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A. 1. a. 1.(a)(i)(1)TCpp%2,SANB!JPC!kQDRDepo summaryFormats for deposition summariesA4k xX % '  %y Bh(#Upper landcodes for landscaped, upper binB 3'3'Standard'3 UPPER BIN'3 UPPER BIN%* HP L" S Lower landcodes for landscaped, lower binC 3'3'Standard'3 LOWER BIN'3 LOWER BINcodes for landscaped, upperS Fine printsmall print codes for end blocksD$ $L H|@;  x  @U; 2ZXE^SF!TG!VH!9WEnvelopeCodes for envelope formattingEA 3'3'Standard,,EnvelopeII DHPLAIID.PRS.  `   hh Lower legalLower bin legal-sized paperFM 3'3'StandardA' LOWER BINƠA' LOWER BINCodes for envelope formatti5R Upper legalUpper bin legal-sized paperG[ 3'3'StandardA' UPPER BINƠA' UPPER BINLower bin legal-sized paper5R Upr lgl landUpper legal-sized landscapedH3 3'3'Standard'A UPPER BIN'A UPPER BINUpper bin legal-sized paper0S 2]I!XJ!YK!ZL![Lwr lgl landLower legal-sized landscapedI< 3'3'Standard'A LOWER BIN'A LOWER BINUpper legal-sized landscape0S UPPERUpper Bin CodeJ 3'3'Standard3' UPPER BIN3' UPPER BIN8F LOWERLower Bin CodeKhZ 3'3'Standard3' LOWER BIN3' LOWER BINUpper Bin Code8F LetterheadLetterheadLO 3'3'Standard3' LOWER BIN3' LOWER BIN8F 2_MXB]Np]Op ^Pz^MDouble Sp.N pwqw Single Sp.O 0w1w Major TitleP$$ D4p}P;X$  D4p}P;X$ 2aQL_Rr@`Ss`T[%aquoteDouble indented, single spaced, CG11Q_3ҟ R(# #&m P7#{&P##Xw P7[hXP#a2PMOUTLRa1PMOUTLwithout roman numerialsSِI.a4wpmATkA. 2pcUsaVs%bWsbXe ca1wpmAUgl1.a2wpmAV&la.a3wpmAWgFli.Heading 2Underlined Heading Flush LeftX14 2+kYcZ"dKdKgHeading 1Centered Headingcal StyleY 4G Y * à  Bullet ListIndented Bullet ListZ*M0 Y XX` ` (#` "i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd0 N X!3ԍ LECs' Comments at 12.> In footnote  W 19, they assert that Section 653 only requires them to carry "video programming providers," not  W HMVPDs, which are explicitly defined by Section 602 of the Cable Act, and therefore, the LECs" 0*((m"  X3 W assert, somehow not assured carriage.DN Xy3ԍ LECs' Comments at 12, n.19.D This, they assert, along with the statement in Section  W 653(b)(1)(B) that Congress did not intend "to limit the number of channels that the carrier and  W its affiliates may offer to provide directly to subscribers," provides OVS operators "wide latitude  Xv3 W to design programming packages and assign use of channels on the system."AvyN X 3ԍ LECs' Comments at 1213.A Further, the LECs  XH3assert these provisions provide for "sharing of editorial control over the system. . . ."DH*N X# 3ԍ LECs' Comments at 12, n.19.D  mp` ` Of course, the LECs are incorrect. The use of the term "video programming  X 3 W providers" rather than "MVPDs" does not exclude MVPDs. MVPDs are video programming  W providers. MVPDs simply provide multiple channels of video programming. Indeed, the LECs'  W comments themselves demonstrate the fallacy of their argument. In their comments, the LECs  W point to Section 653's permission for operators to "carry on only one channel any video  W 7programming service that is offered by more than one video programming provider" as support  X3 W for their control over the capacity of the system.>N Xd3ԍ LECs' Comments at 13.> While that Section does not provide for LECs  X3 W to control the content of their systems' capacity,#_N X 3 W Ѝ Allowing OVS operators some small measure of control over the efficient use of their  W jsystems' capacity does not indicate congressional intent to provide OVS operators total control  W Yover their systems' content or even capacity. Indeed, if the 1996 Act provided for such control  X#3 W Kby the OVS operator, then a statement specifically allowing channel sharing would be  W unnecessary and meaningless. The Commission must interpret the Act so as to give every  W kprovision meaning. The channel sharing Section is an exception to the general prohibition on OVS operators controlling content and capacity, not a grant of broad control.