[Federal Register Volume 73, Number 213 (Monday, November 3, 2008)]
[Notices]
[Pages 65312-65329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26147]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 08-214; DA 08-2269]


Herring Broadcasting, Inc. d/b/a WealthTV, Complainant v. Time 
Warner Cable Inc., Defendant; File No. CSR-7709-P; Herring 
Broadcasting, Inc. d/b/a WealthTV, Complainant v. Bright House 
Networks, LLC, Defendant; File No. CSR-7822-P; Herring Broadcasting, 
Inc. d/b/a WealthTV, Complainant v. Cox Communications, Inc., 
Defendant; File No. CSR-7829-P; Herring Broadcasting, Inc. d/b/a 
WealthTV, Complainant v. Comcast Corporation, Defendant; File No. CSR-
7907-P; NFL Enterprises LLC, Complainant v. Comcast Cable 
Communications, LLC, Defendant; File No. CSR-7876-P; TCR Sports 
Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, 
Complainant v. Comcast Corporation, Defendant; File No. CSR-8001-P

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document designates six program carriage complaints for a 
hearing to resolve the factual disputes with respect to the claims and 
to return a recommended decision and a recommended remedy, if 
necessary, to the Commission by December 9, 2008.

DATES: Each party to an above-captioned proceeding, in person or by its 
attorney, shall file with the Commission, by October 17, 2008, a 
written appearance stating that the party will appear on the date fixed 
for hearing and present evidence on the issues specified herein. Each 
party to an above-captioned proceeding must submit to the Commission, 
in writing within ten days of this Order (i.e., by October 20, 2008), 
their respective elections as to whether each wishes to proceed to 
Alternative Dispute Resolution. In each above-captioned proceeding, the 
Administrative Law Judge, within 60 days of this Order (i.e., by 
December 9, 2008), will resolve all factual disputes and submit a 
recommended decision and remedy, if appropriate.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Steven Broeckaert, [email protected], or 
David Konczal, [email protected], of the Media Bureau, Policy 
Division, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Memorandum Opinion 
and Hearing Designation Order, DA 08-2269, adopted and released on 
October 10, 2008, and the Erratum thereto, adopted and released on 
October 15, 2008. The full text of this document is available for 
public inspection and copying during regular business hours in the FCC 
Reference Center, Federal Communications Commission, 445 12th Street, 
SW., CY-A257, Washington, DC 20554. This document will also be 
available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be 
available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The 
complete text may be purchased from the Commission's copy contractor, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request 
this document in accessible formats (computer diskettes, large print, 
audio recording, and Braille), send an e-mail to [email protected] or call 
the Commission's Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).

Synopsis of the Order

I. WealthTV Complaints

    1. WealthTV is a video programming vendor as defined in Section 
616(b) of the Act and Section 76.1300(e) of the Commission's rules. 
WealthTV focuses on ``inspirational and aspirational programming about 
prosperous and fulfilling lifestyles.'' WealthTV states that it is a 
``truly independent stand-alone programming service'' and is not 
supported by or affiliated with any MVPD, telephone company, or 
broadcaster. WealthTV is currently carried by over 75 MVPDs.
    2. WealthTV had filed program carriage complaints against Time 
Warner Cable Inc. (``TWC''), Bright House Networks, LLC (``BHN''), Cox 
Communications, Inc. (``Cox''), and Comcast Corporation (``Comcast''). 
WealthTV asks the Commission to order TWC, BHN, Cox, and Comcast to 
provide WealthTV carriage on all TWC, BHN, Cox, and Comcast systems 
without delay, pursuant to the terms of a carriage agreement similar to 
that accorded to MOJO. To the extent one or more of the systems claim 
to lack capacity to add an additional channel, WealthTV asks the 
Commission to order the system to delete an affiliated programming 
service to accommodate the addition of WealthTV.
    3. We note that, at the time WealthTV requested carriage, the 
defendants carried MOJO in the relevant cable systems. Although iN 
DEMAND recently announced that MOJO will cease operations on December 
1, 2008, this does not render moot or discredit WealthTV's 
discrimination claim. The fact that MOJO will cease operations in the 
future is not relevant to the issue of whether the defendants engaged 
in unlawful discrimination during the period that WealthTV sought 
carriage. Our conclusion is consistent with the Commission's finding in 
other contexts that steps taken by a licensee following a violation do 
not eliminate the licensee's responsibility for the period during which 
the violation occurred. In addition, if carriage of WealthTV is 
ultimately required, the fact that the defendants will no longer be 
carrying MOJO on the relevant cable systems indicates that they will 
have a vacant channel on which to accommodate WealthTV.

A. WealthTV v. TWC

    4. After reviewing the pleadings and supporting documentation filed 
by the parties, we find that WealthTV has established a prima facie 
showing of discrimination under Section 76.1301(c). TWC is an MVPD and 
the second largest cable operator in the nation as measured by number 
of subscribers. TWC is affiliated with MOJO, a video programming 
vendor. According to TWC, MOJO's orientation is ``exclusively male'' 
and its principal programming consists of sports, movies,

[[Page 65313]]

music concerts, and reality series. On May 7, 2007, WealthTV provided 
TWC with a pre-filing notice pursuant to Section 76.1302(b) of the 
Commission's rules informing TWC of its intent to file a program 
carriage complaint. On December 20, 2007, WealthTV filed its complaint, 
alleging that TWC violated Section 76.1301(c) by refusing to carry 
WealthTV while granting carriage to its affiliated MOJO service.
1. Background
    5. WealthTV states that it has been seeking carriage on TWC systems 
since prior to its launch in June 2004. WealthTV explains that it 
proposed to provide its high definition (``HD'') video on demand 
(``VOD'') service to TWC free of charge provided that TWC grant it a 
``hunting license'' and commit to launch WealthTV in its linear line-up 
in one TWC system. TWC rejected this proposal because it was unwilling 
to commit to a linear launch on even one system. In December 2007, TWC 
offered a compromise whereby it agreed not to launch WealthTV's free HD 
VOD service until after it launched WealthTV in its linear line-up in 
one system. According to TWC, this proposal was meant to address 
WealthTV's concern that TWC could launch its free HD VOD service 
without ever launching WealthTV on a linear basis. WealthTV rejected 
this proposal because it still did not guarantee a linear launch in 
even one system. TWC contends that it offered WealthTV a hunting 
license that was similar to the deals it has offered to dozens of other 
programmers, including some of its affiliated programmers, and that 
WealthTV has accepted a hunting license from other MVPDs that have no 
ownership interest in MOJO, such as Charter. As WealthTV explains, 
however, its agreement with Charter guarantees a linear launch in a set 
number of systems, whereas TWC refused to commit to linear carriage in 
even one system. Moreover, WealthTV states that TWC has launched MOJO 
on a nationwide basis while it has offered WealthTV only a hunting 
license, thereby demonstrating TWC's discriminatory treatment. WealthTV 
also states that a hunting license with TWC is meaningless given the 
reluctance of TWC's corporate programming group to agree to carriage of 
WealthTV even if individual systems desire to carry the network. In its 
Motion to Strike, TWC states that, after the filing of the WealthTV 
complaint, it acceded to WealthTV's demands and proposed a hunting 
license coupled with a firm commitment for linear carriage of WealthTV 
on TWC's San Antonio system. In its Reply, WealthTV admits that 
discussions between TWC and WealthTV have continued after the filing of 
the Complaint, but states that it cannot address these discussions 
because the Commission's rules require a Reply to be responsive to 
matters contained in the Answer and not contain new matters.
2. Similarly Situated
    6. WealthTV has provided the following evidence that MOJO is 
``substantially similar to WealthTV'' with respect to programming, 
target demographic (affluent males aged 25 to 49), target audience, 
look and feel, targeted programming theme, and target advertisers.
    7. Similar programming. WealthTV provides examples of similar 
programming that both WealthTV and MOJO offer, regarding topics such as 
wine, automobiles, sports interviews, food, and electronics. For 
example, in June 2004, WealthTV launched Taste! The Beverage Show, 
which focuses on educating viewers about wine and spirits; in April 
2007, MOJO launched Uncorked, which focuses on the same subject matter. 
In June 2004, WealthTV launched Wealth on Wheels, which focuses on the 
latest trends in automotive technology; in August 2007, MOJO launched 
Test Drive, which focuses on the same subject matter. In June 2004, 
WealthTV launched Charlie Jones, Live to Tape, which features 
interviews of sports figures; MOJO shows Timeless, which also features 
interviews of sports figures. In June 2004, WealthTV launched Taste of 
Life, which educates viewers about behind the scenes experiences with 
travel, spirits, and food; in June 2006, MOJO launched After Hours, 
which focuses on a behind the scenes look at Los Angeles restaurants. 
In April 2005, WealthTV launched Innov8, which educates viewers about 
new ``gadgets and gizmos''; in December 2006, MOJO launched Geared Up, 
which focuses on high-end electronics and technology. WealthTV also 
provides an affidavit from Jedd Palmer, a consultant with more than 
twenty-five years of experience in the cable industry, who reviewed the 
programming schedules of MOJO and WealthTV and concludes that ``the 
overwhelming majority of the programming on both networks is the same, 
or very, very similar, in subject, type, feel, look and target 
audience.'' We conclude that the Palmer Declaration adequately set 
forth the basis for its conclusions.
    8. Similar target demographics. WealthTV provides evidence that 
WealthTV and MOJO both are focused on the same target demographic--
affluent males aged 25 to 49. WealthTV provides the results of a survey 
demonstrating that the demographics of WealthTV's viewers are affluent 
males aged 25 to 49. We find that the survey results set forth in the 
Kersey Declaration adequately set forth the basis for its conclusions. 
The results of the survey indicate that 71 percent of WealthTV's 
audience is male and 55 percent have incomes greater than $75,000. TWC 
provides similar results for MOJO--72 percent of its audience is male 
and 61 percent have incomes greater than $75,000. WealthTV also 
provides an excerpt from a 2004 presentation where WealthTV described 
its programming as geared towards males 25 to 49. WealthTV notes that 
the CEO of iN DEMAND has stated that MOJO is for ``men making more than 
$100,000 per year.'' MOJO has also used the term ``active affluents'' 
to describe its target audience. In his declaration, Jedd Palmer 
concludes that WealthTV targets the same audience as MOJO based on his 
review of marketing materials, press releases, and the networks' 
schedules and programming. Descriptions of WealthTV and MOJO's 
programming found on their respective Web sites further suggests the 
two networks offer similar programming.
    9. Similar focus on a targeted audience rather than on general 
entertainment. WealthTV explains that iN DEMAND announced the launch of 
MOJO in March 2007, almost three years after the launch of WealthTV. 
WealthTV notes that, upon the launch of MOJO, TWC agreed to offer the 
channel across all of its systems carrying HD. While TWC claims that 
the service now known as MOJO was originally launched in 2003 under the 
name INHD, before the launch of WealthTV, WealthTV provides evidence 
that MOJO did not result from merely a name change and that MOJO is a 
targeted programming service whereas INHD was a general entertainment 
service. WealthTV notes that the CEO of iN DEMAND stated that INHD 
could not survive as ``general entertainment programming,'' thus INHD 
was converted into a targeted programming service with similar 
programming to WealthTV. In his declaration, Jedd Palmer concludes that 
``MOJO is not a general entertainment service, but rather a highly 
targeted niche programming service.''
    10. Similar target advertisers. WealthTV explains that it targets 
the same advertisers as MOJO. WealthTV explains that both WealthTV and 
MOJO feature programming on wine and spirits and both networks have 
targeted the same advertising agency for Grey Goose Vodka.

