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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of:                  )    
                              )  
RCN TELECOM SERVICES OF       )         
NEW YORK, INC.                )  
                              )  
     Complainant,                  )
                              )  
v.                            )  
                              )    
CABLEVISION SYSTEMS CORPORATION,        )         
MADISON SQUARE GARDEN         ) 
  NETWORK, INC. and            )             
FOX SPORTS NET - NEW YORK      )        
                              )  
     Defendants;               )        File Nos. CSR 99-5404-P and CSR 99-5415-P
                              )
MICROWAVE SATELLITE           )
TECHNOLOGIES, INC.            )
                              )  
     Complainant,              ) 
                              )
v.                            )  
                              )
CABLEVISION SYSTEMS CORPORATION,        )
RAINBOW MEDIA HOLDINGS, INC.,           )
MADISON SQUARE GARDEN         )
  NETWORK, INC. and           )              
FOX SPORTS NET - NEW YORK      )             
                              )  
     Defendants.               )


                  MEMORANDUM OPINION AND ORDER

   Adopted:  October 6, 1999            Released:  October 7, 1999

By the Deputy Chief, Cable Services Bureau:


I.   INTRODUCTION

     1.   RCN Telecom Services of New York, Inc. ("RCN") and Microwave Satellite Technologies,
Inc. ("MST") (together referred to as "Complainants") filed separate program access complaints (the
"Complaints") against Cablevision Systems Corporation ("Cablevision"), Madison Square Garden Network,
Inc. ("MSG"), Fox Sports Net - New York ("Fox Sports/NY"), and Rainbow Media Holdings, Inc.
("Rainbow") (collectively referred to as "Defendants").  Complainants allege that Defendants have violated
Sections 628(b) and (c) of the Communications Act of 1934, as amended ("Communications Act"), and
Sections 76.1001, 76.1002(a), 76.1002(b), and 76.1002(c) of the Commission's rules, by engaging in
discrimination and unfair practices in conjunction with the distribution of terrestrial and satellite cable
programming.  Because RCN and MST's complaints are based upon identical facts and raise the same legal
issues, we have consolidated the above-captioned proceedings.  

II.  BACKGROUND

     2.   Congress enacted the Cable Television Consumer Protection and Competition Act of 1992
("1992 Cable Act") to promote competition, with the view that regulation would be transitional until the video
programming distribution market becomes competitive.  In enacting the program access provisions, codified
in Section 628 of the Communications Act ("Section 628"), Congress sought to minimize the incentive and
ability of vertically integrated programming suppliers to favor affiliated cable operators over nonaffiliated cable
operators or other multichannel video programming distributors ("MVPDs") in the sale of satellite cable and
satellite broadcast programming.

     3.   Section 628(b) of the Communications Act states that:

          [i]t shall be unlawful for a cable operator, a satellite cable programming vendor in which a
     cable operator has an attributable interest, or a satellite broadcast programming vendor 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  programming
     to subscribers or consumers.

In Section 628(c), Congress instructed the Commission to promulgate regulations that:

          (A) establish effective safeguards to prevent a cable operator which has an attributable
     interest in a satellite cable programming vendor or a satellite broadcast programming vendor
     from unduly or improperly influencing the decision of such vendor to sell, or the prices, terms,
     and conditions of sale of, satellite cable programming or satellite broadcast programming to
     any unaffiliated multichannel video programming distributor; [and]

          (B) prohibit discrimination by a satellite cable programming vendor in which a cable operator
     has an attributable interest or by a satellite broadcast programming vendor in the prices,
     terms, and conditions of sale or delivery of satellite cable programming or satellite broadcast
     programming among or between cable systems, cable operators, or other MVPDs or their
     agents or buying groups. . . .

     4.   In Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and
Competition Act of 1992:  Development of Competition and Diversity in Video Programming Distribution
and Carriage, MM Docket No. 92-265, First Report and Order ("Program Access Report and Order"), the
Commission concluded that non-price discrimination is included within the prohibition against discrimination
set forth in Section 628(c)(2)(B).  While the Commission did not attempt to identify all types of non-price
discrimination that could occur, the Commission stated that "one form of non-price discrimination could occur
through a vendor's 'unreasonable refusal to sell', or refusing to initiate discussions with a particular distributor
when the vendor has sold its programming to that distributor's competitor."  The Commission cautioned,
however that "'unreasonable' refusals to sell" should be distinguished from "certain legitimate reasons that could
prevent a contract between a vendor and a particular distributor."  Such legitimate reasons would include:

          (i) the possibility of [the] parties reaching an impasse on particular terms, (ii) the distributor's
     history of defaulting on other programming contracts, or (iii) the vendor's preference not to
     sell a program package in a particular area for reasons unrelated to an existing exclusive
     arrangement or a specific distributor.