# the provision does demonstrate that Congress" 0*((n "  W foresaw the carriage of MVPDs on OVSs. If there were no providers of multiple channels of  X3 W programming (i.e., MVPDs), there would be no "video programming service . . . offered by more  W than one video programming provider," as each video programming provider would only have  Xv3one channel. vN X3 W Ѝ Theoretically, it would be possible in a scheme were only video programming providers  W offering one channel of programming were allowed on the systems, for several of those  X 3 W programmers to have contracted to provide the same channel of programming (e.g., ESPN). It  W 7would be economically absurd, however, to believe that all of those programmers were going to  W Ycompete for subscribers using the same channel " shared or not. Indeed, that assumes that the  W individual programming providers will have direct relationships with subscribers. If, as the LECs  W kassert, the individual programming providers will only deal with the OVS operator, who will  W provide them "carriage" (in the same manner a cable operator carries a channel), it is even less likely that the LEC would engage several providers offering the same schedule of programming.  pKpThe LECs' thinly veiled attempt to manipulate OVS into an unfranchised, unregulated cable system disintegrates quickly when subjected to minimal scrutiny. " X 3 m"p B.` ` The LECs Have Already Exposed Their Intention To "Close" Their OVSs If The  X 3Commission's Regulations Are Not Strong Enough (#`  m<p` ` The more troubling matter raised by the LECs' comments is their conception of  W an open video system. From their focus on the terms "video programming providers" and "select  W {video programming," it is clear the LECs conceive of a system that is not at all open. Under the  W LECs' interpretation, an OVS would involve the LEC OVS operator "sign[ing] up video  X3 W programming providers . . .">| N XJ!3ԍ LECs' Comments at 14.> and then "assign[ing] programming to analog or digital channels  X3 W as they deem necessary to provide marketable, competitive programming packages."A-N X$3ԍ LECs' Comments at 1819.A "Video  W 'programming providers," under the LECs conception, apparently would be entities, such as" 0*((M"  W ESPN, HBO, or broadcast networks, who would "select" the programming to be carried on their  X3 W channel (i.e., "select" to show a particular movie from 8pm to 10pm).N XK3ԍ The LECs assert that Section 653 "merely requires that multiple video programming providers be permitted to 'select' video programming for carriage on the system." The LEC OVS operator  X3 W would then "share" editorial control over the systemDbN X3ԍ LECs' Comments at 12, n.19.D by deciding to which channel the  W kprogramming would be assigned and by bundling multiple channels together. Such activities,  W jhowever, are precisely what traditional cable operators do. The LECs are proposing to exercise  X 3the editorial control of cable operators, but without the same regulatory burdens._ N X3 W Ѝ The LECs' are similarly inaccurate when they assert that "unless the open video system  W itself can be a viable competitor, there will be neither intersystem competition nor intrasystem  W competition." LECs' Comments at 13. OVS is not necessary for the advancement of inter W system competition. Initially, intersystem competition already exists between cable operators,  W SMATV operators, and wireless providers, such as DBS. The LECs, however, could provide  Xk3 W jfurther intersystem competition by choosing to construct competing cable systems rather than an OVSs.  mrp` ` The LECs' comments on specific issues further demonstrate that if the  W ZCommission's regulations provide too much "flexibility," the LECs will simply operate their systems like closed cable systems, but without the added regulatory burdens.  X3p` ` 1. LECs Must Be Prohibited From Packaging Channels (#  m;p` ` In their Comments, the LECs assert that OVS operators must be allowed to assign  X3 W channels to provide competitive packages of programming.>: N X%3ԍ LECs' Comments at 19.> This proposal is inconsistent with  W both the absolute prohibition on OVS operators discriminating among programming providers,"| 0*((l"  W Hand the limitation on OVS operators exercising editorial control over other parties programming  W that is inherent in an "open" video system. Discrimination among programmers is inherent in  W ]the choice of channel placement involved in such "packaging." Moreover, selecting  W programmers, and therefore programming, to appear on the system, and selecting where on the  W system they will appear are the editorial activities of a cable operator. While it would be proper  W for the OVS operator's programming affiliate to engage in such "discriminating", editorial  W {activities with regard to its block of channels (presumable 1/3 of the system), the system would  W lnot be "open" if the OVS operator were permitted to exercise such control over the entire compliment of channels on the system.  