[[Page 65314]]

    11. TWC disputes that WealthTV and MOJO are similar programming 
services or that they have similar target demographics. TWC appears to 
be arguing that a complainant must demonstrate that its programming is 
identical to an affiliated network in order to demonstrate 
discrimination. We find that this is a misreading of the program 
carriage statute and our rules.
3. Differential Treatment
    12. WealthTV argues that TWC has treated WealthTV differently than 
MOJO by carrying MOJO on its systems but refusing to carry WealthTV on 
those same systems. While TWC claims that it recently offered WealthTV 
a hunting license coupled with a firm commitment for linear carriage of 
WealthTV on TWC's San Antonio system, the salient issue for our 
analysis is that TWC has launched its affiliated MOJO network on a 
nationwide basis but it has refused to carry WealthTV on the same 
terms.
4. Harm to Ability to Compete
    13. As required by the program carriage statute and our rules, 
WealthTV has provided evidence that TWC's refusal to carry WealthTV 
restrains its ability to compete fairly. WealthTV provides evidence 
that advertisers are not interested in placing advertisements on 
programming services that are available to fewer than 20 million 
households. Absent carriage on one or both of the largest cable MSOs, 
such as TWC or Comcast, a programmer's ability to attract advertisers 
is impeded and its long-term financial viability is limited. In 
addition, WealthTV provides evidence that TWC has ``quasi monopolies'' 
in key markets, such as New York and Los Angeles, that are essential to 
WealthTV's long-term viability. WealthTV also notes that many MVPDs 
refuse to carry a programming service that has been denied carriage by 
TWC. WealthTV explains further that TWC's refusal to carry WealthTV has 
harmed WealthTV's ability to bargain with advertisers and other cable 
systems. TWC argues that WealthTV could meet a 20 million subscriber 
benchmark through carriage agreements with other large MVPDs, including 
MVPDs with no affiliation with MOJO, such as DIRECTV and DISH Network, 
but that WealthTV has failed to reach carriage agreements with these 
MVPDs as well. We reject this claim because it would effectively exempt 
all MVPDs from program carriage obligations based on the possibility of 
carriage on other MVPDs. Moreover, the program carriage provision of 
the Act prohibits an MVPD from discriminating against an unaffiliated 
programmer regardless of the competition the MVPD faces.
5. Alleged Business and Editorial Justifications for TWC's Refusal to 
Carry WealthTV
    14. TWC offers a number of alleged business and editorial 
justifications for its refusal to carry WealthTV but to carry MOJO. 
First, TWC claims that its minority stake in MOJO does not provide a 
sufficient basis to influence its decision regarding carriage of 
WealthTV. A determination whether the program carriage rules have been 
violated does not turn on whether or not TWC has a minority stake in 
the affiliated programmer, but rather it focuses on the factors we have 
identified above. Indeed, TWC admits that its interest in MOJO 
satisfies the attribution threshold, thus the program carriage rules 
apply to its conduct regarding carriage of MOJO.
    15. Second, TWC claims that the video marketplace is competitive 
and that no MVPD can afford to keep ``a programming service with 
attractive pricing and content off its systems based on ownership if 
doing so would cost it subscribers.'' We reject this claim because it 
would effectively require a program carriage complainant to demonstrate 
that an MVPD's failure to carry its service will cause subscribers to 
switch to other MVPDs that do carry the service. This is not a 
requirement of the program carriage statute or our rules. In addition, 
because TWC carries an affiliated programming service, MOJO, that 
provides programming that is substantially similar to WealthTV, there 
is even less reason for TWC's subscribers to switch to a competitor 
that carries WealthTV.
    16. Third, TWC states that its decision to carry a channel depends 
on capacity constraints; the proven track record of success of the 
channel; the experience of the channel's management team; the 
subscriber interest in the channel; input from TWC's division 
management; and the terms offered by the channel. TWC argues that 
WealthTV has no proven audience demand and is led by individuals with 
no experience in creating a national cable network. WealthTV, on its 
behalf, has provided evidence demonstrating that it is an established 
channel with experienced management and proven consumer appeal, as 
demonstrated by: (i) Its linear carriage on 75 MVPDs to date; (ii) a 
sampling of e-mails from viewers reflecting their support for the 
channel; (iii) the interest in the channel expressed by representatives 
of individual TWC systems; and (iv) the decision of TWC's San Antonio 
system to launch WealthTV's HD VOD service in March 2007.
    17. Fourth, TWC states that it made the same business decision as 
many other MVPDs, including Direct Broadcast Satellite (``DBS'') 
operators DIRECTV and DISH Network, that WealthTV did not warrant 
carriage given the terms it was demanding. WealthTV explains, however, 
that the decision of DBS operators to refrain from carrying WealthTV is 
irrelevant because they do not carry MOJO either.
6. Conclusion
    18. We conclude that WealthTV has established a prima facie showing 
that TWC has discriminated against WealthTV in violation of the program 
carriage rules.

B. WealthTV v. BHN

    19. After reviewing the pleadings and supporting documentation 
filed by the parties, we find that WealthTV has established prima facie 
showing of discrimination under Section 76.1301(c). BHN is an MVPD and 
the sixth largest cable operator in the nation as measured by number of 
subscribers. BHN is affiliated with MOJO, a video programming vendor. 
According to BHN, MOJO's orientation is ``exclusively male'' and is 
principal programming consists of sports, movies, music concerts, and 
reality series. On May 15, 2007, WealthTV provided BHN with a pre-
filing notice pursuant to Section 76.1302(b) of the Commission's rules 
informing BHN of its intent to file a program carriage complaint. As 
discussed further below, on March 13, 2008, WealthTV filed its 
complaint, alleging that BHN violated Section 76.1301(c) by refusing to 
carry WealthTV while granting carriage to its affiliated MOJO service.
1. Background
    20. WealthTV states that it has been seeking carriage on BHN 
systems since the summer of 2004. WealthTV describes its visits with 
BHN representatives in leading markets and claims that representatives 
of several BHN systems, including those in the Tampa Bay market, 
expressed an interest in carrying WealthTV, especially because Verizon 
FIOS TV offered WealthTV in both standard digital and HD formats in 
Tampa Bay. WealthTV claims that Anne Stith, formerly BHN's Director of 
Product Marketing for the Tampa Division, told WealthTV's President in 
July 2006 that BHN would like to launch WealthTV as soon as WealthTV 
completed a deal with TWC. WealthTV also notes that it

