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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) AMERICAN CABLE COMPANY ) and JAY COPELAND, ) CSR 4206 ) CSR 4198-P Complainants, ) v. ) ) TELECABLE OF COLUMBUS, INC., ) ) Defendant ) ) Geographic Rate Uniformity and ) Program Access Complaints pursuant to) 47 C.F.R. 76.984 and 76.1001) MEMORANDUM OPINION AND ORDER Adopted: August 27, 1996 Released: August 29, 1996 By the Chief, Cable Services Bureau: INTRODUCTION 1. American Cable Company ("American Cable"), a cable operator in Columbus, Georgia, and Jay Copeland, a subscriber of TeleCable of Columbus, Inc. (jointly, "Complainants"), filed a joint complaint against TeleCable of Columbus, Inc. ("TeleCable") alleging violations of both the geographic rate uniformity requirement and the program access provisions of the Communications Act of 1934 ("Communications Act"), as amended,  623(d) and  628(b), 47 U.S.C.  543(d) and  548(b), and Sections 76.984 and 76.1001 of the Commission's rules. Pursuant to a request by the staff of the Cable Services Bureau, Complainants separated their allegations into two complaints: the "Rate Complaint" and the "Program Access Complaint." Each complaint, in turn, generated an extensive series of pleadings. In this Order, we resolve both the Rate Complaint and the Program Access Complaint. GENERAL BACKGROUND 2. The Rate Complaint alleges that TeleCable violated Section 623(d) of the Communications Act and Section 76.984 of the Commission's rules which require that cable operators maintain a uniform rate structure throughout the franchise area. Specifically, Complainants charge that TeleCable's marketing of a discount program entitled the "Three Year Club" between April 1, 1993 and June 11, 1993 to selected neighborhoods in TeleCable's service area violated the geographic rate uniformity requirement. The Three Year Club provided subscribers with a discounted rate in exchange for their commitment to take cable service from TeleCable for a three year period. Subscribers who joined the Three Year Club but subsequently terminated their service or switched to another cable company prior to the end of the three year term were required to pay TeleCable an amount equal to the discounts they had received prior to termination of their service. 3. Complainants contend that in early 1993, American Cable decided to expand its cable service into those portions of Columbus, Georgia served by TeleCable. Complainants allege that in order to curtail American Cable's expansion, TeleCable undercut American Cable's rate through the marketing of its Three Year Club in American Cable's planned expansion area. Complainants argue that TeleCable violated the geographic rate uniformity requirement by targeting the discount plan to subscribers in American Cable's expansion area rather than promoting the three year rate discount plan universally throughout the Columbus franchise area. Complainant Copeland, a subscriber to TeleCable, alleges that he lived outside American Cable's service area and planned expansion area and was never offered the Three Year Club discount. TeleCable acknowledges that the Three Year Club was directly marketed to only certain subscribers. TeleCable asserts, however, that the discount plan was available to all persons residing in TeleCable's service area and that any person who requested the plan received it. TeleCable maintains that the Three Year Club was developed in an effort to combat the high rate of churn, or subscriber termination and subsequent reconnection, in Columbus, Georgia. TeleCable explains that churn generates numerous transactional and operating expenses and costs for cable operators and that TeleCable sought to reduce churn and increase subscriber retention through a long-term, contractual discount. 4. At the time that Complainants brought their action, prior to the enactment of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (the "1996 Act"), Section 623(d) of the Communications Act provided, in full, that "[a] cable operator shall have a rate structure, for the provision of cable service, that is uniform throughout the geographic area in which cable service is provided over its cable system." Section 76.984 of the Commission's rules was adopted to implement this requirement. The Commission interpreted the statutory requirement and the rule as applying to all cable systems, including those subject to "effective competition" as defined in Section 623(l) of the Communications Act. 5. Since the inception of this case, a number of legal developments relevant to the disposition of the Rate Complaint have transpired. On June 6, 1995, the United States Court of Appeals for the District of Columbia handed down its decision in Time Warner Entertainment Co., L.P., et al. v. F.C.C., 56 F.3d 151 (D.C. Cir. 1995) ("Time Warner"), resolving numerous challenges to the Commission's rate regulations. Specifically, the court determined that "...the Commission's uniform rate structure regulation is contrary to the [Communications Act] insofar as it applies to cable operators subject to effective competition.'" The court concluded that the uniform rate provision is a form of rate regulation and that its application to competitive systems violates Section 623(a)(2), 47 U.S.C.  543(a)(2), which prohibits the Commission and franchising authorities from regulating the rates charged by cable systems subject to effective competition. 6. In accordance with the court's decision in Time Warner, Congress, in Section 301(b)(2) of the 1996 Act, amended Section 623(d) of the Communications Act to provide that the uniform rate structure requirement does not apply to cable operators subject to effective competition. Section 76.984 of the Commission's rules was amended to conform to the new statutory language. 7. On March 11, 1996, in light of the Time Warner decision and the 1996 Act, TeleCable filed a motion to dismiss both the Rate Complaint and those portions of the Program Access Complaint concerning the Three Year Club based on the presence of effective competition in Columbus, Georgia. On April 5, 1996, Cybernet Holding, Inc., successor-in-interest to Complainant American Cable, filed an opposition to TeleCable's motion to dismiss. On April 16, 1996, TeleCable filed a reply and, on June 12, 1996, TeleCable supplemented its motion to dismiss. 8. Based on the record before us, we find, as discussed below, that TeleCable now faces, and did in 1993 when the Three Year Club was first offered, effective competition in Columbus, Georgia. Consequently, Section 623(d)'s directive that cable operators maintain a uniform rate structure throughout a franchise area does not apply to TeleCable in Columbus, Georgia. Pursuant to Section 623(d), as amended by the 1996 Act, and Section 76.984 of the Commission's rules, we therefore dismiss the Rate Complaint without addressing the merits of Complainants' geographic rate uniformity claim. 9. The Program Access Complaint alleges that TeleCable violated Section 628(b) of the Communications Act and Section 76.1001 of the Commission's rules which make it unlawful for a cable operator to engage in unfair methods of competition, the purpose or effect of which is to hinder significantly or to prevent any multichannel video programming distributor from providing satellite cable programming to consumers. In particular, American Cable charges that TeleCable has prevented it from obtaining popular programming by: enforcing TeleCable's exclusive programming agreements with the Sci-Fi Channel ("Sci-Fi") and with ESPN for distribution of the National Football League program package ("ESPN's NFL package"); pressuring Sci-Fi to scramble its signal; and marketing the Three Year Club discount plan. In response to the Program Access Complaint, TeleCable denies that its conduct violated the law and requests the Commission to sanction American Cable for filing a frivolous complaint under Section 76.1003(q) of the Commission's rules. 