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 P6QP.2J=.,s&J\  P6Q&Pl2N=.,&N4  pQ&0J=.,33&J*f9 xQ&X.P,%,'J,\  P6QJP.I(!,?,(\  P6Q,P{,C8*,3C*f9 xQX"5@^!)22SN!!28!2222222222888-\HCCH=7HH!'H=YHH7HC7=HH^HH=!!/2!-2-2-!222N2222!'22H22-006!!!!()!22H-H-H-H-H-YCC-=-=-=-=-!!!!H2H2H2H2H2H2H2H2H2H2H-H2H2H2H2H272H2H-H-C-C-C-=-=-=-H2H2HH2H2H2H2(2!2!!!2'H2==)H2H2H2YHC!C)7'7'N#-2!-22222KK2LL2K!!--2d!!22bd!-d!t!77778c<' xx Explanatory Statement of the Committee of Conference, Telecommunications Act of 1996, S. Rep. 104230 at 164  xk (February 1, 1996) ("The conferees do not intend that this repeal of the statutory prohibition should prejudge the  x outcome of any review by the Commission of its rules.") The 1996 Act also eliminated the prohibition on broadcast  x television networks' ownership or control of cable systems, and the Commission has amended our rule at 76 C.F.R.  {O`' x  76.501 to eliminate the prohibition in conformity therewith. See 1996 Act, Section 202(f); Order Implementing  {O*' x^ Sections 202(f), 202(i) and 301(i) of the Telecommunications Act of 1996, CS Docket No. 9556, FCC 96112, 11 FCC Rcd 15115 (1996).~ (2) Section 613(f)(1)(A), which requires the  xtCommission to establish reasonable limits on the number of cable subscribers a person is authorized to  xreach through cable systems owned by such person, or in which such person has an attributable interest  S' xI("horizontal cable ownership limits");s1 yO 'ԍCommunications Act  613(f)(1)(A), 47 U.S.C.  533(f)(1)(A).s (3) Section 613(f)(1)(B), which requires the Commission to  xestablish reasonable limits on the number of channels on a cable system that can be occupied by a video  SJ ' xprogrammer in which a cable operator has an attributable interest ("vertical occupancy limits");sJ b1 yOL'ԍCommunications Act  613(f)(1)(B), 47 U.S.C.  533(f)(1)(B).s (4)  x/Section 613(a)(2), which prohibits a cable operator from holding a license to provide multichannel  xmultipoint distribution service ("MMDS"), or from offering satellite master antennae television  x("SMATV") service separate and apart from any franchised cable service, in any portion of the franchise  xarea served by the cable operator's cable system (the "cable/MMDS" and "cable/SMATV" crossownership  S ' xrestrictions);" 1 yO%' " ԍCommunications Act  613(a)(2), 47 U.S.C.  533(a)(2) (now Communications Act  613(a), 47 U.S.C.  x  533(a)). The 1996 Act amends this provision to state that it does not apply to any cable operator in any franchise  {O&' x area in which that cable operator faces "effective competition." See 1996 Act  202(i)(6), codified at  x Communications Act  613(a)(3), 47 U.S.C.  533(a)(3), and the Commission's rules implementing this provision"n',`(`(w'" at 47 C.F.R.  21.912(e)(3), 76.501(f). (5) Section 628, which, among other things, requires the Commission to establish safeguards" X,`(`(88A "  xto prevent a cable operator with an attributable interest in a programming vendor from engaging in unfair  xor deceptive acts involving the distribution of programming to an unaffiliated multichannel video  S' xprogramming distributor ("program access" rules);$X1 {O' " ԍCommunications Act  628(b), 47 U.S.C.  548(b). See also First Report and Order, Implementation of  xk Sections 12 & 19 of the Cable Television Consumer Protection and Competition Act of 1992 Development of  {O:' x Competition and Diversity in Video Programming and Distribution and Carriage, MM Docket 92265, 8 FCC Rcd  {O' x 3359, 3370 (1993) ("Program Access Order"), recon. granted in part, Memorandum Opinion and Order on  {O' x Reconsideration of the First Report and Order, MM Docket No. 92265, 10 FCC Rcd 1902 (1994) ("Mem. Op. on  {O 'Recon. of Program Access Order").$ and (6) Section 616, which, among other things,  xrestricts the activities of cable operators and other multichannel programming distributors when dealing  xwith programming vendors, including prohibiting discrimination in the selection, terms, or conditions of  S8' xcarriage, on the basis of a vendor's affiliation or nonaffiliation ("program carriage" rules).&81 {O ' " ԍCommunications Act  616(a), 47 U.S.C.  536(a). See also Second Report and Order, Implementation  x of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act of 1992 Development  {OD' x of Video Programming Distribution and Carriage, MM Docket No. 92265, 9 FCC Rcd 2642, 264344 (1993)  {O'("Program Carriage Order").  S' xImplementation of the foregoing rules serve two goals: (1) promoting diversity; and (2) deterring  xanticompetitive practices. As discussed below, for those cable ownership rules implemented to promote  xkcompetition and diversity, the Commission adopted attribution rules from the broadcast context where the  xgoal is the same. For those rules implemented to deter specific improper practices as well as to promote competition and diversity, the Commission adopted stricter attribution standards.  S ' e 3.` ` In 1984, the Commission conducted a comprehensive rulemaking proceeding and decided  xto adopt a single attribution standard for our crossownership rules which govern the extent to which a  xsingle entity may simultaneously hold ownership interests in broadcast stations, cable television systems,  S ' x*and newspaper entities.< ( 1 {O' " ԍSee Report and Order, Amendment of the Rules concerning Attribution of Ownership of Broadcast  {O' x Licensees, MM Docket No. 8346, 97 FCC 2d 997, 1032 (1984), recon. in part, Memorandum Opinion and Order,  {O' x MM Docket No. 8346, FCC 85252, 58 RR 2d 604 (rel. June 24, 1985), further recon. granted in part,  {On'Memorandum Opinion and Order,  MM Docket No. 8346, FCC 86410, 1 FCC Rcd 802 (1986).< Although we did not perform a separate analysis of the ownership structures of  xcable systems, we were "reasonably certain" that they were not sufficiently different from broadcasting  SX' xto justify the adoption of a distinct benchmark.H X1 {O'ԍId. at 1033 n.85.H The resulting standard (the "broadcast attribution  xstandard") generally provides that partnership interests, direct ownership interests, and voting stock  xinterests of 5% or more are attributable. For passive investors, the voting stock benchmark is 10%. Non xvoting stock interests (including most "preferred" stock classes) are not attributable. There are several  x}exceptions to the voting stock threshold, including a "single majority shareholder" exception, which  xprovides that minority interests will not be attributed where a single shareholder owns more than 50% of  Sh'the outstanding voting stock. In addition, the interests of "insulated" limited partners are not attributed. hJ1 {OR&' " ԍSee 47 C.F.R.  73.3555 n.2 (an "insulated" limited partner is one certified as having "no material involvement, directly or indirectly, in the management or operation of the media activities of the partnership")."h ,`(`(88"Ԍ S' e Bԙ4.