[[Page 65315]]

was making its service available for free through 2008. BHN and Ms. 
Stith, however, state that Ms. Stith had no authority to make 
programming commitments on behalf of BHN and that most programmers 
understood that BHN was covered by the programming agreements 
negotiated by TWC. Moreover, Ms. Stith states that her inquiries of 
WealthTV were purely for purposes of research and that she never made 
statements indicating that BHN would be interested in carrying 
WealthTV. When WealthTV's Vice President of Affiliate Relations, John 
Scaro, contacted BHN's President, Steve Miron, Mr. Miron informed Mr. 
Scaro that BHN is covered by the programming agreements that TWC 
negotiates with national networks and that further direct negotiations 
with BHN would not be an efficient use of time. Based on this, WealthTV 
concludes that BHN was prepared to carry WealthTV but for the absence 
of a carriage agreement with TWC. WealthTV states that BHN thus 
completely refused to negotiate with WealthTV. WealthTV states the BHN 
is required to comply with the program carriage rules and cannot use 
its reliance on TWC to negotiate programming agreements as a defense.
2. Similarly Situated
    21. WealthTV provides similar evidence submitted in connection with 
its complaint against TWC purporting to demonstrate that WealthTV and 
MOJO are similarly situated. BHN notes some general dissimilarities 
between specific programming on WealthTV and MOJO. BHN appears to be 
arguing that a complainant must demonstrate that its programming is 
identical to an affiliated network in order to demonstrate 
discrimination. We find that this is a misreading of the program 
carriage statute and our rules.
3. Differential Treatment
    22. WealthTV argues that BHN has treated WealthTV differently by 
carrying MOJO on its systems but refusing to carry WealthTV on those 
same systems.
4. Harm to Ability To Compete
    23. As required by the program carriage statute and our rules, 
WealthTV has provided evidence that BHN's refusal to carry WealthTV 
restrains its ability to compete fairly. WealthTV notes that BHN's 
decision to carry MOJO but to deny carriage to WealthTV provides MOJO 
with a first mover advantage with respect to the viewers and 
advertisers each network targets. WealthTV also explains that an 
independent channel must be available to at least 20 million 
subscribers in order to attract national advertisers and to achieve 
financial viability. WealthTV states that the inability to obtain 
carriage on BHN systems makes it more difficult for independent 
programmers to reach this level of subscribership. WealthTV also 
alleges that obtaining carriage in major markets where BHN owns cable 
systems, such as Tampa and Orlando, is essential for attracting 
advertisers. According to WealthTV, many MVPDs refuse to carry a 
programming service that has been denied carriage by TWC and BHN. In 
addition, WealthTV states that BHN's refusal to carry WealthTV has 
harmed WealthTV's ability to bargain with advertisers and other cable 
systems.
    24. In response, BHN argues that carriage on its systems is not 
necessary in order to reach the 20 million subscriber benchmark. The 
program carriage rules, however, apply to all MVPDs, regardless of 
their subscriber base. BHN claims that WealthTV could meet this 
benchmark through carriage agreements with other MVPDs, including MVPDs 
with no affiliation with MOJO, such as DIRECTV and DISH Network, but 
that WealthTV has failed to reach carriage agreements with these MVPDs 
as well. We reject this claim because it would effectively exempt all 
MVPDs from program carriage obligations based on the possibility of 
carriage on other MVPDs. Moreover, the program carriage provision of 
the Act prohibits an MVPD from discriminating against an unaffiliated 
programmer regardless of the competition the MVPD faces. While BHN 
asserts that the 20 million subscriber benchmark cannot apply to an HD 
network such as WealthTV because there are fewer than 20 million HD 
customers nationwide, WealthTV responds that its HD feed is also 
available as a downconverted standard definition (``SD'') feed that can 
be viewed by all subscribers. While BHN notes that WealthTV has been 
operational for four years despite the lack of a carriage agreement 
with BHN, we agree with WealthTV that the more pertinent consideration 
is its ability to compete over the long term absent a carriage 
agreement with BHN.
5. Alleged Business and Editorial Justifications for BHN's Refusal To 
Carry WealthTV
    25. BHN offers a number of alleged business and editorial 
justifications for its refusal to carry WealthTV but to carry MOJO. 
First, BHN claims that its five percent economic interest in MOJO does 
not provide a sufficient basis to influence its decision regarding 
carriage of WealthTV. BHN admits, however, that its interest in MOJO 
satisfies the attribution threshold, thus the program carriage rules 
apply to its conduct regarding carriage of MOJO.
    26. Second, BHN claims that the video marketplace is competitive 
and that ``customers will take their business elsewhere if BHN fails to 
offer them desirable services at a fair price.'' We reject this claim 
because it would effectively require a program carriage complainant to 
demonstrate that an MVPD's failure to carry the service will cause 
subscribers to switch to other MVPDs that do carry the service. In 
addition, because BHN carries its affiliated programming service, MOJO, 
that provides programming that is substantially similar to WealthTV, 
there is even less reason for BHN's subscribers to switch to a 
competitor that carries WealthTV.
    27. Third, BHN claims that its negotiations reflect ``sound 
business and editorial judgment.'' Specifically, BHN states that its 
decision to carry a channel depends on capacity constraints; whether 
the channel is carried by competitors; the experience of the channel's 
management team; the overall product mix of the BHN system; subscriber 
demand for the channel; input from BHN's division management; and the 
terms offered by the channel. BHN contends that WealthTV has no proven 
consumer demand and is managed by individuals with no experience in 
launching successful networks. WealthTV, for its part, has provided 
evidence demonstrating that it is an established channel with 
experienced management and proven consumer appeal, as demonstrated by: 
(i) Its linear carriage on 75 MVPDs to date; (ii) a sampling of e-mails 
from viewers reflecting their support for the channel; and (iii) the 
interest in the channel expressed by representatives of individual BHN 
systems. WealthTV also provides the results of an independent survey 
which reports that WealthTV's HD VOD product ranked fourth out of 
twenty HD services.
    28. Fourth, BHN contends that virtually all of the MVPDs that do 
not carry WealthTV are not affiliated with MOJO, again demonstrating 
that decisions regarding carriage of WealthTV are not based on 
affiliation. For example, BHN notes that DBS operators, DIRECTV and 
DISH Network, do not carry WealthTV. WealthTV explains that the 
decision of DBS operators to refrain from carrying WealthTV is 
irrelevant because they do not carry MOJO either. Moreover, WealthTV 
notes that Verizon, BHN's wireline competitor in Tampa, carries 
WealthTV but not MOJO. In any event,

[[Page 65316]]

we agree with WealthTV that the salient fact is that each owner of the 
cable-affiliated MOJO network has refused to carry WealthTV, and a 
discrimination claim requires the Commission to assess why these cable 
operators have refused to carry WealthTV but have decided to carry 
MOJO.
6. Conclusion
    29. We conclude that WealthTV has established a prima facie that 
BHN has discriminated against WealthTV in violation of the program 
carriage rules.

C. WealthTV v. Cox

    30. After reviewing the pleadings and supporting documentation 
filed by the parties, we find that WealthTV established a prima facie 
showing of discrimination under Section 76.1301(c). Cox is an MVPD and 
the third largest cable operator in the nation. Cox is affiliated with 
MOJO, a video programming vendor. According to Cox, MOJO's orientation 
is ``exclusively male'' and its principal programming consists of 
sports, movies, music concerts, and reality series. On May 7, 2007, 
WealthTV provided Cox with a pre-filing notice pursuant to Section 
76.1302(b) of the Commission's rules informing Cox of its intent to 
file a program carriage complaint. As discussed further below, on March 
27, 2008, WealthTV filed its complaint, alleging that Cox violated 
Section 76.1301(c) by refusing to carry WealthTV while granting 
carriage to its affiliated MOJO service.
1. Background
    31. WealthTV states that it has been seeking carriage on Cox 
systems since the summer of 2004, but that Cox has refused to negotiate 
in good faith. WealthTV discusses its visits with representatives of 
individual Cox systems in leading markets during 2004 and 2005 and 
claims that some of these systems expressed a strong desire to carry 
WealthTV. Cox states that its programming negotiations are conducted at 
the corporate level and provides declarations from representatives of 
individual Cox systems stating that they informed WealthTV that all 
carriage decisions are made by Cox's corporate programming department. 
Cox states that it informed WealthTV at a May 2005 meeting that the 
interest expressed by a few individual systems was insufficient to 
justify carriage of WealthTV and that it was denying carriage to 
WealthTV. WealthTV states that it considered Cox's comments to be a 
form of bargaining and that Cox did not state that a final decision had 
been made to deny carriage to WealthTV.
2. Procedural Issues
    32. Cox contends that the WealthTV complaint is barred by the 
program carriage statute of limitations because the complaint does not 
allege any act by Cox occurring within one year of the Complaint or the 
pre-filing notice. Rather, according to Cox, the last formal contact 
between WealthTV and Cox alleged in the complaint occurred no later 
than a June 7, 2005 letter; thus, Cox claims that the statute of 
limitations required WealthTV to file its complaint no later than June 
7, 2006. We reject Cox's claim for the following reasons. First, 
WealthTV states that Cox never expressed a final decision to deny 
carriage to WealthTV and provides evidence that communications between 
Cox and WealthTV continued after June 2005. To further support its 
claim that the Complaint was filed in accordance with the statute of 
limitations, WealthTV explains that it was not until May 2006, one year 
prior to the pre-filing notice, when Cox refused to carry the multicast 
stream of a Las Vegas CBS affiliate that proposed to broadcast WealthTV 
programming. Cox argues, however, that this incident did not involve 
direct communication between Cox and WealthTV. WealthTV, however, 
claims that Leo Brennan of Cox-Las Vegas informed WealthTV of this 
decision in mid-May 2006. Second, WealthTV states that it was not until 
the launch of MOJO in March 2007 and the failure of subsequent carriage 
discussions when it became obvious to WealthTV that Cox intended to 
favor its affiliated MOJO service. Third, the plain language of the 
Commission's rules provides that the statute of limitations is 
satisfied if the program carriage complaint is filed within one year of 
the pre-filing notice, which WealthTV has done in this case.
3. Similarly Situated
    33. WealthTV provides similar evidence submitted in connection with 
its complaint against TWC purporting to demonstrate that WealthTV and 
MOJO are similarly situated. Cox notes some general dissimilarities 
between specific programming on WealthTV and MOJO. Cox appears to be 
arguing that a complainant must demonstrate that its programming is 
identical to an affiliated network in order to demonstrate 
discrimination. We find that this is a misreading of the program 
carriage statute and our rules.
4. Differential Treatment
    34. WealthTV argues that Cox has treated WealthTV differently by 
carrying MOJO on its systems but refusing to carry WealthTV on those 
same systems.
5. Harm to Ability To Compete
    35. As required by the program carriage statute and our rules, 
WealthTV has provided evidence that Cox's refusal to carry WealthTV 
restrains its ability to compete fairly. WealthTV explains that Cox's 
decision to carry MOJO but to deny carriage to WealthTV provides MOJO 
with a first mover advantage with respect to the viewers and 
advertisers each network targets. WealthTV also submits that an 
independent channel must be available to at least 20 million 
subscribers in order to attract national advertisers and to achieve 
financial viability. WealthTV states that the inability to obtain 
carriage on Cox systems makes it more difficult for independent 
programmers to reach this level of subscribership. In addition, 
WealthTV explains that obtaining carriage in major markets where Cox 
owns or operates systems, such as Central Florida, New England, 
Phoenix, and San Diego, is essential for attracting advertisers. 
According to WealthTV, many MVPDs refuse to carry a programming service 
that has been denied carriage by Cox. In addition, Cox's refusal to 
carry WealthTV has harmed WealthTV's ability to bargain with 
advertisers and other cable systems.
    36. In response, Cox does not dispute that 20 million subscribers 
are needed for a channel to achieve long-term viability, but states 
that it serves approximately six million MVPD households, thereby 
making carriage on its systems not necessary in order to reach the 20 
million subscriber benchmark. The program carriage rules, however, 
apply to all MVPDs, regardless of their subscriber base. Cox also 
claims that WealthTV could meet this benchmark through carriage 
agreements with other MVPDs, including MVPDs with no affiliation with 
MOJO, such as DIRECTV and DISH Network, but that WealthTV has failed to 
reach carriage agreements with these MVPDs as well. We reject this 
claim because it would effectively exempt all MVPDs from program 
carriage obligations based on the possibility of carriage on other 
MVPDs. Moreover, the program carriage provision of the Act prohibits an 
MVPD from discriminating against an unaffiliated programmer regardless 
of the competition the MVPD faces. Cox also asserts that the 20 million 
subscriber benchmark cannot apply to

