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E yOh- xԍIn addition, EchoStar filed a "Motion to Compel Fox's Production of Documents" requesting the Commission  xto compel Fox to produce agreements with cable operators regarding carriage of Foxcontrolled regional sports  xprogramming in order for the Commission to ascertain the extent of the alleged discrimination. Fox opposed EchoStar's Motion to Compel and EchoStar filed a reply. For the reasons discussed below, EchoStar's program access complaint is dismissed with  S-prejudice.` `  S- I. BACKGROUND ă  S`-  S8- ` Rx2.` ` In enacting the program access provisions, which are codified in Section 628 of the  S- xCommunications Act,XE yO` -ԍCommunications Act  628, 47 U.S.C.  548.X Congress was concerned about the market power of wired cable companies and  S- xvertically integrated cable programmers.g@E yO -ԍ1992 Cable Act  2(a)(2), 2(b)(5), 106 Stat. 1460, 1463.g The program access provisions were designed to ensure that  S- xcompetition to cable develops and to encourage competition from emerging competitors.~E yO0-ԍCommunications Act  628(a), 47 U.S.C.  548(a), states Congress' purpose:  ` XxX` ` to promote the public interest, convenience, and necessity by increasing  ` competition and diversity in the multichannel video programming market, to  ` increase the availability of satellite cable programming and satellite broadcast  ` programming to persons in rural and other areas not currently able to receive  yO-such programming, and to spur the development of communications technologies.x`  {Op- xSee H.R. Conf. Rep. No. 862, 102d Cong., 2d Sess. 93 (1992) ("the Commission shall encourage arrangements which promote the development of new technologies providing facilitiesbased competition to cable . . ."). ~ Consistent with  xthis purpose, Congress sought to minimize the incentive and ability of vertically integrated program  Sp-suppliers to favor affiliated cable operators over nonaffiliated entities.W pjE yOz-ԍ1992 Cable Act  2(a)(5), 106 Stat. 146061.W  S - ` x3.` ` To achieve this purpose, Congress instructed the Commission, inter alia, to promulgate  xyregulations that prohibit discrimination by a satellite cable programming vendor in which a cable operator  x]has an attributable interest in the prices, terms, and conditions of sale or delivery of satellite cable  xprogramming among or between cable systems, cable operators, or other multichannel video programming  S -distributors ("MVPDs") or their agents or buying groups.[ X E yO!- xԍCommunications Act  628(c)(2)(B), 47 U.S.C.  548(c)(2)(B). The Commission adopted implementing  x,regulations and explanatory notes in 47 C.F.R.  76.1002(b) of its rules and regulations and set forth procedures for adjudicating complaints in 47 C.F.R.  76.1003.[  S2- ` x4.` ` The Commission stated in Implementation of Sections 12 and 19 of the Cable Television  S - xConsumer Protection and Competition Act of 1992 ("Program Access Order"),E E yO&-ԍ8 FCC Rcd 3359 (1993). E that discrimination exists"  ,`(`(88 "  x"when the same or essentially the same programming service is sold to competing distributors at different  xprices or pursuant to different terms or conditions. Such discrimination is prohibited if not justified under  S-one or more of the specific factors listed in the statute."S E {O-ԍId. at 3359, 3400 (footnote omitted).S  S`-E# II. THE FACTS ă @x@` `  S- ` n x5.` ` EchoStar, a provider of Direct Broadcast Satellite ("DBS") programming services, operates  xjtwo DBS satellites that allow it to provide approximately 120 channels of digital television programming  S- x=to subscribers throughout the continental United States. ZE yO -ԍComplaint at 2. EchoStar also notes that it recently launched its third DBS satellite. EchoStar states that it competes against cable  xoperators in every cable franchise area and is therefore a "multichannel video programming distributor"  Sp-("MVPD") as defined by Section 76.1000(e) of the Commission's rules.LpE {O -ԍId.; 47 C.F.R. 76.1000(e).L  S - ` }x6.