October 8, 1999

STATEMENT OF COMMISSIONER GLORIA TRISTANI,
DISSENTING IN PART

In the Matter of Implementation of Section 11(c)
Of the Cable Television Consumer Protection and Competition Act of 1992
Horizontal Ownership Limits
MM Docket No. 92-264


	I would have lifted the Commission’s voluntary stay of its horizontal ownership 
rules.  While the stay may have done little harm in 1993, when it was imposed, it now 
constitutes a serious threat to the orderly enforcement of our rules and an abdication of 
our responsibility to implement Congress’ express statutory directives.

	In the 1992 Cable Act, Congress provided that the Commission “shall . . . conduct 
a proceeding” to establish horizontal ownership limits.  In 1993, shortly before the 
Commission issued its rules, the district court found the horizontal ownership provision 
of Section 613 unconstitutional on its face.   Importantly, the district court judge stayed 
the effect of his ruling, thereby permitting the Commission to adopt and enforce 
horizontal ownership rules.  Nevertheless, when the Commission adopted its rules shortly 
thereafter, it voluntarily suspended enforcement pending outcome of the Daniels appeal.  
The Commission has not always been so quick to abandon Congress’ mandates.  For 
instance, although a district court judge found Sections 271-275 of the Communications 
Act to be an unconstitutional bill of attainder,  the Commission continued to enforce 
those provisions under circumstances similar to those here, until the appellate court 
eventually reversed the lower court decision.  

	It has now been seven years since Congress expressly directed the Commission to 
establish horizontal ownership rules, and six years since the Commission opted to ignore 
that directive on its own motion.  In 1993, the Commission’s decision made little 
practical difference:  no cable operator was close to the 30% limit and appellate review of 
the Daniels decision could be expected well before the limit was breached.

Times have changed.  Now we are faced with the real possibility -- indeed, the 
virtual certainty, if all pending transactions are approved -- that a single cable operator, 
AT&T, will be significantly over the 30% cap, even under the liberalized rules being 
adopted today.  Moreover, concentration issues will be squarely before us when we 
consider AT&T’s proposed acquisition of MediaOne -- a decision that will likely come 
before the D.C. Circuit rules on the Daniels appeal.  Without enforceable rules, the 
Commission will not be able to address the Section 613 ownership issue at the time of the 
merger review, but, assuming the merger is approved, will have to wait until the D.C. 
Circuit acts.  Not to worry, the majority says:  if the D.C. Circuit upholds the horizontal 
ownership limits, AT&T and others will be required to come into compliance within 180 
days of the decision.

	The majority’s assurances give me little comfort because I do not believe its 
admonition about divestitures will ever be enforced.   This is not a criticism of the 
Commission, but a recognition of administrative reality.  It is much easier to enforce rules 
on a going-forward basis than to reverse established “facts on the ground.”  Ultimately, to 
the extent that the Commission is forced to grant waivers or grandfather ownership 
interests that violate our rules, Congress’ purposes in enacting Section 613 will be 
eviscerated. 

	It might be different if the Commission believed there were a substantial 
likelihood that it would lose on appeal, or if there were some reason to believe that the 
30% cap had grown stale.  But on August 13, 1999, the Commission filed a brief in the 
D.C. Circuit describing at length how, under the applicable standard established in the 
Supreme Court’s Turner decisions (which the Daniels court did not have the benefit of), 
the horizontal ownership provisions and the Commission’s implementing rules are clearly 
constitutional.  Nor is the 30% cap out-of-date:  today’s Order reaffirms the 30% cap 
based on a fresh record.

	In the end, the issue of lifting the stay boils down to whether the Commission is 
serious about implementing Congress’ express directive to establish reasonable 
horizontal ownership limits.  Today’s decision indicates that it is not.

	   
	   
  See Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1 (D.D.C. 1993).
  See SBC Communications, Inc. v. FCC, 981 F. Supp. 996 (N.D. Tex. 1997). 
  See SBC Communications, Inc. v. FCC, 154 F.3d 226 (5th Cir. 1998).
  I note that the Commission’s commitment appears to be waning already.  In last year’s Order on 
Reconsideration, the Commission insisted that cable companies be prepared to come into compliance with 
its rules within 60 days of a judicial decision upholding our rules.  On its own motion, the Commission has 
extended that to 180 days.