LEXSEE 36 FCC 2D 306

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In the Matter of AMENDMENT OF PART 74, SUBPART K, OF THE COMMISSION'S RULES AND REGULATIONS RELATIVE TO COMMUNITY ANTENNA TELEVISION SYSTEMS; AND INQUIRY INTO THE DEVELOPMENT OF COMMUNICATIONS TECHNOLOGY AND SERVICES TO FORMULATE REGULATORY POLICY AND RULEMAKING AND/OR LEGISLATIVE PROPOSALS; AMENDMENT OF SECTION 74.1107 OF THE COMMISSION'S RULES AND REGULATIONS TO AVOID FILING OF REPETITIOUS REQUESTS; AMENDMENT OF SECTION 74.1031(c) AND 74.1105 (a) AND (b) OF THE COMMISSION'S RULES AND REGULATIONS AS THEY RELATE TO ADDITION OF NEW TELEVISION SIGNALS; AMENDMENT OF PART 74, SUBPART K, OF THE COMMISSION'S RULES AND REGULATIONS RELATIVE TO FEDERAL-STATE OR LOCAL RELATIONSHIPS IN THE COMMUNITY ANTENNA TELEVISION SYSTEM FIELD; AND/OR FORMULATION OF LEGISLATIVE PROPOSALS IN THIS RESPECT; AMENDMENT OF SUBPART K OF PART 74 OF THE COMMISSION'S RULES AND REGULATIONS WITH RESPECT TO TECHNICAL STANDARDS FOR COMMUNITY ANTENNA TELEVISION SYSTEMS

Part 2 of 2

36 F.C.C.2d 143

Dockets Nos. 18397; 18397-A Docket No. 18373;

Docket No. 18416; Docket No. 18892; Docket No. 18894

February 3, 1972 Released

Adopted February 2, 1972

JUDGES: BY THE COMMISSION: COMMISSIONERS BURCH, CHAIRMAN; BARTLEY, REID, AND WILEY CONCURRING AND ISSUING STATEMENTS; COMMISSIONER ROBERT E. LEE DISSENTING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE ABSENT.

OPINION:

CABLE TELEVISION REPORT AND ORDER

SUPPLEMENTARY OPINION OF COMMISSIONER NICHOLAS JOHNSON

CONCURBY: BURCH; BARTLEY; JOHNSON (IN PART); REID; WILEY

CONCUR:

CONCURRING STATEMENT OF CHAIRMAN BURCH

Prologue

Since the day I joined the Federal Communications Commission, on October 31, 1969, one of the most complex, controversial and significant issues we have had to face has been the shaping of a regulatory program for cable television. In this we have been fortunate. Only rarely does a governmental body have the opportunity to take part in an act of genuine creation -- in this instance, to turn a corner in communications technology that holds the promise at least of a whole new era of service to the American people. I believe the Commission's response has been in keeping with its opportunity: months of painstaking study, measured deliberation, culminating in regulatory craftsmanship of a high order. We have grounds for pride in a signal accomplishment.

During this same period of time, I and the other Commissioners have been exposed to an incessant barrage of vilification, willful misrepresentation, and left-handed slander issuing from our colleague, Commissioner Johnson. I have chosen in this Concurring Statement to respond in some detail to his latest polemic, not because it is particularly better or worse than the run of his performances n1 but because of the unusual importance of the subject matter. And more, because he is essentially a performer, he is good copy. This means that his attempt to distort an act of creation into a public obscenity may end up becoming the story of the Commission's cable program. I find this insupportable and, charged as I am with leadership of this Commission (but speaking here for myself only), I am not about to let it go unchallenged.

n1 For samples of Commissioner Johnson in typical form, see Rolling Stone, April 1, 1971; Penthouse, February 1972; and Keynote Address, 3rd Annual Conference, International Association of Political Consultants, London, December 14, 1970.

There is another consideration that outweighs any reluctance I might feel about entering the lists. The end product of the regulatory craft is inherently unglamorous. It is all but incomprehensible to the layman. And because it generally melds a mixed bag of competing, conflicting options, a set of rules is at best a pale copy of the good, the true, and the beautiful. Responsible policymakers recognize the imperfections of their craft. They operate reluctantly but resignedly within the bounds of the possible.

Not so Commissioner Johnson. In the manner of demagogues, he elevates gross simplification to the level of a moral imperative. For him all differences are by definition dishonest. Accommodation and compromise equal "sellouts". Any desire to preserve what we have -- warts and all -- can only be motivated by "greed". Commissioner Johnson's world is peopled wholly by white hats and black hats, and every role is type-cast in advance. I almost envy him the simplicity of his perspective. But I cannot wallow with him in the luxury of his irresponsibility.

And that, I am forced to conclude, is the explanation. Commissioner Johnson is preeminently an "irresponsible" in a policymaking milieu where complexities are the order of the day and simplistic answers no longer suffice. He practices the "scorched earth" technique -- and, from his viewpoint, why not? Exploitable issues are what interest him, not practical results. He trafficks in bombast, not the undramatic reality of incremental progress. Today his target of opportunity is cable television -- and if public comprehension of this emerging but largely untested technology is the necessary sacrifice, so much the worse for public comprehension. There is, as I suggest, a certain grandeur about his simplistic approach to a policy area so crowded with imponderables. But, for a Commissioner with undeniable capabilities and even charismatic powers, what a vast waste!

The Commission's Cable Program

Commissioner Johnson launches his critique of the Cable Television Report and Order (adopted February 2, 1972) from an irony, and it's downhill thereafter. The irony, of course, is that he has the sheer brass to accuse the Commission majority of locking the door on cable's entry into the major television markets when it was they -- three of whom cast their first key cable votes in the proceeding just concluded -- who acted to institute a modest thaw and he -- as recently as December 1968 -- who helped perpetuate a virtual freeze. That was the clear effect of past Commission decisions in which he participated, and (at p. 16 of his Opinion) he admits as much. n2

n2 Commissioner Johnson is confused even about what it was he was voting for. He seems to have the 1966 Second Report (in which he did not participate) mixed up with the 1968 Notice (in which he did). Under the rules in effect from 1966 until March 31, 1972, a cable system may not import a distant signal into a top 100 market without first going through a lengthy hearing (Section 74.1107(a)). Contrary to Commissioner Johnson's impression, this hearing process is automatic, not dependent on a broadcaster's objection. The definitive such hearing was the 1968 Midwest Television, Inc. case (13 FCC 2d 478) in which Commissioner Johnson cast the crucial fourth vote to maintain the "freeze" of the Second Report.

Like most newly-saved sinners, however, Commissioner Johnson would now more to the opposite extreme. His self-styled "market place" model contemplates unlimited distant signal importation -- which, in his projection, would mean about 8-to-15 broadcast signals in the major markets -- with little regard to impact on local television service. Commissioner Johnson would, to be sure, throw two bones to local broadcasters. He proposes but never really explains "simultaneous non-duplication" protection for programming being shown on local signals (which would mean just about nothing so far as non-network syndicated material is concerned) n3 and special relief where a local station can demonstrate that cable competition is forcing it to the wall.

n3 It is interesting to note that this is a wholly new proposal. Never before, to my recollection, has Commissioner Johnson offered this idea for his colleagues' benefit.

But to say "the sky's the limit" and then try later to apply the brakes is a prescription for regulatory disaster. Even in the context of the Commission's market-tailored "adequate service" formula, we must of course be prepared to apply the brakes -- and we explicitly reserve the authority to do so where a showing is made that such relief is warranted. But surely it is sound policy to act conservatively from the outset, so that "special cases" rarely arise. And that, as Commissioner Johnson knows perfectly well, is precisely what the Commission has done. With regard to carriage rules, the fundamental rationale of the Cable Television Report and Order is to fix the number of signals (local and distant) at the minimum necessary to assure adequate service and get cable moving, while still tying its ultimate development (and success) to the provision of the services that are unique to cable technology -- access channels, cablecast originations, and leased channel services.

Again, there is particular irony in Commissioner Johnson's concentration on distant signal importation and his only passing reference (at pp. 8 and 9) to cable's non-broadcast services. Throughout the recent proceeding, he was an eloquent advocate for cable's unique capabilities -- well beyond simply moving broadcast signals around -- so much so, in fact, as to threaten cable's viability by loading on the burdens of "free" services. But now Commissioner Johnson is working the other side of the street, the better to chastise his colleagues for giving cable so few additional signals as to lock it out of the major television markets. Whatever else one can say about him, Commissioner Johnson is flexible.

But he is very nearly silent on the issue that has long been at the core of the controversy over cable's future -- and that is cable's standing outside the competitive market for television programming. Commissioner Johnson acknowledges (p. 6) that copyright owners "should be compensated for the use of their product by cable systems" but argues that regulations to implement their ownership rights "need not take the form of exclusivity." Rather, they "could simply require the automatic payment of fees to copyright holders."

The question is, what regulations? Not this Commission's, to be sure, because we have no power to legislate copyright payments (and Commissioner Johnson agrees on this point). Regulation by the Congress then? But for reasons that I'll turn to in due course, and as Commissioner Johnson knows perfectly well, Congress has been unable to pass cable copyright legislation -- and even assuming such legislation were passed, it clearly would take the form of exclusivity protection, not simply compulsory licenses, in the major television markets. The House bill did so (H.R. 2512, 90th Cong.) and so did S. 543 (91st Cong.) and S. 644 (92nd Cong.). There simply is no realistic prospect for the kind of Congressional regulation that Commissioner Johnson banks on -- and he knows it.

In that case, how about the courts? But, to the courts, the issue is not one of fashioning an appropriate regulatory approach. The Supreme Court in Fortnightly (392 U.S. at 401-402) made it clear that only Congress can do that. The Court's job was to say whether signal carriage by cable is or is not a "performance" within the meaning of the 1909 Copyright Law, and it held that carriage of off-the-air signals (Grade B contour and just beyond), is not. The still open question -- in CBS v. TelePromptTer, S.D.N.Y. -- is whether cable carriage of distant signals via microwave comes within the 1909 Law. A difficult question indeed. But my point here is that Commissioner Johnson's "market place" model rests foursquare on the contingency that cable, not CBS, will win the TelePrompTer case. If cable should lose, the model collapses. Even if cable wins, he will not have satisfied his own objective -- which is that copyright owners be fairly compensated for the use of their product.

Commissioner Johnson is simply trying to slide past one of the gut issues of the cable controversy: that cable remains an uneasy outsider with respect to the programming market. And only when it is brought within that market, when its right to the use of its basic product is secure and regularized, only then will its future be unclouded. It is this issue that the Federal Communications Commission can neither resolve nor avoid. For this among many reasons, our August 5 Letter of Intent to the Congress was not and is not sufficient unto itself as a way to end the freeze and get cable moving.

The Consensus Agreement

The ultimate answer must finally be found in legislation, as the Supreme Court made clear in Fortnightly. But the obstacle to legislation has long been the ability of any or all the contending industries -- cable, broadcasting, copyright -- to block any particular legislative approach with which they might take issue. Congressional leaders have repeatedly called on the industries to reach some fair and reasonable accommodation. n4 The Commission has also urged them to compromise their differences and pave the way for legislation, most recently in the August 5 Letter. All these efforts have been unavailing.

n4 See, for example, my recent exchange of letters with Senator McClellan, published as Appendix E to the Cable Television Report and Order.

After we outlined our regulatory program in the August 5 Letter, it seemed to me that the time was right for another try. Broadcasters were understandably nervous that this program would go into effect and the TelPrompTer case might go against them; cable was equally concerned about the outcome of litigation and the need to put itself on a solid base; and copyright owners were anxious to protect their major source of revenue in the top television markets. Then, too, the Office of Telecommunications Policy had a cable study under way, and all the principals were pressing their viewpoints in that forum. I joined OTP, therefore, in an effort to secure a consensus among the industries that would lead to resolution of the cable/copyright issue, de-escalate the level of violence, and thus greatly serve the public interest. There was no great secret about any of these developments. They were widely reported in the trade press. I would only point out, from my perspective as Chairman of the Commission, the practical difficulties of inviting a seven-member Commission to sit around the bargaining table or to take part in conference calls with the various parties.

It is patent nonsense for Commissioner Johnson to assert that the consensus agreement thus hammered out resulted from the efforts of the "powerful broadcast industry" to force a "sweetheart deal" down this Commission's throat. In fact, if I were to assess the varying degrees with which the principals have decided to accept the agreement -- and all of them have some reservations -- I would put the copyright owners first, cable second, and broadcasters a very distant third. Surely Commissioner Johnson has read Dr. Frank Stanton's letter of January 4, 1972, and Mr. C. Wrede Petersmeyer's of January 17th -- both of which excoriate the Commission's regulatory program and the consensus agreement about equally. They both know that, with this agreement, there has been substantial progress toward the peace table (and toward legislation that will put cable on a sound footing). Both know that there is now the promise at least of an end to the warfare. Their motives are perfectly understandable. They fear the unknown. It seems to me that Commissioner Johnson's motives are equally understandable but much less commendable -- that the threat of "peace breaking out" robs him of an issue. Significantly, Commissioner Johnson ignores the public interest considerations that are stated in the Cable Television Report and Order (pars. 61-67, and particularly 65) as the basis for our decision to implement the agreement. Because they do not fit into his scenario of an all-powerful broadcaster-White House "conspiracy", they simply do not exist for him.

I have already stated that my own motives were to find the basis for a consensus that would be reasonable, fair, and consistent with the public interest. I believe the November agreement meets the test. Using the August 5 Letter as a benchmark, there were two modifications in our earlier plan and one major addition -- and I want to examine each in turn.

First, there was a change in the "viewing standard" (the test for defining a nearby-market signal as in effect a local signal) from a one percent audience share to a two percent, with respect to independent stations. I cannot believe that Commissioner Johnson or anyone else seriously believes this change undercuts our August 5 proposal. It affects only 11 core cities and 16 signals, and cable's future in the major markets clearly does not turn on such (to use the Commission's own phrase in the Report and Order) "variations on a theme". Commissioner Johnson uses the example of Baltimore signals in Washington, D.C. But the fact is, there is no variation at all as to the signals that may be carried in the Baltimore-Washington markets, whether the viewing standard is set at one or two percent. n5

n5 There would be great variation if cable systems were permitted to carry all signals that could be picked up with an antenna, as Commissioner Johnson suggests (p. 13). But this is a far cry from "rabbit ears" viewability. He unsuccessfully tried out this approach back in May or June.

With respect to leapfrogging (the carriage rules that in general favor closer rather than more distant stations), the August 5 Letter imposed one set of restrictions and the consensus agreement another -- both of them reasonable, and both of them a mixture of pluses and minuses from the viewpoint of broadcasters and cable systems. It is important to note that when a distant signal must be blacked out because of exclusivity protection, we have imposed no restriction on point of origin for substitute programming. And this catches Commissioner Johnson in a flat contradiction. He argues, on the one hand, that there will be extensive blackouts (p. 12) and, on the other, he alleges that the leapfrogging requirements are now much more onerous for cable (p. 14). He is right about the first, and dead wrong about the second.

The addition to our August 5 proposal, and the core of the consensus agreement, is the exclusivity protection that will be afforded to non-network programming -- protection for local broadcasters against distant stations and, more fundamentally, for the owner's rights to control the use of his product. This does represent a change from August 5, where we recognized the issue but promised merely to study it further. And, in my view, it represents a marked improvement. In the first place, exclusivity should be dealt with by the Commission, not left to Congress, because it is a complex area of regulation that will require revision and refinement as we accumulate experience with the effect of our rules. Moreover, it is important -- both to cable and to broadcasting -- to protect the copyright owner's continued ability to produce programming; and his right to sell "exclusives" in the major television markets is a key consideration in this respect. But after one terse reference to the owner's rights (p. 6), Commissioner Johnson simply drops that component of the public interest equation.

He grudgingly admits that, in the context of the consensus agreement as incorporated in the Commission's exclusivity rules, "cable will be able to make a very modest start in some of the smallest markets" (p. 11). This is a distortion of the grossest sort. Under our rules, there will now be some chance for cable growth in markets 1-100 for the first time. n6 This will be true even in the top 50 markets where exclusivity is greatest. Eleven of these markets have no independent television service at all. Three imported signals will represent a substantial boost; and, even with run-of-contract protection, there is a good deal of programming available beyond what the three network affiliates have purchased. And there are another 17 of the top 50 markets with only one independent station: here, too, our rules should give cable an opening.

n6 In markets 51-100, contrary to Commissioner Johnson's assertion, there will be at most one-year protection for off-network series; the two years to which he refers applies to feature films. And because many of these series will already have been shown in a particular market, there will be no blackout at all.

He notes (p. 15) that there is no exclusivity afforded in smaller markets and says these were "given" to cable by broadcasters and copyright owners. But in the below top 100 markets -- far from being "given" to cable -- cable systems are limited to a 3-1 carriage formula.

Commissioner Johnson is quite right that cable will have no easy time of it in the very largest of the top markets where there is already a great deal of television service. That is true under the rules just adopted. And it was true under the terms of the August 5 proposal. In markets like New York and Los Angeles, for example, we have always recognized that a few additional television signals may not be enough to sell cable -- that its ability to get started in such markets will be largely dependent on the new, non-broadcast services that are unique to cable, and on its ability to serve select audiences. But what I do not comprehend is how Commissioner Johnson can equate the opening to cable of over two-thirds of the top 100 markets with "a very modest start in some of the smallest markets". He is wrong. He must know it. And he must know, too, that he is distorting reality -- complex as it may be -- just to grab a few flashy headlines. n7

n7 The extent of his success is plain. The New York Times of February 4, 1972, for example, ran its cable story under the two-column head, "New Rules on Cable TV Limit Growith in Cities". (Interestingly, The Washington Post -- same day, same rules -- headlined its story, "FCC Opens the Door to Let Cable TV Into Major Cities".) A further measure of Commissioner Johnson's success in distorting the cable story is the Times editorial of February 14, 1972: "... and Cable TV".

Finally, Commissioner Johnson sends up a barrage of procedural objections in his attempt to shoot down the consensus agreement. The principal one -- that it was dictated by "fat cat" broadcast interests -- is, as I've noted, the purest of fiction. He also asserts (p. 9) that it was forced on the cable industry "who felt threatened by the political power of the broadcasters -- once joined by Chairman Burch and the President". I never presume to speak for the President, but for myself this assertion is sheer fabrication. I made it clear to the participants in the negotiations that, absent any agreement, I would propose to go forward on the basis of the August 5 Letter. But I made it equally clear that, in my view, the agreement would marked serve the public interest and their interest because (to say it again) it dealt with the gut issues of exclusivity and copyright, and would facilitate legislation. I don't for a moment doubt that all the parties would have preferred to win all their points and that they did give way on some. Which, after all, is the nature of consensus. But I have no doubt either about their judgment, on balance, that the agreement did serve their interests. That is why they entered into it.

Commissioner Johnson argues further (pp. 22-24) that we have unconstitutionally delegated our powers to industry and that I, in particular, then rammed external fiat down the Commissioners' throats. Wrong again. Nothing was forced on the Commissioners and -- as a full participant in several weeks of deliberation of every nuance of the consensus agreement -- Commissioner Johnson knows it. He also knows that he lost. We debated the details of the agreement. We debated the necessity of implementing it in its entirety. We debated its probable impact on the passage of cable/copyright legislation, and the critical importance of such legislation to cable's assured future. We went over every square inch of the ground -- and then went over it again. And, in the end, we voted: a majority of the Commissioners explicitly decided that the public interest would be served by the Commission's implementation of the agreement. No conspiracy. No arm-twisting. No secret deals. Just an open debate and an open vote -- and, as I've noted, Commissioner Johnson lost.

As one last shot, Commissioner Johnson asserts (pp. 20-21) that we have trampled on the rights of the public to full participation in our processes. But on all the matters addressed in the consensus agreement -- exclusivity, leapfrogging, overlapping market signals -- the Commission gave full notice of the "subject matter and issues", as required by the Administrative Procedures Act, and full opportunity for public comment. For several years running, we have been inundated with comments, studies, analyses, and projections of probable impact.

But none of these comments gave us a detailed blueprint of cable regulations. That the Commission had to craft for itself, out of the public input and its own experience. The August 5 Letter outlined such a reasonable blueprint. And Commissioner Johnson does not argue that we should have put those proposals out for public comment -- far from it (pp. 27-28). I agree. But so too did we have full public comment when we had to consider the details of the November consensus agreement. We had no sudden need for additional comment on such matters as leapfrogging or the viewing standard or even exclusivity. Most important, the fundamental judgment to be made -- whether implementation of the agreement would contribute to a resolution of the underlying controversy -- was a quasi-legislative policy determination. And here comment would not have helped: this was a judgment for each Commissioner to make, in his own wisdom and conscience.

Epilogue

Perhaps one the premier orators and students of the English language to serve in the United States Senate was Henry Fountain Ashurst of Arizona. I often reread some of his published speeches and am ever amazed at the timeliness of his thoughts and ideas. Let me bring this statement to a close with a paraphrase of a speech given by Senator Ashurst on the floor of the Senate on June 15, 1935:

It is not for me to pass judgment on Commissioner Johnson. He has as much right to pas judgment upon me as I have to appraise him. An attitude of censoriousness is the one attitude this Commission never tolerates and never forgives any of its members, but I will venture the suggestion that if Commissioner Johnson should look into his mirror objectively, as he doubtless will some day, he will distinctly perceive a man frequently disrespectful of the rights and feelings of others, exalting himself with an unwarranted sense of superiority over those less gifted and less fortunate than himself; a man too often taking undue advantage of his position here; a man of reckless abandon in speech and relentless in his forays upon those two disagree with him.

CONCURRING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY

The largest broadcast stations and representatives of the copyright owners have again succeeded in preventing the development of cable in most of the largest markets, thus depriving receiving set owners of the opportunity to subscribe, if they wish, to enjoy clearer reception and additional services.

I am mystified by the willingness of the representatives of the copyright owners to retard the development of an alternative market for their product; however, as the Commission has so often said, copyright protection is a matter for Congress.

It is clear, however, that until there is copyright legislation applicable to cable, the opponents of cable can continue to prevent its growth.

While I view the action here, in large measure, as another freeze in many markets, there is enough thaw around the edges to prove cable's worth in some new markets and demolish the bugaboo that cable will destroy over-the-air, advertiser-supported television.

I place particular reliance upon the Commission's declaration in Paragraph 66 of the Report and Order that it retains regulatory flexibility to shape cable's evolution. Legislation which must follow will only limit the number of distant signals to which compulsory copyright licenses apply. n1 In all other respects, the Commission retains full freedom and, indeed, the responsibility to act as future developments warrant.

n1 Those specified in Sections 76.59, 76.61 and 76.63 of the Rules.

Accordingly, I concur.

SUPPLEMENTARY OPINION OF COMMISSIONER NICHOLAS JOHNSON

“I never gave the Republicans hell. I just told the truth and they thought it was hell.”

President Harry S. Truman

There has been a controversy in Washington, D.C., recently regarding yet another bridge across the Potomac River, the "Three Sisters Bridge" -- so named because of the three small islands in the river where it would cross.

Those who build highways thought it necessary to their scheme of things. Those who seek mass rapid transit systems -- joined by environmentalists -- opposed the bridge.

The National Capital Planning Commission originally included the bridge in its comprehensive transportation plan. It then deleted it. Six months later Representative Natcher, Chairman of the Subcommittee of the District of Columbia of the House Appropriations Committee, "suggested" that if the bridge were not built he would see to it that money for the construction of the planned subway system was denied. The Commission then revived the bridge plan.

The process for revival required that Secretary of Transportation John Volpe approve the building of the bridge. He did so, and the building commenced. Disappointed protesters appealed, arguing among other things that it was inappropriate for the Secretary to take into consideration Congressional pressure. On April 6, 1970, the United States Court of Appeals for the District of Columbia Circuit remanded the decision to the trial court for an evidentiary hearing to determine whether the Secretary had complied with the pertinent provisions of law in reviving the bridge. D.C. Federation of Civic Associations v. Volpe, 434 F. 2d 436 (D.C. Cir. 1970). After hearing, the case again came before the Court of Appeals. In a landmark decision, the Court reversed the decision of the Secretary. D.C. Federation of Civic Associations v. Volpe. F. 2d D.C. Cir., October 12, 1970).

Because of the remarkable parallel between the issue in that case and the one before us I would like to quote at greater length than usual from Judge Bazelon's opinion.

The author of this opinion is convinced that the impact of this pressure [the threat by Representative Natcher to withhold funds needed to complete the subway] is sufficient, standing alone, to invalidate the Secretary's action. Even if the Secretary had taken every formal step required by every applicable statutory provision, reversal would be required, in my opinion, because extraneous pressure intruded into the calculus of considerations on which the Secretary's decision was based.

* * *

While Judge Fahy is not entirely convinced that the District Court ultimately found as a fact that the extraneous pressure had influenced the Secretary's decision -- a point which is for me clear -- he has authorized me to note his concurrence in my discussion of the controlling principle of law: namely, that the decision would be invalid if based in whole or in part on the pressures emanating from Representative Natcher. Judge Fahy agrees, and we therefore hold, that on remand the Secretary must make new determinations based strictly on the merits and completely without regard to any considerations not made relevant by Congress in the applicable statutes.

* * *

[The] underlying problem cannot be illuminated by a simplistic effort to force the Secretary's action into a purely judicial or purely legislative mold. His decision was not "judicial" in that he was not required to base it solely on a formal record established at a public hearing. At the same time, it was not purely "legislative" since Congress had already established the boundaries within which his discretion could operate. But even though his action fell between these two conceptual extremes, it is still governed by principles that we had thought elementary and beyond dispute. If, in the course of reaching his decision, Secretary Volpe took into account "considerations that Congress could not have intended to make relevant," his action proceeded from an erroneous premise and his decision cannot stand. The error would be more flagrant, of course, if the Secretary had based his decision solely on the pressures generated by Representative Natcher. But it should be clear that his action would not be immunized merely because he also considered some relevant factors.

* * *

We do not hold, in other words, that the bridge can never be built. Nor do we know or mean to suggest that the information now available to the Secretary is necessarily insufficient to justify construction of the bridge. We hold only that the Secretary must reach his decision strictly on the merits and in the manner prescribed by statute, without reference to irrelevant or extraneous considerations.

For the purposes of the foregoing discussion, we have assumed that pressures exerted by Congressional advocates of the bridge are irrelevant to the merits of the questions presented to Secretary Volpe. It does not seem possible to make even a colorable argument of relevance except with regard to � 138; but it might be argued that the potential loss of the subway was the type of "unique problem" and cost of "extraordinary magnitude" that the Secretary could properly consider in deciding, pursuant to � 138; that there were not prudent alternatives to the use of parkland for the bridge. The Secretary plainly understood that the price of abandoning, modifying, or even delaying construction of the bridge was the loss of appropriations for the District's subway. He undoubtedly viewed the prospect of that loss with understandable alarm, and may have concluded that the destruction of parkland was inescapable and appropriate in the face of Representative Natcher's clear and enforceable threat. We cannot agree, however, that a determination grounded on that reasoning, would satisfy the requirements of � 138.

* * *

The "unusual situation" posited here is entirely the product of the action of a small group of men with strongly-held views on the desirability of the bridge, who, it may be assumed, are acting with the interests of the public at heart. They may well be correct in concluding that a new bridge is needed and that no alternative location is available. But no matter how sound their reasoning nor how lofty their motives, they cannot usurp the function vested by Act of Congress in the Secretary of Transportation.

* * *

To avoid any misconceptions about the nature of our holding, we emphasize that we have not found -- nor, for that matter, have we sought -- any suggestion of impropriety or illegality in the actions of Representative Natcher and others who strongly advocate the bridge. They are surely entitled to their own views on the need for the Three Sisters Bridge, and we indicate no opinion on their authority to exert pressure on Secretary Volpe. Nor do we mean to suggest that Secretary Volpe acted in bad faith or in deliverate disregard of his statutory responsibilities. He was placed, through the action of others, in an extremely treacherous position. Our holding is designed, if not to extricte him from that position, at least to enhance his ability to obey the statutory command notwithstanding the difficult position in which he was placed. D.C. Federation of Civil Associations v. Volpe, F. 2d (D.C. Cir., October 12, 1971) (slip opinion at 24-31) (footnotes omitted) (emphasis supplied).

After all the rhetoric, euphemisms, and ad hominum arguments are stripped away from Chairman Burch's outburst, the most significant issue dividing us is symbolized by this case.

We disagree on some of the specific details of the August 5th and February 4th policy statements. Those disagreements have been fairly thoroughly canvassed in our opinions of February 9th and 16th. We were, after all, shoulder-to-shoulder on the August 5th policy statement, and I have had nothing but praise for the Chairman's leadership in bringing us through some innovative hearings to that position. To the extent we differ as to the likelihood of the extent and location of the cable "freeze" brought about by our new rules I can only hope that history will prove him to be right and me wrong. To the extent we differ as to my sincerity and effectiveness in making long-range substantive contributions to communications policy in the United States (including cable television policy), once again we will have to await the future judgment of those that follow us. It would be impossible, as well as inappropriate, for me to prepare today the catalog of change effected during an exciting first six years of my seven year term.

No, the differences between us that matter -- differences that I would have hoped could be addressed without personal rancor -- involve the propriety of the fact, and the process, of our yielding to what can only be described as industry (and potential Congressional) pressure.

It is factual, not "dishonest," "irresponsible," or an "oversimplification," to assert that the FCC had formulated a near-unanimous statement of what the public interest called for in cable television policy on August 5, 1971.It is a fact that Chairman Burch and I voted together -- without separate statements -- on that policy. It is a fact that it was sent to the United States Senate and House of Representatives with the representation that it was to become national cable policy.

It is a fact that closed meetings were subsequently held under the auspices of the White House, and that Chairman Burch participated in those meetings with a representative of the President of the United States. It is a fact that the other Commissioners did not participate in those meetings, and that they were not simultaneously briefed as to their existence or substance. It is a fact that the industry representatives involved represented what can fairly be called "big business." It is a fact that no representatives of the public were present -- nor, for that matter, representatives of small market television station operators.

It is a fact that the Commissioners were subsequently presented with a "fait accompli" -- they could accept the new policy in its entirety or not at all. It is a fact that they accepted it because of representations that, otherwise, industry, White House and Congressional pressures would halt our August 5th policy.

I believe such a procedure was wrong, inappropriate, despicable -- call it what you will. I believe it was politically unnecessary, for reasons I spelled out in my February 9th statement. I believe it may also have been illegal.

None of this has anything to do with my personal feelings about Dean Burch or President Nixon. Nor does it have to do with my unwillingness to compromise -- the August 5th statement represented a considerable accommodation to the practical politics of broadcasters' power. It has to do with the outer reaches of propriety in administrative procedure.

Whether or not our procedures may also be found to have actually violated the law remains to be seen. The Three Sisters Bridge case seems close to this one -- almost directly applicable if one substitutes "Commission" for "Secretary," and "cable compromise" for "bridge." Whatever the law may prove to be, however, my principal disagreement is with the impropriety and the appearance. In an age when cynicism is rampant about the federal government in general and the FCC in particular, I believe we have an obligation to give the public cause for more confidence rather than less.

CONCURRING STATEMENT OF COMMISSIONER CHARLOTTE T. REID

I concur in the action taken today by the Commission.

The enactment of these new Cable Television Rules will, hopefully, provide for the further development of cable television systems.

While I do not find myself in complete accord with each and every item set forth in the new Rules, the fact that these rules reflect the consensus agreement reached by the principal parties (cable television system owners, broadcasters and copyright owners) are far better than no rules at all. It, therefore, seems clearly in the public interest to give implementation to the compromise agreement and for that reason, I concur with the results of the Commission's action.

We must be fully aware however, that there may be problems in some areas. A particular concern to me, is the impact which these rules may have on broadcasters located in the smaller markets. It is for this reason that we have provided that the Rules do not become effective until March 31, 1972. Should there be difficulties, persons affected thereby may bring these to the Commission's attention in their Petitions for Reconsideration.

I wish to reiterate that I feel that the action taken by the Commission is definitely a step in the right direction, and that it conforms to the basic intent of the August 5 letter. Our action should now provide Congress with a foundation for the enactment of copyright legislation in further implementation of the compromise agreement.

CONCURRING STATEMENT OF COMMISSIONER RICHARD E. WILEY

The cable television program which this Commission has wrought is the attempted settlement, after years of experience and recent months of intensive study and analysis, of one of the most complex and difficult problems ever presented to any administrative body, I is, in its very essence, a compromise: between diverse industry groups, between competing technologies, between a plethora of different viewpoints and, in the final analysis, between various Commission members on myriad points of substance and form. As such, it is -- indisputably -- not a perfect document. It is not even the document which, left to our druthers, each of us perhaps would have written. But so it is with any compromise -- something which, in its four corners, fully satisfies no one.

Edmund Burke has said: "All government -- indeed... every prudent act -- is founded on compromise." Ultimately, I have been persuaded that the adoption of this compromise package for the further development of cable television in this country is, administratively, a prudent act. The choice realistically confronting the Commission, after all, was this particular program -- or none at all. And faced with this choice, I have selected the former with certain personal reservations of which I would like briefly to take note.

Throughout our deliberations on this program, my profound concern has been that, in permitting cable television with its great promise of potentially new and significant services to the public to develop, we not in the process destroy or unduly impair the service which over-the-air television has long provided to American citizens. My apprehension in this regard has focused particularly on smaller broadcasters whose service to rural and sparsely populated areas of our country generally has been, in my opinion, very much in the public interest. And, sad to say, it is sometimes smaller entities whose voices are less heard and heeded when a compromise is attained. In this connection, while by no means everything which some small broadcasters urged was required, I am heartened by the provisions of the Report and Order which indicate that the Commission will continue to scrutinize carefully the impact of cable television penetration on such public service broadcast operations and will, where necessary to insure that local service will not disappear or be unduly dissipated, extend special relief or adjust its program accordingly. I take these provisions very seriously and intend to hold the Commission to its word in this regard.

Similarly, I have been concerned that the Commission, to date, has devoted far too scant attention and analysis to the question of cable's impact on existing radio service to the public. For this reason, I strongly favor the further inquiry which the FCC has decided to conduct in this important area and am satisfied that the interim provisions of the Commission's Notice of Proposed Rule Making will effectively preserve the status quo while we make an expeditious but intensive examination of this entire subject.

Finally, while a majority of the Commission felt that permitting addition comment on our cable television rules was not required, I am mollified by its action in delaying the effective date of the rules beyond the 30 days ordinarily required so that we may consider petitions for reconsideration prior to the rules becoming operative.

I would like to close by affirming, for the record, the fact that I, as a Commissioner, was given every opportunity during our prolonged deliberations to express my own personal viewpoint on the very complicated issues involved in this entire matter. In my opinion, the same was true of each of my colleagues. If our procedures in bringing this cable package to fruition were in any way out of the ordinary, I believe it is also fair to say that the problem with which we were grappling was eminently out of the ordinary. Fundamentally, the decision which each member of the Commission had to address was whether or not the compromises involved resulted in a program which, in the final analysis, serves the public interest.

I have made that decision. I concur.

DISSENTBY: WELLS; LEE; JOHNSON (IN PART)

DISSENT:

DISSENTING STATEMENT OF COMMISSIONER ROBERT WELLS

I would have preferred to concur in the action of the majority in the adoption of this document for we all have the same goals. Our objective is to provide for the further development of cable television systems, done in such a manner that we do not disrupt or diminish the service now being brought to the public by the broadcasting industry. Since we all wanted to achieve this goal, most of our differences are matters of degree.

However a segment of the action taken by the majority represents another example of over regulation at the Federal level. It was done without local franchising authorities having an adequate opportunity to demonstrate their ability or inability in this complex field.

We do not have before us a case of federal funding where some federal controls are inevitable. We have preempted jurisdiction where for various reasons the basic requirements for these systems vary from one franchise area to another. Rather gratuitously the majority has assumed that all expertise in this matter is at the Federal Communications Commission. It is true that the Commission has held many hours of hearings and discussions on cable television and should be more informed than most local franchising authorities in many aspects. This does not mean that the Commission has acquired the necessary skills required to deal with local problems which reasonably can be expected to arise in such a complex field. The rationale for assuming our expertise in local situations, which is thought to be so great so as to preclude even giving local authorities any control over what is needed in the way of local access channels, escapes me.

While I would favor a nationwide interconnected cable television network, at this time I oppose allowing signals to be imported from any distance as is proposed in the document before us. The possibility of adverse impact by such signals upon existing broadcast services is of grave concern. I would have been more cautious now, hoping that experience would permit us to come to the point where all restrictions might be abolished.

Stating my objections briefly, I believe we could have given cable systems less in distant signal importation and still stimulated its growth. On the other hand, I would not have the Commission burdening cable operators with what could prove to be excessive capital outlays because of our proposals for non-broadcast channel capacity. I am sure that in some cases our channel capacity requirements will prove to be quite reasonable. The local franchising authorities are in the best position to make that determination and I would leave the matter of access channels entirely to them. Neither would I make any reference to franchise fees or subscriber rates for these again should be left to the judgment of the local authority, and the Commission should not preempt this jurisdiction.

Although I realize any distinction between markets by size is purely arbitrary, I would have preferred a figure other than markets 1-50. For the purpose of this subject, the placing of Wilkes-Barre, Pennsylvania in the same category as New York City is not logical when one considers the question of the ability of the Wilkes-Barre market to withstand the impact of additional distant signal competition. Again, I realize any figure is open to argument, but I do feel we could have arrived at a better division.

I also see the Commission's action as one which will result in a substantial number of requests for waivers from the cable television systems in the many different areas covered by these proposals. Such requests would, in my judgment, have been far fewer in number if local issues had remained for the local authorities' determination, and decisions could be handled far more expeditiously.

On a matter as complex as this one, I could write a lengthy document. I do not choose to belabor all the details. Although I agree with the motives, I disagree with many of the principles involved in our federal-state relationship and have stated some of these objections. Most of my other differences are matters of degree. In the final analysis, I disagree with such a substantial amount of this document that I have no alternative but to dissent.

DISSENTING STATEMENT OF COMMISSIONER ROBERT E. LEE

There is no disagreement that today's action is of profound importance. For those who support that action, the Commission has started this nation down a road leading to vastly expanded television service for the American public. They see a future in which virtually every home in the country has a choice of 80 or more channels of television service. All this and more, they hope, will be accomplished with little or no adverse effect on the public's existing free broadcast service.

For those who disagree with today's action, who quarrel not with the glittering promise of cable but rather the means selected today to achieve that goal, the implications of today's action are equally profound. The otherwise vast potential for development of UHF televisions, a potential the public has created through the investment of literally millions of dollars in all-channel receivers, is sharply curtailed. That money, which the Congress at this Commission's urging required the public to spend, has in essence been wasted. Both the quality and the quantity of local television broadcast service will be sharply reduced in future years from what it otherwise would be. Whether cable TV can supply services of its own (program originations) to make up for this deficiency is conjectural. More importantly, that is a moot question insofar as those who will not have cable TV are concerned. They include the many, perhaps millions, who cannot afford it and those living in sparsely settled areas where we have no reason to believe that non-subsidized cable will ever develop.

