1. The Commission has before it for consideration the above-captioned application seeking consent to the transfer of control of the license of television broadcast station WTBS(TV), channel 17, Atlanta, Georgia, from Turner Broadcasting System, Inc. (Turner) to Time Warner, Inc. (Time Warner). This transfer is proposed as part of a merger of the interests of Turner and Time Warner.

2. Comments in response to the application as originally filed were received from the United States Telephone Association (USTA) and the Small Cable Business Association (SCBA). The Consumer Federation of America (CFA) filed comments in response to USTA©s filing.© Turner and Time Warner responded to these pleadings, and the commenters submitted replies. An amended application was subsequently filed,2 reflecting a restructuring of the merger proposal to bring it into conformance with a proposed "Consent Decree" that has receive©! initial approval by fhe Federal Trade Commission (FTC) as part of its review of the merger/

3. Turner is the ultimate parent company of SuperStation, Inc., the licensee of WTBS(TV), channel 17, Atlanta, Georgia. Turner is a publicly traded media company that operates, directly or through subsidiaries, several cable news4 and entertainment5 networks,

©In addition, several letters relating to the merger transaction were also submitted to the Commission informally by Chuck Harder, President of For The People, a non-profit corporation located in Florida that produces independent programming. The letters express concern about consolidation in the media industry and fears that independent programmers, like his organization, will encounter more difficulty finding outlets to carry their programming.

following submission of the amended application, USTA filed a letter seeking to conditionally withdraw its comments, conditioned on the FTC Consent Order being adopted substantially as proposed. CFA filed an opposition to USTA©s letter, contending that it may not be accepted because it has not been submitted in compliance with 47 C.F.R. §73.3588(a), which requires Commission consent and the disclosure of information as to whether any payment or other consideration was exchanged in connection with the dismissal of petitions to deny or informal objections. In light of the conditional nature of the withdrawal and the matters noted by CFA, we find it appropriate to consider the USTA comments as filed. As described below, we find the majority of the concerns raised by both USTA and SCBA have been rendered moot by the cancellation of certain agreements previously to have been entered into in connection with the merger that would have provided for the carriage by Telecommunications Inc. cable systems of Turner Broadcasting programming for a 20-year period.

©In the Matter of Time Warner, Inc., Turner Broadcasting System, Inc., Tele-Communications, Inc. and Liberty Media Corporation, Agreement Containing Consent Order, File No. 961-0004, 61 Fed. Reg. 50301 (released September 12, 1996) ("FTC Consent Order"). The proposed consent decree and associated documents are contained in the amended application.

©Turner©s news division includes four 24-hour all-news networks: Cable News Network (CNN); Headline News; CNN International; and CNNfn.

19596 Federal Communications Commission FCC 96-405

runs a production and distribution operation,6 and owns several other business interests.7 Turner produces, acquires and distributes cable and broadcast programming throughout the world and is a leading supplier of programming for the cable industry in the United States. Turner is owned in part by a number of firms that are involved in the cable television business. Tele-Communications, Inc. (TCI), the nation©s largest operator of cable television systems, through its wholly-owned subsidiary Liberty Media Corporation (Liberty), has approximately a 22% interest. Time Warner has approximately an 18.6% interest.8

4. Time Warner is a diversified international entertainment and video distribution company. It publishes magazines, markets books, music, video and print products, produces and markets recorded music, produces and distributes motion pictures and television programming, owns and operates pay television services, owns and operates cable systems, provides telecommunications services, and operates regional theme parks.9 Time Warner has attributable interests in cable systems serving approximately 16% of all cable subscribers in the United States. 10 TCI has attributable interests in cable systems serving approximately 26% of ail cable subscribers in the United States.©©

5. In order to effectuate the merger, pursuant to the Amended and Restated

©Turner©s entertainment division includes four 24-hour domestic cable networks: Turner Superstation; Turner Network Television (TNT); The Cartoon Network; and Turner Classic Movies (TCM). Turner©s international networks include: TNT Latin America and The Cartoon Network Latin America; and TNT and The Cartoon Network in Europe and Asia.

&Tumer©s production and distribution operations include three companies involved principally in motion picture production: Castle Rock Entertainment; New Line Cinema; and Turner Pictures. Turner©s production arm also includes: Turner Original Productions; Hanna-Barbera Cartoons Inc.; Turner Entertainment Co.; Turner International; Turner Program Services; and Turner Home Entertainment.

©Other Turner businesses include: Major League Baseball©s Atlanta Braves; the National Basketball Association©s Atlanta Hawks; Turner Sports; SportSouth (a regional cable network); CNN Interactive; CNN Airport Network; World Championship Wrestling; CNN Center; and interests in libraries of old motion pictures.

8Comcast Cable Communications and Continental Cablevision have ownership interests of less than 5% each. See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 11 FCC Red 2060, 2789-99, Appendix H, Table 1 (1995) ("Second Annual Competition Report").

©The assets in which Time Wamer has an interest include: Time Warner Cable, the Warner Studio, theme parks, DC Comics, Wamer Brothers retail stores, television production, the WB broadcast network, and interests in cable programming networks. Those cable network interests include: HBO, Cinemax, Comedy Central, E! Entertainment and Court TV. Time Warner owns and operates a publishing division and the Warner Music Group, a set of popular record labels.

10These percentages are based on 1995 data. See Second Annual Competition Report, 11 FCC Red at 2789-99, Appendix G, p. 3, Table 2. "Id.

19597 Federal Communications Commission FCC 96-405

Agreement and Plan of Merger and the amendments thereto, between Time Warner and Turner, a new holding company, with two subsidiaries, will be formed. Time Warner and Turner will each merge into separate subsidiaries of the holding company. Following consummation of the merger, the holding company, which will be renamed Time Warner, Inc., will emerge as a publicly-traded, Delaware corporation, and will wholly control Turner. Subject to, inter alia, the approval of Turner and Time Warner shareholders, each common and preferred shareholder of Turner will exchange its shares for common stock in the newly formed holding company. Each Time Warner share will be converted into the right to receive one share of an identical class of the capital stock of the newly-formed holding company.

