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

In the Matter of                )
                                )
ECHOSTAR COMMUNICATIONS         )       File No. CSR 5244-P
CORPORATION                     )
                                )
     Complainant,               )
                                )
v.                              )
                                )
COMCAST CORPORATION,            )
COMCAST-SPECTACOR, L.P.,        )
PHILADELPHIA SPORTS MEDIA, L.P.,)
                                )
     Defendants.                )


                  MEMORANDUM OPINION AND ORDER

   Adopted:  January 22, 1999           Released:  January 26, 1999

By the Chief, Cable Services Bureau:


I.   INTRODUCTION

     1.   EchoStar Communications Corporation ("EchoStar") filed a program access complaint
("Complaint") against Comcast Corporation ("Comcast"), Comcast-Spectacor, L.P., and Philadelphia Sports
Media, L.P. (collectively referred to as "Defendants") alleging violations of Sections 628(b) and (c) of the
Communications Act of 1934, as amended ("Communications Act"), and Sections 76.1001, 76.1002(a) and
76.1002(b) of the Commission's rules, by engaging in discrimination and unfair practices and exercising undue
influence over the distribution of satellite cable programming.

II.  BACKGROUND

     2.   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, codified
in Section 628 of the Communications Act,  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.

     3.   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.

In Section 628(c), Congress instructed the Commission to promulgate regulations that:

          (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. . . .

     4.   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 concluded that non-price discrimination is included within the prohibition against discrimination
set forth in Section 628(c)(2)(B).  While the Commission did not attempt to identify all types of non-price
discrimination that could occur, the Commission stated that "one form of non-price discrimination could occur
through a vendor's 'unreasonable refusal to sell', or refusing to initiate discussions with a particular distributor
when the vendor has sold its programming to that distributor's competitor."  The Commission cautioned,
however that "'unreasonable' refusals to sell" should be distinguished from "certain legitimate reasons that could
prevent a contract between a vendor and a particular distributor."  Such legitimate reasons would include:

          (i) the possibility of [the] parties reaching an impasse on particular terms, (ii) the distributor's
     history of defaulting on other programming contracts, or (iii) the vendor's preference not to
     sell a program package in a particular area for reasons unrelated to an existing exclusive
     arrangement or a specific distributor.

     5.      "Satellite cable programming" is "video programming which is transmitted via satellite and which
is primarily intended for the direct receipt by cable operators for their retransmission to cable subscribers." 
"Satellite broadcast programming" is broadcast programming when such programming is retransmitted by
satellite and the entity retransmitting such programming is not the broadcaster or an entity performing such
retransmission on behalf of and with the specific consent of the broadcaster.
     
III. THE FACTS

     6.   Complainant, EchoStar, is a direct broadcast satellite ("DBS") provider that offers
multichannel video programming distributor ("MVPD") service to approximately 950,000 subscribers across
the continental United States.  EchoStar operates three DBS satellites to offer up to 200 channels of digital
programming.  As an MVPD, EchoStar competes directly with cable operators in each and every cable
franchise area, including the Philadelphia metropolitan area.

     7.   Defendant Comcast is a multiple system operator ("MSO") based in Philadelphia that owns
and operates several cable systems and cable programming services.  Comcast is one of the nation's largest
cable operators, and an incumbent cable operator in the Philadelphia market.  In July 1996, Comcast acquired
a 66% interest in the Philadelphia Flyers L.P., to form a new partnership named Comcast-Spectacor, L.P. 
Comcast-Spectacor owns the following assets: 1) the Philadelphia Flyers National Hockey League ("NHL")
team; 2) the Philadelphia 76ers National Basketball Association ("NBA") team; and 3) the CoreStates
Spectrum and Corestates Center sports arenas.  Also in 1996, Comcast-Spectacor entered into a partnership
with the Philadelphia Phillies Major League Baseball ("MLB") team to form Philadelphia Sports Media, L.P. 