[[Page 65317]]

an HD network such as WealthTV because there are fewer than 20 million 
HD customers nationwide. WealthTV explains, however, that its HD feed 
is also available as a downconverted SD feed that can be viewed by all 
subscribers. While Cox notes that WealthTV has obtained carriage on a 
number of MVPDs despite the lack of a carriage agreement with Cox, we 
agree with WealthTV that the more pertinent consideration is its 
ability to compete over the long term absent a carriage agreement with 
Cox.
6. Alleged Business and Editorial Justifications for Cox's Refusal To 
Carry WealthTV
    37. Cox offers a number of alleged business and editorial 
justifications for its refusal to carry WealthTV but to carry MOJO. 
First, Cox claims that its minority interest in MOJO does not provide a 
sufficient basis for Cox to decline to carry WealthTV. Cox admits, 
however, that its interest in MOJO satisfies the attribution threshold, 
thus the program carriage rules apply to its conduct regarding carriage 
of MOJO.
    38. Second, Cox claims that it declined to carry WealthTV based on 
``sound business considerations and reasonable editorial judgment.'' 
Specifically, Cox states that its decision to carry a channel depends 
on the following criteria: Likely viewer appeal; the quality of the 
programming; whether the channel has a proven track record of 
attracting viewers or is associated with an established brand; the 
likelihood of the channel's success considering its management team and 
business plan; bandwidth management; proposed terms of carriage; the 
local needs of Cox's cable systems; and whether the channel has a 
regional appeal that might be attractive to certain systems. Cox claims 
that WealthTV does not justify carriage based on these criteria. 
WealthTV argues that it satisfies Cox's selection criteria. For 
example, WealthTV asserts that it is an established channel with 
experienced management; offered very favorable terms for carriage; and 
that Cox's alleged concern regarding bandwidth constraints from 
carrying an HD channel are not a valid concern because WealthTV was 
offering SD digital and VOD products in addition to HD. WealthTV also 
provides evidence that it has proven viewer appeal, as demonstrated by: 
(i) Its linear carriage on 75 MVPDs to date; (ii) a sampling of e-mails 
from viewers reflecting their support for the channel; (iii) the 
interest in the channel expressed by representatives of various Cox 
systems; (iv) the interest expressed by Cox-San Diego and a Cox 
programming network in San Diego (4SD--High Definition) in carrying 
WealthTV-produced content; and (v) the interest expressed by a CBS 
affiliate in Las Vegas in carrying WealthTV as a multicast channel, 
which the General Manager of Cox-Las Vegas refused to carry because of 
the potential for negative customer reaction if the CBS affiliate were 
to drop the WealthTV programming.
    39. Third, Cox contends that most of the MVPDs that do not carry 
WealthTV are not affiliated with MOJO, thus demonstrating that 
decisions to refrain from carrying WealthTV are not based on 
affiliation. For example, Cox notes that DBS operators, DIRECTV and 
DISH Network, do not carry WealthTV. WealthTV explains, however, that 
the decision of DBS operators to refrain from carrying WealthTV is 
irrelevant because they do not carry MOJO either. In any event, we 
agree with WealthTV that the salient fact is that each owner of the 
cable-affiliated MOJO network has refused to carry WealthTV, and a 
discrimination claim requires the Commission to assess why these cable 
operators have decided to refuse carriage to WealthTV.
7. Conclusion
    40. We conclude that WealthTV has established a prima facie showing 
that Cox has discriminated against WealthTV in violation of the program 
carriage rules.

D. WealthTV v. Comcast

    41. After reviewing the pleadings and supporting documentation 
filed by the parties, we find that WealthTV has established a prima 
facie showing of discrimination under Section 76.1301(c). Comcast is an 
MVPD and the largest cable operator in the nation as measured by number 
of subscribers. Comcast serves over 24 million basic video subscribers 
in 39 states and the District of Columbia. Comcast is affiliated with 
MOJO, a video programming vendor. According to Comcast, MOJO is aimed 
at 18- to-49-year-old males and its principal programming consists of 
sports, movies, and concerts. On May 3, 2007, WealthTV provided Comcast 
with a pre-filing notice pursuant to Section 76.1302(b) of the 
Commission's rules informing Comcast of its intent to file a program 
carriage complaint. As discussed further below, on April 21, 2008, 
WealthTV filed its complaint, alleging that Comcast violated Section 
76.1301(c) by refusing to carry WealthTV while granting carriage to its 
affiliated MOJO service.
1. Background
    42. WealthTV states that it has been seeking carriage on Comcast 
systems since early to mid-2004. WealthTV discusses its visits with 
Comcast representatives in leading markets and claims that systems in 
Comcast's Atlantic Division, San Francisco, Washington DC/Virginia, 
Chicago, Washington state, and Florida all expressed interest in 
carrying WealthTV. According to WealthTV, in the summer of 2004, 
Comcast's corporate programming group acknowledged the interest among 
Comcast systems in carrying WealthTV but Comcast refused to engage in 
meaningful negotiations. WealthTV alleges that Alan Dannenbaum, 
Comcast's Corporate Senior Vice President of Programming, stated in the 
second half of 2004 that a draft carriage agreement would be 
forthcoming but blamed ``scarce resources'' for the failure to produce 
a draft. Comcast states that neither its corporate management nor any 
individual Comcast system expressed an interest in carrying WealthTV.
    43. In August 2006, WealthTV representatives, including WealthTV's 
President, Charles Herring, met with Mr. Dannenbaum. According to 
WealthTV, Mr. Dannenbaum stated that ``Comcast will not allow another 
MTV to be made on Comcast's back without owning it.'' WealthTV states 
that it understood this to mean that Comcast would not allow a non-
affiliated network to become successful without owning it. WealthTV 
states that this is direct evidence of discrimination in Comcast's 
carriage decisions. Comcast provides a declaration from Mr. Dannenbaum 
in which he denies making this statement.
    44. Comcast states that it made two offers to carry WealthTV in 
April 2008, after WealthTV sent its pre-filing notice but prior to the 
filing of the Complaint. WealthTV counters that Comcast never made a 
firm offer for carriage during these discussions and that none of the 
proposals was remotely comparable to the terms and conditions offered 
to MOJO.
2. Similarly Situated
    45. WealthTV provides similar evidence submitted in connection with 
its complaint against TWC purporting to demonstrate that WealthTV and 
MOJO are similarly situated. Comcast notes some general dissimilarities 
between specific programming on WealthTV and MOJO. Comcast appears to 
be arguing that a complainant must demonstrate that its programming is 
identical to an affiliated network in order to

