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LL2 LL2L"",,2d""I=.X',&I7  xTQ&X    "5@^.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic.====IK=\\p\p\p\p\p\zzQpQpQpQpQ=3=3=3=3z\\\\\\\\\fQp\\\\fQ\p\p\p\p\zQzQzQpQpQpQ\\\\\\I\=\===\QzQf3fKz\z\\zpGpK\G\GN@.`\G\\\\\\39\7\7==ff\==\\=f=7t=eeee|oo.Ij|2Z\\yeCpj`vZefeloPpPj`e~~tro.................................=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic..=\f\\=\=....==ff@\=G=z..f.G\\\\2\=3\|=\Ie77=j`.=79\\ppppppzpppp====z|fp\\\\\\\zQQQQQ3333\\\\\\\e\\\\\Q\2\2%$5 y.X80,QwX\  P6G;P 7jC:,Xj\  P6G;XP 2a=5,r&a\  P6G;&P 2e=5,d[&e4  pG;& 7nC:,4Xn4  pG;X P:% ,J:\  P6G;JP !H5!,x,5\  P6G;,P #{,W80,%~UW*f9 xr G;X 0_=5,%]&_*f9 xr G;&X T9.YnY_YPY@Y1Y" X4 X    S'  Federal Communications Commission`}(#cDA 992094 ă   yxdddy Պ#Xj\  P6G;XP#Pb #&a\  P6G;r&P#Before the Federal Communications Commission  S'"2Washington, D.C. 20554 ă  Sq'In the Matter of: hhCq) ` `  hhCq)   S!'RCN TELECOM SERVICES OFhhCq) pp  S'NEW YORK, INC. hhCq) ` `  hhCq)  S'Complainant, hhCq) ` `  hhCq)  SY 'X` hp x (#%'0*,.8135@8:6( yO@'ԍ47 U.S.C.  548(b).>  In Section 628(c), Congress instructed the Commission to promulgate regulations that:  X(A) establish effective safeguards to prevent a cable operator which has an attributable  ,interest in a satellite cable programming vendor or a satellite broadcast programming  Wvendor from unduly or improperly influencing the decision of such vendor to sell, or the  prices, terms, and conditions of sale of, satellite cable programming or satellite broadcast  S'programming to any unaffiliated multichannel video programming distributor; [and]D X6( yO 'ԍ47 U.S.C.  548(c)(2)(A).D   X(B) prohibit discrimination by a satellite cable programming vendor in which a cable  operator has an attributable interest or by a satellite broadcast programming vendor in the  prices, terms, and conditions of sale or delivery of satellite cable programming or satellite  broadcast programming among or between cable systems, cable operators, or other  S 'MVPDs or their agents or buying groups. . . .l ( 6( yO0' x ԍ47 U.S.C.  548(c)(2)(B). Congress provided limited exceptions to this prohibition. A satellite programming vendor is not prohibited from:   X(i) imposing reasonable requirements for creditworthiness, offering of service, and financial  A stability and standards regarding character and technical quality; (ii) establishing different prices,   terms, and conditions to take into account actual and reasonable differences in the cost of creation,   sale, delivery, or transmission of satellite cable programming or satellite broadcast programming;   (iii) establishing different prices, terms, and conditions which take into account economies of scale,   cost savings, or other direct and legitimate economic benefits reasonably attributable to the number   of subscribers served by the distributor; or (iv) entering into an exclusive contract that is permitted under subparagraph (D) [of this section].   {M'Id.l   S '  SX' e '4.` ` In Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and  xCompetition Act of 1992: Development of Competition and Diversity in Video Programming Distribution  S ' xand Carriage, MM Docket No. 92265, First Report and Order ("Program Access Report and Order"),> 6( yO 'ԍ8 FCC Rcd 3359 (1993).>  xthe Commission concluded that nonprice discrimination is included within the prohibition against  xdiscrimination set forth in Section 628(c)(2)(B). While the Commission did not attempt to identify all  xttypes of nonprice discrimination that could occur, the Commission stated that "one form of nonprice  Sl' xdiscrimination could occur through a vendor's 'unreasonable refusal to sell', or refusing to initiate  xtdiscussions with a particular distributor when the vendor has sold its programming to that distributor's  xcompetitor." The Commission cautioned, however that "'unreasonable' refusals to sell" should be"h ,`(`(88"  S' x}distinguished from "certain legitimate reasons that could prevent a contract between a vendor and a  S'particular distributor."1 6( {O@'ԍId.1 Such legitimate reasons would include:  (X(i) the possibility of [the] parties reaching an impasse on particular terms, (ii) the  distributor's history of defaulting on other programming contracts, or (iii) the vendor's  preference not to sell a program package in a particular area for reasons unrelated to an  S'existing exclusive arrangement or a specific distributor.E Z6( {O 'ԍId. (footnote omitted).E   S' III. THE FACTS   Sp' e =5.