mp` ` The LECs contend that they must have such control to "ensure that their systems  X3 W Hoffer customers the services they expect.">N X3ԍ LECs' Comments at 11.> The problem with the LECs' assertion is that they  X3 W assume customers "expect" cable service (i.e., packages and tiers of programming offered by a  W single operator). The key to the enactment of the OVS concept, however, was to promote  W innovation in the provision of services. If the LECs merely wish to continue providing consumers what they have come to "expect," then the LECs can become cable operators. " X 3 k "p` ` 2. The Commission Cannot Adopt The "Good Faith Business Judgment"  X 3Standard For Evaluating OVS Operators' Conduct (#  mp` ` In their comments, the LECs repeatedly assert that the Commission should adopt  X!3 W jrules that allow the LECs to operate freely according to their "good faith business judgement."N!yN X%3ԍ See, e.g., LECs' Comments at 8.N "!*0*(($ "  W Such a standard for measuring the conduct of LEC OVS operators is unsupported by the statute  W 8and would place the public interest at risk. As demonstrated above, the 1996 Act explicitly  W 7requires the Commission to prescribe rules regarding certain matters. The Act does not include  W in those provisions the option for the Commission to rely on the "good faith business judgement"  W 8of OVS operators. Indeed, with regard to carriage on the system, the Act requires that OVS  W koperators be prohibited from discriminating among video programming providers. The Act's  W Hexplicit command does not leave room for OVS operators' "business judgement" as a defense to discrimination.  mp` ` Even if the Commission were authorized to adopt the "good faith business  W Gjudgement" standard, it should not do so, as it would impermissibly jeopardize the public interest.  W The "business judgement" rule has historically been applied in judging the actions of corporate  X3 W officers and directors. N XQ3ԍ R. Franklin Balotti and Jesse A. Finkelstein, The Delaware Law Of Corporations and  X:3Business Organizations,  4.6 (1988). The rule is widely recognized as extremely lenient.2!bN X3ԍ Id.2 Indeed, the rule  W 9prevents courts from examining the merits of corporate directors' decisions as long as the  W Ydirectors were "informed" and acted in "good faith" and with an "honest belief" that their action  XN3 W 'is in the best interest of the corporation.2"NN X"3ԍ Id.2 While such a lenient standard may be considered  W sufficient to protect corporate shareholders, it is insufficient to satisfy the Commission's duty to  X3 W Gprotect the public interest. Indeed, inherent in the standard is the assumption that the person was acting in the best interests of the corporation " not the public." "0*(( $"Ԍ" X3 r"ԙp C.` ` The Commission Must Not Allow OVS Capacity Allocation To Be  X3Frozen For Years x`    mp` ` In their comments, the LECs and U S West argue that to promote stability, OVS  X3 W channel allocations must be "frozen" for a set period of time.X#N X3ԍ LECs' Comments at 21; U.S. West Comments at 12.X Both the LECs and U S West  X_3 W \argue that the minimum time must be at least 3 years, and preferably 5 years.X$_yN X 3ԍ LECs' Comments at 21; U.S. West Comments at 12.X While  W jCommenters recognize that business certainty probably requires that programmers accessing an  W OVS receive assurance that they will not be forced constantly to change their allocation or reapply for channels, 3 years, and certainly 5 years, is too long to freeze OVS channel allocations.  m`p` ` The video programming market is highly competitive. New programming  W offerings are constantly being introduced, many of which fail. To such a vibrant and ever W changing market, 3 years is an eternity to wait for the opportunity to obtain carriage on an OVS.  W lYet, the LECs assert that they must be allowed to provide capacity only to programming  W providers who already have contracts to provide programming over the channels, thus effectively  X3 W Yrequiring those programmers to have multiyear affiliation contracts to obtain carriage.>%*N Xn3ԍ LECs' Comments at 24.> But, if  W the programmers and packagers on an OVS are locked into programming contracts for 3 years,  W and are unable to obtain additional channels during that time, they will be unable to offer new  X 3 W programming channels access to subscribers.