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                                Before the
                     Federal Communications Commission
                          Washington, D.C. 20554

In the Matter of:                    )
                                     )
WIZARD PROGRAMMING, INC.             )
                                     )
            v.                       )           CSR-5039-P
                                     )
SUPERSTAR/NETLINK GROUP, L.L.C.,     )
and TELE-COMMUNICATIONS, INC.        )
                                     )
Program Access Complaint             )
Pursuant to 47 C.F.R.  76.1002      )


                      MEMORANDUM OPINION AND ORDER

   Adopted:  December 23, 1997                     Released:  December 24, 1997

By the Acting Chief, Cable Services Bureau:


                             I.  INTRODUCTION

        1.    On June 2, 1997, Wizard Programming, Inc. ("Wizard") filed a program access complaint
against Superstar/Netlink Group, L.L.C. ("SNG") and Tele-Communications, Inc. ("TCI") alleging that
SNG and TCI have engaged in unfair methods of competition or unfair or deceptive acts or practices in
the sale of satellite broadcast programming in violation of Section 628(b) of the Communications Act of
1934, as amended ("Communications Act").  Wizard claims that SNG has discriminated against Wizard
in the prices, terms, and conditions of sale or delivery of programming in violation of Section 76.1002(b)
of the Commission's rules.  Wizard names TCI as a co-defendant based on TCI's alleged indirect
ownership interest in SNG and claims that TCI has unduly and improperly influenced the acts of SNG
in violation of Section 76.1002(a) of the Commission's rules.

  2.    Based on the record before us and pursuant to the Commission's rules, we find that
Wizard has not shown that it has standing to bring a program access complaint under either Section 628
of the Communications Act or Sections 76.1001 or 76.1002 of our rules.  Accordingly, we dismiss the
Complaint with prejudice.

                              II.  BACKGROUND

  3.    Congress enacted the Cable Television Consumer Protection and Competition Act of 1992
("1992 Cable Act") to promote competition, with the view that regulation would be transitional until the
video programming distribution market becomes competitive.  In enacting the program access provisions,
which are codified in Section 628 of the Communications Act, Congress was concerned about the market
power of wired cable companies and vertically integrated cable programmers.  The program access
provisions were designed to ensure that competition to cable develops and to encourage nascent
competition from emerging competitors.  Consistent with this purpose, Congress sought to minimize the
incentive and ability of vertically integrated programming suppliers to favor affiliated cable operators over
nonaffiliated cable operators or other multichannel video programming distributors ("MVPDs") in the sale
of satellite cable and satellite broadcast programming.

  4.    Section 628(b) of the Communications Act states that:

  [i]t 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.

To achieve its stated purpose in enacting this prohibition, Congress instructed the Commission to
promulgate regulations that, among other things:

  (A) establish effective safeguards to prevent a cable operator which has an attributable
  interest in a satellite cable programming vendor or a satellite broadcast programming
  vendor from unduly or improperly influencing the decision of such vendor to sell, or the
  prices, terms, and conditions of sale of, satellite cable programming or satellite broadcast
  programming to any unaffiliated multichannel video programming distributor; [and]

  (B) prohibit discrimination by a satellite cable programming vendor in which a cable
  operator has an attributable interest or by a satellite broadcast programming vendor in the
  prices, terms, and conditions of sale or delivery of satellite cable programming or
  satellite broadcast programming among or between cable systems, cable operators, or
  other MVPDs or their agents or buying groups. . . .

  5.    In Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and
Competition Act of 1992:  Development of Competition and Diversity in Video Programming Distribution
and Carriage, MM Docket No. 92-265, First Report and Order ("Program Access Report and Order"),
the Commission adopted implementing regulations and set forth procedures for adjudicating complaints. 
Section 76.1002 of the Commission's rules prohibits satellite cable programming vendors in which a cable
operator has an attributable interest and satellite broadcast programming vendors from discriminating:

  in the prices, terms, and conditions of sale or delivery of satellite cable programming or
  satellite broadcast programming among or between competing cable systems, competing
  cable operators, or competing multichannel video programming distributors.

Cable operators with an attributable interest in a satellite cable programming vendor or a satellite
broadcast programming vendor may not improperly or unduly influence the prices, terms, or conditions
of sale of the vendor's programming to an MVPD.

  6.    An MVPD may bring a complaint against a satellite cable programming vendor, satellite
broadcast programming vendor, or cable operator that the MVPD believes has violated the Commission's
program access rules.  An MVPD is defined in the Commission's rules as:

  an entity engaged in the business of making available for purchase, by subscribers or
  customers, multiple channels of video programming.  Such entities include, but are not
  limited to, a cable operator, a multichannel multipoint distribution service, a direct
  broadcast satellite service, a television receive-only satellite program distributor, and a
  satellite master antenna television system operator, as well as buying groups or agents of
  all such entities.