6. The original transfer application attempted to address two problems of compliance with the Commission©s rules. First, Section 76.503(a), the Commission©s horizontal ownership rule, generally prohibits a person or entity from reaching more than 30% of all homes passed nationwide. 12 The applicable attribution rules recognize voting equity or partnership inte-^sts of 5% or more in a cable company for purposes of the horizontal ownership rules. 13

7. In its original application, Time Warner indicated that TCI, through its Liberty subsidiary, would receive shares of Time Warner voting stock in exchange for its shares in Turner. These shares would have constituted approximately 10% of the outstanding voting stock of Time Warner and, without more, would have resulted in a violation of the horizontal ownership rule since the combined interests of Time Warner and TCI would have far exceeded the 30% homes passed horizontal ownership limit. However, Time Warner proposed that TCI©s post-merger shares in Time Warner not be subject to either Liberty or TCI having voting power. Rather the shares would either be held in trust with the trustee (Gerald M. Levin, the Chairman and Chief Executive Officer of Time Warner) having the exclusive right to vote the stock or, in the alternative, the shares would be converted to non- voting shares. In the original application, Time Warner asked that the Commission confirm that the beneficial interest in post-merger Time Warner shares held by Liberty would not constitute an attributable interest for purposes of the broadcast multiple ownership rules, as

1247 C.F.R. § 76.503(a); 47 U.S.C. § 533(f)(l)(A). This rule was adopted in compliance with the mandate of Section 613(f)(l)(a) of the Communications Act. Section 613(f)(l)(A) of the Communications Act, 47 U.S.C. § 533(f)(l)(A); Implementation of Sections 11 and 13 of the Cable Television Consumer Protection and Competition Act of 1992, Horizontal and Vertical Ownership Limits, Second Report and Order, 8 FCC Red 8565 (1993)("Second Repor© and Order"). Because a federal district court had ruled that Section 533(f)(l)(A) was unconstitutional, Daniels Cablevision v. United States, 835 F. Supp. 1,10 (D.D.C. 1993) ("Daniels"), in the Second Report and Order the Commission stayed the rule pending a final judicial resolution of the court©s decision. The Commission©s horizontal ownership rule also was challenged in court. Time Warner Entertainment Co., L.P. v. FCC, No. 94-1035 (filed Jan. 14, 1994). On appeal of Daniels, the court consolidated the challenge to the constitutionality of the statutory provision with the pending challenge to the Commission©s rule. Time Warner Entertainment Co., L.P. v. FCC, 93 F.3d 957 (D.C. Cir. 1996). Notwithstanding the stay, the application herein reflects an effort to comply with the existing rule and has been reviewed in that light.

1347 C.F.R. § 76.501

19598 Federal Communications Commission FCC 96-405 well as other Commission rules using the same attribution standard, in particular, the Commission©s horizontal ownership rules.

8. The amended application addresses the horizontal ownership issue through a different ownership structure and Time Warner therefore withdrew its request for approval of the trust agreement. Under the amended application and pursuant to the terms of the Consent Order, TCI and Liberty would divest their Time Warner shares to a separate company that would be spun off as a stock dividend to Liberty©s shareholders. As described more fully below, the separate company would not vote any stock in Time Warner and various structural provisions would be incorporated into the ownership arrangement to minimize TCI©s influence and control over Time Warner.

9. Another issue raised in the application involves compliance with Section 76.501 (a) of the Commission©s rules. 14 This provision of the rules prohibits common ownership of a :able system and a television brc xdcast station if the cable system directly or indirectly owns, operates, controls or has an interest in the television broadcast station and that station©s predicted Grade B coverage contour overlaps in whole or in part the service area of the cable system. Time Warner©s ownership of WTBS(TV) as a result of the merger, and its continued ownership of a cable system serving three counties that fall within the Grade B contour of WTBS(TV), would conflict with the Commission©s cable-broadcast television cross-ownership rule. To address this problem, Time Warner has proposed to divest itself of ownership in the cable system involved and has requested an 18-month waiver of the cable- television cross-ownership restriction in which to accomplish this divestiture.

10. In addition to the above referenced matters, which address specific aspects of the Commission©s rules, the amended application also reflects the results of an investigation by the FTC of the proposed merger. As a result of this investigation, the parties, Time Warner, Turner, TCI and Liberty, entered into an Agreement Containing Consent Order with the FTC. 15 In addition to the changes in the ownership relationship between TCI and Time Warner, that are reflected above, the agreement contains a number of other provisions that are designed to address other potential competitive concerns with the merger. Certain agreements relating to the continued carriage of Turner programming service by TCI for a 20-year period have been cancelled. In order to help ensure that programmers unaffiliated with Time Warner will have the opportunity to bid for carriage on TCI systems, future TCI-Time Warner carriage agreements must contain an option for TCI to terminate carriage every five years. The Consent Order restricts Time Warner©s ability to bundle sales of Home Box Office (HBO) with current Turner networks and bars Time Warner from bundling CNN, TNT or WTBS(TV) with any current Time Warner networks. Time Warner is barred from

M47 C.F.R. § 75.501(a). Section 202(i) of the Telecommunications Act of 1996, P.L. 104-104, 110 Stat. 56, approved February 8, 1996, repealed the statutory prohibition on broadcast-cable cross-ownership, 47 U.S.C. § 613(a), but left intact the Commission rule banning such cross-ownership.

15See generally, supra n. 3.

19599 Federal Communications Commission FCC 96-405 discriminating in the price of its programming to rival multichannel video programming distributors ( MVPDs). Time Warner is also barred from discriminating in carriage decisions against rival programmers seeking carriage on Time Warner©s cable systems. Finally, the Consent Order requires Time Warner©s cable systems to carry a rival to CNN.

LICENSE TRANSFER REVIEW STANDARDS

11. If a party in interest objects to an application for transfer of control, Section 309(d) of the Communications Act, as implemented by Section 73.3584 of the Commission©s rules for the broadcast service, permits that party to "file with the Commission a petition to deny any application . . .." Preliminarily, such petitions must contain "specific allegations of fact." 16 If the facts alleged are specific, the Commission must determine whether those facts, if true, show that grant of the application would be prima facie inconsistent with the public interest, convenience and necessity. 17

12. When a petitioner fails to establish a. prima facie case, the petition may be denied without a hearing. When a petitioner makes such a case and presents a "substantial and material" question of fact, it is entitled to a hearing on its allegations. 18 The Commission is not required to resolve, through a hearing, issues which the Commission finds are neither "substantial" nor "material," regardless of whether the facts involved are in dispute. 19 Where the facts required to resolve a question are not in dispute and the disposition of a petitioner©s claims turns not on determination of facts but on inferences to be drawn from facts already known and the legal conclusions to be drawn from those facts, the Commission need not hold a hearing.20 If the Commission finds that there are no substantial and material questions of fact and that granting the applications would be consistent with the public interest, it shall make the grant, deny the petition, and issue a concise statement of the reasons for denying the petition, disposing of all substantial issues raised by the petition.21

I647 U.S.C. § 309(d)(l).