[[Page 65318]]

demonstrate discrimination. We find that this is a misreading of the 
program carriage statute and our rules.
3. Differential Treatment
    46. WealthTV argues that Comcast has treated WealthTV differently 
by carrying MOJO on its systems but refusing to carry WealthTV on those 
same systems. While Comcast claims that it recently offered WealthTV a 
hunting license coupled with a firm commitment for linear carriage of 
WealthTV on a system in the Chicago DMA, the salient issue for our 
analysis is that Comcast has launched its affiliated MOJO network on a 
nationwide basis but it has refused to carry WealthTV on the same 
terms.
4. Harm to Ability To Compete
    47. As required by the program carriage statute and our rules, 
WealthTV has provided evidence that Comcast's refusal to carry WealthTV 
restrains its ability to compete fairly. WealthTV explains that 
Comcast's decision to carry MOJO while denying carriage to WealthTV 
provides MOJO with a first mover advantage with respect to the viewers 
and advertisers each network targets. WealthTV also claims that an 
independent channel must be available to at least 20 million 
subscribers in order to attract national advertisers and to achieve 
financial viability. WealthTV states that the inability to obtain 
carriage on Comcast systems makes it more difficult for independent 
programmers to reach this level of subscribership. WealthTV also 
explains that obtaining carriage in major markets where Comcast owns or 
operates cable systems, such as Philadelphia, Chicago, San Francisco, 
Boston, Washington, and Houston, is essential for attracting 
advertisers. According to WealthTV, cable systems and satellite 
companies look to Comcast in making programming decisions, thereby 
making Comcast's refusal to carry WealthTV particularly harmful. In 
addition, Comcast's refusal to carry WealthTV has harmed WealthTV's 
ability to bargain with advertisers and other cable systems.
    48. In response, Comcast claims that carriage on its competitors, 
such as DIRECTV, DISH Network, AT&T, and Verizon, would allow WealthTV 
to reach its subscriber goals. We reject this claim because it would 
effectively exempt all MVPDs from program carriage obligations based on 
the possibility of carriage on other MVPDs. Moreover, the program 
carriage provision of the Act prohibits an MVPD from discriminating 
against an unaffiliated programmer regardless of the competition the 
MVPD faces. Comcast also states that WealthTV could distribute its 
programming on alternative distribution platforms, such as VOD or the 
Internet. The program carriage statute, however, does not excuse an 
MVPD's discriminatory conduct based on the possibility of alternative 
distribution platforms.
5. Alleged Business and Editorial Justifications for Comcast's Refusal 
To Carry WealthTV
    49. Comcast offers a number of alleged business and editorial 
justifications for its refusal to carry WealthTV but to carry MOJO. 
First, Comcast states that it declined to carry WealthTV on terms 
similar to MOJO based on its business and editorial judgment. 
Specifically, Comcast states that its decision to carry a channel 
depends on capacity constraints; the type and quality of the 
programming; the channel's track record of producing programming; 
evidence of consumer appeal for the channel; the experience of the 
channel's management team; and the terms offered by the channel. Based 
on these factors, Comcast contends that it determined that WealthTV 
does not warrant extensive carriage. WealthTV argues that it meets 
Comcast's carriage criteria, explaining that it is an established 
channel with experienced management and proven consumer appeal, as 
demonstrated by: (i) Its linear carriage on 75 MVPDs to date; (ii) a 
sampling of e-mails from viewers reflecting their support for the 
channel; (iii) the interest in the channel expressed by representatives 
of various Comcast systems as well as favorable comments about WealthTV 
made by Madison Bond, Comcast's Executive Vice President for Content 
Acquisition; and (iv) the results of an independent survey which 
reports that WealthTV's HD VOD product ranked fourth out of twenty HD 
services. WealthTV also notes that it offered very favorable terms for 
carriage.
    50. Second, Comcast contends that most MVPDs do not carry WealthTV, 
including those that have no affiliation with MOJO, again demonstrating 
that decisions regarding carriage of WealthTV are not based on 
affiliation. For example, Comcast notes that DBS operators, DIRECTV and 
DISH Network, do not carry WealthTV. WealthTV explains, however, that 
the decision of DBS operators to refrain from carrying WealthTV is 
irrelevant because they do not carry MOJO either. Moreover, WealthTV 
notes that AT&T, Verizon, and other Comcast competitors carry WealthTV 
but not MOJO.
6. Conclusion
    51. We conclude that WealthTV has established a prima facie showing 
that Comcast has discriminated against WealthTV in violation of the 
program carriage rules.

E. Conclusion

    52. In the Second Report and Order, the Commission stated that it 
would identify specific behavior that constitutes discrimination on a 
case-by-case basis ``because the practices at issue will necessarily 
involve behavior that must be evaluated within the context of specific 
facts pertaining to each negotiation.'' Second Report and Order, 58 FR 
60390, November 16, 1993. Any complainant alleging a violation of the 
prohibition in Section 616(a)(3) on discrimination must demonstrate 
that the alleged discrimination is ``on the basis of affiliation or 
nonaffiliation'' of a vendor, and that ``the effect of the conduct that 
prompts the complaint is to unreasonably restrain the ability of the 
complainant to compete fairly.'' Id.; 47 CFR 76.1302(c)(3). After 
reviewing the pleadings and supporting documentation filed by the 
parties, we find that WealthTV has established a prima facie case in 
the above-referenced cases under Section 76.1301(c). We also find that 
the pleadings and supporting documentation present several factual 
disputes as to whether TWC, BHN, Cox, and Comcast discriminated against 
WealthTV in favor of their affiliated MOJO service. Accordingly, we 
direct the ALJ to make and return a Recommended Decision to the 
Commission pursuant to the procedures set forth below within 60 days 
after release of this Order (i.e., by December 9, 2008).

II. NFL Enterprises v. Comcast

    53. After reviewing the pleadings and supporting documentation 
filed by the parties, we find that the NFL has established a prima 
facie case that Comcast (i) discriminated against the NFL Network in 
violation of Section 76.1301(c) of our rules; and (ii) required a 
financial interest in the NFL's programming as a condition for carriage 
of the NFL Network, in violation of Section 76.1301(a) of the 
Commission's rules. The NFL owns the NFL Network, a video programming 
vendor as defined in Section 616(b) of the Act and Section 76.1300(e) 
of the Commission's rules. See 47 U.S.C. 536(b); 47 CFR 76.1300(e). The 
NFL Network was launched in 2003 as a fan development vehicle to offer 
football-related programming. In addition to offering eight live NFL 
regular season games, the NFL Network

[[Page 65319]]

offers pre-season live and tape-delayed games as well as coverage of 
the NFL Scouting Combine, the NFL Draft, team training camps, and other 
programming. The NFL states that the NFL Network is an independent 
network that is not owned by any cable or satellite operator. The NFL 
Network is currently carried by over 240 MVPDs to 36 million 
subscribers nationwide. Comcast is the largest MVPD in the nation, with 
approximately 24.7 million subscribers. Comcast is affiliated with 
Versus (previously named the Outdoor Life Network (``OLN'')), the Golf 
Channel, as well as other video programming vendors.