10. Based on the record before us, we find that American Cable has failed to show that TeleCable's contracts with certain program vendors and TeleCable's actions, if any, taken to enforce those contracts violate Section 628(b) of the Communications Act. We also determine that American Cable has failed to make a prima facie case that TeleCable's Three Year Club is an unfair practice in violation of Section 628(b). Further, we do not find that the Program Access Complaint filed by American Cable is frivolous and we deny TeleCable's request for sanctions. 11. Changes in the law, as noted above, have been accompanied by changes in the ownership of the parties to this case. In 1993, when Complainants brought their action, three cable operators served Columbus, Georgia: TeleCable, American Cable, and TCI Cablevision of Georgia, Inc. ("TCG"). TCG was owned by Tele-Communications, Inc. In January of 1995, Tele-Communications, Inc. acquired TeleCable. At the time of the acquisition, the Federal Communications Commission and the Federal Trade Commission issued orders to Tele- Communications, Inc. to divest either TeleCable or TCG. Pursuant to such orders, Tele- Communications, Inc. sold TCG to Charter Communications, Inc. on May 31, 1996. Thus, TCG and TeleCable are no longer owned by the same parent corporation. In addition, American Cable was purchased by Cybernet Holding, Inc. on September 29, 1995. GEOGRAPHIC RATE UNIFORMITY - EFFECTIVE COMPETITION Background 12. Section 623(d) of the Communications Act requires cable operators to maintain a uniform rate structure in their franchise area. This requirement does not apply to cable operators subject to effective competition as defined in Section 623(l) of the Communications Act. Section 623(d) provides, in relevant part, as follows: (d) UNIFORM RATE STRUCTURE REQUIRED.- A cable operator shall have a rate structure, for the provision of cable service, that is uniform throughout the geographic area in which cable service is provided over its cable system. This subsection does not apply to (1) a cable operator with respect to the provision of cable service over its cable system in any geographic area in which the video programming services offered by the operator in that area are subject to effective competition, or (2) any video programming offered on a per channel or per program basis. Thus, before determining whether a cable operator has violated the uniform rate structure regulation, we must determine whether the operator faces effective competition. If we find that effective competition exists, the cable operator will not be subject to the uniform rate structure requirement, and any complaints alleging violation of such rate regulation will be dismissed. 13. Prior to enactment of the 1996 Act, Section 623(l)(1) of the Communications Act provided that a cable operator is subject to effective competition if any one of the following three tests is met: (A) fewer than 30 percent of the households in the franchise area subscribe to the cable service of a cable system; (B) the franchise area is- (i) served by at least two unaffiliated multichannel video programming distributors each of which offers comparable video programming to at least 50 percent of the households in the franchise area; and (ii) the number of households subscribing to programming services offered by multichannel video programming distributors other than the largest multichannel video programming distributor exceeds 15 percent of the households in the franchise area; or (C) a multichannel video programming distributor operated by the franchising authority for that franchise area offers video programming to at least 50 percent of the households in that franchise area. 14. The three effective competition tests described above were not altered by the 1996 Act. However, Section 301(b)(3) of the 1996 Act created a fourth test (the "Competing LEC Test"), finding that effective competition exists when a local exchange carrier ("LEC") or its affiliate offers video programming services in the franchise area of an unaffiliated cable operator. Thus, effective competition now also exists if: a local exchange carrier or its affiliate (or any multichannel video programming distributor using the facilities of such carrier or its affiliate) offers video programming services directly to subscribers by any means (other than direct-to-home satellite services) in the franchise area of an unaffiliated cable operator which is providing cable service in that franchise area, but only if the video programming services so offered in that area are comparable to the video programming services provided by the unaffiliated cable operator in that area. Summary of the Pleadings 15. TeleCable claims that it presently faces, and did in April through June of 1993, when the Three Year Club was first offered, effective competition in the Columbus, Georgia franchise area. TeleCable states that it meets the definition of effective competition set forth in Section 623(l)(1)(B) of the Communications Act (the "Competing Provider Test") and that it is, therefore, exempt from the uniform rate structure requirement. 16. TeleCable contends that in April through June of 1993, when the Three Year Club was offered, at least two unaffiliated multichannel video programming distributors ("MVPDs") offered comparable programming to at least 50 percent of the households (i.e., occupied housing units) in Columbus, Georgia. TeleCable asserts that it, for one, offered cable television service to over 50 percent of the total households in Columbus. TeleCable states that, according to the 1990 Census, there are 65,018 households in the Columbus franchise area. TeleCable claims that in April through June of 1993, it offered cable television service to (i.e., passed with cable) approximately 41,000 housing units which, according to TeleCable's calculations, equates to 38,781 households, or 59.6 percent of the total households in Columbus, Georgia. In addition, TeleCable claims that television receive-only earth stations ("TVROs"), which offered up to 100 channels of programming, were available to residents throughout Columbus in April of 1993. TeleCable contends, therefore, that it satisfies the first prong of the Competing Provider Test by demonstrating that at least two unaffiliated MVPDs offered comparable programming to more than 50 percent of the residents of Columbus, Georgia between April and June of 1993. 17. TeleCable insists that it satisfies the second prong of the Competing Provider Test for the period April through June of 1993 as well. TeleCable asserts that the number of households receiving multichannel video programming from cable operators, other than the largest MVPD, in this case TeleCable, in April through June of 1993 was greater than 15 percent of the total households in Columbus, Georgia. TeleCable states that two other cable operators, TCG and American Cable, served Columbus in 1993. According to TeleCable, in April through May of 1993, TCG served 12,369 subscribers in Columbus, Georgia and American Cable served approximately 5,000 subscribers, for a total of 17,369 subscribers. Reducing this number by an 8 percent vacancy rate, TeleCable claims that 15,980 households or 24.6 percent of the total households in Columbus, Georgia were served by TCG and American Cable in 1993. TeleCable argues that it satisfies the second prong of the Competing Provider Test by showing that more than 15 percent of the total households in Columbus were served by competing MVPDs. TeleCable concludes, therefore, that it was subject to effective competition in Columbus, Georgia in 1993. 