` ` RCN operates an open video system in New York City pursuant to a certification issued  xby the Commission and pursuant to RCN's open video system agreement with the city. RCN offers  xcMVPD service over its system to approximately 50,000 subscribers in Manhattan, Queens, and the  S ' xBronx.; 6( yO'ԍRCN Complaint at 6.; MST is a private cable operator offering MVPD service to subscribers throughout the New York  S 'metropolitan area.; |6( yO'ԍMST Complaint at 1.;  S ' e ~6. ` ` Cablevision is a multiple system operator ("MSO") that owns and operates cable systems  xin various parts of the country including New York City. Cablevision currently provides MVPD service  S0' x"to approximately 2.7 million subscribers in the New York metropolitan area.;0 6( yO'ԍRCN Complaint at 2.; Cablevision owns a  xmajority interest in Rainbow, a programming and entertainment company, which in turn owns a  S' xgcontrolling interest in the entity which ultimately owns and controls MSG and Fox Sports/NY.6( yO' x ԍDefendants' Answer (RCN), Affidavit of C. Travers at  3; Defendants' Answer (MST), Affidavit of C. Travers at  3. MSG  xand Fox Sports/NY are satellitedelivered programming services operating in the New York metropolitan  xmarket which provide subscribers with telecasts of numerous New York professional major league sport  Sh' xcontests as well as local collegiate and amateur sporting events.7h 6( {O'ԍId. at 7.7 MSG and Fox Sports/NY own the rights  xto televise games played by the Knicks and the Nets (teams of the National Basketball Association), the  xRangers, Islanders and Devils (teams of the National Hockey League), and the Yankees and the Mets  S' xx(Major League Baseball teams).= 6( yO$'ԍRCN Complaint at 67.= Because MSG and Fox Sports/NY distribute their programming through  S'satellite technology, it is considered "satellite cable programming" subject to the program access rules.M6( yO~&'ԍ47 U.S.C.  548(a), 605(d)(1).M ",`(`(88B"Ԍ S' e 7. ` ` Since the late 1980's, MST has distributed the programming services now known as MSG  S' xand Fox Sports/NY to its subscribers in the New York metropolitan area.F6( yO@'ԍDefendants' Answer (MST) at 7.F RCN and its predecessors have  S' xdistributed these programming services in the New York area since the early 1990's.FX6( yO'ԍDefendants' Answer (RCN) at 7.F Due to the large  xknumber of professional sports teams in the New York area, it is often the case that a number of the teams  S`' xQare playing simultaneously. In the past when this occurred, Defendants often provided "overflow" games  xMto distributors of MSG and Fox Sports/NY, including Complainants. MSG and Fox Sports/NY would  xeach produce a primary game for distribution as part of their regular service and produce certain of the  S' xZgames on a secondary or overflow basis as well.g6( yOp 'ԍDefendants' Answer (RCN) at 11; Defendants' Answer (MST) at 11.g Distributors typically would clear channel capacity  S' xelsewhere on their systems in order to telecast these overflow games.1x6( {O 'ԍId.1 Under their contracts with MSG  xand Fox Sports/NY, distributors usually were required only to use "reasonable" or "best" efforts in order  Sp' xpto make capacity available for the overflow programming.1p 6( {O'ԍId.1 Neither MSG nor Fox Sports/NY ever  SH ' xestablished a body of sports programming specifically designated as "overflow programming."uH 6( yO'ԍCablevision Answer (RCN) at 11, n. 20; Cablevision Answer (MST) at 11, n. 22.u Rather,  S ' xthe foregoing process operated in an ad hoc manner and depended upon when and what conflicts  S ' xoccurred.m , 6( yO'ԍDefendants' Answer (RCN) at 11; Defendants' Answer (MST) at 11.m According to Defendants, the ad hoc nature of this process and inconsistent channel placement  S 'had a negative impact on ratings for the games and on the advertising revenue generated by the games.1 6( {O0'ԍId.1 F'y  4F'y8. 4  S ' e d8.` ` On August 5, 1998, Rainbow launched a new programming service tailored for the New  S\' xxYork metropolitan market called the MetroChannels.7\N 6( {OJ'ԍId. at 7.7 Rainbow distributes the MetroChannels terrestrially  xusing Cablevision's fiber optic transport network connecting various headends serving the metropolitan  S ' xarea.: 6( {O 'ԍId. at 910.: The MetroChannels consist of three services: MetroGuide, MetroLearning, and MetroTraffic and  xWeather. The MetroChannels provide a variety of local programming content including cultural events,  x*educational services, and sports programming, much of which is original and has not appeared before on  S' xany other programming service.7r6( {O$'ԍId. at 7.7 In January of 1999, MSG and Fox Sports/NY began to use MetroGuide  xas an outlet for the overflow games previously distributed through the independent distributors of MSG"l,`(`(88?"  S' xand Fox Sports/NY in the manner described above. 6( {Oh' x ԍId. at 11. According to RCN, from the time Defendants began distribution via the MetroChannels through the end of April 1999, there have been approximately 26 overflow games. RCN Complaint at 7. In addition, MSG and Fox Sports/NY moved a  S'portion of the overflow programming to local broadcast stations.;!"6( yO'ԍRCN Complaint at 8.;  S' e 9.