` ` In our rulemaking proceedings under the 1992 Cable Act, we determined that the  xbroadcast attribution standard still governs broad structural rules, such as the horizontal cable ownership  S' xlimitsH 1 {O' " ԍSee Second Report and Order, Implementation of Sections 11 & 13 of Cable Television Consumer  {O' x Protection and Competition Act of 1992 Horizontal and Vertical Ownership Limits, MM Docket No. 92264, 8  {O' x FCC Rcd 8565, 856869, 85778579 (1993) ("Horizontal/Vertical Ownership Order"). In the Horizontal/Vertical  {Ov' x Ownership Order, the Commission voluntarily stayed the effective date of the horizontal ownership rules pending  {O@' x final judicial resolution of the District Court decision in Daniels Cablevision, Inc. v. United States, 835 F. Supp.  {O ' x 1, 10 (D.D.C. 1993), aff'd in part, Time Warner Entertainment Co., L.P. v. FCC, 93 F.3d 957 (D.C. Cir. 1996),  {O' x which held that the underlying statute violates the First Amendment. Horizontal/Vertical Ownership Order at  3.  {O ' x In August 1996, the D.C. Circuit Court consolidated the Daniels appeal and Time Warner Entertainment Co., L.P.  {Oh ' x v. FCC, No. 941035 (D.C. Cir. 1994), a challenge to the Commission's rules. Time Warner Entertainment Co., L.  {O2 ' x P. v. FCC, 93 F.3d 957, 97980 (D.C. Cir. 1996). The D.C. Circuit determined to hold court proceedings in  {O 'abeyance while the Commission reconsidered the horizontal ownership rules. Id. H and vertical channel occupancy limits,s > 1 {O 'ԍHorizontal/Vertical Ownership Order, 8 FCC Rcd at 85938596.s that are designed to ensure competition and diversity in  xthe video marketplace. In adopting the broadcast attribution standard for our rules restricting horizontal  xand vertical ownership, we also were guided by the legislative history of the 1992 Cable Act, which  x&expressly suggested use of the broadcast attribution standard, and which directed that, along with the  x+dangers of increased concentration, we should also consider the potential benefits of increased  xconcentration e.g., increased economies of scale and increased capital investment in cable  S' xprogramming.J 1 {OX' "_ ԍSee Report of the Senate Committee on Commerce, Science and Transportation, S. Rep. No. 92, 102d  yO"' x Cong., 1st Sess. 80 (1991). Congress' intent is reflected in the 1992 Cable Act  11(f)(2), 47 U.S.C.  533(f)(2),  x< which requires the Commission to weigh both the dangers and the benefits of increased concentration in promulgating our rules. In light of these considerations, we found that a more restrictive attribution standard than the broadcast standard was not warranted for application to the structural rules.  SH ' e  5.` ` We have adopted a more restrictive attribution standard, however, for those rules designed  x}not only to promote competition and diversity, but also to deter specific discriminatory or improper  xconduct by cable operators or programmers. In contrast to the broadcast attribution standard, this more  xrestrictive standard (1) considers a cable operator to have an attributable interest if it holds 5% or more  x^of an entity's stock, whether voting or nonvoting, (2) does not apply the single majority shareholder rule, and (3) attributes limited partnership interests of 5% or more, regardless of insulation.  S0' e ~6.` ` We have adopted the more restrictive standard for our rules imposing specific behavioral  xDrestraints on cable operators and programmers, such as our rules regarding program access and program  x7carriage, both of which were designed, in part, to prevent cable operators from using their market power  S' xto engage in improper conduct. 1 {O:"' "+ ԍSee Program Access Order, 8 FCC Rcd at 337071; Program Carriage Order, 9 FCC Rcd at 2650. See  {O#'also 47 C.F.R.  76.1000(b), 76.1300(a).  In our program access rulemaking, we noted that the more restrictive  xIstandard was being adopted in light of Congress' purpose in adopting Section 628: curbing certain">,`(`(88"  S' xincentives to influence the behavior of affiliates to the detriment of competitors.~1 {Oh' "< ԍSee Program Access Order, 8 FCC Rcd at 337071, citing Second Report and Order, Recommendation to  {O2' x* Congress, and Second Further Notice of Proposed Rulemaking, Telephone CompanyCable Television Cross {O' x Ownership Rules, Section 63.54 63.58, CC Docket No. 87266, 7 FCC Rcd 5781 (1992); see also Mem. Op. on  {O' x@ Recon. of Program Access Order, 10 FCC Rcd 1902, 191127 (rejecting various proposed exemptions from 5%  yO'attribution standard).~ While we  xgacknowledged that one of the rule's objectives was to promote general competition and diversity in the  xvideo marketplace, the additional antidiscrimination objective warranted "a relatively inclusive attribution  S' xrule."1 {O 'ԍProgram Access Order, 8 FCC Rcd at 3360, 3370. See 47 C.F.R.  76.1000(b). Similarly, in the MMDS and SMATV crossownership context, we adopted the more restrictive  x*attribution standard in order to prevent cable operators from "warehousing potential competition," as well  x7as to encourage the development of competition to established cable operators by alternative multichannel  S'video service providers.$1 {O ' " ԍSee Report and Order and Further Notice of Proposed Rulemaking, Implementation of Sections 11 & 13  x of Cable Television Consumer Protection and Competition Act of 1992 CrossOwnership Limitations and  {OT' x} Antitrafficking Provisions, MM Docket No. 92264, 8 FCC Rcd 6828, 684346 (1993); see also 47 C.F.R.   yO'21.912 n.1, 76.501(d)(e).   S' e O7.` ` In addition, we have relied upon our attribution rules in defining when an entity is  xconsidered an "affiliate" for certain purposes under Title VI. For instance, we have applied the more  xxrestrictive attribution standard to the ratemaking context, for purposes of analyzing asset transfers and the  SH ' x provision of services between a cable operator and its affiliate.