18. TeleCable contends that it also faces effective competition today in Columbus, Georgia under the Competing Provider Test. TeleCable asserts that several unaffiliated MVPDs presently offer comparable programming to at least 50 percent of the households in the Columbus franchise area. TeleCable states that it offers cable television service to (i.e., passes with cable) approximately 43,542 housing units, which TeleCable equates to 40,494 households based on an 8 percent vacancy rate, or 62.3 percent of the total households in Columbus, Georgia. In addition, TeleCable maintains that TVRO services, offering up to 100 channels of programming, are available to all residents in Columbus, Georgia and that DBS providers such as DirectTV, USSB, and Primestar currently offer comparable programming to Columbus residents. 19. Regarding the second prong of the Competing Provider Test, TeleCable asserts that more than 15 percent of the households in the Columbus franchise area subscribe to competing MVPDs. TeleCable states that TCG presently serves 13,970 subscribers in Columbus, Georgia. TeleCable claims that it was unable to obtain current subscriber information with respect to American Cable. TeleCable explains that it calculated American Cable's present penetration using the same number of subscribers that was reported by American Cable for April of 1993-- 5,000. TeleCable states that DBS providers (Primestar, DirectTV, USSB, and General Instrument) presently serve 1,677 subscribers in Columbus, Georgia. Combined, TeleCable asserts, TCG, American Cable, and DBS providers serve 20,647 subscribers in Columbus. According to TeleCable, reducing this number by a vacancy rate of 8 percent, competing MVPDs currently serve 18,995 households or 29.2 percent of the total households (65,018) in Columbus, Georgia. 20. TeleCable asserts that TCG may be included as a competitor under the second prong of the Competing Provider Test despite the fact that TeleCable and TCG were owned by the same parent corporation for a period. TeleCable maintains that at the time the Three Year Club was offered, in April through June of 1993, TeleCable was not in any way affiliated with Tele-Communications Inc. TeleCable argues, therefore, that TCG may be included as a competitor within the 15 percent threshold of the test for that period. TeleCable contends that TCG also qualifies as a competing provider under the second prong of the test for the purpose of demonstrating that TeleCable is subject to effective competition in Columbus today. TeleCable explains that at the time Tele-Communications, Inc. acquired TeleCable, the Federal Communications Commission and Federal Trade Commission issued orders requiring Tele- Communications, Inc. to divest either TeleCable or TCG. Pursuant to such orders, TeleCable claims that TCG and TeleCable retained separate managements and operated independently from, and competitively with, each other. Moreover, argues TeleCable, in a supplement to its motion to dismiss, Charter Communications, Inc. acquired TCG on May 31, 1996. Thus, according to TeleCable, TCG and TeleCable no longer have any common ownership interests. Finally, TeleCable contends that while part (i) of the Competing Provider Test requires MVPDs to be unaffiliated, part (ii) does not require that MVPDs included in the 15 percent threshold be unaffiliated. TeleCable also notes that, according to the Time Warner court, part (i) of the test operates independently from part (ii) of the test. 21. In addition to arguing that it satisfies both prongs of the Competing Provider Test for the period April through June of 1993 and currently, TeleCable claims that it satisfies the Competing LEC test added by the 1996 Act. American Cable was purchased by Cybernet Holding, Inc. of West Point, Georgia in September of 1995. TeleCable asserts that Cybernet Holding, Inc. is affiliated with ITC Holding Company of West Point, Georgia. TeleCable states that Interstate Telephone Company, a local telephone company serving West Point, Georgia, is a subsidiary of ITC Holding Company. TeleCable contends that American Cable is, therefore, affiliated with a local telephone company and offers comparable programming to residents in TeleCable's Columbus franchise area. 22. In its opposition to TeleCable's motion to dismiss, Complainants argue that TeleCable was not subject to effective competition in Columbus, Georgia for the period April through June of 1993. Complainants also contend that TeleCable does not face effective competition in Columbus today. Complainants assert that TeleCable's actual service area, rather than the boundaries of its franchise area, is the area to be examined in determining the existence of effective competition in the context of the uniform rate structure provision. Complainants claim that the uniform rate structure provision in the 1996 Act does not refer to the presence of effective competition in a cable system's "franchise area," as do earlier versions of the bill, but refers to competition in a system's "geographic area." Complainants contend that "Congress expressly rejected application of the effective competition test for the uniform rate structure section of the Act on a franchise-area basis, choosing instead to measure effective competition in the area actually served by the system." Complainants conclude that the operator's service area, rather than its franchise area, must be used to determine the existence of effective competition in the instant case. Complainants further maintain that TeleCable did not, and does not now, face effective competition in its actual service area. 23. Complainants argue that TeleCable's service area is the appropriate area to be used in measuring the presence of effective competition because TeleCable has redefined its franchise area. Complainants contend that although TeleCable's franchise area is the City of Columbus, TeleCable has limited the area in which it provides cable service to those portions of Columbus not served by other cable operators in order to avoid competition. Complainants maintain that TeleCable has adopted an anti-expansion policy in Columbus over the past few years. Complainants assert that, according to an Affidavit filed with TeleCable's March 11, 1996 motion to dismiss, TeleCable passed 41,000 housing units in Columbus during the period from April through June of 1993 and presently passes 43,542 housing units. Complainants claim that when the figure of 43,542 is adjusted to reflect TeleCable's suggested 8 percent vacancy rate, TeleCable presently passes 40,494 households. Complainants compare the 41,000 housing units passed in 1993 to the 40,494 households presently passed and conclude that TeleCable has not increased the area in which it provides cable service in Columbus over the past three years. Complainants also submit a Declaration by the President and Chief Executive Officer of Cybernet Holding, Inc., Clarence Prestwood, stating that "[t]o Cybernet's knowledge, TeleCable has not increased the area in which it provides cable service in Columbus, Georgia in the last five years." 24. In further support of its contention that TeleCable has made an affirmative decision to limit the area in which it provides cable service in Columbus, Complainants point to TeleCable's franchise agreement. TeleCable's franchise agreement with the City of Columbus contains a standard provision requiring TeleCable to extend its cable plant and cable service into any area with a density of 30 homes per mile for aerial cable and 50 homes per mile for buried cable. The line extension policy, however, does not apply to areas already served by other cable operators. The franchise agreement, therefore, requires TeleCable to expand its service area based on density but does not require TeleCable to overbuild. Complainants argue that the overbuild exception to the line extension requirement is evidence that TeleCable has chosen to limit its franchise area to an area where it does not face competition. Complainants contend that in the case of Cecilton CATV, Inc., 10 FCC Rcd 2937 (1995) ("Cecilton"), for the purposes of determining effective competition, the Commission found that a cable operator that had not expanded its service into areas served by competitors had affirmatively decided to limit its franchise area to its actual service area. 25. Complainants