III. THE FACTS
     
     5.   RCN operates an open video system in New York City pursuant to a certification issued by
the Commission and pursuant to RCN's open video system agreement with the city.  RCN offers MVPD service
over its system to approximately 50,000 subscribers in Manhattan, Queens, and the Bronx.  MST is a private
cable operator offering MVPD service to subscribers throughout the New York metropolitan area.

     6.   Cablevision is a multiple system operator ("MSO") that owns and operates cable systems in
various parts of the country including New York City.  Cablevision currently provides MVPD service to
approximately 2.7 million subscribers in the New York metropolitan area.  Cablevision owns a majority
interest in Rainbow, a programming and entertainment company, which in turn owns a controlling interest in
the entity which ultimately owns and controls MSG and Fox Sports/NY.  MSG and Fox Sports/NY are
satellite-delivered programming services operating in the New York metropolitan market which provide
subscribers with telecasts of numerous New York professional major league sport contests as well as local
collegiate and amateur sporting events.  MSG and Fox Sports/NY own the rights to televise games played
by the Knicks and the Nets (teams of the National Basketball Association), the Rangers, Islanders and Devils
(teams of the National Hockey League), and the Yankees and the Mets (Major League Baseball teams). 
Because MSG and Fox Sports/NY distribute their programming through satellite technology, it is considered
"satellite cable programming" subject to the program access rules.

     7.   Since the late 1980's, MST has distributed the programming services now known as MSG and
Fox Sports/NY to its subscribers in the New York metropolitan area.  RCN and its predecessors have
distributed these programming services in the New York area since the early 1990's.  Due to the large number
of professional sports teams in the New York area, it is often the case that a number of the teams are playing
simultaneously.  In the past when this occurred, Defendants often provided "overflow" games to distributors
of MSG and Fox Sports/NY, including Complainants.  MSG and Fox Sports/NY would each produce a
primary game for distribution as part of their regular service and produce certain of the games on a secondary
or overflow basis as well.  Distributors typically would clear channel capacity elsewhere on their systems in
order to telecast these overflow games.  Under their contracts with MSG and Fox Sports/NY, distributors
usually were required only to use "reasonable" or "best" efforts in order to make capacity available for the
overflow programming.  Neither MSG nor Fox Sports/NY ever established a body of sports programming
specifically designated as "overflow programming."  Rather, the foregoing process operated in an ad hoc
manner and depended upon when and what conflicts occurred.  According to Defendants, the ad hoc nature
of this process and inconsistent channel placement had a negative impact on ratings for the games and on the
advertising revenue generated by the games.

     8.   On August 5, 1998, Rainbow launched a new programming service tailored for the New York
metropolitan market called the MetroChannels.  Rainbow distributes the MetroChannels terrestrially using
Cablevision's fiber optic transport network connecting various headends serving the metropolitan area.  The
MetroChannels consist of three services: MetroGuide, MetroLearning, and MetroTraffic and Weather.  The
MetroChannels provide a variety of local programming content including cultural events, educational services,
and sports programming, much of which is original and has not appeared before on any other programming
service.  In January of 1999, MSG and Fox Sports/NY began to use MetroGuide as an outlet for the overflow
games previously distributed through the independent distributors of MSG and Fox Sports/NY in the manner
described above.  In addition, MSG and Fox Sports/NY moved a portion of the overflow programming to
local broadcast stations.  

     9.   In meetings and through written correspondence, RCN and MTS attempted without success
to negotiate with Defendants for the right to carry the overflow programming Defendants now distribute via
the MetroChannels.  RCN and MTS did not seek carriage rights for the MetroChannels service as a whole. 
In letters to Complainants, counsel for the MetroChannels asserted that the MetroChannels are a terrestrially-
delivered service and that the programming contained on the MetroChannels is not subject to the program
access rules.  Counsel stated that Defendants will not extend carriage rights to Complainants for any of the
programming on the MetroChannels.  After providing Defendants with the requisite notice of their intent to
file a program access complaint, Complainants initiated these proceedings alleging that the refusal to license
Complainants to carry the sports programming previously distributed via MSG and Fox Sports/NY as overflow
programming violates the program access provisions of the Communications Act. 