$H 1 {O' " ԍSee Report and Order and Further Notice of Proposed Rulemaking, Implementation of the Cable Television  x% Consumer Protection and Competition Act of 1992 Rate Regulation and Adoption of a Uniform Accounting System  {Ox' x for Provision of Regulated Cable Services, MM Docket No. 93215, 9 FCC Rcd 4527, 466368 (1994). See also 47 C.F.R.  76.924(i). We found that, in enacting the 1992  xkCable Act, Congress intended to ensure that consumers pay reasonable rates for regulated cable services,  x@and that it would be inconsistent with Congress' intent to allow cable operators to impose the costs of  S ' x7nonregulated activities on regulated cable services through improper crosssubsidization.F 1 {OZ'ԍId. at 466364.F To deter such  xconduct, we held that the more restrictive attribution rule should apply. We also applied the more  xrestrictive attribution standard to our rules limiting the amount of passthroughs permitted for  SX' xprogramming services affiliated with cable multiple system operators.^X|1 {Ot ' " ԍSee Report and Order and Further Notice of Proposed Rulemaking, Implementation of the Cable Television  {O>!' x Consumer Protection and Competition Act of 1992 Rate Regulation, MM Docket No. 92266, 8 FCC Rcd 5631,  {O"'578788 (1993), citing 47 C.F.R.  76.1000(b). Those rules arose out of a concern  xabout abuses that might occur if a vertically integrated cable operator were permitted to engage in  xMunlimited passthroughs to subscribers of the cost of programming that the operator obtained from an  S'affiliated entity.:1 {O"&'ԍId.: "4,`(`(88k"Ԍ S' e 8.` ` Similarly, in adopting a definition of "affiliate" for purposes of the leased access  S' xprovisionsa1 yO@'ԍCommunications Act  612, 47 U.S.C.  532.a and the open video system provisions,cX1 yO'ԍCommunications Act  653, 47 U.S.C.  573. c we adopted the more restrictive attribution standard.Y1 {O`' "/ ԍSee 47 C.F.R.  76.970(b), 76.1500(g); Second Report and Order and Second Order on Reconsideration  {O*' x of the First Report and Order, Implementation of Sections of the Cable Television Consumer Protection and  {O' x Competition Act of 1992 Leased Commercial Access, CS Docket No. 9660, FCC 9727, 12 FCC Rcd 5267  {O' x (1997), at paras. 118121 ("Leased Access Order"); Third Report and Order and Second Order on Reconsideration,  {O ' x! Implementation of Section 302 of the Telecommunications Act of 1995; Open Video Systems, CS Docket No. 9646,  {OR 'FCC 96334, 11 FCC Rcd 20227 (1996), at paras. 416 ("OVS Order").Y  x7We found that, in addition to promoting diversity, these provisions were designed to reduce the likelihood  xthat cable operators and open video system operators will discriminate against or otherwise disfavor  S`' xunaffiliated programming providers.{`l 1 {Ol'ԍOVS Order at para. 14; Leased Access Order at para. 119.{ Given these dual objectives, we found that the more restrictive  S8'attribution standard was the appropriate standard for identifying the interests at issue.8 1 {O'ԍOVS Order at paras. 1415; Leased Access Order at para. 119.  S' e 9.` ` Finally, we note that in the "Cable Act Reform" proceeding]^ 1 {O' " ԍSee Order and Notice of Proposed Rulemaking, Implementation of Cable Act Reform Provisions of the  {O' xD Telecommunications Act of 1996, CS Docket No. 9685, FCC 96154, 11 FCC Rcd 5937 (1996) ("Cable Act Reform  {O'NPRM").] we are reviewing appropriate  S' xdefinitions of "affiliate" under other provisions of the 1996 Act, including the small operator provisions,w1 {O'ԍSee Communications Act  623(m)(2), 47 U.S.C.  543(m)(2).w  S' x^the new prong of the "effective competition" test,}H1 {O'ԍSee Communications Act  623(l)(1)(D), 47 U.S.C.  543(l)(1)(D).} and the cabletelco buyout provisions.k1 {O'ԍSee Communications Act  652, 47 U.S.C.  572.k Pending the  xadoption of final rules, we requested comments on the appropriate definition of "affiliate" for the cable SH ' xtelco buyout provisionsQ H l1 {OT'ԍ Cable Act Reform NPRM at  96.Q and established interim rules for the small operator and "effective competition"  x@provisions. For the small operator provisions, the interim rule adopted the definition of "affiliate" used  S ' x^for purposes of our small system costofservice rules.!$ 1 {O"' " ԍCable Act Reform NPRM, 11 FCC Rcd at 594748, citing 47 C.F.R.  76.934(a). See also Sixth Report  x and Order and Eleventh Order on Reconsideration, Implementation of Section of the Cable Television Consumer  {O($' x Protection and Competition Act of 1992: Rate Regulation, MM Docket Nos. 92266 & 93215, FCC 95196, 10 FCC Rcd 7393 (1995). Thus, an entity is deemed affiliated with a small  xcable operator if that entity has a 20% or greater equity interest in the operator (active or passive) or holds" !,`(`(88 "  S' xMde jure or de facto control over the operator.n"1 {Oh'ԍSee Cable Act Reform NPRM, 11 FCC Rcd at 594748.n By contrast, in the "effective competition" context, the  xCommission found it reasonable to adopt an interim rule that reflected the new Title I affiliation threshold  S' xkthat Congress has prescribed for other provisions of the Communications Act.F#Z1 {O'ԍId. at 594344.F Under the new standard,  xkan affiliate is an entity that (directly or indirectly) owns or controls, is owned or controlled by, or is under  xcommon ownership or control with, another person, where the term "own" means to have an equity  S8'interest (or the equivalent thereof) of more than 10%.$81 {O 'ԍSee Communications Act  3(1), 47 U.S.C.  153(1); see also 47 C.F.R.  76.1401(b).  S' e  10.` ` Notice. As noted above, we released the Broadcast Attribution Notice and the  S' xBroadcast Attribution Further Notice to review our broadcast attribution standard. Among the issues on  S' xxwhich we solicited comment in the Broadcast Attribution Notice were: (1) whether to increase the voting  Sv' xstock ownership benchmark from 5 percent to 10 percent;d%v~1 {O'ԍBroadcast Attribution Notice at paras. 1846.d (2) whether to increase the passive investor  SN ' xstock ownership benchmark from 10 percent to 20 percent;&N 1 {O' "& ԍId. at paras. 4750. We also invited comment on our tentative conclusion not to expand the passive investor class to include pension funds, investment and commercial banks, and certain investment advisors. (3) whether to restrict or eliminate our single  xmajority shareholder exemption and whether to attribute nonvoting shares in certain circumstances, such  x*as where the minority or nonvoting shareholder has contributed a significant portion of the equity or debt  S ' xfinancing;K' j 1 {O'ԍId. at paras. 