}1 Prima facie sufficiency means "the degree of evidence necessary to make, not a fully persuasive case, but rather what a reasonable fact-finder might view as a persuasive case - the quantum, in other words, that would induce a trial judge to let a case go to the jury even though he himself would (if nothing more were known) find against the plaintiff." Citizens for Jazz on WRVR v. FCC, 775 F.2d 392, 397 (D.C. Cir. 1985) (emphasis in original).

I847 U.S.C. § 309(e). A "substantial" question of fact is one in which "the totality of the evidence arouses a sufficient doubt on the point that further inquiry is called for." Citizens for Jazz on WRVR v. FCC, 775 F.2d at 395. A "material" fact is one the Commission finds relevant in making its public interest determination. Stone v. FCC, 466 F.2d 316, 323 n.18 (D.C. Cir. 1972) (citing H.R. Rep. No. 1800, 86th Cong., 2d Sess. 12 (I960)).

©©Stone v. FCC, 466 F.2d at 323. 20Id.

2147 U.S.C. § 309(d)(2).

19600 Federal Communications Commission FCC 96-405

13. For the reasons discussed below, we conclude that no substantial question has been raised with respect to Time Warner©s basic qualifications to be a Commission licensee and that the pending application should be granted. Specifically, we conclude that the program access concerns that have been raised are not ripe for consideration and should be addressed, if at all, in separate proceedings. We also conclude that a waiver of the Commission©s broadcast-cable cross-ownership prohibition for twelve months, to enable an orderly divestiture of Time Warner©s cable system located within the Grade B contour of WTBS(TV), is in the public interest.

TCI - TIME WARNER RELATIONSHIP - HORIZONTAL OWNERSHIP

14. Background: As indicated above, the Commission has adopted a rule that generally limits a person or entity from reaching nore than 30% of all homes passed nationwide through cable systems owned by such person or entity or in which such person or entity holds an attributable interest. For purposes of the Commission©s horizontal ownership rules, the associated attribution rules provide that a 5% voting equity or partnership interest in a cable company is deemed to be cognizable. Holders of non-voting stock are not attributed an interest in the issuing entity.22 A critical issue in this proceeding in terms of both compliance with the Commission©s rules and with a general competitive analysis of the transaction, is the common ownership relationship that results between TCI and Time Warner, the first and second largest operators of cable television systems in the United States. Both of these firms have an existing ownership interest in Turner. As a consequence of the merger, TCI will end up with a significant ownership (approximately 7.5%) interest in Time Warner. In effect, the merger of Time Warner and Turner might be viewed as resulting in a partial merger of the interests of Time Warner and TCI. The parties initially proposed a trust mechanism in an effort to keep separate the interests of TCI and Time Warner. The amended application proposes an ownership structure, consistent with the proposed Consent Decree, that eliminates the trust mechanism but creates additional changes in the structure of the ownership relationship between these two parties to keep them separate.

15. CFA©s comments articulate concern about media concentration in the multichannel video programming distribution market that would exist as a result of the merger as originally proposed. CFA contends that Time Warner and TCI have used their ownership interests in Turner to their advantage, specifically by blocking development of a rival to CNN. TCI©s investment in the post-merger Time Warner, CFA argues, militates strongly against fair competition and will adversely impact diversity in cable programming. These adverse effects will occur, according to CFA, even if the TCI investment is nominally passive or non-voting. CFA asks that the Commission hold a hearing on the issues raised. CFA concludes that the Time Warner-Turner merger does not have to be proscribed, only that TCI©s investment in the

"47 C.F.R. §§ 76.501 notes 2(a) and 2(f) and 76.503(f).

19601 Federal Communications Commission FCC 96-405 post-merger Time Warner should be accommodated in some other fashion, consistent with the public interest.

16. Time Warner responds, in terms of the original application, that CFA©s speculation that TCI might "take control of Time Warner is unfounded and notes that CFA fails to specify any acts they believe TCI or Time Warner would have incentive or be able to take after the merger and do not state any specific rules that will be violated. The claims that Time Warner or TCI will take anti-competitive actions to favor CNN or any other Turner program services, Time Warner continues, are based on unfounded allegations made years ago and ignore the state of the industry today, including the Commission©s program access and carriage rules and the fact that CNN now has two rivals in the 24-hour cable news business. In addition, Time Warner states that since CFA©s concerns are addressed by specific Commission rules, TCI©s interest should not be prohibited under the general "public interest" standard.

17. Discussion: If the interests of Time Warner were attributable to TCI then the combined entities would have owned or controlled cable systems serving over 42% of subscribers nationwide and roughly the same proportion of homes passed nationwide,2"1 well in excess of the 30% limit contained in the horizontal ownership rules. We are persuaded, however, that the ownership structure reflected in the amended application sufficiently separates the interests of TCI and Time Warner so that no concern exists with compliance with the horizontal ownership rules or with the policies leading to its adoption. Under the amended application, TCI and Liberty will divest their ownership of 7.5% of Time Warner©s shares to a separate company (Separate Company) that will be spun off by TCI and Liberty and, except in limited circumstances, this interest would be non-voting.24 Under the amended application, to wall off TCI and its controlling shareholders25 from influencing the officers, directors, and employees of the Separate Company and its day-to-day operations:

- Within six months of the distribution of Separate Company©s stock, the stockholders (excluding the controlling shareholders) of that company must elect new directors;

- Members of the board of directors of Separate Company may not serve as officers, directors, or employees of TCI or Liberty, or hold or control greater than one-tenth of one percent (0.1%) of the ownership in or voting power of

2:©Second Annual Competition Report, 11 FCC Red at 2789-99, Appendix G, p. 3, Table 2.

24The 7.5% of Time Warner shares is the amount TCI and Liberty would receive from Time Warner in exchange for their ownership interest in Turner.

:5TCI©s "controlling shareholders" are defined by the FTC Consent Decree to mean the following persons, individually as well as collectively: Bob Magness, John C. Malonc, and the Keams-Tribune Corporation, its agents and representatives and the respective successors and assigns of any of the foregoing.