IV.  THE PLEADINGS

     10.  Complainants allege that Defendants' refusal to negotiate carriage of the overflow
programming constitutes an impermissible refusal to sell prohibited by Section 628(c)(2)(B).  RCN argues
that if this programming were transmitted by satellite, Defendants' refusal to sell would constitute an
impermissible form of non-price discrimination.  RCN maintains that Defendants have shifted the programming
to terrestrial distribution via the MetroChannels in order to evade application of the program access rules and
that the Commission has authority under a combination of Sections 4(i) and 303(r) of the Communications Act
to prohibit such evasions.  Sections 4(i) and 303(r), RCN argues, empower the Commission to adopt ancillary
measures that extend beyond narrow statutory mandates when necessary to implement the Act and further its
goals.  RCN contends that the purpose of Section 628 is to promote competition and diversity in the
multichannel video programming market.  RCN asserts that while Section 628 addresses only satellite
programming, movement of satellite programming to terrestrial distribution in order to evade the program
access rules frustrates its pro-competitive goals and that the Commission can act pursuant to Sections 4(i) and
303(r) to restrict such activity.  RCN argues that nothing in the language of Section 628 or its legislative
history prohibits such an assertion of jurisdiction over satellite programming recently shifted to terrestrial
distribution with an evasive intent.
          
     11.  Complainants reference two recent decisions of the Cable Services Bureau (the "Bureau")
denying program access complaints involving similar facts and based upon similar arguments regarding
extension of the Commission's jurisdiction to prohibit possible evasions of the program access rules through
transition to terrestrial delivery.  To the extent the Bureau held in DIRECTV v. Comcast or EchoStar v.
Comcast that it does not have such jurisdiction pursuant to Sections 4(i) and 303(r), RCN asks the Bureau to
overrule or distinguish its decisions in those cases.  Complainants also argue that the facts of DIRECTV and
EchoStar are distinguishable from those underlying their respective complaints.  In this regard, Complainants
state that they previously carried all of the overflow programming at issue, whereas the complainant in
DIRECTV carried only a portion of the disputed programming and in EchoStar the complainant did not carry
any of the programming at issue.  Complainants also contend that their cases are distinguishable because in
this case the ownership of the rights to televise the sports contests involved has remained at all relevant times
with Defendants, whereas in DIRECTV and EchoStar the parties undertook the shift to terrestrial distribution
only after acquisition of the distribution rights from an unaffiliated third party.

     12.  Complainants further argue that Defendants' refusal to negotiate for carriage of the overflow
programming while offering it to other MVPDs as part of the MetroChannels constitutes an unfair practice
under Section 628(b).  RCN maintains that the statutory prohibition contained in Section 628(b) is broader than
the specific prohibitions on discrimination in Section 628(c), arguing that the only requirement for triggering
the prohibition in Section 628(b) is that the unfair conduct in question prevents an MVPD "from providing
satellite cable programming or satellite broadcast programming to subscribers or consumers."  RCN argues
that the status of the contested programming itself as "satellite cable programming" is irrelevant as long as a
party can show it has been harmed in its general ability to provide satellite cable programming.  RCN and
MST assert that Defendants' refusal to license them to carry the disputed programming hinders their provision
of satellite programming and their ability to compete in the New York market, thus resulting in a violation of
Section 628(b).  

     13.  Finally, Complainants maintain that Defendants' movement of the overflow programming and
refusal to license Complainants to carry the programming constitutes the imposition of an exclusivity agreement
against Complainants in the New York metropolitan area in violation of Section 628(c)(2)(D) of the
Communications Act and Sections 76.1002(c)(4) and (c)(5) of the Commission's rules.  Complainants assert
that Defendants have not obtained a Commission determination that this exclusive arrangement serves the
public interest or obtained prior approval from the Commission for the arrangement.  Complainants argue that
Defendants' failure to do so violates the foregoing provisions which prohibit certain exclusive contracts for
satellite cable programming or satellite broadcast programming without Commission approval.