Much of the importance of today's action lies in the change in basic regulatory policy which it reflects. The Commission began regulating cable TV carriage of broadcast signals in 1965 because of a concern that otherwise cable operations would lead to an impairment of broadcast service. The Commission's jurisdiction to regulate CATV was sustained by the Supreme Court precisely because we deemed such regulation to be essential, given our responsibility for the development of broadcast service. United States v. Southwestern Cable Co., 392 U.S. 157 (1968). Then the issue was, what is needed in the way of regulation to insure that the public does not suffer a loss in existing or potential broadcast service?

Now the issue is, what must cable be given in the way of opportunities to use broadcast signals in order to grow and prosper, and how much can be given to cable operators without unduly or unnecessarily impairing broadcast service to the public. Framing the issue in this new fashion stems from quite dubious premises. Despite the best of intentions and adoption of various regulatory requirements to insure that future cable systems do more than merely retransmit broadcast signals, there remains a very serious question as to whether the path taken by the majority today will lead to the goal that it wishes to reach.

It is most unfortunate that action as important as today's is marred by a serious procedural flaw: The absence of an adequate opportunity for comment from the public on the new rules. The new rules adopted today bear little resemblance to the initial Commission proposals of December 1968 and July 1970 which initiated the proceedings from which this decision stems. The public has never been invited to comment on these new provisions and despite a massive record of written and oral comments much of what is done today can only be described as guesswork. We have, for example, adopted elaborate new rules on program exclusivity requirements in some markets. While there have been references in passing to expanded program exclusivity in Commission notices and certain parties have urged this approach, the vast record is barren of any support for the requirement adopted today that special new program contracts or portions of contracts be prepared by television stations and placed in the public file, or the various requirements as to what such contracts must provide in order for the station to be entitled to exclusivity.

The Report and Order argues that in view of the "consensus agreement" developed through the Office of Telecommunications Policy (OTP) with the cooperation of Chairman Burch, further comment from the public is unnecessary: The compromise must be taken in its entirety or rejected and on that issue the broad consensus among the industries makes it unlikely that further comment would be helpful. This is not persuasive. Many within and without the affected industries do not accept the compromise and they should be heard. Further, the new rules clearly do not incorporate the consensus agreement in its entirety and parties to the compromise might very well have helpful views on whether the new rules reflect their understanding of the compromise. They too should be heard.

Questions of basic policy and procedure aside, there are a great many troublesome specifics in today's action, which are set out in more detail below. Why, for example, is it necessary or wise to permit unlimited importation of distant signals and unlimited "leapfrogging" among CATV systems located more than 35 miles from a television station and at the same time exempt these CATV systems from the very requirements -- extra channel capacity, access channels, and the rest -- which are cited as a reason for allowing greater signal importation? Why encourage CATV systems to drop the local news and public affairs programs of distant stations, thereby discouraging those stations from originating that type of programming, when we regard it as the touchstone of local television service? Regretfully, the Report and Order, although lengthy, merely describes these troublesome provisions of the new rules without offering any rational basis for their adoption.

The Profound Change in the Communications Policy

The majority today authorizes widespread distant signal importation not out of any belief that this in and of itself will be of benefit to the public but rather in the hope that this will stimulate cable development which in turn will result in the development of other cable services -- access channels, special non-program services and so forth -- which all of us wish to see come into being. Thus Paragraph 90 states:

The rationale for permitting at least two additional signals in all major markets is simply this: It appears that two signals not available in the community is the minimum amount of new service needed to attract large amounts of investment capital for the construction of new systems and to open the way for the development of cable's potential.

And in Paragraph 147 in explaining why the access channel and related requirements have been imposed on certain CATVs:

We focus here on the top 100 markets because we have selected these markets as the recipients of certain benefits in order to stimulate cable growth.

Those "certain benefits" are the use of distant signals in situations where distant signals will not provide the public with any new diversity of programming, and certainly will not provide any additional locally oriented service.

Regretfully the Report and Order does not demonstrate why "certain benefits" are needed. To be sure, we have heard again and again the claim that without distant signals cable operators are unwilling to gamble on the public's buying other cable services in sufficient quantity yesterday, and may even be true today, it by no means follows that it will always be true or will be true tomorrow. Potential new services will be perfected; less fearful cable operators may come on the scene. Once a few showed the way, others would undoubtedly follow. n1 Indeed, it might very well be that fostering continued cable TV reliance on distant signals as the primary basis for attracting subscribers will impede rather than enhance the development of other cable services.

The decision to sponsor cable through the authorization to carry distant signals is in its own right a profound change in communications policy. It is also a profound change because it alters prior fundamental Commission policy. In particular we have had since 1962 a clear mandate from the Congress to foster the development of UHF television. The public has been required to purchase more costly receivers containing all-channel tuners. Ironically, while we have just recently strengthened this requirement through new regulations designed to achieve parity of tuning in receivers in interstate commerce after 1974, today we adopt rules which reduce the possibility of new UHF stations coming on the air and of existing stations being able to make a go of it.

n1 From time to time leaders in the CATV industry have urged, contrary to the underlying philosophy of today's action, that the cable industry can develop without widespread use of distant signals. For example, an editorial in the May 1971 issue of TV Communications says:

"What if cable doesn't get distant signals? Does this mean the industry is washed up -- that its chances of expanding into most of the nation's television homes are lost?

"I don't think so. I think there are alternatives.

"And one alternative is for the cable industry to develop its own programming."

"We've been crying all these years for distant programming. But what people will watch is not necessarily distant programming, but more programming and more diverse and perhaps better programming. A CATV co-op could produce or obtain programming at least as good as the country's most successful independents. And unlike the independents, none of it would be programming which has a local interest only in their markets.

Because I, too, am most anxious to see cable develop its promised new services, I joined in the July 1970 Second Further Notice of Proposed Rule Making and in the August 5, 1971, letter of intent in the hopes that both of these actions would elicit information which would indicate whether or not we could sponsor cable with distant signals without compromising our policy on UHF. The Report and Order approaches this question by briefly mentioning certain expert studies on the likely impact of distant signals on local broadcast service and concluding there is no certainty that there will be an intolerable adverse impact. With all due deference, I believe this is an erroneous approach. Since it is cable that seeks the benefit of distant signals it should be up to cable to demonstrate in a convincing fashion that this will not lead to injury to broadcast service. No such showing has been made. The cable industry did not see fit to sponsor any expert study on the matter of impact on broadcast service. The study chiefly relied upon by the Report and Order to indicate there would be little risk of injury is the Rand Study of Dr. Rolla Edward Park. That study suggests that importation of distant signals in markets 51 to 100 would produce an average revenue loss of 23% for local stations; in markets 101 to 150, an average loss of 30%; and in markets 151 to 200, an average loss of 56%. Overall, based on 1968 data, the same study suggests that the number of stations operating in the red would increase from 23% to 57%. n2

n2 R. Park, "Potential Impact of Cable Growth on Television Broadcasting", October, 1970, pp. 5 and 73.The study urges that up to half of overall revenue losses due to losses in local viewing would be recaptured by the revenue benefit of increased viewer exposure as a distant signal. But the study also notes, correctly, that this benefit would be confined to stations in the larger (e.g., top 25) markets. Thus this point is unimportant insofar as stations outside the top 50 markets are concerned.

It is true, as the Report and Order notes, that the Rand Study assumed importation of four distant signals, while the Report and Order generally will authorize importation of only two distant signals. But even the National Cable Television Association in its February 1971 Reply Comments argues that two or even one distant signal would produce much more than 50% or 25% respectively of the audience loss that would occur with four distant signals. Additionally, the Rand Study assumes that a limitation of four distant signals would apply throughout the entire area of the television market. The limitation to two distant signals in the new rules applies only within the 35-mile zones of television markets. However, particularly where smaller television markets are concerned, a very substantial portion of the market is located beyond the 35-mile zone where unlimited number of distant signals can be imported.

Because it concludes that there is no definitive answer on the question of impact, the Report and Order can only express a hope that there will be no adverse impact and a promise to keep a watchful eye and to attempt to take remedial steps if injury does occur.

While no doubt motivated by the best of intentions, this promise of future remedial action is of very little solace to those who are concerned with the quality and quantity of free broadcast service. Repeatedly the Commission has stated that it will not and cannot roll back cable operations once lawfully authorized and in operation. Indeed, even in today's decision the Commission takes the extraordinary step of "grandfathering" both for purposes of the number of signals that can be carried and for purposes on an exemption from the new exclusivity requirements not only all lawfully operating CATVs but also in some cases CATVs which have taken absolutely no step toward construction or operation but have simply filed a letter with the Commission listing the signals they desire to carry pursuant to old Section 74.1105. See Report and Order, footnote 58. Relief after the fact of injury which stopped short of a rollback (such as a restriction on further expansion) would do nothing to relieve the injury that had already occurred. The only other possibility is special relief before CATV importation commences. This is technically available, but Paragraphs 91 and 112-113 as a practical matter all but preclude this remedy.

Procedural Flaw

I strongly believe that in a matter of this fundamental importance it behooves the Commission to go out of its way to insure that all parties have an adequate opportunity to be heard on all the pertinent issues and sub-issues. Many of the matters dealt with in this Report and Order in one or two sentences or even a footnote could by themselves be the subject of a separate rule making procedure and normally would be. For example, among many other things, the majority today significantly expands the material which must be contained in a station's public file and imposes logging requirements on certain CATV systems; both are treated as details relating to implementation of the new exclusivity rules. Usually each of these items would be the subject of separate rule making proceedings. Here, however, the public has had no notice of our intention to adopt these requirements, although the logging matter came up in connection with the reporting requirements not long ago in the Third Report and Order in this docket. Are these requirements sound? Are they necessary to implement program exclusivity rules? Are there some more effective and less onerous ways of implementing those rules and assuring that parties live by them? These are questions on which interested parties ought to be heard -- not merely out of fairness to them, but to insure that we have adopted the best possible means for insuring compliance with the rules.

It is argued that prior passing references to program exclusivity in our Notices plus comments urging such rules are, from a strictly legal standpoint, legally adequate notice within the meaning of the Administrative Procedure Act and that in any event a decision on this matter is long overdue. Whatever may be the legal requirements under the APA, I deeply regret that the Commission has not seen fit to exercise its sound discretion to obtain further comments. By establishing reasonably short deadlines such as 30 days for comments and 20 days for reply comments there would only be a short additional delay that could very well pay handsome dividends by giving us an opportunity to correct mistakes that will be very difficult to correct at a later date.

The opportunity to file petitions for reconsideration does not negate the need for further comments any more than it negates the need for comments initially in any rule making proceeding. The presumption is always against the granting of a petition for reconsideration, particularly when there is an effective date for the rules barely seven weeks away, and there are many aspects of the new rules as to which no presumption one way or the other is justifiable on the present record. While we have heard informally since the August 5th letter from some interested parties on the various issues before us, this is not an adequate or fair opportunity for all interested persons to express their views, particularly when vital elements of the new rules have not previously been made available to the public.

The "Consensus Agreement"

The Report and Order states that adoption of the suggestions contained in the OTP compromise or consensus agreement does not justify further comment because the only issue is whether to adopt those suggestions in their entirety and on that issue, in view of the broad consensus on the compromise, further comment seems unnecessary. With all due respect, this merely clouds the issue. The public and substantial numbers of interested parties did not participate in the compromise and several of these elements, CBS, Corinthian Broadcasting Company, the Rocky Mountain Broadcasters Association and others, have already voiced informally and in writing objections to it. Public broadcasters have not been heard. The rules that purport to implement the compromise exclude ETV stations from any right to exclusivity on syndicated programs. This surely was not required by the compromise, which does not specifically mention ETV, and it is a point in which ETV representatives should be given a chance to express their views.

On the cable side, we have heard only from NCTA. It reportedly represents somewhat less than half the existing CATV systems, with most non-members being operators of smaller systems. See CATV magazine, p. 11, January 10, 1972.

On the copyright-exclusivity issues, the group of copyright owners that approved the compromise does not represent BMI, ASCAP and several others that have important interests in this area.

All of these groups and certainly disinterested members of the public should be heard. But the only way they will all know they can be heard is for the Commission to invite comments.

Furthermore, the parties that did accept the compromise should be given an adequate opportunity to express their views both on whether or not the new rules reflect their understanding of the compromise and on the desirability of other new aspects of the rules (e.g., the procedures on program exclusivity) which have been adopted in light of the compromise. While the Report and Order states that the compromise is being and must be adopted in its entirety, the fact is that there is at least one clear divergence in the rules from the compromise and several other areas where the intent of the compromise has not been followed. The compromise specifically called for a rule on CATV carriage of radio stations; instead of adopting such a rule, this is being made the subject of a separate rule making proceeding. That may very well be the best approach, but it is also a clear divergence from the agreement. n3 As for divergence from the intent of the compromise, as the Report and Order notes, the intent of the parties apparently was that one or two distant stations as the case may be had to be carried full time without substitution of programs from other distant stations except when the exclusivity rules created gaps in the schedule of the regularly carried distant station. The new rules, however, deviate most substantially from this in two important respects. Further, the new rules reflect several important changes from the August 5th letter of intent. In some cases these are said at all. In every case the denial of an opportunity for further comment deeply troubles me as a most unwise exercise of agency discretion.

n3 Another clear divergence which is very difficult to justify appears to be in the area of grandfathering. The compromise calls for grandfather rights for existing systems. The rules, as noted above, go much further by also giving grandfather status to yet unborn CATVs that technically can claim an authorization to carry certain signals not available under the new rules.

Personally, while an arms-length settlement of differences is quite appealing as a general matter, many aspects of the "consensus agreement" as detailed below are quite troublesome. These are outlined below. Since many parties and the public do not accept the compromise or were not invited to join in it, and since the parties that did accept it did so most reluctantly on a take-it-or-leave-it basis, the lack of an opportunity for further comment is most regrettable, unfair and perhaps in violation of the legal requirements of the Administrative Procedure Act.

Troublesome Particulars of the New Rules

The new rules are troublesome and deeply concern me in a number of particulars. For purposes of brevity, only the most troublesome features will be described briefly.

A. SIGNAL CARRIAGE RULES FOR THE SMALLEST TELEVISION MARKET

The new rules give short shrift to the quite persuasive showings on behalf of broadcasters in the very smallest markets, including but not limited to the Rocky Mountain area, that their service to the public is about to be seriously impaired. We have persuasive evidence that in the smallest television markets a very large proportion, and indeed in some cases more than one half, of all local revenues are attributable to communities outside the 35-miles zones. Yet the new rules permit completely unlimited distant signal importation in such communities.

While stations in the larger markets on the whole gain additional exclusivity rights, as compared with the prior rules, stations in the smallest markets end up with less exclusivity. The cutback from same day non-duplication protection to simultaneous non-duplication protection is likely to hurt not only stations in the Mountain Time zone which are forced to delay network programs, but also many other stations in the smallest markets. For a variety of reasons these stations often cannot broadcast network programs simultaneously with the network feed.

For the smallest markets the Report and Order simply (1) promises to grant special relief if compelling showings are made and (2) requires carriage and very limited non-duplication beyond the Grade B contour in a few cases. For the reasons stated above, the opportunity to seek special relief does not appear to be promising. This is particularly so for a station in a very small market that typically would be unable to afford the expenses associated with a costly administrative proceeding. Requiring carriage of the non-Grade B signals of these smaller market stations where those signals are "significantly viewed," and creating a right to non-duplication as to new systems in these areas, hardly answers the problem. In most cases where the new mandatory carriage rule would be applicable the CATV systems are probably already carrying the signal. If they are not already carrying the signal because of reception difficulties, the Report and Order invites a cable request for waiver of the new mandatory carriage rule. Since in many cases systems in these outlying areas will often already have been built, the new quite limited right to non-duplication will have very limited practical benefit.

A special problem relating to both the smallest and medium (51 to 100) sized markets involves CATV systems located within the zones of both a larger and a smaller market. The new rules in every case of this type allow the CATV to follow the more permissive rule on the number of distant signals. This deprives the smaller market station of the protection which it was to receive under the 3+1 or 3+2 rule applicable to its market. To redress this at least partially it would seem appropriate in such cases to give the smaller market the greater exclusivity rights applicable in the larger market. After all, why should the cable operator have it both ways? The Report and Order, however, declines to do this, saying the problem arises very rarely. But a quick review of the 1972 CATV Atlas indicates there are at least 10 smaller markets where this will be a serious matter because the smaller market's zone is substantially overlapped by the zone of a larger market.

Under the new rules the same number of distant signals will be imported into the New York City market, ranked number 1 and having some 5 million television homes, as will be imported into the Columbia, South Carolina market, ranked number 100 and having roughly 125,000 TV homes. The New York City stations receive full "run-of-contract" program exclusivity for their syndicated programs. The Columbia stations receive very limited program exclusivity. Surely a Columbia station and every other station in the 51 to 100 group has just as compelling a case to make for exclusivity protection as a New York City station or any other station in the 1 to 50 group.

The August 5th letter singled out 12 markets for special treatment limiting the number of distant signals that otherwise would be imported. These markets were selected either because they would have received so many overlapping signals under the viewing test or because they were markets in the 51 to 100 group that had a local UHF independent station that would be especially vulnerable to injury from imported signals. The Report and Order rejects this element of the August 5th proposals, stating that there is no need to single out these markets for special treatment since under the consensus agreement these markets have gained additional program exclusivity rights. This is most difficult to understand since (1) the new exclusivity rights are inapplicable insofar as signals carried under the viewing test are concerned and (2) in markets 51 to 100 the new exclusivity is extremely limited and so will be of very limited benefit to the highly vulnerable UHF independents. Moreover, we have had no indication that the compromise was in any way intended or understood by the parties accepting it to eliminate the special relief contemplated by the August 5th letter in these particular markets.

C. SOURCE AND MANNER OF CARRYING DISTANT SIGNALS

The August 5th letter would have required that at least one of the two imported signals in markets 1 to 100 be a UHF independent. That requirement has been omitted, presumably because of the compromise, with the result that in at least some markets it is highly probable that both of the imported signals will be VHF independents. This means that, to the extent distant signal carriage is of benefit to the distant station, the struggling UHF stations having the greatest need for that benefit are being deprived of it.

We proposed "leapfrogging" requirements in December 1968 because of concern that cable systems would concentrate on the big city "glamour" stations in the very largest and most distant markets. This would lessen the probability of imported programming being attuned to the local needs and interests and raise issues of concentration of control. While the Commission has adopted a much more permissive leapfrogging requirement than was originally proposed, it has also eliminated any leapfrogging requirement for CATV systems beyond the 35-mile zones. Thus, Los Angeles stations could be carried in Westerley, Rhode Island (some 36 miles from Providence) and every other community across the country that is also beyond the 35-mile zone and New York City stations can be carried in Provo, Utah (36 plus miles from Salt Lake), long View, Washington, and numbers of other communities. The lack of programming attuned to local interests and the problem of concentration of control are no less serious in such communities than they are within the 35-mile zones.

Regarding the manner of distant signal carriage, the new rules permit substitution of other distant signals when, due to the program exclusivity requirements, the programs of the regularly carried distant signals have to be deleted. Although this was contemplated by the compromise, the new rules go beyond what was contemplated in the compromise [at least as the compromise is described in paragraph 62 (iii) of the Report and Order]. Local news and local public affairs programs broadcast by the distant station may be omitted even though their deletion is not required by the exclusivity rules, and entertainment programs substituted from other distant signals. Thus if Channel 5, Washington, is carried as a distant signal in Richmond, Channel 5's 10 o'clock news program may be deleted by the CATV system and an entertainment program from New York or even Los Angeles could be substituted.

This is most undesirable on several accounts. It discourages Channel 5 from broadcasting local news and public affairs programs, indeed it penalizes Channel 5 for doing this, at least to the extent the station benefits from being carried as a distant signal. It eliminates programming that may be of interest to local cable subscribers even though it is from a distant signal. The Channel 5 news program, for example, does deal with Virginia and area affairs. Indeed, the possibility that the nearest distant signal may have programming of interest to local subscribers is one of the very purposes of the leapfrogging rule. Finally, the opportunity to delete local news and substitute entertainment programs may turn out to be extremely troublesome to cable system operators who may find themselves caught in the middle between subscribers who want the news and subscribers who want something else.

The rules also provide that a program f any length may be substituted and carried to completion even though it spills over into programs on a regularly carried signal that need not nor should be deleted. Continuing with the example above, if Channel 5 broadcasts a half-hour program which must be deleted in Richmond under the exclusivity requirements the CATV is free to bring in anything from a two-hour motion picture from New York to a three-hour sports event from Los Angeles. Since cable systems are free to pick from any station in the country in order to find substitute programming, it would not seem unduly burdensome to require them to pick programming that conforms in running time to the programming that has to be deleted.

D. THE OVERLAPPING SIGNAL PROBLEM

As any fair reading of the August 5th letter will indicate, the proposal for this problem was that the basic structure of the December 1968 proposals would be adopted, subject only to a modification based on the substantial viewing test principle and changes extending that structure to major market -- smaller market overlap situations. That basic structure was that in communities within the 35-mile zones, Grade B signals from other markets would be treated as distant signals, unless the community was also within the 35-mile zones of the second market. This basic structure had no application where non-Grade B signals were concerned. The new rules, however, incorporate several novel and troublesome features some of which embody substantial deviations from the August 5th proposals.

First, the viewing test now applies to non-Grade B signals even though these had always been regarded previously as distant signals. Second, the countrywide viewing figures are made conclusive as to all communities within a county whenever they show that the viewing test is met (but they are not in the converse situation). Third, broadcasters, but not CATV operators, are precluded from introducing special data or surveys contradicting the American Research Bureau data relied on by the Commission. Fourth, the procedures and criteria for special showings are spelled out in some detail.

The result of the first three of these changes is that there may very well be cases in which a signal is not significantly viewed within the meaning of the rules in a particular community and indeed does not provide a predicted signal to that community but parties wishing to demonstrate this are precluded from doing so. Parties wishing to add signals in the converse situation, however, will be free to submit special surveys after March 31, 1973. Paragraph 85 of the Report and Order argues that this "you-can-but-he-can't" approach is sound because otherwise broadcasters would delay CATV development by attempting special showings "in virtually every case." I believe that the Commission could find satisfactory means of dealing with such a problem, if it were to occur, short of creating an unfortunate appearance of being one-sided on this matter. Whether or not the criteria for special surveys are meaningful is a subject which, again most regrettably, the Commission has not seen fit to solicit comments.

The compromise has led to a change in the viewing test raising the audience share figure for independent stations from 1% to 2%. While there is support in the record for the adoption of some viewing test, there is very little if any support for the precise figures adopted. Is 2% "substantial?" On its face it would not seem to be. This again is an issue upon which further comment would have been most helpful.

E. THE SYNDICATED PROGRAM EXCLUSIVITY RULES

In addition to the troublesome discrimination against medium sized stations noted above, there are several troublesome features to these rules. Why, for example, are there elaborate requirements spelling out what the station's program contract must include on the subject of exclusive rights? Was this what the parties intended? And further, why must contract provisions routinely be made available for public inspection? What evidence is there that without this requirement broadcast licensees will abuse the privilege accorded them and attempt to deceive CATV system operators on this subject? In any event, must the notification procedures be as cumbersome as they appear to be in the rules? Again, these are questions on which further comments might have shed light.

F. THE ACCESS CHANNEL AND FEDERAL-STATE RELATIONSHIP RULES

As the Report and Order quite candidly points out, in this area the Commission is plowing very new ground. There are repeated concessions that these rules may not work or will otherwise have to be changed once some experience is gained. I share this concern. It may turn out, for example, that these rules are too harsh on CATV, at least at this stage of its development. The proposals set forth in December 1968 out of which these new rules derive were similarly of a very general nature. Because this is such a new area and because it is conceded that the Commission is unsure of what it is doing, further comment certainly would have been appropriate.

Moreover, by clearly requiring substantial investment in a new business unrelated to the traditional operation of CATV, these new rules are of dubious legality in light of Midwest Video v. FCC, 441 F.2d 1322 (8th Cir. 1971), cert. granted, No. 71-506. Earlier, operation of rules requiring program origination was suspended pending the outcome of Midwest Video in the Supreme Court. The same procedure would certainly have been in order here.

CONCLUSION

I recommend that the Commission reconsider its decision of today and take such appropriate action to remedy the problems that I have outlined in my statement. Such remedial action will permit all segments of the communications industry to work and prosper together as they serve the public -- rural and urban America.

OPINION OF COMMISSIONER NICHOLAS JOHNSON, CONCURRING IN PART AND DISSENTING IN PART

FOREWORD

On Thursday, February 3, 1972, I issued a preliminary opinion in this matter. The text of that opinion follows:

The much-heralded new dawn for cable turns out to be a cold and smog-filled day.

The White House interference in the process makes a mockery of the FCC's independence and role as an arm of Congress.

The Commission's about-face accommodation of the desires of the largest broadcasters, cable companies and copyright interests -- after long hearings and the declaration of its August 5th policy as in the "public interest" -- makes a shambles of the spirit of the Administrative Procedure Act. This failing is so severe that even issuing this document as a proposed rulemaking for public comment would not cure it.

For FCC Chairman Burch to engage in secret bargaining sessions designed to bind his fellow Commissioners to policies in which they have had no participation is an affront to a multi-man Commission.

The hurried issuance of today's document means that few of the full opinions of the six Commissioners will be available, and the only people to get copies of the document for a matter of days will be a few favored Congressmen, lobbyists, trade magazines and press. The use of the Federal Register will take a week, and may also preclude publication of separate statements.

The substance is little better than the procedure. It is not true, as the majority states, that the compromise "does not disturb the basic structure of our August 5 plan." Unlike the August 5th rules, at least 40% of the American people, those who live in the largest cities, will now not get cable. This serves no one's interests -- save the most powerful broadcasters and program owners who now get their way. The multi-million-dollar big city corporate owners, whose "National Association of Broadcasters" exacted the added protectionism for them, don't need it. Small broadcasters may -- but don't get it. If cable is to grow, it must be in the big cities -- where it's precluded. If the potential need and demand for leased channels, public access channels, and minority programming are to be served it must be in the big cities. It won't be.

The limitations on what even small-town cable can carry are ridiculous. With all its capacity to bring the American people dozens of signals from thousands of miles, the FCC rules won't even let cable systems carry some signals that its subscribers can pick up off the air with rabbit ears! There are severe limitations on the cities from which signals can be imported. An elaborate, almost unintelligible section (inserted by the richest program owners after the August 5th policy excluded it) prohibits the showing of the programs most desired by the public. The FCC agrees, moreover, to tie its hands and never make future changes in part of this arrangement.

A fuller opinion will follow.

Now, two working days later, the fuller opinion promised has been prepared, and follows.

INTRODUCTION

In future years, when students of law or government wish to study the decision making process at its worst, when they look for examples of industry domination of government, when they look for Presidential interference in the operation of an agency responsible to Congress, they will look to the FCC handling of the never-ending saga of cable television as a classic case study. It is unfortunate, if not fatal, that the decision must be described in these terms, for of the national communications policy questions before us, none is more important to the country's future than cable television.

The Commission has promulgated rules for cable television which are designed to introduce, in a conservative fashion, the benefits of cable to some of the people of this country. To the extent they will, to some extent, achieve that purpose, I concur with the majority. Because they are substantially different from the rules I would have preferred to adopt, and because the Commission arrived at those rules through a process I find wholly inconsistent with the spirit of the Administrative Procedure Act, the concept of independent regulatory agencies, and possibly the due process clause of the Fifth Amendment, I am compelled to dissent in part, as well.

I. Cable Development: a Model

Unencumbered by political and vested economic pressures, cable television would develop like any new technology -- in the market place. Systems would be built in markets in which consumer demand made building profitable. These systems would import distant signals to the extent of market demand. One could expect that after providing all markets with affiliates of the three national commercial networks, local independents and public broadcasting stations, perhaps two to five independent stations from various parts of the country, regional networks or some additional out of market non-commercial stations, cable systems would have little incentive to import more signals. Indeed, a system would probably be commercially more attractive if it provided additional channels with non-broadcast ("cablecasting") services rather than additional channels of commercial television. In any event, the market -- the cost of importing additional signals compared with the additional income they would provide the cable entrepreneur -- would seek its own level. And, I would guess, that level would be somewhere between eight to fifteen signals, depending upon the region of the country involved.

I would impose limited regulations on this basic marketplace system. I would require all systems in the larger cities to have a minimum capacity of 40 channels, half of which would be dedicated to other than over-the-air broadcast services. Of the one half of the channels reserved for purposes other than over-the-air broadcast signals, at least one would be dedicated to state and local government use, one would be dedicated to educational use, one would be dedicated to the public use (all on a first come-first serve basis, free of charge), and the others would be leased to all comers at fixed rates. Systems would be required to expand channel capacity in accordance with demand, in the manner set out in the August 5 letter and these rules.

Because a national cable network could develop under this system, some protection would have to be afforded the public as well as the systems from anti-competitive agreements between microwave systems and "overzealous" independents. To this end microwave systems could be required to offer all independent signals along their routes to cable systems, to prevent the aggressive independent from using anticompetitive methods to achieve the network result.

The over-the-air broadcast system as we know it is an important element of our society and is entitled to some protection. No one wants massive numbers of over-the-air stations suddenly to go bankrupt and leave the air because of cable. Cable is currently almost wholly dependent upon over-the-air stations for its programming; there are many homeowners who can't or won't have cable; and the continued competition and choice for the viewer between cable and over-the-air signals is his only ultimate protection against cable abuses. The question is only how much protectionism is warranted and necessary at a time when no station has yet gone off the air because of cable. I would provide, for starters, only that no cable system could simultaneously duplicate a local station's program with that of an imported station. Then, if a local station could demonstrate that (1) it is deteriorating substantially (i.e., a steady decline of gross revenue), and (2) that such deterioration is a result of the existence of cable television in its market, special relief could then be made available. If the problem became widespread, new general protection could be fashioned at that time.

I would regulate to prevent further concentration of control of the mass media. Our rules prevent cross ownership of broadcast stations and cable systems in the same market, and common ownership of national networks and cable systems. I would also consider rules prohibiting any single company from owning more than one cable system in the top 50 markets, and any single system from reaching more than one percent of the country's television households. I would consider prohibiting cross-ownership of newspapers and cable television in the same market.

As a matter of principle, I believe copyright holders should be compensated for the use of their products by cable systems. But regulations implementing that right need not take the form of exclusivity (prohibiting a cable system from carrying the program at all), as they do in these rules. Regulations could simply require the automatic payment of fees to the copyright holders, through a mechanism similar to that used by ASCAP for song writers. However, I am not convinced that the FCC is the appropriate forum in which such decisions should be made -- any more than the FCC should attempt to legislate minimum wage legislation for cable systems, or zoning restrictions. As I discuss more fully later in this opinion, the CBS v. Tele-Prompter suit may clarify the copyright situation beyond the Fortnightly set of facts. Fortnightly Corporation v. United Artists, 392 U.S. 390 (1968). In any event, I would expect either the courts or Congress to adjust the interests of the competing parties -- not the FCC -- as the Commission indicated it believed on August 5.

Finally, I would support regulations limiting subscriber charges, lease prices for leased channels, and rates charged by utilities for the use of their poles.

The model I have outlined ought to have the support of most people of independent mind -- "free entrepreneurs" and "regulators" alike. It serves the "public interest" and is wholly consistent with the profit motive. The problem, of course, is that it does not have the support of the most powerful broadcasters -- a group whose political influence is unrivaled in our time.

The rules we adopt today vary from this model; in some cases they are quite similar, while in others they are based on a wholly different philosophical premise. But a persistent current, running throughout the rules, is an absence of adequate rationale, satisfactory justifications for departures from this model.

II. August 5, 1971 and Its Aftermath

On August 5, 1971, the Commission, in a 6 to 1 decision, transmitted to Congress a "letter of intent," outlining its proposed rules for cable television. These rules were the result of exhaustive public hearings at which all positions were aired. The result reached was a far cry from the free enterprise model described above; it was itself a compromise, intended to adjust and protect various economic interests, and to accommodate "political realities." But it was a compromise we agreed was feasible, and one under which cable could at least get started.

Subsequent to our adoption of the August 5 letter, apparently not satisfied with the concessions made to each of them, broadcasters and copyright owners, with the support and encouragement of the White House and Chairman Burch (and the participation of cable interests), carved up the cable pie in a manner more to their liking. In its rules the Commission puts its stamp of approval on the results of these closed door sessions by implementing the precise terms of the industry's agreement.

The new rules graphically demonstrate what economic protectionism can do to a sound regulatory scheme. In our August 5 letter of intent, we recognized that the big city markets, more than the others, needed both the additional entertainment programming and the non-broadcast benefits of cable television. Thus, while we held back cable development in the big cities in some respects (for example, only three independents' signals were permitted), we provided sufficient benefits to stimulate its beginning. The regulatory scheme permitted cable systems in the top 50 markets to distribute, as a minimum, three network stations and three independent stations. Systems in the second 50 markets were permitted three network and two independent stations. Those systems in markets below the top 100 were permitted three network affiliates and one independent station. And systems in cities without any television stations were permitted an unlimited number of independents. (All systems could also carry non-commercial and foreign language television stations, and radio signals.)

We never felt that cable's future was tied to distant broadcast signals; if that were all that was involved, it is doubtful that we would have spent one-tenth the effort we have expended. With this scheme, we hoped that systems in the larger markets, where diversity of interests most required the non-broadcast advantages of cable -- such as access, leased channels for community groups, and educational channels -- would have sufficient attractiveness to subscribers so as to provide the economic base necessary for the development of these services.

Markets 51 to 100 were given fewer distant signals on the theory that the over-the-air stations there had less in the way of both revenue and audience to support much imported competition. Systems in the smallest cities, those located more than 35 miles from any television station, were to be permitted unlimited distant signals on the theory that, barring any rationale for station protectionism, there was no reason not to revert to the model of unlimited signal importation.

This was the state of affairs on August 5, 1971. Thereafter, the vested economic interests -- broadcasters (who felt threatened by this new technological competitor), copyright holders (who were afraid cable systems would diminish the value of their products), and the cable industry (who felt threatened by the political power of the broadcasters -- once joined by Chairman Burch and the President -- to stop our August 5 policy entirely in Congress) -- met with the representatives of the White House and with FCC Chairman Burch and finally agreed to the compromise that the majority refers to as the "consensus agreement."

The compromise carved up the action among the three industries, at the expense of the viewing public, by making three changes in the policy we announced on August 5. Despite the majority's assurances that its "incorporation into our new rules for cable does not disturb the basic structure of our August 5 plan," the compromise was, of course, designed to disturb the basic structure and succeeded in doing so.

III. Policy and Protectionism

The compromise and the rules promulgated by the Commission are a far cry from the free enterprise model of cable television. They are a patchwork of protectionism, designed to foster the interests of vested economic institutions at the expense of the public. Admittedly, under these rules cable will be able to make a very modest start in some of the smallest markets. It will not, however, grow with the speed and the impact it would have under less restrictive rules. The major failings of the compromise and the rules, as I see them, involve the exclusivity protection, the viewing standard, and leapfrogging.

Exclusivity protection. The rules provide for "run of the contract exclusivity" to stations in the top 50 markets, and two year exclusivity to stations in markets 51-100. That is, a program supplier can sell, and a station can buy, an "exclusive" right to a given program, and gain thereby the legally enforceable right to keep any other station in the market from showing it. Now, says the FCC, the station can use that "exclusivity" to keep a cable system from importing that program from an out-of-market station as well. In other words, if a station in one of these markets has a contractual right to show David Frost or The Pawnbroker, no cable system in that market can import it from another city. Thus, although top 100 market systems are "permitted" to import distant signals, these signals will have to be blacked out whenever they carry programs covered under exclusive contracts. One of the principal services offered by cable -- not just different programming, but alternative schedules for the same programming -- is hereby simply wiped out. Further, programs or films subject to local "exclusivity" may not be imported by cable even though the local station may not show them for years.

Translated into concrete examples, based on current programming and currently existing contractual arrangements, a cable system in Charlotte, North Carolina, the forty-second market, would have to black out over 16 hours a day of programming from WTCG-TV, Atlanta, Georgia, if it chose to import that station. A system in Fort Wayne, Indiana, the eighty-second ranking market, would have to black out WGN-TV, Chicago, should it choose to import it, for over eight hours daily. Obviously, we can expect to find a rush to exclusive contracts in the future to permit local stations to take advantage of this FCC-sanctioned anti-competitive device.

Viewing standard. Television signals can often be picked up off the air from 60 to 100 miles distance in proper terrain with a good antenna. The advantage of cable is that it can bring subscribers more signals than they can get off the air. That's because the cable system has a taller, more powerful receiving antenna than most homeowners, and because it can relay signals by microwave over long distances (the same way the networks relay their signals from New York around the country to affiliates). Even with a little "rabbit ears" antenna, however, I can, for example, pick up Baltimore signals on my home receiver in Washington. One would assume, therefore, that cable systems would be permitted by the FCC to provide their subscribers at least what the subscribers can already pick up off the air. Right? Wrong. The rules contain a unique concept known as the "viewing standard." Cable systems in all cities with television stations are required to carry all stations licensed to cities within a 35 mile circle around them. That's no problem; most cable systems would want to do that anyway.

The problem comes in defining what additional signals the cable may carry as, in effect, "local signals" -- that is, signals that will not count as "distant" imported signals. I would define that as "viewable" signals, whether technically defined as "predicted Grade B," actual Grade B, or most pragmatically, what the cable operator can, in fact, pick up with his antenna. In my case, for example, those Baltimore signals would be considered "viewable," even though, in fact, one would generally watch the Washington signals whenever the same network program is being shown by both. (By contrast, the same network's news may be shown at different times in Washington and Baltimore, and being able to watch both cities' signals thereby increases the number of networks' news shows that may be watched.) This is decidedly not the FCC/industry "viewing standard." Its standard is not whether the station can be watched, but whether it is, in fact, watched. Such an inquiry is, of course, directed solely at protection of the local station's market revenues, not to the technological capabilities of cable. The details of "share" and "net weekly circulation" are speeled out in the majority's document and are not necessary to our discussion. It's sufficient to note that the August 5 policy was that any station actually viewed by 1% of the local homes could be carried and that the "compromise" raises that to 2% -- and thereby cuts in about half the number of stations that may be carried. (For example, none of those Baltimore signals I can now watch could be carried by a Washington cable system.)

Leapfrogging. The rules provide for the importation of a limited number of distant signals. However, although technologically capable of bringing in distant signals from anywhere in the country, if a cable system wants to bring in a signal from a city in one of the top 25 markets -- obviously, the most desirable stations -- it must reach out only to the closest two top 25 cities. Only when forced to black out one or both of those signals can a system go nationwide for programming. That is, it may not "leapfrog" closer stations in order to reach out for more distant (and desirable) stations.

The net result of this compromise -- exclusivity, viewing standard, and leapfrogging -- is to reverse the priorities we established in August. The exclusivity provisions in the top 50 markets were designed to protect the copyright holders, who derive over 80% of their profits from sales to stations in the top 50 markets. Under these provisions, virtually all attractive programming will be unavailable to cable systems during terms of contracts that theoretically can exist forever. (The Commission promises to study the question of the length of exclusive contracts, but bare promises are a far cry from operating rules. And even if the Commission were to someday limit contracts, say, to five years, a term of this length will in many cases make the program a highly unattractive.) This resulting lack of available programming will doom cable in the top 50 markets. It will literally have nothing to sell.