` ` Fox/Liberty Networks LLC is a joint venture between The News Corporation Ltd. and the  S - x<Liberty Media Group of TeleCommunications, Inc. ("TCI").9 |E yO-ԍFox Answer at 23.9 Fox Sports Net LLC and Fox Sports Direct  S - xare divisions of Fox/Liberty Networks LLC.} E {O|-ԍId. Fox does not dispute EchoStar's allegations as to its corporate structure.} TCI, a cable system operator, has an interest in Fox  S - x-because TCI's Liberty Media Group is a 50% participant in the Fox/Liberty Networks LLC joint venture.1 E {O-ԍId.1  SX- ` `x7.` ` Fox Sports Net LLC controls a number of regional sports networks ("RSN"s).1X0 E {O(-ԍId.1 RSNs  S0- x make their programming available to local cable operators within an RSN's geographic region.70 E {O-ԍId. at 5.7 Each  xRSN features a mix of professional, collegiate, and other televised sports events, as well as other  S- xprogramming designed to appeal to viewers within its own geographic region.1T E {O-ԍId.1 The regions are  xdetermined primarily by the geographic distribution rights granted to the RSNs in their licenses to televise  xlocal games played by teams in Major League Baseball ("MLB"), the National Basketball Association  x("NBA"), and the National Hockey League ("NHL"). The NHL, NBA and MLB each designate the home  S@- xmarket territories in which local telecasts of their respective teams can be distributed.1@E {O$-ԍId.1 RSNs do not have  S-the right to license professional games for distribution outside a defined home market.1xE {O0'-ԍId.1" ,`(`(88"Ԍ S- ` 3ԙx8.` ` Fox Sports Direct packages the programming of various RSNs for sale to the Direct to  S- xHome ("DTH") satellite marketplace, which includes both TVRO (Cband) and DBS (Kuband) services.E yO@-ԍFox Answer, Exhibit 1 (Declaration of Glenn Gurgiolo, President of Fox Sports Direct).   S- x/There are seventeen RSNs packaged to the DBS market by Fox Sports Direct.3 XE yO- x<ԍThe seventeen RSNs include: Fox Sports Southwest; Fox Sports Rocky Mountain; Fox Sports Midwest; Fox  xSports Intermountain West; Fox Sports Northwest; Fox Sports West; Fox Sports West 2; Fox Sports Pittsburgh; Fox  xSports Arizona; Sunshine Network; Fox Sports South; Home Team Sports; Fox Sports Detroit; Empire Sports  xxNetwork; New England Sports Network; Midwest Sports Channel; and Madison Square Garden Network. Of these,  x.Empire Sports Network, New England Sports Network, Midwest Sports Channel, and Madison Square Garden  xMNetwork are not currently owned directly or indirectly by Fox/Liberty Networks. Fox Answer, Exhibit 1  {OX - xL(Declaration of Glenn Gurgiolo, President of Fox Sports Direct). See also Fox Answer at 6 which notes that  x"[s]everal of these RSNs had and continue to have no affiliation with FLN [Fox/Liberty Networks LLC] or FSN [Fox Sports Net LLC]."3 Fox Sports Direct's  xcontract with EchoStar conveys to EchoStar the rights to a package of sixteen RSNs that include a wide  S`- xrange of local and national programming.`* E yO*- x. Fox Answer at 5. EchoStar's package does not include Fox Sports West 2, one of the seventeen RSNs packaged by FSD. Fox Answer at 5, n. 8. For the DBS market, the Fox Sports Direct package consists  xof three elements. The first part of the package relates to "inregion" programming, the programming of  xthe RSN in an individual subscriber's home market, which Fox states is programming authorized by the  S- xRSNs for carriage solely on a basic tier." E {O - xԍId. at 7. An "InService Subscriber" means any EchoStar subscriber located within an RSN's traditional  xregional market who receives that RSN's local programming from EchoStar. For example, since Washington, D.C.  xis part of Home Team Sports' home market, a Washingtonian who receives HTS as part of his or her EchoStar package would be an HTS InService Subscriber. Complaint at 5, n .2. The second part of the package involves "outofregion"  xkprogramming which Fox states includes all of the nonprofessional regional and other programming to  S- xjwhich RSNs have national distribution rights.lE {O- xԍId. at 78. Fox notes that as long as the "inregion" RSN is carried on the basic tier, distribution of the "outofregion" programming is authorized for carriage on any tier. The last part of the package includes "professional game  xfeeds for national distribution" which Fox describes as the RSN's professional games for outofregion  SH -national distribution.7H E {O-ԍId. at 8.7  S -  S - ` x9.