In Re Request by TIME-LIFE
BROADCAST, INC.; STERLING MANHATTAN CABLE TELEVISION, INC. For Interpretive
Ruling
FEDERAL
COMMUNICATIONS COMMISSION
31
F.C.C.2d 747
RELEASE-NUMBER: FCC 71-946
SEPTEMBER 8, 1971
OPINION:
[*747] DEAR MR. PIERSON:
This is in reply to your letter of July 7, 1971, written on behalf of Time-Life
Broadcast, Inc., and Sterling Manhattan Cable Television, Inc., in which you
ask the Commission to issue an interpretive ruling that pay television
cablecasting operations by Sterling Manhattan Cable Television are
"affirmatively authorized." You state that affirmative authorization
by the Commission is necessary for CATV systems presently franchised in New
York City because Section 4(1) of the New York City Franchise, issued to
Sterling Manhattan Cable Television, states in part that, "The Company shall
not engage in Pay Television nor shall it deliver signals of any person engaged
in Pay Television, unless and until affirmatively authorized by the FCC."
In paragraph 17 of the Notice of
Proposed Rule Making in Docket 18397, 15 FCC 2d 417 (1968), the Commission
indicated that CATV's could make per-program charges. More recently, in
Clarification of CATV First Report, 20 FCC 2d 741 (1969), this Commission ruled
that local authorities are pre-empted from interfering with federally
authorized CATV origination and advertising. Accordingly, the Commission
has pre-empted the field of pay television cablecasting so that local franchise
terms are inoperative and no further affirmative authorization is
required. In any event, the cited actions make clear the Commission's
recognition that pay television on cable may serve the public interest and it
has, to the extent indicated, already authorized such operations. And see
"Letter of Intent of August 5, 1971", FCC 71-787.
Any such operation must be
consistent with the Commission's present regulations (See Section 74.1121 of
the Commission's Rules) and any revision thereof (e.g., see Notice of Proposed
Rule Making in Docket No. 18893, FCC 70-678). This present letter is thus
not to be construed to sanction, authorize, or encourage the carriage of any
specific program on pay cablevision. As you know, the Commission has
expressed its continued concern that programming now presented on broadcast
television might be siphoned off to cable, and it intends to keep a close watch
on this question and to take whatever action is necessary to protect the public
interest.
[*748] We trust the
foregoing adequately supplies the information sought in your letter of July 7,
1971.
Commissioner Robert E. Lee not
participating; Commissioner Johnson concurring in
part and dissenting in part and issuing a statement; Commissioner Wells
concurring in the result.
BY
DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY:
JOHNSON (IN PART)
DISSENT:
OPINION BY COMMISSIONER JOHNSON,
CONCURRING IN PART AND DISSENTING IN PART
This letter constitutes, in my
judgment, a major cable policy decision by the Federal Communications
Commission.
We are authorizing subscription
television on cable television systems (1) by the cable operators or (2) by
leasees of their facilities.
Moreover, we are ruling this is so,
notwithstanding the express prohibition of such programming by the local
franchising authority -- here, the City of New York.
I believe the issues here involved
are of sufficient consequence that they ought to be considered in a little more
thorough way than a specially-processed, late-agenda-item letter to an
attorney.
I concur in authorizing cable
operators to lease channels for subscription television purposes. Even as
to that issue, however, I believe we have not in this instance given adequate
consideration to the interests of local governments in such matters.
We are now in the process of issuing
a new major policy statement on cable. See "Letter of Intent"
of August 5, 1971; FCC 71-787. I believe it is untimely to be issuing a
separate policy statement on such a specific significant issue at this time.