     8.   The facts underlying EchoStar's complaint are undisputed.  SportsChannel Philadelphia
("SportsChannel") and PRISM were commonly owned cable networks that served the Philadelphia market. 
SportsChannel was a satellite delivered basic tier network that offered numerous Philadelphia professional
major league sport contests, including Philadelphia Flyers hockey games, Philadelphia 76ers basketball games,
and Philadelphia Phillies baseball games.  PRISM was a network that produced and distributed movies and
other entertainment programming, including Philadelphia professional major league sport contests.  Unlike
SportsChannel, PRISM was delivered through terrestrial technology, and its programming was available only
as a premium priced subscription service.  Both SportsChannel and PRISM terminated operations on
September 30, 1997.  Because SportsChannel distributed its programming through satellite technology, it was
considered "satellite cable programming" subject to the program access rules.  EchoStar never carried
SportsChannel or PRISM programming.

     9.   On October 1, 1997, Comcast SportsNet ("SportsNet") debuted as a new channel on
Comcast's, and other cable operators', basic service tier ("BST") in the Philadelphia market.  Defendants
distribute SportsNet only through terrestrial microwave and fiber technology.  In addition to the professional
sporting events previously offered through SportsChannel and PRISM, SportsNet's programming includes
various professional and collegiate sporting events that had not been carried on either channel.  SportsNet
offers locally produced programming, such as sports-related talk-shows and sports news shows.  These shows
are all original and have never appeared before on any programming service, including SportsChannel and
PRISM.

     10.  Defendants have indicated that they license SportsNet programming to a wide variety of
MVPDs in the Greater Philadelphia market, including local cable operators, wireless cable systems, also known
as multichannel multipoint distribution systems ("MMDS"), satellite master antenna television ("SMATV")
providers, and potential open video systems ("OVS").  In letters dated December 9, 1997, and December 31,
1997, EchoStar attempted to negotiate with Defendants for the carriage rights of SportsNet's programming. 
EchoStar requested that Defendants send a copy of SportsNet's affiliation agreement and applicable rate card. 
EchoStar's efforts were unsuccessful.  In a letter to EchoStar dated January 7, 1998, the general counsel of
Comcast-Spectacor, L.P. stated that SportsNet's programming would not be available to "any satellite delivered
service in the Philadelphia market."  After providing Defendants with the requisite notice of its intent to file
a program access complaint, EchoStar filed the instant action alleging that Defendants' refusal to sell SportsNet
programming to EchoStar violates the program access provisions of the Communications Act. 

IV.  THE PLEADINGS

     11.  EchoStar alleges that Defendants' refusal to offer its regional sports programming to EchoStar
and other DBS providers constitutes an impermissible refusal to sell prohibited by Section 628(c)(2)(B). 
EchoStar maintains that if the regional sports programming were transmitted by satellite, Defendants's refusal
to sell would be an impermissible form of non-price discrimination.  EchoStar argues that Defendants
distribute SportsNet's programming through terrestrial means in order to evade application of the program
access rules.  EchoStar contends that the Commission has authority under Sections 4(i) and 303(r) to ensure
that its regulations are not evaded.  

     12.  EchoStar argues that Defendants' claim of cost savings is not a valid basis to move to
terrestrial delivery of SportsNet.  EchoStar alleges that Defendants' primary reason to switch to terrestrial
facilities was to avoid application of the Commission's rules and thus secure the additional monopoly rents
available from exclusive carriage of SportsNet.  EchoStar maintains that Defendants have no cost justification
to support its allegedly discriminatory conduct toward EchoStar, contending that it and other DBS providers
offered to share in SportsNet's satellite distribution costs. EchoStar notes it has a well-established and
recognized record of creditworthiness and financial stability.  EchoStar believes that Defendants' decision to
make its programming available to other MVPDs highlights Defendants' discriminatory treatment of EchoStar
as compared to the other MVPDs.  EchoStar notes that even if the sports programming is considered a new
service containing programming previously unavailable by satellite in the Philadelphia area, if the use of
terrestrial transmission was intended to evade the Commission's prohibition on refusing to sell satellite cable
programming, it does not matter whether the programming was switched from satellite transmission or was
transmitted by terrestrial means from the outset.   