insist that TeleCable does not presently face effective competition from TCG. Complainants maintain that the acquisition, in January of 1995, of TeleCable by Tele-Communications, Inc., then parent company of TCG, eliminated any competition between TCG and TeleCable. Complainants note that both the Federal Trade Commission and the Cable Services Bureau ordered Tele-Communications, Inc. to divest one of the two systems based on the anti-competitive effects of the acquisition. Complainants further argue that neither TCG nor TeleCable have chosen to compete with each other by expanding service offerings into the other's service area. Complainants state that, at the time they filed their opposition in April of 1996, the area of overlap between TeleCable and TCG consisted of approximately 2,800 homes passed which is the same number of homes that were passed in the overlap area in 1994. In addition, because TeleCable and TCG were owned by the same parent corporation at the time that Complainants filed their opposition, Complainants contend that the households passed by TCG may not be included in the 15 percent threshold of the Competing Provider Test. Complainants assert that if TCG were not included as a competing provider in the second prong of the test, the number of households subscribing to TeleCable's competitors in Columbus would not exceed 15 percent of subscribers in either the Columbus franchise area or TeleCable's actual service area. Complainants conclude, therefore, that TeleCable does not face effective competition in Columbus, even if effective competition is measured based on the entire Columbus franchise area. 26. In its reply to Complainants' opposition, TeleCable reaffirms that it now faces, and did in 1993, effective competition in its Columbus, Georgia franchise area. TeleCable argues that the franchise area is the correct measure for determining effective competition under the uniform rate structure requirement. TeleCable rejects Complainants' argument that Congress' amendment of the uniform rate structure requirement in the 1996 Act altered the franchise area-based test for effective competition. One basis for Complainants' argument is the use of the term "franchise area" in an earlier version of the 1996 Act and "geographic area" in the final version of the 1996 Act. Complainants contend that the use of the term "geographic area" demonstrates Congress' rejection of a franchise area-based test for effective competition. TeleCable retorts, however, that the earlier version of the 1996 Act which mentions "franchise area" predates Congress' decision to include an exception within the uniform rate provision based on effective competition. TeleCable maintains, therefore, that the word "franchise" only describes the scope of the uniform rate structure requirement and does not address the issue of the effective competition exemption. 27. TeleCable also asserts that, according to the legislative history, the amendment to 623(d) clarified that a cable operator must comply with the uniform rate structure requirement only with respect to "regulated services." TeleCable contends that whether a cable operator's services are regulated depends on whether the cable operator faces effective competition in its "franchise area," as provided by Section 623(l)(1) of the Communications Act, not just its service area. TeleCable further maintains that the 1996 amendment to the uniform rate structure provision essentially codified the court's decision in Time Warner which provided that cable operators facing effective competition, as measured on a franchise area basis, are not subject to the uniform rate structure requirement. 28. TeleCable argues that Complainants have failed to satisfy the Commission's demanding test for proving redefinition of a franchise area. Citing numerous Cable Services Bureau Orders, TeleCable points out that the Commission has repeatedly rejected arguments to redefine an operator's franchise area. TeleCable also relies on Commission language in the First Recon. Order stating that the fact that a franchise area has not yet been filled out by construction of a system would not, in and of itself, be taken as redefining the service area. TeleCable refutes Complainants' claim that TeleCable's service area has not grown in the past few years. TeleCable asserts that Complainants erroneously compared the number of "housing units" passed by TeleCable in 1993 with the number of "households" passed by TeleCable in 1996 to conclude that TeleCable has not increased its service area. TeleCable states that a comparison of the number of "housing units" passed by TeleCable in 1993 (41,000) with the number of "housing units" passed in 1996 (43,542) demonstrates that TeleCable's service area has grown by 2,542 housing units. TeleCable adds that a comparison of "households" passed in 1993 and 1996 would yield similar results. 29. TeleCable contends that the line extension policy provision in its franchise agreement, which gives TeleCable discretion to overbuild its competitors, is not, in and of itself, grounds for redefining TeleCable's franchise area as its service area. First, TeleCable points out that while it is not required to overbuild its cable competitors, TeleCable is, in fact, overbuilt by American Cable and TCG as well as DBS and TVRO operators. Second, TeleCable asserts that Complainants' proposed redefinition would not include areas that TeleCable is required to build out under its franchise agreement, which are not within the overbuilt areas and are not yet served by TeleCable. 30. TeleCable contends that the case cited by Complainants in support of their redefinition request, Cecilton CATV, Inc., is inapposite to the facts of this case. TeleCable explains that in Cecilton the cable operator admitted that it had agreed not to overbuild other cable systems that were within its franchise area as part of a loan agreement. In addition, TeleCable states that the franchising authority in that case presented evidence that the cable operator had not expanded its service area significantly since its franchise was granted in 1989. TeleCable argues that its behavior is distinguishable from that of the operator in Cecilton in that TeleCable states that it has not agreed to restrict its service area and that its system has grown considerably since its franchise was first granted in 1970. 31. TeleCable notes that Complainants do not dispute the claim that TeleCable currently faces effective competition under the Competing LEC Test. TeleCable reasserts that American Cable is affiliated with a LEC and provides comparable service (74 channels of programming, including at least one broadcast and one non-broadcast channel) in TeleCable's service area as well as its franchise area. TeleCable concludes that under either the Competing LEC Test or the Competing Provider Test, TeleCable currently faces effective competition in Columbus, Georgia. Discussion 32. We find that, for the purposes of determining whether effective competition precludes application of the uniform rate structure requirement, the area to be examined is the franchise area served by the cable system. We reject Complainants' argument that effective competition demonstrations must be based on the actual service area of the cable operator in such circumstances. 33. Section 623(a)(2) of the Communications Act prohibits the rate regulation of cable operators subject to effective competition. Section 623(l)(1) defines the term "effective competition" on a franchise area basis. Thus, whether a cable operator is subject to rate regulation depends on whether the cable operator faces effective competition in its franchise area. The court in Time Warner found that the uniform rate structure requirement in 623(d) is a form of rate regulation. The court further determined that application of 623(d) to operators subject to effective competition, as measured on a franchise area basis, violates the prohibition in 623(a)(2) against rate regulation of competitive systems. The 1996 amendment to the uniform rate provision, which excludes competitive systems from the geographic rate uniformity requirement, essentially codifies the court's decision in Time Warner. Contrary to Complainants' contention, the amendment to 623(d) does not create a new scope of territory for which effective competition is measured. Effective competition must be demonstrated on a franchise area basis for the purposes of obtaining exemption from the applicability of any rate regulation, including the uniform rate structure requirement in 623(d). 