` ` The following facts underlying EchoStar's complaint are not disputed by the parties.  x\On June 26, 1996, EchoStar entered into an agreement ("RSN Distribution Agreement") with Liberty  S - xSatellite Sports, Inc. ("LSI") to distribute the regional sports programming controlled by LSI.X XE yO"- xԍComplaint at 4. The length of the RSN Distribution Agreement is for a term of five years. Both parties  xrequested that the entire RSN Distribution Agreement be treated in a confidential and proprietary manner. We do not believe that noting the length of the Agreement breaches that confidentiality request.  LSI is a  S - xjpredecessorininterest to Fox Sports Direct.? xE {O&-ԍId. at 5. ? The RSN Distribution Agreement provides for a package"  ,`(`(88y"  x\of regional professional and nonprofessional sports programming to be delivered nationwide to DBS  S-subscribers.8E yO@-ԍFox Answer at 4.8  S- ` x 10.` ` At a meeting held August 20, 1997, EchoStar inquired whether Fox was giving EchoStar  S`- xLcableequivalent rates for the programming it received from Fox.7 `XE yOX-ԍComplaint at 6.7 At the conclusion of the meeting, Fox  S8- xcommitted to send EchoStar new terms that would amend EchoStar's RSN Agreement with Fox.1!8E {O -ԍId.1 As  x!a result, in a letter dated August 29, 1997, Fox offered to amend and extend its RSN Distribution  S- xAgreement with EchoStar."zE {O - xԍId., Exhibit 1 (August 29, 1997 Letter from Glenn Gurgiolo, President of Fox Sports Direct, to Michael S. Schwimmer, Vice President of Programming for EchoStar). EchoStar notes that in the August 29, 1997 letter, Fox provided EchoStar  xwith an offer of new rates responding "to [EchoStar's] request for fees more in line with a cable S- xequivalent fee."D#E yO -ԍComplaint, Exhibit 1. D Before EchoStar could accept the offer, by letter dated September 5, 1997, Fox revoked  Sp- xythe offer made to EchoStar in its August 29, 1997 letter.$pd E yOt-ԍComplaint at 8, Exhibit 6 (September 5, 1997 Letter from Glenn Gurgiolo to Michael S. Schwimmer). By letter dated September 24, 1997, EchoStar  xexpressed dissatisfaction with Fox's decision to revoke the terms of its August 29, 1997 offer and gave  S - xFox notice of its intent to file a program access complaint with the Commission.% E {O-ԍId. at 89, Exhibit 3 (September 24, 1997 Letter from Michael S. Schwimmer to Glenn Gurgiolo). After additional letters  xbetween the parties failed to settle the dispute, EchoStar filed the instant program access complaint on  S -October 27, 1997.& E {O- xԍId. at 911. On August 18, 1998, EchoStar filed with the Commission a recently executed agreement between  xxEchoStar and Fox Sports Direct. EchoStar notes that this agreement adds a new RSN Fox Sports Arizona to  xthe 1996 RSN Agreement previously executed by the parties which imposes the rates, terms and conditions in the  x;RSN Agreement that are the subject of this proceeding. We note the following inconsistencies in EchoStar's August  x,18, 1998 filing, although they have no decisional significance. We believe EchoStar inadvertently cited in its filing  xYa September 26, 1996 RSN Agreement date instead of the June 26, 1996 RSN Agreement which has been the subject  xJof this proceeding throughout. In addition, it was our understanding that EchoStar's programming package with Fox  x-Sports Direct included sixteen of the seventeen RSNs offered, including Fox Sports Arizona. In Fox's Answer in  {O8 - xZthis proceeding, it represented that the only RSN excluded from EchoStar's package was Fox Sports West 2. See  {O!