The exclusivity provisions in markets 51 to 100 are designed to protect broadcasters. The copyright holders don't really care about these markets, as they earn less than 20% of their revenues there. The broadcasters, vicariously protected in the top 50 markets by the interests of the copyright holders, managed to negotiate two-year exclusivity in the remaining markets. Thus, cable systems will not be able to show popular programs until two years after they are available to broadcasters. Granted, cable may still begin, but its attractiveness will be limited.

There is no exclusivity in the small markets and nonmarket areas. These were the cities "given" to the cable industry by broadcasters and copyright holders.

The compromise agreement not only makes little sense from a sound regulatory point of view, it's not even very sensible selfish protectionism. While, on the one hand, our August 5 plan expressly provided benefits to the big city systems by permitting them to import some signals, the compromise burdens these systems by imposing prohibitive exclusivity, viewing standard, and leapfrogging requirements.

There may be some truth to the argument that television stations in small markets can be injured economically through audience fragmentation when even one additional competitive station comes to town via cable. But it should be clear that stations in the major markets, already competing with large numbers of other television stations and other entertainment and news outlets, are less likely to be injured by an additional station or two. Yet it is in these major markets where the regulations inhibit cable, and the smaller ones where cable is free to develop. This result can only be explained in terms of the sheer political power that the history of the compromise represents.

IV. History and Failings of the "Consensus Agreement"

It is impossible to have a full understanding of the significance of the Commission's adoption of the consensus without first fully exploring the background of both the consensus and the rules.

In 1968, we imposed what amounted to a freeze on cable television development in the major cities -- even though never denominated as such. We adopted procedures that we said would enhance the growth of cable, can which I believed would actually work. Under these procedures, no cable system in a top 100 market would be permitted to import distant signals unless it received retransmission consent from that station. This never worked.

The battle lines reformed around the issue of distant signals. Most broadcasters were perfectly happy to permit passive cable systems -- systems which only transmitted local signals. Some broadcasters and copyright holders argued that even these passive systems should be required to pay copyright fees for local programs that showed on their systems. The Supreme Court rejected this argument in Fortnightly Corporation v. United Artists, 392 U.S. 390 (1968).

This did not, however, necessarily settle the question of a system's authority to carry distant signals without paying copyright. Fortnightly was read narrowly by the FCC and limited to its facts: that is, no copyright fee would be required for the showing on cable systems of local stations, but the question of distant signals remained unsettled.

The parties refused to budge. Broadcasters and copyright holders threatened to block any cable rules that permitted the importation of distant signals until copyright legislation was adopted -- by exerting their impressive political influence in Congress, forcing Congressional hearings. Cable owners refused to support copyright legislation until the cable rules were adopted. The Senate Copyright Subcommittee refused to pass a copyright revision until the question of cable was settled, and it refused to enact a separate copyright law for cable. The process ground to a halt.

Finally, the Commission, after months of thorough study, acting precisely as one would hope a quasi-legislative body should act, promulgated its August 5 letter. For one of the few times in my tenure as an FCC Commissioner, I was able to join with a near-unanimous majority on a major issue of communications policy.

Unfortunately, our historic example was not to be. Three months later, the industries had used their White House leverage to fashion their own cable policy, and the consensus agreement was born.

The implications of the Commission's decision to adopt the compromise are as serious a threat to the democratic system of government as any we have witnessed in almost 200 years of our history. While the majority goes to great lengths to describe how our accepting the compromise was really in the public interest because it facilitated the promulgation of these rules and the passage of copyright legislation, it utterly fails to take into consideration the threat to the public interest posed by setting the precedent of deferring to big business whenever it possesses the power to impede the development of a regulatory scheme (or legislation or an executive decision). We, as a society, profess to abhor political blackmail, and struggle to insulate our decision making process from the influence of those who would sacrifice the common good for greedy self interest. Yet here we find a Commission, made up of public citizens appointed by a President, agreeing that this method of decision making is in the public interest. I am not naive enough to think that this process has not been repeated hundreds of times prior to this occasion by this and other agencies: but I am shocked when, rather than try to hide the reality, we applaud it as an appropriate method of doing the people's business.

This procedure is rendered even more abhorrent when one sees it in the perspective of the industry power over regulatory agencies that already exists. Industries have often written the legislation under which the agencies act. They may have veto power over the Commissioners appointed. Their knowledge of the working of the agency is enhanced by their hiring away the ablest of its employees. (Most former FCC Commissioners are now working, in one way or another, for one of the industries they were formerly responsible for regulating.) The potential of such future employment (at much higher pay) has been characterized by Ralph Nader as "the deferred bribe." The "regulated" industry influences the agency's appropriations, even its forms and inquiries (though OMB "industry advisory committees"). The industry has the money to contract for any study, hire any consultant, and file whatever legal briefs and other documentation may be necessary to influence the decision "on the merits." It can send representatives to walk the halls of the agency, and provide luncheons for Commissioners and employees. It fights at every turn (generally with agency backing) any participation by public interest law firms in matters before the agency. Now, on top of all this, what the FCC seems to be saying is that if, notwithstanding this stacked deck, the industry still loses, we will then let it win because it's so politically powerful it can get its way anyway. The whole sordid story doesn't auger well for those who are urging the disaffected to "work for change within the system."

The value we have trampled on comes to us from at least three different sources: the Administrative Procedure Act (APA), the philosophical concept of independent Congressional agencies, and the due process clause of the fifth amendment. The APA was designed to establish an orderly procedure by which administrative agencies can collect information necessary for them to make intelligent decisions. It provides an opportunity for all interested parties to comment on a proposal (in this case, cable television regulation), reply comments from those who wish to dispute what others have said, and public hearings in the event the agency feels they are desirable. After this process, the agency is free to consult or use any source it wishes. Thus, although adoption of the consensus agreement may not be prohibited by the APA, such an action is clearly inconsistent with the spirit of an Act which attempts to set out an orderly public procedure by which decisions of this nature are made. The FCC often issues proposed rule makings which are little more than superficial rewrites of the requests of one special interest or another. That is not the point. In this instance we went out of our way to canvas the full range of public and industry opinion before issuing our August 5 policy. For Chairman Burch subsequently to go into secret sessions with industry spokesmen, and accept their rewrite of the rules, and then force the industry version down the throats of his fellow Commissioners, Congress and public alike makes an unnecessarily cruel hoax of what started out as a fairly commendable undertaking.

Perhaps more serious is the fact that one major party to the compromise (described by some as the "glue" that holds the compromise together) was the Director of the President's Office of Telecommunications Policy. His participation, indeed the very existence of his Office, looms large as a threat to the independence of the FCC as an agency responsible only to Congress. This alternative voice tends to turn the Commission into a partisan body, by causing it to react on political rather than sound policy grounds; further, it tends to increase the rivalry between the President and Congress, a rivalry which is healthy only when it results in constructive dialogue as opposed to destructive bickering. And, no less serious, it legitimizes the Administration's carrot/stick approach to broadcasters, serving as it does as an ambiguous, fear-inducing institutional outlet for the President's attacks and rewards to the media.

Finally, the history of this proceeding, beginning as it did with an honest and good-faith effort to develop the best possible cable television rules, and ending with complete and utter deference to the demands of the most powerful elements of the industry, may have left us with a legacy that cannot withstand Constitutional scrutiny. In 1934, and again in 1935, the Supreme Court had occasion to address a markedly similar question in the context of New Deal legislation. Under laws subsequently struck down by the Court, industry committees were given the authority to promulgate binding regulations on their entire industry. In striking this legislation on several grounds (some of which are not applicable here, and in any event have been reversed by later Court decisions), the Supreme Court said:

But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries? Could trade or industrial associations or groups be constituted legislative bodies for that purpose because such associations or groups are familiar with the problems of their enterprises? And, could an effort of that sort be made valid by such a preface of generalities as to permissible aims as we find in section 1 of title I? The answer is obvious. Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress. Schechter Corp. v. United States, 295 U.S. 495, 537 (1934).

In a later case the Court made a similar declaration:

The power conferred upon the majority [of the industry to establish binding wage and hour laws] is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. The record shows that the conditions of competition differ among the various localities... The difference between producing coal and regulating its production is, of course, fundamental. The former is a private activity; the later is necessarily a governmental function, since, in the very nature of things, one person may not be entrusted with the power to regulate the business of another, especially a competitor... The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment... Carter v. Carter Coal Co., 298 U.S. 238,311 (1935).

No one would contend that these cases are "on all fours" with the case before us. In the NRA cases the Court was concerned with a direct, statutory delegation of decision making and regulatory power by Congress to an industry; here the "delegation" resulted from the FFC's capitulation to the sheer power of the industry, and does not involve continuing regulatory responsibility. Further, these cases have been overruled on many other grounds, and it is difficult to say with certainty that this aspect of the cases is as vital today as it was in 1935, even though they have never been overruled on these grounds. But the fact remains that the Supreme Court has addressed the underlying issues present here and has found the procedures wanting.

The very existence of this compromise, and the fact that as a practical matter the Commission was obliged to either accept it in its entirety or not at all (with the necessary result of eliminating the prospects of any cable for months or years), made the act of putting out the rules based on this compromise as a Further Notice of Proposed Rule Making for public comment an exercise in futility. I tried to offer modest revisions of some of the compromise provisions to make them a wee bit more palatable; Chairman Burch would not budge. It was fait accompli or nothing.

It would have been hypocrisy in the extreme to solicit comments suggesting changes we were not free to make. The only question that we as Commissioners, had to decide, was whether we were willing to sacrifice a fundamental value of a democratic society -- the independence of government officials from the influence of big business -- in exchange for some cable television. The majority concluded that it was in the public interest to do so. I could not. No amount of comment could expand our ability to resolve this fundamental jurisprudential question, and asking for public comment would have been nothing more than a cheap attempt to camouflage what, in my view, is a fatal flaw in our procedure.

V. Conclusion: the Politics of Cable

In view of the fact that the FCC has, in effect, abandoned its role as the formulator of policy and the interpreter of law for that of the political pundit, perhaps I am obliged to engage in a little political comment myself.

The wisdom and validity of the FCC's acceptance of industry rules in place of its own turns on one issue -- accepting the majority's interpretation. Put most bluntly, had we held firm to the August 5 policy, could we have brought it off? The majority thinks not; I think we could have done it.

I say "accepting the majority's interpretation" because it is, itself, a questionable assumption. The majority is saying, in effect, that a regulatory commission must consider not just the legitimate interests of all parties but also their political power. Its responsibility, says the FCC, goes beyond simply finding and promulgating the policy most "in the public interest." It must also consider the power of any of the powers before it to use political influence with the White House or Congress to render its policy ineffective.

The contrary position, of course is that a regulatory commission should simply declare the policy as it sees it and let the chips fall where they may in terms of subsequent actions by Congress, White House, or courts. (One might observe, for example, that the FCC has seemingly given little consideration in recent months to the likelihood that its decisions might be overturned by the courts.)

Since the latter position seems to have few adherents, I will simply offer it without stating a personal preference, and proceed to taking on the majority on its own ground. What were the politics of the August 5 policy?

Chairman Burch at one point declared to a House Committee that we could have a cable policy by the end of May 1971. Hearings on Federal Communications Commission Activities (1971) before the Subcommittee on Communications and Power of the House Committee on Interstate and Foreign Commerce, 92nd Cong., 1st Sess., ser. 92-8 at 20 (1971). (This was later changed to August 5, December 31, March 1, 1972, and finally the date selected, March 31 -- which ultimately may have to be extended for petitions for reconsideration.) That declaration prompted an immediate reaction from broadcasters, pressuring their Senators to hold up the policy one way or another. The Senators, in turn, communicated their constitutent problems to Senator Pastore, Chairman of the Subcommittee on Communications of the Senate Commerce Committee. Hearings on Community Antenna Television Problems before the Subcommittee on Communications of the Senate Committee on Commerce, 92nd Cong., 1st Sess., ser. 92-12 at 1-2 (1971). Senator Pastore, for whatever reasons, called the FCC before his Subcommittee in June 1971.

At that time Chairman Burch outlined the substance of what became the August 5 policy. Senator Pastore indicated his desire to know the details of the policy before it was released. Senate Hearings at 107. Commissioner Bartley and I complained on the record that this was contributing to the delay sought by the broadcasters. Senate Hearings at 72 and 107. Chairman Burch's testimony seemed to Commissioner Bartley and me to be an adequate preview of the policy for Congress. Indeed, I argued within the Commission at the time that even that testimony may have been going too far. (My own view is that Congress established the FCC to formulate communications policy, and that, in general, it ought to leave it alone to do its job, subject to two exceptions: general "oversight" hearings to review what the agency has done after the fact, and subject matter legislative hearings that necessarily preempt the FCC's authority to act on the issue under review. This was neither. This is a view which Senator Hart supported during the Hearing. Senate Hearings at 57-58.)

Even accepting for sake of argument that the FCC is obliged to comply with every Congressman's every wish, it seemed to me that our participation in the hearing had achieved that purpose. Chairman Burch further promised that the Committee could get an advance look at the final policy (which I also felt to be unnecessary), and that the policy would be out before Congress adjourned (August 5, which I felt to be later than necessary). In no event do I think Senator Pastore's requests (for the hearing, and for the advance look at the policy) required that the August 5 policy be issued in anything other than final form.

And so it was that I, once again, protested the additional delay when Chairman Burch indicated to his fellow Commissioners that the August 5 policy was not going to be issued as final rule making, but as some kind of an unprecedented "letter" to the Chairmen of the Senate and House Communications Subcommittees. In any event, at that time we were promising the policy would be finally issued by December 31, 1971.

The question is, what would have happened had we issued that August 5 policy as final rule making sometime between August 5 and December 31? Bear in mind that those who voted for it on August 5 felt morally obliged to stick with it, notwithstanding the fact that each of us had some misgivings about various parts of the document. Bear in mind also that Commissioner Robert Wells, the only Commissioner not to vote for the policy, had left; Commissioner Wiley, who took his place, and Commissioner Reid, who replaced Commissioner Houser, might well have voted for the August 5 policy (based upon their votes and opinions today).

We had discussed the policy in open hearings with both sides of Congress. We had given them the document in advance, in effect, with the August 5 letter. No Senator of Congressman could have made any reasonable argument that he was caught unaware, or that more time was necessary to evaluate the matter. (Indeed, Senator Pastore was on record as hoping the policy would not change: "I hope we don't end up with one resolution and then have to chase another idea, because that has happened time and time again." Senate Hearings at 37.)

Most significantly, Chairman Burch would have been going forward with a unanimous (or, at worst, nearly unanimous) Commission -- something he clearly doesn't have for his current industry policy. He and I, and the others, would be declaring to Congress, the industry, and the public, with a single harmonious voice, that we were in agreement on a policy that was, indeed, in the public interest.

No dissatisfied industry spokesmen could have argued to us, or to Congress, that they had not had an adequate opportunity to be heard -- fully and fairly. Our 1971 hearings were widely known to have been among the best in the agency's history.

As for national Presidential politics, our rules make absolutely no sense at all given the current state of our economy. The installation of cable systems in our largest cities would require capital expenditures in the millions of dollars. Thousands of people would be put to work building the facility, laying the cable and making the connections to the subscribing homes. In short, cable could provide a shot in the arm for our ailing economy where it is needed most -- our cities. If our sole purpose for taking this action is to protect broadcasters and copyright holders, it would be far more beneficial to all concerned simply to subsidize them directly, perhaps from the taxes paid by cable systems, than to deprive the people of our major cities of both the economic growth and the technological development that cable could bring. Politics involves more than campaign contributions from the wealthy, and media exposure by broadcasters. It also involves the ability to marshal evidence of having done something for the people. How can the FCC's decision possibly be squared with the President's recent State of the Union message?

We also will help meet our goal of full employment in peacetime with a set of major initiatives to stimulate more imaginative use of America's great capacity for technological advance, and to direct it toward improving the quality of life for every American.

In reaching the moon, we demonstrated what miracles American technology is capable of achieving. Now the time has come to move more deliberately toward making full use of that technology here on earth, in harnessing the wonders of science to the service of man. 118 Cong. Rec. H 146-47 (daily ed. January 20, 1972).

The only miracle with cable technology is that it still exists at all.

No one, of course, can know what is going to happen to any policy in Washington. One often suspects that "D.C." stands for the Delay Capital of the world. Broadcasters and copyright owners (and possibly even some cable operators) would have attempted to stop the policy. So what's new?They are trying to stop today's so-called "consensus" policy, too -- giving further proof to the fact that there just ain't no such thing as a consensus between all the economic interests that are involved in this policy (as distinguished from those segments of industry represented at the closed White House meetings with Chairman Burch). What we're engaged in is predictions, game theory. So that's why I put all the chess men on the board. And when I look at them, and consider all the plays I've watched (and participated in) during the past 10 years in this town, what I think would have happened is that -- after a few abortive phone calls and letters from the Hill, a threatened White House "task force," and some faulty court suits -- the August 5 policy would have become the law of the land.

And that, at least, is a good deal more than the likelihood of a lived-happily-ever-after ending for the policy we're throwing up on the table today.

APPENDIX:

APPENDIX A

Chapter 1 of Title 47 of the Code of Federal Regulations is amended as follows:

A. PART 1 -- PRACTICE AND PROCEDURE

1. In � 1.1116, the headnote and paragraphs (a) and (c) are revised to read as follows:

� 1.1116 Scheduel of fees for Cable Television and Cable Television Relay Services.

(a) Applications and petitions filed in the Cable Television and Cable Television Relay Services shall be accompanied by the fees prescribed below:

Applications in the Cable Television Relay (CAR) Service:

For a construction permit	$50
For a license or renewal	15
For a modification of construction permit or license	15
Applications for certificates of compliance, pursuant to � 76.11	35

NOTE. -- If multiple applications for certificate of compliance are filed by cable television systems having a common headend and identical ownership but serving or proposing to serve more than one community, the full $35 fee will be required only for one of the communities; $10 will be required for each of the other communities.

Petitions for special relief, pursuant to � 76.7

(c) Fees are not required in the following instances: (1) Petition for special relief filed pursuant to � 76.7 by a noncommercial educational broadcast station.

B. PART 15 -- RADIO FREQUENCY DEVICES

� 15.4 [Amended.]

1. In � 15.4, paragraph (e) is deleted.

� � 15.161-15.165 [Deleted.]

2. Subpart D of Part 15 ( � � 15.161-15.165) is deleted.

C. PART 21 -- DOMESTIC PUBLIC RADIO SERVICES (OTHER THAN MARITIME MOBILE)

1. In � 21.713, the headnote and text are revised to read as follows:

� 21.713 Applications for authorizations involving relay of television signals to cable television systems.

An application in this service for authorization to establish new facilities or to modify existing facilities to be used to relay television signals to cable television systems shall contain a statement by the applicant that, to the best of his knowledge, each cable television system to be served has, on or before the filing date of the application, filed any necessary application for certificate of compliance, pursuant to � � 76.11 and 76.13 of this chapter. Such statement by the applicant shall identify the application for certificate of compliance by the name of the cable television system for which the certificate is sought, the community and area served or to be served, the date on which the application was filed, and the file number (if available).

D. PART 74 -- EXPERIMENTAL, AUXILIARY, AND SPECIAL BROADCAST, AND OTHER PROGRAM DISTRIBUTIONAL SERVICES

� � 74.1001-74.1083 [Deleted.]

1. Subpart J of Part 74 ( � � 74.1001-74.1083) is deleted.

� � 74.1101-74.1131 [Deleted.]

2. Subpart K of Part 74 ( � � 74.1101-74.1131) is deleted.

E. PART 76 -- CABLE TELEVISION SERVICE

Is added to read as follows:

PART 76 CABLE TELEVISION SERVICE

CONTENTS

Subpart A -- General

� 76.1	Purpose.
� 76.3	Other pertinent rules.
� 76.5	Definitions.
� 76.7	Special Relief.
	Subpart B -- Applications and Certificates of Compliance
� 76.11	Certificate of compliance required.
� 76.13	Filing of applications.
� 76.15	Public notice.
� 76.17	Objections to applications; related matters.
	Subpart C -- Federal-State/Local Regulatory Relationships
� 76.31	Franchise standards.
	Subpart D -- Carriage of Television Broadcast Signals
� 76.51	Major television markets.
� 76.53	Reference points.
� 76.54	Significantly viewed signals; method to be followed
	for special showings.
� 76.55	Manner of carriage.
� 76.57	Provisions for systems operating in communities
	located outside of all
	major and smaller television markets.
� 76.59	Provisions for smaller television markets.
� 76.61	Provisions for first fifty major television markets.
� 76.63	Provisions for second fifty major television markets.
� 76.65	Grandfathering provisions.

Subpart E -- [Reserved]

Subpart F -- Program Exclusivity

� 76.91	Stations entitled to network program exclusivity.
� 76.93	Extent of protection.
� 76.95	Exceptions.
� 76.97	Waiver petitions.
� 76.151	Syndicated program exclusivity; extent of protection.
� 76.153	Persons entitled to exclusivity.
� 76.155	Notification.
� 76.157	Exclusivity contracts.
� 76.159	Grandfathering.
	Subpart G -- Cablecasting
� 76.201	Origination cablecasting in conjunction with carriage of
	broadcast
	signals.
� 76.205	Origination cablecasts by candidates for public office.
� 76.209	Fairness doctrine; personal attacks; political editorials.
� 76.213	Lotteries.
� 76.215	Obscenity.
� 76.217	Advertising.
� 76.221	Sponsorship identification.
� 76.225	Per-program or per-channel charges for
	reception of cablecasts.
� 76.251	Minimum channel capacity; access channels.
	Subpart H -- General Operating Requirements
� 76.301	Copies of rules.
� 76.305	Logging and record-keeping requirements.
	Subpart I -- Forms and Reports
� 76.401	Annual report of cable television systems.
� 76.405	Cable television annual financial report.
� 76.406	Computation of cable television annual fee.
	Subpart J -- Diversification of Control
� 76.501	Cross-ownership.
	Subpart K -- Technical Standards
� 76.601	Performance tests.
� 76.605	Technical standards.
� 76.609	Measurements.
� 76.613	Interference from a cable television system.
� 76.617	Responsibility for receiver-generated
	interference.

SUBPART A -- GENERAL

� 76.1 Purpose.

The rules and regulations set forth in this part provide for the certification of cable television systems and for their operation in conformity with standards for carriage of television broadcast signals, program exclusivity, cablecasting, access channels, and related matters.

� 76.3 Other pertinent rules.

Other pertinent provisions of the Commission's rules and regulations relating to the Cable Television Service are included in the following parts of this chapter:

Part 0 -- Commission Organization.

Part 1 -- Practice and Procedure.

Part 21 -- Domestic Public Radio Services (Other Than Maritime Mobile).

Part 63 -- Extension of Lines and Discontinuance of Service by Carriers.

Part 78 -- Cable Television Relay Service.

Part 91 -- Industrial Radio Services.

� 76.5 Definitions.

(a) Cable television system (or CATV system). Any facility that, in whole or in part, receives directly, or indirectly over the air, and amplifies or otherwise modifies the signals transmitting programs broadcast by one or more television or radio stations and distributes such signals by wire or cable to subscribing members of the public who pay for such service, but such term shall not include (1) any such facility that serves fewer than 50 subscribers, or (2) any such facility that serves only the residents of one or more apartment dwellings under common ownership, control, or management, and commercial establishments located on the premises of such an apartment house.

NOTE. -- In general, each separate and distinct community or municipal entity (including single, discrete, unincorporated areas) served by cable television facilities constitutes a separate cable television system, even if there is a single headend and identical ownership of facilities extending into several communities. See, e.g., Telerama, Inc., 3 FCC 2d 585 (1966); Mission Cable TV, Inc., 4 FCC 2d 236 (1966).

(b) Television station; television broadcast station. Any television broadcast station operating on a channel regularly assigned to its community by � 73.606 of this chapter, and any television broadcast station licensed by a foreign government: Provided, however, That a television broadcast station licensed by a foreign government shall not be entitled to assert a claim to carriage or program exclusivity, pursuant to Subpart D or F of this part, but may otherwise be carried if consistent with the rules.

(d) Principal community contour. The signal contour that a television station is required to place over its entire principal community by � 73.685(a) of this chapter.

(e) Grade A and Grade B contours. The field intensity contours defined in � 73.683(a) of this chapter.

(f) Specified zone of a television broadcast station. The area extending 35 air miles from the reference point in the community to which that station is licensed or authorized by the Commission. A list of reference points is contained in � 76.53. A television broadcast station that is authorized but not operating has a specified zone that terminates eighteen (18) months after the initial grant of its construction permit.

(g) Major television market. The specified zone of a commercial television station licensed to a community listed in � 76.51, or a combination of such specified zones where more than one community is listed.

(h) Designated community in a major television market. A community listed in � 76.51.

(i) Smaller television market. The specified zone of a commercial television station licensed toi a community that is not listed in � 76.51.

(j) Substantially duplicated. Regularly duplicated by the network programming of one or more stations in a week during the hours of 6 to 11 p.m., local time, for a total of 14 or more hours.

(k) Significantly viewed. Viewed in other than cable television households as follows: (1) for a full or partial network station -- a share of viewing hours of at least 3 percent (total week hours), and a net weekly circulation of at least 25 percent; and (2) for an independent station -- a share of viewing hours of at least 2 percent (total week hours), and a net weekly circulation of at least 5 percent. See � 76.54.

NOTE. -- As used in this paragraph, "share of viewing hours" means the total hours that non-cable television households viewed the subject station during the week, expressed as a percentage of the total hours these households viewed all stations during the period, and "net weekly circulation" means the number of non-cable television households that viewed the station for 5 minutes or more during the entire week, expressed as a percentage of the total non-cable television households in the survey area.

(1) Full network station. A commercial television broadcast station that generally carries in weekly prime time hours 85 percent of the hours of programming offered by one of the three major national television networks with which it has a primary affiliation (i.e., right of first refusal or first call).

(m) Partial network station. A commercial television broadcast station that generally carries in prime time more than 10 hours of programming per week offered by the three major national television networks, but less than the amount specified in paragraph (1) above.

(n) Independent station. A commercial television broadcast station that generally carries in prime time not more than 10 hours of programming per week offered by the three major national television networks.

(o) Network programming. The programming supplied by a national or regional television network, commercial or noncommercial.

(p) Syndicated program. Any program sold, licensed, distributed, or offered to television station licensees in more than one market within the United States for non-interconnected (i.e., non-network) television broadcast exhibition, but not including live presentations.

(q) Series. A group of two or more works which are centered around, and dominated by the same individual, or which have the same, or substantially the same, cast of principal characters or a continuous theme or plot.

(r) Off-network series. A series whose episodes have had a national network television exhibition in the United States or a regional network exhibition in the relevant market.

(s) First-run series. A series whose episodes have had no national network television exhibition in the United States and no regional network exhibition in the relevant market.

(t) First-run, non-series programs. Programs, other than series, that have had no national network television exhibition in the United States and no regional network exhibition in the relevant market.

(u) Prime time. The five-hour period from 6 to 11 p.m., local time, except that in the Central Time Zone the relevant period shall be between the hours of 5 and 10 p.m., and in the Mountain Time Zone each station shall elect whether the period shall be 6 to 11 p.m. or 5 to 10 p.m.

NOTE. -- Unless the Commission is notified to the contrary, a station in the Mountain Time Zone shall be presumed to have elected the 6 to 11 p.m. period.

(v) Cablecasting. Programming (exclusive of broadcast signals) carried on a cable television system. See paragraphs (aa), (bb), and (cc) (Class II, III and IV cable television channels) of this section.

(w) Origination cablecasting. Programming (exclusive of broadcast signals) carried on a cable television system over one or more channels and subject to the exclusive control of the cable operator.

(x) Access cablecasting. Services provided by a cable television system on its public, educational, local government, or leased channels.

(y) Legally qualified candidate. Any person who has publicly announced that he is a candidate for nomination by a convention of a political party or for nomination or election in a primary, special, or general election, municipal, county, State, or National, and who meets the qualifications prescribed by the applicable laws to hold the office for which he is a candidate, so that he may be voted for by the electorate directly or by means of delegates or electors, and who:

(1) Has qualified for a place on the ballot, or

(2) Is eligible under the applicable law to be voted for by sticker, by writing his name on the ballot, or other method, and (i) has been duly nominated by a political party which is commonly known and regarded as such, or (ii) makes a substantial showing that he is a bona fide candidate for nomination or office.

(z) Class I cable television channel. A signaling path provided by a cable television system to relay to subscriber terminals television broadcast programs that are received off-the-air or are obtained by microwave or by direct connection to a television broadcast station.

(aa) Class II cable television channel. A signaling path provided by a cable television system to deliver to subscriber terminals television signals that are intended for reception by a television broadcast receiver without the use of an auxiliary decoding device and which signals are not involved in a broadcast transmission path.

(bb) Class III cable television channel. A signaling path provided by a cable television system to deliver to subscriber terminals signals that are intended for reception by equipment other than a television broadcast receiver or by a television broadcast receiver only when used with auxiliary decoding equipment.

(cc) Class IV cable television channel. A signaling path provided by a cable television system to transmit signals of any type from a subscriber terminal to another point in the cable television system.

(dd) Channel frequency response. The relationship within a cable television channel between amplitude and frequency of a constant-amplitude input signal as measured at a subscriber terminal.

(ee) Subscriber terminal. The cable television system terminal to which a subscriber's equipment is connected. Separate terminals may be provided for delivery of signals of various classes.

(ff) System noise. That combination of undesired and fluctuating disturbances within a cable television channel that degrades the transmission of the desired signal and that is due to modulation processes or thermal or other noiseproducing effects, but does not include hum and other undesired signals of discrete frequency.System noise is specified in terms of its rms voltage or its mean power level as measured in the 4 MHz bandwidth between 1.25 and 5.25 MHz above the lower channel boundary of a cable television channel.

(gg) Terminal isolation. The attenuation, at any subscriber terminal, between that terminal and any other subscriber terminal in the cable television system.

(hh) Visual signal level. The rms voltage produced by the visual signal during the transmission of synchronizing pulses.

� 76.7 Special relief.

(a) Upon petition by a cable television system, an applicant, permittee, or licensee of a television broadcast, translator, or microwave relay station, or by any other interested person, the Commission may waive any provision of the rules relating to cable television systems, impose additional or different requirements, or issue a ruling on a complaint or disputed question.

(b) The petition may be submitted informally, by letter, but shall be accompanied by an affidavit of service on any cable television system, station licensee, permittee, applicant, or other interested person who may be directly affected if the relief requested in the petition should be granted.

(c) (1) The petition shall state the relief requested and may contain alternative requests. It shall state fully and precisely all pertinent facts and considerations relied on the demonstrate the need for the relief requested and to support a determination that a grant of such relief would serve the public interest. Factual allegations shall be supported by affidavit of a person or persons with actual knowledge of the facts, and exhibits shall be verified by the person who prepares them.

(2) A petition for a ruling on a complaint or disputed question shall set forth all steps taken by the parties to resolve the problem, except where the only relief sought is a clarification or interpretation of the rules.

(d) Interested persons may submit comments or opposition to the petition within thirty (30) days after it has been filed. For good cause shown in the petition, the Commission may, by letter or telegram to known interested persons, specify a shorter time for such submissions. Comments or oppositions shall be served on petitioner and on all persons listed in petitioner's affidavit of service, and shall contain a detailed full showing, supported by affidavit, of any facts or considerations relied on.

(e) The petitioner may file a reply to the comments or oppositions within twenty (20) days after their submission, which shall be served on all persons who have filed pleadings and shall also contain a detailed full showing, supported by affidavit, of any additional facts or considerations relied on. For good cause shown, the Commission may specify a shorter time for the filing of reply comments.

(f) The Commission, after consideration of the pleadings, may determine whether the public interest would be served by the grant, in whole or in part, or denial of the request, or may issue a ruling on the complaint or dispute. The Commission may specify other procedures, such as oral argument, evidentiary hearing, or further written submissions directed to particular aspects, as it deems appropriate. In the event that an evidentiary hearing is required, the Commission will determine, on the basis of the pleadings and such other procedures as it may specify, whether temporary relief should be afforded any party pending the hearing and the nature of any such temporary relief.

(g) Where a petition for waiver of the provisions of � � 76.57(a), 76.59(a), 76.61(a), or 76.63(a), is filed within fifteen (15) days after a request for carriage, a cable television system need not carry the signal of the requesting station pending the Commission's ruling on the petition or on the question of temporary relief pending further proceedings.

SUBPART B -- APPLICATIONS AND CERTIFICATES OF COMPLIANCE

� 76.11 Certificate of compliance required.

(a) No cable television system shall commence operations or add a television broadcast signal to existing operations unless it receives a certificate of compliance from the Commission.

(b) No cable television system lawfully carrying television broadcast signals in a community prior to March 31, 1972, shall continue carriage of such signals beyond the end of its current franchise period, or March 31, 1977, whichever occurs first, unless it receives a certificate of compliance.

(c) A cable television system to which paragraph (b) applies may continue to carry television broadcast signals after expiration of the period specified therein, if an application for certificate is filed at least thirty (30) days prior to the date on which a certificate would otherwise be required and the Commission has not acted on the application.

� 76.13 Filing of applications.

No standard form is prescribed in connection with the filing of an application for a certificate of compliance; however, three (3) copies of the following information must be provided:

(a) For a cable television system not operational prior to March 31, 1972 (other than systems that were authorized to carry one or more television signals prior to March 31, 1972, but did not commence such carriage prior to that date), an application for certificate of compliance shall include:

(1) The name and mailing address of the operator of the proposed system, community and area to be served, television signals to be carried (other than those permitted to be carried pursuant to � 76.61(b)(2)(ii) or � 76.63(a) (as it related to � 76.61(b)(2)(ii)), proposed date on which cable operations will commence, and, if applicable, a statement that microwave radio facilities are to be used to relay one or more signals;

(2) A copy of FCC Form 325 "Annual Report of Cable Television Systems," supplying all applicable information;

(3) A copy of the franchise, license, permit, or certificate granted to construct and operate a cable television system;

(4) A statement that explains how the proposed system's franchise and its plans for availability and administration of access channels and other nonbroadcast cable services are consistent with the provisions of � � 76.31 and 76.251;

(5) A statement that explains, in terms of the provisions of Subpart D of this part, how carriage of the proposed television signals is consistent with those provisions, including any special showings as to whether a signal is significantly viewed (see � 76.54(b));

(6) An affidavit of service of the information described in (a)(1) above on the licensee or permittee of any television broadcast station within whose predicted Grade B contour or 35-mile zone the system will operate, the licensee or permittee of any 100-watt or higher power television translator station licensed to the community of the system, the franchising authority, the superintendent of schools in the community of the system, and any local or state educations television authorities;

(7) A statement that the filing fee prescribed in � 1.1116 is attached.

(b) For a cable television system that was authorized to carry one or more television signals prior to March 31, 1972, but did not commence such carriage prior to that date, an application for certificate of compliance shall include:

(1) The name and mailing address of the system, community and area served or to be served, television signals authorized to be carried but not carried prior to March 31, 1972, and, if applicable, a statement that microwave relay facilities are to be used to relay one or more signals;

(2) A list of all television signals already being carried;

(3) A statement that explains how the system's plans for availability and administration of access channels and other nonbroadcast cable services are consistent with the provisions of � 76.251.

NOTE. -- The provisions of this subparagraph are applicable only to systems located in a community that is wholly or partially within a major television market.

(4) An affidavit of service of the information described in (b)(1) above on the parties named in paragraph (a)(6) of this section;

(5) A statement that the filing fee prescribed in � 1.1116 is attached.

(c) For a cable television system proposing to add a television signal to existing oiperations, an application for certificate of compliance shall include:

(1) The name and mailing address of the system, community and area served, television signals to be added (other than those permitted to be carried pursuant to � 76.61(b)(2)(ii) or � 76.63(a) (as it relates to � 76.61(b)(2)(ii), and, if applicable, a statement that microwave relay facilities are to be used to relay one or more signals;

(2) A list of all television signals already being carried;

(3) A statement that explains, in terms of the provisions of Subpart D of this part, how carriage of the proposed television signals is consistent with those provisions, including any special showings on the question whether a signal is significantly viewed (see � 76.54(b));

(4) A statement that explains how the system's plans for availability and administration of access channels and other nonbroadcast cable services are consistent with the provisions of � 76.251;

NOTE. -- The provisions of this subparagraph are applicable only to systems operating in a community located in whole or in part within a major television market.

(5) An affidavit of service of the information described in (c)(1) above on the parties named in paragraph (a)(6) of this section;

(6) A statement that the filing fee prescribed in � 1.1116 is attached.

(d) For a cable television system seeking certification of existing operations in accordance with � 76.11(b), an application for certificate of compliance shall include:

(1) The name and mailing address of the system, community and area served, television signals being carried (other than those permitted to be carried pursuant to � 76.61(b)(2)(ii) or � 76.63(a) (as it relates to � 76.61(b)(2)(ii)), date on which operations commenced, and date on which its current franchise expires;

(2) A statement that explains how the franchise under which the system will operate upon Commission certification is consistent with the franchise standards specified in � 76.31;

(3) An affidavit of service of the information described in (d)(1) above on the parties named in paragraph (a)(6) of this section;

(4) A statement that the filing fee prescribed by � 1.1116 is attached.

NOTE. -- As used in � 76.13, the term "predicted Grade B contour" means the field intensity contour defined in � 73.683(a) of this chapter, the location of which is determined exclusively by means of the calculations prescribed in � 73.684 of this chapter.

� 76.15 Public Notice.

The Commission will give public notice of the filing of applications for certificates of compliance. A certificate will not be issued sooner than thirty (30) days from the date of public notice.

� 76.17 Objections to applications; related matters.

A petition challenging the service proposed in an application for certificate of compliance shall be filed within thirty (30) days of the public notice described in � 76.15. The procedures specified in � 76.7 shall be applicable to such petitions and to oppositions and replies. Controversies concerning carriage (Subpart D) and program exclusivity ( � 76.91) will be acted on in connection with the certificating process if raised within thirty (30) days of the public notice; any other objection will be treated as a petition for special relief filed pursuant to � 76.7.

SUBPART C -- FEDERAL-STATE/LOCAL REGULATORY RELATIONSHIPS

� 76.31 Franchise standards.

(a) In order to obtain a certificate of compliance, a proposed or existing cable television system shall have a franchise or other appropriate authorization that contains recitations and provisions consistent with the following requirements:

(1) The franchisee's legal, character, financial, technical, and other qualifications, and the adequacy and feasibility of its construction arrangements, have been approved by the franchising authority as part of a full public proceeding affording due process;

(2) The franchisee shall accomplish significant construction within one (1) year after receiving Commission certification, and shall thereafter equitably and reasonably extend exnergized trunk cable to a substantial percentage of its franchise area each year, such percentage to be determined by the franchising authority;

(3) The initial franchise period and any renewal franchise period shall be of reasonable duration;

(4) The franchising authority has specified or approved the initial rates which the franchisee charges subscribers for installation of equipment and regular subscriber services. No changes in rates charged to subscribers shall be made except as authorized by the franchising authority after an appropriate public proceeding affording due process;

(5) The franchise shall specify procedures for the investigation and resolution of all complaints regarding the quality of service, equipment malfunctions, and similar matters, and shall require that the franchisee maintain a local business office or agent for these purposes;

(6) Any modifications of the provisions of this section resulting from amendment by the Commission shall be incorporated into the franchise within one (1) year of adoption of the modification, or at the time of franchise renewal, whichever occurs first. Provided, however, That, in an application for certificate of compliance, consistency with these requirements shall not be expected of a cable television system that was in operation prior to March 31, 1972, until the end of its current franchise period, or March 31, 1977, whichever occurs first.