     14.  In their Answers, Defendants argue that the Commission is granted only limited authority to
adjudicate disputes regarding access to satellite cable programming, defined as "video programming which is
transmitted via satellite."  Defendants assert that their conduct does not violate Sections 628(b) or 628(c)
since the MetroChannels, and the overflow programming now incorporated therein, are terrestrially-delivered
and do not constitute satellite cable programming.  Defendants cite Congress' use of the phrase "satellite cable
programming" as evidence that Congress intended to limit application of the program access rules to satellite
programming.  Defendants argue that the legislative history reveals that Congress considered and rejected the
idea that the program access rules apply to terrestrially-delivered programming.  Defendants argue that the
Commission's ancillary authority set forth in Sections 4(i) and 303(r) cannot serve as a basis for the
Commission to apply the program access provisions to terrestrially-delivered programming given that Congress
expressly limited these provisions to satellite-delivered programming.  Defendants reason that if the
Commission were to extend application of the statute to terrestrial programming, despite the clear language
of the statute, it would violate well established principles of statutory construction. 
     
     15.  Defendants argue that DIRECTV and EchoStar are controlling and that Complainants have
failed to distinguish these decisions.  Defendants assert that like Complainants here, the complainant in
DIRECTV had previously carried the programming at issue and that this fact was not a basis for the Bureau's
refusal to apply the program access rules in that case.  Defendants also reject Complainants' other proffered
distinction of DIRECTV and EchoStar which was based upon the fact that in this case Defendants held the
distribution rights to the programming at issue prior to the transition to terrestrial delivery.  Defendants argue
that while the transfer of distribution rights in conjunction with the move to terrestrial delivery may have been
considered as one factor in the DIRECT TV and EchoStar decisions, it was not central to the analysis. 
Defendants maintain that the MetroChannels are clearly a new service regardless of the continuity in ownership
of the distribution rights to certain of the programming carried on this service.  
     
     16.  Defendants reject Complainants' argument that the Commission has authority under Sections
4(i) or 303(r) or Section 628 itself to police evasions of the program access rules and argue that no such
evasion can be found on these facts in any event.  Defendants deny the allegation that they incorporated the
overflow programming into the terrestrially-delivered MetroChannels in order to evade the program access
rules.  According to Defendants, they have expended significant resources in developing the MetroChannels
as a ground-breaking new "hyper-local" programming service with extensive content in the areas of news,
entertainment, and sports.  Defendants argue that the inclusion of such a small amount of content previously
transmitted via satellite cannot be considered credible evidence of evasive conduct.  Defendants explain that
adoption of terrestrial distribution for the MetroChannels was a rational and legitimate business decision based
on a determination that terrestrial distribution would be significantly less expensive than satellite distribution
and better suited for the type of programming and interactive services that will be included.  Defendants assert
that because they had access to Cablevision's pre-existing terrestrial infrastructure, terrestrial distribution was
the most economical option.  Defendants also state that because the MetroChannels are a regional service,
there is no reason to incur the higher costs associated with satellite distribution.
 
     17.  Defendants further assert that Complainants have failed to state a claim under Section 628(b). 
As an initial matter, Defendants argue that the terrestrial programming at issue is beyond the scope of Section
628(b), which they argue applies only to programming delivered via satellite.  Defendants next assert that the
decision to move this programming to terrestrial delivery is permitted under the law and is not an unfair
practice.  Defendants also maintain that their refusal to sell the overflow programming is not an unfair
practice since no other MVPD can purchase this programming separately as Complainants desire. 
Defendants further argue that Complainants fail to state a Section 628(b) claim because they cannot
demonstrate a purpose on the part of Defendants to cause the requisite harm or make a showing of the harm
itself.  As discussed above, Defendants contend that they made the decision to transition the programming
to terrestrial delivery for legitimate business reasons and not for any prohibited purpose.  Defendants also
assert that Complainants have presented no evidence demonstrating that their inability to distribute the overflow
programming has hindered their competitive position in the New York market.

     18.  Defendants maintain that Complainants' request for only the overflow programming now
incorporated into the MetroChannels, rather than the entire MetroChannels service, is not cognizable under
Section 628.  Defendants argue that the relevant legislative history and the structure of the program access
rules indicate that they govern access to integrated programming services and not to the specific programs that
make up such services.  In response, RCN references other portions of the legislative history and argues that
the program access rules can apply on a program-specific basis.  RCN also states that not only have
Defendants refused to negotiate carriage of the overflow programming by itself, they also have refused to
negotiate carriage of the complete MetroChannels programming package.  