19602 Federal Communications Commission FCC 96-405

TCI or Liberty;

- Officers, directors or employees of TCI or Liberty will not concurrently serve as officers, directors, or employees of the Separate Company, with a narrow exception so that TCI or Liberty employees may provide certain limited operational services;

- The controlling TCI shareholders will not vote (other than a de minimis voting share necessary for tax purposes) any stock of Separate Company to elect the board of directors or on other matters. There are limited exceptions for voting on major issues such as a proposed merger or sale, the disposition of all or substantially all of its assets, or proposed changes in its corporate charter or bylaws. However, no vote on any of these excepted issues would be successful unless a majority of shareholders other than the controlling TCI shareholders vote in favor of such proposal;

- The controlling TCI shareholders will not seek to influence, or attempt to control by proxy or otherwise, any other person©s vote of Separate Company©s stock;

- Officers, directors, and employees of TCI or Liberty, or any of the controlling TCI shareholders will not communicate with any officer, director, or employee of Separate Company except on the limited matters on which they are permitted to vote;

- Separate Company is prohibited from acquiring more than 14.99% of the fully diluted equity shares of Time Warner, with exceptions in the event that the controlling TCI shareholders sell their stock in Separate Company or in TCI and Liberty; and

- Separate Company is prohibited from voting its shares (other than a de minimis voting share necessary for tax purposes) in Time Warner, except that such shares can become voting if Separate Company sells them to an independent third party or in the event that the controlling TCI shareholders sell their stock in Separate Company or in TCI and Liberty.

18. The above structure is contingent on TCI and Liberty obtaining an Internal Revenue Service (IRS) ruling that the divestiture of TCI©s and Liberty©s interest in Time Warner to the Separate Company would be generally tax-free. Pending the IRS ruling, or in the event that such a ruling cannot be obtained, (1) TCI, Liberty, John C. Malone, President and Chief Executive Officer of TCI, and Bob Magness, Chairman, Board of Directors of TCI, collectively and individually, are capped at a level no more than the lesser of 9.2% of the fully diluted equity of Time Warner or 12.4% of the actual issued and outstanding common stock of Time Warner; and (2) TCI, Liberty and the controlling TCI shareholders© interest in Time Warner must be nonvoting (other than a de minimis voting share necessary for tax

19603 Federal Communications Commission FCC 96-405 purposes), unless the interest is sold to an independent third party.

19. These amendments eliminate potential concerns relating to compliance with the cable television horizontal ownership rules and with the policy concerns leading to their adoption. The changes are specifically designed to keep separate the interests of Time Warner and TCI ~ to make sure that neither has an attributable interest in the other -- and to reduce the incentives and opportunities they have to act in concert in ways that would restrict competition or reduce diversity in the market involved.26 Accordingly, we conclude that the ownership structure proposed, involving the interest of TCI in Time Warner poses no obstacle to a grant of the application.

ACCESS TO PROGRAMMING ISSUES

20. Background: In the 1992 Cable Act, Congress found that as a result of increased vertical integration bef"©een cable operators and cable programmers, vertically integrated program suppliers have the incentive and ability to favor, through favoritism in price, terms and conditions or outright exclusivity, their affiliated cable operators over nonaffiliated cable operators and programming distributors using other technologies.27 The rules the Commission adopted pursuant to the 1992 Cable Act address these concerns through a variety of means, including of particular relevance here, by prohibiting exclusive contracts for programming in certain circumstances and by prohibiting discrimination in the prices and terms of the sale of video programming, except where such discrimination is justified by statutorily permitted factors such as cost-based differences and volume discounts.28

21. Section 628(b) of the Communications Act generally prohibits unfair or anti competitive practices in selling programming to MVPDs. 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

26Much of CFA©s comments and concerns appear to be mooted by the amended application to which CFA has not responded. In fact, even CFA stated that TCI©s interest in the post-merger Time Warner need not be proscribed, but merely modified in some fashion which is consistent with the public interest. We believe that the modification of TCI©s interest should address much of CFA©s concern. In the circumstances no hearing of the type suggested by CFA is appropriate.

"1992 Cable Act § 2(a)(5).

**See 47 C.F.R. §§ 76.1000 - 76.1003

19604 Federal Communications Commission FCC 96-405

to subscribers or consumers. 29

Section 628(c) of the Communications Act and Commission rules promulgated thereunder prohibit discrimination by a vertically integrated (i.e., cable-affiliated) satellite cable programming vendor or by a superstation vendor in the prices, terms and conditions of sale of programming.30 This prohibition applies to discrimination among or between cable operators or other MVPDs. The regulations generally apply to cable networks in which cable operators have an "attributable interest."

22. The Commission©s regulations provide that discrimination exists where the same programming service is sold to competing distributors at different prices or on different terms and conditions.31 Such discrimination is prohibited unless it can be justified under one of the exceptions provided by the 1992 Cable Act and the Commission©s rules.32 The rules require that complaints must involve discrimination between "competing distributors." To be considered i competing distributor, the rules require that there be some overlap in the actual or proposed service area.33 The geographic market for assessing whether distributors compete with each other can be local, regional or national, depending on how the distributor buys and distributes programming.

23. In adopting the program access rules under the 1992 Cable Act, the Commission sought to carry out Congress© preference that program access disputes be resolved in the marketplace.34 Any disputes not so resolved are to be addressed by the Commission on a case-by-case basis.35 Before a party may file a program access complaint with the Commission, the rules require the aggrieved MVPD to provide notice to the

29 1992 Cable Act § 628(b).

30See 47 C.F.R. §§ 1001-1003.

3I47 C.F.R. § 76.10002(b); First Report and Order, Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act of 1992, 8 FCC Red 3359, 3400 (1993) ("First Report and Order"). ©-Id.

"47 C.F.R. § 76.1000(d).

* First Report and Order, 8 FCC Red at 3403 (1993) (quoting 1992 Cable Act, § 2(b)(2) (The Commission believes that the program access rules will effectively prohibit discriminatory practices by programming vendors, while still following the statute©s objectives to "rely on the marketplace, to the maximum extent feasible, to achieve greater availability of the relevant programming.").

35The Commission specifically rejected a generally applicable approach to program access issues, such as requiring program vendors to offer their programming to all MVPDs at the same rate and on the same terms. First Report and Order, 8 FCC Red at 3389. ("[We] believe that the only practical approach is to develop remedies on a case-by-case basis, in the context of specific facts.").