` ` In meetings and through written correspondence, RCN and MTS attempted without success  xto negotiate with Defendants for the right to carry the overflow programming Defendants now distribute  S8' xvia the MetroChannels.Q"86( yO 'ԍRCN Complaint at 89; MST Complaint at 4.Q RCN and MTS did not seek carriage rights for the MetroChannels service as  xa whole. In letters to Complainants, counsel for the MetroChannels asserted that the MetroChannels are  xa terrestriallydelivered service and that the programming contained on the MetroChannels is not subject  xto the program access rules. Counsel stated that Defendants will not extend carriage rights to  S' xComplainants for any of the programming on the MetroChannels.U#B6( yO|'ԍRCN Complaint, Exh. D; MST Complaint, Exh. B.U After providing Defendants with the  xxrequisite notice of their intent to file a program access complaint, Complainants initiated these proceedings  xalleging that the refusal to license Complainants to carry the sports programming previously distributed  S" ' xMvia MSG and Fox Sports/NY as overflow programming violates the program access provisions of the  S 'Communications Act.k$ 6( {On'ԍ47 U.S.C. 548(b), (c); see 47 C.F.R.  76.1003(a).k   S '  S ' IV.THE PLEADINGS  S\' e O 10.` ` Complainants allege that Defendants' refusal to negotiate carriage of the overflow  S4' xprogramming constitutes an impermissible refusal to sell prohibited by Section 628(c)(2)(B).P%4d 6( yO8'ԍRCN Complaint at 11; MST Complaint at 6.P RCN  xargues that if this programming were transmitted by satellite, Defendants' refusal to sell would constitute  xan impermissible form of nonprice discrimination. RCN maintains that Defendants have shifted the  S' xkprogramming to terrestrial distribution via the MetroChannels in order to evade application of the program  xaccess rules and that the Commission has authority under a combination of Sections 4(i) and 303(r) of the  Sn' xgCommunications Act to prohibit such evasions.&zn 6( {O ' x ԍRCN Complaint at 17 (citing Communications Act  4(i) and 303 (r), 47 U.S.C.  154(i) and 47 U.S.C.   x 303(r)). Section 4(i) provides that "the Commission may perform any and all acts, make such rules and regulations,  x and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions." Section  x 303(r) states that one of the general powers of the Commission is to "[m]ake such rules and regulations and prescribe  x such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this  x Act. . . . " MST did not base its complaint on Sections 4(i) and 303(r) but includes a general reference to these provisions in its reply. MST Reply at 11. Sections 4(i) and 303(r), RCN argues, empower the  xCommission to adopt ancillary measures that extend beyond narrow statutory mandates when necessary  xto implement the Act and further its goals. RCN contends that the purpose of Section 628 is to promote  xQcompetition and diversity in the multichannel video programming market. RCN asserts that while Section"6&,`(`(88"  xt628 addresses only satellite programming, movement of satellite programming to terrestrial distribution  xin order to evade the program access rules frustrates its procompetitive goals and that the Commission  S' xgcan act pursuant to Sections 4(i) and 303(r) to restrict such activity.<'6( yO'ԍRCN Complaint at 21.< RCN argues that nothing in the  xlanguage of Section 628 or its legislative history prohibits such an assertion of jurisdiction over satellite  S`'programming recently shifted to terrestrial distribution with an evasive intent.(`X6( {OX' x7 ԍId. at 2021. RCN and MST also argue that the Commission has general authority under Section 628 itself to police evasions of this provision. RCN Complaint at 22; MST Complaint at 8.  S8' ` `  S' e  11.` ` Complainants reference two recent decisions of the Cable Services Bureau (the "Bureau")  xdenying program access complaints involving similar facts and based upon similar arguments regarding  xextension of the Commission's jurisdiction to prohibit possible evasions of the program access rules  S' xthrough transition to terrestrial delivery.?)6( {O ' xV ԍSee DIRECTV, Inc. v. Comcast Corp., 13 FCC Rcd. 21822 (1998), app. for rev. pending ("DIRECTV");  {O'EchoStar Communications Corp. v. Comcast Corp., 14 FCC Rcd. 2089 (1999), app. for rev. pending ("EchoStar").? To the extent the Bureau held in DIRECTV v. Comcast or  Sr' xEchoStar v. Comcast that it does not have such jurisdiction pursuant to Sections 4(i) and 303(r), RCN asks  SL ' xDthe Bureau to overrule or distinguish its decisions in those cases.<*L 6( yO'ԍRCN Complaint at 21.< Complainants also argue that the facts  S$ ' x*of DIRECTV and EchoStar are distinguishable from those underlying their respective complaints. In this  xQregard, Complainants state that they previously carried all of the overflow programming at issue, whereas  S ' x&the complainant in DIRECTV carried only a portion of the disputed programming and in EchoStar the  S ' xcomplainant did not carry any of the programming at issue.P+ 6( yO'ԍRCN Complaint at 14; MST Complaint at 8.P Complainants also contend that their cases  x^are distinguishable because in this case the ownership of the rights to televise the sports contests involved  S`' xIhas remained at all relevant times with Defendants, whereas in DIRECTV and EchoStar the parties  xIundertook the shift to terrestrial distribution only after acquisition of the distribution rights from an  S'unaffiliated third party.1,. 6( {O'ԍId.1  S' e  12.