5154.K (4) whether to revise our insulation criteria for limited partnership interests, and whether to  S ' x adopt an equity benchmark for noninsulated limited partners;K( 1 {OJ'ԍId. at paras. 5563.K (5) whether to treat interests in limited  x+liability companies ("LLCs") and similar new business forms, such as registered limited liability  S^' x@partnerships ("RLLPs"), as we now treat limited partnerships;N)^ 1 {O'ԍId. at paras. at 6475.N (6) whether to eliminate the remaining  xaspects of our crossinterest policy that prevent individuals from having "meaningful" interests including  xkey employee relationships, joint ventures, and nonattributable equity interests in two broadcast stations,  x^or a daily newspaper and a broadcast station, or a television station and a cable system, when both outlets  S' xserve "substantially the same area;"K* 1 {O~!'ԍId. at paras. 7692.K and (7) how to treat non-equity financial relationships and multiple  xcbusiness relationships that, although not individually attributable, could combine to create sufficient  Sn'influence to warrant attribution.L+n1 {O$'ԍId. at paras. 93100.L  S' e O 11.` ` In addition to the issues raised in the Broadcast Attribution Notice, the Broadcast  S' xAttribution Further Notice explored additional proposals to increase the precision of the attribution rules. "D+,`(`(88"  xxFirst, we invited comment on whether we should add a new "equity or debt plus" ("EDP") attribution rule.  xUnder such a rule, where an interest holder is a program supplier or samemarket media entity, we will  xattribute its otherwise nonattributable equity and/or debt interests in a licensee or other media entity  xsubject to the crossownership rules if those aggregated interests exceed a specified benchmark, proposed  S`' xDto be set at 33 percent.k,`1 {O'ԍBroadcast Attribution Further Notice at paras. 825.k Second, we tentatively concluded that we should treat television time brokerage  xagreements or local marketing agreements ("LMAs") the same as radio LMAs, and also count radio and  S' xtelevision LMAs toward all applicable ownership limits.-Z1 {O ' "E ԍId. at paras. 2631. For purposes of applying the radio LMA rules, the Commission's rules define time  x brokerage as "the sale by a licensee of discrete blocks of time to a 'broker' that supplies the programming to fill that  {O ' x time and sells the commercial spot announcements in it." 47 C.F.R.  73.3555(a)(4)(iii). The Broadcast Attribution  {Of ' x Further Notice refers to LMAs as "those time brokerage agreements involving a broker that is a licensee of one or  {O0 'more stations in the same market as the brokered station." Id. at para. 2 n. 4. Third, we invited comment as to whether we  S' xDshould attribute joint sales agreements ("JSAs") in certain circumstances..1 {O' "p ԍId. at paras. 3235. JSAs are agreements between broadcasters for the joint sales of broadcast commercial  {Od'time. Id. at para. 33. Fourth, we invited comments  xDon a Commission staff study of attributable ownership interests in broadcast television stations, appended  S' xgto the Broadcast Attribution Further Notice, and on the implications of this study regarding the impact  Sr' xof the proposed attribution rule changes, particularly as to the voting stock benchmarks.w/rn 1 {O'ԍId. at paras. 3638 and Commission staff study attached thereto.w Fifth, we sought  xccomments on whether a transition period or grandfathering of existing interests is appropriate. We  xtentatively concluded that any grandfathering should apply only to the current interest holder and that  S ' xinterests acquired on or after December 15, 1994, the date of adoption of the Broadcast Attribution Notice,  S ' xshould be subject to any final rules adopted.0 1 {Ot' " ԍId. at paras. 3942. We reiterated that the issue of grandfathering of television LMAs would be addressed  {O>'separately in the television local ownership proceeding. Id. at para. 40. Finally, we invited comments as to whether we should  xapply broadcast attribution criteria and add a new EDP attribution rule for purposes of the  S 'cable/Multipoint Distribution Service ("MDS") crossownership restrictions.K1 \ 1 {O'ԍId. at paras. 4344.K  S4' e ~ 12.` ` This Notice initiates a similar review of attribution issues as they specifically relate to our  S' x*cable rules.u21 yO ' " ԍWe have received informal communications suggesting such a comprehensive review of our attribution  {Od!' x rules. See, e.g., Letter from S. White Rhyne and Robert L. Petit of the Federal Communications Bar Association  x to Reed E. Hundt, dated January 30, 1995 (urging the Commission, as part of "reinventing government" efforts, to  x initiate a comprehensive review of the attribution tests used by its various bureaus and offices in order to promote consistency of interpretation and process).u We note that the ownership attribution rules are intended to identify those relationships that  xMconfer on their holders a degree of influence or control over key business decisions, including budget,  xpersonnel, programming, and technology practices of cable entities, such that the holders should be subject  xto the Commission's regulations. In addition, the attribution rules may be used to identify ownership or  xother relationships that could provide the entities involved with economic incentives to operate in conflict"n2,`(`(88 "  xwith the objectives of the particular cable regulation at issue. We seek comment on the same issues raised  S' xMin the broadcast attribution proceedings as they pertain to the cable industry, and on whether and how  xthese issues should factor into the review of our cable attribution rules. In particular, we ask commenters  xRto focus on: (1) the proposed "equity or debt plus" addition to the current attribution rules, and  xMspecifically those relationships in the cable context that may provide sufficient incentive and ability for  x7an otherwise nonattributable interest holder to exert an attributable influence or control; (2) the attribution  xof certain contractual or other business relationships in the cable context (including affiliations that allow  x*different cable entities to purchase programming, technology or equipment on common terms, analogous  xto JSAs and LMAs in the broadcast context) that may implicate diversity and competition concerns,  x@irrespective of debt or equity; (3) the impact of raising the stock ownership benchmark for active and  xVpassive investors in the cable context, particularly seeking empirical data and analysis similar to the  xCommission staff study on the same subject in the broadcasting context; (4) whether to retain, modify,  xor eliminate the single majority shareholder exemption; and (5) whether a transition period or  xgrandfathering of existing interests is appropriate if we decide to adopt more restrictive attribution rules.  