(b) The franchise fee shall be reasonable (e.g., in the range of 3-5 percent of the franchisee's gross subscriber revenues per year from cable television operations in the community (including all forms of consideration, such as initial lump sum payments)). If the franchise fee exceeds three percent of such revenues, the cable television system shall not receive Commission certification until the reasonableness of the fee is approved by the Commission on showings, by the franchisee, that it will not interfere with the effectuation of federal regulatory goals in the field of cable television, and, by the franchising authority, that it is appropriate in light of the planned local regulatory program. The provisions of this paragraph shall not be effective with respect to a cable television system that was in operation prior to March 31, 1972 until the end of its current franchise period, or March 31, 1977, whichever occurs first.

SUBPART D -- CARRIAGE OF TELEVISION BROADCAST SIGNALS

� 76.51 Major television markets.

For purposes of the cable television rules, the following is a list of the major television markets and their designated communities:

(a) First fifty major television markets:

(1) New York, N.Y.-Linden-Paterson, N.J.

(2) Los Angeles-San Bernardino-Corona-Fontana, Cal.

(3) Chicago, Ill.

(4) Philadelphia, Pa.-Burlington, N.J.

(5) Detroit, Mich.

(6) Boston-Cambridge-Worcester, Mass.

(7) San Francisco-Oakland-San Jose, Cal.

(8) Cleveland-Lorain-Akron, Ohio

(9) Washingtn, D.C.

(10) Pittsburgh, Pa.

(11) St. Louis, Mo.

(12) Dallas-Fort Worth, Tex.

(13) Minneapolis-St. Paul, Minn.

(14) Baltimore, Md.

(15) Houston, Tex.

(16) Indianapolis-Bloomington, Ind.

(17) Cincinnati, Ohio-Newport, Ky.

(18) Atlanta, Ga.

(19) Hartford-New Haven-New Britain-Waterbury, Conn.

(20) Seattle-Tacoma, Wash.

(21) Miami, Fla.

(22) Kansas City, Mo.

(23) Milwaukee, Wis.

(24) Buffalo, N.Y.

(25) Sacramento-Stockton-Modesto, Cal.

(26) Memphis, Tenn.

(27) Columbus, Ohio

(28) Tampa-St. Petersburg, Fla.

(29) Portland, Ore.

(30) Nashville, Tenn.

(31) New Orleans, La.

(32) Denver, Colo.

(33) Providence, R.I.-New Bedford, Mass.

(34) Albany-Schenectady-Troy, N.Y.

(35) Syracuse, N.Y.

(36) Charleston-Huntington, W. Va.

(37) Kalamazoo-Grand Rapids-Muskegon-Battle Creek, Mich.

(38) Louisville, Ky.

(39) Oklahoma City, Oklahoma

(40) Birmingham, Ala.

(41) Dayton-Kettering, Ohio

(42) Charlotte, N.C.

(43) Phoenix-Mesa, Ariz.

(44) Norfolk-Newport News-Portsmouth-Hampton, Va.

(45) San Antonio, Tex.

(46) Greenville-Spartanburg-Anderson, S.C.-Asheville, N.C.

(47) Greensboro-High Point-Winston-Salem, N.C.

(48) Salt Lake City, Utah

(49) Wilkes Barre-Scranton, Pa.

(50) Little Rock, Ark.

(b) Second fifty major television markets:

(51) San Diego, Cal.

(52) Toledo, Ohio

(53) Omaha, Neb.

(54) Tulsa, Okla.

(55) Orlando-Daytona Beach, Fla.

(56) Rochester, N.Y.

(57) Harrisburg-Lebanon-Lancaster-York, Pa.

(58) Texarkana, Tex.-Shreveport, La.

(59) Mobile, Ala.-Pensacola, Fla.

(60) Davenport, Iowa-Rock Island-Moline, Ill.

(61) Flint-Bay City-Saginaw, Mich.

(62) Green Bay, Wis.

(63) Richmond-Petersburg, Va.

(64) Springfield-Decatur-Champaign-Jacksonville, Ill.

(65) Cedar Rapids-Waterloo, Iowa

(66) Des Moines-Ames, Iowa

(67) Wichita-Hutchinson, Kan.

(68) Jacksonville, Fla.

(69) Cape Girardeau, Mo-Paducah, Ky.-Harrisburg, Ill.

(70) Roanoke-Lynchburg, Va.

(71) Knoxville, Tenn.

(72) Fresno, Cal.

(73) Raleigh-Durham, N.C.

(74) Johnstown-Altoona, Pa.

(75) Portland-Poland Spring, Me.

(76) Spokane, Wash.

(77) Jackson, Miss.

(78) Chattanooga, Tenn.

(79) Youngstown, Ohio

(80) South Bend-Elkhart, Ind.

(81) Albuquerque, N. Mex.

(82) Fort Wayne-Roanoke, Ind.

(83) Peoria, Ill.

(84) Greenville-Washington-New Bern, N.C.

(85) Sioux Falls-Mitchell, S.D.

(86) Evansville, Ind.

(87) Baton Rouge, La.

(88) Beaumont-Port Arthur, Texas

(89) Duluth-Superior, Minn.

(90) Wheeling, W. Va.-Steubenville, Ohio

(91) Lincoln-Hastings-Kearney, Neb.

(92) Lansing-Onondaga, Mich.

(93) Madison, Wis.

(94) Columbus, Ga.

(95) Amarillo, Tex.

(96) Huntsville-Decatur, Ala.

(97) Rockford-Freeport, Ill.

(98) Fargo-Grand Forks-Valley City, N.D.

(99) Monroe, La.-El Dorado, Ark.

(100) Columbia, S.C.

� 76.53 Reference points.

To determine the boundaries of the major and smaller television markets (defined in � 76.5), the following list of reference points for communities having licensed television broadcast stations and/or outstanding construction permits shall be used. Where a community's reference point is not given, the geographic coordinates of the main post office in the community shall be used.

	Latitude			Longitude
State and
community	Degrees	Minutes	Seconds	Degrees	Minutes	Seconds
Alabama:
Anniston	33	39	49	87	49	47
Birmingham	33	31	01	86	48	36
Decatur	34	36	35	86	58	45
Demopolis	32	30	56	87	50	07
Dothan	31	13	27	85	23	35
Dozier	31	29	30	86	21	59
Florence	34	48	05	87	40	31
Huntsville	34	44	18	86	35	19
Louisville	31	47	00	85	33	09
Mobile	30	41	36	88	02	33
Montgomery	32	22	33	86	18	31
Mount Cheaha State Park	32	29	06	85	48	30
Selma	24	24	26	87	01	15
Tuscaloosa	33	12	05	87	33	44
Alaska:
Anchorage	61	13	09	149	53	29
College	64	51	22	147	48	38
Fairbanks	64	50	35	147	41	31
Juneau	58	18	06	134	25	09
Sitka	57	02	58	135	20	12
Arizona:
flagstaff	35	11	54	111	39	02
Mesa	33	24	54	111	49	41
Nogales	31	20	14	110	56	12
Phoenix	33	27	12	112	04	28
Tucson	32	13	15	110	58	08
Yuma	32	43	16	114	37	01
Arkansas:
El Dorado	33	12	39	92	39	40
Fayetteville	36	03	41	94	09	38
Fort Smith	35	23	10	94	25	36
Joesboro	35	50	14	90	42	11
Little Rock	34	44	42	92	16	37
California:
Bakersfield	35	22	31	119	01	16
Chico	39	44	07	121	49	57
Concord	37	58	46	122	01	51
Corona	33	52	35	117	33	56
El Centro	32	47	25	115	32	45
Eureka	40	48	08	124	09	46
Fontana	34	05	45	117	26	29
Fresno	36	44	12	119	47	11
Guasti	34	03	48	117	35	10
Hanford	36	19	51	119	38	48
Los Angeles	34	03	15	118	14	28
Modesto	37	38	26	120	59	44
Monterey	36	35	44	121	53	39
Oakland	37	48	03	122	15	54
Palm Springs	33	49	22	116	32	46
Redding	40	34	57	122	23	34
Sacramento	38	34	57	121	29	41
Salinas	36	40	24	121	39	25
San Bernadino	34	06	30	117	17	28
San Diego	32	42	53	117	09	21
San Francisco	37	46	39	122	24	40
San Jose	37	20	16	121	53	24
San Luis Obispo	35	16	49	120	39	34
San Mateo	37	34	08	122	19	16
Santa Barbara	34	25	18	119	41	55
Santa Maria	34	57	02	120	26	10
Stockton	37	57	30	121	17	16
Tulare	36	12	31	119	20	35
Ventura	34	16	47	119	17	22
Visalia	36	19	46	119	17	30
Colorado:
Colorado Springs	38	50	07	104	49	16
Denver	39	44	58	104	59	22
Durango	37	16	29	107	52	25
Grand Junction	39	04	06	108	33	54
Montrose	38	28	44	107	52	31
Pueblo	38	16	17	104	36	33
Sterling	40	37	29	103	12	25
Connecticut:
Bridgeport	41	10	49	73	11	22
Hartford	41	46	12	72	40	49
New Britain	41	40	02	72	47	08
New Haven	41	18	25	72	55	30
Norwich	41	31	36	72	04	31
Waterbury	41	33	13	73	02	31
Delaware: Wilmington	30	44	46	75	32	51
District of Columbia: Washington	38	53	51	77	00	33
Florida:
Clearwater	27	57	56	82	47	51
Daytona Beach	29	12	44	81	01	10
Fort Lauderdale	26	07	11	80	08	34
Fort Myers	26	38	42	81	52	06
Fort Pierce	27	26	48	80	19	38
Gainesville	29	38	56	82	19	19
Jacksonville	30	19	44	81	39	42
Largo	27	54	54	82	47	32
Leesburg	28	48	43	81	52	30
Melbourne	28	04	41	80	36	29
Miami	25	46	37	80	11	32
Ocala	29	11	34	82	08	14
Orlando	28	32	42	81	22	38
Panama City	30	09	24	85	39	46
Pensacola	30	24	51	87	12	56
St. Petersburg	27	46	18	82	38	19
Sarasota	27	20	05	82	32	20
Tallahassee	30	26	30	84	16	56
Tampa	27	56	58	82	27	25
West Palm Beach	26	42	36	80	03	07
Georgia:
Albany	31	34	36	84	09	22
Athens	33	57	34	83	22	39
Atlanta	33	45	10	84	23	37
Augusta	33	28	20	81	58	00
Chatsworth	34	46	08	84	46	10
Cochran	32	23	18	83	21	18
Columbus	32	28	07	84	59	24
Dawson	31	46	33	84	26	20
Macon	32	50	12	83	37	36
Pelham	31	07	42	84	09	02
Savannah	32	04	42	81	05	37
Thomasville	30	50	25	83	58	59
Waycross	31	12	19	82	21	47
Wrens	33	12	21	82	23	23
Guam: Agana	13	28	23	144	45	00
Hawaii:
Hilo	19	43	42	155	05	30
Honolulu	21	18	36	157	51	48
Wailuku	20	53	21	156	30	27
Idaho:
Boise	43	37	07	116	11	58
Idaho Falls	43	29	39	112	02	28
Lewiston	46	25	05	117	01	10
Moscow	46	43	58	116	59	54
Pocatello	42	51	38	112	27	01
Twin Falls	42	33	25	114	28	21
Illinois:
Aurora	41	45	22	88	18	56
Bloomington	40	28	58	88	59	32
Carbondale	37	43	38	89	13	00
Champaign	40	07	05	88	14	48
Chicago	41	52	28	87	38	22
Decatur	39	50	37	88	57	11
Elgin	42	02	14	88	16	53
Freeport	42	17	57	89	37	07
Harrisburg	37	44	20	88	32	25
Jacksonville	39	44	03	90	13	44
Joliet	41	31	37	88	04	52
La Salle	41	19	49	89	05	44
Moline	41	30	31	90	30	49
Mount Vernon	38	18	29	88	54	26
Olney	38	43	47	88	05	00
Peoria	40	41	42	89	35	33
Quincy	39	55	59	91	24	12
Rockford	42	16	07	89	05	48
Rock Island	41	30	40	90	34	24
Springfield	39	47	58	89	38	51
Urbana	40	06	41	88	13	13
Indiana:
Bloomington	39	09	56	86	31	52
Elkhart	41	40	56	85	58	15
Evansville	37	58	20	87	34	21
Fort Wayne	41	04	21	85	08	26
Gary	41	35	59	87	20	07
Hammond	41	35	35	13	87	27
43
Indiana -- Continued
Indianapolis	39	46	07	86	09	46
Lafayette	40	25	11	86	53	39
Marion	40	33	17	85	39	49
Muncie	40	11	28	85	23	16
Richmond	39	49	49	86	53	26
Roanoke	40	57	50	85	22	30
St. John	41	27	00	87	28	13
South Bend	41	40	33	86	15	01
Terre Haute	39	28	03	87	24	26
Vincennes	38	40	52	87	31	12
Iowa:
Ames	42	01	36	93	36	44
Cedar Rapids	41	58	48	91	39	48
Davenport	41	31	24	90	34	21
des Moines	41	35	14	93	37	00
Dubuque	42	29	55	90	40	08
Fort Dodge	42	30	12	94	11	05
Iowa City	41	39	37	91	31	52
Mason City	43	09	15	93	12	00
Sioux City	42	29	46	96	24	30
Waterloo	42	29	40	92	20	20
Kansas:
Ensign	37	38	48	100	14	00
Garden City	37	57	54	100	52	20
Goodland	39	20	53	101	42	35
Great Bend	38	22	04	98	45	58
Hays	38	52	16	99	19	57
Hutchinson	38	03	11	97	55	20
Pittsburg	37	24	50	97	42	11
Salina	38	50	36	97	36	46
Topeka	39	03	16	95	40	23
Wichita	37	41	30	97	20	16
Kentucky:
Ashland	38	28	36	82	38	23
Bowling Green	36	59	41	86	26	33
Covington	39	05	00	84	30	29
Elizabethatown	38	41	38	85	51	35
Hazard	37	14	54	87	11	31
Lexington	38	02	50	84	29	46
Louisiville	38	14	47	85	45	49
Madisonville	37	19	45	87	29	54
Morehead	38	10	53	83	26	08
Murray	36	36	35	88	18	39
Newport	39	05	28	84	29	20
Owensboro	37	46	27	87	06	46
Owneton	38	32	11	84	50	16
Paducah	37	05	13	88	35	56
Pikesville	37	28	49	82	31	09
Somerset	37	05	35	84	36	17
Louisiana:
Alexandria	31	18	33	92	26	47
Baton Rouge	30	26	58	91	11	00
Houma	29	35	34	90	43	09
Lafayette	30	13	24	92	01	06
Lake Charles	30	13	45	93	12	52
Monroe	32	30	02	92	06	55
New Orleans	29	56	53	90	04	10
Shreveport	32	30	46	93	44	58
West Monroe	32	30	51	92	08	13
Maine:
Augusta	44	18	53	69	46	29
Bangor	44	48	13	68	46	18
Calais	45	11	04	67	16	43
Orono	44	53	15	68	40	12
Poland Spring	44	01	42	70	21	40
Portland	43	39	33	70	15	19
Presque Isle	46	40	57	68	00	52
Maryland:
Baltimore	39	17	26	76	36	45
Cumberland	39	39	01	78	45	45
Hagerstown	39	38	39	77	43	15
Salisbury	38	21	56	75	35	56
Massachusetts:
Adams	42	37	30	73	07	05
Boston	42	21	24	71	03	25
Cambridge	42	21	58	71	06	24
Greenfield	42	35	15	72	35	54
New Bedford	41	38	13	70	55	41
Springfield	42	06	21	72	35	32
Worcester	42	15	37	71	48	17
Michigan:
Allen Park	42	15	12	83	12	57
Battle Creek	42	18	58	85	10	48
Bay City	43	36	04	83	53	15
Cadillac	44	15	10	85	23	52
Cheboygan	45	38	38	84	28	38
Detroit	42	19	48	83	02	57
Escanaba	45	44	45	87	03	18
Flint	43	00	50	83	41	33
Grand Rapids	42	58	03	85	40	13
Jackson	42	14	43	84	24	22
Kalamazoo	42	17	29	85	35	14
Lansing	42	44	01	84	33	15
Marquette	46	32	37	87	23	43
Mount Pleasant	43	16	12	84	46	31
Muskegon	43	14	17	86	15	02
Onondaga	42	26	41	84	33	43
Saginaw	43	25	52	83	56	05
Sault Ste. Marie	46	29	58	84	20	37
Traverse City	44	45	47	85	37	25
University Center	43	33	31	83	59	09
Minnesota:
Alexandria	45	53	06	95	22	39
Appleton	45	12	00	96	01	02
Austin	43	39	57	92	58	20
Duluth	46	46	56	92	06	24
Hibbing	47	25	43	92	56	21
Mankato	44	09	49	94	00	09
Minneapolis	44	58	57	93	15	43
Rochester	44	01	21	92	28	03
St. Cloud	45	33	35	94	09	38
St. Paul	44	56	50	93	05	11
Walker	47	05	57	94	35	12
Mississippi:
Biloxi	30	23	43	88	53	08
Bude	31	27	46	90	50	34
Columbus	33	29	40	88	25	33
Greenwood	33	31	05	90	10	55
Gulfport	30	22	04	89	05	36
Jackson	32	17	56	90	11	06
Laurel	31	41	40	89	07	48
Meridian	32	21	57	88	42	02
Oxford	34	22	00	89	31	07
State College	33	27	18	88	47	13
Tupelo	34	15	26	88	42	30
Missouri:
Cape Girardeau	37	18	29	89	31	29
Columbia	38	57	03	92	19	46
Hannibal	39	42	24	91	22	45
Jefferson City	38	34	40	92	10	24
Joplin	37	05	26	94	30	50
Kansas City	39	04	56	94	35	20
Kirksville	40	11	37	92	34	58
Poplar Bluff	36	45	20	90	23	38
St. Joseph	39	45	57	94	51	02
St. Joseph	39	45	57	94	51	02
St. Louis	38	37	45	90	12	22
Sedalia	38	42	08	93	13	26
Springfield	37	13	03	93	17	32
Montana:
Anaconda	46	07	40	112	57	12
Billings	45	47	00	108	30	04
Butte	46	01	06	112	32	11
Glendive	47	06	42	104	43	02
Great Falls	47	29	33	111	18	23
Helena	46	35	33	112	02	24
Kalispell	48	11	45	114	18	44
Miles City	46	24	34	105	50	30
Missoula	46	52	23	113	59	29
Nebraska:
Albion	41	41	23	97	59	53
Alliance	42	06	04	102	52	08
Bassett	42	35	00	99	32	10
Grand Island	40	55	33	98	20	23
Hastings	40	35	21	98	23	20
Hayes Center	40	30	36	101	01	18
Hay Springs	42	41	03	102	41	22
Kearney	40	41	58	99	04	53
Lexington	40	46	30	99	44	41
Lincoln	40	48	59	96	42	15
McCook	40	12	02	100	37	32
Merriman	42	55	07	101	42	02
Norfolk	42	01	56	97	24	42
North Platte	41	08	14	100	45	43
Omaha	41	15	42	95	56	14
Scottsbluff	41	51	40	103	39	00
Superior	40	01	12	98	04	00
Nevada:
Elko	40	50	00	115	45	41
Henderson	36	02	00	114	58	57
Las Vegas	36	10	20	115	08	37
Reno	39	31	27	119	48	40
New Hampshire:
Berlin	44	28	20	71	10	43
Durham	43	08	02	70	55	35
Hanover	43	42	03	72	17	24
Keene	42	56	02	72	16	44
Lebanon	43	38	34	72	15	12
Littleton	44	18	22	71	46	13
Manchester	42	59	28	71	27	41
New Jersey:
Atlantic City	39	21	32	74	25	53
Burlington	40	04	21	74	51	47
Camden	39	56	45	75	07	20
Glen Ridge	40	48	16	74	12	14
Linden	40	37	57	74	15	22
Newark	40	44	14	74	10	19
New Brunswick	40	29	38	74	26	49
Paterson	40	54	51	74	09	51
Trenton	40	13	16	74	45	28
Vineland	39	29	13	75	01	17
Wildwood	38	59	18	74	48	43
New Mexico:
Albuquerque	35	05	01	106	39	05
Carlsbad	32	25	09	104	13	47
Clovis	34	24	11	103	12	08
Portales	34	10	58	103	20	10
Roswell	33	23	47	104	31	26
New York:
Albany	42	39	01	73	45	01
Binghamton	42	06	03	75	54	47
Buffalo	42	52	52	78	52	21
Carthage	43	58	50	75	36	26
Elmira	42	05	26	76	48	22
Garden City	40	43	26	73	38	03
Ithaca	42	26	33	76	29	42
Jamestown	42	05	45	79	14	40
New York	40	45	06	73	59	39
North Pole	44	23	59	73	51	00
Norwood	44	45	00	75	59	39
Oneonta	42	27	21	75	03	42
Patchogue	40	45	56	73	00	42
Plattsburgh	44	42	03	73	27	07
Riverhead	40	55	06	72	39	51
Rochester	43	09	41	77	36	21
Schenecatady	42	48	52	73	56	24
Syracuse	43	03	04	76	09	14
Utica	43	06	12	75	13	33
Watertown	43	58	30	75	54	48
North Carolina:
Asheville	35	35	42	82	33	26
Chapel Hill	35	54	51	79	03	11
Charlotte	35	13	44	80	50	45
Columbia	35	55	06	76	15	40
Concord	35	24	29	80	34	45
Durham	35	59	48	78	54	00
Fayetteville	35	03	12	78	52	54
Greensboro	36	04	17	79	47	25
Greenville	35	36	49	77	22	22
Hickory	35	43	54	81	20	20
High Point	35	57	14	80	00	15
Jacksonville	34	45	00	77	25	54
Linville	36	04	06	81	52	16
New Bern	35	06	33	77	02	23
Raleigh	35	46	38	78	38	21
Washington	35	32	35	77	03	16
Wilmington	34	14	14	77	56	58
Winston-Salem	36	05	52	80	14	42
North Dakota:
Bismark	46	48	23	100	47	17
Devils Lake	48	06	42	98	51	29
Dickinson	46	52	55	102	47	06
Fargo	46	52	30	96	47	18
Minot	48	14	09	101	17	38
Pembina	48	58	00	97	14	37
Valley City	46	55	31	98	00	04
Williston	48	08	47	103	36	59
Ohio:
Akron	41	05	00	81	30	44
lathens	39	19	38	82	06	09
Bowling Green	41	22	37	83	39	03
Canton	40	47	50	81	22	37
Cincinnati	39	06	07	84	30	35
Cleveland	41	29	51	81	41	50
Columbus	39	57	47	83	00	17
Dayton	39	45	32	84	11	43
Kettering	39	41	22	84	10	07
Lima	40	44	29	84	06	34
Lorain	41	27	48	82	10	23
Marion	40	35	14	83	07	36
Newark	40	03	35	82	24	15
Oxford	39	30	28	84	44	26
Portsmouth	38	44	06	82	59	39
Springfield	39	55	38	83	48	29
Steubenville	40	21	42	80	36	53
Toledo	41	39	14	83	32	39
Youngstown	41	05	57	80	39	02
Zanesville	39	56	59	82	00	56
Klahoma:
Ada	34	46	24	96	40	36
Ardmore	34	10	18	97	07	50
Lawton	34	36	27	98	23	41
Oklahoma City	35	28	26	97	31	04
Sayre	35	17	34	99	38	23
Tulsa	36	09	12	95	59	34
Oregon:
Coos Bay	43	22	02	124	13	09
Corvallis	44	34	10	123	16	12
Eugene	44	03	16	123	05	30
Klamath Falls	42	13	32	121	46	32
La Grande	45	19	47	118	05	45
Medford	42	19	33	122	52	31
Portland	45	31	06	122	40	35
Roseburg	43	12	34	123	20	26
Salem	44	56	21	123	01	59
Pennylvania:
Allentown	40	36	11	75	28	06
Altoona	40	30	55	78	24	03
Bethlehem	40	37	57	75	21	36
Clearfield	41	01	20	78	26	10
Erie	42	07	15	80	04	57
Harrisburg	40	15	43	76	52	59
Hershey	40	17	04	76	39	01
Johnstown	40	19	35	78	55	03
Lancaster	40	02	25	76	18	29
Philadelphia	39	56	58	75	09	21
Pittsburgh	40	26	19	80	00	00
Reading	40	20	09	75	55	40
Scranton	41	24	32	75	39	46
Wilkes-Barre	41	14	32	75	53	17
York	39	57	35	76	43	36
Puerto Rico:
Aguadilla	18	25	53	67	09	18
Arecibo	18	28	26	66	43	39
Caguas	18	13	59	66	02	06
Fajardo	18	19	35	65	39	21
Mayaguez	18	12	16	67	08	36
Ponce	18	00	51	66	36	58
San Juan	18	26	55	66	03	55
Rhode Island: Providence	41	49	32	71	24	41
South Carolina:
Allendale	33	00	30	81	18	26
Anderson	34	30	06	82	38	54
Charleston	32	46	35	79	55	53
Columbia	34	00	02	81	02	00
Florence	34	11	49	79	46	06
Greenville	34	50	50	82	24	01
Spartanburg	34	57	03	81	56	06
South Dakota:
Aberdeen	45	27	31	98	29	03
Brookings	44	18	38	96	47	53
Florence	45	03	14	97	19	35
Lead	44	21	07	103	46	03
Mitchell	43	42	48	98	01	36
Pierre	44	22	06	100	20	57
Rapid City	44	04	52	103	13	11
Reliance	43	52	45	99	36	18
Sioux Falls	43	32	35	96	43	35
Vermillion	42	46	52	96	55	35
Tennessee:
Chattanooga	35	02	41	85	18	32
Jackson	35	36	48	88	49	15
Johnson City	36	19	04	82	20	56
Kingsport	36	32	57	82	33	44
Knoxville	35	57	39	83	55	07
Lexington	35	38	58	88	23	31
Memphis	35	08	46	90	03	13
Nashville	36	09	33	86	46	55
Sneedville	36	31	46	83	13	04
Texas:
Abilene	32	27	05	99	43	51
Amarillo	35	12	27	101	50	04
Austin	30	16	09	97	44	37
Beaumont	30	05	20	94	06	09
Belton	31	03	31	97	27	39
Big Spring	32	15	03	101	28	38
Bryan	30	38	48	96	21	31
College Station	30	37	05	96	20	41
Corpus Christi	27	47	51	97	23	45
Dallas	32	47	09	96	47	37
El Paso	31	45	36	106	29	11
Fort Worth	32	44	55	97	19	44
Galveston	29	18	10	94	47	43
Harlingen	26	11	29	97	41	35
Houston	29	45	26	95	21	37
Laredo	27	30	22	99	30	30
Longview	32	28	24	94	43	45
Lubbock	33	35	05	101	50	33
Lufkin	31	20	14	94	43	21
Midland	31	59	54	102	04	31
Monahans	31	35	16	102	53	26
Nacogdoches	31	36	13	94	39	20
Odessa	31	50	49	102	22	01
Port Arthur	29	52	09	93	56	01
Richardson	32	57	06	96	44	05
Rosenberg	29	33	30	95	48	15
San Angelo	31	27	39	100	26	03
San Antonio	29	25	37	98	29	06
Sweetwater	32	28	24	100	24	18
Temple	31	06	02	97	20	22
Texarkana	33	25	29	94	02	34
Tyler	32	21	21	95	17	52
Victoria	28	48	01	97	00	06
Waco	31	33	12	97	08	00
Weslaco	26	09	24	97	59	33
Wichita Falls	33	54	34	98	29	28
Utah:
Logan	41	44	03	111	50	11
Ogden	41	13	31	111	58	21
Provo	40	14	07	111	39	34
Salt Lake City	40	45	23	111	53	26
Vermont:
Burlington	44	28	34	73	12	46
Rutland	43	36	29	72	58	56
St. Johnsbury	44	25	16	72	01	13
Windsor	44	28	38	72	23	32
Virginia:
Bristol	36	35	48	82	11	04
Charlottesville	38	01	52	78	28	50
Goldvein	38	26	54	77	39	19
Hampton	37	01	32	76	20	32
Harrisonburg	38	27	01	78	52	07
Lynchburg	37	24	51	79	08	37
Norfolk	36	51	10	76	17	21
Norton	36	56	05	82	37	31
Petersburg	37	13	40	77	24	15
Portsmouth	36	50	12	76	17	54
Richmond	37	32	15	77	26	09
Roanoke	37	16	13	79	56	44
Staunton	38	09	02	79	04	34
Virgin Island:
Charlotte Amalie	18	20	36	64	55	53
Christiansted	17	44	44	64	42	21
Washington:
Bellingham	48	45	02	122	28	36
Kennewick	46	12	28	119	08	32
Lakewood Center	47	07	37	122	31	15
Pasco	46	13	50	119	05	27
Pullman	46	43	42	117	10	46
Richland	46	16	36	119	16	21
Seattle	47	36	32	122	20	12
Spokane	47	39	32	117	25	33
Tacoma	47	14	59	122	26	15
Yakima	46	36	09	120	30	39
West Virginia:
Bluefield	37	15	29	81	13	20
Charleston	38	21	01	81	37	52
Clarksburg	39	16	50	80	20	38
Grandview	37	49	28	81	04	20
Huntington	38	25	12	82	26	33
Morgantown	39	37	41	79	57	28
Oak Hill	37	58	31	81	08	45
Parkersburg	39	15	57	81	33	46
Weston	39	02	19	80	28	05
Wheeling	40	04	03	80	43	20
Wisconsin:
Eau Claire	44	48	31	91	29	49
Fond Du Lac	43	46	35	88	26	52
Green Bay	44	30	48	88	00	50
Janesville	42	40	52	89	01	39
Kenosha	42	35	04	87	49	14
La Crosse	43	48	48	91	15	02
Madison	43	04	23	89	22	55
Milwaukee	43	02	19	87	54	15
Rhinelander	45	38	09	89	24	50
Superior	46	43	14	92	06	07
Wausau	44	57	30	89	37	40
Wyoming:
Casper	42	51	00	106	19	22
Cheyenne	41	08	09	104	49	07
Rawlins	41	47	23	107	14	37
Riverton	43	01	29	108	23	03

� 76.54 Significantly viewed signals; method to be followed for special showings.

(a) Signals that are significantly viewed in a county (and thus are deemed to be significantly viewed within all communities within the county) are those that meet the test of significant viewing (see � 76.5(k)) according to the 1971 American Research Bureau "Television Circulation Share of Hours" survey, for counties in which there is less than 10 percent cable television penetration, and the 1971 American Research Bureau "Non-CATV Circulation and Share of Viewing Hours Study for ARB CATV-controlled Counties," for counties in which there is 10 percent or more cable television penetration.

NOTE. -- The relevant information from these surveys is available from the Commission.

(b) On or after March 31, 1973, significant viewing in a cable television community for signals not shown as significantly viewed under paragraph (a) of this section may be demonstrated by an independent professional audience survey of non-cable television homes that covers at least two weekly periods separated by at least thirty (30) days but no more than one of which shall be a week between the months of April and September. If two surveys are taken, they shall include samples sufficient to assure that the combined surveys result in an average figure at least one standard error above the required viewing level. If surveys are taken for more than two weekly periods in any 12 months, all such surveys must be submitted and the combined surveys must result in an average figure at least one standard error above the required viewing level

� 76.55 Manner of carriage.

(a) Where a television broadcast signal is required to be carried by a cable television system, pursuant to the rules in this subpart:

(1) The signal shall be carried without material degradation in quality (within the limitations imposed by the technical state of the art), and, where applicable, in accordance with the technical standards of Subpart K of this part;

(2) The signal shall, on request of the station licensee or permittee, be carried on the system on the channel number on which the station is transmitting, except where technically infeasible;

(3) The signal shall, on request of the station licensee or permittee, be carried on the system on no more than one channel.

(b) Where a television broadcast signal is carried by a cable television system, pursuant to the rules in this subpart, the programs broadcast shall be carried in full, without deletion or alteration of any portion except as required by this part.

(c) A cable television system need not carry the signal of any television translator station if (1) the system is carrying the signal of the originating station, or (2) the community of the system is located, in whole or in part, which the Grade B contour of a station carried on the system whose programming is substantially duplicated by the translator station.

(d) If the community of a cable television system is located, in whole or in part, within the Grade B contour of both a satellite and its parent television station, and if the system would otherwise be required to carry both of them pursuant to the rules in this subpart, the system need carry only one of these signals, and may select between them. � 76.57 Provisions for systems operating in communities located outside of all major and smaller television markets.

A cable television system operating in a community located wholly outside all major and smaller television markets, as defined in � 76.5, shall carry television broadcast signals in accordance with the following provisions:

(a) Any such cable television system may carry or, on request of the relevant station licensee or permittee, shall carry the signals of:

(1) Television broadcast stations within whose Grade B contours the community of the system is located, in whole or in part;

(2) Television translator stations, with 100 watts or higher power, licensed to the community of the system;

(3) Noncommercial educational television broadcast stations within whose specified zone the community of the system is located, in whole or in part;

(4) Commercial television broadcast stations that are significantly viewed in the community of the system. See � 76.54.

(b) In addition to the television broadcast signals carried pursuant to paragraph (a) of this section, any such cable television system may carry any additional television signals.

� 76.59 Provisions for smaller television markets.

A cable television system operating in a community located in whole or in part within a smaller television market, as defined in � 76.5, shall carry television broadcast signals only in accordance with the following provisions:

(a) Any such cable television system may carry or, on request of the relevant station licensee or permittee, shall carry the signals of:

(1) Television broadcast stations within whose specified zone the community of the system is located, in whole or in part;

(2) Noncommercial educational television broadcast stations within whose Grade B contours the community of the system is located, in whole or in part;

(3) Commercial television broadcast stations licensed to communities in other smaller television markets, within whose Grade B contours the community of the system is located, in whole or in part;

(4) Television broadcast stations licensed to other communities which are generally considered to be part of the same smaller television market (Example: Burlington, Vermont-Plattsburgh, New York television market);

(5) Television translator stations, with 100 watts or higher power, licensed to the community of the system;

(6) Commercial television broadcast stations that are significantly viewed in the community of the system. See � 76.54.

(b) Any such cable television system may carry sufficient additional signals so that, including the signals required to be carried pursuant to paragraph (a) of this section, it can provide the signals of a full network station of each of the major national television networks, and of one independent television station: Provided, however, That, in determining how many additional signals may be carried, any authorized but not operating television broadcast station that, if operational, would be required to be carried pursuant to paragraph (a)(1) of this section, shall be considered to be operational for a period terminating 18 months after grant of its initial construction permit. The following priorities are applicable to the additional television signals that may be carried:

(1) Full network stations. A cable television system may carry the nearest missing full network stations or the nearest in-state full network stations;

NOTE -- The Commission may waive the requirements of this subparagraph for good cause shown in a petition filed pursuant to � 76.7.

(2) Independent station. A cable television system may carry any independent television station: Provided, however, That if a signal of a station in the first 25 major television markets (see � 76.51(a)) is carried pursuant to this subparagraph, such signal shall be taken from one of the two closest such markets, where such signal is available.

NOTE. -- It is not contemplated that waiver of the provisions of this subparagraph will be granted.

(c) In addition to the noncommercial educational television broadcast signals carried pursuant to paragraph (a) of this section, any such cable television system may carry the signals of any noncommercial educational stations that are operated by an agency of the state within which the system is located. Such system may also carry any other noncommercial educational signals, in the absence of objection filed pursuant to � 76.7 by any local noncommercial educational station or state or local educational television authority.

(d) In addition to the television broadcast signals carried pursuant to paragraphs (a) through (c) of this section, any such cable television system may carry any television stations broadcasting predominantly in a non-English language.

(e) Where the community of a cable television system is wholly or partially within both one of the first fifty major television markets and a smaller television market, the carriage provisions for the first fifty major markets shall apply. Where the community of a system is wholly or partially within both one of the second fifty major television markets and a smaller television market, the carriage provisions for the second fifty major markets shall apply.

� 76.61 Provisions for first fifty major television markets.

A cable television system operating in a community located in whole or in part within one of the first fifty major television markets listed in � 76.51(a) shall carry television broadcast signals only in accordance with the following provisions:

(a) Any such cable television system may carry, or on request of the relevant station licensee or permittee, shall carry the signals of:

(1) Television broadcast stations within whose specified zone the community of the system is located, in whole or in part: Provided, however, That where a cable television system is located in the designated community of a major television market, it shall not carry the signal of a television station licensed to a designated community in another major television market, unless the designated community in which the cable system is located is wholly within the specified zone (see � 76.5(f)) of the station, except as otherwise provided in this section;

(2) Noncommercial educational television broadcast stations within whose Grade B contours the community of the system is located, in whole or in part;

(3) Television translator stations, with 100 watts or higher power, licensed to the community of the system;

(4) Television broadcast stations licensed to other designated communities of the same major television market (Example: Cincinnati, Ohio-Newport, Kentucky television market);

(5) Commercial television broadcast stations that are significantly viewed in the community of the system. See � 76.54.

(b) Any such cable television system may carry sufficient additional signals so that, including the signals required to be carried pursuant to paragraph (a) of this section, it can provide the signals of a full network station of each of the major national television networks, and of three independent television stations: Provided, however, That in determining how many additional signals may be carried, any authorized but not operating television broadcast station that, if operational, would be required to be carried pursuant to paragraph (a)(1) of this section, shall be considered to be operational for a period terminating 18 months after grant of its initial construction permit. The following priorities are applicable to the additional television signals that may be carried:

(1) Full network stations. A cable television system may carry the nearest missing full network stations, or the nearest in-state full network stations;

NOTE. -- The Commission may waive the requirements of this subparagraph for good cause shown in a petition filed pursuant to � 76.7

(2) Independent stations. (i) For the first and second additional signals, if any, a cable television system may carry the signals of any independent television station: Provided, however, That if signals of stations in the first 25 major television markets (see � 76.51(a)) are carried pursuant to this subparagraph, such signals shall be taken from one or both of the two closest such markets, where such signals are available. If a third additional signal may be carried, a system shall carry the signal of any independent UHF television station located within 200 air miles of the reference point for the community of the system (see � 76.53), or, if there is no such station, either the signal of any independent VHF television station located within 200 air miles of the reference point for the community of the system, or the signal of any independent HUF television station.

NOTE. -- It is not contemplated that waiver of the provisions of this subparagraph will be granted.

(ii) Whenever, pursuant to Subpart F of this part, a cable television system is required to delete a television program on a signal carried pursuant to paragraph (b)(2)(i) or (c) of this section, or a program on such a signal is primarily of local interest to the distant community (e.g., a local news or public affairs program), such system may, consistent with the program exclusivity rules of Subpart F of this part, substitute a program from any other television broadcast station. A program substituted may be carried to its completion, and the cable system need not return to its regularly carried signal until it can do so without interrupting a program already in progress.

(c) After the service standards specified in paragraph (b) of this section have been satisfied, a cable television system may carry two additional independent television broadcast signals, chosen in accordance with the priorities specified in paragraph (b)(2) of this section: Provided, however, That the number of additional signals permitted under this paragraph shall be reduced by the number of signals added to the system pursuant to paragraph (b) of this section.