A satellite cable programming vendor is "a person engaged in the production, creation, or wholesale
distribution for sale of satellite cable programming . . . ."  A satellite broadcast programming vendor
is "a fixed service satellite carrier that provides service pursuant to section 119 of title 17, United States
Code, with respect to satellite broadcast programming."  Under the Commission's attribution standards,
a cable operator will be considered to have an attributable interest in a satellite cable programming vendor
or a satellite broadcast programming vendor if the cable operator holds five percent or more of the stock
of the programmer, whether voting or non-voting, or if the operator holds limited partnership equity
interests of five percent or more.

  7.    The Commission stated in the Program Access Report and Order that discrimination exists
"when the same or essentially the same programming service is sold to competing distributors at different
prices or pursuant to different terms or conditions.  Such discrimination is prohibited if not justified under
one or more of the specific factors enumerated in the statute."  The complainant bears the burden of
making a prima facie showing that there is a difference between the prices terms, or conditions charged
or offered to the complainant and its competitor by a satellite programming vendor that is subject to the
program access rules.  To make this showing, a complainant must establish that: (1) the defendant is
a satellite cable programming vendor that meets the Commission's attribution standards or a satellite
broadcast programming vendor; (2) the complainant competes with the MVPD to which it seeks
comparison; and (3) the vendor has provided or offered different terms and conditions, or different prices
to the complainant and its competitor.

                      III.  SUMMARY OF THE PLEADINGS

  8.    Wizard describes itself as a television receive-only ("TVRO") satellite program distributor
"or an agent of such a distributor" and asserts that it is an MVPD.  TVRO distributors distribute
programming to owners of large-diameter home satellite dishes ("HSDs") designed to receive C-band
satellite transmissions.  Wizard states that it distributes satellite broadcast programming packages that
are "packaged and supplied by" SNG.

  9.    Wizard alleges that SNG is both a satellite broadcast programming vendor and an
MVPD.  Wizard further contends that, as an MVPD, SNG competes directly with Wizard in the retail
sale of SNG's satellite broadcast programming packages to subscribers.  Wizard asserts that SNG and
Wizard "retail" identical programming packages under different names.  Wizard alleges that TCI is a
cable operator that has an attributable interest in SNG.

  10.   According to Wizard, since March 1994, pursuant to an agreement with SNG, it has
marketed SNG's programming to subscribers under Wizard's name at retail prices established by SNG. 
The terms of the agreement were renegotiated in February, 1996.  Wizard explains that under its
agreement with SNG, Wizard advertises SNG's programming and directs potential customers to call a
telephone number that connects callers to telephones located at SNG's offices.  Wizard states that SNG
agreed to provide operators to handle these telephone inquiries and close sales of programming to
callers.  Wizard states that SNG bills subscribers who purchase programming packaged under Wizard's
name and handles other customer service functions for such subscribers.

  11.   Wizard alleges that SNG has violated the Communications Act and the Commission's
program access rules by offering directly to subscribers at lower prices the same programming that
Wizard markets and by failing to perform its obligations under its agreement with Wizard, including
obligations concerning record-keeping, reporting, and customer service functions.  These acts, according
to Wizard, constitute unlawful discrimination in the prices, terms, and conditions of service offered by
SNG and unfair and deceptive practices.  Wizard contends that TCI also has violated the
Communications Act and the Commission's program access rules because it has an attributable interest
in SNG and has unduly influenced SNG's prices, terms, and conditions of sale of satellite broadcast
programming.  Wizard seeks damages and any other remedies necessary for the Commission to enforce
the Communications Act and its program access rules.

  12.   In its Answer, SNG argues that Wizard is not an MVPD or an agent of an MVPD as
those terms are defined in the Commission's rules; that SNG is not a satellite programming vendor and
does not sell programming to Wizard; that Wizard and SNG are not competitors; that SNG has not
engaged in acts prohibited by the Communications Act or the program access rules; and that Wizard
has not shown that it was harmed by SNG's acts.  SNG further contends that the statute of limitations
has expired with respect to any alleged violations that occurred more than one year prior to the date when
Wizard filed its complaint.

  13.   SNG notes in its Answer that Wizard filed a breach of contract action against SNG in
federal district court on the same day it filed its complaint in this proceeding.  On October 21, 1997,
SNG filed a Motion for Leave To Supplement its Answer and the record in this proceeding to include
the court's October 14, 1997 order denying Wizard's motion for preliminary injunction in the breach of
contract action ("District Court Order"). 