S ' xBecause the Broadcast Attribution Notice and the Broadcast Attribution Further Notice already address  xlapplication of the attribution rules to the cable/MMDS and the cable/broadcast crossownership  S 'restrictions, we will not revisit and therefore do not seek comment on those issues in this proceeding.v3 1 {O'ԍ See, e.g., Broadcast Attribution Further Notice at paras. 3, 43.v  S2' e d 13.` ` We seek comment on whether the assumptions underlying our cable attribution rules are  xstill valid. In particular, we solicit comment on whether any relevant differences exist between the cable  xand broadcasting industries that would support a distinct cable attribution standard even for those cable  xrules designed, like our broadcasting ownership rules, to ensure competition and diversity. We note that  x<the broadcast attribution rules focus primarily on those relationships which confer on their holders  xinfluence or control over a broadcaster's key business decisions in the areas of budget, personnel and  xprogramming. We seek comment on whether, in the cable context, these are the appropriate key business  xDareas and whether the underlying areas of concern should include cable entities' technology decisions and  xpractices. We seek comment on whether there are differences in ownership, financing or management  xMstructures, industry health, typical stockholdings, informal business arrangements, or outside financial  xclaims that render one of the industries more or less subject to the types of influence or control that our  xattribution rules seek to identify. Also, because our current cable attribution rules do not distinguish  xbetween types of cable operators, we seek comment on whether any relevant differences exist among cable operators that would warrant different attribution rules.  S' e q 14.` ` We also solicit comment on whether and how we should reevaluate the more restrictive  xZattribution standard applicable to certain of the rules described above, such as the program access and  xprogram carriage rules and the cable/MMDS and cable/SMATV crossownership restrictions. In  xparticular, we seek comment on: (1) whether the more restrictive standard serves the purposes for which  xit was intended; (2) whether the more restrictive standard is over or underinclusive; (3) whether the more  xrestrictive attribution standard should be revised in relation to the broadcast attribution standard; (4)  xwhether these two attribution standards should be treated as completely separate and independent  xgformulations; and (5) whether, in view of the purposes it serves, we should require a more compelling showing before modifying the more restrictive standard.  SJ$' e 15.` ` We seek comment on whether and how any changes in our cable attribution rules should"J$ Z3,`(`(88""  S' xaffect our various definitions of "affiliate."{41 {Oh'ԍ See, e.g., 47 C.F.R.  76.924(i), 76.970(b), 76.1500(g), 76.1401(b).{ In particular, we seek comment on whether and how those  xaffiliation rules that are expressly based on our cable attribution rules should change if the underlying attribution rules are changed.  S`' e 16.` ` We seek comment as to the business arrangements involved in recent cable system  xtpartnerships, joint ventures, swaps, transfers, mergers and acquisitions, particularly those transactions  S' xannounced or consummated in 1997 or thereafter, including those discussed in the Commission's 1997  S' xannual report on the status of competition in the delivery of video programming.)5Z1 {O ' " ԍFourth Annual Report, In the Matter of Annual Assessment of the Status of Competition in Markets for the  {O 'Delivery of Video Programming, FCC 97423, CS Docket No. 97141 at  142148 (rel. Jan. 13, 1998).) Commenters should  xidentify the entities involved in each transaction, the projected date of consummation, details of the new  xstructure including: the percentage and nature (e.g., voting or nonvoting, limited or general partnership,  xinsulated or noninsulated, rights of conversion) of each entity's ownership interests, the number of  xofficers, directors, and other key personnel appointed by each entity to a management committee, board  xor other governing body, the portion of the equity or debt financing contributed by each entity, and any  xauthority or power held by each entity to review, veto or otherwise influence the management or operation  x3of the cable systems, as well as the ability to purchase programming, technology, or equipment under  x^common contract terms. We seek information, in particular, as to any business arrangements undertaken  xto insulate one or more parties to these transactions from control or influence over key business aspects  xof the cable systems at issue. We also seek comment as to the development of the Commission's cable  xattribution rules to avoid inconsistency with any other statutes or regulations (e.g., those of the Internal  xRevenue Service or the Financial Accounting Standards Board) that may influence the structuring of the business arrangements at issue.  S' e 17.` ` With respect to each ownership or relational interest discussed herein, we seek comment  xZon whether the specified level or degree of ownership interest in, or relationship to, an entity would be  xlikely to impart the ability to influence or control the operations of that entity, including core areas such  xas budget, personnel, programming, technology, or competitive practices, such that the ownership rules  x^should be implicated. Consistent with the purpose of Section 257 of the 1996 Act to reduce market entry  S' xIbarriers for small businesses,G61 {O'ԍ See 47 U.S.C.  257.G we also seek comment on the impact that any changes to our cable  x*ownership attribution or affiliation standards will have on market entry barriers for small businesses. We  x&ask interested parties to support their comments with empirical data and economic analyses regarding levels of influence in business organizations and current market conditions.  S' III.CONCLUSION  S' e 18.