     13.  EchoStar alleges that Defendants have unduly influenced the decision of Comcast-Spectacor
and Philadelphia Sports Media, L.P. to deny EchoStar the opportunity to carry the regional sports
programming in violation of Section 628(c)(2)(A).  EchoStar further states that Defendants' unwillingness
to negotiate to carry SportsNet, while offering it to certain MVPDs (including Comcast), constitutes an unfair
practice under Section 628(b).  EchoStar maintains that the sports programming offered by Defendants is
important to its success and ability to compete in the Philadelphia MVPD market, and the unavailability of
SportsNet precludes EchoStar from competing effectively with Comcast.  EchoStar believes that the statutory
prohibition contained in Section 628(b) is broader than the specific prohibitions on discrimination in Section
628(c), arguing that the only requirement for triggering the prohibition in Section 628(b) is that the unfair
conduct in question prevents an MVPD "from providing satellite cable programming or satellite broadcast
programming to subscribers or consumers."  EchoStar argues that if Defendant's refusal to sell its sports
programming to EchoStar hinders EchoStar's provision of satellite programming to consumers, the status of
the sports programming as "satellite cable programming" is irrelevant as long as EchoStar can show it has been
harmed in its ability to provide satellite cable programming.

     14.  EchoStar maintains its construction of Section 628(b) is consistent with the plain language
of the statute.  EchoStar also maintains that the Commission has read Section 628(b) as a "catch-all"
provision intended to cover anti-competitive practices not directly covered by other regulations and statutory
provisions, such as the use of terrestrial transmission to avoid Section 628(c) obligations.  EchoStar argues
that a violation of Section 628(b) has occurred because Defendants' refusal to allow EchoStar to carry regional
sports programming in Philadelphia hinders EchoStar's ability to sell other programming which qualifies as
"satellite cable programming."  EchoStar contends that regional sports programming is important to the
success of an MVPD.  EchoStar claims the harm caused by Defendant's actions is demonstrated by the fact
that there is a huge disparity between its and Comcast's subscriber count in the Philadelphia even though
EchoStar offers less expensive services.  EchoStar maintains that because the effect of not having access to
SportsNet is enough to find a violation of Section 628(b), the Commission does not need to find that
Defendants' purpose for not selling its programming to EchoStar was to inhibit EchoStar as an MVPD
competitor.

     15.  In their Answer, Defendants asserts that their conduct does not violate Sections 628(b) or
628(c) of the Communications Act.  Defendants maintain that the SportsNet is not satellite cable
programming.  Defendants argue that the Commission is granted only limited authority to adjudicate disputes
regarding access to satellite cable programming, which is defined as "video programming which is transmitted
via satellite."  Defendants cite Congress' deliberate, consistent, and repeated use of the phrase "satellite cable
programming" as evidence that Congress intended to limit application of the program access rules to satellite
programming.  Defendants argue that the legislative history reveals that Congress considered and rejected the
idea that the program access rules apply to terrestrially delivered programming.  Defendants reason that if
the Commission were to extend the application of the statute to terrestrial programming, despite the clear
language of the statute, it would violate well established principles of statutory construction.  Defendants state
that because SportsNet falls outside of the scope of the statute, the Commission does not have authority to
grant the requested relief.