(d) In addition to the noncommercial educational television broadcast signals carried pursuant to paragraph (a) of this section, any such cable television system may carry the signals of any noncommercial educational stations that are operated by an agency of the state within which the system is located. Such system may also carry any other noncommercial educational signals, in the absence of objection filed pursuant to � 76.7 by any local noncommercial educational station or state or local educational television authority.

(e) In addition to the television broadcast signals carried pursuant to paragraphs (a) through (d) of this section, any such cable television system may carry any television stations broadcasting predominantly in a non-English language.

(f) Where the community of a cable television system is wholly or partially within both one of the first fifty major television markets and another television market, the provisions of this section shall apply.

� 76.63 Provisions for second fifty major television markets.

(a) A cable television system operating in a community located in whole or in part within one of the second fifty major television markets listed in � 76.51(b) shall carry television broadcast signals only in accordance with the provisions of � 76.61, except that in paragraph (b) of � 76.61, the number of additional independent television signals that may be carried is two (2).

(b) Where the community of a cable television system is wholly or partially within both one of the second fifty major television markets and one of the first fifty major television markets, the carriage provisions for the first fifty major markets shall apply. Where the community of a system is wholly or partially within both one of the second fifty major television markets and a smaller television market, the provisions of this section shall apply.

� 76.65 Grandfathering provisions.

The provisions of � � 76.57, 76.59 76.61 and 76.63 shall not be deemed to require the deletion of any television broadcast or translator signals which a cable television system was authorized to carry or was lawfully carrying prior to March 31, 1972: Provided, however, That if carriage of a signal has been limited by Commission order to discrete areas of a community, any expansion of service will be subject to the appropriate provisions of this subpart. If a cable television system in a community is authorized to carry signals, either by virtue of specific Commission authorization or otherwise, any other cable television system already operating or subsequently commencing operations in the same community may carry the same signals. (Any such new system shall, before instituting service, obtain a certificate of compliance, pursuant to � 76.11.).

SUBPART E -- [RESERVED]

SUBPART F -- PROGRAM EXCLUSIVITY � 76.91 Stations entitled to network program exclusivity.

(a) Any cable television system operating in a community, in whole or in part, within the Grade B contour of any television broadcast station, or within the community of a 100-watt or higher power television translator station, and that carries the signal of such station shall, on request of the station licensee or permittee, maintain the station's exclusivity as an outlet for network programming against lower priority duplicating signals, but not against signals of equal priority, in the manner and to the extent specified in � � 76.93 and 76.95.

(b) For purposes of this section, the order of priority of television signals carried by a cable television system is as follows:

(1) First, all television broadcast stations within whose principal community contours the community of the system is located, in whole or in part;

(2) Second, all television broadcast stations within whose Grade A contours the coimmunity of the system is located, in whole or in part;

(3) Third, all television broadcast stations within whose Grade B contours the community of the system is located, in whole or in part;

(4) Fourth, all television translator stations with 100 watts or higher power, licensed to the community of the system.

(c) If the signal of a television broadcast station licensed to a community in a smaller television market is carried by a cable television system, pursuant to � 76.57(a)(4), such signal shall, on request, be afforded network program exclusivity. This provision shall not be applicable to any signal authorized or lawfully carried by a cable television system prior to March 31, 1972.

� 76.93 Extent of protection.

(a) Where the network programming of a television station is entitled to program exclusivity, the cable television system shall, on request of the station licensee or permittee, refrain from simultaneously duplicating any network program broadcast by such station, if the cable operator has received notification from the requesting station of the date and time of its broadcast of the program and the date and time of any broadcast to be deleted, as soon as possible and in any event no later than 48 hours prior to the broadcast to be deleted. On request of the cable system, such notice shall be given no later than the Monday preceding the calendar week (Sunday-Saturday) during which exclusivity is sought.

(b) On petition filed pursuant to � 76.7, the Commission will afford additional, limited program exclusivity to a network-affiliated station where, because of the time-zone situation, the affording of simultaneous program exclusivity would result in duplication of a substantial amount of such station's network programming. Where a station is currently receiving same-day program exclusivity and files for such relief within fifteen (15) days of the effective date of this rule, it shall continue to receive same-day program exclusivity pending the Commission's ruling on the petition. During such period, and if same-day program exclusivity is required thereafter, the following provisions shall be applicable:

(1) A cable television system need not delete reception of a network program if, in so doing, it would leave available for reception by subscribers, at any time, less than the programs of two networks (including those broadcast by any stations whose signals are being carried and whose program exclusivity is being protected pursuant to the requirements of this section);

(2) A system need not delete reception of a network program which is scheduled by the network between the hours of 6 and 11 p.m., eastern time, but it broadcast by the station requesting deletion, in whole or in part, outside of the period which would normally be considered prime time for network programming in the time zone involved.

� 76.95 Exceptions.

Notwithstanding the requirements of � 76.93:

(a) A cable television system need not delete reception of any program which would be carried on the system in color but will be broadcast in black and white by the station requesting deletion.

(b) The Commission will give full effect to private agreements between operators of cable television systems and local television stations which provide for a type or degree of network exclusivity which differs from the requirements of � � 76.91 and 76.93.

� 76.97 Waiver petitions.

Where a petition for waiver of the provisions of � � 76.91 and 76.93 is filed within fifteen (15) days after a request for program exclusivity is received by the operator of a cable television system, such system need not provide program exclusivity pending the Commission's ruling on the petition or on the question of temporary relief pending further proceedings.

� 76.151 Syndicated program exclusivity; extent of protection.

Upon receiving notification pursuant to � 76.155:

(a) No cable television system, operating in a community in whole or in part within one of the first fifty major television markets shall carry a syndicated program, pursuant to � 76.61(b), (c), (d), or (e), for a period of one year from the date that program is first licensed or sold as a syndicated program to a television station in the United States for television broadcast exhibition;

(b) No cable television system, operating in a community in whole or in part within a major television market, shall carry a syndicated program, pursuant to � � 76.61(b), (c), (d), or (e), or 76.63(a) (as it refers to � 76.61(b), (c), (d), or (e)), while a commercial television station licensed to a designated community in that market has exclusive broadcast exhibition rights (both over-the-air and by cable) to that program: Provided, however, That if a commercial station licensed to a designated community in one of the second fifty major television markets has such exclusive rights, a cable television system located in whole or in part within the market of such station may carry such syndicated programs in the following circumstances:

(1) If the program is carried by- the cable television system in prime time and will not also be broadcast by a commercial market station in prime time during the period for which there is exclusivity for the program;

(2) For off-network series programs: (i) Prior to the first non-network broadcast in the market of an episode in the series; (ii) After a non-network first-run of the series in the market or after one year from the date of the first non-network broadcast in the market of an episode in the series, whichever occurs first;

(3) For first-run series programs: (i) Prior to the first broadcast in the market of an episode in the series; (ii) After two (2) years from the first broadcast in the market of an episode in the series;

(4) For first-run, non-series programs: (i) Prior to the date the program is available for broadcast in the market under the provision of any contract or license of a television broadcast station in the market; (ii) After two (2) years from the date of such first availability;

(5) For feature films: (i) Prior to the date such film is available for non-network broadcast in the market under the provisions of any contract or license of a television broadcast station in the market; (ii) Two (2) years after the date of such first availability;

(6) For other programs: one day after the first non-network broadcast in the market or one year from the date of purchase of the program for non-network broadcast in the market, whichever occurs first.

NOTES

1.For purposes of � 76.151, a series will be treated as a unit, that is:

(i) No episode of a series (including an episode in a different package of programs in the same series) may be carried by a cable television system, pursuant to � � 76.61(b), (c), (d), or (e) or 76.63(a) (as it refers to � 76.61(b), (c), (d), or (e)) while any episodes of the series are subject to exclusivity protection.

(ii) In the second fifty major television markets, no exclusivity will be afforded a different package of programs in the same series after the initial exclusivity period has terminated.

2. As used in this section, the phrase "broadcast in the market" or "broadcast by a market station" refers to a broadcast by a television station licensed to a designated community in the market.

� 76.153 Parties entitled to exclusivity.

(a) Copyright holders of syndicated programs shall be entitled to the exclusivity provided by � 76.151(a). In order to receive such exclusivity, the copyright holder shall notify each cable system of the exclusivity sought in accordance with the requirements of � 76.155.

(b) Television broadcast stations licensed to designated communities in the major television markets shall be entitled to the exclusivity provided by � 76.151 (b). In order to receive such exclusivity, such television stations shall notify each cable system of the exclusivity sought in accordance with the requirements of � 76.155.

(c) In order to be entitled to exclusivity for a program under � 76.151(b), a television station must have an exclusive right to broadcast that program against all other television stations licensed to the same designated community and against broadcast signal cable carriage of that program in the cable system community: Provided, however, That such exclusivity will not be recognized in a designated community of another major television market unless such community is wholly within the television market of the station seeking exclusivity. In hyphenated markets, exclusivity will be recognized beyond the specified zone of a station only to the extent the station has exclusivity against other stations in the designated communities of the market. In such instances, exclusivity to the extent a station has obtained it will be recognized within the specified zones of such other stations. It shall be presumed that broadcast rights acquired prior to March 31, 1972, are exclusive for the specified zones of all stations in the market in which the station is located.

� 76.155 Notification.

(a) Syndicated program exclusivity notification shall include the following information:

(1) For purposes of � 76.151(a): (i) The name and address of the copyright holder requesting exclusivity; (ii) The name of the program or series for which exclusivity is sought; (iii) The date of first sale or license of the program for television broadcast as a syndicated program in the United States.

(2) For purposes of � 76.151(b): (i) The name and address of the television broadcast station requesting exclusivity; (ii) The name of the program or series for which exclusivity is sought; (iii) The dates on which exclusivity is to commence and terminate; (iv) As to programs to be deleted from signals regularly carried by the system pursuant to � � 76.61(b), (c), (d), or (e) and 76.63(a) (as it refers to � 76.61(b), (c), (d), or (e)): the name of the program; the call letters of the station from which the deletion is to be made; and the date, time, and duration of the deletion. Information, once supplied pursuant to paragraphs (a)(2)(i), (ii), (iii) or (a) (3) of this section, need not be repeated in any notification supplying the information required by this subparagraph.

(3) For purposes of � 76.151(b) (as it relates to television stations licensed to designated communities in the second fifty major television markets), the following information shall be supplied in addition to that required by paragraph (a)(2) of this section: (i) Whether the program will be broadcast in prime time by the station requesting exclusivity during the period of protection provided in � 76.151(b); (ii) The specific rule pursuant to which exclusivity is requested (e.g., � 76.151(b)(2) -- off-network series, � 76.151(b)(3) -- first-run series); (iii) For off-network series programs, the number of showings contracted for, including the number of repeat presentations, if any, and the date when the first run is to end.

(b) Subject to he provisions of paragraph (c) of this section, notifications give pursuant to � 76.151 must be received no later than the Monday preceding the calendar week (Sunday-Saturday) during which exclusivity is sought.

(c) Direct notice of a change in the schedule of a television station against which exclusivity is sought, given to a cable television system by a television station seeking exclusivity, shall, if given more than 36 hours prior to the time a deletion is to be made, supersede prior notifications containing the information required by paragraph (a) of this section and any information otherwise relied on pursuant to paragraph (d) of this section.

(d) In determining which programs must be deleted from a television signal when such information is not required to be provided pursuant to paragraph (a) of this section, a cable television system may rely on information from any of the following sources published or made available during the week the deletion is to be made or during the prior week:

(i) newspapers or journals of general circulation in the service area of a television station whose programs may be subject to deletion;

(ii) a television station whose programs may be subject to deletion;

(iii) any television station requesting exclusivity.

� 76.157 Exclusivity contracts.

With respect to each program as to which a television broadcast station licensee or permittee requests exclusivity pursuant to � 76.151, such licensee or permittee shall maintain in its public file an exact copy of those portions of the exclusivity contract, such portions to be signed by both the copyright holder and the licensee or permittee, setting forth in full the provisions pertinent to the duration, nature, and extent of the exclusivity terms concerning broadcast signal exhibition (whether over-the-air or by cable) to which the parties have agreed.

� 76.159 Grandfathering.

The provision of � 76.151 shall not be deemed to require a cable television system to delete programming from any signal that was carried prior to March 31, 1972, or that any other cable television system in the same community was carrying prior to March 31, 1972: Provided, however, That if carriage of a signal has been limited by Commission order to discrete areas of a community, any expansion of service will be subject to the appropriate provisions of the subpart.

SUBPART G -- CABLECASTING

� 76.201 Origination cablecasting in conjunction with carriage of broadcast signals.

(a) No cable television system having 3500 or more subscribers shall carry the signal of any television broadcast station unless the system also operates to a significant extent as a local outlet by origination cablecasting and has available facilities for local production and presentation of programs other than automated services. Such origination cablecasting shall be limited to one or more designated channels which may be used for no other purpose.

(b) No cable television system located outside of all major television markets shall enter into any contract, arrangement, or lease for use of its cablecasting facilities which prevents or inhibits the use of such facilities for a substantial portion of time (including the time period 6-11 p.m.) for local programming designed to inform the public on controversial issues of public importance.

(c) No cable television system shall carry the signal of any television broadcast station if the system engages in origination cablecasting, either voluntarily or pursuant to paragraph (a) of this section, unless such cablecasting is conducted in accordance with the provisions of � � 76.205, 76.209, 76.213, 76.215, 76.217, 76.221, and 76.225.

� 76.205 Origination cablecasts by candidates for public office.

(a) General requirements. If a cable television system shall permit any legally qualified candidate for public office to use its origination (channels) and facilities therefor, it shall afford equal opportunities to all other such candidates for that office: Provided, however, That such system shall have no power of censorship over the material cablecast by any such candidate; and Provided, further, That an appearance by a legally qualified candidate on any:

(1) Bona fide newscast,

(2) Bona fide news interview,

(3) Bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or

(4) On-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of the facilities of the system within the meaning of this paragraph.

NOTE. -- The fairness doctrine is applicable to these exempt categories. See � 76.209.

(b) Rates and practices.

(1) The rates, if any, charged all such candidates for the same office shall be uniform, shall not be rebated by any means direct or indirect, and shall not exceed the charges made for comparable origination use of such facilities for other purposes.

(2) In making facilities available to candidates for public office no cable television system shall make any discrimination between candidates in charges, practices, regulations, facilities, or services for or in connection with the service rendered, or make or give any preference to any candidate for public office or subject any such candidate to any prejudice or disadvantage; nor shall any cable television system make any contract or other agreement which shall have the effect of permitting any legally qualified candidate for any public office to cablecast to the exclusion of other legally qualified candidates for the same public office.

(c) Records, inspections. Every cable television system shall keep and permit public inspection of a complete record of all requests for origination cablecasting time made by or on behalf of candidates for public office, together with an appropriate notation showing the disposition made by the system of such requests, the charges made, if any, and the length and time of cablecast, if the request is granted. Such records shall be retained for a period of two years.

(d) Time of request. A request for equal opportunities for use of the origination (channels) must be submitted to the cable television system within one (1) week of the day on which the first prior use, giving rise to the right of equal opportunities, occurred: Provided, however, That where a person was not a candidate at the time of such first prior use, he shall submit his request within one (1) week of the first subsequent use after he has become a legally qualified candidate for the office in question.

(e) Burden of proof. A candidate requesting such equal opportunities of the cable television system, or complaining of noncompliance to the Commission, shall have the burden of proving that he and his opponent are legally qualified candidates for the same public office.

� 76.209 Fairness doctrine; personal attacks; political editorials.

(a) A cable television system engaging in origination cablecasting shall afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

NOTE. -- See public notice, Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 F.R. 10415.

(b) When, during such origination cablecasting, an attack is made upon the honesty, character, integrity, or like personal qualities of an identified person or group, the cable television system shall, within a reasonable time and in no event later than one (1) week after the attack, transmit to the person or group attacked; (1) notification of the date, time, and identification of the cablecast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the attack; and (3) an offer of a reasonable opportunity to respond over the system's facilities.

(c) The provisions of paragraph (b) of this section shall not be applicable: (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign; and (3) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisions of paragraph (b) of this section shall be applicable to editorials of the cable television system).

(d) Where a cable television system, in an editorial, (1) endorses or (2) opposes a legally qualified candidate or candidates, the system shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office, or (ii) the candidate opposed in the editorial, (a) notification of the date, time, and channel of the editorial; (b) a script or tape of the editorial; and (c) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the system's facilities: Provided, however, That were such editorials are cablecast within 72 hours prior to the day of the election, the system shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion.

� 76.213 Lotteries.

(a) No cable television system when engaged in origination cablecasting shall transmit or permit to be transmitted on the origination cablecasting channel or channels any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes.

(b) The determination whether a particular program comes within the provisions of paragraph (a) of this section depends on the fact of each case. However, the Commission will in any event consider that a program comes within the provisions of paragraph (a) of this section if in connection with such program a prize consisting of money or thing f value is awarded to any person whose selection is dependent in whole or in part upon lot or chance, if as a condition of winning or competing for such prize, such winner or winners are required to furnish any money or thing of value or are required to have in their possession any product sold, manufactured, furnished or distributed by a sponsor of a program cablecast on the system in question.

� 76.215 Obscenity.

No cable television system when engaged in origination cablecasting shall transmit or permit to be transmitted on the origination cablecasting channel or channels material that is obscene or indecent.

� 76.217 Advertising.

A cable television system engaged in origination cablecast programming may present advertising material at the beginning and conclusion of each such program and at natural intermissions or breaks within a cablecast: Provided, however, That the system itself does not interrupt the presentation of program material in order to intersperse advertising; and Provided, further, That advertising material is not presented on or in connection with origination cablecasting in any other manner.

NOTE. -- The term "natural intermissions or breaks within a cablecast" means any natural intermission in the program material which is beyond the control of the cable television operator, such as time-out in a sporting event, an intermission in a concert or dramatic performance, a recess in a city council meeting, an intermission in a long motion picture which was present at the time of theatre exhibition, etc.

� 76.221 Sponsorship identification.

(a) When a cable television system engaged in origination cablecasting presents any matter for which money, services, or other valuable consideration is either directly or indirectly paid or promised to, or charged or received by, such system, the system shall make an announcement that such matter is sponsored, paid for, or furnished, either in whole or in part, and by whom or on whose behalf such consideration was supplied: Provided, however, That "service or other valuable consideration" shall not include any service or property furnished without charge or at a nominal charge for use on, or in connection with, such cablecasting unless it is so furnished as consideration for an identification in a cablecast of any person, product, service, trademark, or brand name beyond an identification which is reasonably related to the use of such service or property on the cablecast.

(b) Each system engaged in origination cablecasting shall exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program matter for origination cablecasting, information to enable it to make the announcement required by this section.

(c) In the case of any political program or any program involving the discussion of public controversial issues for which any films, records, transcriptions, talent, script, or other material or services of any kind are furnished, either directly, script, or other material or services of any kind are furnished, either directly or indirectly, to a cable television system as an inducement to the origination cablecasting of such program, an announcement to this effect shall be made at the beginning and conclusion of such program: Provided, however, That only one such announcement need be made in the case of any such program of five (5) minutes' duration or less, either at the beginning or conclusion of the program.

(d) The announcements required by this section are waived with respect to feature motion picture films produced initially and primarily for theatre exhibition.

� 76.225 Per-program or per-channel charges for reception of cablecasts.

(a) Origination or access cablecasting operations for which a per-program or per-channel charge is made shall comply with the following requirements:

(1) Feature films shall not be cablecast which have had general release in theatres anywhere in the United States more than two (2) years prior to their cablecast: Provided, however, That during one week of each calendar month one feature film the general release of which occurred more than ten (10) years previously may be cablecast, and more than a single showing of such film may be made during that week; Provided, further, That feature films the general release of which occurred between two (2) and ten (10) years before proposed cablecast may be cablecast upon a convincing showing to the Commission that bona fide attempt has been made to sell the films for conventional television broadcasting and that they have been refused, or that the owner of the broadcast rights to the films will not permit them to be televised don conventional television because he has been unable to work out satisfactory arrangements concerning editing for presentation thereon, or perhaps because he intends never to show them on conventional television since to do so might impair their repetitive box office potential in the future.

NOTE. -- As used in this subparagraph, "general release" means the first-run showing of a feature film in a theater or theatres in an area, on a nonreserved-seat basis, with continuous performances. For first-run showing of feature films on a nonreserved-seat basis which are not considered to be "general release" for purposes of this subparagraph, see note 56 in Fourth Report and Order in Docket No. 11279, 15 FCC 2d 466.

(2) Sports events shall not be cablecast which have been televised live on a nonsubscription, regular basis in the community during the two (2) years preceding their proposed cablecast: Provided, however, That if the last regular occurrence of a specific event (e.g., summer Olympic games) was more than two (2) years before proposed showing on cable television in a community and the event was at that time televised on conventional television in that community, it shall not be cablecast.

NOTES

1. In determining whether a sports event has been televised in a community on a nonsubscription basis, only commercial television broadcast stations which place a Grade A contour over the entire community will be considered. Such stations need not necessarily be licensed to serve that community.

2. The manner in which this subparagraph will be administered and in which "sports," "sports events," and "televised live on a nonsubscription regular basis" will be construed is explained in paragraphs 288-305 in Fourth Report and Order in Docket No. 11279, 15 FCC 2d 466.

(3) No series type of program with interconnected plot or substantially the same cast of principal characters shall be cablecast.

(4) Not more than 90 percent of the total cablecast programming hours shall consist of feature films and sports events combined. The percentage calculations may be made on a yearly basis, but, absent a showing of good cause, the percentage of such programming hours may not exceed 95 percent of the total cablecast programming hours in any calendar month.

(5) No commercial advertising announcements shall be carried on such channels during such operations except, before and after such programs, for promotion of other programs for which a per-program or per-channel charge is made.

� 76.251 Minimum channel capacity; access channels.

(a) No cable television system operating in a community located in whole or in part within a major television market, as defined in � 76.5, shall carry the signal of any television broadcast station unless the system also complies with the following requirements concerning the availability and administration of access channels:

(1) Minimum channel capacity. Each such system shall have at least 120 MHz of bandwidth (the equivalent of 20 television broadcast channels) available for immediate or potential use for the totality of cable services to be offered;

(2) Equivalent amount of bandwidth. For each Class I cable channel that is utilized, such system shall provide an additional channel, 6 MHz in width, suitable for transmission of Class II or Class III signals (see � 76.5 for cable channel definitions);

(3) Two-way communications. Each such system shall maintain a plant having technical capacity for nonvoice return communications;

(4) Public access channel. Each such system shall maintain at least one specially designated, noncommercial public access channel available on a first-come, nondiscriminatory basis. The system shall maintain and have available for public use at least the minimal equipment and facilities necessary for the production of programming for such a channel. See also � 76.201;

(5) Education access channel. Each such system shall maintain at least one specially designated channel for use by local educational authorities;

(6) Local government access channel. ach such system shall maintain at least one specially designated channel for local government uses;

(7) Leased access channels. having satisfied the origination cablecasting requirements of � 76.201, and the requirements of paragraph (a)(4), (a)(5) and (a)(6) of this section for specially designated access channels, such system shall offer other portions of its nonbroadcast bandwidth, including unused portions of the specially designated channels, for leased access services. However, these leased channel operations shall be undertaken with the express understanding that they are subject to displacement if there is a demand to use the channels for their specially designated purposes. On at least one of the leased channels, priority shall be given part-time users;

(8) Expansion of access channel capacity. Whenever all of the channels described in paragraphs (a)(4) through na)(7) are in use during 80 percent of the weekdays (Monday-Friday) for 80 percent of the time during any consecutive three-hour period for six consecutive weeks, such system shall have six months in which to make a new channel available for any or all of the above-described purposes;

(9) Program content control. Each such system shall exercise no control over program content on any of the channels described in paragraphs (a)(4) through (a)(7) of this section; however, this limitation shall not prevent it from taking appropriate steps to insure compliance with the operating rules described in paragraph (a)(11);

(10) Assessment of costs. (i) From the commencement of cable television service in the community of such system until five (5) years after completion of the system's basic trunk line, the channels described in paragraphs (a)(5) and (a)(6) of this section shall be made available without charge.

(ii) One of the public access channels described in paragraph (a)(4) of this section shall always be made available without charge, except that production costs may be assessed for live studio presentations exceeding five minutes. Such production costs and any fees for use of other public access channels shall be consistent with the goal of affording the public a low-cost means of television access;

(11) Operating rules. (i) For the public access (channels), such system shall establish rules requiring first-come nondiscriminatory access; prohibiting the presentation of: any advertising material designed to promote the sale of commercial products or services (including advertising by or on behalf of candidates for public office); lottery information; and obscene or indecent matter (modeled after the prohibitions in � � 76.213 and 76.215, respectively); and permitting public inspection of a complete record of the names and addresses of all persons or groups requesting access time. Such a record shall be retained for a period of two years.

(ii) For the educational access (channels), such system shall establish rules prohibiting the presentation of: any advertising material designed to promote the sale of commercial products or services (including advertising by or on behalf of candidates for public office); lottery information; and obscene or indecent matter (modeled after the prohibitions in � � 76.213 and 76.215, respectively); and permitting public inspection of a complete record of the names and addresses of all persons or groups requesting access time. Such a record shall be retained for a period of two years.

(iii) For the leased (channels), such system shall establish rules requiring first-come, non-discriminatory access; prohibiting the presentation of lottery information and obscene or indecent matter (modeled after the prohibitions in � � 76.213 and 76.215, respectively); requiring sponsorship identification (see � 76.221); specifying an appropriate rate schedule; and permitting public inspection of a complete record of the names and addresses of all persons or groups requesting time. Such a record shall be retained for a period of two years.

(iv) The operating rules governing public access, educational, and leased channels shall be filed with the Commission within 90 days after a system first activates any such channels, and shall be available for public inspection at the system's offices. Except on specific authorization, or with respect to the operation of the local government access channel, no local entity shall prescribe any other rules concerning the number or manner of operation of access channels; however, franchise specifications concerning the number of such channels for systems in operation prior to March 31, 1972, shall continue in effect.

(b) No cable television system operating in a community located wholly outside of all major television markets shall be required by a local entity to exceed the provisions concerning the availability and administration of access channels contained in paragraph (a). If a system provides any access programming, it shall comply with paragraph (a)(9), (a)(10), and (a)(11).

(c) The provisions of this section shall apply to all cable television systems that commence operations on or after March 31, 1972 in a community located in whole or in part within a major television market. Systems that commenced operations prior to March 31, 1972 shall comply on or before March 31, 1977; Provided, however, That, if such systems begin to provide any of the access services described above at an earlier date, they shall comply with paragraph (a)(9), (a)(10), and (a)(11) of this section at that time; And provided, further, That if such systems receive certificates of compliance to add television signals to thir operations at an earlier date, they shall comply with paragraph (a)(4) through (a)(11) of this section at the time of such addition.

SUBPART H -- GENERAL OERATING REQUIREMENTS

� 76.301 Copies of rules.

The operator of a cable television system shall have a current copy of Part 76, and is expected to be familiar with the rules governing cable television systems. Copies of the Commission's rules may be obtained from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402, at nominal cost.

� 76.304 Logging and record-keeping requirements.

(a) Carriage of certain television signals. (1) A cable television system operating in a community located in whole or in part within a major television market shall keep and permit public inspection of a record of all television signals carried pursuant to � � 76.61(b), (c), (d), or (e) or 76.63(a) (as it refers to � 76.61(b), (c), (d), or (e)). Such record shall include the call letters and location of each such station whose signals are carried, the date and specific starting and ending time of such carriage, and the names of the programs scheduled to be shown. This record shall be retained for a period of two years.

(2) This paragraph shall be applicable only to television signals whose carriage commenced on or after March 31, 1972.

(b) Origination cablecasts by candidates for public office. See � 76.205(c).

(d) Educational access channels. See � 76.251(a)(11).

(e) Leased access channels. See � 76.251(a)(11).

SUBPART I -- FORMS AND REPORTS

� 76.401 Annual report of cable television systems.

An "Annual Report of Cable Television Systems" (FCC Form 325) shall be filed with the Commission for each cable television system, as defined in � 76.5, on or before March 1 of each year, for the preceding calendar year.

� 76.405 Cable television annual financial report.

A "Cable Television Annual Financial Report" (FCC Form 326) shall be filed with the Commission for each cable television system, as defined in � 76.5, on or before April 1 of each year, for the preceding calendar year: Provided, however, That a cable television system which commences operations prior to December 1, 1971, may report on a fiscal year basis, in which case Form 326 shall be filed annually no more than ninety (90) days after the close of the system's fiscal year.

� 76.406 Computation of cable television annual fee.

A "Computation of Cable Television Annual Fee" (FCC Form 326-A) shall be filed with the Commission for each cable television system, as defined in � 76.5, on or before April 1 of each year, for the preceding calendar year, to accompany payment of the cable television annual fee, See � � 1.1101 and 1.1116.

SUBPART J -- DIVERSIFICATION OF CONTROL

� 76.501 Cross-ownership.

(a) No cable television system (including all parties under common control) shall carry the signal of any television broadcast station if such system directly or indirectly owns, operates, controls, or has an interest in:

(1) A national television network (such as ABC, CBS, or NBC); or

(2) A television broadcast station whose predicted Grade B contour, computed in accordance with � (73.684 of this chapter, overlaps in whole or in part the service area of such system (i.e., the area within which the system is serving subscribers); or

(3) A television translator station licensed to the community of such system.

NOTES

1. The word "control" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.

2. The word "interest" as used herein includes, in the case of corporations, common officers or directors and partial (as well as total) ownership interests represented by ownership of voting stock.

3. In applying the provisions of paragraph (a) of this section to the stockholders of a corporation which has more than 50 stockholders:

(a) Only those stockholders need be considered who are officers or directors or who directly or indirectly own 1 percent or more of the outstanding voting stock.

(b) Stock ownership by an investment company, as defined in 15 U.S.C. Section 80a-3 (commonly called a mutual fund), need be considered only if it directly or indirectly owns 3 percent or more of the outstanding voting stock or if officers or directors of the corporation are representatives of the investment company. Holdings by investment companies under common management shall be aggregated. If an investment company directly or indirectly owns voting stock in an intermediate company which in turn directly or indirectly owns 50 percent or more of the voting stock of the corporation, the investment company shall be considered to own the same percentage of outstanding shares of such corporation as it owns of the intermediate company: of such corporation as it owns of the intermediate company need not be considered where the intermediate company owns less than 50 percent of the voting stock, but officers or directors of the corporation who are representatives of the intermediate company shall be deemed to be representatives of the investment company.

(c) In cases where record and beneficial ownership of voting stock is not identical (e.g., bank nominees holding stock as record owners for the benefit of mutual funds, brokerage hourses holding stock in street name for the benefit of customers, trusts holding stock as record owners for the benefit of designated parties), the party having the right to determine how the stock will be voted will be considered to own it for the purposes of this section.

(d) The provisions of paragraph na) of this section are not effective until August 10, 1973, as to ownership interests proscribed herein if such interests were in existence on or before July 1, 1970 (e.g., if a franchise were in existence on or before July 1, 1970); Provided, however, That the provisions of paragraph (a) of this section are effective on August 10, 1970, as to such interests acquired after July 1, 1970.

SUBPART K -- TECHNICAL STANDARDS

� 76.601 Performance tests.

(a) The operator of each cable television system shall be responsible for insuring that each such system is designed, installed, and operated in a manner that fully complies with the provisions of this subpart. Each system operator shall be prepared to show, on request by an authorized representative of the Commission, that the system does, in fact, comply with the rules.

(b) The operator of each cable television system shall maintain at its local office a current listing of the cable television channels which that system delivers to its subscribers and the station or stations whose signals are delivered on each Class I cable television channel, and shall specify for each subscriber the minimum visual signal level it maintains on each Class I cable television channel under normal operating conditions.

(c) The operator of each cable television system shall conduct complete performance tests of that system at least once each calendar year (at intervals not to exceed uj months) and shall maintain the resulting test data on file at the system's local office for at least five (5) years. It shall be made available for inspection by the Commission on request. The performance tests shall be directed at determining the extent to which the system complies with all the technical standards set forth in � 76.605. The tests shall be made on each Class I cable television channel specified pursuant to paragraph (b) of this section, and shall include measurements made at no less than three widely separated points from the system input in terms of cable distance. The measurements may be taken at convenient monitoring points in the cable network, provided that data shall be included to relate the measured performance to the system performance as would be viewed from a nearby subscriber terminal. A description of instruments and procedure and a statement of the qualifications of the person performing the tests shall be included.

(d) Successful completion of the performance tests required by paragraph (c) of this section does not relieve the system of the obligation to comply with all pertinent technical standards at all subscriber terminals. Additional tests, repeat tests, or tests involving specified subscriber terminals may be required by the Commission in order to secure compliance with the technical standards.

(e) All of the provisions of this section shall become effective March 31, 1972.

� 76.605 Technical standards.

(a) The following requirements apply to the performance of a cable television system as measured at any subscriber terminal with a matched termination, and to each of the Class I cable television channels in the system:

(1) The frequency boundaries of cable television channels delivered to subscriber terminals shall conform to those set forth in � 73.603(a) of this chapter: Provided, however, That on special application including an adequate showing of public interest, other channel arrangements may be approved.

(2) The frequency of the visual carrier shall be maintained 1.25 MHz +-25 kHz above the lower boundary of the cable television channel, except that, in those systems that supply subscribers with a converter in order to facilitate delivery of cable television channels, the frequency of the visual carrier at the output of each such converter shall be maintained 1.25 MHz +-250 kHz above the lower frequency boundary of the cable television channel.

(3) The frequency of the aural carrier shall be 4.5 MHz +- 1 kHz above the frequency of the visual carrier.

(4) The visual signal level, across a terminating impedance which correctly matches the internal impedance of the cable system as viewed from the subscriber terminals, shall be not less than the following appropriate value:

Internal impedance:

	Visual signal level
	(millivolt)
75 ohms	1
300 ohms	2

(At other impedance values, the minimum visual signal level shall be .0133 Z millivolts, where Z is the appropriate impedance value.

(5) The visual signal level on each channel shall not vary more than 12 decibels overall, and shall be maintained within -- (i) 3 decibels of the visual signal level of any visual carrier within 6 MHz nominal frequency separation, and (ii) 12 decibels of the visual signal level on any other channel, and (iii) A maximum level such that signal degradation due to overload in the subscriber's receiver does not occur.

(6) The rms voltage of the aural signal shall be maintained between 13 and 17 decibels below the associated visual signal level.

(7) The peak-to-peak variation in visual signal level caused by undesired low frequency disturbances (hum or repetitive transients) generated within the system, or by inadequate low frequency response, shall not exceed 5 percent of the visual signal level.

(8) The channel frequency response shall be within a range of +-2 decibels for all frequencies within -1 MHz and +4 MHz of the visual carrier frequency.

(9) The ratio of visual signal level to system noise, and of visual signal level to any undesired to-channel television signal operating on proper offset assignment, shall be not less than 36 decibels. This requirement is applicable to: (i) Each signal which is delivered by a cable television system to subscribers within the predicted Grade B contour for that signal, or (ii) each signal which is first picked up within its predicted Grade B contour.

(10) The ratio of visual signal level to the rms amplitude of any coherent disturbances such as intermodulation products or discrete-frequency interfering signals not operating on proper offset assignments shall not be less than 46 decibels.

(11) The terminal isolation provided each subscriber shall be not less than 18 decibels, but in any event, shall be sufficient to prevent reflections caused by open-circuited or short-circuited subscriber terminals from producing visible picture impairments at any other subscriber terminal.

(12) Radiation from a cable television system shall be limited as follows:

	Radiation
Frequencies	limit	Distance
	(microvolts/ meter)	(feet)
	(microvolts/ meter)
Up to and including 54 MHz	15	100
Over 54 up to and including 216 MHz	20	10
Over 216 MHz	15	100

(b) Cable television systems distributing signals by using multiple cable techniques or specialized receiving devices, and which, because of their basic design, cannot comply with one or more of the technical standards set forth in paragraph (a), may be permitted to operate provided that an adequate showing is made which establishes that the public interest is benefited. In such instances the Commission may prescribe special technical requirements to ensure that subscribers to such systems are provided with a good quality of service.

(c) Paragraph (a)(12) of this section shall become effective March 31, 1972. All other provisions of this section shall become effective in accordance with the following schedule:

	Effective date
Cable television systems in operation prior to Mar.31, 1972
Cable television systems in operation prior to Mar.31, 1972	Mar. 31, 1977
Cable television systems commencing operations on or after Mar. 31, 1972
	Mar. 31, 1972

� 76.609 Measurements.

(a) Measurements made to demonstrate conformity with the performance requirements set forth in � � 76.701 and 76.605 shall be made under conditions which reflect system performance during normal operations, including the effect of any microwave relay operated in the Cable Television Relay (CAR) Service intervening between pickup antenna and the cable distribution network. Amplifiers shall be operated at normal gains, either by the insertion of appropriate signals or by manual adjustment. Special signals inserted in a cable television channel for measurement purposes should be operated at levels approximating those used for normal operations. Pilot tones, auxiliary or substitute signals, and non-television signals normally carried on the cable television system should be operated at normal levels to the extent possible. Some exemplary, but not mandatory, measurement procedures are set forth in this section.

(b) When it may be necessary to remove the television signal normally carried on a cable television channel in order to facilitate a performance measurement, it will be permissible to disconnect the antenna which serves the channel under measurement and to substitute therefor a matching resistance termination. Other antennas and inputs should remain connected and normal signal levels should be maintained on other channels.

(c) As may be necessary to ensure satisfactory service to a subscriber, the Commission may require additional tests to demonstrate system performance or may specify the use of different test procedures.

(d) The frequency response of a cable television channel may be determined by one of the following methods, as appropriate:

(1) By using a swept frequency or a manually variable signal generator at the sending end and a calibrated attenuator and frequency-selective voltmeter at the subscriber terminal; or

(2) By using a multi-burst generator and modulator at the sending end and a demodulator and oscilloscope display at the subscriber terminal.

(e) System noise may be measured using a frequency-selective voltmeter (field strength meter) which has been suitably calibrated to indicate rms noise or average power level and which has a known bandwidth. With the system operating at normal level and with a properly matched resistive termination substituted for the antenna, noise power indications at the subscriber terminal are taken in successive increments of frequency equal to the bandwidth of the frequency-selective voltmeter, summing the power indications to obtain the total noise power present over a 4 MHz band centered within the cable television channel. If it is established that the noise level is constant within this bandwidth, a single measurement may be taken which is corrected by an appropriate factor representing the ratio of 4 MHz to the noise bandwidth of the frequency-selective voltmeter. If an amplifier is inserted between the frequency-selective voltmeter and the subscriber terminal in order to facilitate this measurement, it should have a bandwidth of at least 4 MHz and appropriate corrections must be made to account for its gain and noise figure. Alternatively, measurements made in accordance with the NCTA standard on noise measurement (NCTA Standard 005-0669) may be employed.

(f) The amplitude of discrete frequency interfering signals within a cable television channel may be determined with either a spectrum analyzer or with a frequency-selective voltmeter (field strength meter), which instruments have been calibrated for adequate accuracy. If calibration accuracy is in doubt, measurements may be referenced to a calibrated signal generator, or a calibrated variable attenuator, substituted at the point of measurement. If an amplifier is used between the subscriber terminal and the measuring instrument, appropriate corrections must be made to account for its gain.