19605 Federal Communications Commission FCC 96-405 programming vendor, detailing the nature of the potential complaint.36 The notice requirement in the program access rules encourages parties to resolve disputes through private negotiations, with resort to the Commission complaint procedure serving as leverage to produce a settlement.37 Without evidence of notice to the opposing party, a party©s program access complaint will be dismissed.38 Because program access complaints center on sensitive business information, strict confidentiality rules govern materials disclosed by the defendant during both the pre-complaint and post-complaint periods.39

24. In their comments, USTA and SCBA asked the Commission to either impose conditions on the license transfer application to ensure competition in the multichannel programming market or deny the transfer. Both USTA and SCBA were concerned about a 20-year carriage agreement between Time Warner and TCI for Turner programming that was to become effective after the merger. As discussed below, we find that these comments do not raise a substantial or material question of fact warranting designation for a hearing on the issue of program access, the issue raised in their filings.

25. USTA is a national trade association for the local exchange carrier ("LEC") industry and represents over 1,100 LECs. USTA claims that many of its members are beginning to compete with the cable industry as multichannel video programming distributors ("MVPDs"). Thus, USTA continues, the availability of programming at prices and terms that are comparable to those received by the largest cable multiple system operators ("MSOs") is critical to their success. USTA is primarily concerned about the proposed transfer©s alleged implications for the video programming market. In particular, USTA is concerned about the satellite cable programming services contract allegedly entered into between TCI and Time Warner shortly before the merger was announced, that was said to be extremely favorable to TCI. USTA claims that under the contract, TCI will receive programming from the merged Time Warner at current rates with no price increases for 20 years. USTA believes that this programming contract is "per se discriminatory," not in the public interest, and is a violation of the Commission©s program access rules.

26. As part of the public interest determination required in a license transfer proceeding, USTA requests that the Commission require Time Warner to submit all programming-related agreements connected with the proposed transfer, including the alleged TCI contract. USTA further requests that MVPDs and other interested parties then be given

3047 C.F.R. § 76.1003(a).

"See First Report and Order, 8 FCC Red at 3416.

"Id.\ 47 C.F.R. § 76.1003(c)(4).

3947 C.F.R. § 76.1003(h). See First Report and Order, 8 FCC Red at 3391, n.103 and 3419 n.226; see also Memorandum Opinion and Order on Reconsideration of First Report and Order, 10 FCC Red 1902, 1932-33 (1994) ("Reconsideration Order").

19606 Federal Communications Commission FCC 96-405 the opportunity to review and comment on those programming-related agreements before the Commission rules on Time Warner©s instant application. USTA claims such a process would be similar to the one the Commission implemented when it considered the merger between AT&T and McCaw Cellular Corporation.40 USTA further requests that approval of Time Warner©s application be conditioned specifically on the merged Time Warner entity offering its satellite cable programming to competing MVPDs on the same terms, prices and conditions granted to TCI or any other affiliated cable .operator.41

27. SCBA is a trade association representing over 350 small cable companies. SCBA states that its members© economic viability hinges on the ability to obtain programming at fair and non-discriminatory rates. SCBA states that it has had success in purchasing programming at reasonable rates through the National Cable Television Cooperative, Inc. (NCTC). NCTC is a program "buying group" for small cable operators such as SCBA©s members. NCTC negotiates "master agreements" with providers of cable television video programming so that small operators may obtain ~ates comparable to those received by large multiple system operators (MSOs). Without a master agreement, SCBA claims that its members would individually pay up to 54% more for an average 30-channel line-up than a major MSO does for the same programming.42

28. SCBA is concerned that the proposed license transfer and merger will jeopardize existing and future master agreements with Turner and Time Warner for programming negotiated by NCTC. Though Turner was one of the first programmers to negotiate a master agreement with NCTC, SCBA claims that until June 1995, Time Warner refused to negotiate with NCTC. On June 15, 1995, Time Warner executed a master agreement with NCTC for HBO programming. SCBA claims, however, that the agreement was a short term contract of only three years rather than the five year term which SCBA claims is typical for such contracts. SCBA further claims that Time Warner executed the agreement only on the condition that NCTC withdraw its support for a provision in the Senate version of the Telecommunications Act of 1996 that was then believed to require programmers to sell their programming to small operators at prices comparable to those given

""Applications of Craig O. McCaw and AT&T, 9 FCC Red 5836, 5842-43 (1994), affd sub nom, SBC Communications v. FCC, 56 F.3d 1484 (D.C. Cir. 1995).

"©USTA claims that the Commission has authority to conduct further proceedings to resolve factual questions raised against an application, US v. FCC, 652 F.2d 72, 81-82 (D.C. Cir. 1980), and to place conditions on a license transfer "whenever in the absence of such conditions the transfer would not be in the public interest." See, e.g., Astroline Communications v. FCC, 857 F.2d 1556 (D.C. Cir. 1988); Citizens Committee v. FCC, 436 F.2d 263 (D.C. Cir. 1970).

42SCBA notes that because NCTC collectively represents operators serving approximately 4 million subscribers, it qualifies for volume discounts equivalent to the rate MSOs are able to obtain, assuming the programming provider is willing to negotiate with NCTC.

19607 Federal Communications Commission FCC 96-405 to large MSOs.43 While SCBA members currently have master programming agreements with both Turner and Time Warner through NCTC, SCBA is concerned that the current agreements will be in jeopardy when they expire and future agreements will be more difficult to negotiate if the two companies merge. Ii its members were unable to acquire Turner programming at competitive rates, SCBA claims its members would "likely be driven out of business." SCBA therefore requests that the Commission either: (1) impose conditions necessary to protect current and future agreements between NCTC and the post-merger entity; or (2) deny the application for transfer.

