.    Ī The Commission did not suggest, expressly or by inference, that the  xcarrier's agents, such as the program packagers that the satellite carrier licenses to sell signals on its behalf, should be considered as MVPDs for purposes of retransmission consent. "h g,p(p(88t"Ԍ S' e ԙ27.` ` Also citing the Must Carry Order, WSNet contends that bulk buyers are not MVPDS and  S' xQif the Commission determines that WSNet is not an MVPD, then the Commission will deny the protection  S' xMof the program access rules to the MDU residents who obtain their programming from bulk buyers.wh~ {O'ԍWSNet Reply at 10, citing Must Carry Order, 8 FCC Rcd at 22972298.w  S' xtWe note that, in the Must Carry Order, the Commission does not exempt from the definition of MVPD  xeither bulk buyers or other entities that provide multiple channels of programming to MDU residents for  S<' xpurchase.qi<Z~ {O6'ԍId.; see also Joint Surreply of TCI and SSI at 7.q Instead, the Commission clarifies that master antenna TV ("MATV") facilities or VHF/UHF  xantennas on individual dwellings situated within the station's broadcast service area are not subject to  S' x7retransmission consent, provided that these signals are available without charge at the residents' option.Rj~ {Ox 'ԍMust Carry Order, 8 FCC Rcd at 2997.R  xWe agree with TCI and SSI that WSNet's bulk buyer clients are not covered by this particular exception  xbecause, unlike MATV systems, these bulk buyers provide multiple channels of video programming,  xincluding satellite delivered programming, to MDU residents for purchase through some form of increased  SL ' x&rent or separate fee.JkL ~~ yOj'ԍJoint Surreply of TCI or SSI at 7.J Thus, while the Must Carry Order does not specifically address whether bulk  S& 'buyers are MVPDs, the Order cannot be interpreted to hold that bulk buyers cannot be MVPDs.   S ' e 28.` ` We also find that WSNet is neither an agent nor a buying group as defined by Section  S '76.1000(c)(1)(3) of the Commission's rules,Il ~ yO^'ԍ47 C.F.R.  76.1000(c)(1)(3).I which states:  XThe term "buying group" or "agent" for purposes of the definition of a multichannel video  programming distributor set forth in paragraph (e) of this section, means an entity  representing the interests of more than one entity distributing multichannel video programming that:   eX(1) Agrees to be financially liable for any fees due pursuant to a satellite cable  programming, or satellite broadcast programming, contract which it signs as a contracting  party as a representative of its members or whose members, as contracting parties, agree to joint and several liability; and   X(2) Agrees to uniform billing and standardized contract provisions for individual members; and   X(3) Agrees either collectively or individually on reasonable technical quality standards  S0'for the individual members of the group.1m0~ {On$'ԍId.1   S' e 29.` ` We believe that there is a fundamental difference between an entity, such as WSNet, that  x3buys and resells programming to various and unrelated MVPDs at differing rates in order to maximize"0 m,p(p(88"  xits own profits and a group that represents the interests of a collective group of MVPDs with the  S' xVestablished goal of obtaining better programming rates and terms for its members. WSNet has not  xadequately demonstrated that the SMATVs and bulk buyers that it does business with actually qualified  xas members of a group formed for the express purpose of representing their interests in order to secure  xbetter rates and terms from programming vendors. Instead, WSNet asserts that all its clients need to do  xin order to become a WSNet member is to enter into a contract with WSNet to purchase the programming  S'that WSNet obtains from vendors.n ~ yOx' x ԍTCI and SSI refer to the National Rural Telecommunications Cooperative ("NRTC") as an example of a buying  x group. TCI and SSI note that, unlike WSNet, NRTC requires entities interested in becoming a member of its group  xD to complete an application, provide detailed corporate information, and pay an application fee. TCI and SSI note  xo that membership is limited to rural phone cooperatives, electric utility cooperatives, and certain telephone companies  x which meet specified qualifications. Joint Surreply of TCI and SSI at 1011. In addition, TCI and SSI note that  x the Commission previously referred to WSNet not as a buying group, but as a "program packager" that contracts with  {O( ' x program providers and then resells these services to SMATVs. Joint Surreply of TCI and SSI at 12, citing Annual  {O ' xH Assessment of the Status of Competition in Markets for the Delivery of Video Programming, Fourth Annual Report, 13 FCC Rcd 1034, 1089 (1998).   S' e 30.` ` According to WSNet, the only express requirement for anyone to become a "member" of  xa buying group is to agree to uniform billing and standardized contract provisions with the buying  Sp' xgroup.:op~ yO'ԍWSNet Reply at 16.: WSNet contends that members then decide for themselves the terms and conditions under which  xthey join a group and the members decide how the buying group best represents their interests in dealing  S ' xwith programmers.1p , ~ {O'ԍId.1 Thus, it appears that WSNet conducts business as any programmer or wholesaler  xtis likely to do, so that although WSNet may begin with a standard form of agreement it then negotiates  xtcontractual terms and conditions, as well as price. While we believe that entering into a contract with  xan entity such as WSNet in order for various SMATVs and bulk buyers to obtain programming constitutes  xa legitimate business practice, we do not believe that entering into such a commercial transaction to  x purchase programming then, in turn, constitutes "membership" in a buying group for purposes of the  x7program access rules. We therefore find that because WSNet is neither an MVPD nor a buying group or  xVagent for MVPDs, it has no standing to file the instant program access complaint. Because we are  xdeciding this matter on procedural grounds, we find that there is no need to reach the merits of this proceeding.   Sh'  S'ԙVI.ORDERING CLAUSES  S' e 31.` ` Accordingly, IT IS ORDERED that the program access complaint filed by World Satellite  xNetwork, Inc. against TeleCommunications, Inc., Satellite Services, Inc. and Netlink USA d/b/a Netlink  S`'International IS DISMISSED WITH PREJUDICE.  S' e W32.` ` This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated  S'by Section 0.321 of the Commission's rules.=q~ yOP'ԍ47 C.F.R.  0.321.= ` `  hhCFEDERAL COMMUNICATIONS COMMISSION  'oV   'oV  ` `  hhCDeborah A. Lathen ` `  hhCChief, Cable Services Bureau