     16.  Defendants also challenge EchoStar's claim that SportsNet is terrestrially delivered in order
to evade the program access rules.  According to Defendants, SportsNet constitutes a new and original
programming service entirely unrelated to SportsChannel.  In support of its claim, Defendants detail how
SportsNet is different in ownership, management, name, and content from SportsChannel.  Defendants allege
that SportsNet will telecast significant amounts of programming never before seen on SportsChannel or
PRISM, including various collegiate games, sports news shows, and a host of original and locally-produced
shows.  Defendants maintain that the only programming overlap between SportsNet and SportsChannel
consists of Flyers, Phillies and 76ers games.  Defendants argue that SportsNet has always been terrestrially
delivered, and has never been moved from satellite delivery.

     17.  Defendants also dispute EchoStar's suggestion that its motivation for creating SportsNet was
to deny competitors access to sports programming.  Defendants explain that adoption of terrestrial
distribution for SportsNet was a rational and legitimate business decision based on a determination that
terrestrial distribution is significantly less expensive than satellite distribution.  In this regard, Defendants note
that they had access to the pre-existing terrestrial infrastructure of PRISM to deliver SportsNet and that
SportsNet was being offered to essentially the same base of terrestrial operators that formerly distributed
PRISM.  Because a microwave and fiber-optic distribution system was already in place, Defendants argue
that it was both logistically simple and economical to adopt terrestrial distribution for SportsNet.  Defendants
also claim that satellite distribution substantially increases the costs of policing against signal theft. 
Defendants believe that because SportsNet is a regional service, there is no reason to incur the higher costs
associated with satellite distribution.  Defendants maintain that their decision to refuse EchoStar's offer to
pay to have SportsNet uplinked to a satellite cannot be characterized as an evasion of the program access rules. 
Defendant's argue that EchoStar's offer to pay for the uplink to satellite does not transform terrestrially
delivered programming into satellite cable programming.  Defendants note that other competing MVPDs in the
Greater Philadelphia market will have access to SportsNet including MMDS, OVS providers, SMATV, as well
as all local cable systems. 

     18.       Defendants assert that EchoStar has failed to state a claim under Section 628(b) and that there
is no legal support for EchoStar's theory.  Defendants argue that, under EchoStar's view of Section 628(b),
anything that Defendants do to compete in the marketplace will constitute a program access violation because
such an action could help Comcast gain or retain subscribers at the expense of EchoStar.  Defendants further
argue that the decision not to offer SportsNet to EchoStar is not an unfair practice because this decision is
specifically permitted under law.  Defendants contend that because the program access provisions of the 1992
Cable Act and the Commission's rules exclude terrestrially delivered programming, Defendants may decide
whether or not to offer SportsNet to any MVPD.  Finally, Defendants argue that EchoStar fails to state a
claim under Section 628(b) because it does not make a showing of harm as required by Section
76.1000(c)(1)(xii) of the Commission rules.  Defendants contend that EchoStar presents no evidence to
support its claim that the absence of SportsNet has directly lead to a low subscriber count.

V.   DISCUSSION
     
     19.  At the outset of our discussion, we note that EchoStar's complaint presents essentially the same
facts and legal issues recently resolved by the Cable Services Bureau in DIRECTV, Inc. v. Comcast
Corporation, et al.  In resolving EchoStar's complaint, we rely substantially on the analysis set forth therein. 
As in DIRECTV, there appear to be three interrelated matters of dispute in this proceeding:  
     
          (1) Is the programming in question "satellite cable programming" so that Defendants' conduct
     is actionable under Section 628(c) of the program access rules?
     
           (2) Does the Commission have the authority to take action against evasions of the program access
     rules and, if so, is Defendants' conduct actionable as an evasion?
     
          (3) Does Defendants' conduct involve unfair or anti-competitive action to deprive EchoStar of 
     "satellite cable programming" under Section 628(b)?