& N X%3 W {Ѝ This demonstrates why the Commission must reject the LECs' assertion that they only be  W required to provide capacity to programmers with preexisting contracts to provide programming.  W LECs' Comments at 24. If programmers and packagers were required to have 3 year contracts"g'%0*(('"  W with particular programming providers before they could even request capacity, OVS capacity  W %would be unnecessarily "frozen." Moreover, requiring such longterm programming commitments  W would prevent many, if not all, programmers from seeking capacity. Of course, that is to the LECs' advantage. Such a situation would substantially harm the" 4&0*((E! "  W programming industry. In the cable leased access context, the Commission has acted to assist independent programmers. It should also do so with regard to OVS.  mLp` ` Indeed, competitive equality demands that the Commission require OVS operators  W to provide capacity on intervals as small as onehalf hour. As Commenters explained in their  W &initial comments, Congress did not explicitly impose commercial leased access requirements on  W }OVS operators because Congress recognized that "open" video systems would already be  X 3 W available to programmers on the same terms as cable commercial leased access.8' 4N X3ԍ Comments at 15.8 In recent  W orders regarding commercial leased access, the Commission has held that in order to provide a  W }genuine outlet for independent programmers, cable operators must make channel capacity  X43 W available on increments of as little as onehalf hour.(4N X3 W Ѝ Implementation of Sections of the Cable Television Consumer Protection and Competition  X3 W Act of 1992: Rate Regulation, Leased Commercial Access, Order On Reconsideration of the First  W Report and Order and Further Notice of Proposed Rulemaking, FCC 96122,  4647 (released Mar. 29, 1996) ("Leased Access Order"). The Commission held that since neither  W the Section imposing commercial leased access nor the legislative history indicated any reason  X3 W to prevent parttime access, the Commission could require such a requirement.F)Q N X"3ԍ Leased Access Order,  46.F For the same  W reasons, the Commission should impose the same requirement on OVS operators. Allowing OVS" )0*((L"  W operators to impose multiyear lease minimums will serve as an impediment to the development  X3of independent programmers, and will essentially close OVSs.*N XK3 W ZЍ If the Commission chooses not to impose halfhour increments, then it should prohibit OVS operators from requiring minimum lease periods in excess of 6 months, or at most 1 year.  Xv3 III.XpTHE COMMISSION MUST IMPOSE COST ALLOCATION AND RATE RULES (#  XH3 mp` ` As we, and other commenters,J+HbN X[ 3ԍ See NCTA Comments at 1727.J demonstrated in initial comments, the 1996 Act  W jmandates that the Commission impose regulations ensuring that the rates OVS operators charge  W ;programmers for carriage are just and reasonable, and not unjustly or unreasonably  X 3 W discriminatory.D, N X3ԍ 1996 Act  653(b)(1)(A).D Commenters demonstrated that the Commission could not satisfy that legislative  X3 W mandate by relying on "the market" or minimum take rates by unaffiliated programmers.;-N X3ԍ Comments at 2022.; In  W addition, Commenters demonstrated that the 1996 Act requires the Commission to adopt cost  X43 W allocation rules to prevent crosssubsidization of OVS by regulated telephone service revenues..4uN XZ3ԍ Comments at 21. Commenters support the cost allocation and pricing mechanisms proposed in the Comments of the National Cable Television Association and the declaration of Leland Johnson, Ph.D., attached thereto.  W iNot surprisingly, in their Comments, the LECs assert that the Commission should not impose any  X3 W rules regulating OVS carriage rates or cost allocations.U/ N X#3ԍ LEC's Comments at 22; US West Comments at 4.U The LECs' arguments are without support and should not be adopted. "| /0*(("Ԍ mp` ` The LECs' first baseless argument is that because Congress expressed an intention  W that OVS not be subject to Title IIlike regulations, the Commission cannot "promulgate detailed  X3 W 8rules governing pricing.">0N X3ԍ LECs' Comments at 22.> NCTA properly addressed this argument in its initial comments.  