` ` Complainants further argue that Defendants' refusal to negotiate for carriage of the  x overflow programming while offering it to other MVPDs as part of the MetroChannels constitutes an  Sr' xunfair practice under Section 628(b). RCN maintains that the statutory prohibition contained in Section  x628(b) is broader than the specific prohibitions on discrimination in Section 628(c), arguing that the only  xDrequirement for triggering the prohibition in Section 628(b) is that the unfair conduct in question prevents  xan MVPD "from providing satellite cable programming or satellite broadcast programming to subscribers  S' xpor consumers."- 6( yO2$' xk ԍRCN Complaint at 24; RCN Reply at 10. While MST asserts the same general argument, it does not elaborate on its reasoning. MST Complaint at 10. RCN argues that the status of the contested programming itself as "satellite cable  S' x7programming" is irrelevant as long as a party can show it has been harmed in its general ability to provide"-,`(`(88"  S' xsatellite cable programming.;.6( yOh'ԍRCN Reply at 1011.; RCN and MST assert that Defendants' refusal to license them to carry the  xdisputed programming hinders their provision of satellite programming and their ability to compete in the  S'New York market, thus resulting in a violation of Section 628(b).P/X6( yO'ԍRCN Reply at 1011; MST Complaint at 10.P  S`' e  13.` ` Finally, Complainants maintain that Defendants' movement of the overflow programming  x*and refusal to license Complainants to carry the programming constitutes the imposition of an exclusivity  xagreement against Complainants in the New York metropolitan area in violation of Section 628(c)(2)(D)  S' xyof the Communications Act and Sections 76.1002(c)(4) and (c)(5) of the Commission's rules.k06( yOp 'ԍ47 U.S.C.  548(c)(2)(D), 47 C.F.R.  76.1002(c)(4), (5).k  xZComplainants assert that Defendants have not obtained a Commission determination that this exclusive  xarrangement serves the public interest or obtained prior approval from the Commission for the  xarrangement. Complainants argue that Defendants' failure to do so violates the foregoing provisions  x8which prohibit certain exclusive contracts for satellite cable programming or satellite broadcast  S 'programming without Commission approval.T1 x6( yO8'ԍRCN Complaint at 2627; MST Complaint at 11.T  S ' e  14.` ` In their Answers, Defendants argue that the Commission is granted only limited authority  xMto adjudicate disputes regarding access to satellite cable programming, defined as "video programming  S ' x^which is transmitted via satellite."s2 6( yO('ԍDefendants' Answer (RCN) at 1213; Defendants' Answer (RCN) at 1213.s Defendants assert that their conduct does not violate Sections 628(b)  xor 628(c) since the MetroChannels, and the overflow programming now incorporated therein, are  S2' xterrestriallydelivered and do not constitute satellite cable programming.1326( {Oj'ԍId.1 Defendants cite Congress' use  xof the phrase "satellite cable programming" as evidence that Congress intended to limit application of the  xprogram access rules to satellite programming. Defendants argue that the legislative history reveals that  xgCongress considered and rejected the idea that the program access rules apply to terrestriallydelivered  S' x7programming.4X* 6( yO\' x ԍDefendants' Answer (RCN) at 1617; Defendants' Answer (MST) at 1516. Defendants maintain that the  x program access provisions adopted by the Senate extended to terrestriallydelivered programming services, while the House bill, which was ultimately enacted, applied only to satellitedelivered programming services. Defendants argue that the Commission's ancillary authority set forth in Sections 4(i) and  xk303(r) cannot serve as a basis for the Commission to apply the program access provisions to terrestrially x"delivered programming given that Congress expressly limited these provisions to satellitedelivered  S' xZprogramming.n5J 6( yO$'ԍDefendants' Answer (RCN) at 20; Defendants' Answer (MST) at 19, n. 54.n Defendants reason that if the Commission were to extend application of the statute to"5,`(`(88"  xterrestrial programming, despite the clear language of the statute, it would violate well established  S'principles of statutory construction.66( {O@' x ԍId. (citing Green v. Block Laundry Machine Co., 490 U.S. 504 (1989); Crawford Fitting Co. v. J.T. Gibbons,  {O 'Inc., 499 U.S. 437 (1991).    S' e 15.` ` Defendants argue that DIRECTV and EchoStar are controlling and that Complainants have  Sb' xfailed to distinguish these decisions.g7b$6( yO&'ԍDefendants' Answer (RCN) at 17; Defendants' Answer (MST) at 16.g Defendants assert that like Complainants here, the complainant in  S:' xDIRECTV had previously carried the programming at issue and that this fact was not a basis for the  S' xBureau's refusal to apply the program access rules in that case.g86( yOh 'ԍDefendants' Answer (RCN) at 18; Defendants' Answer (MST) at 17.g Defendants also reject Complainants'  S' xtother proffered distinction of DIRECTV and EchoStar which was based upon the fact that in this case  S' x Defendants held the distribution rights to the programming at issue prior to the transition to terrestrial  xdelivery. Defendants argue that while the transfer of distribution rights in conjunction with the move to  Sv' xterrestrial delivery may have been considered as one factor in the DIRECT TV and EchoStar decisions,  SP ' xDit was not central to the analysis.g9P D6( yO4'ԍDefendants' Answer (RCN) at 19; Defendants' Answer (MST) at 18.g Defendants maintain that the MetroChannels are clearly a new service  xregardless of the continuity in ownership of the distribution rights to certain of the programming carried  S 'on this service.1: 6( {Ot'ԍId.1   S ' e 16.