     20.  Section 628 is generally understood to be a mechanism for ensuring that MVPDs that are
competing with traditional cable television systems are not deprived, through exclusive contracts,
discriminatory pricing, or otherwise, of access to vertically integrated "satellite cable programming."   Section
628(c)(2)(A) prohibits a cable operator from unduly or improperly influencing the decision of a "satellite cable
programming vendor" to sell, or the prices terms and conditions of sale, of satellite cable programming to
unaffiliated MVPDs.  Section 628(c)(2)(B) prohibits a "satellite cable programming vendor" in which a cable
operator has an attributable interest from engaging in discrimination in the prices, terms or conditions of the
sale or delivery of satellite cable programming to competing MVPDs.  As in DIRECTV, the success of
EchoStar's Section 628(c) claim hinges upon whether SportsNet can be said to be a satellite cable programming
vendor.  

     21.  EchoStar's complaint makes little effort to demonstrate that SportsNet is in fact "satellite cable
programming."  Rather, it argues that, if the programming were satellite delivered, it would be subject to the
program access provisions of the Communications Act.  The first step in our analysis is to determine what
Congress intended the term "satellite cable programming" to mean.  The Supreme Court, in its Chevron
decision speaks to the proper statutory interpretation analysis in situations such as this.  That decision states: 

          [f]irst, always, is the question whether Congress has directly spoken to the precise question
     at issue.  If the intent of Congress is clear, that is the end of the matter; for the court, as well
     as the agency, must give effect to the unambiguously expressed intent of Congress.  ... if the
     statute is silent or ambiguous with respect to the specific issue, the question for the court is
     whether the agency's answer is based on a permissible construction of the statute. 

We believe that the correct reading of Section 628(c) is that the provisions in question apply to satellite cable
programming, not programming that was "previously"  satellite-delivered, or the "equivalent" of satellite cable
programming, or programming that would qualify as satellite cable programming, but for its terrestrial
delivery.  The statute defines "satellite cable programming" as that which is transmitted via satellite.  This
reading is consistent with the legislative history of Section 628 which indicates that the version of the program
access provision that the Senate adopted would have extended to terrestrially-delivered programming services
but the House bill, that was eventually adopted, did not.  This indicates a specific intention to limit the scope
of the provision to satellite services.  Given the new content of the service in question it is also not clear that
this is a service which can be considered "previously" distributed by satellite.  Because we find that SportsNet
is not satellite cable programming, we deny EchoStar's Section 628(c)(2)(B) refusal to sell claim and its Section
628(c)(2)(A) undue influence claim.  
     22.  The next question presented has to do with the scope of the Commission's authority to act
against evasions of Section 628 and whether the conduct of Defendants could in fact be considered an evasion. 
Assuming for the sake of argument that the Commission has the authority to act against evasions in some
circumstances (an issue the Commission has considered elsewhere), we are not persuaded here that the totality
of the circumstances demonstrates an intent to evade our rules.  

     23.  Here, for instance, we find evidence that the service in question is not simply a service that has
moved from satellite to terrestrial distribution but is in fact a new service.   The majority of the programming
content on SportsNet is not duplicative of content on SportsChannel Philadelphia.  A significant amount of the
sports content on the channel consists of sports events that were on PRISM, a terrestrially delivered service,
operating in the Philadelphia market for over two decades, that in its last season distributed some 124 games
of the Philadelphia Flyers, Philadelphia 76ers and the Philadelphia Phillies.  In contrast, in its last year of
operation, SportsChannel Philadelphia distributed 67 such games.  In this regard, we believe that it bears
repeating that EchoStar never purchased programming from SportsChannel or PRISM.  SportsNet is a brand
new service in ownership, name, management, and content.  It is described as featuring more locally-produced
sports coverage -- including events, news, opinion, and programming -- than any other regional sports network
in the United States.  As a further departure from its predecessors, Defendants have returned 22 games of the
Philadelphia 76ers back to broadcast television.  