34. We also reject Complainants' argument that TeleCable has redefined its Columbus, Georgia franchise area. Complainants contend that TeleCable has affirmatively limited the area in which it provides service to those portions of Columbus not served by other cable operators. In support of this contention, Complainants argue that TeleCable has not increased the area in which it provides cable service over the last three years. Complainants base this conclusion on an inappropriate comparison of the number of "housing units" passed by TeleCable in 1993 (41,000) with the number of "households" passed by TeleCable in 1996 (40,494). The term "housing units" refers to both occupied and unoccupied dwelling units in a community, while "households" reflect only occupied units. As TeleCable points out, a comparison of the number of housing units passed in 1993 (41,000) with the number of housing units passed in 1996 (43,542) reveals that TeleCable's service area actually grew during these years. 35. We reject Complainants' claim that TeleCable's franchise agreement with the City of Columbus demonstrates a redefiniton of the franchise area. The line extension policy contains certain build-out requirements based on population density but does not require TeleCable to provide cable services to areas already served by other cable operators. The fact that TeleCable has been given discretion not to overbuild its competitors is not, in and of itself, grounds for redefining TeleCable's franchise area as its service area. In fact, TeleCable's service area overlaps those of both American Cable and TCG. Furthermore, under the franchise agreement, TeleCable is required to expand its cable service into currently unserved areas of Columbus based on population density. As the Commission has stated previously, "[t]he fact that a franchise area has not as yet been filled out by construction of a system would not by itself be taken as redefining the service area." 36. Complainants cite Cecilton CATV, Inc. in support of their contention that TeleCable has redefined its franchise area. In that case, the cable operator acknowledged that, as part of a loan agreement, it had agreed not to overbuild other cable systems that were within its franchise area. The Commission found that, by this action, the operator had made an affirmative decision not to expand into areas within the franchise area that were served by other cable operators. Consequently, the Commission held that the operator had to base its effective competition demonstration on its redefined area rather than its franchise area. The present case is clearly distinguishable from Cecilton. Unlike the operator in Cecilton, there is no evidence that TeleCable has agreed to limit its service area. In light of the foregoing, we find that Complainants have not provided sufficient evidence to support their contention that TeleCable has redefined its franchise area, and we will not address Complainants' argument that TeleCable does not satisfy the Competing Provider Test in the alleged redefined service area. 37. We determine that TCG was properly included within the 15 percent threshold of the Competing Provider Test despite the fact that TCG and TeleCable were owned by the same parent corporation for a time. Between January of 1995 and May of 1996, TeleCable and TCG were owned by Tele-Communications, Inc. But, for the period April through June of 1993, when the Three Year Club was offered, TeleCable and TCG were not in any way affiliated with each other. Thus, for that period, TCG may be included as a competitor to TeleCable under the second prong of the Competing Provider Test. Furthermore, from the time that Tele- Communications, Inc. acquired TeleCable, Tele-Communications, Inc. was subject to an agreement with the Federal Trade Commission, requiring Tele-Communications, Inc. to divest itself of either TCG or TeleCable and to ensure that the companies operated independently until this divestiture could occur. In May of 1996, Charter Communications, Inc. acquired TCG. Therefore, TeleCable and TCG do not currently share any ownership interests. In view of these facts, we believe that, for both the period April through June of 1993 and the present, TeleCable qualifies as a competing provider under the second prong of the test. 38. We now evaluate TeleCable's claim that it currently faces, and did in April through June of 1993, effective competition in its Columbus, Georgia franchise area under the Competing Provider Test. TeleCable asserts that, based on the 1990 Census data, there are 65,018 households (i.e. occupied housing units) in the Columbus franchise area. We referenced the 1990 Census household data and found that there are 65,634 households in the Columbus franchise area. Although the two figures are not materially different, use of the 65,634 household figure in various calculations under the Competing Provider Test yields slightly different results than those arrived at by TeleCable. Under either household figure, however, we find that TeleCable satisfies both prongs of the Competing Provider Test for the periods of April through June of 1993 and the present. Therefore, in the interest of convenience, we accept TeleCable's household figure of 65,018. 39. We note that a number of the calculations made by TeleCable in its effective competition demonstration contain minor mathematical errors. Adjusting for these errors, however, we find that TeleCable faces, and did in 1993, effective competition under the Competing Provider Test. First, in April through June of 1993, TeleCable states that it offered cable service to (i.e., passed with cable) approximately 41,000 housing units, which TeleCable equates to 38,781 households or 59.6 percent of total households in Columbus. Reducing the 41,000 housing units figure by the 8 percent vacancy rate, we find that TeleCable, in fact, served 37,720 households or 58 percent of the total households in Columbus. We accept TeleCable's claim that TVRO services, which offered up to 100 channels of programming, were available to residents throughout Columbus in 1993. Thus, TeleCable has demonstrated that, during the relevant period in 1993, at least two unaffiliated MVPDs offered comparable programming to more than 50 percent of the households in Columbus in satisfaction of the first prong of the Competing Provider Test. 40. With respect to the second prong of the Competing Provider Test, it appears that TCG served 12,780 households in Columbus, Georgia in 1993. Adding the 12,780 figure to the number of households served by American Cable in 1993, 5,000, we find that the combined number of households served by cable operators other than TeleCable in 1993 is 17,780 or 27.3 percent of total households (65,018) in Columbus. TeleCable satisfies the second prong of the Competing Provider Test by showing that competing MVPDs served more than 15 percent of the households in Columbus in 1993. Based on these calculations, we conclude that TeleCable was subject to effective competition in Columbus, Georgia in 1993. 