  14.   TCI asserts in its Answer that it did not influence any of SNG's alleged actions and that
TCI cannot be named as a defendant to Wizard's complaint solely on the basis of TCI's indirect
ownership interest in SNG.  TCI states that Wizard has not made any factual allegations of wrongdoing
by TCI. 

  15.   In its Reply, Wizard generally denies the affirmative defenses raised by SNG and requests
that the Commission direct the parties to submit discovery proposals and briefs and allow Wizard to
submit additional evidence that it obtained after it filed its Complaint.  In support of its request for
discovery and the opportunity to file additional evidence, Wizard states that it has obtained information
in the federal court proceeding it initiated that demonstrates that SNG is in fact a satellite broadcast
programming vendor within the meaning of the Communications Act and the Commission's rules. 
Wizard also replied to the Answer of TCI, denying all affirmative defenses raised by TCI and
incorporating by reference Wizard's requests that the Commission direct the parties to file discovery
proposals and briefs.

  16.   Concurrently with the filing of its Answer, SNG filed a request for confidential treatment
of certain documents and information ("SNG Confidentiality Request") pursuant to Section 76.1003(h)
of the Commission's rules.  SNG asserts that some of the documents Wizard attached to its Complaint
contain "confidential commercial information regarding SNG's relationships with its dealer/sales agents"
and that public dissemination of such information "could cause SNG substantial competitive injury." 
SNG also seeks an order directing Wizard to adhere to the Commission's confidentiality procedures in
submitting any additional documents it may file in this proceeding.

                              IV.  DISCUSSION

  17.   Before we address Wizard's substantive allegations, we must first determine whether it
is an MVPD entitled to relief under Section 628 of the Communications Act and the Commission's
program access rules.  For the reasons discussed herein, we find that Wizard is neither an MVPD nor
a buying agent of an MVPD.  Wizard does not purchase or sell programming, and it does not make
programming available for purchase by subscribers.  Accordingly, Wizard does not have standing to bring
a program access complaint.

  18.   An MVPD is defined as "an entity engaged in the business of making available for
purchase, by subscribers or customers, multiple channels of video programming."  The definition
includes "television receive-only satellite program distributor[s]."  Wizard alleges that it is an MVPD
because it is a TVRO distributor and markets programming packages to subscribers.

  19.   The program access rules are premised on the assumption that a complainant MVPD has
purchased or seeks to purchase programming from the defendant satellite programming vendor.  For
example, the Program Access Report and Order clearly contemplates the sale of programming to
distributors when it addresses price discrimination, referring to programming vendors that "sell the same
satellite programming service to various distributors . . . ."  In addition, a complainant alleging that a
programming vendor has entered into an unlawful exclusive contract must present evidence that the
complainant "has requested to purchase" the programming in question.  The Program Access Report and
Order also presumes that a complainant MVPD sells programming to subscribers.  For example, the
Commission referred to "HSD distributors" as the type of MVPD that Congress intended to include
within the scope of the program access rules.  In explaining the term "HSD distributors," the
Commission noted that:

  many different types of entities in the HSD or television receive-only market purchase
  satellite programming services from vendors and sell that programming to consumers,
  while also providing various other services for HSD consumers.  For the purposes of the
  program access regulations, we will use the term "HSD distributor" to refer to all such
  entities, including those entities that are commonly known as HSD dealers or third-party
  program packagers.

  20.   Wizard does not purchase programming from SNG, and it does not sell programming to
consumers.  Rather, Wizard is a mass-marketer.  It advertises and markets programming that SNG sells
to consumers under Wizard's name.  SNG, not Wizard, packages and establishes the retail price of the
programming Wizard markets.  Wizard does not receive payment directly from subscribers but instead
receives commissions for sales of programming packaged under its name.  Wizard alleges that SNG
agreed to pay the commission even before a subscriber pays the first invoice from SNG.  If Wizard
were itself purchasing programming from another entity and selling the programming to subscribers, then
at a minimum, Wizard would determine the retail price for the programming packages, and it would not
expect to receive revenue from the sale of such programming unless and until a subscriber paid for it.