` ` The cable attribution rules play a crucial role in the Commission's effort to ensure a  xcompetitive, diverse, and fair video marketplace. The purpose of this review is to examine whether our  xcurrent cable attribution rules are accomplishing those goals, and to determine whether fewer, additional or different restrictions are warranted.  S ' " H6,`(`(88"Ԍ S'8IV.INITIAL REGULATORY FLEXIBILITY ANALYSIS  S' e 19.` ` As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603 ("RFA"),  x/the Commission is incorporating an Initial Regulatory Flexibility Analysis ("IRFA") of the expected  S`' xg8impact on small entities of any policies or proposals contained in this Notice of Proposed Rule Making  S:' x("Notice"). Written public comments concerning the effect of the proposals in the Notice, including the  xMIRFA, on small businesses are requested. Comments must be identified as responses to the IRFA and  S' xtmust be filed by the deadlines for the submission of comments in this proceeding. The Secretary shall  S' xsend a copy of this Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business  S' xAdministration in accordance with paragraph 603(a) of the Regulatory Flexibility Act.F71 yO 'ԍ5 U.S.C.  603(a).F In addition, this  Sv'Notice and IRFA will be published in the Federal Register.>8vX1 {On 'ԍSee id.>  S( ' A.Need for, and Objectives of, the Proposed Rules pp  S ' e d20.` `  This proceeding is being initiated to obtain comment on whether the Commission's cable  x^attribution and affiliation rules continue to serve their intended goals, and whether certain aspects of those  S ' xMrules should be revised to make them more effective. The actions proposed in the Notice are intended  xtto ensure that the Commission effectively implements the various cable rules that include an attribution  xVor affiliation standard by identifying those interests that may result in undue market power by large  xentities, such as large cable multiple systems owners, and undermine a competitive, diverse and fair marketplace.  S' B.Legal Basis  SJ' e 21.` `  Authority for the actions proposed in this Notice is contained in Sections 4, 303, 612,  x613, 616, 623, 628, 652 and 653 of the Communications Act of 1934, as amended, 47 U.S.C.  154, 303, 532, 533, 536, 543, 548, 572 & 573.  S' "6! C.XDescription and Estimate of the Number of Small Entities to Which the Proposed Rules Will  S'Apply (#  S4' e q22.` `   The RFA generally defines "small entity" as having the same meaning as the terms "small  xbusiness," "small organization," and "small governmental jurisdiction" and "the same meaning as the term  xD'small business concern' under the Small Business Act unless the Commission has developed one or more  S' x+definitions that are appropriate for its activities.91 yOF"' "8 ԍ5 U.S.C.  601(3) (incorporating by reference the definition of "small business concern" in 15 U.S.C.  632). A small business concern is one which: (1) is  xindependently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any  Sl' xadditional criteria established by the Small Business Administration ("SBA").D:lB1 yON&'ԍ15 U.S.C.  632.D The Small Business  xxEnforcement Fairness Act of 1996 (SBREFA) provision of the RFA also applies to nonprofit organizations"D :,`(`(88"  xand to governmental organizations such as governments of cities, counties, towns, townships, villages,  S' xschool districts, or special districts with populations of less than 50,000.F;1 yO@'ԍ5 U.S.C.  601(5).F Pursuant to 5 U.S.C.  601(3),  xMthe statutory definition of a small business applies "unless an agency after consultation with the Office  xof Advocacy of the SBA and after opportunity for public comment, establishes one or more definitions  xof such term which are appropriate to the activities of the agency and publishes such definition(s) in the  S8'Federal Register." <"8X1 yO0' "" ԍWhile we tentatively believe that the SBA's definition of "small business" greatly overstates the number  x of cable entities that are small businesses and is not suitable for purposes of determining the impact of any proposals  {O ' x on small cable entities, for purposes of this Notice, we utilize the SBA's definition in determining the number of small businesses to which the proposed rules would apply.    S' Local Franchising Authorities  S' e 23.` `   There are 85,006 governmental entities in the United States.=B1 {Oz'ԍUnited States Dept. of Commerce, Bureau of the Census, 1992 Census of Governments. This number includes such  xtentities as states, counties, cities, utility districts and school districts. We note that any official actions  xwith respect to cable systems will typically be undertaken by local franchising authorities ("LFAs"), which  x^primarily consist of counties, cities and towns. Of the 85,006 governmental entities, 38,978 are counties,  xQcities and towns. The remainder are primarily utility districts, school districts, and states, which typically  xare not LFAs. Of the 38,978 counties, cities and towns, 37,566 or 96%, have populations of fewer than  x50,000. Thus, approximately 37,500 "small governmental jurisdictions" may be affected by the rules  S 'proposed in this Notice.  S2' Cable Services or Systems  S' e 524.` ` SBA has developed a definition of small entities for cable and other pay television  xservices under Standard Industrial Classification 4841 (SIC 4841), which covers subscription television  S' x@services, which includes all such companies with annual gross revenues of $11 million or less.G>1 yO'ԍ13 C.F.R. 121.201.G This  x@definition includes cable systems operators, closed circuit television services, direct broadcast satellite  xservices, multipoint distribution systems, satellite master antenna systems and subscription television  xDservices. According to the Census Bureau, there were 1,323 such cable and other pay television services  xIgenerating less than $11 million in revenue that were in operation for at least one year at the end of  S'1992.?Ld 1 {O ' " ԍ1992 Census, supra, at Firm Size 1-123. See Memorandum Opinion and Order and Notice of Proposed  x Rule Making, Implementation of Sections of the Cable Telecommunications Consumer Protection and Competition  {O"' x7 Act of 1992, Rate Regulation and Cable Pricing Flexibility, MM Docket No. 92266 and CS Docket No. 96157, 11 FCC Rcd 9517, 9531 (1996).  Sz' e q25.` ` The Commission has developed its own definition of a "small cable company" and "small  xsystem" for the purposes of rate regulation. Under the Commission's rules, a "small cable company," is"R x ?,`(`(88"  S' xone serving fewer than 400,000 subscribers nationwide.