41. Regarding the existence of effective competition today, TeleCable indicates that it passes 43,452 housing units in Columbus. TeleCable states that it offers cable service to (i.e., passes with cable) approximately 40,494 households or 62.3 percent of the total households in Columbus. We find, however, that reducing the 43,542 figure by a vacancy rate of 8 percent results in a household count of 40,059 or 61.6 percent of the total households in Columbus. In addition, TeleCable contends that TVRO services, offering up to 100 channels of programming, and DBS providers are available to residents throughout Columbus. TeleCable thus satisfies the first prong of the Competing Provider Test by demonstrating that at least two unaffiliated MVPDs offer comparable programming to at least 50 percent of the households in the franchise area. Regarding the second prong of the Competing Provider Test, TeleCable shows that in Columbus, Georgia TCG serves 13,970 households, American Cable serves 5,000 households, and DBS providers serve 1,677 households. According to TeleCable, competing MVPDs serve a total of 20,647 households or 31.75 percent of the total households (65,018) in Columbus, Georgia. We conclude, therefore, that TeleCable presently faces effective competition in Columbus, Georgia. Because we find that TeleCable now faces, and did in April through June of 1993, effective competition in its Columbus franchise area, we conclude that the uniform rate structure requirement in Section 623(d) of the Communications Act does not apply to TeleCable in Columbus, Georgia. We, therefore, dismiss Complainants' geographic rate uniformity claim. PROGRAM ACCESS - EXCLUSIVITY Background 42. Section 628 of the Communications Act prohibits unfair or discriminatory practices in the sale of satellite cable and satellite broadcast programming. The purpose of Section 628 is to promote the public interest by increasing competition and diversity in the multichannel video programming market. To achieve this purpose, Congress has enacted specific enforcement provisions. Section 628(b) states: It shall be unlawful for a cable operator, a satellite cable programming vendor in which a cable operator has an attributable interest, or a satellite broadcast programming vendor to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or to prevent any multichannel video programming distributor from providing satellite cable programming or satellite broadcast programming to subscribers or consumers. Section 628(c) directs the Commission to adopt regulations to specify particular conduct that is prohibited by Section 628(b). Section 628(c)(2)(D) states that the regulations promulgated by the Commission shall: (D) with respect to distribution to persons in areas served by a cable operator, prohibit exclusive contracts for satellite cable programming or satellite broadcast programming between a cable operator and a satellite cable programming vendor in which a cable operator has an attributable interest or a satellite broadcast programming vendor in which a cable operator has an attributable interest, unless the Commission determines (in accordance with paragraph (4)) that such contract is in the public interest. Section 628(h) sets forth an exemption to the general prohibition pertaining to preexisting exclusive contracts which provides: (h) EXEMPTIONS FOR PRIOR CONTRACTS.-- (1) IN GENERAL. -- Nothing in this section shall affect any contract that grants exclusive distribution rights to any person with respect to satellite cable programming and that was entered into on or before June 1, 1990, except that the provisions of subsection (c)(2)(C) shall apply for distribution to persons in areas not served by a cable operator. (2) LIMITATION ON RENEWALS.-- A contract that was entered into on or before June 1, 1990, but that is renewed or extended after the date of enactment of this section [October 5, 1992] shall not be exempt under paragraph (1). The Commission's regulations adopt verbatim this section of the Communications Act. Summary of Pleadings 43. American Cable contends that TeleCable has engaged in a pattern of unfair exclusive dealing practices with the purpose or effect of hindering significantly American Cable's ability to provide satellite cable programming to customers in Columbus, Georgia, in violation of Section 628(b). Specifically, American Cable alleges that TeleCable has prevented American Cable from receiving popular programming by enforcing TeleCable's exclusive distribution agreements for ESPN's National Football League programming package ("ESPN's NFL package") and the Sci-Fi Channel ("Sci-Fi") against American Cable. 44. According to TeleCable, it signed exclusive distribution agreements with ESPN on March 7, 1990 and with Sci-Fi on May 4, 1990. On several occasions, American Cable had requested TeleCable to waive its exclusive rights to ESPN's NFL package and to Sci-Fi, but TeleCable refused. American Cable alleges that, based on interviews with potential cable subscribers, a substantial number of subscribers consider ESPN's NFL package essential. American Cable states that a growing number of potential customers insist on having access to Sci-Fi. The inability to offer its subscribers ESPN's NFL package or Sci-Fi, American Cable alleges, has hindered its ability to compete in Columbus, Georgia. American Cable also asserts that while TeleCable's exclusive rights have been used to prevent American Cable from obtaining Sunday Night Football, they have not precluded TCG from showing such programming in the Columbus franchise area, including those areas which overlap TeleCable's service areas. 45. American Cable alleges that TeleCable's conduct with respect to the Sci-Fi Channel constitutes an unfair practice in violation of Section 628(b). American Cable contends that, prior to 1994, the Sci-Fi Channel was unscrambled and American Cable had been carrying it with Sci-Fi's knowledge. American Cable alleges that, in response to pressure from TeleCable that Sci-Fi adhere to its exclusive dealing contract with TeleCable, Sci-Fi began scrambling its signal, thereby preventing American Cable from carrying the channel. American Cable states that it was told by representatives of Sci-Fi that but for TeleCable's insistence on exclusive dealing, American Cable would be able to continue showing Sci-Fi. 46. American Cable also contends that representatives from USA Network, the parent of the Sci-Fi Channel, told American Cable that if it pursued an injunction to prevent Sci-Fi from scrambling its signal, USA would not renew its agreement with American Cable for carriage of the USA Network channel. American Cable states that because the loss of the USA Network channel would cause irreparable injury, it was forced to withdraw its action to prevent scrambling of the Sci-Fi signal. American Cable argues that USA's linkage of the Sci-Fi and USA programming services is circumstantial evidence of direct or indirect pressure from TeleCable. 47. TeleCable contends that its exclusive programming agreements with ESPN and Sci-Fi are expressly permitted under Section 628 of the Communications Act and that its unwillingness to waive its rights under these agreements does not constitute unfair competition. TeleCable states that Congress intended the prohibition on exclusive contracts to apply only to cable operators' agreements with vertically integrated satellite cable television programming vendors. TeleCable asserts, and American Cable acknowledges, that ESPN and Sci-Fi were not "vertically integrated" with cable system operators when the complaint was filed. TeleCable contends, therefore, that it may enforce its programming agreements with ESPN and Sci-Fi consistent with Section 628 of the Communications Act. 48. TeleCable further argues that Congress, in Section 628(h) of the Communications Act, explicitly grandfathered the exclusive programming agreements at issue here. TeleCable contends that Section 628(h) exempts programming agreements that were entered into on or before June 1, 1990, and that apply to areas served by a cable operator, from all restrictions in Section 628, including Section 628(b)'s proscription against unfair methods of competition. TeleCable states that it signed its program carriage agreements with Sci-Fi on May 4, 1990 and with ESPN on March 7, 1990. TeleCable further asserts that these agreements have not expired or been renewed or extended since October 5, 1992. TeleCable concludes, therefore, that the ESPN and Sci-Fi programming agreements are covered by the grandfather clause in Section 628(h) and are immune from challenge under any part of Section 628, including Section 628(b). 