     24.  In addition, according to Defendants, the terrestrial distribution of this service is dramatically
less expensive than satellite distribution.  An affidavit filed by Defendants, indicates that it costs
approximately $600,000 per year to deliver the SportsNet service terrestrially.  The cost of delivering the
service would be approximately $2,280,000 per year using a full band satellite transponder, $1,400,000 using
a second tier satellite transponder, or between $720,000 and $900,000 using shared digital capacity.  In
addition, a one time cost of $250,000 for an up-link facility would be required plus $24,000 a year to uplink
and a cost of $190,000 for encoding the signal prior to uplinking it and decoding at the headend of the
individual recipients.  Although not cited as an extra cost by Defendants, EchoStar itself notes if it received
the service it would split the cost of uplinking SportsNet to a satellite if that was the only thing standing in the
way of Comcast's making the sports programming available to DBS.  The terrestrial infrastructure used by
PRISM, according to Defendants, had available capacity and the base of operators receiving the Service is
substantially that same as that which received PRISM, so use of that network became a logistically simple and
economical choice.  None of these facts are disputed by EchoStar.
     
     25.  Given all these facts, including the differences between the old and the new service, the
incorporation of the old PRISM terrestrially delivered content and distribution process, and the unchallenged
cost advantages of terrestrial distribution, we cannot conclude that evasive conduct is involved.  Because we
conclude that evasive conduct is not present, we do not address EchoStar's argument that the Commission can
act to prevent such conduct under Sections 4(i) and 303(r) of the Communications Act.
     
     26.  We also find unpersuasive EchoStar's assertion that Defendants' failure to pursue EchoStar's
offer to share the cost of uplinking SportsNet for satellite delivery constitutes evidence that the primary purpose
for terrestrially delivering SportsNet was evading the program access requirements, rather than selecting the
most cost effective delivery method.  As discussed above, Defendants have presented evidence that they enjoy
significant cost savings by employing terrestrial distribution methods.  EchoStar's subsequent offer to share
the costs of uplinking SportsNet's signal for purposes of satellite distribution by EchoStar and, perhaps, other
DBS providers, does not alter the logic of defendants' initial business decision to utilize terrestrial delivery
methods.  Having employed terrestrial distribution for legitimate business means and not for purposes of
evading the program access rules, Defendants' introduced SportsNet, a new programming service.  As a new,
terrestrially delivered service, SportsNet is not subject to the program access rules and not required to provide
access to all interested MVPDs.  Accordingly, EchoStar's subsequent offer to share uplinking costs after
Defendants have legitimately chosen terrestrial delivery methods is not relevant to our determination. 
     
     27.    The final argument that EchoStar makes is that Defendants' conduct violates Section 628(b)
of the Communications Act.  This provision reads as follows:

           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.

EchoStar asserts that Section 628(b) has broad applicability and does not specifically require that the unfair
practices in question hinder the distribution of the programming at issue.  Because its own service is satellite
delivered, EchoStar asserts that Defendants' unfair denial of SportsNet violates Section 628(b) because it
hinders the provision of EchoStar's satellite delivered service.

     28.  We are not persuaded that the facts alleged are sufficient to constitute a Section 628(b)
violation.  In order to find a violation of Section 628(b), the Commission must make two independent
determinations.  First, the Commission must determine that the defendant has engaged in unfair methods of
competition or unfair or deceptive acts or practices.  Second, the Commission must determine that the unfair
acts or practices, if found, had the purpose or effect of hindering significantly or preventing a MVPD from
providing satellite cable programming to subscribers or consumers.  Here, we do not believe that the record
supports a conclusion that Defendants have engaged in unfair or deceptive acts in creating, packaging and
distributing SportsNet.  In enacting Section 628, Congress determined that while cable operators generally
must make available to competing MVPDs vertically-integrated programming that is satellite-delivered, they
do not have a similar obligation with respect to programming that is terrestrially-delivered.  EchoStar's
argument would have us find that it is somehow unfair for a cable operator to move a programming service
from satellite delivery to terrestrial delivery if it means that a competing MVPD may no longer be afforded
access to the service.  We find no evidence in Section 628 that Congress intended such a result.  Congress did
not prohibit cable operators from delivering any particular type of service terrestrially, did not prohibit cable
operators from moving any particular service from satellite to terrestrial delivery, and did not provide that
program access obligations remain with a programming service that has been so moved.  Thus, given our prior
finding that Defendants' actions do not amount to an attempt to evade our rules, we decline to find that,
standing alone, Defendants' decision to deliver SportsNet terrestrially and to deny that programming to
EchoStar is "unfair" under Section 628(b). 