A. Background

    54. On April 17, 2008, the NFL provided Comcast with a pre-filing 
notice pursuant to Section 76.1302(b) of the Commission's rules 
informing Comcast of its intent to file a program carriage complaint. 
As discussed further below, on May 6, 2008, the NFL filed its 
complaint, alleging that Comcast (i) discriminated against the NFL 
Network in favor of its affiliated video programming vendors, including 
Versus and the Golf Channel, in violation of Section 76.1301(c) of the 
Commission's rules; and (ii) required a financial interest in the NFL's 
programming as a condition for carriage of the NFL Network, in 
violation of Section 76.1301(a) of the Commission's rules. In its 
Complaint, the NFL requests the Commission to (i) Find Comcast in 
violation of Sections 76.1301(a) and (c) of the Commission's rules; 
(ii) enjoin Comcast from further program carriage discrimination; (iii) 
order Comcast to carry the NFL Network on equitable terms that do not 
unreasonably restrict its ability to compete fairly, as determined by 
the Media Bureau; and (iv) order any other relief that may be 
appropriate. In its Reply, the NFL specifies further that the 
Commission should require Comcast to carry the NFL Network on the same 
tier as its affiliated national sports networks, Versus and the Golf 
Channel, beginning with the commencement of the fall 2008 football 
season. The NFL also contends that an extensive evidentiary 
investigation is not needed and that the Commission should promptly 
enter an Order providing its requested relief.
    55. According to Comcast, the NFL approached Comcast regarding 
carriage of the NFL Network in 2003. Comcast claims that it was not 
interested in carrying the NFL Network because consumer interest in a 
football-only network without any live NFL games appeared weak; Comcast 
had bandwidth constraints; and Comcast was concerned about the soaring 
costs of sports programming. Comcast claims that around the time the 
NFL was seeking carriage for the NFL Network, it was also seeking to 
make available to MVPDs its NFL Sunday Ticket package and a package of 
eight live NFL regular season games (the ``Eight-Game Package''). 
Comcast states that it was interested in acquiring the rights to 
telecast the NFL Sunday Ticket because it had lost subscribers to 
DIRECTV which had exclusive rights to NFL Sunday Ticket. Comcast states 
that it was also interested in licensing the Eight-Game Package for its 
Versus network. According to Comcast, the NFL sought to make carriage 
of the NFL Network more attractive by coupling carriage of the NFL 
Network on a widely distributed tier with an opportunity for Comcast to 
bid on NFL Sunday Ticket and the Eight-Game Package. Comcast was 
concerned, however, that it might be forced to carry the NFL Network on 
a widely distributed tier even if it did not acquire the licensing 
rights to NFL Sunday Ticket and the Eight-Game Package.
    56. In August 2004, the NFL and Comcast entered into a Negotiating 
Agreement regarding the NFL Sunday Ticket and the Eight-Game Package 
and an Affiliation Agreement regarding carriage of the NFL Network. In 
the Affiliation Agreement, Comcast agreed to carry the NFL Network on 
its digital basic tier (called the ``D2'' tier). The Affiliation 
Agreement provided that, with one exception, no Comcast system could 
distribute the NFL Network solely in a sports tier. The exception 
provided that Comcast would have the right to move the NFL Network from 
the digital basic tier to any tier (including a premium sports tier) if 
Comcast and the NFL did not reach an agreement by July 31, 2006 
concerning carriage of the NFL Sunday Ticket or the Eight-Game Package 
(the ``Conditional Tiering Provision''). The NFL alleges that Comcast 
``forced'' it to agree to the Conditional Tiering Provision. Comcast 
states that this provision was meant to address its concern that it 
might be forced to carry the NFL Network on a widely distributed tier 
even if it did not acquire the licensing rights to NFL Sunday Ticket or 
the Eight-Game Package. Comcast claims that the Conditional Tiering 
Provision was a fundamental part of the parties' agreement and that it 
would not have agreed to carry the NFL Network without this provision. 
Pursuant to this Affiliation Agreement, Comcast began to carry the NFL 
Network on its digital basic tier in 2004. According to the NFL, from 
2004 until the summer of 2007, approximately 8.6 million Comcast 
customers received the NFL Network on the digital basic tier.
    57. In November 2004, the NFL renewed its exclusive contract with 
DIRECTV for the NFL Sunday Ticket through 2010, but Comcast and the NFL 
continued negotiations regarding the Eight-Game Package. During the 
negotiations regarding the Eight-Game Package, Comcast claims that it 
reminded the NFL on more than one occasion that the Conditional Tiering 
Provision would provide Comcast with the right to move the NFL Network 
to a sports tier if Comcast did not obtain the rights to the Eight-Game 
Package for its Versus network.
    58. On January 24, 2006, Comcast's Chief Executive Officer Brian 
Roberts met with then-NFL Commissioner Paul Tagliabue and others from 
the NFL. The NFL states that Mr. Tagliabue told Mr. Roberts that the 
NFL's then-current thinking was that it would not license the Eight-
Game Package to Comcast. According to the NFL, Mr. Roberts ``threatened 
that if the NFL did not license the package to Versus, Comcast would 
drop the NFL Network from the 'D2' tier and shift it to an undesirable 
premium sports tier * * *.'' According to Comcast, Mr. Roberts was 
simply reminding the NFL of Comcast's rights under the Conditional 
Tiering Provision. Following this meeting, the NFL awarded the Eight-
Game Package to the NFL Network.
    59. According to the NFL, on January 27, 2006, Mr. Roberts 
``warned'' Mr. Tagliabue that, because of the NFL's failure to license 
the Eight-Game Package to Comcast, the NFL's ``relationships with the 
cable industry are going to get very interesting.'' Mr. Tagliabue 
states that he believes that this statement foreshadowed Comcast's 
retaliation against the NFL for refusing to license the Eight-Game 
Package to Comcast. Mr. Roberts states that he has no recollection of 
making this statement. Rather, Mr. Roberts states that he expressed his 
disappointment about the NFL's decision and said that he foresaw that 
the NFL would continue to face difficulties persuading cable operators 
to provide the NFL Network with broad distribution given that the 
Eight-Game Package would add significantly to the price of the network 
but would not improve the overall appeal of the content.
    60. Pursuant to the Affiliation Agreement, Comcast would have the 
right to show the Eight-Game Package on the NFL Network on its cable 
systems only if Comcast agreed to an increase in the license fee for 
the NFL

[[Page 65320]]

Network of up to $0.55 per subscriber per month. If Comcast did not 
agree to pay this increase in the license fee, then the NFL Network 
would show alternate programming on Comcast's systems at the times 
these games would be shown. On July 27, 2006, Comcast agreed to the fee 
increase. Comcast claims that it agreed to this fee increase only after 
confirming with the NFL that the Conditional Tiering Provision was 
mutually understood to remain in effect.
    61. On September 24, 2006, Comcast announced its plans to launch 
the NFL Network on a premium sports tier on systems it had acquired 
from Time Warner. In October 2006, the NFL sued Comcast in New York 
state court claiming that Comcast did not have the right under the 
parties' agreements to carry the NFL Network on a premium sports tier. 
In the NFL's view, the Conditional Tiering Provision in the Affiliation 
Agreement was not triggered because Comcast and the NFL reached an 
agreement concerning carriage of the Eight-Game Package when Comcast 
agreed to pay an additional $0.55 per subscriber per month to deliver 
the NFL Network's broadcast of the Eight-Game Package via Comcast's 
cable systems. In Comcast's view, Comcast and the NFL did not reach an 
agreement concerning carriage of the Eight-Game Package because the 
games were awarded to the NFL Network and not to Comcast's affiliated 
Versus network. In May 2007, the trial court granted Comcast's motion 
for summary judgment. Following release of the trial court's order, 
Comcast formally notified the NFL of its intent to shift NFL Network to 
a sports tier in most of its systems. The NFL states that Comcast's 
action to shift the NFL Network from a digital basic tier to a premium 
sports tier reduced the number of Comcast subscribers that received the 
NFL Network from 8.6 million to 1.4 million. On February 26, 2008, a 
New York appellate court reversed the lower court's ruling and found 
that the parties' agreement was sufficiently ambiguous to create a 
triable issue of fact. In May 2008, the parties agreed to pursue non-
binding mediation at the request of the court.

B. Procedural Issues

    62. Comcast argues that the NFL complaint should be dismissed on 
any of the following procedural grounds. For the reasons discussed 
below, we decline to dismiss the complaint on any of these grounds.
1. Program Carriage Statute of Limitations
    63. Comcast argues that the NFL complaint is barred by the program 
carriage statute of limitations. Comcast contends that, of the events 
that trigger the running of the program carriage statute of 
limitations, only the date on which the parties entered into a carriage 
agreement for the NFL Network is applicable in this case. Comcast 
states that the Affiliation Agreement was executed on August 11, 2004, 
thereby causing the statute of limitations to expire on August 11, 
2005. Comcast asserts that its exercise of its contractual right to 
retier the NFL Network cannot be the triggering event because that is a 
decision made under the Affiliation Agreement and any disagreement 
regarding the terms of the agreement must be addressed in state court. 
In response, the NFL states that its complaint does not allege that the 
Affiliation Agreement violates the program carriage rules. Rather, the 
NFL claims that the issue is the legality of Comcast's act of retiering 
the NFL Network to a premium sports tier between June 1, 2007 and July 
15, 2007. The NFL states that it filed its complaint within days after 
its pre-filing notice and less than a year after Comcast's action to 
retier the NFL Network, in compliance with the statute of limitations 
in Section 76.1302(f)(3). Comcast argues that the statute of 
limitations period cannot run from the date of the NFL Network's pre-
filing notice. Comcast alleges that such an interpretation would allow 
a programmer to bring a program carriage complaint simply by sending a 
``trigger'' letter at any time. The NFL contends, however, that the 
statute of limitations cannot be interpreted to run only from the date 
an existing agreement was executed because that would preclude a 
programmer from seeking relief regarding discriminatory acts that 
occurred greater than one year after the agreement was executed.
    64. We conclude that the NFL filed its program carriage complaint 
in compliance with the program carriage statute of limitations. The 
alleged act of discrimination about which the NFL complains is 
Comcast's act of moving the NFL Network from a digital basic tier to a 
premium sports tier. This act occurred no earlier than June 2007. The 
NFL filed its program carriage complaint within one year of this act 
and within one year of its pre-filing notice. Accordingly, the NFL 
filed its complaint in compliance with the statute of limitations. We 
reject Comcast's argument that the one-year statute of limitations is 
triggered by the execution of the agreement because that act did not 
give rise to the discrimination claim and treating that act as the 
triggering event here would render Section 76.1302(f)(3) of our rules 
superfluous and frustrate enforcement of the statute and rules.
2. Dismissal Pending Litigation
    65. Comcast argues that the NFL complaint should be dismissed 
pending the outcome of the state court litigation. Comcast states that 
the NFL and Comcast are involved in contract litigation involving the 
same set of operative facts that underlie the complaint, and the 
resolution of which is inextricably intertwined with the resolution of 
the complaint. Comcast contends that, if the court rules that the 
Conditional Tiering Provision was triggered, then it would be difficult 
if not impossible for the Commission to decide that Comcast violated 
the program carriage rules by exercising a right granted to it by the 
NFL. According to the NFL, however, the issue of the interpretation of 
the contract is irrelevant to the program carriage dispute. In the 
NFL's view, even if the court finds that the Conditional Tiering 
Provision was triggered and Comcast had the ``right'' to retier the NFL 
Network, Comcast could not exercise that right in a discriminatory 
manner that violates the program carriage rules. According to the NFL, 
Section 616 protects independent programmers and the public regardless 
of the terms of a private agreement. Comcast asserts that dismissal of 
the complaint pending litigation is consistent with Commission 
precedent. The NFL disputes this and notes that the Commission 
addressed a program carriage complaint filed by TCR Sports Broadcasting 
Holding, L.L.P. against Comcast despite the pendency of related 
litigation in state court. Comcast also claims that it would be a waste 
of resources for the Commission to consider the complaint because the 
parties have already decided to mediate the issues in dispute. 
According to Comcast, the NFL agreed to a broad mediation that would 
encompass all issues between the parties, including those in the 
program carriage complaint proceeding. According to the NFL, the state 
court litigation does not address the issues of program carriage 
discrimination addressed in the program carriage complaint proceeding. 
The NFL also states that, even if the court were to address program 
carriage discrimination, it would not be ripe for resolution until 
after the next football season and likely the one that follows (2009-
2010). The NFL also notes that the parties have not agreed to seek a 
stay of the program carriage proceeding pending the outcome of the 
mediation.