W NCTA pointed out that the Commission has imposed a rate regulation scheme on cable operators  XH3 W pursuant to Title VI, which is neither common carrier regulation nor Title IIlike.=1HyN Xr 3ԍ NCTA Comments at 18.= Similarly,  W {the Commission has previously regulated the rates cable operators charge entities seeking leased  X 3 W access on a commercial basis.?2 *N X3ԍ 47 C.F.R.  76.701.? The LECs' argument, therefore, is groundless. The Commission  W Hshould not allow itself to be swayed from its statutorily mandated imposition of regulations on the rates charged for carriage by baseless allusions to Title II.  mLp` ` The LECs' second argument is that OVS operators will not possess market power,  X3 W jand therefore should not be rate regulated.A3N X3ԍ LECs' Comments at 2223.A Again, NCTA properly addressed this argument in  W its initial comments. As NCTA demonstrated, Section 653 of the Act requires that rates charged  X3 W by OVS operators for carriage on the system are required to be just and reasonable.Y4N X 3ԍ NCTA Comments at 18; 1996 Act  653(b)(1)(A).Y The  W relevant inquiry, therefore, is not into OVS operators' market power with respect to enduser  W 6subscribers, but rather, the Commission must evaluate OVS operators' market power with respect  W to unaffiliated programmers seeking capacity on the OVS. In that regard, OVS operators will" = 40*(( "  W [have market power over a bottleneck facility. Initially, there will likely only be one OVS  W operator in an area. Accordingly, that operator will have monopoly market power over the  W market for carriage on OVSs. Moreover, OVS operators will have a strong incentive to dissuade  W 7unaffiliated programmers from obtaining capacity, as that will leave more capacity for the OVS  W {operator's programmeraffiliate. Accordingly, OVS operators will likely charge excessively high  W rates, to dissuade unaffiliated programmers from seeking capacity. And as we noted in our initial  W |comments, if allowed to freeze the OVS capacity for several years after the initial enrollment  W 8period, as they propose, OVS operators could potentially monopolize the capacity on their  X3 W systems for use by their affiliates.85N X 3ԍ Comments at 21.8 Or, as NCTA points out, OVS operators could impose a  W price "squeeze" by charging unaffiliated programmers excessively high carriage rates, while  X43charging enduser subscribers of its affiliate's service low rates.=64yN X^3ԍ NCTA Comments at 18.=  mp` ` The Commission cannot ignore its statutory mandate to "ensure" that rates charged  W for carriage on an OVS are just and reasonable, and not unjustly or unreasonably discriminatory.  W And as demonstrated above and in comments filed by other parties, the market will not ensure  W that such rates meet that standard. Accordingly, the Commission must adopt rules regulating the rates charged by OVS operators for carriage on their systems. "*60*(("""Ԍ" X3 p" 1IV.XpOVS OPERATORS MUST BE PROHIBITED FROM DENYING CABLE OPERATORS  X3CARRIAGE ON THEIR SYSTEMS (#   mLp` ` In their initial comments, Commenters demonstrated that Section 653 requires that  W cable operators be allowed to obtain capacity on OVSs pursuant to the same rates, terms, and  X_3 W c1onditions as any other video programming provider.7_N X3ԍ Comments at 2223. Commenters also demonstrated that cable operators must be permitted to become OVS providers. Comments at 2223. Most other comments support that  X 3position. See, e.g., LECs' Comments at 28. Other commenters similarly pointed out  W that allowing cable operators to obtain capacity on OVSs would be consistent with the 1996 Act  X 3 W zand the public interest.@8 KN X3ԍ NCTA Comments at 2731.@ In the LECs' comments, however, they assert that OVS operators should  X 3 W {be allowed to deny capacity to cable operators.9 N X3ԍ LECs' Comments at 15; see also U S West Comments at 1213. US West, like the other LECs, tries to argue that the phrase "video programming provider" is a special term that excludes cable operators from carriage. US West Comments at 13. "Video programming provider," however, is not defined by the Act. But cable operators clearly provide video programming, and thus fall within Section 653(b)(1)(A)'s protection. The LECs assert that the Commission should  W Y"presume conclusively that such refusals are reasonable. Otherwise, incumbent cable operators  Xy3will be able to interfere with the successful operation of competing open video systems.">:yQ N X{3ԍ LECs' Comments at 15.