(g) The terminal isolation between any two terminals in the system may be measured by applying a signal of known amplitude of that signal at the other terminal. The frequency of the signal should be close to the mid-frequency of the channel being tested.

(h) Measurements to determine the field strength of radio frequency energy radiated by cable television systems shall be made in accordance with standard engineering procedures. Measurements made on frequencies above 25 MHz shall include the following:

(1) A field strength meter of adequate accuracy using a horizontal dipole antenna shall be employed.

(2) Field strength shall be expressed in terms of the rms value of synchronizing peak for each cable television channel for which radiation can be measured.

(3) The dipole antenna shall be placed 10 feet above the ground and positioned directly below the system components. Where such placement results in a separation of less than 10 feet between the center of the dipole antenna and the system components, the dipole shall be repositioned to provide a separation of 10 feet.

(4) The horizontal dipole antenna shall be rotated about a vertical axis and the maximum meter reading shall be used.

(5) Measurements shall be made where other conductors are 10 or more feet away from the measuring antenna.

� 76.613 Interference from a cable television system.

In the event that the operation of a cable television system causes harmful interference to reception of authorized radio stations, the operator of the system shall immediately take whatever steps are necessary to remedy the interference.

� 76.617 Responsibility for receiver-generated interference.

Interference generated by a radio or television receiver shall be the responsibility of the receiver operator in accordance with the provisions of Part 15, Subpart C, of this chapter: Provided, however, That the oprator of a cable television system to which the receiver is connected shall be responsible for the suppression of receiver-generated interference that is distributed by the system when the interfering signals are introduced into the system at the receiver.

F. PART 78 -- CABLE TELEVISION RELAY SERVICE Is added to read as follows:

PART 78 CABLE TELEVISION RELAY SERVICE

CONTENTS

Subpart A -- General

� 78.1 Purpose.

� 78.3 Other pertinent rules.

� 78.5 Definitions.

Subpart B -- Applications and License

� 78.11 Permissible service.

� 78.13 Eligibility for license.

� 78.15 Contents of applications.

� 78.17 Frequency assignments. � 78.19 Interference.

� 78.21 Notification of filing of applications.

� 78.23 Equipment tests.

� 78.25 Service or program tests.

� 78.27 License conditions.

� 78.29 License period.

� 78.31 Temporary extension of license

Subpart C -- General Operating Requirements

� 78.51 Remote control operation.

� 78.53 Unattended operation.

� 78.55 Time of operation.

� 78.57 Station inspection.

� 78.59 Posting of station and operator licenses.

� 78.61 Operator requirements.

� 78.63 Painting and lighting of antenna structures.

� 78.65 Additional orders.

� 78.67 Copies of rules.

� 78.69 Operating log.

� 78.101 Power limitations.

� 78.103 Emissions and bandwidth.

� 78.105 Antennas.

� 78.107 Equipment and installation.

� 78.109 Equipment changes.

� 78.111 Frequency tolerance.

� 78.113 Frequency monitors and measurements.

� 78.115 Modulation limits.

SUBPART A -- GENERAL

� 78.1 Purpose.

The rules and regulations set forth in this part provide for the licensing and operation of fixed or mobile cable television relay stations used for the transmission of television and related audio signals, signals of standard and FM broadcast stations, signals of instructional television fixed stations, and cablecasting from the point of reception to a terminals point from which the signals are distributed to the public by cable.

� 78.3 Other pertinent rules.

Other pertinent provisions of the Commission's rules and regulations relating to the Cable Television Relay Service are included in the following parts of this chapter:

Part 0 -- Commission Organization.

Part 1 -- Practice and Procedure.

Part 76 -- Cable Television Service

� 78.5 Definitions.

For purposes of this part, the following definitions are applicable. For other definitions, see Part 76 (Cable Television Service) of this chapter.

(a) Cable television relay (CAR) station. A fixed or mobile station used for the transmission of television and related audio signals, signals of standard and MF broadcast stations, signals of instructional television fixed stations, and cablecasting from the point of reception to a terminal point from which the signals are distributed to the public by cable.

NOTE. -- Except where the rules contained in this part make separate provision, the term "cable television relay" or "CAR" includes the term "local distribution service" or "LDS", the term "cable television relay studio to headend link" or "SHL,)" and the term "cable television relay pickup", as defined in paragraphs (b), (c), and (d) of this section.

(b) Local distribution service (LDS) station. A fixed CAR station used within a cable television system or systems for the transmission of television signals and related audio signals, signals of standard and FM broadcast stations, signals of instructional television fixed stations, and cablecasting from a local transmission point to one or more receiving points, from which the communications are distributed to the public by cable. LDS stations may also engage in repeated operation.

(c) Cable television relay studio to headend link (SHL) station. A fixed CAR station used for the transmission of television program material and related communications from a cable television studio to the headend of a cable television system.

(d) Cable television relay pickup station. A land mobile CAR station used for the transmission of television signals and related communications from the scenes of events occurring at points removed from cable television studios to cable television studios or headends.

(e) Remote control operation. Operation of a station by a qualified operator on duty at a control position from which the transmitter is not visible but which control position is equipped with suitable control and telemetering circuits so that the essential functions that could be performed at the transmitter can also be performed from the control point.

(f) Attended operation. Operation of a station by a qualified operator on duty at the place where the transmitting apparatus is located with the transmitter in plain view of the operator.

(g) Unattended operation. Operation of a station by automatic means whereby the transmitter is turned on and off and performs its functions without attention by a qualified operator.

SUBPART B -- APPLICATIONS AND LICENSES

� 78.11 Permissible service.

(a) Cable television relay stations are authorized to relay television broadcast and related audio signals, the signals of standard and FM broadcast stations, signals of instructional television fixed stations, and cablecasting intended for use solely by one or more cable television systems. LDS stations are authorized to relay television broadcast and related audio signals, the signals of standard and FM broadcast stations, signals of instructional television fixed stations, cablecasting, and such other communications as may be authorized by the Commission. Relaying includes retransmission of signals by intermediate relay stations in the system. CAR licensees may interconnect their facilities with those of other CAR or common carrier licensees, and may also retransmit the signals of such CAR or common carrier stations, provided that the program material retransmitted meets the requirements of this paragraph.

(b) The transmitter of a cable television relay station using FM transmission may be multiplexed toi provide additional communication channels for the transmission of standard and FM broadcast station programs and operational communications directly related to the technical operation of the relay system (including voice communications, telemetry signals, alerting signals, fault reporting signals, and control signals). A cable television relay station will be authorized only where the principal use is the transmission of television broadcast program material or cablecasting; Provided, however, That this requirement shall not apply to LDS stations.

(c) Cable television relay station licenses may be issued to cable television owners or operators and to cooperative enterprises wholly owned by cable television owners or operators.

(d) Cable television relay systems shall supply program material to cable television systems only in the following circumstances:

(1) Where the licensee of the CAR station or system is owner or operator of the cable television systems supplied with program material; or

(2) Where the licensee of the CAR station or system supplies program material to cable television systems either without charge or on a non-profit, cost-sharing basis pursuant to a written contract between the parties involved which provides that the CAR licensee shall have exclusive control over the operation of the cable television relay stations licensed to him and that contributions to capital and operating expenses are accepted only on a cost-sharing, nonprofit basis, prorated on an equitable basis among all cable television systems being supplied with program material in whole or in part. Records showing the cost of the service and its nonprofit, cost-sharing nature shall be maintained by the CAR licensee and held available for inspection by the Commission.

(e) A CAR licensee shall file a notification with the Commission thirty (30) days prior to supplying program material to any cable television system that has not been specified in its license application or in a prior notification to the Commission containing the following information:

(1) A copy of the contract between the parties pursuant to which the program material will be supplied;

(2) Network and station origin of the signals to be transmitted or, if cablecasting, the intended source and general nature of the programming;

(3) Location of the point at which reception will be made;

(4) Location of intermediate relay stations in the system through which the signal will be transmitted;

(5) Location of the relay station that will supply the program material to the cable television system;

(6) Name of each community to be served by the cable television system;

(7) Current number of subscribers of the cable television system; and

(8) Identity of the owner or owners of the cable television system.

The CAR licensee may institute the service described in such notification thirty days after filing unless the Commission during that period notifies the licensee that the information supplied is inadequate or that the proposed service is not authorized under these rules, and the licensee shall then have the right to ament or file another notification to remedy the inadequacy or defect and to institute the service thirty days thereafter, or at such earlier date as the Commission may set upon finding that the inadequacy or defect has been remedied.

(f) Each CAR licensee providing program material to a cable television system pursuant to paragraph (d)(2) of this section shall file an annual report with the Commission within ninety days of the close of its fiscal year containing:

(1) A financial statement of such operations in sufficient detail to show compliance with the requirements of this section;

(2) The names of those who have shared the use of the licensed facilities;

(3) A brief statement as to the use of the facilities made by each person sharing the use and an estimate of the approximate percentage of use by each participant; and

(4) Any change in the items previously reported to the Commission in the application for the license or in a notification under this section.

(g) The provisions of � � 78.11(d) and 78.13 shall not apply to a licensee who has been licensed in the CAR service pursuant to � 21.709 of this chapter, except that � 78.11(d) shall apply with respect to facilities added or cable television systems first served after February 1, 1966.

(h) Except during momentary circuit failure and brief transition periods, a cable television relay station shall not be permitted to radiate unless it is supplying programs to one or more users.

(i) The license of a CAR pickup station authorizes the transmission of program material, and related communications necessary to the accomplishment of such transmission, from the scenes of events occurring in places other than a cable television studio, to the studio or headend of its associated cable television system, or to such other cable television systems as are carrying the same program material. CAR pickup stations may be used to provide temporary CAR studio to headend links or car circuits consistent with this part without further authority of the Commission; Provided, however, That prior Commission authority shall be obtained if the transmitting antenna to be installed will increase the height of any natural formation or man-made structure by more than 20 feet and will be in existence for a period of more than 2 consecutive days.

� 78.13 Eligibility for license.

A license for a cable television relay station will be issued only to the owner of a cable television system or to a cooperative enterprise wholly owned by cable television owners or oerators upon a showing that applicant is qualified under the Communications Act of 1934, that frequencies are available for the proposed operation, and that the public interest, convenience, and necessity will be served by a grant thereof.

� 78.15 Contents of applications.

(a) An application for a new cable television relay station or for changes in the facilities of an existing station shall specify the call sign and location of any television, standard, or FM broadcast stations or instructional television fixed stations to be received and the intended source and general nature of any cablecasting to be relayed, the location of the point at which reception will be made, the number and location of any intermediate relay stations in the system, the location of the terminal receiving (points) in the system, the name or names of the communities to be served by the cable television system or systems to which the programs will be delivered, the current number of subscribers of each such cable television system, and the name of any other licensee to whom the same program will be delivered through interconnection facilities. An application for a new LDS station or for changes in the facilities of an existing station shall specify in detail the precise nature and technical operation of any service other than the relay of television broadcast signals proposed to be provided on the LDS facilities, including any sections of this part for which waiver is sought.

(b) An application for any authorization subject to � 78.27 for a station used or to be used for the transmission of television broadcast signals shall contain a statement that the applicant has notified the licensee or permittee of any television broadcast station within whose predicted Grade B contour the system operates or will operate, the licensee or permittee of any 100-watt or higher power television translator station licensed to the community of the system, the franchising authority, the superintendent of schools in the community of the system, and any local or state educational television authorities, of the filing of the application. Such statement of the applicant shall be supported by copies of the letters of notification. The notice shall include the fact of intended filing by the applicant, the name and mailing address of each cable television system served or to be served under the authorization sought, the community and area served by each cable television system, and the television, standard broadcast FM, and instructional television fixed stations whose signals will be carried by each cable television system.

(c) An application for a construction permit for a new CAR pickup station or for renewal of license of an existing station shall designate the cable television system with which it is to be operated and specify the area in which the proposed operation is intended.

(d) An application for a CAR studio to headend link or LDS station construction permit shall contain a statement that the applicant has investigated the possibility of using cable rather than microwave and the reasons why it was decided to use microwave rather than cable.

NOTE. -- As used in � 78.15 the term "predicted Grade B contour" means the field intensity contour defined in � 73.683(a) of this chapter, the location of which is determined exclusively by means of the calculations prescribed in � 73.684 of this chapter.

� 78.17 Frequency assignments.

(a) The following channels may be assigned to cable television relay stations:

n1) For cable television relay stations using FM transmission:

Group A (MHz)	Group B (MHz)
12.700-12.725	12,712.5-12,737.5
12,725-12,750	12,737.5-12,762.5
12,750-12,775	12,762.5-12,787.5
12,775-12,800	12,787.5-12,812.5
12,800-12,825	12,812.5-12,837.5
12,825-12,850	12,837.5-12,862.5
12,850-12,875	12,862.5-12,887.5
12,875-12,900	12,887.5-12,912.5
12,900-12,925	12,912.5-12,937.5
12,925-12,950

(2) Cable television relay stations using vestigial sideband AM transmission:

Group C (MHz)	Group D (MHz)
12,700.5-12,706.5	12,759.7-12,765.7
12,706.5-12,712.5	12,765.7-12,771.7
12,712.5-12,718.5	12,771.7-12,777.7
12,718.5-12,722.5 n1	12,777.7-12,781.7 n1
12,722.5-12,728.5	12,781.7-12,787.7
12,728.5-12,734.5	12,787.7-12,793.7
12,734.5-12,740.5	12,793.7-12,799.7
12,740.5-12,746.5	12,799.7-12,805.7
12,746.5-12,752.5	12,805.7-12,811.7
12,752.5-12,758.5	12,811.7-12,817.7
12,820.5-12,826.5	12,879.7-12,885.7
12,826.5-12,832.5	12,885.7-12,891.7
12,832.5-12,838.5	12,891.7-12,897.7
12,838.5-12,844.5	12,897.7-12,903.7
12,844.5-12,850.5	12,903.7-12,909.7
12,850.5-12,856.5	12,909.7-12,915.7
12,856.5-12,862.5	12,915.7-12,921.7
12,862.5-12,868.5	12,921.7-12,927.7
12,868.5-12,874.5	12,927.7-12,933.7

n1 For transmission of pilot sub-carriers, or other authorized narrow band signals.

Auxiliary Channels (MHz)

12,933.7-12,939.7 12,939.7-12,945.7

(3) For cable television relay stations using frequency modulation to transmit a baseband of frequency-division multiplexed standard television signals:

(i) When the baseband comprises three or four standard television signals:

Group E (MHz)	Group F (MHz)
12,700-12,775	12,725-12,800
12,775-12,850	12,800-12,875
12,850-12,925	12,875-12,950

(ii) When the baseband comprises five to eight standard television signals:

Group G (MHz)

12,700-12,825	12,825-12,950

(iii) When the baseband comprises nine or more standard television signals:

Group H (MHz) 12,700-12,950

(b) Television pickup, STL, and intercity relay stations may be assigned channels in the band 12,700-12,950 MHz subject to the condition that no harmful interference is caused to cable television relay stations authorized at the time of such grants. Similarly, new cable television relay stations shall not cause harmful interference to television STL and intercity relay stations authorized at the time of such grants. Television pickup stations and CAR pickup stations will be assigned channels in the band on a coequal basis subject to the condition that they accept interference from and cause no interference to existing or subsequently authorized television STL, television intercity relay, fixed CAR, CAR SHL or LDS stations. A cable television system operator will normally be limited in any one area to the assignment of not more than three channels for CAR pickup use; Provided, however, That additional channels may be assigned upon a satisfactory showing that additional channels are necessary and are available.

(c) An application for a cable television relay station shall be specific with regard to the channel or channels requested. Channels shall be identified by the channel-edge frequencies listed in paragraph (a) of this section.

(d) For cable television relay stations using frequency modulation to transmit a single television signal, channels normally shall be selected from Group A. Channels in Group B will be assigned only on a case-by-case basis upon an adequate showing that Group A channels cannot be used and that such use will not degrade the technical quality of service provided in Group A channels to the extent that the Group A channels could not be used. On-the-air tests may be required before channels in Group B are permitted to be placed in regular use.

(e) For cable television relay stations using vestigial sideband AM transmission, channels from only Group C or Group D normally will be assigned a station, although upon adequate showing variations in the use of channels in Groups C and D may be authorized on a case-by-case basis in order to avoid potential interference or to permit a more efficient use. The use of channels in both Group C and D may be authorized for repeated operation, or where the channels in one group are not sufficient to accommodate the services proposed to be provided on the cable television system, if the Commission finds that such use of channels in both groups would serve the public interest.

(f) For vestigial sideband AM transmission, the assigned visual carrier frequency for each channel listed in Group C or Group D shall be 1.25 MHz above the lower channel-edge frequency. The center frequency for the accompanying FM aural carrier in each channel shall be 4.5 MHz above the corresponding visual carrier frequency.

(g) For cable television relay stations using frequency modulation to transmit a baseband of frequency-division multiplexed standard television signals, channels will be assigned from Groups E, F, G, and H according to the number of standard television signals which comprise the baseband, as set forth in paragraph (a)(3) of this section. The station license will indicate the number of standard television signals authorized to be multiplexed for transmission in the assigned channel. The transmission of additional standard television signals may be authorized upon a showing that such can be provided without degradation of the technical quality of the service, and that interference will not be caused to existing operations.

(h) Should any conflict arise among applications for stations in this band, priority will be based on the filing date of an application completed in accordance with the instructions thereon.

� 78.19 Interference.

(a) Applicants for cable television relay stations shall endeavor to select an assignable frequency or frequencies which will be least likely to result in interference to other licensees in the same area.

(b) Applicants for cable television relay stations shall take full advantage of all known techniques, such as the geometric arrangement of transmitters and receivers, the use of minimum power required to provide the needed service, and the use of highly directive transmitting and receiving antenna systems, to prevent interference to the reception of television STL, television intercity relay, and other CAR stations.

� 78.21 Notification of filing of applications.

(a) Radio Astronomy and Radio Research Installations. In order to minimize harmful interference at the National Radio Astronomy Observatory site located at Green Bank, Pocahontas County, West Virginia, and at the Naval Radio Research Observatory at Sugar Grove, Pendleton County, West Virginia, an applicant for authority to construct a cable television relay station, except a CAR pickup station, or for authority to make changes in the frequency, power, antenna height, or antenna directivity of an existing station within the area bounded by 39 degree 15 feet N on the north, 78 degree 30 feet W on the east, 37 degree 30 feet N on the south and 80 degree 30 feet W on the west shall, at the time of filing such application with the Commission, simultaneously notify the Director, National Radio Astronomy Observatory, P.O. Box No. 2, Green Bank, West Virginia 24944, in writing, of the technical particulars of the proposed station. Such notification shall include the geographical coordinates of the antenna, antenna height, antenna directivity if any, proposed frequency, type of emission, and power. In addition, the applicant shall indicate in his application to the Commission the date notification was made to the Observatory. After receipt of such application, the Commission will allow a period of 20 days for comments or objections in response to the notifications indicated. If an objection to the proposed operation is received during the 20-day period from the National Radio Astronomy Observatory for itself or on behalf of the Naval Radio Research Observatory, the Commission will consider all aspects of the problem and take whatever action is deemed appropriate.

(b) Location on Government land. Applicants proposing to construct a cable television relay station on a site located under the jurisdiction of the U.S. Forest Service, U.S. Department of Agriculture, or the Bureau of Land Management, U.S. Department of the Interior, must supply the information and must follow the procedure prescribed by � 1.70 of this chapter.

� 78.23 Equipment tests.

(a) During the process of construction of a cable television relay station, the permittee, after notifying the Commission and Engineer in Charge of the district in which the station is located, may, without further authority of the Commission, conduct equipment tests for the purpose of such adjustments and measurements as may be necessary to assure compliance with the terms of the construction permit, the technical provisions of the application therefore, the rules and regulations, and the applicable engineering standards.

(b) The Commission may notify the permittee to conduct no tests or may cancel, suspend, or change the date for the beginning of equipment tests as and when such action may appear to be in the public interest, convenience, and necessity.

(d) The authorization or tests contained in this section shall not be construed as constituting a license to operate but as a necessary part of construction.

� 78.25 Service or program tests.

(a) Upon completion of construction of a cable television relay station in accordance with the terms of the construction permit, the technical provisions of the application therefore, and the rules and regulations and applicable engineering standards, and when an application for station license has been filed showing the station to be in satisfactory operating condition, the permittee of such station may, without further authority of the Commission, conduct service or program tests; Provided, however, That the Engineer in Charge of the district in which the station is located and the Commission are notified at least two (2) days (not including Sundays and Saturdays and legal holidays when the offices of the Commission are not open) in advance of the beginning of such operation.

(b) The Commission may notify the permittee to conduct to tests or may cancel, suspend, or change the date for the beginning of such tests as and when such action may appear to be in the public interest, convenience, and necessity.

(c) Unless sooner suspended or revoked, program test authority will continue valid during Commission consideration of the application for license, and during this period further extension of the construction permit is not required. Program test authority shall be automatically terminated by final determination upon the application for station license.

(d) The authorization for tests contained in this section shall not be construed as approval by the Commission of the application for station license.

� 78.27 License conditions.

Authorizations (including initial grants, modifications, assignments or transfers of control, and renewals) in the Cable Television Relay Service to construct or operate fixed or mobile stations to relay television and related audio signals, signals of standard and FM broadcast stations, signals of instructional television fixed stations, and cablecasting to cable television systems, either directly or indirectly, shall contain the condition that such cable television systems shall operate in compliance with the provisions of Part 76 (Cable Television Service) of this chapter.

� 78.29 License period.

Licenses for cable television relay stations will be issued for a period not to exceed five (5) years. On and after February 1, 1966, licenses for CAR stations ordinarily will be issued for a period expiring on February 1, 1971, and, when regularly renewed, at five year intervals thereafter. When a license is granted subsequent to the last renewal date for CAR stations, the license will be issued only for the unexpired period of the current license term of such stations. The license renewal date applicable to CAR stations may be varied as necessary to permit the orderly processing of renewal applications, and individual station licenses may be granted or renewed for a shorter period of time than that generally prescribed for CAR stations, if the Commission finds that the public interest, convenience, and necessity would be served by such action.

� 78.31 Temporary extension of license.

Where there is pending before the Commission any application, investigation, or proceeding which, after hearing, might lead to or make necessary the modification of, revocation of or the refusal to renew an existing cable television relay station license, the Commission will grant a temporary extension of such license; Provided, however, That no such temporary extension shall be construed as a finding by the Commission that the operation of any CAR station there under will serve the public interest, convenience, and necessity beyond the express terms of such temporary extension of license; And provided, further, That such temporary extension of license will in nowise affect or limit the action of the Commission with respect to any pending application or proceeding.

SUBPART C -- GENERAL OEPRATING REQUIREMENTS

� 78.51 Remote control operation.

(a) A cable television relay station may be operated by remote control provided the following conditions are met:

(1) The transmitter and associated control system shall be installed and protected in a manner designed to prevent tampering or operation by unauthorized persons.

(2) An operator meeting the requirements of � 78.61 shall be on duty at the remote control position and in actual charge thereof at all times when the station is in operation.

(3) Facilities shall be provided at the control position which will permit the operator to turn the transmitter on and off at will. The control position shall also be equipped with suitable devices for observing the overall characteristics of the transmissions and a carrier operated device which will give a continuous visual indication whenever the transmitting antenna is radiating a signal. The transmitting apparatus shall be inspected as often as may be necessary to insure proper operation.

(4) The control circuits shall be so designed and installed that short circuits, open circuits, other line faults, or any other cause which would result in loss of control of the transmitter will automatically cause the transmitter to cease radiating.

(b) An application for authority to construct a new station or to make changes in the facilities of an existing station and which proposes operation by remote control shall include an adequate showing of the manner of compliance with the requirements of this section.

� 78.53 Unattended operation.

(a) A cable television relay station (other than a CAR pickup station) may be operated unattended provided that the following requirements are met:

(1) The transmitter and associated control circuits shall be installed and protected in a manner designed to prevent tampering or operation by unauthorized persons.

(2) The transmitter shall be equipped with an automatic control which will permit it toi radiate only when it is relaying an incoming signal. The Automatic control may be either a time clock or a signal sensing device. Allowances may be made for momentary circuit failures and brief transition periods when no incoming signal is available for retransmission.

(3) If the transmitting apparatus is located at a site which is not readily accessible at all hours and in all seasons, means shall be provided for turning the transmitter on and off at will from a location which can be reached promptly at all hours and in all seasons.

(4) Licensed radio personnel responsible for the maintenance of the station shall be available on call at a location which will assure expeditious performance of such technical servicing and maintenance as may be necessary whenever the station is operating. In lieu thereof, arrangements may be made to have an unlicensed person or persons available at all times when the transmitter is operating, to turn the transmitter off in the event that it is operating improperly. The transmitter may not be restored to operation until the malfunction has been corrected by a technically qualified person.

(5) The station licensee shall be responsible for the proper operation of the station at all times and is expected to provide for observations, servicing, and maintenance as often as may be necessary to insure proper operation. All adjustments or tests during or coincident with the installation, servicing, or maintenance of the station which may affect its operation shall be performed by or under the immediate supervision of a licensed radio operator as provided in � 78.61.

(b) An application for authority to construct a new station or make changes in the facilities of an existing station and which proposes unattended operation shall include an adequate showing as to the manner of compliance with the requirements of this section.

� 78.55 Time of operation.

(a) A cable television relay station is not expected to adhere to any prescribed schedule of operation. However, it is limited to operation only when the originating station or stations, is transmitting the programs which it relays except as provided in paragraph (b) of this section.

(b) The transmitter may be operated for short periods of time to permit necessary tests and adjustments. The radiation of an unmodulated carrier for extended periods of time or other unnecessary transmissions are forbidden.

� 78.57 Station inspection.

The station and all records required to be kept by the licensee shall be made available for inspection upon request by any authorized representative of the Commission.

� 78.59 Posting of station and operator licenses.

(a) The station license any other instrument of authorization or individual order concerning the construction or the equipment or manner of operation shall be posted at the place where the transmitter is located, so that all terms thereof are visible except as otherwise provided in paragraphs (b) and (c) of this section.

(b) In cases where the transmitter is operated by remote control, the documents referred to in paragraph (a) of this section shall be posted in the manner described at the control point of the transmitter.

(c) In cases where the transmitter is operated unattended, the name of the licensee and the call sign of the unattended station shall be displayed at the transmitter site on the structure supporting the transmitting antenna, so as to be visible to a person standing on the ground at the transmitter site. The display shall be prepared so as to withstand normal weathering for a reasonable period of time and shall be maintained in a legible condition at all times by the licensee. The station license and other documents referred to in paragraph (a) of this section shall be kept at the nearest attended station or, in cases where the licensee of the unattended station does not operate attended stations, at the point of destination of the signals relayed by the unattended station.

(d) The original of each station operator license shall be posted at the place where the operator is on duty; Provided, however, That if the original license of a station operator is posted at another radio transmitting station in accordance with the rules governing the class of station and is there available for inspection by a representative of the Commission, a verification card (FCC Form 758-F) is acceptable in lieu of the posting of such license; And provided, further, That if the operator on duty holds an operator permit of the card form (as distinguished from the diploma form), he shall not post that permit but shall keep t in his personal possession.

� 78.61 Operator requirements.

(a) Except in cases where a cable television relay station is operated unattended in accordance with � 78.53, an operator holding a valid radiotelephone first- or second-class operator license shall be on duty at the place where the transmitting apparatus is located, in plain view and in actual charge of its operation or at a remote control point established pursuant to the provisions of � 78.51, at all times when the station is in operation. Control and monitoring equipment at a remote control point shall be readily accessible and clearly visible to the operator at that position.

(b) In cases where the cable television relay station is operated unattended pursuant to the provisions of � 78.53, the licensed personnel referred to in paragraph (a)(4) of that section shall hold a valid radiotelephone first- or second-class operator license.

(c) Any transmitter tests, adjustments, or repairs during or coincident with the installation, servicing, operation, or maintenance of a cable television relay station which may affect the proper operation of such station shall be made by or under the immediate supervision and responsibility of a person holding a valid first- or second-class radiotelephone operator license, who shall be fully responsible for proper functioning of the station equipment.

(d) The licensed operator on duty and in charge of a cable television relay station may, at the discretion of the licensee, be employed for other duties or for the operation of another station or stations in accordance with the class of operator license which he holds and the rules governing such stations. However, such duties shall in no way impair or impede the required supervision of the cable television relay station.

� 78.63 Painting and lighting of antenna structures.

The painting and lighting of antenna structures employed by the stations licensed under this part, where required, will be specified in the authorization issued by the Commission. Part 17 of this chapter sets forth the conditions under which painting and lighting will be required and the responsibility of the licensee with regard thereto.

� 78.65 Additional orders.

In case the rules of this part do not cover all phases of operation with respect to external effects, the Commission may make supplemental or additional orders in each case as may be deemed necessary.

� 78.67 Copies of rules.

The licensee of a cable television relay station shall have a current copy of Part 78, and, in cases where aeronautical obstruction marketing of antennas is required, Part 17 of this chapter shall be available for use by the operator in charge. Both the licensee and the operator or operators responsible for the proper operation of the station are expected to be familiar with the rules governing cable television relay stations. Copies of the Commission's rules may be obtained from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402, at nominal cost.

� 78.69 Operating log.

(a) The licensee of a cable television relay station shall maintain an operating log showing the following:

(1) The date and time of the beginning and end of each period of operation of each transmitter;

(2) The date and time of any unscheduled interruptions to the transmissions of the station, the duration of such interruptions, and the causes thereof;

(3) A record of repairs, adjustments, tests, maintenance, and equipment changes;

(4) Entries required by � 17.49 of this chapter concerning daily observations of tower lights and quarterly inspections of the condition of the tower lights and associated control equipment and an entry when towers are cleaned or repainted as required by � 17.50 of this chapter.

(b) Log entries shall be made in an orderly and legible manner by the person or persons competent to do so, having actual knowledge of the facts required, who shall sign the log when starting duty and again when going off duty.

(c) No log or portion thereof shall be erased, obliterated, or willfully destroyed within the period of retention required by rule. Any necessary correction may be made only by the person who made the original entry who shall strike out the erroneous portion, initial the correction made, and show the date the correction was made.

(d) Operating logs shall be retained for a period of not less than 2 years. The Commission reserves the right to order retention of logs for a longer period of time. In cases where the licensee has notice of any claim or complaint, the log shall be retained until such claim or complaint has been fully satisfied or until the same has been barred by statute limiting the time for filing of suits upon such claims.

SUBPART D -- TECHNICAL REGULATIONS

� 78.101 Power limitations.

(a) Transmitter peak output power shall not be greater than necessary, and in any event, shall not exceed 5 watts on any channel; except that, stations using frequency modulation to transmit a baseband of frequency-division multiplexed standard television signals may be authorized to use peak power of 15 watts on frequency assignments in Groups E and F, 30 watts on frequency assignments in Group G, and 60 watts on assignments in Group H.

(b) LDS stations shall use for the visual signal either vestigial sideband AM transmission or frequency-division multiplexed FM transmission. When vestigial sideband AM transmission is used, the peak power of the visual signal on all channels shall be maintained within 2 decibels of equality. The mean power of the aural signals on each channel shall not exceed a level 7 decibels below the peak power of the visual signal.

� 78.103 Emissions and bandwidth.

(a) A cable television relay station may be authorized to employ any type of emission suitable for the simultaneous transmission of visual and aural television signals.

(b) Any emission appearing on a frequency outside of the channel authorized for a transmitter shall be attenuated below the peak power of emission in accordance with the following schedule:

(1) For CAR stations using FM transmission (including those modulated by a frequency-division baseband of standard television signals): (i) On any frequency above the upper channel limit and below the lower channel limit by between zero and 50 percent of the assigned channel width: At least 25 decibels; (ii) On any frequency above the upper channel limit or below the lower channel limit by more than 50 percent and up to 150 percent of the assigned channel width: At least 35 decibels; (iii) On any frequency above the upper channel limit or below the lower channel limit by more than 150 percent of the assigned channel width: At least 43+10 log10 (power in watts) decibels.

(2) For CAR stations using vestigial sideband AM transmission: At least 50 decibels.

(c) In the event that interference to other stations is caused by emissions outside the authorized channel, the Commission may require greater attenuation than that specified in paragraph (b) of this section.

� 78.105 Antennas.

(a) Cable television relay stations shall use directive transmitting antennas. The maximum beamwidth in the horizontal plane between half power points of the major lobe shall not exceed 3 degrees: Provided, however, that, upon adequate showing of need to serve a larger sector, or more than a single sector, greater beamwidth or multiple antennas may be authorized for LDS stations. Either vertical, horizontal, or elliptical polarization of the transmitted signal. However, licensees will not be protected from interference which results from the lack of adequate antenna discrimination against unwanted signals.

� 78.107 Equipment and installation.

(a) From time to time the Commission publishes a revised list of type approved and type accepted equipment entitled "Radio Equipment List." Copies of this list are available for inspection at the Commission's offices in Washington, D.C., and at each of its field offices.

(b) Each transmitter authorized for use in the Cable Television Relay Service (other than a CAR pickup station) must be of a type which has been type accepted pursuant to Part 2 (Subpart F) of this chapter, as capable of meeting the requirements of � � 78.17, 78.101, 78.111, and 78.115.

(c) The installation of a cable television relay station shall be made by or under the immediate supervision of a qualified engineer. Any tests or adjustments requiring the radiation of signals and which could result in improper operation shall be conducted by or under the immediate supervision of an operator holding a valid first- or second-class radiotelephone operator license.

(d) Simple repairs such as the replacement of tubes, fuses, or other plug-in components which require no particular skill may be made by an unskilled person. Repairs requiring replacement of attached components or the adjustment of critical circuits or corroborative measurements shall be made only by a person with required knowledge and skill to perform such tasks.

� 78.109 Equipment changes.

(a) Formal application is required for any of the following changes:

(1) Replacement of the transmitter as a whole, except replacement with an identical transmitter, or any change in equipment which could result in a change in the electrical characteristics or performance of the station;

(2) Any change in the transmitting antenna system of a station (other than a CAR pickup station), including the direction of the main radiation lobe, directive pattern, antenna gain or transmission line;

(3) Any change in the height of the antenna of a station (other than a CAR pickup station) above ground, or any horizontal change in the location of the antenna;

(4) Any change in the transmitter control system;

(5) Any change in the location of a station transmitter (other than a CAR pickup station transmitter), except a move within the same building or upon the tower or mast or a change in the area of operation of a CAR pickup station;

(6) Any change in frequency assignment;

(7) Any change of authorized operation power.

(b) Other equipment changes not specifically referred to in paragraph (a) of this section may be made at the discretion of the licensee, provided that the Engineer in Charge of the radio district in which the station is located and the Commission in Washington, D.C. are notified in writing upon the completion of such changes and provided further, that the changes are appropriately reflected in the next application for renewal of licenses of the station.

� 78.111 Frequency tolerance.

(a) The frequency of the unmodulated carrier as radiated by a cable television relay station using FM transmission (including those modulated by a frequency-division baseband of standard television signals) shall be maintained within 0.02 percent of the center of the assigned channel.

(b) The frequency of the visual carrier of a CAR station using vestigial sideband AM transmission shall be maintained within 0.0005 percent of the assigned frequency, and the center frequency of the accompanying aural signal shall be maintained 4.5 MHz +- 1 kHz above the visual frequency.

� 78.113 Frequency monitors and measurements.

(a) Suitable means shall be provided to insure that the operating frequency is within the prescribed tolerance at all times. The operating frequency shall be checked as often as is necessary to insure compliance with � 78.111 and in any case at intervals of no more than one month.

(b) The choice of apparatus to measure the operating frequency is left to the discretion of the licensee. However, failure of the apparatus to detect departures of the operating frequency in excess of the prescribed tolerance will not be deemed an acceptable excuse for the violation.

� 78.115 Modulation limits.

(a) If amplitude modulation is employed, negative modulation peaks shall not exceed 100 percent modulation.

(b) If frequency modulation is employed, carrier excursions shall be limited to the extent necessary to comply with the requirements of � 78.103 and shall in no event extend beyond the channel limits.

G. Part 91 -- Industrial Radio Services.

� 91.557 [Amended.]

1. In � 91.557, the text of paragraph (a) is deleted and the word "Reserved" is substituted therefore.

2. In � 91.559, the headnote and text are revised to read as follows:

� 91.559 Authorizations for operational fixed stations to relay television signals to cable television systems.

Authorizations (including initial grants, modifications, assignments or transfers of control, and renewals) in the Business Radio Service to construct or operate point-to-point operational fixed stations to relay television signals to cable television systems shall contain the condition that such cable television systems shall operate in compliance with the provisions of Part 76 (Cable Television Service) of this chapter.

3. Section 91.561 is amended to read as follows:

� 91.561 Notification by applicant.

An application for any authorization subject to � 91.559 shall contain a statement that the applicant has notified the licensee or permittee of any television broadcast station within whose predicted Grade B contour the cable television system served or to be served operates or will operate, the licensee or permittee of any 100watt or higher power television translator station licensed to the community of the system, the franchising authority, the superintendent of schools in the community of the system, and any local or state educational television authorities, of the filing of the application. Such statement of the applicant shall be supported by copies of the letters of notification. The notice shall include the fact of intended filing by the applicant, the name and mailing address of each cable television system served or to be served under the authorization sought, the community and area served or to be served by each cable television system, and the television signals to be carried by each cable television system.

NOTE. -- As used in � 91.561, the term "predicted Grade B contour" means the field intensity contour defined in � 73.683(a) of this chapter, the location of which is determined exclusively by means of the calculations prescribed in � 73.684 of this chapter.

APPENDIX B

SIGNIFICANTLY VIEWED TELEVISION STATIONS

For Corrected Table see Appendix B to Memorandum Opinion and Order on Reconsideration of the Cable Television Report and Order, FCC 72-530.

F.C.C. 71-787

APPENDIX C

August 5, 1971.

LETTER OF INTENT

DEAR MR. CHAIRMAN: In accordance with our commitment in my testimony before the Senate Communications Subcommittee on June 15, 1971 -- reiterated before the House Communications and Power Subcommittee on July 22, 1971 -- we are submitting this summary of the Commission's proposals for the near-term regulation of cable television.

The Commission has been intensively engaged in the process of reviewing its cable policies since the summer of 1968, when the Supreme Court affirmed the Commission's authority to regulate the industry. In recent months, very nearly full time has been spent trying to find a satisfactory resolution of the difficult problems involved. Ample opportunity has been afforded all interested persons to present their views on the subject. The policies put forward here result from an intensive study of the issues, balancing all the equities, and represent our best judgment on the regulatory course that should be followed.

As set forth in our previous Statements to the Congress, our objective throughout has been to find a way of opening up cable's potential to serve the public without at the same time undermining the foundation of the existing over-the-air broadcast structure. We believe both these "goods" can be achieved and that cable can make a significant contribution toward improving the nation's communications system -- providing additional diversity of programming, serving as a communications outlet for many who previously have had little or no chance of ownership or of access to the television broadcast system, and creating the potential for a host of new communications services. We believe the policies set out here will achieve these results. But we intend to monitor very closely the growth of the cable television industry and remain prepared to take such further action as may be called for on the basis of experience. We are proposing to break new ground, largely unexplored. As a consequence, we must and will proceed with caution. But further delay, in our view, would disserve the public and deny the nation tangible benefits.