29. Turner responds by stating that it has consistently provided full and non- discriminatory access to its programming services. In fact, Turner states that it has entered into programming contracts with Americast, which is owned by the Walt Disney Company and several telephone companies, including several of the parties to the USTA pleading, Ameritech, BellSouth, GTE and SBC Communications, and that it is fully prepared to negotiate programming arranger :©itr ©^+Vi. r.ther interested telephone companies. Turner also points out that it currently has programming contracts with NCTC for SCBA members. Turner contends that the program access concerns raised are not ripe for consideration by the Commission. Turner states that at this time both USTA and SCBA©s members have programming contracts with Turner. Turner further asserts that the program access concerns should not be addressed as part of Time Warner©s license transfer application. Instead, Turner claims that any alleged program access violations should be considered in a separate proceeding, as required by the Commission©s program access rules. Moreover, Turner contends that the program access provisions adopted by Congress and embodied in the Commission rules do not prohibit all differences in terms and conditions in programming- related contracts, only unjustified discrimination.44

30. Time Warner responds that neither of the commenters challenge the qualifications of Time Warner as proposed licensee of WTBS(TV). Time Warner claims that they offer no reason why its application should be denied. In fact, Time Warner contends that the submissions in this proceeding are deficient under the standards governing petitions to deny set out in the Communications Act. Time Warner states that the comments contain no specific allegations of fact, supported by the affidavits of individuals with personal knowledge thereof, demonstrating that the petitioner is a party in interest with regard to the application

43Section 204(b) of Senate bill 652 would have removed the words "or other direct and legitimate economic benefits" from 47 U.S.C. § 548(c)(2)(B)(iii), which contains the program access provisions of the 1992 Cable Act. That change, SCBA asserts, would have required program vendors to cost-justify volume discounts. Subsequently, an amendment was adopted that deleted section 204(b).

"See 47 U.S.C. § 628(c)(2)(B)(i)-(iii).

19608 Federal Communications Commission FCC 96-405 and that the application would be prima facie inconsistent with the public interest.45 Even if informal objections are accepted in this proceeding, Time Warner continues, those objections must contain adequate and specific factual allegations sufficient to warrant the relief requested. Time Warner claims that the commenters do not make such allegations and that their filings offer nothing more than unsupported speculation which fails to demonstrate the need for the self-serving conditions they request.

31. Time Warner further responds that none of the comments is directly concerned with the merits of the transfer of control of the license of WTBS(TV). Instead, Time Warner states that the comments are generally concerned that the merger will adversely impact the availability of certain satellite-delivered cable programming networks currently owned by Turner. Those concerns, Time Warner claims, are speculative and unripe and should be addressed, if at all, in a separate proceeding under the program access provisions of the 1992 Cable Act. Time Warner states that the comments attempt inappropriately to use the transfer review process as a vehicle to gain leverage in prvate contractual matters or to seek imposition of additional obligations, not required by law, on the transfer applicants. Time Warner also states that NCTC filed no objections or comments with the Commission in connection with this matter and questions whether SCBA has "standing" to complain about programming agreements negotiated by NCTC.

32. Time Warner argues that to the extent the comments state that the market is not properly functioning with respect to the availability of Turner or Time Warner programming, the 1992 Cable Act and the Commission©s program access rules are the appropriate means of seeking relief. Under those rules, Time Warner claims, buying groups like NCTC have standing to file complaints alleging that a vertically-integrated satellite cable programming vendor has caused the buying group actual harm by engaging in unfair practices or has unreasonably discriminated against the buying group vis-a-vis a competing distributor. Buying groups, Time Warner states, may not, however, force programming vendors to deal with them on whatever terms the buying group demands. Time Warner claims that the Commission has recognized that a programming vendor may have legitimate business reasons for not selling programming to a particular distributor on the same terms and-conditions offered a competitor.

33. Discussion: In challenging an application, a petition to deny must, as a threshold matter, contain specific allegations of facts which, if true, demonstrate that grant of the application would be prima facie inconsistent with the public interest, convenience, and necessity.46 We find that none of the commenting parties has met this threshold. None of the comments make any allegations concerning WTBS(TV) or Time Warner©s qualifications as a

45Moreover, Time Warner claims that the commenters rely heavily upon accounts in newspaper stories and contends that reliance on those accounts is an unacceptable substitute for facts by a person with personal knowledge for purposes of opposing a broadcast application. See KRPL, Inc., 5 FCC Red 2823, 67 RR 2d 1172, 1174 (1990).

4647 U.S.C. § 309(d)(l).

19609 Federal Communications Commission FCC 96-405 broadcast licensee. Furthermore, the commenters fail to raise public interest concerns sufficient to deny the pending application. The comments consist of allegations concerning access to programming controlled by Time Warner and Turner, unsupported by an affidavit or declaration. Such causes of action relating to program access are properly addressed on a case-by-case basis as required by the Commission©s program access rules.

34. At present neither Time Warner nor Turner has refused to sell programming to either USTA or SCBA members or to NCTC.47 Unless or until a competing MVPD is offered Time Warner or Turner programming on discriminatory terms, there is no case or controversy for us to rule on.48 In short, the comments raise concerns properly addressed by the Commission©s program access rules. The program access complaint process established in our rules, pursuant to the 1992 Cable Act, governs such complaints and we will continue to address program access disputes on a case-by-case basis, pursuant to those rules.49 Moreover, to the extent that USTA and SCBA©s comments were predicated on the carriage agreements relating to the continued carriage of Turner programming service by TCI for a 20-year period, we note that those have been cancelled.50

35. Finally, we cannot conclude based on the evidence in the record in this proceeding, that grant of the application before us would be prima facie inconsistent with the public interest on the grounds that it does not promote competition and diversity in the video marketplace and the health of the small cable industry or results in an ownership structure that inherently will restrict competitive access to programming. The commenters have failed to raise any specific allegations of harm to themselves or any other party that would support such a finding.

CABLE-BROADCAST CROSS-OWNERSHIP RULE

36. Background: Time Warner controls a cable system serving 63,831 subscribers

47We note, as do Turner and Time Warner, that several USTA members currently have programming agreements with Turner and that NCTC currently has programming agreements with both Turner and Time Warner (for HBO).

™See Capital Cities/ABC, Inc., 11 FCC Red 5841, 5859 (1996) (the Commission©s programming access rules do not prohibit all price differentials).

"©Contrary to USTA©s assertion, this proceeding is not the "only opportunity" for the Commission to address program access issues that may arise from the proposed merger. Violations of our program access rules, if any, exist whether or not there is a merger; therefore, approval of a merger is not dispositive of future program access complaints brought against the merged company.

50We decline to specifically condition, as requested by USTA, approval of the application on the merged company offering its satellite cable programming to competing MVPDs on the same terms, prices and conditions granted to TCI or any other affiliated cable operator. As discussed above, the contracts on which the commenters© request is based are to be cancelled. In any event, our program access rules do not require such "universal" terms, prices and conditions in satellite cable programming agreements.