49. TeleCable asserts that the fact that both it and TCG had exclusive programming agreements with ESPN for distribution of NFL programming in Columbus does not indicate that the two operators have conspired to prevent American Cable from obtaining access to programming. TeleCable explains that prior to the enactment of the 1992 Cable Act it was not uncommon in the cable television industry for satellite cable television programmers to offer wireline exclusivity to operators as an inducement to become charter affiliates of the network, even if the operators served the same franchise area. According to TeleCable, in cases of overlapping grants of charter exclusivity, such exclusivity is enforceable against third parties but not as between charter affiliates. TeleCable states that it has enforced its exclusive rights to Sci- Fi and ESPN's NFL package against American Cable simply to further its legitimate business interests of providing unique, quality programming and distinguishing its services from its competitors. 50. In reply, American Cable contends that TeleCable's programming agreements with ESPN and Sci-Fi are not exclusive dealing contracts because they are not exclusive against TCG, the largest competitor in the Columbus franchise area. American Cable asserts that TeleCable's contracts lack the pro-competitive benefits of genuine exclusive dealing contracts but, at the same time, prevent the entry of competitors into the market. American Cable states, for instance, that one pro-competitive benefit of an exclusive contract is that it maximizes the program's value and avoids overexposure. American Cable asserts, however, that no such pro-competitive benefit exists in this situation because the two largest operators in Columbus, TeleCable and TCG, show the same program and are free to do so anywhere in Columbus. American Cable states that despite TeleCable's claim that its purpose in enforcing its contracts is to distinguish itself from competitors, the contracts do not distinguish TeleCable from TCG, TeleCable's largest rival. Rather, argues American Cable, the contracts simply impede the ability of new entrants and overbuilders to compete. American Cable contends that TeleCable's contracts with ESPN and Sci-Fi are more pernicious than exclusive contracts and should be condemned under Section 628(b). American Cable also asserts that the grandfather clause of Section 628(h) applies only to contracts that grant exclusive distribution rights and the programming agreements at issue in this case do not grant "exclusive" rights. 51. American Cable contends that because TeleCable's contracts with ESPN and Sci-Fi are not exclusive dealing contracts and create barriers to competition, they must be analyzed under the general proscription of Section 628(b) rather than the specific proscriptions of Section 628(c). American Cable asserts that a number of subscribers would only consider switching to another cable service if it carried ESPN's NFL package and Sci-Fi. American Cable maintains that by preventing cable operators, other than TeleCable and TCG, from obtaining programming that a number of subscribers insist upon, the contracts at issue here operate as a barrier to competition and an obstacle to the distribution of programming. American Cable alleges that the contracts have hampered its ability to expand its subscriber base which, in turn, would enable it to invest in broader and more diverse program offerings. American Cable further argues that the fact that Section 628(c) focuses on exclusive contracts with vertically integrated vendors does not mean that all other contracts with non-vertically integrated programmers are lawful. 52. In response, TeleCable contends that its programming agreements with ESPN and Sci-Fi are "exclusive" as the term is used in the cable television programming industry. TeleCable explains that its contracts with ESPN and Sci-Fi grant "launch exclusivity," which gives cable operators serving overlapping portions of the same community at the time of the network's launch exclusivity, not against each other, but against future applicants for the network's service. TeleCable states, for example, that it has exclusivity not only against American Cable but against other existing and potential competitors such as SMATV, TVRO, DBS, MMDS, broadcast TV, and microwave transmitters. TeleCable also asserts that it and TCG possess exclusivity within their respective service areas. TeleCable states that its service area overlaps with that of TCG by only 6.8% of the homes in TeleCable's service area. Therefore, TeleCable points out, it enjoys exclusive carriage of ESPN and Sci-Fi with respect to 92.2% of the homes in its service area. 53. TeleCable argues that its programming agreements are expressly permitted by Sections 628(c) and 628(h) of the Communications Act and Sections 76.1002(c)(2) and 76.1002(e)(1) of the Commission's rules. TeleCable states that its agreements were made with non-vertically integrated programmers and thus are not subject to the restrictions on exclusivity contained in Section 628(c). TeleCable further asserts that both agreements were entered into prior to June 1, 1990 and are, therefore, grandfathered by Section 628(h). With respect to American Cable's contention that TeleCable's contracts violate 628(b), TeleCable argues that it would be illogical and contrary to the principles of statutory construction for Congress to expressly legalize certain exclusive agreements in one part of a statutory section only to make illegal those same agreements in another part of the same section. TeleCable further maintains that, even ignoring Sections 628(c) and 628(h), TeleCable's programming agreements do not violate Section 628(b). TeleCable states that American Cable has not met its burden for proving a violation under Section 628(b) because American Cable has not demonstrated that ESPN's NFL package and Sci-Fi are vital to its competitive viability. TeleCable asserts that such programming is not essential to American Cable's ability to compete because equivalent programming is available from other sources. Discussion 54. At the outset, we note that contrary to American Cable's contention, TeleCable's programming agreements with ESPN and Sci-Fi are "exclusive contracts" as the term is used in Section 628. Both TeleCable and TCG were granted wireline exclusivity as launch affiliates of ESPN's NFL program package. Although such exclusivity is not enforceable as against launch affiliates, TeleCable and TCG have distribution rights to such programming exclusive of all parties who are not launch affiliates of the service, such as American Cable. 