>  m p` ` The LECs' assertion is conclusory and without support, and conflicts with the  W mandates of the 1996 Act. First, a presumption of reasonableness would not insulate an OVS  W Ioperator from liability for discrimination under Section 653(b)(1)(A). As Commenters have  W repeatedly demonstrated, it is irrelevant whether an OVS operator's refusal to carry any  W lprogrammer, including a cable operator, is "reasonable." Congress chose not to allow any"e :0*((k"  W :discrimination with regard to carriage. If Congress had intended to allow "reasonable"  W kdiscrimination with regard to carriage, it would included language to that effect, as it did with  W regard to other terms. Refusing carriage to a cable operator would constitute discrimination  W against a video programming provider with respect to carriage, and would therefore be a violation of Section 653(b)(1)(A).  mp` ` Second, the allegations made by the LECs regarding the carriage of cable operators  W Zon video dialtone systems, in particular "[t]he incumbent cable operator in BellSouth's video  X3 W Hdialtone trial area," are conclusory and without support.>;N X 3ԍ LECs' Comments at 15.> The cable operator referred to in the  W LECs' comments, TeleScripps Cable Co. d/b/a North DeKalb Cable ("Scripps"), has joined the  W Commenters in submitting these reply comments, and directly addresses the unsubstantiated and untrue accusations leveled against it.  mp` ` When BellSouth obtained Commission authority to undertake a technical and  W {market trial of video dialtone facilities in DeKalb County, Georgia, Scripps, the franchised cable  W 7operator in the area, recognized an opportunity to explore new and innovative service offerings  W that it did not have capacity to provide on its own system at the time. By using the capacity  W &offered on an open video dialtone system, Scripps would be able to gain marketing information  W regarding new services and the needs of consumers, which it could then use to plan longterm  W changes in its system. In return for its desire to explore the new technologies and services, Scripps has become the object discriminatory treatment and unfounded accusations by BellSouth."h$y;0*(('"Ԍ mOԙp` ` In their comments, the LECs assert that Scripps' "presence as an enrolled  W programmer during preparation for the trial has greatly increased the difficulty of creating and  W maintaining a coalition of enrolled programmers for development of a competitive retail offering.  W Moreover, its participation has greatly complicated the provision of competitively sensitive, but  XH3 W Hessential, information to other enrolled programmers."A<HN X 3ԍ LECs' Comments at 1516.A These accusations are conclusory, and  W actually serve to demonstrate how BellSouth has attempted to manipulate its "open" video dialtone system into a packaged, tiered cable system.  mOp` ` The LECs do not say how or why Scripps' mere "presence as an enrolled  W programmer during preparation for the trial has greatly increased the difficulty of creating and  W maintaining a coalition of enrolled programmers for development of a competitive retail  W offering." Indeed, the statement exposes that BellSouth was impermissibly attempting to create  W "a coalition" of programmers. As the operator of an open video dialtone system, BellSouth is  X3 W prohibited from engaging in packaging or tiering of programming for delivery to subscribers.k=yN X3ԍ Video Dialtone Order, 7 FCC Rcd. 5789, 5817, 69 (1992). k  W The Commission should particularly question why Scripps' lease of only 6 channels would make  W 7it difficult for BellSouth to create a coalition of programmers. The reason is likely that because  W 6Scripps has its own facilities, it was not entirely dependent on BellSouth for access to consumers,  W as independent programmers would be. Accordingly, BellSouth was not able to manipulate  W Scripps to comply with its wishes to create a "coalition." The questions raised by the LECs'" *=0*(( $"  W 7statement are particularly important considering that the Commission is considering unleashing exactly such an operation without oversight or constraint.  