19610 Federal Communications Commission FCC 96-405 in Cherokee, Cobb and Fulton counties in Georgia, which fall within the Grade B contour of Turner©s WTBS(TV), channel 17, Atlanta, Georgia. As a result of the proposed merger, Time Warner would assume control of WTBS(TV) and that ownership interest, coupled with Time Warner©s ownership of the cable system, would contravene Section 76.501 (a) of the Commission©s rules, which prohibits a cable operator from owning a television broadcast station whose predicted Grade B contour covers any portion of the community served by the operator©s cable system.51 Consequently, Time Warner requests an 18-month waiver of the restrictions to provide it time to divest the cable system involved.

37. Time Warner claims that allowing it time to divest would be in the public interest because it will both avoid an abrupt disruption or diminution of cable service, and prevent a "fire sale" of the system. Both considerations, asserts the applicant, have led the Commission to grant such waivers in the past.52 Time Warner also maintains that 18 months is a reasonable time for purposes of divestiture, and would be consistent with Commission precedent in other cases involving large transactions. 53

38. Time Warner maintains that the cross-ownership involved in this case is far less extensive than has been approved by the Commission in the past.54 Further, Time Warner claims that a variety of other media voices serve the overlap area. These voices include 13 other television stations, ten of which are commercial, licensed to communities within the Atlanta Designated Market Area (DMA), the tenth largest DMA in the country, and 25 AM and FM stations are licensed to the city of Atlanta. Thus, Time Warner states, the temporary waiver will not threaten diversity.

39. Discussion: We believe that grant of the temporary waiver is consistent with precedent and will serve the public interest. By adopting the cable-television cross-ownership ban, the Commission sought to diversify the ownership of cable in combination with other

"Cox Cable Communications, Inc., 10 FCC Red 1559 (Cable Serv. Bur. 1994) (granting 18-month waiver of broadcast-cable cross-ownership rule to allow Cox Cable Communications to divest certain cable systems); American Television and Communications Corporation, 4 FCC Red 4707 (Mass. Med. Bur. 1989) (granting 18-month waiver of the cable-broadcast cross-ownership rule to allow Time, Inc. to divest certain cable interests); Golden West Associates, L.P., 59 RR 2d 125 (1985), aff'd, California Physically Handicapped v. FCC, 840 F.2d 88 (D.C. Cir. 1988) (granting 18-month waiver of broadcast-cable cross-ownership rule to allow Tribune Broadcasting Company to divest certain cable interests).

"Time Warner Entertainment, L.P., 8 FCC Red 7106 (1993) (granting 18-month waiver telephone-cable cross- ownership prohibition to permit US West to obtain 25.51% limited partnership interest in Time Warner).

SASee, e.g., Westinghouse Broadcasting Co., 84 FCC 2d 938 (1981) (granting temporary waiver of the cable- broadcast cross-ownership rule involving cable systems serving approximately 160,000 subscribers).

19611 Federal Communications Commission FCC 96-405 mass communications media.55 As later noted by the Commission, however, the existence of the regulatory prohibition against cable-broadcast cross-ownership does not prevent the Commission from allowing a temporary period to achieve compliance with the regulation, particularly where that would serve the public interest.56 Consequently, we have granted temporary waivers of the cable-broadcast cross-ownership rule in order to "accommodate the exigencies of the marketplace,"57 including to prevent shutdown of an operating cable service and loss of service to the public in situations involving a substantial sale where the cable system is a very small part of the transaction.58 Indeed, where the conflict with our multiple ownership rules is incidental to a much large merger, the Commission has determined that facilitating that transaction by granting the accompanying waivers "encourage[s] investment in the broadcast industry, and allow[s] for the full transferability of broadcast licenses."59

40. In this instance, the Georgia cable system comprises a small part of a large merger involving the transfer of substantial communications holdings. Allowing Time Warner a temporary period in which to *.".! .es >r rh1©- cable system in order to come into compliance with our regulations avoids a disruption of cable service in the affected area. Furthermore, the 63,831 subscribers to the Time Warner cable system involved in this waiver request are substantially fewer than the number of subscribers involved in waivers previously approved by the Commission.60 Additionally, regarding diversity in the affected market, 13 other television stations, including ten commercial stations, are licensed within the Atlanta DMA. Moreover, there are multipoint, multichannel distribution service (MMDS) operators (wireless cable systems) providing service within the Atlanta DMA. Finally, because the transferee will divest itself of the cable system, grant of the waiver request will not hinder the goal of the cable-broadcast cross-ownership rule the diversification of ownership of cable in combination with other mass communications media.

41. Regarding the duration of the waiver, we will grant a temporary 12 month waiver in conformity with recent Commission precedent as exemplified in the Multimedia,

"CAW, 15 FCC 2d 417, 426 (1968); Cable Television Report and Order, 36 FCC 2d 143, 145 (1972).

S6See Cox Cable Communications, Inc., 10 FCC Red 1559, 1563 (1994); Golden West Associates, L.P., 59 RR 2d 125, 130-31 (1985).

"Cablevision VI, Inc., 5 FCC Red 7166, 7166 (1990).

s*See Multimedia, Inc., 11 FCC Red 4883, 4893 (1995); Golden West Associates, L.P., 59 RR 2d at 132.

"Stockholders of CBS Inc., 11 FCC Red 3733, 3744 (1995) (Westinghouse-CBS, Inc. merger); Capital Cities/ABC,.Inc., 11 FCC Red 5841 (1996) (Disney-Capital Cities/ABC, Inc. merger).

60See, e.g., Multimedia, Inc., 11 FCC Red at 4883 (approximately 105,000 subscribers); Westinghouse Broadcasting Co., 84 FCC 2d 938 (1981) (approximately 160,000 subscribers).