It has been argued that the Commission should delay the next phase of cable's evolution until new copyright legislation is passed. We fully recognize that the continued economic health of those who create program material is crucial to both broadcasting and cable, but we have come to the conclusion that copyright policy is most appropriately left to the Congress and the courts. We therefore strongly urge and hope that the Congress will enact a copyright law -- indeed, prompt action seems to us essential. In this connection, we note the present efforts of the principals to reach an agreement and hope that these efforts will be fruitful.

In short, we believe that the two matters -- cable regulation and copyright -- can be separately considered; that the Commission, with appropriate review by the Congress, can resolve the regulatory matter; and that this will provide necessary background for Congressional resolution of the copyright issue. It seems to us that our approach promotes and facilitates an informed resolution of cable copyright. The Copyright Office and the Department of Justice have also recommended that this approach be followed. We intend, however, to keep a close watch on how the new regulatory program detailed here works out, and to revisit the copyright question within two years if the problem has not in the meantime been resolved.

In this connection, we note that the matter of program exclusivity, as it is affected by cable carriage, is a matter that has both copyright and regulatory implications. Thus, we intend to study whether present or future considerations call for altering our existing CATV program exclusivity rule (Section 74.1103), which in effect protects only the network programming of network affiliates. We have also in progress a rule making proceeding (Further Notice of Proposed Rule Making in Docket 18179, 27 FCC 2d 13 (1971)) concerning the exclusivity practices of broadcast stations in terms of both time and geography and the impact of the practices on the ability of UHF broadcasters and cable operators to obtain programming.

The specific policies on which agreement has been reached, described in detail below, are the result of a number of interlocking proceedings. The policies are designed to be part of a single package because each has an impact on all the others, but they may generally be divided into four main areas:

I. television broadcast signal carriage;

II. access to, and use of nonbroadcast cable channels, including minimum channel capacity;

III. technical standards;

IV. appropriate division of regulatory jurisdiction between the federal and state-local levels of government.

We are continuing our work on the final documents. Our time table is such that we will not release these documents until the latter part of the year. Thus, there will be an ample opportunity during the present session of the 92nd Congress for your Subcommittee as well as other committees and the Congress to consider our proposals. During this time we also expect to have available the results of other studies of cable television currently in progress, and will, of course, take them into account. As we now project the time table, therefore, rules will be promulgated by the end of the year, with an effective date of March 1, 1972.

Before turning to a discussion of the policies, we should stress that while these policies will generally govern our disposition of cable matters as they come before us, there are always exceptional situations that call for exceptional actions. The very purpose of an administrative agency is to insure flexibility to act in the public interest in particular situations. In this area of operation under new policies, we will be alert to such special situations as they arise and will tailor our actions accordingly.

: TELEVISION BROADCAST SIGNAL CARRIAGE

Our basic objective is to get cable moving so that the public may receive its benefits and to do so without, at the same time, jeopardizing the basic structure of over-the-air television. The fundamental question is the number of signals that cable should be permitted to carry to meet that objective. In attempting to resolve this question, we have agreed on a formula that we are persuaded will achieve the following purposes:

(1) Assure that cable viewers will receive all television signals significantly viewed in their community.

(2) Assure that cable viewers will receive at least a minimum level of television service.

(3) Permit cable carriage of a limited number of distant signals in those markets where we believe this can be done without undue impact on local television stations.

This approach would replace the retransmission consent (Notice of Proposed Rule Making and Notice of Inquiry in Docket 18397, 15 FCC 2d 417 (1968)) and commercial substitution (Second Further Notice of Proposed Rule Making in Docket 18379-A, 24 FCC 2d 580 (1970)) proposals that, we have concluded, simply will not wash. We propose to act in a conservative, pragmatic fashion -- in the sense of protecting the present system and adding to it in a significant way, taking a sound and realistic first step, and then evaluating our experience.

We have determined to restrict the carriage of distant signals to a relatively small number and hope thus to serve two purposes: first, to minimize the possibility of adverse impact on the existing broadcast structure and, second, to spur the development of the variety of nonbroadcast services that represent the longterm promise of cable. We believe that the overall approach described will allow the integration of cable service into the nation's communications structure without undue disruption.

The television signal carriage rules would divide all signals into three classifications:

(1) Mandatory carriage -- signals that a cable system must carry.

(2) Minimum service -- a minimum number of signals that, taking television market size into account, a cable system may carry.

(3) Additional service -- signals that some systems may carry in addition to those required or permitted in the two above categories.

Before proceeding to a discussion of these classifications, it is necessary to establish the frame of reference in which the rules would operate.

First, the signal carriage rules would be tailored in their application to markets of varying size in accordance with the estimated ability of these markets to withstand additional distant signal competition. The rules would vary according to whether the cable system is in the top 50 television markets, in markets 51-100, in a market below 100, or not in a television market at all. Appendix A contains an alphabetical list of markets 1-50 and 51-100, and this list would become a permanent part of the rules. The list is derived largely from the American Research Bureau's 1970 prime time households ranking. Earlier, television markets were ranked according to the net weekly circulation of the largest station in each market, but we have now concluded that the prime time households ranking would serve as a more appropriate base. It more nearly measures the strength of each market, rather than just the circulation of the largest station in the market.

Second, it is necessary to delineate the area within each market to which the particular rules will be applicable. We have decided to define that area as a zone of 35 miles radius surrounding a specified reference point in each designated community in the market. A set of reference points fixing the center of the community to which each station is licensed would be included in the rules. For new television stations were reference points have not been specified, the 35 mile zone would be drawn from the central post office in the television station community. The purpose of drawing these zones is not to encompass the entire geographical area that stations in the market serve but rather to carve out the market's central city, suburbs, and nearby communities on which stations generally rely for their principal audience support.

Cable systems in the communities partially within a 35 mile zone would be treated as if they were entirely within the zone. There is, however, one exception to this rule: namely, a top 100 market designated community (Appendix A) would be treated as within the zone of another market only if its reference point were within the 35 mile zone of the latter market. In those instances where there is an overlapping of zones to which different carriage rules are applicable, the rules governing the larger market would be followed. Authorized stations with construction permits, but which have not yet commenced broadcasting, would be treated as having a zone, and as operational for purposes of the minimum service rules, for a period of 18 months following the grant of permit.

Mandatory Carriage Signals

Existing rules contain a requirement that, on request, a cable system must carry all Grade B signals covering its community. This requirement has been a part of the Commission's CATV rules from the first, but its practical operating has been complicated as a result of footnote 69 to the Second Report and Order in Dockets 14895 et al., 2 FCC 2d 725, 786 (1966), in which questions were raised as to whether a Grade B signal coming from one major market into another major market should be treated as a distant rather than a local signal. Two changes are to be made in this existing (Grade B) carriage rule.

The first is a requirement that all cable systems must carry the signals of all stations licensed to communities within 35 miles of the cable system's community. This requirement, based on policy considerations similar to those underlying existing carriage rules, is intended to aid stations -- generally UHF -- whose Grade B contours are limited. (In markets smaller than the top 100, systems would be required to carry all stations within 35 miles and, on request, all Grade B signals from other small markets.)

The second change concerns the overlapping market or footnote 69 situation and takes into account the circumstance that some Grade B signals, while theoretically available over-the-air, are not actually viewed to any significant extent in some parts of their service area. Our earlier proposal in Docket 18397 would have regulated this situation by the use of fixed mileage zones. Under that proposal, a cable system in the top 100 markets (i.e., within the 35 mile zone of a designated top 100 community) could carry the Grade B signal of a station from another top 100 market only if the system were located wholly within 35 miles of the latter market. We have decided to retain this concept but with an important qualification to reflect actual viewing patterns -- which is, after all, the heart of the matter. Thus, the rule would require carriage of a signal from one market into another if that signal were found to have significant over-the-air viewing in the cable system's community. Further, its application -- which has been limited to overlaps between major markets -- would be extended to overlaps between major and smaller markets.

The standard as to what constitutes "significant viewing" can reasonably be drawn at several points. After studying the various alternatives, we have concluded that an out-of-market network affiliate should be considered to be significantly viewed if it obtains at least a 3% share of the viewing hours in the television homes in the community and has a net weekly circulation in the community of 25% or more. n1 For independent stations, the test of significant viewing would be a 1% share of viewing hours and a net weekly circulation of at least 5%. The lower figures for independent stations are intended to reflect the smaller audiences that these stations generally attract even in their home markets and, because so many of them are UHF, to afford them a practical boost by virtue of cable carriage. You will note that, in contrast with the standard set forth in our House testimony, the test is now formulated so that both its components (audience share and net weekly circulation) must be met. This more rigorous test gives greater assurance that a signal thus carried is in fact "significantly viewed."

n1 Share of viewing hours: the total hours all television households viewed the subject station during the week, as a percentage of the total hours these households viewed all stations during the period. Net weekly circulation: the number of television households that viewed the station for 5 minutes or more during the entire week.

We will include in the rules a list of counties in all market zones, showing which out-of-market signals are significantly viewed. This list will be based on ARB's 1971 Television Circulation/Share Study which will be available shortly. For those counties that already have 10 percent or more cable penetration, a special ARB tabulation will be used. Because these new tabulations are not yet available, we have had to use most recent available county data in preparing attached Appendix B. This chart illustrates the approximate number of signals that may be carried in designated cities in the top 100 television markets.

Those wishing to make supplemental showings as to significant viewing of additional stations in specific cable communities would also be permitted to do so. Any survey data submitted, however, must be obtained from an independent research organization and include a sufficient sample of off-the-air television households to assure that the results lie at least two standard errors (95 percent confidence limits) above the required viewing level.

Minimum Service

Consistent with other public interest considerations, cable viewers should have at least a minimum number and choice of signals. It would, of course, be desirable to adopt one nationwide standard. However, again to act conservatively with respect to the possible impact on local broadcasting, we have decided to establish minimum standards of adequate television service that would vary with market size. (Noncommercial educational and non-English language stations are not included in these minimum standards but are discussed separately below.) The minimum service standards would be as follows:

(1) In television markets 1-50: three full network stations, three independent stations

(2) In markets 51-100: three full network stations, two independent stations

(3) In smaller television markets (below 100): three full network stations, one independent station.

If after carriage of stations within thirty-five miles, those from the same market, and those meeting the viewing test, minimum service is still not being supplied, distant signals would be permitted to be carried as needed to make up the defined minimum of service.

Additional Service

Cable systems in the top 100 markets would in any case be permitted to carry two signals beyond those whose carriage would be required under the mandatory carriage rules. Distant and out-of-market signals carried to provide minimum service would be counted against these additional signals so that if, for example, two distant signals were carried to provide minimum service, no additional signals could be carried. Cable systems in smaller markets (below 100) would not be permitted to import network or independent television signals beyond the minimum service level. Noncommercial educational and non-English language stations could also be carried in accordance with the policies outlined below.

The rationale for the foregoing may be simply stated. It would appear that the minimum number of distant signals that might reasonably open the way for cable development is two additional signals not available in the community. We will therefore permit this amount in the larger markets where it is necessary and feasible in terms of impact on broadcasting. In this connection, we stress again our recognition of the need for ad hoc actions in some situations. Thus, if a system has available for carriage a great number of signals meeting the "significant viewing" test, this may be sufficient to facilitate its growth and may make unnecessary the provision of two additional distant signals. This question can only be resolved on the basis of the facts of each case (e.g., the number of "significantly viewed" signals; the extent, if any, to which those signals exceed the minimum test; and the nature of the market, including the financial position of the stations in the market). Similarly, in the second 50 markets there could be anomalous situations that call for separate treatment -- perhaps permitting only one imported signal, or even none. On the attached chart (Appendix B) we have designated markets that might receive such special treatment.

But generally, we will act in the above described fashion. We have therefore, in the same chart, indicated the effect of our policies in the designated cities of the top 100 markets. We cannot claim that it is mathematically certain in every detail -- e.g., some "significantly viewed" signals might be added on an appropriate showing or, in some areas, as a result of the forthcoming ARB cable-controlled sweep, some signals that we have included might not meet the requisite standards. A foreign language or educational signal (or signals) might also be carried, although we believe such carriage would at most have minimal impact on local commercial broadcasters. But even with these qualifications, we believe the chart illustrates the scope and effect of our policies and thus gives a picture of the overall plan in practice.

Carriage Rules for Cable Communities Outside Any Television Market

Cable systems in communities entirely outside the zone of any commercial television station would be permitted to carry television signals without restriction as to number of point of origin, but must carry all Grade B signals.

Impact

We have carefully considered the question of cable's impact on the continued viability of over-the-air broadcasting. Broadcasters argue that any distant signal cable policy will have a disastrous impact on already shaky UHF stations. On the other hand, we have independent studies such as those submitted by the Rand Corporation suggesting that UHF will be likelier helped than hurt by cable -- because HUF is still handicapped by reception problems, and these problems disappear with carriage on cable. Our own study of the matter has persuaded us that it would be wrong to halt cable development on the basis of conjectures as to its impact on UHF stations. We believe the improvements that cable will make in clearer UHF pictures and wider UHF coverage will at least offset the inroads of UHF audiences made by the limited number of distant signals that our rules would permit to be carried.

As to similar arguments concerning cable's impact on VHF in the smaller markets, it is our judgment -- considering such factors as cable's rate of penetration and the growth of broadcast revenues -- that the approach we propose will not undermine these stations in their ability to serve the public. Of course, as in any general policy, there may well be exceptional cases -- as to a particular market or, more likely, a particular station in that market. In such an event, we would be prepared to take appropriate action.

The viewing patterns in off-the-air and cable homes would soon become apparent and serve as an index of cable's impact on local broadcast service. We intend to obtain early and continuing reports from representative communities, and broadcasters would be free to submit such reports at any time. If these reports and the financial data from operating stations were to show the need for remedial action, we could and would take prompt action. The range of possibilities here is brad. Effective non-network non-duplication protection might be afforded to affected stations. Or, we might consider halting cable's growth with distant signals at discrete areas within the community -- something we have done on occasion in the past. The Commission has the flexibility to handle injury problems in a variety of ways, should such problems in fact arise.

leapfrogging

We have concluded that it is appropriate to adopt leapfrogging rules regulating which signals may be carried. These rules, while providing cable systems with some flexibility of choice, are also designed to give an expanded market to stations that might otherwise be passed over. In particular, priority would be given to carriage of UHF independent stations in order to improve their competitive position. This policy would be implemented by a rule requiring cable systems in the top 100 markets carrying distant independent television signals to carry, as a first priority, one UHF independent station from within 200 miles. If there is no such UHF station, any VHF station within 200 miles or any UHF station could be carried. The second distant signal in these top 100 markets would be free from restrictions as to point of origin. With respect to systems below the top 100 markets, or the unusual case of a top 100 market system restricted to carriage of only one independent distant signal, such carriage would also be free from restrictions as to point of origin. Finally, in those few markets where a third independent may be brought in, that signal must be in-state or one within 200 miles; if no such signals are available, there would be no restriction as to point of origin.

The cable system may vary the distant signals to be presented in any fashion it wants, so long as it does not exceed the number to be imported and meets the leapfrogging requirements. In the event an independent signal is blacked out at times because of some non-duplication requirement imposed by the Commission, the system might substitute other distant signal programming in line with the same pattern of priorities. The system might even bring in network-affiliated stations as part of its "additional two signals" -- again, consistent with these priorities and, of course, our non-duplication rules.

Any system within a market zone adding an additional network or noncommercial educational station would be required to carry the closest station of that type or, if the closest station were not from the same state, then the closest instate signal.

Educational Stations

The unregulated importation of distant educational signals might both threaten existing local educational stations and also abort construction of new educational stations. We have, therefore, always provided educational stations and other educational television interests an opportunity to object to importation of distant educational television stations. In our cable deliberations, the filings concerning carriage of distant educational television stations generally argued in favor of simplified procedures -- to lighten the burden on educational broadcasters and to protect their interests in providing local educational programming whenever possible.

We have settled on the following rules: a cable system must carry educational stations within 35 miles and, on request, those that provide a predicted Grade B contour over the cable system's community. The Commission will attempt to settle disputes involving educational stations on the basis of a showing from the objecting party and the response of the cable system involved. While all objections to educational station carriage will be considered, we would not anticipate precluding carriage of tax-supported stations from the same state as the cable system. In order to insure that educational interests have adequate notice of proposed importation, we would retain our requirement that the cable system serve notice of its intention to carry any educational station upon the local school superintendent, all educational stations placing a predicted Grade B contour over the cable system's community, and any local or state educational television authority. Finally, we recognize that educational stations are unlikely to develop in some areas and that cable carriage of distant educational signals is unlikely to have any appreciable impact on commercial broadcast stations. Consequently, we will allow a cable system to carry any number of educational signals, local or distant, in the absence of objection.

Foreign Language Stations

Many communities have an interest in non-English language programming. For the most part, the communities involved are situated near the Canadian or Mexican borders and have populations with a high interest in French or Spanish language programming. This phenomenon is also apparent in other cities with foreign language populations -- e.g., New York City, Miami, Los Angeles. In addition, there are citizens and non-citizen residents and visitors to this country not conversant in English who remain essentially without adequate television service. To serve these minorities more effectively, we would permit cable systems to import non-English language programming. In order to encourage the carriage of such programming, we would not count against the quotas discussed previously the distant signal of a non-English language station when carrying these programs.

The non-English language stations are similar to educational stations in that they generally attract select, small audiences, yet serve a salient need. We do not anticipate that this undertaking will be detrimental to local television service because of the small number of viewers such stations generally attract. Again, there could be exceptions to this general proposition. We would, of course, act on any showing of adverse consequences to local television service caused by non-English language signal importation.

We believe that the choice of the station or stations to be carried should be left to the cable operator. He would be free to choose non-English language stations from those available in the United States or might choose foreign stations not programmed in English. If a non-English language station is available locally, the cable operator would be allowed to import a foreign language station programming in another language without counting against the distant signal quota.

Sports

Sports events stand on a separate footing from other programming presented on commercial television. Public Law 87-331, among other things, exempts professional sports from the anti-trust laws for the purpose of allowing professional football, baseball, basketball, and hockey to enter into pooled or league television agreements with networks, and to black out television broadcasts of home games within the "home territory" of the team concerned. Certainly, cable systems should not be permitted to circumvent the purpose of the law by importing the signal of a station carrying the home game of a professional team if that team has elected to black out the game in its home territory. For example, if the Washington Redskins were playing the New York Giants in Washington, D.C., and the game were blacked out there, a cable system in Washington, D.C. would not be permitted to bring in a New York City station televising the game.

We will follow the spirit and letter of Public Law 87-331, since it represents Congressional policy in this important area. We intend to issue very shortly a notice of proposed rule making directed to this specific area, in order to ascertain the full thrust and purposes of 87-331 and how best we can formulate a rule to implement these purposes. We will give this proceeding expedited treatment, so that it is concluded before the significant emergence of new systems under these rules. In any event, a system may carry any sporting event if it is televised on a station that must be carried under the mandatory carriage rules. In effect, then, cable systems will be able to carry whatever sports events are carried locally -- including those on stations meeting the "significant viewing" test.

Anther aspect of concern involving sports programming is the possibility that such programming now presented on broadcast television might be siphoned off to cable. Our current rules (Section 74.1121) prevent cable systems from showing sports events for a separate per program or per channel charge unless these events have not been televised live on a regular basis on broadcast television at no direct charge to viewers during the two years proceeding the proposed subscription showing. The Commission has also initiated proposed rule making looking to a ban on the showing of sports events on cable systems on a subscription basis if the events were televised in the community of the system during any one year in the five years preceding the proposed subscription showing.

These rules, of course, do not take into account the circumstance that cable system, on an interconnected basis, might outbid broadcast networks for the rights to sports events to be shown on a non-subscription basis on cable systems. In such a case, off-the-air viewers would not be able to receive the event. This situation would be different from that of a cable system providing its subscribers with sports programming that is not currently being broadcast: for example, some cable systems currently carry the blacked out home games of sports teams to their subscribers pursuant to a contract with the team involved. Sports teams apparently enter such agreements when they are playing to capacity crowds and the number of cable subscribers would not hurt the home gate but would provide additional revenue through the sale of cable carriage rights. In the latter instance, cable is performing a valuable public service to its subscribers in presenting sports programming that was previously unavailable to any television viewer.

We are not unmindful of the possibility that a nationwide interconnected cable network, whether achieved by terrestrial or satellite technology, could remove sports programming from conventional broadcast television by offering sports teams more favorable terms than broadcast interests might be willing to pay. This would carry the rik of adverse public consequences by depriving off-the-air viewers of accustomed sports programming. But, in our judgment, this problem -- if it arises at all -- is far from imminent. The type of interconnection and, most important, the cable penetration levels necessary to permit the formation of a network capable of outbidding broadcast networks are far in the future. We intend to keep a close watch on this question and to take whatever action is called for within our jurisdiction. We would, of course, welcome Congressional guidance in this area of national concern. It may be that the scope of the issue is so complex -- involving not only communications policy, but also antitrust and other considerations -- that legislation may be the ultimate answer if, in fact, sports siphoning were found to be an imminent danger, contrary to the public interest.

Procedural Matters

Our experience with the notification requirements of our existing rules has uncovered certain practical difficulties. First, it has not been feasible regularly to review notifications for adequacy and consistency with our signal carriage and other rules. Second, the existing requirement of notification has not effectively given public notice of pending proposals. Finally, the notices have not provided us with sufficient information on a number of matters relevant to the settlement of disputes. Consequently, we would revise our rules to cure these deficiencies as to all cable systems proposing either to start up new operations or to add local or distant stations after the effective date of our new proposals.

Before instituting service, a cable system would be required to file with the Commission a request for certification of compliance. The application would have to contain (1) a copy of the franchise, license, permit, or certificate granted by the appropriate governmental source to construct and to operate a cable system in the community; (2) a list of the broadcast stations intended to be carried (including any survey made of signals meeting the significant viewing test); (3) an affidavit showing service on all television broadcast stations placing a predicted Grade B contour over the community of the system, on the superintendent of schools in the community in which the system will operate, and any local or state educational television authorities; and (4) a completed copy of FCC Form 325 (Annual Report of CATV Systems). Form 325 would contain information concerning the cable system's operation -- location, ownership, number of subscribers, signals carried, channel capacity, and extent of program originations. When a cable system proposed to add local or distant signals to an existing system, the franchise and Form 325 would not have to be refilled but the other procedures related above would be required. The Commission would issue public notices of all petitions for authorization accepted for filing.

Interested persons would be permitted to object to proposed cable service within 30 days after the Commission gives public notice. Whether or not an objection is filed a cable system would not be permitted to commence new service without receipt of a certificate of compliance from the Commission. Absent special situations or showings, petitions consistent with our rules would receive prompt certification. The rules are meant to operate on a "go, no-go" basis. For example, the carriage rules reflect our determination of what is, at this time, in the public interest vis-a-vis cable carriage of local and distant signals.

Grandfathering

Cable systems already in operation on the effective date of the rules would be permitted to continue operation and to provide the existing lineup of signals without regard to the new requirements of signal carriage if that service had been previously grandfathered in the Second Report and Order in Dockets 14895 et al., supra, or if the service were commenced in compliance with the rules after December 20, 1968 and was then consistent with the rules proposed in Docket 18397. For those systems now limited to discrete areas in their communities by Commission order, any expansion beyond those areas would have to be consistent with the new rules.

II. NON-BROADCAST CHANNELS (ACCESS)

In our July 1, 1970 Notice of Proposed Rule Making in Docket 18397-A, we stated: "The structure and operation of our system of radio and television broadcasting affects, among other things, the sense of 'community' of those within the signal area of the station involved. Recently governmental programs have been directed toward increasing citizen involvement in community affairs. Cable television has the potential to be a vehicle for much needed community expression."

Confronted with the need for more channels available for community expression on the one hand and, on the other, with the promised emergence of cable television's capacity to provide an abundance of such channels, we stated in our July 1, 1970 Notice the principle that the Commission "... must make an effort to ensure the development of sufficient channel availability on all new CATV systems to serve specific recognized functions." We will seek to serve these purposes through a number of interrelated requirements spelled out in the following discussion.

We will tailor our actions to take into account the public interest considerations stemming from possible impact of cable on broadcast services. We recognize that in any matter involving future projections, there are necessarily some risks. As we have also stated, what makes those risks so clearly worth taking is the chance of obtaining great benefits to the public from cable's new services. It follows that along with making distant or overlapping signals available for the first time in specified markets, we should act to require a bandwidth that will ensure the availability of these new services. Otherwise, some cable operators might construct systems adequate only to the carriage of broadcast signals, or might long postpone the availability of non-broadcast channels. We believe this would be a most unwise decision, since the use of non-broadcast bandwidth is of high public promise and can be profitable to the cable owner. Indeed, it may be the critical factor making for cable's success. The public interest, as well as the cable industry's economic interest, may well be found in reducing subscriber fees and relying proportionately more for revenue on the income from channel leasing. In sum, we emphasize that the cable operator cannot accept the distant or overlapping signals that will be made available without also accepting the obligation to provide for substantial non-broadcast bandwidth. The two are integrally linked in the public interest judgment we have made. Channel Capacity (Bandwidth)

We envision a future for cable in which the principal services, channel uses, and potential sources of income will be other than over-the-air signals. We note that 40, 50, and 60 channel systems are currently being installed. The cost difference between installing 12 and 20 channel capacity would not appear to be substantial. We urge cable operators to consider that future demand may significantly exceed current projections, and we put them on notice that it is our intention to insist on the expansion of cable systems to accommodate all reasonable demand.

At the same time, we do not want to impose unreasonable economic burdens on cable operators. Accordingly, we will not immediately require a minimum channel capacity in any except the top 100 markets. In those markets we believe a 20 channel capacity (actual or potential) is the minimum consistent with the public interest.

We will also adopt a rule that for each broadcast signal carried, cable systems must provide equivalent bandwidth for non-broadcast uses. This seems a reasonable way to obtain the necessary minimum channel capacity and yet gear it to particular community needs. Finally, the "N+1" availability concept, discussed below, is also pertinent to the question of channel capacity.

Public Access, Educational, and Government Channels

Broadcast signals are being used as a crucial component in the establishment of cable systems, and it therefore seems appropriate that certain basic goals of the Communications Act be furthered by cable's advent -- the opening up of new outlets for local expression, the promotion of added diversity in television programming, the advancement of educational and instructional television, and the increased information services of local governments. Accordingly, we will require that there be one free, dedicated, non-commercial, public access channel available at all times on a non-discriminatory basis. In addition, we will require that one channel be set aside for educational use and one channel for state and local government use on a developmental basis and that, upon completion of the basic trunk line, for the first five years thereafter these two channels will be made available free. After this developmental phase -- designed to encourage sophisticated educational and governmental innovation in the use of local television -- we will then be in a more informed position to determine, in consultation with state and local authorities, whether to expand or curtail the free use of channels for such purposes or, indeed, whether we should continue the developmental period for a further time. We do not want the free uses described above to constitute an unreasonable economic burden on cable system operators and subscribers. Therefore, a system operator will be obliged to provide only use of the cable channel on a free basis; production costs (aside from brief live studio presentations not exceeding five minutes in duration) may be charged to users.

Leased Channels

After cable systems have satisfied the priority of providing one free public access channel as well as the free developmental channels for education and government, they may make available for leased uses the remainder of the required bandwidth and any other available bandwidth (e.g., if a channel carrying broadcast programming is blacked out because of our non-duplication requirement or is otherwise not in use, that channel also may be used for leased programming). Indeed, to the extent that the public access, educational, and governmental channels are not being used, these channels may also be used for leased operation. But such operations may only be undertaken with the express understanding that they are subject to immediate displacement if there is a demand to use the channel for the dedicated purpose.

Expansion of Capacity

Our basic goal is to encourage experimentation that will lead to constantly expanding channel capacity. Cable systems will therefore be required to make an additional channel available for use as the demand arises.

There are many ways of administering this general goal. Experience will be valuable to users, systems, and the Commission alike. Initially, however, we propose to use the following factor to determine when a new channel must become operational: Whenever all operational channels are in consistent use during 80% of the weekdays (Monday-Friday), for 80% of the time during any three-hour period for six weeks running. The system will then have six months in which to make a new channel available. Such an N+1 availability should encourage use of the channels, with the knowledge that channel space will always be available, and also encourage the cable operator continually to expand and update his system. We contemplate that at least one of the leased channels will give priority to part-time users; the remaining leased channel capacity may be used by full-time lessees.

As mentioned above, we are aware of the risks inherent in the N+1 formula. A cable owner has an obvious economic incentive to devote his bandwidth to profitable channel leasing activities, and might thus be motivated to restrict use of the access channels to avoid triggering the N+1 availability. A whole variety of techniques might, quite obviously, be employed. While it would not appear to constitute any problem in the immediate future, we intend to institute now a proceeding to assure that the N+1 concept is not frustrated at some later date through rate manipulation; this proceeding will deal with appropriate future regulatory policies as to the rates charged for these leased channel operations for interstate services. We are also aware that the formula may be too rigorous and impose economic burdens on operators.

The six-month period allowed for activation of new channels, for example, contemplates the relatively modest effort needed to convert existing potential capacity into actual capacity. Obviously, if it were necessary to rebuild or add extensive new plant, this could not reasonably be expected within any six-month period. The latter consideration again points up the necessity of building now with a potential that takes the future into account. In the new proceeding referred to above, we will also explore this aspect of possible rebuilding or extensive new construction that might be required under our rules. In sum, we adopt the 80% figure only as a general formula. Inasmuch as this area of regulation is new, we will reexamine the N+1 concept at an early time if unanticipated problems develop.

Two-Way Capacity

After studying the comments received and our own engineering estimates, we have decided to require that there be built into cable systems the capacity for two-way communication. This is apparently now feasible at a not inordinate additional cost, and its availability is essential for many of cable's public services. Such two-way communication, even if rudimentary in nature, can be usedful in a host of ways -- for surveys, marketing services, burglar alarm devices, educational feed-back, to name a few. Of course, viewers should also have a capability enabling them to choose whether or not the feed-back is activated.

Regulations Applicable to Public Access, Educational, Government, and Leased Channels Presenting Non-Broadcast Programming

Having provided for these access channels, we turn to the question of the regulation of the public access and other channels presenting non-broadcast programming. First, we believe that such regulation is properly the concern of this Commission. This is so not just because we have required the creation of such channels and specified their initial or continuing priority. As stated, the channels are designed to fulfill Communications Act purposes and are integrally bound up with the broadcast signals being carried over the system. It is by no means clear that the viewing public will be able to distinguish between a broadcast program and an access program; rather, the subscriber will simply flick across the dial from broadcast channels to public access or leased channel programming, much as he now selects television fare. Further, the leased channels will undoubtedly involve interconnected programming, via satellite or interstate terrestrial facilities, matters that are within the Commission's jurisdiction. Similarly, it is this Commission that must make the decisions as to conditions to be imposed on the operation of pay channels, and we have already taken steps in that direction. (See Section 74.1121.)

Federal regulation is thus clearly called for. The issue is whether also to permit local regulation of these channels, if not inconsistent with Federal purposes. We think that in this area this dual form of regulation would be confusing and impracticable.

Further, we do not believe that the purposes we seek to advance would be served by detailed regulations at this time; rather as set forth more fully below, we think it is important to allow a period of considerable experimentation. Thus, we believe that, except for the government channel, local regulation of access channels carrying programming is precluded, at least at this time. We stress that if experience and considerations brought forth in the further proceeding indicate the need or desirability therefore, we can then delineate an appropriate local role.

Similarly, aside from channels for government uses, we do not believe that local entities should be permitted to require that other channels be assigned for particular uses. As stated above, this in our view is peculiarly a matter of federal concern. We stress again that we are entering into an experimental or developmental period. Thus, where the cable operator and the franchising authority seek to experiment by providing additional channel capacity for such purposes as public access, educational, and governmental -- on a free basis or at reduced charges -- we will entertain petitions and consider the appropriateness of authorizing such experiments, to gain further data and insight and to guide future courses of action. For the same reasons, we will permit existing systems to continue operating under more "generous" specifications than those described in this section.

The question of what regulations we should impose at this time is a most difficult one. We simply do not know how these services will evolve. The comments received, while helpful and well-intentioned, understandably could not now supply definitive standards. We believe that our best course is to facilitate use of these channels on a first-come, first-served nondiscriminatory basis with only the most minimal regulations, in order to obtain experience, and on the basis of that experience and the comments received in a new proceeding, to lay down more specific regulations. We stress, therefore, that the regulatory pattern here described is interim in nature -- that we may make minor or indeed major changes as we gain the necessary insight.

Turning to our interim rules, we are guided by two main policy considerations: (1) to allow maximum experimentation and (2) to prevent, particularly during this critical early period and probably at all times, one entity sitting astride all this channel capacity and deciding what programming should or should not enter subscriber homes.

We will authorize the commencement of cable service and, with that commencement, require the offering of these services. We will further require that, in accordance with our regulations, the cable system promulgate rules to apply to these services, and will require that the rules be kept on public file at the system's headquarters and with the Commission. What matters during this experimental period is not form but substance, and we will lay down the substantive guides that we believe are appropriate at this time. We believe that we have full discretion to act in this fashion. See Philadelphia Television Broadcasting Co. v. F.C.C., 123 U.S. App. D.C. 298, 359 F. 2d 282 (1966).

With respect to the public access channel, the rules to be promulgated by the system must specify nondiscriminatory access on a first-come, first-served basis during this interim periods. It also follows that, during this interim period, the cable operator must not censor or exercise program content control of any kind over the material presented on the public access channel. However, his rules shall proscribe the presentation of any advertising material (including political advertising spots), of lotteries, and, in terms identical to 18 U.S.C. � 1464, of obscene or indecent matter. The regulations shall also specify that persons or groups seeking access be identified, and their addresses obtained; these are reasonable requirements, and this information should be publicly available.

We do not envision any other proscriptions during this experimental period. We recognize that open access carries with it certain risks. But some amount of risk is inherent in a democracy committee to fostering "uninhibited, robust, and wide-open" debate on public issues. (New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). In any event, further regulation in this sensitive area should await experience and the outcome of the proceeding we expect to initiate. For example, we intend to explore whether it would be feasible or desirable to provide subscribers a locked switch to cut off the public access or leased channels, should parents wish to control their children's viewing.

In short, we recognize that the public access channel requirements may result in many problems for the cable operator, especially during the break-in period. Effective operational procedures can evolve only from trial and error, and it is probable that different systems will have diverse problems not presently capable of being solved by uniform regulation. We note, for example, the need to decide how applications for access time shall be made, who must make them, what overall time limitations might be desirable, how copyrighted material will be protected, how production facilities will be provided, how the public can get some advance notice of what is to be presented, and so on. All these questions will probably be answered by cable systems in a number of different ways. Again, we will require that the rules adopted by cable systems in these respects be filed with us and made available to the public. But experimentation appears to be the best way to determine what will be workable for the long run. Only with experience will be able to tell what further general rules, if any, are called for.

The cable operator, except for channels programmed by the system itself, similarly must not censor or exercise program content control of any kind over the material presented on the leased channels. Specifically, his rules shall provide for nondiscriminatory access on a first-come, first-served basis with the appropriate rate schedule specified. Again, he shall obtain the names and addresses of the persons or groups seeking access, and shall adopt rules proscribing the presentation of obscene or indecent matter (in the precise terms of 18 U.S.C. � 1464), lotteries, and advertising material not containing the necessary commercial identification. Finally, in contrast with existing cablecasting rules (Section 74.117), we will not require commercials only at natural breaks on these channels. It is our expectation that there will be experimentation in this respect, with some channels used entirely for advertising, some following the pattern of present commercial broadcasts, and others that of Section 74.1117. We do not wish to inhibit in any way the presentation of new materials over these channels during this critical introductory period. Again, we leave to the rule making proceeding such questions as dealing with false and misleading advertising, some possible modified fairness or personal attack requirements, and the like.

Liability

Many cable operators are concerned about potential civil and criminal liability resulting from use of these public access and leased channels. There is little if any possibility of a criminal suit in a situation where the system has no right of control and thus no specific intent to violate the law. See, e.g., Baird v. Arizona State Bar, 401 U.S. 1 (1971); In Re Stolar, 401 U.S. 23 (1971); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971); Yates v. United States, 354 U.S. 298 (1957).

The cable operator's real fears seem, in fact, to center mainly around potential libel suits. The possible number and scope of such actions is, however, severely limited. In Rosenbloom v. Metromedia, Inc., 39 U.S.L.W. 4694 (1971), the Court extended the "actual malice" rule of New York Times Co. v. Sullivan, supra., to cover any situation where "the utterance involved concerns a matter of public or general interest." Since most users will presumably air opinions on matters that are of at least as much "public or general interest" as in the Rosenbloom case, it seems likely that their speech would come within the "actual malice" rule. No such malice could be imputed to a cable operator who had no control over the given program's content.

In the unlikely event that some material presented on these non-broadcast channels were to fall outside the broad scope of the Court's recent decisions such as Rosenbloom, this would not necessarily mean that the system is liable. (Of course, the programmer would remain fully liable.) We have adopted the no-censorship requirement in order to promote "robust, wide-open debate" and for the policy reasons set out above; these are, we believe, valid regulations having "the force of law." While the matter is of course one for resolution by the courts (as also would be the due process issues raised), we suggest that state law imposing liability on a system that has no control over these channels would frustrate federal purposes. In any event, if any problem should develop in this respect, it is readily remedied by Congress and, in this connection, we would welcome clarifying legislation. Cf. Farmers Educational and Cooperative Union v. WDAY, 360 U.S. 525 (1959).

Production Facilities

It is obvious that our goal of creating a low-cost, nondiscriminatory means of channel access cannot be attained unless members of the public have available some reasonable production facilities. We expect that many cable systems will have facilities with which to originate programming, and such facilities should also be available to produce program material for public access. Hopefully, colleges and universities, high schools, recreation departments, churches, unions, and other community sources will have low-cost video-taping equipment available to the public. Whatever sources are available, however, we will require that the cable operator maintain at least minimal production facilities for public use within the franchise area.

In this experimental stage, when cablecasting material may well come from diverse sources, it could be self-defeating to require a cable operator to carry this material and at the same time to meet stringent technical standards. We note specifically that the use of half-inch video tape is a growing and hopeful indication that low-cost video tape recording equipment can and will be made available to the public. While such equipment does not now meet our technical standards for broadcasting, the prospects for its improvement and refinement are excellent. Further, since it provides an inexpensive means of program production, we see no reason why its development should not be encouraged for use on cable channels.

Many elaborate suggestions have been made for comprehensive community control plans such as neighborhood origination centers, mobile communications vehicles, and neighborhood councils to oversee access channels. Here again the Commission will encourage experimentation rather than trying to enforce a more formal structure at this time.

Applicability

These access rules will be applicable to all new systems that become operational in the top 100 markets (as defined in Section I have).Currently operating systems in the top 100 markets would have five years to comply with this section. Existing systems in markets below the top 100 would be required to meet these access rules when and as the system is substantially rebuilt.

Our reasons for focusing on the top 100 markets may be briefly stated. We have delineated these markets (within 35 mile zones) as the recipients of special benefits in order to stimulate cable growth. But, correspondingly, that growth should be accompanied by these access requirements or the public will not fully receive the benefits we seek. To the extent that this may pose some problems for systems operating in relatively small communities in these markets, such systems are free to meet their obligations through joint building and related programs with cable operators in the larger core areas.