` ` Defendants reject Complainants' argument that the Commission has authority under  xDSections 4(i) or 303(r) or Section 628 itself to police evasions of the program access rules and argue that  x}no such evasion can be found on these facts in any event. Defendants deny the allegation that they  xincorporated the overflow programming into the terrestriallydelivered MetroChannels in order to evade  S' xVthe program access rules.n;f 6( yO'ԍDefendants' Answer (RCN) at 23; Defendants' Answer (MST) at 20. n According to Defendants, they have expended significant resources in  xdeveloping the MetroChannels as a groundbreaking new "hyperlocal" programming service with  x*extensive content in the areas of news, entertainment, and sports. Defendants argue that the inclusion of  S' xksuch a small amount of content previously transmitted via satellite cannot be considered credible evidence  Sr' xof evasive conduct.g<r 6( yO 'ԍDefendants' Answer (RCN) at 24; Defendants' Answer (MST) at 21.g Defendants explain that adoption of terrestrial distribution for the MetroChannels  SJ' xwas a rational and legitimate business decision based on a determination that terrestrial distribution would  xDbe significantly less expensive than satellite distribution and better suited for the type of programming and  S' xinteractive services that will be included.}= 6( yO $'ԍDefendants' Answer (RCN) at 2526; Defendants' Answer (MST) at 2223. } Defendants assert that because they had access to Cablevision's  S' xpreexisting terrestrial infrastructure, terrestrial distribution was the most economical option.g>6( yO&'ԍDefendants' Answer (RCN) at 25; Defendants' Answer (MST) at 22.g Defendants" >,`(`(88X"  x3also state that because the MetroChannels are a regional service, there is no reason to incur the higher  S'costs associated with satellite distribution.1?6( {O@'ԍId.1  S' e 17.` ` Defendants further assert that Complainants have failed to state a claim under Section  x628(b). As an initial matter, Defendants argue that the terrestrial programming at issue is beyond the  S8' xyscope of Section 628(b), which they argue applies only to programming delivered via satellite.g@8Z6( yO2'ԍDefendants' Answer (RCN) at 30; Defendants' Answer (MST) at 27.g  xDefendants next assert that the decision to move this programming to terrestrial delivery is permitted under  S' xthe law and is not an unfair practice.gA6( yOt 'ԍDefendants' Answer (RCN) at 31; Defendants' Answer (MST) at 29.g Defendants also maintain that their refusal to sell the overflow  xprogramming is not an unfair practice since no other MVPD can purchase this programming separately  S' x*as Complainants desire.1Bz6( {O'ԍId.1 Defendants further argue that Complainants fail to state a Section 628(b) claim  xbecause they cannot demonstrate a purpose on the part of Defendants to cause the requisite harm or make  SJ ' xa showing of the harm itself.gCJ 6( yO'ԍDefendants' Answer (RCN) at 32; Defendants' Answer (MST) at 29.g As discussed above, Defendants contend that they made the decision to  xtransition the programming to terrestrial delivery for legitimate business reasons and not for any prohibited  xpurpose. Defendants also assert that Complainants have presented no evidence demonstrating that their  xinability to distribute the overflow programming has hindered their competitive position in the New York  S 'market.gD 6( yO'ԍDefendants' Answer (RCN) at 33; Defendants' Answer (MST) at 30.g  SZ' e ~18.` ` Defendants maintain that Complainants' request for only the overflow programming now  xincorporated into the MetroChannels, rather than the entire MetroChannels service, is not cognizable under  S ' xSection 628.gE , 6( yO'ԍDefendants' Answer (RCN) at 34; Defendants' Answer (MST) at 31.g Defendants argue that the relevant legislative history and the structure of the program  xaccess rules indicate that they govern access to integrated programming services and not to the specific  S' x3programs that make up such services.mF 6( yO'ԍDefendants' Answer (RCN) at 3536; Defendants' Answer (MST) at 3233.m In response, RCN references other portions of the legislative  S' xhistory and argues that the program access rules can apply on a programspecific basis.;GL 6( yO~!'ԍRCN Reply at 1819.; RCN also states  xthat not only have Defendants refused to negotiate carriage of the overflow programming by itself, they  SB'also have refused to negotiate carriage of the complete MetroChannels programming package.8HB6( {O$'ԍId. at 18.8  S' e W19.