[[Page 65321]]

Thus, the NFL argues that the mediation should not affect the 
Commission's consideration of the program carriage issues in this 
proceeding.
    66. We decline to dismiss the NFL complaint pending the outcome of 
the state court litigation. The act of alleged discrimination about 
which the NFL complains is Comcast's act of moving the NFL Network from 
a digital basic tier to a premium sports tier. Whether or not Comcast 
had the right to retier the NFL Network pursuant to a private agreement 
is not relevant to the issue of whether doing so violated Section 616 
of the Act and the program carriage rules. Parties to a contract cannot 
insulate themselves from enforcement of the Act or our rules by 
agreeing to acts that violate the Act or rules. Because the state court 
litigation will not resolve the NFL's program carriage claim, we 
conclude that we can proceed with the program carriage complaint 
despite the pendency of the litigation. Moreover, the parties have not 
agreed to stay this proceeding pending the outcome of mediation, and we 
find no cause to do so on our own motion.
3. Specificity of Requested Relief
    67. Comcast argues that the NFL complaint should be dismissed 
because the complaint failed to state ``with specificity'' the relief 
requested. 47 CFR 76.6(a)(1). Comcast states that the NFL's requested 
relief does not include specific proposals regarding price, tier 
placement, and other carriage terms. The NFL argues that its complaint 
was sufficiently specific in seeking carriage by Comcast on non-
discriminatory terms, i.e., on the same terms and conditions as 
Comcast's affiliated national sports networks, Versus and the Golf 
Channel, including carriage on the expanded basic tier. We conclude 
that the NFL's requested relief was sufficiently specific under our 
rules and did not deprive Comcast of an adequate opportunity to respond 
in its Answer.
4. Signature and Verification Requirements
    68. Comcast states that the NFL complaint does not comply with the 
signature and verification requirements applicable to program carriage 
complaints. The NFL does not dispute these claims, but argues that 
other program carriage complaints that did not comply with the 
signature requirement have been accepted by the Commission and that its 
complaint included a Declaration of an NFL executive certifying the 
accuracy of the factual statements in the complaint. We agree with 
Comcast that these instances of non-compliance are of ``limited 
consequence.'' Accordingly, on our own motion, we waive these 
requirements in the interests of resolving the important issues raised 
in the complaint in an expeditious manner and due to the presence of 
the Declaration of an NFL executive referenced above.

C. Discrimination Claim

1. Similarly Situated
    69. The NFL alleges that Comcast has discriminated against the NFL 
Network in favor of its affiliated video programming vendors, including 
Versus and the Golf Channel, in violation of Section 76.1301(c) of the 
Commission's rules. The NFL argues that the NFL Network is a national 
sports network and therefore is similarly situated to the national 
sports networks that Comcast owns (Versus and the Golf Channel). The 
NFL also argues that the NFL Network, Versus, and the Golf Channel 
compete for programming, advertising, or target viewers. Comcast claims 
that the NFL Network is not a direct competitor to Versus or the Golf 
Channel in terms of programming, advertising, or target viewers. 
Comcast appears to be arguing that a complainant must demonstrate that 
its programming is identical to an affiliated network in order to 
demonstrate discrimination. We find that this is a misreading of the 
program carriage statute and our rules.
2. Differential Treatment
    70. The NFL alleges that Comcast has discriminated against the NFL 
Network in violation of Section 76.1301(c) by carrying the NFL Network 
on a premium sports tier (which costs subscribers an additional $5-7 
per month and is subscribed to by approximately 2 million Comcast 
subscribers) while Comcast carries the national sports networks that it 
owns (Versus and Golf Channel) on an expanded basic tier which has 
approximately 24 million subscribers. Comcast admits that it carries 
the NFL Network on a premium sports tier but carries Versus and the 
Golf Channel on its expanded basic tier.
3. Harm to Ability To Compete
    71. As required by the program carriage statute and our rules, the 
NFL Network has provided evidence purporting to demonstrate that 
Comcast's refusal to carry the NFL Network on an expanded basic tier 
restrains its ability to compete fairly. The NFL explains how Comcast's 
decision to exclude the NFL Network from a basic tier has prevented the 
network from achieving economies of scale and has blocked the network 
from the most efficient distribution channel for the provision of 
national sports programming and the sale of advertising. The NFL 
explains that carriage of the NFL Network on a widely distributed tier 
is better for the network, viewers, and advertisers than carriage on a 
premium tier and that carriage on a premium tier unreasonably impedes 
the NFL Network's ability to compete fairly. With respect to the 
benefits for the network, the NFL discusses how basic tier carriage 
results in more subscribers which results in greater advertising 
revenues, greater license revenues, and a greater ability to compete 
for national advertisers and for content, and relieves the network from 
having to incur promotional expenses to convince consumers to subscribe 
to the premium tier. Moreover, the NFL explains that basic tier 
carriage maximizes a network's subscribership and, thus, advertising 
revenues, which allows for reduced license fees. The NFL also submits 
that carriage of a network on a basic tier benefits consumers by 
allowing the network to discipline the license fees of rival networks. 
In addition, the NFL claims that basic tier carriage benefits 
advertisers by enabling the NFL Network to discipline advertising rates 
of rival networks. The NFL explains that Comcast's affiliated national 
sports networks, Versus and the Golf Channel, benefit from Comcast's 
decision to carry the NFL Network on a premium tier. Specifically, 
placing the NFL Network in a premium sports tier harms its ability to 
compete with Comcast's affiliated national sports networks by (i) 
increasing the NFL Network's promotional costs and by reducing its 
advertising revenues; and (ii) providing Comcast's affiliated national 
sports networks with a competitive advantage in attracting advertisers 
and obtaining new content because these networks have greater 
distribution than their rival the NFL Network. The NFL also notes that 
Comcast's behavior to favor its affiliated national sports networks is 
similar to behavior that has been found to be a violation of the 
program carriage rules in another case.
    72. Comcast argues that the NFL Network can achieve a critical mass 
of subscribers without carriage on Comcast. Comcast claims that there 
are multiple competing MVPDs that offer the NFL Network in all areas 
served by Comcast, such as DIRECTV, DISH Network, RCN, Verizon, and 
AT&T. According to Comcast, if its subscribers do not like Comcast's 
decision to place the NFL Network on a premium sports tier, they can 
switch to an MVPD that

[[Page 65322]]

provides the NFL Network with wider carriage. Comcast also argues that 
the fact that it already makes the NFL Network available to 24 million 
households undermines the NFL's claim that Comcast is unreasonably 
restraining the ability of the NFL Network to compete fairly.
4. Alleged Business and Editorial Justifications for Comcast's Refusal 
To Carry NFL Network on an Expanded Basic Tier
    73. Comcast offers a number of alleged business and editorial 
justifications for its decision to place the NFL Network on a premium 
sports tier while placing Versus and the Golf Channel on an expanded 
basic tier. First, Comcast notes that the license fee for Versus is 
approximately $0.25 per subscriber per month and the license fee for 
the Golf Channel is less than $0.35 per subscriber per month, whereas 
the license fee for the NFL Network with the Eight-Game Package is 
$0.70 per subscriber per month. The NFL contends that Comcast has 
failed to consider the record evidence that the NFL Network receives 
substantially higher ratings than Versus and the Golf Channel, despite 
the fact that the NFL Network is carried on a premium tier. The NFL 
notes that the relatively lower license fees for Versus and the Golf 
Channel reflect their lower popularity. Moreover, NFL provides evidence 
that the NFL Network is less expensive than some other sports networks, 
such as ESPN and some RSNs. While Comcast argues that it acted to 
protect its customers by placing expensive programming such as the NFL 
Network on a premium sports tier, the NFL alleges that Comcast's 
decision to move the NFL Network to a premium sports tier did not 
result in a reduction in the monthly fees for its digital basic 
service, thereby undermining its claim that its decision to retier the 
NFL Network was intended to protect consumers.
    74. Second, Comcast claims that Versus and the Golf Channel offer 
far more live and same-day event programming than the NFL Network. The 
NFL responds that the record evidence demonstrates that the NFL Network 
receives substantially higher ratings than Versus and the Golf Channel, 
despite the amount of live sports programming on Versus and the Golf 
Channel.
    75. Third, Comcast argues that different carriage histories justify 
wide distribution for Versus and the Golf Channel and more limited 
distribution for the NFL Network. Specifically, Comcast notes that 
Versus and the Golf Channel launched in 1995 when there were greater 
opportunities for launch of a network, even on expanded basic. The NFL 
argues, however, that basing carriage decisions on carriage histories 
unfairly favors affiliated networks that have enjoyed a history of 
preferential treatment from vertically integrated MVPDs and does not 
serve to distinguish discriminatory from nondiscriminatory treatment, 
as the Act and our rules require.
    76. Fourth, Comcast contends that cable subscribers already have 
access to a substantial quantity of live NFL programming on broadcast 
television and ESPN. Moreover, Comcast notes that the out-of-market 
games offered by the NFL Network are available on local broadcast 
channels in the home markets of the participating teams. The NFL 
submits that the consistently high ratings for the NFL Network refute 
Comcast's claim that there is a lack of demand for football 
programming. The NFL also notes that Comcast's previous decision to 
place the NFL Network on its digital basic tier demonstrates Comcast's 
view that the programming on the NFL Network has broad appeal.
    77. Fifth, Comcast notes that some MVPDs, such as Charter, Time 
Warner, Cablevision, Bright House, Suddenlink, and Mediacom, do not 
carry the NFL Network at all, while others, such as Cox, carry the NFL 
Network on a sports tier. According to Comcast, the fact that other 
MVPDs that are not vertically integrated with national sports networks 
have decided to carry the NFL Network on a premium sports tier (or not 
at all) demonstrates that Comcast's decision to place the NFL Network 
on a premium sports tier was based on legitimate business reasons. The 
NFL contends that this claim is rebutted by the record evidence that 
demonstrates substantial carriage of NFL Network by various MVPDs on 
widely distributed tiers. The NFL notes that all of Comcast's major 
competitors--DIRECTV, DISH Network, Verizon, and AT&T--carry the NFL 
Network on a more widely distributed tier than the digital basic tier 
that Comcast formerly carried the NFL Network on before it was shifted 
to a premium sports tier. Moreover, the NFL states that most of the 
approximately 240 MVPDs that carry the NFL Network carry it on widely 
distributed tiers that are available in at least 70 percent of the 
households served by these MVPDs. In addition, the NFL claims that 
Comcast is the only MVPD that carries the NFL Network on a tier taken 
by less than ten percent of subscribers.
    78. Finally, Comcast argues that Versus and the Golf Channel are 
carried on widely distributed tiers of virtually every major MVPD, even 
though these MVPDs have no ownership interest in either network. The 
NFL argues that the conduct of other cable operators is irrelevant to 
the issue of whether Comcast carries its affiliated programmers on more 
favorable terms than the NFL Network, an unaffiliated programmer.
5. Conclusion
    79. In the Second Report and Order, the Commission stated that it 
would identify specific behavior that constitutes discrimination on a 
case-by-case basis ``because the practices at issue will necessarily 
involve behavior that must be evaluated within the context of specific 
facts pertaining to each negotiation.'' Second Report and Order, 58 FR 
60390, November 16, 1993. Any complainant alleging a violation of the 
prohibition in Section 616(a)(3) on discrimination must demonstrate 
that the alleged discrimination is ``on the basis of affiliation or 
nonaffiliation'' of a vendor, and that ``the effect of the conduct that 
prompts the complaint is to unreasonably restrain the ability of the 
complainant to compete fairly.'' Id.; 47 CFR 76.1302(c)(3). After 
reviewing the pleadings and supporting documentation filed by the 
parties, we find that the NFL has established a prima facie case in the 
above-referenced case under Section 76.1301(c). We also find that the 
pleadings and supporting documentation present several factual disputes 
as to whether Comcast discriminated against the NFL in favor of its 
affiliated services. Accordingly, we direct the ALJ to make and return 
a Recommended Decision to the Commission pursuant to the procedures set 
forth below within 60 days after release of this Order (i.e., by 
December 9, 2008).