  21.   Even without reference to the question of whether Wizard purchases and sells
programming, it is clear that Wizard is not "making [programming] available" to subscribers.  The
programming Wizard markets is acquired by SNG from programming vendors, and SNG assembles the
various programming packages.  Wizard is required to state in its advertising that Wizard-brand
programming is provided by SNG.  The advertising materials Wizard submitted as exhibits to its
Complaint include such a statement.  When a potential subscriber decides to purchase a programming
package marketed under Wizard's name, the new subscriber calls a telephone number that is answered
by SNG operators.  SNG employees close all sales of programming packages marketed by Wizard,
initiate service to the customer, and handle billing and other customer service needs of subscribers that
purchase Wizard-brand programming.  Subscribers pay SNG, and not Wizard, for programming
marketed to them by Wizard.  It is SNG, therefore, and not Wizard, that makes the programming
available to subscribers.  Based on the foregoing facts, we conclude that Wizard is not an MVPD.

  22.   We also find that Wizard is not an "agent" of SNG or any other entity as that term is used
in the definition of MVPD under the Communications Act and the Commission's program access rules. 
The term "agent," or "buying group," refers to "an entity representing the interests of more than one
entity distributing multichannel video programming" that assumes financial liability for programming
contracts and agrees to uniform billing and contract provisions and reasonable technical quality standards
for the entities represented.  Wizard has not alleged that it performs any of the above functions on
behalf of SNG or other entities that distribute multichannel video programming, and the record does not
otherwise indicate that Wizard performs such functions.

  23.   Because Wizard does not have standing to bring a program access complaint under the
Communications Act or the Commission's rules, we do not address Wizard's substantive claims of
discrimination and unfair or deceptive practices by SNG, or Wizard's claim that TCI has an attributable
interest in SNG and unduly influenced SNG with respect to SNG's allegedly unlawful actions.  We need
not reach these issues, based on our finding that Wizard is not an MVPD entitled to protection under the
program access rules.  For the same reason, we do not address Wizard's request that the Commission
direct the parties to submit discovery proposals and briefs or its request that the Commission allow
Wizard to file additional evidence.

  24.   We grant SNG's motion to supplement its Answer and the record to include the District
Court Order.  Section 76.1003(f) of the Commission's rules states that motions or other additional
pleadings generally will not be accepted absent a showing of extraordinary circumstances.  Explaining
this rule in the Program Access Report and Order, the Commission stated that "[m]otions to dismiss,
motions for summary judgment, or any additional pleadings will not be considered except in extraordinary
circumstances or unless requested by the staff."  The purpose of the rule is to avoid delay and allow
the Commission to resolve program access complaints in an expeditious manner.  We do not find that
extraordinary circumstances justify Commission acceptance of SNG's motion.  We note, however, that
SNG could not have filed the District Court Order with its Answer because the District Court had not
yet issued the order.  After the District Court Order was issued, SNG promptly filed its motion and the
District Court Order for inclusion in the record in this proceeding.  The District Court Order is the type
of information Staff might have asked the parties to submit had Staff been aware of its issuance, and its
inclusion in the record of this proceeding will not delay the proceeding or prejudice any party.  In
addition, the motion is unopposed.  For these reasons, we find good cause to waive Section 76.1003(f)
to accept SNG's motion to supplement and include the District Court Order in the record of this
proceeding.

  25.   We deny the SNG Confidentiality Request.  SNG invokes Section 76.1003(h) of the
Commission's rules in seeking confidential treatment of documents that Wizard provided to the
Commission as attachments to its complaint.  Section 76.1003(h) allows a party to designate as
confidential, subject to challenge, "materials generated or provided by [the] party in connection with the
pre-complaint notification procedure required under  76.1003(a) and in the course adjudicating a
program access complaint under this provision" if the party seeking protection "believes in good faith that
the materials fall within an exemption to disclosure contained in the Freedom of Information Act (FOIA),
5 U.S.C. [] 552(b)."  SNG has not alleged that it generated or provided the documents in the course
of the pre-complaint notification procedure.  In fact, it is evident from the dates on the documents in
question that at least some of them were generated and provided to Wizard prior to the pre-complaint
notification.  In addition, some of the materials in question were generated by Wizard.  SNG, therefore,
is not entitled to confidential treatment of the materials in question.  We also decline to direct Wizard to
use our confidentiality procedures if it files additional documents in this proceeding.  SNG has not shown
that further harmful disclosure is likely.

                           V.  ORDERING CLAUSES

  26.   For the reasons set forth above, it is hereby ORDERED that the complaint of Wizard
Programming, Inc., against Superstar/Netlink Group, L.L.C., and Telecommunications, Inc., IS
DISMISSED.

  27.   IT IS FURTHER ORDERED that the Motion for Leave To Supplement filed by
Superstar/Netlink Group, L.L.C., IS GRANTED.
  28.   IT IS FURTHER ORDERED that the Request for Confidential Treatment of Documents
and Information of Superstar/Netlink Group, L.L.C., IS DENIED.

  29.   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