@$1 yOh' "" ԍ47 C.F.R.  76.901(e). The Commission developed this definition based on its determinations that a small  {O0' x cable company is one with annual revenues of $100 million or less. Sixth Report and Order and Eleventh Order  {O' xH on Reconsideration, Implementation of Sections of the 1992 Cable Act: Rate Regulation, MM Docket Nos. 92266 & 93215, 10 FCC Rcd 7393 (1995). Based on our most recent information, we  xestimate that there were 1,439 cable companies that qualified as small cable companies at the end of  S' x1995.A1 {O'ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995). Since then, some of those companies may have grown to serve over 400,000 subscribers, and  xothers may have been involved in transactions that caused them to be combined with other cable  xcompanies. Consequently, we estimate that there are fewer than 1,439 small entity cable companies that  S8' xmay be affected by the proposal adopted in this Notice. The Commission's rules also define a "small  S' xsystem," for the purposes of cable rate regulation, as a cable system with 15,000 or fewer subscribers.JBF1 yO 'ԍ47 C.F.R.  76.901(c).J  xWe do not request nor do we collect information concerning cable systems serving 15,000 or fewer subscribers and thus are unable to estimate at this time the number of small cable systems nationwide.  Sr' e =26.` ` The Communications Act also contains a definition of a "small cable operator," which is  x"a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all  xsubscribers in the United States and is not affiliated with any entity or entities whose gross annual  S ' x<revenues in the aggregate exceed $250,000,000."JC 1 yOp'ԍ47 U.S.C.  543(m)(2).J The Commission has determined that there are  xg61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than  x 617,000 subscribers is deemed a small operator, if its annual revenues, when combined with the total  S ' xannual revenues of all of its affiliates, do not exceed $250 million in the aggregate.KD f 1 yO'ԍ47 C.F.R.  76.1403(b).K Based on available  SZ' xpdata, we find that the number of cable operators serving 617,000 subscribers or less totals 1,450.EZ 1 {O'ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995).  xAlthough it seems certain that some of these cable system operators are affiliated with entities whose gross  xtannual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the  xnumber of cable system operators that would qualify as small cable operators under the definition in the  xCommunications Act. We are likewise unable to estimate the number of these small cable operators that serve 50,000 or fewer subscribers in a franchise area.  SB' Satellite Master Antennae Television ("SMATV") Operators  S' e 27.` ` Industry sources estimate that approximately 5200 SMATV operators were providing  S' xxservice as of December 1995.GF 1 {O$'ԍId. at para. 81.G Other estimates indicate that SMATV operators serve approximately 1.05  S' xmillion residential subscribers as of September 1996.:G1 {O\''ԍId.: The ten largest SMATV operators together pass" G,`(`(88("  S' x815,740 units.:H1 {Oh'ԍId.: If we assume that these SMATV operators serve 50% of the units passed, the ten largest  xSMATV operators serve approximately 40% of the total number of SMATV subscribers. Because these  xoperators are not rate regulated, they are not required to file financial data with the Commission.  xQFurthermore, we are not aware of any privately published financial information regarding these operators.  xBased on the estimated number of operators and the estimated number of units served by the largest ten SMATVs, we believe that a substantial number of SMATV operators qualify as small entities.  S' Local Exchange Carriers ("LECs")  S' e m28.` ` Neither the Commission nor the SBA has developed a definition for small LECs. The  xclosest applicable definition under the SBA rules is for telephone communications companies other than  SH ' xradiotelephone (wireless) companies.WIH Z1 yOB 'ԍ47 C.F.R.  121.201; SIC Code 4813.W The most reliable source of information regarding the number of  S ' x^LECs nationwide is the data that we collect annually in connection with the TRS Worksheet.XJX 1 yO' " ԍFederal Communications Commission, Common Carrier Bureau, Industry Analysis Division,  x Telecommunications Industry Revenue: TRS Fund Worksheet Data, Table 1 (Average Total Telecommunications Revenue Reported by Class of Carrier) (December 1996) ("TRS Worksheet").X According  xcto our most recent data, 1,347 companies reported that they were engaged in the provision of local  S ' xgexchange services.:K 1 {Oz'ԍId.: We do not have information on the number of carriers that are not independently  xowned and operated, nor what carriers have more than 1,500 employees, and thus are unable at this time  xto estimate with greater precision the number of LECs that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are fewer than 1,347 small incumbent LECs.  S' Cable Programmers  S' e 29.` ` The Commission has not developed a definition of small entities applicable to producers  xor distributors of cable television programs. Therefore, we will utilize the SBA classifications of Motion  Sh' x7Picture and Video Tape Production (SIC 7812),Lh1 yO' " ԍ"Establishments primarily engaged in the production of theatrical and nontheatrical motion pictures and  x video tapes for exhibition or sale, including educational, industrial, and religious films. Included in the industry are  xD establishments engaged in both production and distribution. Producers of live radio and television programs are  {O' xU classified in Industry 7922." Standard Industrial Classification Manual, SIC 7812, Executive Office of the President, Office of Management and Budget (1987) ("OMB SIC Manual").  and Theatrical Producers (Except Motion Pictures) and  S@' xMiscellaneous Theatrical Services (SIC 7922).<MX@N 1 yO.#' "p ԍ"Establishments primarily engaged in providing live theatrical presentations, such as road companies and  x& summer theaters. . . . Also included in this industry are producers of . . . live television programs." OMB SIC Manual, SIC 7922.< These SBA definitions provide that a small entity in the  x@cable television programming industry is an entity with $21.5 million or less in annual receipts for SIC"nM,`(`(88"  S' xD7812, and $5 million or less in annual receipts for SIC 7922.oN1 yOh'ԍ13 C.F.R.  121.201.