mp` ` The LECs similarly fail to explain how or why Scripps' "participation has greatly  W \complicated the provision of competitively sensitive . . . information to other enrolled  W Gprogrammers," any more than any other programmer that plans to use the platform, would impact  W 8on the distribution of competitive material. Presumably, on an open video or video dialtone  W system, intrasystem competition between programmers would place all programmers on the  W system in competition against each other, as well as the local cable operator. Accordingly, the  W distribution of "competitively sensitive" material to the cable operator would do no greater harm  W that the material's distribution among competing programmers on the open system. Indeed, in  W ithe case of BellSouth's video dialtone system, the Commission must question what "competitively  W %sensitive" material BellSouth wished to distribute to all programmers except Scripps, and whether  W Hsuch material was distributed to all but Scripps, thus discriminating against Scripps. Under the  W |video dialtone requirements, BellSouth was required to charge rates for carriage pursuant to a  W publicly filed tariff. Accordingly, information regarding the pricing of BellSouth's capacity  W should not be "competitively sensitive," unless BellSouth was attempting to circumvent its  W obligation to utilize a tariff " which BellSouth never filed. What other "competitively sensitive"  W %material could BellSouth need to distribute? Its application showed its planned construction area,  W and the actual construction schedule is easily observed. The technological parameters of its  W system would be of no particular competitive use to a cable operator, and likely would be commonly known in technological circles. ":&=0*(()"Ԍ mԙp` ` The LECs' assertions regarding the problems raised by carriage of cable operators  W [on OVSs are without support, and indeed, raise greater issues regarding the improper and  W discriminatory conduct that can easily be applied on purportedly "open" video delivery systems.  W IThe Commission, therefore, cannot allow OVS operators to deny carriage to cable operators  W because such conduct would violate the antidiscrimination provision of Section 653(b)(1)(A).  W jMoreover, in light of the potential for and likelihood of abusive and discriminatory conduct, the  W Commission should adopt a rule explicitly prohibiting OVS operators from discriminating against cable operators with respect to carriage on open video systems.  Xb3i CONCLUSION ׃  m+p` ` Based on the foregoing and the Commenters' initial comments, the Commission  W must adopt specific rules regarding the nondiscriminatory allocation of channels on open video  W systems. The Commission must adopt rules, including cost allocation and separate subsidiary  W rules, ensuring that the rates, terms, and conditions for carriage on open video systems are just  W Yand reasonable and not unjustly or unreasonably discriminatory. The Commission must clarify  W Hthat cable operators are free to either convert their present systems into open video systems or  W to provide programming over an OVS owned by a LEC. The Commission must also adopt rules  W &imposing the provisions enumerated by Congress on open video systems on the same terms as  W Gthose provisions are imposed on cable operators. The Commission is without statutory authority  W to forbear from adopting or enforcing any of these provisions, and such forbearance would not serve the public interest. ":&=0*(()"Ԍ  p` `  hh+Respectfully Submitted, p` `  hh+___________________________ p` `  hh+John D. Seiver p` `  hh+T. Scott Thompson  Xv3 8  p` `  hh+ COLE, RAYWID & BRAVERMAN, L.L.P. p` `  hh+1919 Pennsylvania Avenue, N.W. p` `  hh+Suite 200 p` `  hh+Washington, D.C. 20006 p` `  hh+(202) 6599750   X 3p` `  hh+ ATTORNEYS FOR p` `  hh+American Cable Entertainment; p` `  hh+Bresnan Communications Co., Ltd.; p` `  hh+Greater Media, Inc.; p` `  hh+TeleScripps Cable Co. d/b/a North DeKalb Cable; p` `  hh+Cable Telecommunications Association of Georgia; p` `  hh+Cable Telecommunications Association of p` `  hh+Maryland, Delaware and the District of Columbia; p` `  hh+New Jersey Cable Telecommunications Association; p` `  hh+Ohio Cable Telecommunications Association; p` `  hh+South Carolina Cable Television Association; p` `  hh+Tennessee Cable Television Association; p` `  hh+Texas Cable & Telecommunications Association;  X3p` `  hh+Wisconsin Cable Communications Association April 11, 1996