` ` Lastly, Defendants argue that their conduct does not violate the restrictions on exclusive  xcontracts contained in Section 628(c)(2)(D). Defendants argue that this provision by its terms applies only" nH,`(`(88r"  S' xto contracts for programming delivered via satellite and that the terrestrial programming in dispute is not  S'covered by Section 628(c)(2)(D).gI6( yOB'ԍDefendants' Answer (RCN) at 41; Defendants' Answer (MST) at 37.g ` `   S' V.DISCUSSION   S:' e  20. ` ` The central legal issues underlying the Complaints are essentially the same as those  S' x3involved in DIRECTV and EchoStar. We therefore rely substantially on the analysis set forth in those  S'decisions in resolving the Complaints. The primary issues disputed in this proceeding are as follows: ##   "<X\\(1) Does the Commission have the authority to take action against evasions of the program access  "_rules involving terrestriallydelivered programming and, if so, is Defendants' conduct actionable as an evasion of Section 628(c)(2)(B)?(#   "_X\\(2) Does Defendants' conduct involve unfair or anticompetitive action the purpose or effect of  "Awhich is to hinder Complainants' distribution of "satellite cable programming" in violation of Section 628(b)?(#   "(3) Does Defendants' conduct violate the restrictions on exclusive contracts contained in Section 628(c)(2)(D)?  S' e 21. ` ` Section 628 is generally understood to be a mechanism for ensuring that MVPDs that are  xcompeting with traditional cable television systems are not deprived, through exclusive contracts,  xdiscriminatory pricing, or otherwise, of access to vertically integrated "satellite cable programming."  xtSection 628(c)(2)(B) prohibits a "satellite cable programming vendor" in which a cable operator has an  xcattributable interest from engaging in discrimination in the prices, terms or conditions of the sale or  S'delivery of satellite cable programming to competing MVPDs.kJX6( yO'ԍCommunications Act  628(c)(2)(B), 47 U.S.C.  548 (c)(2)(B).k  S'  S' e 22. ` ` Complainants do not argue that the overflow programming is in fact "satellite cable  S' xZprogramming."K"6( {O,' x^ ԍIn its reply, RCN argues that if the overflow games transmitted from distant venues are delivered via satellite  xD to Defendants' headend, these "away" games are covered by the express terms of Section 628. RCN Reply at 11.  xx Because RCN did not plead sufficient facts to support this argument and raises it in an untimely manner on reply, we will not consider the argument in these proceedings.  Rather, they assert that Defendants' movement of this programming from satellite to  xDterrestrial delivery constitutes an attempt to evade Section 628(c)(2)(B), and that the Commission can act  xto prevent such conduct pursuant to the ancillary authority granted in Sections 4(i) and 303(r) or the  xgeneral jurisdiction of Section 628. Assuming for the sake of argument that the Commission has the  xauthority to act against evasions in some circumstances (an issue the Commission has considered  S' xelsewhere), L\6( {ON%' x! ԍSee Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act  {O&' x of 1992: Petition for Rulemaking of Ameritech New Media, Inc., Report and Order, 13 FCC Rcd. 15,822, 15,856 (1998). In this Report and Order, the Commission stated:"&K,`(`(&"Ԍ {O' d ԙXThe record developed in this proceeding fails to establish that the conduct complained of, i.e.,  4 moving the transmission of programming from satellite to terrestrial delivery to avoid the program   access rules, is significant and causing demonstrative competitive harm at this time. The   Commission has received only two complaints against the same verticallyintegrated programmer  ~ related to moving the transmission of programming from satellite to terrestrial delivery to avoid  N the program access rules. Where the record fails to indicate a significant competitive problem, we  ' are reluctant to promulgate general rules prohibiting activity particularly where reasonable issues  u are raised regarding the scope of the statutory language. In circumstances where anticompetitive   harm has not been demonstrated, we perceive no reason to impose detailed rules on the movement   of programming from satellite delivery to terrestrial delivery that would unnecessarily inject the    Commission into the daytoday business decisions of verticallyintegrated programmers. While   the record does not indicate a significant anticompetitive impact necessitating Commission action   at this time, we believe that the issue of terrestrial distribution of programming could eventually   have substantial impact on the ability of alternative MVPDs to compete in the video marketplace.  d We note that Congress is considering legislation which, if enacted, would introduce important  [ changes to the program access provisions, including clarification of the Commission's jurisdiction  A over terrestriallydelivered programming. The Commission will continue to monitor this issue and its impact on competition in the video marketplace.   {Mj'Id. we are not persuaded here that the totality of the circumstances demonstrates an intent to" 2L,`(`(88"  xevade our rules. Because we conclude that evasive conduct is not present, we do not address Complainants' arguments under Sections 4(i), 303(r) and 628.  S' e 23.` ` We find that Defendants have provided convincing evidence that their decision to move  S`' xthe sports programming previously distributed on an overflow basis via MSG and Fox Sports/NY to the  xgMetroChannels, as well as their decision to distribute the MetroChannels terrestrially, were based upon  xlegitimate business and marketing considerations. Defendants have invested substantial resources in  xydeveloping the MetroChannels as a new "hyperlocal" service tailored to the interests of specific  xcommunities and offering a wide range of original news, entertainment, and sports content. The sports  x^programming at issue is only a small part of the programming offered on the MetroChannels. Defendants  x*articulate a clear, marketingbased rationale for including the overflow sports programming as part of the  xM"electronic newspaper" design upon which the MetroChannels are based. Defendants also detailed the  xMpractical difficulties in the previous overflow method of distribution which they sought to eliminate by  xDtransferring the programming to the MetroChannels. Significantly, the overflow programming was never  xa separate programming service offered by the Defendants. Moreover, the fact that the migrated  xprogramming represents only a small amount of the sports programming for the New York area, the  S ' xpmajority of which remains available to Complainants via MSG, Fox Sports/NY and other outlets, is  S\' x*evidence that an evasive intent was not involved.M \26( yO.!' x* ԍAccording to Defendants, over 600 games telecast in the New York area between October 1998 and October  x 1999 will be available to Complainants. Defendants' Answer (RCN) at 27, n. 83; Defendants' Answer (MST) at  x 24, n. 73. RCN asserts that between January and April 1999, it was denied access to 26 overflow games as a result of movement of this programming. RCN Complaint at 7.  Finally, Defendants provided substantial evidence that  S4' x8terrestrial distribution of the MetroChannels is dramatically less expensive and more technically"4 M,`(`(88"  S' xappropriate for this type of locallyoriented service than satellite distribution.N"6( yOh' x ԍDefendants stated that terrestrial distribution of the MetroChannels would cost approximately $205,000 per  x month, as compared to between $800,000 and $1,500,000 per month for satellite delivery or approximately $550,000  {O' x per month for delivery via a shared digital uplink facility. Defendants' Answer (RCN), Exh. 1 at 12; Defendants' Answer (MST), Exh. 1 at 12. In light of the foregoing, we cannot conclude that evasive conduct is involved.  S' e 24.` ` Complainants also argue that Defendants' conduct violates Section 628(b) of the Communications Act. This provision reads as follows:  S' XIt shall be unlawful for a cable operator, a satellite cable programming vendor in which  Ja cable operator has an attributable interest, or a satellite broadcast programming vendor  to engage in unfair methods of competition or unfair or deceptive acts or practices, the  ~purpose or effect of which is to hinder significantly or to prevent any multichannel video  programming distributor from providing satellite cable programming or satellite broadcast  SH 'programming to subscribers or consumers.@OH 6( yO'ԍ 47 U.S.C.  548 (b).@   xIComplainants assert that Section 628(b) has broad applicability and does not require that the unfair  xtpractices in question hinder the distribution of satellite programming directly. Complainants assert that  xDefendants' unfair denial of the terrestriallydelivered overflow programming violates Section 628(b)  xbecause without this programming in their line up, Complainants' satellitedelivered programming is less  SX'appealing to subscribers.PPXB6( yO:'ԍRCN Reply at 1011; MST Complaint at 10.P  S' e 25. ` ` We are not persuaded that the facts alleged are sufficient to establish a Section 628(b)  xviolation. In order to find a violation of Section 628(b), the Commission must make two independent  xdeterminations. First, the Commission must determine that the defendant has engaged in unfair methods  xDof competition or unfair or deceptive acts or practices. Second, the Commission must determine that the  x3unfair acts or practices, if found, had the purpose or effect of hindering significantly or preventing an  xQMVPD from providing satellite cable programming to subscribers or consumers. Here, we do not believe  xthat the record supports a conclusion that Defendants have engaged in unfair or deceptive acts in  S' xtransferring the overflow programming to the MetroChannels.IQX6( yOb' x ԍBecause we do not find Defendants' actions to be unfair or deceptive, we need not address whether such actions  xV had the purpose or effect of hindering significantly or preventing an MVPD from providing satellite cable programming to subscribers or consumers.I In enacting Section 628, Congress  