-supra n. 25.   S -  IV. PROGRAM ACCESS ALLEGATIONS ă  S0- ` #x 11.` ` EchoStar alleges that Fox has violated the Commission's program access rules by engaging  xin prohibited discrimination in prices, terms, and conditions in the sale of satellite cable programming to"$&,`(`(88+"  S- xEchoStar.9'E {Oh-ԍId. at 12.9 EchoStar alleges that the prices underlying Fox's August 29, 1997 offer to EchoStar and the  xrates left in place following the retraction of the offer for Fox's regional sports programming are  xLdiscriminatory when compared to the rates in effect for certain similarlysituated cable licensees of Fox's  S- x[programming.8(ZE {O-ԍId. at 12.8 EchoStar also alleges that Fox has engaged in nonprice discrimination because the terms  xand conditions, including tiering, packaging, and advertising availability, underlying both the August 29,  x1997 offer and those left in place through the retraction of the offer are discriminatory and not required  S-of other Fox licensees.?)E {O -ԍId. at 1418, 21.?  S- ` #x 12.` ` In response, Fox argues that Fox/Liberty Networks LLC and Fox Sports Net LLC are not  xproper parties to this proceeding because EchoStar has not negotiated with these parties in this matter and  Sp- x>they are not signatories to the agreements at issue.=*p~E yO-ԍFox Answer at 13, 14.= In addition, Fox argues that EchoStar's program  x!access complaint is barred by the one year limitations period that exists for filing program access  S - x=complaints under the Commission's rules.\+ E {O-ԍId.; see also 47 C.F.R.  76.1003(r).\ Fox also asserts that EchoStar fails to demonstrate that Fox  S - xhas engaged in either price discrimination or nonprice discrimination.<, E yO8-ԍFox Answer at 1722.< FSD maintains that a comparison  x.between the program package purchased by EchoStar and program packages available to cable operators  xcannot form the basis of a program access complaint because the rights obtained by both parties are  S -fundamentally different.{- 0 E {OP-ԍId. at 1617, Exhibit 3 (Declaration of Stanley M. Besen, consultant to Fox).{  S0- ` ox 13.` ` In reply, EchoStar notes that Fox/Liberty Networks LLC through Fox Sports Net LLC  xowns and controls most of the RSNs involved in the complaint and argues that the Commission should  xnot allow a company to establish separate corporate subsidiaries in order to evade the program access  S- xrules.Q.X E yO- xԍEchoStar Reply at 3. EchoStar believes that Fox/Liberty Networks LLC has one unit that controls RSNs and  xdistributes programming to cable operators (Fox Sports Net); and another unit that sells the same programming to satellite providers (Fox Sports Direct). Q EchoStar also argues that although its complaint was filed more than a year after the execution  xLof its contract with Fox Sports Direct, the August 29, 1997 letter sent by Fox Sports Direct to EchoStar  x[was, by its own terms, an offer to sell programming. EchoStar contends that the letter started a new one  S@-year limitations period to began to run on that date.9/@E {O$-ԍId. at 56.9 "t/,`(`(88B"Ԍ S- IV. DISCUSSION ă  S-  S- ` 2 x 14.` ` For the reasons discussed below, we dismiss EchoStar's program access complaint against  S- xFox as untimely filed.W0xD3 yO- xԍFox notes that because EchoStar's complaint fails to make any allegations against Fox/Liberty Networks LLC  xior Fox Sports Net LLC, any allegations made by EchoStar are answered by Fox solely with respect to Fox Sports  xLDirect. Fox states that Fox/Liberty Networks LLC and Fox Sports Net LLC have not received notice of the  xcomplaint from EchoStar. Accordingly, Fox states that if the Commission rejects its request to dismiss the complaint  xwwith respect to Fox/Liberty Networks LLC and Fox Sports Net LLC, these parties request the opportunity to answer  xany specific allegations against them. Fox Answer at 23, n. 84. In light