     19.  Lastly, Defendants argue that their conduct does not violate the restrictions on exclusive
contracts contained in Section 628(c)(2)(D).  Defendants argue that this provision by its terms applies only to
contracts for programming delivered via satellite and that the terrestrial programming in dispute is not covered
by Section 628(c)(2)(D).
               
V.   DISCUSSION
     
     20.  The central legal issues underlying the Complaints are essentially the same as those involved
in DIRECTV and EchoStar.  We therefore rely substantially on the analysis set forth in those decisions in
resolving the Complaints.  The primary issues disputed in this proceeding are as follows:      
     
          (1) Does the Commission have the authority to take action against evasions of the program access rules
     involving terrestrially-delivered programming and, if so, is Defendants' conduct actionable as an
     evasion of Section 628(c)(2)(B)?
     
          (2) Does Defendants' conduct involve unfair or anti-competitive action the purpose or effect of which
     is to hinder Complainants' distribution of "satellite cable programming" in violation of Section 628(b)?
     
     (3) Does Defendants' conduct violate the restrictions on exclusive contracts contained in Section 
     628(c)(2)(D)? 

     21.  Section 628 is generally understood to be a mechanism for ensuring that MVPDs that are
competing with traditional cable television systems are not deprived, through exclusive contracts,
discriminatory pricing, or otherwise, of access to vertically integrated "satellite cable programming."   Section
628(c)(2)(B) prohibits a "satellite cable programming vendor" in which a cable operator has an attributable
interest from engaging in discrimination in the prices, terms or conditions of the sale or delivery of satellite
cable programming to competing MVPDs.  

     22.  Complainants do not argue that the overflow programming is in fact "satellite cable
programming."  Rather, they assert that Defendants' movement of this programming from satellite to
terrestrial delivery constitutes an attempt to evade Section 628(c)(2)(B), and that the Commission can act to
prevent such conduct pursuant to the ancillary authority granted in Sections 4(i) and 303(r) or the general
jurisdiction of Section 628.  Assuming for the sake of argument that the Commission has the authority to act
against evasions in some circumstances (an issue the Commission has considered elsewhere), we are not
persuaded here that the totality of the circumstances demonstrates an intent to evade our rules.  Because we
conclude that evasive conduct is not present, we do not address Complainants' arguments under Sections 4(i),
303(r) and 628.

     23.  We find that Defendants have provided convincing evidence that their decision to move the
sports programming previously distributed on an overflow basis via MSG and Fox Sports/NY to the
MetroChannels, as well as their decision to distribute the MetroChannels terrestrially, were based upon
legitimate business and marketing considerations.  Defendants have invested substantial resources in developing
the MetroChannels as a new "hyper-local" service tailored to the interests of specific communities and offering
a wide range of original news, entertainment, and sports content.  The sports programming at issue is only a
small part of the programming offered on the MetroChannels.  Defendants articulate a clear, marketing-based
rationale for including the overflow sports programming as part of the "electronic newspaper" design upon
which the MetroChannels are based.  Defendants also detailed the practical difficulties in the previous overflow
method of distribution which they sought to eliminate by transferring the programming to the MetroChannels. 
Significantly, the overflow programming was never a separate programming service offered by the Defendants. 
Moreover, the fact that the migrated programming represents only a small amount of the sports programming
for the New York area, the majority of which remains available to Complainants via MSG, Fox Sports/NY
and other outlets, is evidence that an evasive intent was not involved.  Finally, Defendants provided
substantial evidence that terrestrial distribution of the MetroChannels is dramatically less expensive and more
technically appropriate for this type of locally-oriented service than satellite distribution.  In light of the
foregoing, we cannot conclude that evasive conduct is involved. 

     24.  Complainants also argue that Defendants' conduct violates Section 628(b) of the
Communications Act.  This provision reads as follows:

          It shall be unlawful for a cable operator, a satellite cable programming vendor in which a
     cable operator has an attributable interest, or a satellite broadcast programming vendor 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 programming to
     subscribers or consumers.

Complainants assert that Section 628(b) has broad applicability and does not require that the unfair practices
in question hinder the distribution of satellite programming directly.  Complainants assert that Defendants'
unfair denial of the terrestrially-delivered overflow programming violates Section 628(b) because without this
programming in their line up, Complainants' satellite-delivered programming is less appealing to subscribers.

