In Re Request by TIME-LIFE BROADCAST, INC.; STERLING MANHATTAN CABLE TELEVISION, INC. For Interpretive Ruling
FEDERAL COMMUNICATIONS COMMISSION
31 F.C.C.2d 747
RELEASE-NUMBER: FCC 71-946
SEPTEMBER 8, 1971
[*747] DEAR MR. PIERSON: This is in reply to your letter of July 7, 1971, written on behalf of Time-Life Broadcast, Inc., and Sterling Manhattan Cable Television, Inc., in which you ask the Commission to issue an interpretive ruling that pay television cablecasting operations by Sterling Manhattan Cable Television are "affirmatively authorized." You state that affirmative authorization by the Commission is necessary for CATV systems presently franchised in New York City because Section 4(1) of the New York City Franchise, issued to Sterling Manhattan Cable Television, states in part that, "The Company shall not engage in Pay Television nor shall it deliver signals of any person engaged in Pay Television, unless and until affirmatively authorized by the FCC."
In paragraph 17 of the Notice of Proposed Rule Making in Docket 18397, 15 FCC 2d 417 (1968), the Commission indicated that CATV's could make per-program charges. More recently, in Clarification of CATV First Report, 20 FCC 2d 741 (1969), this Commission ruled that local authorities are pre-empted from interfering with federally authorized CATV origination and advertising. Accordingly, the Commission has pre-empted the field of pay television cablecasting so that local franchise terms are inoperative and no further affirmative authorization is required. In any event, the cited actions make clear the Commission's recognition that pay television on cable may serve the public interest and it has, to the extent indicated, already authorized such operations. And see "Letter of Intent of August 5, 1971", FCC 71-787.
Any such operation must be consistent with the Commission's present regulations (See Section 74.1121 of the Commission's Rules) and any revision thereof (e.g., see Notice of Proposed Rule Making in Docket No. 18893, FCC 70-678). This present letter is thus not to be construed to sanction, authorize, or encourage the carriage of any specific program on pay cablevision. As you know, the Commission has expressed its continued concern that programming now presented on broadcast television might be siphoned off to cable, and it intends to keep a close watch on this question and to take whatever action is necessary to protect the public interest.
[*748] We trust the foregoing adequately supplies the information sought in your letter of July 7, 1971.
Commissioner Robert E. Lee not participating; Commissioner Johnson concurring in part and dissenting in part and issuing a statement; Commissioner Wells concurring in the result.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY: JOHNSON (IN PART)
OPINION BY COMMISSIONER JOHNSON, CONCURRING IN PART AND DISSENTING IN PART
This letter constitutes, in my judgment, a major cable policy decision by the Federal Communications Commission.
We are authorizing subscription television on cable television systems (1) by the cable operators or (2) by leasees of their facilities.
Moreover, we are ruling this is so, notwithstanding the express prohibition of such programming by the local franchising authority -- here, the City of New York.
I believe the issues here involved are of sufficient consequence that they ought to be considered in a little more thorough way than a specially-processed, late-agenda-item letter to an attorney.
I concur in authorizing cable operators to lease channels for subscription television purposes. Even as to that issue, however, I believe we have not in this instance given adequate consideration to the interests of local governments in such matters.
We are now in the process of issuing a new major policy statement on cable. See "Letter of Intent" of August 5, 1971; FCC 71-787. I believe it is untimely to be issuing a separate policy statement on such a specific significant issue at this time.