of our findings herein, we find this request has been rendered moot. W Fox alleges that EchoStar's program access complaint against Fox Sports Direct  x=is barred by the one year limitations period applicable to such complaints. Section 76.1003(r)(1)(3) of the Commission's rules, in pertinent part, states:  S- XxAny complaint filed pursuant to this subsection must be filed within one year of the date on which one of the following occurs:   Sp- ` pXx(1)` ` The satellite cable programming or satellite broadcast programming vendor enters  ~into a contract with the complainant that the complainant alleges to violate one or more of the rules contained in this subpart; or   S - ` pXx(2)` ` The satellite cable programming or satellite broadcast programming vendor offers  to sell programming to the complainant pursuant to terms that the complainant alleges to violate one or more of the rules . . . ; or   S0- ` pXx(3)` ` The complainant has notified a cable operator, or a satellite cable programming  2vendor or a satellite broadcast programming vendor that it intends to file a complaint with  3the Commission based on a request to purchase or negotiate to purchase satellite cable  programming or satellite broadcast programming, or a request to amend an existing  contract pertaining to such programming pursuant to 76.1002(f) that has been denied or  Sh-unacknowledged, allegedly in violation of one or more of the rules . . . .p1hD3 yO-#X\  P6G;ɒP#э47 U.S.C. 76.1003(r)(1)(3). p   S- ` _Ԋx15.` ` Fox argues that since Fox Sports Direct's contract with EchoStar was executed on June26,  S- xj1996, the limitations period for bringing a complaint based on that agreement expired on June 26, 1997.`2E yO( -#X\  P6G;ɒP#эFox Answer at 15.`  xFox contends that Fox Sports Direct's August 29, 1997 letter to EchoStar offering to amend and extend  xthe June 26, 1996 RSN Distribution Agreement does not start a new one year limitations period, or afford  Sx- xan independent basis for jurisdiction under the Commission's rules.X3x( E {O@$-#X\  P6G;ɒP#эId.X According to Fox, allowing such  xa letter to form the basis for a complaint would not be in the public interest because it would eliminate"P 3,`(`(88"  x=the incentive for parties to negotiate amended contract terms after the limitations period has run because  S-such negotiations could lead to a complaint being filed that extends to the beginning of the contract.X4E {O@-#X\  P6G;ɒP#эId.X  S- ` x16.` ` EchoStar responds that its complaint is not barred by the limitations period because the  xprogram access rules provide that several different events, not just the execution of a contract, also trigger  S8- xthe one year limitations period.c58ZE yO2-#X\  P6G;ɒP#эEchoStar Reply at 5.c EchoStar notes that a program access complaint must be filed within  S- xLone year of the date that, inter alia, a "satellite cable programming . . . vendor offers to sell programming  S- xto the complainant pursuant to the terms that the complainant alleges to violate one or more of the rules  S- x. . . ."6E {ON -#X\  P6G;ɒP#эId., 47 C.F.R. 76.1003(r)(2) (Emphasis supplied). EchoStar contends that Fox Sports Direct's August 29, 1997 letter was, by its own terms, an offer  xto sell programming to EchoStar and that the August 29, 1997 letter triggers the beginning of a new  St- x@limitations period.e7t|E yO-#X\  P6G;ɒP#эEchoStar Reply at 67.e  [%l EchoStar argues that the execution of a contract and the offer of allegedly  xzdiscriminatory rates, terms and conditions are two separate events that can trigger the program access  S$ -limitations period.^8$ E {O-#X\  P6G;ɒP#эId. at 6.^  S - ` x17.` ` We find that EchoStar's complaint is barred by the one year limitations period of Section  S - xk76.1003(r)(1).E9 E yO-ԍ47 C.F.R.  76.1003(r)(1).E EchoStar and Liberty Satellite Sports, Inc., the predecessor in interest to Fox Sports  xLDirect, entered into the RSN Distribution Agreement on June 26, 1996, the initial term of which ends on  S\- xDecember 31, 2001.