Finally, if these requirements should impose an undue burden on some isolated system, that is a matter that can be dealt with in a waiver request, with an appropriate detailed showing.

III. TECHNICAL STANDARDS

Our objective in determining for the first time what technical standards should be made applicable to cable television systems has been to devise rules that assure the subscriber at least a minimum standard of reception quality, which at the same time permitting the continuation of technical experimentation. Thus, unlike our regulatory approach in broadcasting, we do not specify standards prescribing either the methods for measuring transmission performance or specifying the types of equipment that cable systems must use. Instead, the thrust of our rules is to require that a signal must meet certain standards of minimum technical performance on its arrival at any subscriber's terminal.

At this time our requirements would apply only to the carriage of standard television signals. We expect, however, that there will be need for technical standards -- in some measure possibly different -- for carriage of cable originated programs, return (two-way) communication, and various miscellaneous cable services as they develop. While appropriate standards for these services and other technical aspects of cable are under study, it will be necessary to call on the various technical industries for advice and consultation, and we plan soon to announce the formation of a task force of experts to advise us in designated areas. We intend to continue the rule making process and to request comments on such matters as limitations on permissible cross-modulation, ghosting, measurement techniques, carriage of aural broadcast signals, and a requirement for synchronous delivery of VHF stations.

In anticipation of the various uses of cable television -- some of which are already beginning to be realized -- we are defining four classes of cable television channels. Class I channels will be those segments of bandwidth used for carriage of standard television signals. It is only to Class I channels that our technical standards would apply initially. Class II will be used for cable originated programming, including public and educational access services. Class III channels will be for non-television miscellaneous services and printed message material. And Class IV channels will be those used for return communication. Our purpose in defining four classes of channels is to recognize that the varied services expected to be provided by a cable system will use different amounts of bandwidth or require different technical parameters, some "channels" requiring a full 6 MHz of bandwidth, others more or less. As suggested above, different technical standards may well be needed for different cable services, and we have therefore fixed on these separate channel definitions to facilitate whatever standards we adopt.

At this time our technical standards will include specifications for frequency boundaries, visual carrier frequency levels, aural carrier frequency levels, channel frequency response, terminal isolation, and system radiation. We will provide, however, that systems of unusual design that cannot comply with one or more of the technical specifications will be permitted to operate on an adequate showing that the public interest is benefited thereby. The Commission will reserve the right in such instances to prescribe special technical standards to ensure that subscribers will be provided with good service quality.

Responsibility for designing, installing, maintaining, and operating cable systems to ensure that our standards are met will be placed on system operators. We will require that every cable system operator conduct complete performance tests of his system at least once a year and keep the results of such tests on public file for five years. The performance tests will compel measurements made at no less than three widely separated points on the system, at least one of which would be representative of terminals most distant from the system input. We will, of course, require that the operator record a description of the instruments and procedures used in making such measurements and a statement of the qualifications of the person performing the tests.

We will also require that the operator of each system maintain a current listing of channels delivered to subscribers and the station or stations whose signals are delivered on each Class I cable channel.

Each system operator will have to be prepared at any time to show, on reasonable request from the Commission, that his system does in fact comply with the technical standards. Additionally, it should be noted that successful completion of the performance tests will not relieve the system operator of the obligation to meet the technical standards at each subscriber terminal. The implementation of these rules would generally eliminate the degradation of local broadcast signals. We will also reserve the right to require additional tests at specific terminals.

We consider it important that the cable industry move forward as quickly as possible with a program to obtain compliance with the technical standards we plan to adopt. Thus, we will require that new systems and those that may now be in the planning or construction phase and have not delivered programs to subscribers on the effective date of these rules will have to comply with the technical standards within one year. For existing systems, however, we envision a five-year compliance period.

IV. FEDERAL-STATE/LOCAL RELATIONSHIPS

In the Notice of Proposed Rule Making in Docket No. 18892, 25 FCC 2d 50 (1970), we stated that we favored federal regulation of some aspects of cable television and local -- i.e., state or municipal -- regulation of others under a federal prescription of standards. The comments generally agreed that certain areas of cable regulation can best be dealt with at the federal level because states and municipalities lack the necessary resources for effective regulation. We are also persuaded that, absent affirmative Commission action, state and local bodies would be free in other areas of regulation to style cable growth in a manner at odds with the Commission's nationwide regulatory plan. Accordingly, it is our view that federal regulation is clearly indicated in such areas as signals carried, technical standards, program origination, cross-ownership of cable and other media, and equal employment opportunities. And federal regulation of matters directly affecting programs and signals carried is, of course, entirely consistent with United States v. Southwestern Cable Co., 392 U.S. 157 (1968).

The comments generally advanced persuasive arguments against federal licensing. We agree with the contention that federal licensing at this time would place an unmanageable administrative burden on the Commission. Accordingly, we will not now take that step. Furthermore, local governments are markedly involved, since cable must make use of streets and alleys, and local authorities are able to bring to bear a special expertness on such matters, for example, as how best to parcel a large urban area into cable districts. Local authorities are also in a more effective position to follow up on service complaints.

Accordingly, we will leave a number of areas to local regulation, but will take steps to insure efficient nationwide communications service with adequate facilities at reasonable charges. And we will expect to accomplish this by specifying minimum requirements in the local franchising process.

Basic Qualifications -- Choice of Franchisee and Service Area

We will require that the cable system, before commencing operation with broadcast signals, file a copy of its franchise with us and a certificate showing that the franchising authority in a public proceeding has considered the system operator's legal and financial qualifications, and the adequacy and feasibility of his construction arrangements. n2 We are authorizing the use of broadcast signals in order to obtain new benefits for the public, and no such benefits will be forthcoming if the cable applicant is legally, financially, or technically unable to operate. The character of the cable applicant takes on added significance because he may well be engaged in program origination. Nor does this consideration rest on the validity of the Commission's First Report and Order in Docket 18397 -- a matter now before the Courts -- since in any event the cable system is free to originate, and may well do so in order to promote its growth. Some governmental body must ensure character consistent with the public interest and, in the circumstances, but body will be the local entity authorized to do so by state law.

n2 While we are not at this time instituting rules concerning the franchise selection process, we do strongly suggest that the local franchising authority require a public invitation to all who might want to compete for a local franchise, that all bids be placed on public file and reasonable public notice be given, that a public hearing be held to afford all interested persons an opportunity to testify on the merits or demerits of the various applicants, and finally that the franchising authority release a public report setting forth the basis for its action.

While local authorities must examine the above aspects of eligibility and certain others to be discussed, we do not believe it is appropriate to set out comparative criteria to govern the selection process. This is a new realm and we think it best to allow for a variety of experiments and approaches. We do intend to collect and publish data on the various methods used, so that we may review the matter and also be of assistance to the many franchising entities involved.

The local entity must also make the determination whether to divide up the city, county, or state, and, if so, how. We would only stress the obvious -- that it must make provision that the franchisee extend service equitably to all parts of the franchise area. A plan that would bring cable only to the more affluent parts of a city, ignoring the poorer areas even though dense in population, simply could not stand. No broadcast signals would be made available in such circumstances. We emphasize however that, barring such inequity, we do not intend to supervise the manner of dividing up political subdivisions. There are obviously a variety of reasonable ways to proceed here, and the matter is one uniquely for the judgment of the local entity.

Construction Timetable -- Franchise Duration

We will require that the local franchising authority set reasonable deadlines for construction and operation of systems to ensure that franchises do not lie fallow or become the object of trafficking. Specifically, we will provide that the franchise require that the cable system have an operable head-end within one year after this Commission grants a certificate of compliance, and that thereafter it meet substantial percentage figures for extension of energized trunk cable, such figures to be set by the local authority. This represents neither an innovation nor a hardship for local franchising authorities, since many already impose similar requirements. We believe, in general, that the cable franchisee should be required to extend energized trunk cable to 20 percent of the franchise area per year, for its first five years of operation, with the extension to begin within one year after the Commission issues its certificate of compliance. But we will not lay this down as an inflexible rule, recognizing that particular local circumstances may vary.

We will require the franchising authority to place a reasonable limit on the duration of the franchise, and its renewal. This obviously requires striking a balance between a sufficient time scale to attract venture capital and, in effect, a franchise in perpetuity. The latter is unsatisfactory to state and local regulatory authorities and would be an invitation to obsolescence, because of cable's explosive technological development. We think that, generally speaking, a franchise should not exceed 15 years, with a reasonable renewal period. The economics of cable operation would appear to allow for amortization of initial investment over a 15-year period, and efficient operators can reasonably expect their franchises to be renewed. In short, while we will set out the 15-year period as a general guide, we recognize that the local franchising authority may decide to vary the period based on particular circumstances. For example, an applicant proposing to wire inner-city areas free or at reduced rates might be given a longer franchise.

Subscriber Rates -- Service Standards

We will require that the franchising or other governmental authority specify or approve initial subscriber rates for services furnished by the franchisee; that a program be instituted for the review and, as necessary, adjustment of such rates; and that reasonable advance notice be given to the public of all proposed rate changes with the right of the affected members of the public to be heard. The appropriate standard here is the maintenance of rates that are fair to the system and to the subscribing public -- a matter that once again will turn on the facts of each particular case and, in the next years, the accumulated experience of other communities with cable. Finally, while we will specify general technical standards, the franchising authority must have a program to ensure quality of service and to review service complaints. Once again our provisions will be designed to impose a general standard of franchisee responsibility while leaving specific substantive decisions to local authorities.

Franchise Fees

We proposed a two percent limitation on local franchise fees in our Notice of Proposed Rule Making in Docket 18892, supra. While we have decided against adoption of this specific limitation, we believe that some provision to ensure reasonableness in this respect is necessary for a variety of reasons.

First, many local authorities have -- understandably but unfortunately -- exacted high franchise fees for revenue-raising rather than regulatory purposes. Though most fees seem to run about five percent, some have been known to run as high as 36 percent. The ultimate effect of any revenue-raising fee is to levy an indirect and regressive tax on cable subscribers, and our further concern is that the combination of high local franchise fees and cable's other financial responsibilities may so burden the industry that it will be unable to carry out its part of an integrated national communications program.

We must also take into account the likelihood that cable systems may, in the near future, be subject to Congressionally-imposed copyright fees. We are, of course, aware that cable has in many places achieved public acceptance, but there are limits on the number of different directions in which cable revenues can be stretched. As we indicated in our above Notice, our goal is to strike a balance that permits the achievement of federal goals and at the same time allows adequate revenues for the maintenance of an appropriate local regulatory program.

This Commission imposes a fee to finance its own cable regulatory program. The regulatory program to be carried out by the local entity is different in scope and indeed may differ from jurisdiction to jurisdiction. While we think that generally franchise fees should run between three and five percent as a maximum, we believe it more appropriate to specify a general standard to be implemented within the specific local context. Thus, we will simply require that the franchise fee must be a reasonable one that does not interfere with the effectuation of federal goals. But when the fee is in excess of three percent (including all forms of consideration, such as initial lump sum payments), the franchising authority shall submit a showing of the appropriateness of the fee specified, particularly in light of the planned local regulatory program. The franchisee shall also set forth a showing that the fee specified does not interfere with achievement of his responsibilities as defined in relevant Commission rules and documents. As we gain more experience in this area, we will doubtless take further action and may well issue a further notice of inquiry or proposed rule making when our cable rules go into effect.

Grandfathering

We will apply generous grandfathering provisions. An existing cable system will be required to certify that its franchise includes the above provisions within five years of adoption of our rules of upon renewal of its franchise, whichever occurs first. This delay should relieve both cable systems and local authorities of whatever minor dislocations the new rules might cause.

Advisory Committee

The provisions of this Section of the document represent th bare minimum needed to get cable under way, and some matters are best left to ad hoc consideration. We believe that a special committee composed of Commission representatives, and representatives of state and municipal entities, the cable industry, and of public interest groups would be most helpful, and we propose in the near future to create such a committee. This committee, through its Commission representative, can then report to and advise the full Commission as to the next appropriate steps in this important area. For, as we gain experience and data, we must be alert to take such further action as will promote the public interest. We intend also to make available to local entities the information garnered through proceedings of the Commission and the proposed committee, so that such local entities may be better informed as to pertinent approaches and data in this dynamic field.

V. FURTHER QUESTIONS

Despite the length of this document, you will appreciate that it does not contain as full a treatment of every aspect of cable development as will be included in our Find Report and Order. But it does set out the essence of our proposals, and our rules will follow directly from them.

We also want to make clear that there is much unfinished business in the cable field. For example, there is the outstanding proceeding dealing with cross and multiple ownership problems. Clearly, this federal matter must be resolved without undue delay so that threshold eligibility questions are laid to rest. To cite just one instance, strong arguments have been advanced that local ETV station operators should not be barred from any and all ownership participation in cable systems in their communities; and, as a matter of equity, these arguments should be dealt with before franchises are awarded in the markets that we are now proposing to open for cable penetration. We will therefore split out matters such as this for resolution before our new rules become effective.

This document itself refers to several new proceedings to deal further with a number of difficult problems. In the access area, for example, there will be a proceeding to consider the share of new regulations (if any) on the access and leased channels; and this will reach to the important issue of preventing abuses, particularly with respect to rates, that might thwart the fullest possible provision and use of such channels.

In the federal-state/local area, there will be a proceeding to consider various aspects of matters treated here only in a preliminary way. This will include the difficult issue of delineating which services are interested in nature and which intrastate and, even if the former, whether federal regulation should be exclusive.

Possible problems concerning carriage of radio station signals have not been treated here although some of the same issues raised by carriage of television signals may also be raised by radio signal carriage. Further inquiry and proceedings in this area will be required.

We have also been asked by the cable television industry to take action to encourage the manufacture and sale of television receivers specifically designed for use with high capacity cable systems, eliminating the need for set-top converters, improving reception of adjacent channels, and reducing direct pick-up interference. Inquiry in this area is clearly indicated and it will be an item on the agenda of the industry task force we propose to establish to assist us in formulating further technical standards.

Additionally, it may become necessary in the future to adopt a uniform set of cable accounting standards to aid in the implementation of effective regulatory programs. We will, therefore, issue a Notice of Proposed Rule Making to explore the need for and possible form of such standards. At this comparatively early point, however, the NCTA's Accounting Manual for Cable Television can serve as a useful focal point for discussion of this issue.

Our continued attention will also be required to ascertain whether existing rules to prevent the siphoning of programming from over-the-air broadcasting are effective or whether further regulations are indicated. We have referred to this at greater length in our discussion of sports events under "Television Broadcast Signal Carriage," above. We intend to keep a close watch on this whole question and will be receptive, as we indicated earlier, to Congressional guidance in this vital area of national concern.

Underlying all these issues is the fundamental fact that cable is not static but rather is an emerging technology, with a host of possible services still to come. It follows that our regulatory pattern must evolve as cable evolves -- and no one can say, at this stage, what the precise direction will be. Many of those who testified at our hearings urged that cable's tendency will and indeed should be more and more toward a common carrier concept. And that, of course, would have profound regulatory consequences for which the Commission and the Congress must be prepared.

This document signifies the amount and the substance of regulation that we believe is essential now for the orderly development of the cable industry. But its ability to survive and prosper will ultimately, in our view, be tested in the market place. We have, in short, proposed first steps -- long overdue. We welcome your participation in this most important matter and, in effect, a continuing partnership. Our objective and yours is surely the same -- to bring to the American people an effective and a diverse communications system, in accordance with the mandate of the Communications Act of 1934.

This letter was adopted by the Commission on August 3, 1971, Commissioners Burch (Chairman), Bartley, R. E. Lee, Johnson, H. R. Lee, and Houser voting for adoption of the document, and Commissioner Wells dissenting (separate statement attached hereto).

BY DIRECTION OF THE COMMISSION, DEAN BURCH, Chairman.

APPENDIX A

THE MAJOR TELEVISION MARKETS AND THEIR DESIGNATED COMMUNITIES

(Numbers in Parentheses Indicate Market Ranking)

FIRST FIFTY MAJOR MARKETS

Albany-Schenectady-Troy, N.Y. (34)	Kansas City, Mo. (22)
Atlanta, Ga. (18)	Los Angeles-San Bernardino-corona-
Baltimore, Md. (14)	Fontana, Cal. (2)
Birmingham, Ala. (40)	Louisville, Ky. (38)
Boston-Cambridge-Worcester, Mass. (6)	Memphis, Tenn. (26)
Boston-Cambridge-Worcester, Mass. (6)	Miami, Fla. (21)
Buffalo, N.Y. (24)	Milwaukee, Wis. (23)
Charleston-Huntington, W. Va. (36)	Minneapolis-St. Paul, Minn.
	(13)
Charlotte, N.C. (42)	Nashville, Tenn. (30)
Chicago, Ill. (3)	New Orleans, La. (31)
Cincinnati, Ohio-Newport, Ky. (17)	New York,
	N.Y.ILinden-Paterson, N.J.(1)
Cleveland-Lorain-Akron, Ohio (8)	N.Y.ILinden-Paterson, N.J.(1)
Columbus, Ohio (27)	Norfolk-Newport News-Portsmouth-
Dallas-Fort Worth, Tex. (12)	Hampton, Va. (44)
Dayton-Kettering, Ohio (41)	Oklahoma City, Okla. (39)
Denver, Colo. (32)	Philadelphia, Pa.-Burlington, N.J. (4)
Detroit, Mich. (5)	Phoenix-Mesa, Ariz. (43)
Greensboro-High Point-Winston-	Pittsburgh, Pa. (10)
Salem, N.C. (47)	Portland, Ore. (29)
Greenville-Spartanburg-Anderson,	Providence, R.I.-New Bedford, Mass. (33)

.C.-Asheville, N.C. (46)
Hartford-New Haven-New Britain-	Sacramento-Stockton-Modesto,
Cal.
Waterbury, Conn. (19)	(25)
Houston, Tex. (15)	Salt Lake City, Utah (49)
Indianapolis-Bloomington, Ind. (16)	San Antonio, Tex. (45)
Kalamazoo-Grand Rapids-Muskegon-	San Francisco-Oakland-San Jose,
	Cal.
Battle Creek, Mich. (37)	(7)
Seattle-Tacoma, Wash. (20)	Washington, D.C. (9)
St. Louis, Mo. (11)	Wichita-Hutchinson, Kan. (48)
	Wichita-Hutchinson, Kan. (48)
Syracuse, N.Y. (35)	Wilkes Barre-Scranton, Pa. (50)
	Wilkes Barre-Scranton, Pa. (50)
Tampa-St. Petersburg, Fla. (28)

SECOND FIFTY MAJOR MARKETS

Albuquerque, N. Mex (81)	Knoxville, Tenn. (71)
Amarillo, Tex. (95)	Lansing-Onondaga, Mich. (92)
Baton Rouge, La. (87)	Lincoln-Hastings-Kearney, Neb. (91)
	Lincoln-Hastings-Kearney, Neb. (91)
Beaumont-Pt. Arthur, Tex. (88)	Little Rock, Ark. (51)
Cape Girardeau, Mo.-Paducah, Ky.-	Madison, Wis. (93)
Harrisburg, Ill. (69)	Mobile, Ala.-Pensacola, Fla.(60)
Cedar Rapids-Waterloo, Iowa (66)	Monroe, La.-El Dorado, Ark.(99)
	Monroe, La.-El Dorado, Ark.(99)
Chattanooga, Tenn. (78)	Omaha, Neb. (54)
Columbia, S.C. (100)	Orlando-Daytona Beach, Fla. (56)
Columbus, Ga. (94)	Peoria, Ill. (83)
Davenport, Iowa-Rock Island-Moline, Ill. (61)	Portland-Poland Spring, Me. (75)
Davenport, Iowa-Rock Island-Moline, Ill. (61)	Raleigh-Durham, N.C. (73)
Des Moines-Ames, Iowa (67)	Richmond-Petersburg, Va. (64)
Duluth-Superior, Minn. (89)	Roanoke-Lynchburg, Va. (70)
Evansville, Ind. (86)	Rochester, N.Y. (57)
Fargo-Grand Forks-Valley City, N.D. (98)	Rockford-Freeport, Ill. (97)
Fargo-Grand Forks-Valley City, N.D. (98)	San Diego, Cal. (52)
Flint-Bay City-Saginaw, Mich. (62)	Sioux Falls-Mitchell, S.D.(85)
	Sioux Falls-Mitchell, S.D.(85)
Fort Wayne-Roanoke, Inc. (82)	South Bend-Elkhart, Ind. (80)
Fresno, Cal. (72)	Spokane, Wash. (76)
Green Bay, Wis. (63)	Springfield-Decatur-Champaign-
Greenville-Washington-New Bern, N.C. (84)	Jacksonville, Ill. (65)
Greenville-Washington-New Bern, N.C. (84)	Texarkana, Tex.-Shreveport, La. (59)
Harrisburg-Lebanon-Lancaster-York, Pa. (58)	Teledo, Ohio (53)
Harrisburg-Lebanon-Lancaster-York, Pa. (58)	Tulsa, Okla. (55)
Huntsville-Decature, Ala. (96)	Wheeling, W. Va.-Steubenville, Ohio (90)

Jackson, Miss. (77)
Jacksonville, Fla. (68)	Youngstown, Ohio (79)
Johnstown-Altoona, Pa. (74)

APPENDIX B

CABLE SIGNAL CARRIAGE IN MAJOR MARKETS

The attached chart depicts the number of signals that cable would be permitted to carry under our new rules in the designated cities of the top 100 television markets. For each market: Column I shows stations authorized in the market; column II lists signals meeting the viewing test; column III shows distant signals permitted to be added; and column IV totals the above three columns and gives the total number of signals available under our rules in each of the designated cities.

Additionally, the "Overlapping Market Comparison" in Column V shows how many signals from out of the market would be available under our existing rule which (other than in special footnote 69 situations) requires the carriage of all Grade B signals and compares it with the comparable number that will be available under our new viewing test, restricting carriage of out of market signals to those that are significantly viewed in the home market (the "Viewing Test" entries in Column V are the same as the entries in Column H). In all cases, noncommercial educational stations and foreign language stations are not included.

In calculating signals available under the viewing test (Columns II and V), audience survey information has been used which includes data on cable subscriber viewing in the home county. Since cable viewing of out of market signals may conceivably distort off-the-air viewing patterns, we have undertaken a special survey to be conducted by ARB of the counties where there is substantial cable penetration (more than 10%). Viewing test results in Columns II and V are, therefore, subject to adjustment when the survey results become available. In overlapping market situations where out of market network stations meet the significant viewing test, those stations would, of course, be required to be deleted when presenting programs which duplicate the programming of the home market network stations.

	I	II	III	IV	V
								Overlapping market
								comparison new
								viewing test vs.
Market	Market		Viewing test		Additional			existing rule
	signals		signals		signals
						Total	Viewing	Out-of-
	Net	inde-	Net	Inde-	Net	Inde-		test	market
		pendent		pendent		pendent			grade B's
1. New York, N.Y.,
Linden-Paterson,
N.J.	3	5				2	10		5
2. Los Angeles-San
Bernardino-Corona-
Fontana, Calif	3	8				2	13
3. Chicago, Ill	3	4				2	9
4. Philadelphia, Pa.,
Burlington, N.J.	3	3				2	8		3
5. Detroit, Mich. n1	3	3				2	8		4
6. Boston-Cambridge-	3	3				2	8		4
Worcester, Mass	3	3				2	8		7
7. San Francisco-
Oakland-San Jose,	4	4				2	10		5
Calif	4	4				2	10		5
8. Cleveland-Loraine-	4	2				2	8
Akron, Ohio	4	2				2	8		3
9. Washington, D.C.	3	3				2	8		4
10. Pittsburgh, Pa	4	1				2	7		3
11. St. Louis, Mo	3	2				2	7
12. Dallas-Fort Worth,
Tex	3	2				2	7
13. Minnespolis-St. Paul,
Minn	3	1				2	6
14. Baltimore, Md	3	2		1		2	8	1	6
15. Houston, Tex	3	1				2	6
16. Indianapolis-	3	2				2	7
Bloomington, Ind	3	2	2			2	9	2	2
17. Cincinnati, Ohio-
Newpcrt, Ky	3	1				2	6		5
18. Atlanta, Ga	3	2				2	7
19. Hartford-New Haven-
New Britian-	6	1				2	9		3
Waterbury, Conn n2	4	1	2	3		2	12	5	4
	6	1				2	9		2
	4	1	2	3		2	12	5	2
20. Seattle-Tacoma, Wash	3	2				2	7		1
	3	2				2	7
21. Miami, Fla	3	2				2	7		2
22. Kansas City, Mo	3	1				2	6		1
23. Milwaukee, Wis	3	1				2	6		1
24. Buffalo, N.Y	3	1		1		2	7	1	2
25. Sacramento-Stockton-	3	2				2	7		4
Modesto, Calif. n3	3	2		1		2	8	1	8
	3	2		1		2	8	1	6
26. Memphis, Tenn	3					3	6
27. Columbus, Ohio	3					3	6
28. Tampa-St. Petersburg,	3	1				2	6
Fla
29. Portland, Oreg	3	1				2	6		1
30. Nashville, Tenn	3	1				2	6
31. New Orleans, La	3	1				2	6		2
32. Denver, Colo	3	1				2	6		2
33. Providence, R.I.-New
Bedford, Mass n2	3		3			2	8	3	7
	3		3	1		2	9	4	6
34. Albany-Schenectady-	3					3	6		1
Troy-N.Y	3					3	6		1
	3					3	6
35. Syracuse, N.Y	3					3	6		3
36. Charleston-Hunting-
ton, W. Va	3					3	6
3					3	6
37. Kalamazoo-Grand	4	1				2	7		6
Rapids-Muskegon-	4	1				2	7		1
Battle Creek, Mich	4	1				2	7
	5	1	1	1		2	10	2	3
38. Louisville, Ky	3	1				2	6		1
39. Oklahoma City, Okla	3					3	6		1
40. Birmingham, Ala	3					3	6
41. Dayton-Kettering,
Ohio	3	1	3			2	9	3	4
42. Charlotte, N.C	3	1				2	6		5
43. Phoenix-Mesa, Ariz	3	2				2	7
44. Norfolk-Newport	3	1				2	6		1
News-Portsmouth-	3	1				2	6		3
Hampton, Va	3	1				2	6		1
	3	1				2	6		1
45. San Antonio, Tex.	3	1				2	6
46. Greenville-
Spartanburg-	5	1				2	8
Anderson, S.C.,	5	1	1			2	9	1	1
Asheville, N.C	5	1				2	8
	5	1				2	8		3
47. Greensboro-High
Point-Winston-	3					3	6		4
Salem, N.C	3		2	1		3	9	3	3
	3					3	6		5
48. Wichita-Hutchinson,	3					3	6
Kans	3					3	6
49. Salt Lake City, Utah	3					3	6
50. Wilkes-Barre-Scranton,	3					3	6		1
Pa	3					3	6		2
51. Little Rock, Ark	3					2	5
52. San Diego, Calif. n1 n2	3	1	1	4		2	11	5	6
53. Toledo, Ohio n2	3		3	2		2	10	5	5
54. Omaha, Nebr	3					2	5		1
55. Tulsa, Okla	3					2	5
56. Orlando-Daytona
Beach, Fla	3					2	5
57. Rochester, N.Y	3					2	5		4
58. Harrisburg-Lebanon-Lancaster-York, Pa.	2			1		2	8	1	1
	5		2	1		2	10	3	5
	5		3	2		2	12	5	9
	5		3	1		2	11	4	3
59. Texarbana, Tex.-
Shreveport, La. n3 n2	3	1				2	6
60. Mobile, Ala.-Pensa-	3					2	5		1
cola, Fla.	3					2	5
61. Davenport, Iowa-Rock
Island-Moline, Ill	3					2	5
62. Flint-Bay City-Saginaw, Mich n2	3		4	2		2	11	6	8
	3					2	5		1
	3					2	5		1
63. Green Bay, Wis	3					2	5		1
64. Richmond-Petersburg,	3					2	5
Va	3					2	5		4
65. Springfield-Decatur-
Champaign-Jackson-	5					2	7
ville, Ill. n2	5		3	1		2	11		1
66. Cedar Rapids-Water-	3					2	5
loo, Iowa	3					2	5		1
67. Des Moines-Ames,
Iowa	3					2	5
68. Jacksonville, Fla	3					2	5
69. Cape Girardeau, Mo.-Paducah, Ky.-Harrisburg, Ill. n2
69. Cape Girardeau, Mo.-Paducah, Ky.-Harrisburg, Ill. n2	3	1				2	6
70. Roanoke-Lynchburg, Va	4					2	6		2
70. Roanoke-Lynchburg, Va	4					2	6
71. Knoxville, Tenn	3					2	5		1
72. Fresno, Calif. n2	3	1				2	6
73. Raleigh-Durham,N.C. n2	2	1			2	2	7		4
73. Raleigh-Durham,N.C. n2	2	1	1		1	2	7	1	2
74. Johnstown-Altoona, Pa.	3		2			2	7	2	4
74. Johnstown-Altoona, Pa.	3		1			2	6	1
75. Portland-Poland Springs, Maine
75. Portland-Poland Springs, Maine	3					2	5
76. Spokane, Wash	3					2	5
77. Jackson, Miss	3					2	5		1
78. Chattanooga, Tenn	3					2	5		2
79. Youngstown, Ohio	3					2	5		11
80. South Bend-Elkhart,
Ind	3			1		2	6	1
	3					2	5		1
81. Albuquerque, N. Mex	3					2	5
82. Fort Wayne-Roanoke,
Ind	3					2	5		1
83. Peoria, Ill	3					2	5		3
84. Greenville-Washington-	3					2	5		2
New Bern, N.C	3					2	5
New Bern, N.C	3					2	5
85. Sioux Falls-Mitchell, S.D	3		1			2	6	1	2
85. Sioux Falls-Mitchell, S.D	3					2	5
86. Evansville, Ind.	3					2	5
87. Baton Rouge, La. n2	2				3	2	7		3
88. Beaumont-Port Arthur, Tex
88. Beaumont-Port Arthur, Tex	3					2	5		1
89. Duluth-Superior, Minn
89. Duluth-Superior, Minn	3					2	5
90. Wheeling, W. Va.-	2		3			2	7	3	4
Steubenville, Ohio	2		3	1		2	8	4	4
91. Lincoln-Hastings- Kearney, Nebr. n3 n2	3	1	3			2	9	3	4
	3	1				2	6
	3	1				2	6
92. Lansing-Onondaga, Mich	2		3			2	7	3	8
92. Lansing-Onondaga, Mich	3		3			2	8	3	9
93. Madison, Wis	3					2	5		1
94. Columbus, Ga	3					2	5
95. Amarillo, Tex	3					2	5
96. Huntsville-Decatur, Ala	3					2	5
	3		2			2	7	2
	3		2			2	7	2
97.Rockford-Freeport, Ill	3					2	5		5
97.Rockford-Freeport, Ill	3					2	5		5
98. Fargo-Grand Forks-
Valley City, N.D.	3					2	5
99. Monroe, La.-El Do-rado, Ark. n2	2	1			1	2	6
99. Monroe, La.-El Do-rado, Ark. n2	2	1	4			2	9	4	2
100. Columbia, S.C.	3					2	5

n1 Market includes a foreign station.

n2 Indicates certain markets that do not follow the usual pattern and where special treatment might, on further consideration, be appropriate. These include markets in which a great number of overlapping market signals meet the significant viewing test and markets below the top 50 in which an independent television station already exists.

n3 Indicates there is a nonoperational station in the market with a construction permit less than 18 months old.

APENDIX D

CONSENSUS AGREEMENT

Local Signals

Local Signals defined as proposed by the FCC, except that the significant viewing standard to be applied to "out-of-market" independent stations in overlapping market situations would be a viewing hour share of at least 2% and a net weekly circulation of at least 5%.

Distant Signals

No change from what the FCC has proposed.

Exclusivity for Nonnetwork Programming (against distant signals only)

A series shall be treated as a unit for all exclusivity purposes.

The burden will be upon the copyright owner or upon the broadcaster to notify cable systems of the right to protection in these circumstances.

A. Markets 1-50. A 12-month pre-sale period running from the date when a program in syndication is first sold any place in the U.S., plus run-of-contract exclusivity where exclusivity is written into the contract between the station and the program supplier (existing contracts will be presumed to be exclusive).

B. Markets 51-100. For syndicated programming which has had no previous non-network broadcast showing in the market, the following contractual exclusivity will be allowed:

(1) For off-network series, commencing with first showing until first run completed, but no longer than one year.

(2) For first-run syndicated series, commencing with first showing and for two years thereafter.

(3) For feature films and first-run, non-series syndicated programs, commencing with availability date and for two years thereafter.

(4) For other programming, commencing with purchase and until day after first run, but no longer than one year.

Provided, however, that no exclusivity protection would be afforded against a program imported by a cable system during prime time unless the local station is running or will run that program during prime time.

Existing contracts will be presumed to be exclusive. No pre-clearance in these markets.

C. Smaller Markets. No change in the FCC proposals.

Exclusivity for Network Programming

The same-day exclusivity now provided for network programming would be reduced to simultaneous exclusivity (with special relief for time-zone problems) to be provided in all markets.

Leapfrogging

A. For each of the first two signals imported, no restriction on point of origin, except that if it is taken from the top-25 markets it must be from one of the two closest such markets. Whenever a CATV system must black out programming from a distant top-25 market station whose signals it normally carries, it may substitute any distant signals without restriction.

B. For the third signal, the UHF priority, as set forth in the FCC's letter of August 5, 1971, p. 16.

A. All parties would agree to support separate CATV copyright legislation as described below, and to seek its early passage.

B. Liability to copyright, including the obligation to respect valid exclusivity agreements, will be established for all CATV carriage of all radio and television broadcast, signals except carriage by independently owned systems now in existence with fewer than 3500 subscribers. As against distant signals importable under the FCC's initial package, no greater exclusivity may be contracted for than the Commission may allow.

C. Compulsory licenses would be granted for all local signals as defined by the FCC, and additionally for those distant signals defined and authorized under the FCC's initial package and those signals grandfathered when the initial package goes into effect. The FCC would retain the power to authorize additional distant signals for CATV carriage; there would, however, be no compulsory license granted with respect to such signals, nor would the FCC be able to limit the scope of exclusivity agreements as applied to such signals beyond the limits applicable to over-the-air showings.

D. Unless a schedule of fees covering the compulsory licenses or some other payment mechanism can be agreed upon between the copyright owners and the CATV owners in time for inclusion in the new copyright statute, the legislation would simply provide for compulsory arbitration failing private agreement on copyright fees.

E. Broadcasters, as well as copyright owners, would have the right to enforce exclusivity rules through court actions for injunction and monetary relief.

Radio Carriage

When a CATV system carries a signal from an AM or FM radio station licensed to a community beyond a 35-mile radius of the system, it must, on request, carry the signals of all local AM or FM stations, respectively.

Grandfathering

The new requirements as to signals which may be carried are applicable only to new systems. Existing CATV systems are "grandfathered." They can thus freely expand currently offered service throughout their presently franchised areas with one exception: In the top 100 markets, if the system expands beyond discrete areas specified in FCC order (e.g., the San Diego situation), operations in the new portions must comply with the new requirements.

Grandfathering exempts from future obligation to respect copyright exclusivity agreements, but does not exempt from future liability for copyright payments.

APPENDIX E

January 26, 1972.

Hon. JOHN L. McCLELLAN, Chairman, Subcommittee on Patents, Trademarks and Copyrights, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: This letter is directed to an important policy aspect of our present deliberations on a new regulatory program to facilitate the evolution of cable television. That is the matter of copyright legislation, to bring cable into the competitive television programming market in a fair and orderly way -- a matter with which you as Chairman of the Subcommittee on Patents, Trademarks and Copyrights have been so deeply concerned in this and the last Congress.

You will recall that we informed the Congress, in a letter of March 11, 1970 to Chairman Magnuson, of our view that a revised copyright law should establish the pertinent broad framework and leave detailed regulation of cable television signal carriage to this administrative forum. In line with that guiding principle and a statement in our August 5, 1971 Letter of Intent that we would consider altering existing rules to afford effective non-network program protection, we are now shaping a detailed program dealing with such matters as distant signal carriage, the definition of local signals, leapfrogging, and exclusivity (both network and non-network). That program is now approaching final action.

As of course you know, representatives of the three principal industries involved -- cable, broadcasters, and copyright owners -- have reached a consensus agreement that deals with most of the matters mentioned above. On the basis of experience and a massive record accumulated over the past several years, we regard the provisions of the agreement to be reasonable, although we doubtless would not, in its absence, opt in its precise terms for the changes it contemplates in our August 5 proposals. But the nature of consensus is that it must hold together in its entirety or not at all -- and, in my own view, this agreement on balance strongly serves the public interest because of the promise it holds for resolving the basic issue at controversy.

This brings me directly to a key policy consideration where your counsel would be most valuable. That is the effect of the consensus agreement, if incorporated in our rules, on the passage of cable copyright legislation.

The Commission has long believed that the key to cable's future is the resolution of its status vis-a-vis the television programming distribution market. It has held to this view from the time of the First Report (1965) to the present. We remain convinced that cable will not be able to bring its full benefits to the American people unless and until this fundamental issue is fairly laid to rest. An industry with cable's potential simply cannot be built on so critical an area of uncertainty.

It has also been the Commission's view, particularly in light of legislative history, that the enactment of cable copyright legislation requires the consensus of the interested parties. I note that you have often stressed this very point and called for good faith bargaining to achieve such consensus.

Thus, a primary factor in our judgment as to the course of action that would best serve the public interest is the probability that Commission implementation of the consensus agreement will, in fact, facilitate the passage of cable copyright legislation. The parties themselves pledge to work for this result.

Your advice on this issue, Mr. Chairman, would be invaluable to us as we near the end of our deliberations.

With warm personal regards.

Sincerely,

DEAN BURCH, Chairman.

UNITED STATES SENATE, COMMITTEE OF THE JUDICIARY, SUBCOMMITTEE ON PATENTS, TRADE-MARKS, AND COPYRIGHTS, Washington, D.C., January 31, 1972.

Hon. DEAN BURCH, Chairman, Federal Communications Commission, Washington, D.C.

DEAR MR. CHAIRMAN: I have your letter of January 26, 1972, requesting my advice on the effect of the consensus agreement reached by the principal parties involved in the cable television controversy on the passage of legislation for general revision of the copyright law.

I concur in the judgment set forth in your letter that inplementation of the agreement will markedly facilitate passage of such legislation. As I have stated in several reports to the Senate in recent years, the CATV question is the only significant obstacle to final action by the Congress on a copyright bill. I urged the parties to negotiate in good faith to determine if they could reach agreement on both the communications and copyright aspects of the CATV question. I commend the parties for the efforts they have made, and believe that the agreement that has been reached is in the public interest and reflects a reasonable compromise of the positions of the various parties.

The Chief Counsel of the Subcommittee on Patents, Trademarks and Copyrights in a letter of December 15, 1971 has notified all the parties that it is the intention of the Subcommittee to immediately resume active consideration of the copyright legislation upon the implementation of the Commission's new cable rules.

I hope that the foregoing is helpful to the Commission in its disposition of this important matter.

With kindest regards, I am

Sincerely,

JOHN L. McCLELLAN, Chairman.