     25.  We are not persuaded that the facts alleged are sufficient to establish a Section 628(b)
violation.  In order to find a violation of Section 628(b), the Commission must make two independent
determinations.  First, the Commission must determine that the defendant has engaged in unfair methods of
competition or unfair or deceptive acts or practices.  Second, the Commission must determine that the unfair
acts or practices, if found, had the purpose or effect of hindering significantly or preventing an MVPD from
providing satellite cable programming to subscribers or consumers.  Here, we do not believe that the record
supports a conclusion that Defendants have engaged in unfair or deceptive acts in transferring the overflow
programming to the MetroChannels.  In enacting Section 628, Congress determined that while cable operators
generally must make available to competing MVPDs vertically-integrated programming that is satellite-
delivered, they do not have a similar obligation with respect to programming that is terrestrially-delivered. 
Complainants' argument would have us find that it is somehow unfair for a cable operator to move a
programming service from satellite delivery to terrestrial delivery if it means that a competing MVPD may no
longer be afforded access to the service.  We find no evidence in Section 628 that Congress intended such a
result.  Congress did not prohibit cable operators from delivering any particular type of service terrestrially,
did not prohibit cable operators from moving any particular service from satellite to terrestrial delivery, and
did not provide that program access obligations remain with a programming service that has been so moved. 
Thus, given our prior finding that Defendants' actions do not amount to an attempt to evade our rules, we
decline to find that, standing alone, Defendants' decision to deliver the overflow programming terrestrially via
the MetroChannels and to deny that programming to Complainants is "unfair" under Section 628(b). 

     26.  Complainants' final argument is that Defendants' conduct constitutes the imposition of an
exclusive agreement for which Defendants have not obtained the prior approval and public interest
determination required under Section 628(c)(2)(D) and  the Commission's implementing rules.  Section
628(c)(2)(D) applies to certain exclusive contracts for "satellite cable programming or satellite broadcast
programming."  As we stated in DIRECTV and EchoStar:    

          We believe that the correct reading of Section 628(c) is that the provisions in question apply
     to satellite cable programming, not programming that was "previously"  satellite-delivered,
     or the "equivalent" of satellite cable programming, or programming that would qualify as
     satellite cable programming, but for its terrestrial delivery.  The statute defines "satellite cable
     programming" as that which is transmitted via satellite.  This reading is consistent with the
     legislative history of Section 628 which indicates that the version of the program access
     provision that the Senate adopted would have extended to terrestrially-delivered programming
     services but the House bill, that was eventually adopted, did not.  This indicates a specific
     intention to limit the scope of the provision to satellite services.

As with Complainants' Section 628(b) argument, Complainants' prohibited exclusive contract argument
presupposes that Defendants' movement of the overflow games from satellite delivery to terrestrial delivery
constitutes improper conduct requiring the treatment of the programming at issue as satellite delivered
programming subject to the program access rules.  To the contrary, we find that the record supports a
conclusion that Defendants have not engaged in unfair or deceptive acts in transferring the overflow
programming to the MetroChannels.  Accordingly, because the programming at issue is terrestrially-delivered
it does not constitute satellite cable programming.  We therefore must deny Complainants' Section 628(c)(2)(D)
claim. 

     27.  Lastly, in its complaint, RCN requested discovery in order to explore the motivation for
Defendants' conduct in conjunction with its evasion claims.  Section 76.1003(g) of the Commission's rules
provides that Commission staff have discretion to order discovery in program access disputes if they believe
the record is insufficient.  We believe the pleadings and supporting affidavits submitted in these proceedings
provide sufficient detail regarding the creation of the MetroChannels and the decision to distribute this service
terrestrially, as well as the decision to shift distribution of the overflow programming to the MetroChannels. 
We do not believe that discovery is necessary to supplement the record and deny RCN's petition for discovery.

VI.  ORDERING CLAUSES

     28.  Accordingly, IT IS ORDERED, that the complaints filed in CSR 99-5404-P by RCN
Telecom Services of New York, Inc. and in CSR 99-5415-P by Microwave Satellite Technologies, Inc. ARE
DENIED.

     29.  IT IS FURTHER ORDERED, that the Petition for Discovery filed by RCN Telecom
Services of New York, Inc. as part of its complaint in CSR 99-5404-P IS DENIED.

     30.  This action is taken pursuant to authority delegated by Section 0.321 of the Commission's
rules, 47 C.F.R.  0.321.
     

                         FEDERAL COMMUNICATIONS COMMISSION

     
                         
                         
                         William H. Johnson
                         Deputy Chief, Cable Services Bureau