55. Section 628(b) broadly prohibits cable operators from engaging in "unfair methods of competition." This Section, however, cannot be read in isolation. Rather, Section 628(b) must be interpreted in connection with Sections 628(c)(2)(D) and 628(h) which specifically address the legality of exclusive programming contracts. We determine that the exclusive programming agreements at issue here are permitted under Sections 628(c)(2)(D) and 628(h). Section 628(c)(2)(D) prohibits exclusive programming contracts between cable operators and vertically integrated programming vendors. Neither ESPN nor Sci-Fi was a vertically integrated cable television programmer at the time that American Cable filed its complaint. TeleCable may, therefore, enforce its exclusive programming agreements with these vendors consistent with Section 628(c)(2)(D). Section 628(h) exempts exclusive programming contracts that meet certain conditions from the general prohibition against exclusive contracts as well as from any other provisions in Section 628 that may impinge on such contracts, such as 628(b). TeleCable has shown that its contracts with ESPN and Sci-Fi meet the statutory requirements of 628(h) for exemption. TeleCable states that it signed its exclusive distribution agreements with ESPN and Sci-Fi prior to June 1, 1990. TeleCable further stipulates that the agreements have not been extended or renewed since October 5, 1992. Having determined that the programming agreements are not prohibited by Section 628(c)(2)(D) and are explicitly permitted under Section 628(h), we cannot find that the agreements are unlawful under the broad language of Section 628(b). In view of the validity of these contracts, TeleCable is entitled to enforce its contractual rights to exclusive distribution as well as insist that Sci-Fi and ESPN honor TeleCable's rights under their agreement. UNFAIR PRACTICES UNDER SECTION 628(b) 56. American Cable charges that TeleCable's marketing of its Three Year Club constitutes an unfair method of competition in violation of Section 628(b) of the Communications Act. American Cable contends that implementation of the Three Year Club hindered American Cable's ability to provide programming to consumers in Columbus, Georgia. American Cable argues that, through the Three Year Club, TeleCable induced customers located in American Cable's expansion area to enter into long-term exclusive contracts with TeleCable, thereby foreclosing the market to American Cable and rendering expansion unfeasible. American Cable maintains that the Three Year Club made it more difficult for American Cable to obtain sufficient subscribers to qualify for volume discounts from satellite cable programming vendors, thereby hindering its ability to obtain such programming. American cable also contends that the Three Year Club undermined American Cable's ability to attract subscribers and generate revenues to purchase additional programming. 57. TeleCable argues that American Cable's claim against the Three Year Club is, in essence, a rate dispute, and should be addressed under the rate regulatory provisions of the Communications Act, not the program access provisions. Specifically, TeleCable asserts that American Cable's claim against the Three Year Club is duplicative of American Cable's rate complaint filed under 623(d) and should not be litigated under 628(b) which concerns access to programming. In the alternative, TeleCable contends that its offer of the Three Year Club was not intended to, and did not, interfere with American Cable's ability to provide programming to its subscribers. TeleCable claims that it developed the Three Year Club as a means of reducing subscriber churn in Columbus and made the discount plan available to all persons in its franchise area. 58. TeleCable argues that American Cable has failed to establish a causal link between TeleCable's implementation of the Three Year Club and American Cable's alleged inability to provide programming to its consumers. In response to American Cable's contention that TeleCable's practices had the effect of precluding American Cable's planned expansion, TeleCable asserts that American Cable does not offer any proof that it ever actually planned to expand its service area, when and where it planned to do so, whether such plans were reasonable, or that such expansion has been curtailed as a result of anything TeleCable has done. Regarding American Cable's allegation that the Three Year Club made it difficult for American Cable to obtain sufficient subscribers so as to qualify for volume discounts offered by satellite cable programmers, TeleCable replies that American Cable offers no proof regarding the nature of these discounts, the amount of the supposed discounts, from whom they were to be obtained, or whether American Cable was otherwise qualified to receive such discounts. TeleCable argues that American Cable has failed to present sufficient evidence in support of its claim that TeleCable's implementation of the Three Year Club "prevented or significantly hindered" American Cable's ability to provide programming to its customers. 59. American Cable, in reply, disputes TeleCable's contention that Section 628(b) only addresses unfair practices relating to the sale of programming in vertically integrated markets. American Cable states that Section 628(b) grants the Commission broad authority to address unfair practices not specifically prohibited by Congress that hamper competition in the provision of cable programming to consumers. American Cable also contends that even if the Three Year Club does not violate the uniform rate structure requirement of Section 623(d), the discount plan may still violate Section 628(b) because the Club was intended to and did prevent American Cable from providing cable programming to its subscribers. Finally, American cable maintains that although TeleCable's stated motive for developing the Three Year Club was to combat churn, the cost of the discounts so far exceeded the potential cost to TeleCable of churn that it is dispositive evidence of TeleCable's anticompetitive intent. 60. TeleCable responds that American Cable understates the costs of churn by ignoring the cost of lost subscriber revenues during the period that a subscriber is disconnected from the system. TeleCable also contends that the Three Year Club was not designed to target American Cable's alleged expansion area but to gain information about implementing a long term discount plan to combat churn. TeleCable states that the 13 test areas in which the discount plan was directly marketed were almost entirely outside of American Cable's proposed expansion area and were equally, if not more, within TCG's existing and proposed service areas. TeleCable asserts that only one of the 13 test areas for the Three Year Club overlaps with American Cable's alleged expansion area. Discussion 61. In order to prevail under Section 628(b), the complainant must show not only the existence of a nonuniform rate structure but that such a rate structure is an unfair method of competition which hinders or is intended to hinder or "to prevent any multichannel video programming distributor from providing satellite cable programming or satellite broadcast programming to subscribers or consumers." American Cable has not met its burden of proof. American Cable has not demonstrated any nexus between the alleged unfair method of competition and its ability to distribute satellite cable programming or satellite broadcast programming as specifically addressed in Section 628(b). Thus, with respect to American Cable's allegation of a nonuniform rate structure in violation of Section 628(b), we find that American Cable has not made a prima facie case. In the absence of the requisite showing under Section 628(b) that the structure was an unfair or deceptive practice that "hampered or prevented the distribution of programming" and without a violation of Section 623(d), we have no basis for finding that TeleCable's course of conduct is a prohibited "unfair practice." A practice permitted under the Communications Act and the Commission's rules cannot, without more, form the basis of a claim of unfair competition. ORDERING CLAUSES 62. Accordingly, IT IS ORDERED that the complaint filed by American Cable Company and Jay Copeland against TeleCable of Columbus, Inc. pursuant to Section 623(d) of the Communications Act and Section 76.984 of the Commission's rules, in CSR 4206, IS DENIED. 63. IT IS FURTHER ORDERED that the complaint filed by American Cable Company against TeleCable of Columbus, Inc. pursuant to Section 628(b) of the Communications Act and Section 76.1001 of the Commission's rules, in CSR 4198-P, IS DENIED. 64. IT IS FURTHER ORDERED that the request for sanctions filed by TeleCable of Columbus, Inc. against American Cable Company pursuant to Section 76.1003(q) of the Commission's rules, in CSR 4198-P, IS DENIED. 65. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Acting Chief, Cable Services Bureau