19612 Federal Communications Commission FCC 96-405

Inc. case.61 As noted in that case, we believe a 12-month period will be sufficient to permit Time Warner to avoid a "fire sale" of the cable system or a forced reduction of cable service and yet remain within the confines of our public interest standard.62

42. We note that the original transfer application reflected that officers and directors of Time Warner were represented on the board of directors of Turner. In order to prevent attribution of WTBS(TV) to Time Warner, which would have resulted in a violation of the cable-television cross-ownership rule, these individuals each submitted a statement to Turner certifying that he would not be involved in the day-to-day operations of WTBS(TV) and would recuse himself from voting on or participating in any such matters that come before the Turner board of directors.63 Under Note 2(h) of Section 76.501, the officers and directors of a parent company of a broadcast licensee with an attributable interest in any such subsidiary entity, shall be deemed to have a cognizable interest in the subsidiary "unless the duties and responsibilities" of the officer or director involved are "wholly unrelated to the broadcast licensee . . ..©l64

43. The Commission has interpreted Note 2(h) as allowing attribution relief for corporate directors of multi-faceted parent corporations where these individuals© duties are neither directly nor indirectly related to the activities of any broadcast licensee in which the parent corporation has an interest.65 We have thus recognized director recusal of a director of a multi-faceted corporation in the television business as a predicate for relief from attribution in situations where we believed the measures undertaken by the parties adequately prevented the recused director from exercising authority or influence in areas that will affect the licensee

"Multimedia, Inc., 11 FCC Red at 4893-94.

6-Id at 4894.

63 In a March 11, 1996 amendment to its application, Time Warner indicated that Mr. Fuchs had resigned from the position he held with Time Warner and that Jeffrey Bewkes had been named President and CEO of HBO, a subsidiary of Time Warner, and had assumed Mr. Fuchs© seat on the Turner board of directors, and had submitted a recusal certification to the Turner board. According to that amendment, Mr. Bewkes as a recused director, like Levin and Collins, "has been advised that his recusal statement precludes him from voting on any and all matters coming before the Turner Broadcasting Board regarding the operation or management of television station WTBS, or from otherwise becoming involved in any such matters, and that such recusal is not limited merely to ©day-to-day© matters. However, Mr. Bewkes has also been advised that, in carrying out his fiduciary responsibilities to Turner Broadcasting shareholders generally as a Director, he is free to participate in matters before the Board affecting Turner Broadcasting generally, even if such matters may tangentially affect WTBS(TV)."

64 See 47 C.F.R. §76.501, Note 2(h).

"Attribution of Ownership Interests, 97 FCC 2d 997, 1025 (1984).

19613 Federal Communications Commission FCC 96-405 involved.66 The nature of the Turner corporation allows for the possibility that Turner directors can be adequately recused from dealing with issues related to subsidiary SuperStation, Inc. and we recognize that the brief statement made in the amendment may not fully detail the steps taken by Turner to insulate the Time Warner directors from dealing with issues related to SuperStation, Inc. Because the rule in question is not entirely clear in its coverage,67 we are concerned that the recusal process employed here not be interpreted as a mechanism for avoiding compliance with the cross-ownership rules that is broader than was intended. We take this opportunity, therefore, to emphasize to individuals seeking relief from attribution through recusal, that the individual must be recused at all times and from all matters that involve and/or implicate the subsidiary holding the licensee,68 including fiduciary issues which may only indirectly relate to the activities of the broadcast station involved.69 In addition, this mechanism is only to be used with diversified corporations. The Commission has stated in the past that "such relief [from attribution] should be ©narrow,© that [it] is, not intended to permit disclaimer of positional interests ©as a matter of course.©"70

66 See, e.g., Telemundo Group, Inc., 10 FCC Red 1104, 1106 (1994); Craig 0. McCaw, 9 FCC Red 5836, 5915- 16 (1994), affdsub nom., SBC Communications v. FCC, 56 F.3d 1484 (D.C. Cir. 1995); Viacom, Inc., 9 FCC Red 1577, 1579 (1994); see also Attribution of Ownership Interests, 97 FCC 2d at 1025.

67 Section 76.501 Note 2(h) provides in its entirety that

Officers and directors of a broadcast licensee or cable television system are considered to have a cognizable interest in the entity with which they are so associated. If any such entity engages in businesses in addition to its primary business of broadcasting or cable television service, it may request the Commission to waive attribution for any officer or director whose duties and responsibilities are wholly unrelated to its primary business. The officers and directors of a parent company of a broadcast licensee or cable television system, with an attributable interest in any such subsidiary entity, shall be deemed to have a cognizable interest in the subsidiary unless the duties and responsibilities of the officer or director involved are wholly unrelated to the broadcast licensee or cable television system subsidiary, and a statement properly documenting this fact is submitted to the Commission. (This statement may be included on appropriate Ownership Report.) The officers and directors of a sister corporation of a broadcast licensee or cable television system shall not be attributed with ownership of these entities by virtue of such status.

68 For example, in Telemundo Group, Inc., 10 FCC Red at 1106, we deemed an individual©s interest in the transferee non cognizable where that individual served as director of a company controlling several television licensees and also held various interests in an entity that had a 15.5% voting interest in transferee. In that case, the parties represented that the entity with interest in the transferee would implement mechanisms to insure the individual©s recusal from all issues dealing with the transferee by, inter alia: discussing matters involving the transferee separately at all meetings and allowing the individual ample opportunity to refrain from participation; by aggregating the financial reports for the entities having an interest in the transferee sufficiently so that the transferee©s performance figures are not separately displayed; and by redacting reports containing any discrete information regarding the transferee before distribution to the individual.

69See, e.g., Viacom, Inc., 9 FCC Red at 1580.

70Craig O. McCaw, 9 FCC Red at 5916 (request by AT&T for recusal of two Time Warner directors also on the board of AT&T).

19614 Federal Communications Commission FCC 96-405

CONCLUSION

44. Based on the foregoing we conclude that Time Warner is qualified to be a Commission licensee and find that a grant of the transfer of control of Turner©s broadcast station, WTBS(TV), to Time Warner will serve the public interest, convenience and necessity. Having resolved all allegations directed against Turner and Time Warner and finding that the proposed transaction is in the public interest, we shall grant the transfer of control of the Turner-held license of WTBS(TV) to Time Warner. This conclusion is specifically predicated on the final merger arrangements being completed substantially as proposed in the amended application.

45. Accordingly, IT IS ORDERED, that the requests for relief contained in the Comments filed by the Untied States Telephone Association, the Small Cable Business Association and *iled jointly by the Consumer Federation of America and Center for Media Education ARE DENIED.

46. IT IS FURTHER ORDERED that the application for consent to the transfer of control of Turner©s broadcast station, BTCCT-951020KF, IS GRANTED.

47. IT IS FURTHER ORDERED that the request for a waiver of Section 76.501(a), IS GRANTED for a period of twelve (12) months. Within 12 months of the consummation of the instant transaction, Time Warner is therefore directed to come into compliance with Section 76.501 of the Commission©s rules.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

19615

Table of Contents