|:\. E {O*-#X\  P6G;ɒP#эComplaint, Exhibit 4. See supra n. 29.| Pursuant to Section 76.1003(r)(1) of the Commission's rules, Echostar had one year  xfrom the date of entering into this contract with Liberty Satellite Sports, Inc./Fox Sports Direct to file a  S - xprogram access complaint with the Commission.k;  E yOl-#X\  P6G;ɒP#э47 C.F.R. 76.1003(r)(1).k Thus, EchoStar had until June 26, 1997 to file such a complaint. The instant program access complaint was filed by EchoStar on October 27, 1997.  S- ` x18.` ` EchoStar argues, however, that Fox's August 29, 1997 letter which offered to amend and  xextend the contract entered into by the parties on June 26, 1997 was, by its own terms, an offer to sell  x0programming to EchoStar and therefore started a new one year limitations period. We agree with  xEchoStar to the extent that the Commission's rules allow that executing a contract and making an  xallegedly discriminatory offer are two separate events that can trigger the program access limitations  S- xNperiod.n<P E yO%-#X\  P6G;ɒP#э47 C.F.R. 76.1003(r)(1)(2).n In this case, however, EchoStar's one year time period in which to file a program access"<,`(`(883"  xcomplaint with the Commission began when it entered into a contract with Liberty Satellite Sports,  S-Inc./Fox Sports Direct on June 26, 1996 and ended on June 26, 1997.=E yO@- x#X\  P6G;ɒP#эWe note that the parties first contract amendment discussions took place on August 20, 1997, after the one year limitations period expired.  S- ` ox19.` ` Fox's subsequent August 29, 1997 letter did not revive the limitations period regarding  xthe rates, terms and conditions of the June 26, 1996 contract. Nor can we view Fox's August 29 letter  x.as a separate offer which triggered the limitations period. Section 76.1003(r)(1) provided EchoStar with  xthe opportunity for one year following the June 26, 1996 execution of the RSN Distribution Agreement  xLto file a program access complaint regarding the rates, terms, and conditions of that agreement. EchoStar did not bring its complaint within that period and is therefore time barred.  S-  Sp- ` x20.` ` We believe that public policy requires that we avoid unnecessary regulatory interference  xMregarding contracts entered into by consenting parties. The goals of development of competition and  x=creation of diversity in video programming distribution, through the Commission's program access rules,  xis a limited exception to this policy. While we recognize that there is some underlying tension between  x>avoiding interference in the area of contractual agreements and the program access policy of fostering  xcompetition and diversity through fair access to verticallyintegrated programming, we believe that the  xylimitations period resolves some of this tension by providing a limited period of time to contest allegedly  xjunfair or discriminatory contracts and offers. After that limited time period has elapsed, the parties may  xrenegotiate the terms of such contracts, but doing so will not subject such contracts once again to program  S- x[access review unless they enter into a new contract.> E yO- x-ԍBecause we find that EchoStar's complaint is barred by the one year limitations period, we need not address who are the proper parties to this proceeding. Because we are deciding this matter on procedural grounds, we find that there is no need to reach the merits of this proceeding.  S- V. ORDERING CLAUSES ă  S@- `  x21.` ` Accordingly, IT IS ORDERED that the program access complaint filed by EchoStar  xCommunications Corporation against Fox/Liberty Networks LLC, Fox Sports Net LLC and Fox Sports  S-Direct IS DISMISSED WITH PREJUDICE.  S- ` x22.` ` This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated  Sx-by Section 0.321 of the Commission's rules.??xxE yO-ԍ 47 C.F.R.  0.321.? x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhDeborah A. Lathen x` `  hhChief, Cable Services Bureau