     29.  Section 628(b) remains, as the Commission has stated previously, "a clear repository of
Commission jurisdiction to adopt additional rules or to take additional action to accomplish statutory objectives
should additional types of conduct emerge as barriers to competition and obstacles to the broader distribution
of satellite cable and broadcast programming."   It cannot, however, be converted into a tool that, on a per
se basis, precludes cable operators from exercising competitive choices that Congress deemed legitimate.    
     
     30.  Following the release of our DIRECTV order, EchoStar filed a Motion to Compel Production
of Documents ("Motion").  Defendants filed an Opposition and Request to Strike to which EchoStar filed a
Reply.  While stating numerous times in its Motion that the record in this proceeding contains sufficient
evidence to establish violations of Section 628, EchoStar states that it must seek discovery in light of the
Bureau's DIRECTV decision.  In support of its Motion, EchoStar states that the Bureau in DIRECTV found
that "the record in that case did not contain enough evidence to establish that Comcast's conduct was 'unfair'
for purposes of the Section 628(b) prohibition."  EchoStar mischaracterizes the Bureau's decision in
DIRECTV.  In that case, the Bureau stated "[w]e are not persuaded that the facts alleged are sufficient to
constitute a Section 628(b) violation.  . . .  Here, we do not believe that the record supports a conclusion that
Comcast has engaged in unfair or deceptive acts in creating, packaging and distributing Comcast SportsNet." 
Contrary to EchoStar's assertion, the Bureau's decision in DIRECTV did not deny DIRECTV's claim based
on insufficient evidence.  Rather, the Bureau, assuming the facts alleged by DIRECTV to be true, determined
that DIRECTV failed to establish a violation of Section 628(b).
     
     31.  EchoStar also argues in its Motion that "the facts underlying the EchoStar and DIRECTV
complaints are different in at least one significant respect . . . Comcast [publicly admitted that it] decided to
withhold its sports programming from certain competitors to counter those competitors' own exclusive
programming.  Echostar, however, does not enjoy any such exclusive rights, unlike DIRECTV."  These facts
do not serve to alter our conclusions herein or persuade us that discovery is warranted.  As stated above:
     
          EchoStar's argument would have us find that it is somehow unfair for a cable operator to
     move a programming service from satellite delivery to terrestrial delivery if it means that a
     competing MVPD may no longer be afforded access to the service.  . . .  [G]iven . . . that
     Defendants' actions do not amount to an attempt to evade our rules, we decline to find that,
     standing alone, Defendants' decision to deliver SportsNet terrestrially and to deny that
     programming to EchoStar is "unfair" under Section 628(b).
     
Our decision herein, as in DIRECTV, is unrelated to the complainant's possession, or lack thereof, of an
exclusive source of sports programming.  Echostar has not persuaded us that discovery is necessary or that the
record compiled herein is insufficient.  Accordingly, EchoStar's Motion is denied.
     
VI.  ORDERING CLAUSES

     32.  Accordingly, IT IS ORDERED, that the complaint filed in CSR 5244-P by EchoStar
Communications Corporation IS DENIED.

     33.  IT IS FURTHER ORDERED, that EchoStar Communications Corporation's Motion to
Compel Production of Documents IS DENIED.

     34.  This action is taken pursuant to authority delegated by Section 0.321 of the Commission's
rules, 47 C.F.R.  0.321.
     

                         FEDERAL COMMUNICATIONS COMMISSION

     

                         Deborah A. Lathen
                         Chief, Cable Services Bureau