#x6X@`7 &X@#o Census Bureau data indicate the following:  xt(a) there were 7,265 firms in the United States classified as Motion Picture and Video Production (SIC  x 7812), and that 6,987 of these firms had $16.999 million or less in annual receipts and 7,002 of these  S' xfirms had $24.999 million or less in annual receipts;OX1 {O' "  ԍU.S. Small Business Administration, 1992 Economic Census Industry and Enterprise Report, Table 2D, SIC  x 7812, (U.S. Bureau of the Census data adapted by the Office of Advocacy of the U.S. Small Business  x Administration) ("SBA 1992 Census Report"). Because the Census data do not include a category for $21.5 million,  x we have reported the closest increment below and above the $21.5 million threshold. There is a difference of 15  x firms between the $16,999 and $24,999 million annual receipt categories. It is possible that these 15 firms could have annual receipts of $21.5 million or less and would therefore be classified as small businesses. and (b) there were 5,671 firms in the United States  xclassified as Theatrical Producers and Services (SIC 7922), and that 5627 of these firms had $4.999  S8'million or less in annual receipts.RP81 yO 'ԍSBA 1992 Census Report, SIC 7922.R  S' D.XDescription of Projected Recording, Record keeping, and Other Compliance Requirements (#  S' e 30.` `  If our cable ownership attribution or affiliation standards are changed, the Commission  xZmay have to change certain cable reporting requirements and cable entities may be required to observe  xnew recording, record keeping or other compliance requirements that would be necessary to ensure  x@compliance with the new attribution or affiliation standards. Cable entities also may have to adjust the  xQorganization of their business interests in order to comply with any new attribution or affiliation standards that we may adopt.  S ' " E.XSteps Taken to Minimize Significant Economic Impact on Small Entities, and Significant  SX'Alternatives Considered (#  S' e 31.` `   The actions proposed in the Notice are intended to ensure that the Commission  xeffectively implements the various cable rules that include an attribution or affiliation standard by  xidentifying more accurately those interests that may result in undue market power by large entities, such  x}as large cable multiple systems owners, and undermine a competitive, diverse and fair marketplace.  Sj' xAccordingly, as discussed in the above descriptions of the proposed rule changes, and in the Broadcast  SD' xAttribution Notice and Broadcast Attribution Further Notice, the approaches proposed in this Notice  xDshould promote fairness and diversity for all cable systems and other small entities listed above. We invite  xcomments on these approaches, including comment on whether alternative approaches will mitigate any unwarranted expenses incurred by smaller entities by virtue of their size alone.  S~' F.XFederal Rules that Overlap, Duplicate or Conflict with the Proposed Rules(#  S.' 32.` `    None. "b P,`(`(88h"Ԍ S' 8V.PAPERWORK REDUCTION ACT  S' e  33.` `  The proposals contained herein have been analyzed with respect to the Paperwork  xReduction Act of 1995 (the "1995 Act"). The Commission has determined that, if we change our cable  x8ownership attribution or affiliation standards, the Commission may have to require cable entities to comply  xwith new or modified information collection requirements that would be necessary to ensure compliance  xwith the new attribution or affiliation standards. If the Commission, in a subsequent rulemaking in this  xproceeding, implements new or modified information collection requirements, those requirements will first be subject to approval by the Office of Management and Budget as prescribed by the Act.  Sp' VI.PROCEDURAL PROVISIONS  S ' e !34.` ` This proceeding will be treated as a "permitbutdisclose" proceeding subject to the  x"permitbutdisclose" requirements under Section 1.1206(b) of the rules. 47 C.F.R.  1.1206(b), as  x7revised. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except  xduring the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited.  x*Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation  xmust contain a summary of the substance of the presentation and not merely a listing of the subjects  x<discussed. More than a one or two sentence description of the views and arguments presented is  S' xgenerally required. See 47 C.F.R.  1.1206(b)(2), as revised. Additional rules pertaining to oral and written presentations are set forth in Section 1.1206(b).  S' e r"35.` ` Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the  xCommission's Rules, 47 C.F.R.  1.415 and 1.419, comments are due August 14, 1998, and reply  xcomments are due September 3, 1998. To file formally in this proceeding, you must file an original plus  xfour copies of all comments, reply comments, and supporting comments. If you want each Commissioner  x&to receive a personal copy of your comments and reply comments, you must file an original plus nine  xcopies. You should send comments and reply comments to Office of the Secretary, Federal  xCommunications Commission, 1919 M Street, N.W. Washington, D.C. 20554. Comments and reply  xcomments will be available for public inspection during regular business hours in the FCC Reference Center, Room 239, Federal Communications Commission, 1919 M Street N.W., Washington D.C. 20554.  S' "P,`(`(88"  S'VII.ORDERING CLAUSES  S' e #36.` ` Accordingly, IT IS HEREBY ORDERED that pursuant to the authority in Sections 4, 303,  x612, 613, 616, 623, 628, and 653 of the Communications Act of 1934, as amended, 47 U.S.C.  154,  x303, 532, 533, 536, 543, 548, 572 and 573, NOTICE IS HEREBY GIVEN of proposed amendments to  S8' xxPart 76, in accordance with the proposals, discussions, and statement of issues in this Notice of Proposed  S' xRulemaking, and that COMMENT IS SOUGHT regarding such proposals, discussion, and statement of issues.  S' e 0$37.` ` IT IS FURTHER ORDERED that the Commission's Office of Public Affairs, Reference  St' x<Operations Division, shall send a copy of this Notice of Proposed Rulemaking, including the Initial  xRegulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration  xxin accordance with paragraph 603(a) of the Regulatory Flexibility Act, Pub. L. No. 96354, 94 Stat. 1164,  S '5 U.S.C.  601 et seq. (1981). ` ` hhCFEDERAL COMMUNICATIONS COMMISSION ` ` hhCMagalie Roman Salas ` ` hhCSecretary