xdetermined that while cable operators generally must make available to competing MVPDs vertically xintegrated programming that is satellitedelivered, they do not have a similar obligation with respect to  xprogramming that is terrestriallydelivered. Complainants' argument would have us find that it is  xsomehow unfair for a cable operator to move a programming service from satellite delivery to terrestrial  xdelivery if it means that a competing MVPD may no longer be afforded access to the service. We find  xno evidence in Section 628 that Congress intended such a result. Congress did not prohibit cable operators  xfrom delivering any particular type of service terrestrially, did not prohibit cable operators from moving" Q,`(`(88"  x"any particular service from satellite to terrestrial delivery, and did not provide that program access  xZobligations remain with a programming service that has been so moved. Thus, given our prior finding  S' x*that Defendants' actions do not amount to an attempt to evade our rules, we decline to find that, standing  S' xalone, Defendants' decision to deliver the overflow programming terrestrially via the MetroChannels and to deny that programming to Complainants is "unfair" under Section 628(b).  S' e 26.` ` Complainants' final argument is that Defendants' conduct constitutes the imposition of an  x<exclusive agreement for which Defendants have not obtained the prior approval and public interest  S' xdetermination required under Section 628(c)(2)(D) and the Commission's implementing rules.gR6( yO* 'ԍ47 U.S.C.  548(c)(2)(D); 47 C.F.R.  76.1002(c)(4), (5).g Section  x628(c)(2)(D) applies to certain exclusive contracts for "satellite cable programming or satellite broadcast  Sr'programming."DSrX6( yOj 'ԍ47 U.S.C.  548(c)(2)(D).D As we stated in DIRECTV and EchoStar:  XWe believe that the correct reading of Section 628(c) is that the provisions in question  apply to satellite cable programming, not programming that was "previously" satellite Wdelivered, or the "equivalent" of satellite cable programming, or programming that would  dqualify as satellite cable programming, but for its terrestrial delivery. The statute defines  S ' "satellite cable programming" as that which is transmitted via satellite.QT 6( yO 'ԍ47 U.S.C. 605(d)(1)(emphasis added).Q This reading is  consistent with the legislative history of Section 628 which indicates that the version of  the program access provision that the Senate adopted would have extended to terrestrially S' delivered programming services but the House bill, that was eventually adopted, did not.oUx6( {O&'ԍSee H.R. Conf. Rep. No. 862, 102d Cong., 2d Sess. at 913 (1993).o  S'This indicates a specific intention to limit the scope of the provision to satellite services.V 6( {O'ԍDIRECTV, 13 FCC Rcd at 21,834 (footnote omitted); EchoStar, 14 FCC Rcd at 2099 (footnote omitted).   xAs with Complainants' Section 628(b) argument, Complainants' prohibited exclusive contract argument  xVpresupposes that Defendants' movement of the overflow games from satellite delivery to terrestrial  xdelivery constitutes improper conduct requiring the treatment of the programming at issue as satellite  x&delivered programming subject to the program access rules. To the contrary, we find that the record  x3supports a conclusion that Defendants have not engaged in unfair or deceptive acts in transferring the  xoverflow programming to the MetroChannels. Accordingly, because the programming at issue is  xterrestriallydelivered it does not constitute satellite cable programming. We therefore must deny Complainants' Section 628(c)(2)(D) claim.  S.' e 27.` ` Lastly, in its complaint, RCN requested discovery in order to explore the motivation for  xDefendants' conduct in conjunction with its evasion claims. Section 76.1003(g) of the Commission's rules  x provides that Commission staff have discretion to order discovery in program access disputes if they  S' xbelieve the record is insufficient.BW6( yO&'ԍ47 C.F.R.  76.1003(g).B We believe the pleadings and supporting affidavits submitted in these", W,`(`(88"  xproceedings provide sufficient detail regarding the creation of the MetroChannels and the decision to  xdistribute this service terrestrially, as well as the decision to shift distribution of the overflow programming  xto the MetroChannels. We do not believe that discovery is necessary to supplement the record and deny RCN's petition for discovery.  S8' VI.ORDERING CLAUSES  S' e #28. ` ` Accordingly, IT IS ORDERED , that the complaints filed in CSR 995404P by RCN  xTelecom Services of New York, Inc. and in CSR 995415P by Microwave Satellite Technologies, Inc.  S' ARE DENIED .  SH ' e q29.` ` IT IS FURTHER ORDERED , that the Petition for Discovery filed by RCN Telecom  S 'Services of New York, Inc. as part of its complaint in CSR 995404P IS DENIED.  S ' e 30. ` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321.  ` `  hhCFEDERAL COMMUNICATIONS COMMISSION  ` `  hhC ` `  hhC5F'y_________________________________________5 ` `  hhCWilliam H. Johnson ` `  hhCDeputy Chief, Cable Services Bureau F'y