D. Financial Interest Claim

    80. The NFL claims that Comcast retaliated against the NFL by 
dropping the NFL Network from the digital basic tier to a premium 
sports tier after the NFL refused to grant Comcast rights to the Eight-
Game Package for Comcast's Versus network. The NFL alleges that this 
amounts to a violation of Section 76.1301(a) because Comcast has 
required a financial interest in the NFL's programming as a condition 
for program carriage. The NFL argues that Comcast's behavior here is 
similar to behavior that has been found to present a prima facie case 
of a violation of the program carriage rules in another proceeding.
    81. Comcast states that it never required or even requested an 
equity interest in the NFL Network. Comcast states that Section 
76.1301(a) does not prohibit an MVPD from seeking

[[Page 65323]]

licensing rights in programming as a condition for carriage. Rather, 
Comcast states that this rule only prohibits an MVPD from requiring a 
financial interest in a ``program service'' as a condition for 
carriage. According to Comcast, the NFL incorrectly conflates Comcast's 
interest in acquiring the licensing rights to the Eight-Game Package 
with a demand for equity in the NFL Network. Comcast notes that it has 
no financial interest in the NFL Network or the NFL and yet it still 
carries the NFL Network. Accordingly, Comcast argues that it has not 
conditioned carriage of the NFL Network on obtaining an equity interest 
in the NFL Network.
    82. In response, the NFL argues that the statute precludes an MVPD 
from requiring any ``financial interest'' in a program service, not 
merely an ``equity interest,'' and thus includes an MVPD's demand that 
a programmer provide licensing rights, equity interests, or other 
financial interests in a program service. The NFL submits that narrowly 
construing the term ``financial interest'' to pertain only to demands 
for an equity interest would fail to curb many anticompetitive abuses 
of vertically integrated MVPDs during carriage negotiations. Moreover, 
the NFL notes that Section 76.1301(a) prohibits an MVPD from requiring 
a financial interest in ``any program service,'' not merely the program 
service for which carriage is sought and not only in a ``video 
programming vendor.''
    83. In the Second Report and Order, the Commission emphasized that 
the statute ``does not explicitly prohibit multichannel distributors 
from acquiring a financial interest or exclusive rights that are 
otherwise permissible,'' and thus, that ``multichannel distributors 
[may] negotiate for, but not insist upon such benefits in exchange for 
carriage on their systems.'' Second Report and Order, 58 FR 60390, 
November 16, 1993. The Commission stated, however, that ``ultimatums, 
intimidation, conduct that amounts to exertion of pressure beyond good 
faith negotiations, or behavior that is tantamount to an unreasonable 
refusal to deal with a vendor who refuses to grant financial interests 
or exclusivity rights for carriage, should be considered examples of 
behavior that violates the prohibitions set forth in Section 616.'' Id. 
We find that the NFL has presented sufficient evidence to make a prima 
facie showing that Comcast indirectly and improperly demanded a 
financial interest in the NFL's programming in exchange for carriage. 
We further find that the pleadings and documentation present several 
factual disputes as to whether Comcast's retiering of the NFL Network 
is the result of Comcast's failure to obtain a financial interest in 
the NFL's programming. Accordingly, we direct an Administrative Law 
Judge to hold a hearing, issue a recommended decision on the facts 
underlying the financial interest claim and a recommended remedy, if 
necessary, and then return the matter to the Commission within 60 days.

III. MASN v. Comcast

    84. After reviewing the pleadings and supporting documentation 
filed by the parties, we find that MASN has established a prima facie 
case under Section 76.1301(c). MASN is an RSN that owns the rights to 
produce and exhibit the games of the Baltimore Orioles and Washington 
Nationals, among other sporting events. MASN is a video programming 
vendor as defined in Section 616(b) of the Act and Section 76.1300(e) 
of the Commission's rules. Pursuant to the by-laws of Major League 
Baseball (``MLB''), each MLB team is assigned television rights to 
certain geographic regions based on its determination of which teams' 
baseball fans in certain areas would or would not support. The home 
territory for MASN consists of the entire states of Virginia, Maryland, 
Delaware, and Washington, DC, and certain parts of southern 
Pennsylvania, eastern West Virginia, and a substantial part of North 
Carolina (the ``MASN Territory''). Comcast is the nation's largest MVPD 
and holds an attributable ownership interest in Comcast SportsNet 
Philadelphia (``CSN-P'') and Comcast SportsNet Mid-Atlantic (``CSN-
MA''), among other networks.
    85. On March 7, 2008, MASN provided Comcast with its pre-filing 
notice. MASN filed its complaint on July 1, 2008, alleging that Comcast 
discriminated against MASN in violation of the program carriage rules. 
MASN asks the Commission to (i) Declare that Comcast's conduct is a 
violation of the program carriage obligations under the Act and the 
Commission's rules; (ii) order mandatory carriage of MASN on the 
Comcast systems in the MASN Territory that do not carry MASN; (iii) if 
necessary, require Comcast to delete its affiliated programming to 
clear capacity for MASN; (iv) require Comcast to provide a timetable 
for the upgrade of the former-Adelphia systems; (v) grant MASN 
substantial damages that have resulted from Comcast's misconduct; and 
(vi) grant MASN such other and further relief as the Commission deems 
just and proper. Comcast urges the Commission to find MASN in violation 
of the rules prohibiting frivolous pleadings and to impose appropriate 
penalties, including monetary forfeitures.

A. Background

    86. MASN claims that since 2005 it has sought carriage on all of 
Comcast's cable systems located within the MASN Territory, including in 
the Harrisburg-Lancaster-Lebanon-York DMA (``Harrisburg DMA''), as well 
as the Roanoke-Lynchburg DMA and the Tri-Cities DMA (the later two DMAs 
are referred to as the ``southwestern Virginia DMAs''). Comcast denies 
that MASN ever specifically sought carriage in Harrisburg and 
southwestern Virginia during negotiations in 2005 or 2006. In fact, 
Comcast claims that MASN's primary focus was to obtain carriage in its 
core Washington, DC and Baltimore markets before the end of the 2006 
baseball season, and at no point did MASN express any specific interest 
in Comcast's Harrisburg or southwestern Virginia systems.
    87. The parties failed to reach a carriage agreement. In June 2005, 
MASN filed a program carriage complaint alleging discrimination and 
that Comcast illegally demanded a financial interest in MASN as a 
condition of carriage. MASN requested that the Commission order Comcast 
to provide carriage of MASN on all Comcast systems in the MASN 
Territory. On July 21, 2006, while MASN's program carriage complaint 
against Comcast was pending, the Commission adopted the Adelphia Order, 
which provided unaffiliated RSNs with the opportunity to pursue 
commercial arbitration of program carriage disputes with Comcast. On 
July 31, 2006, the Commission found that MASN had established a prima 
facie case of discrimination in its pending program carriage complaint 
and referred the matter to an ALJ. The Commission stayed the decision 
to give MASN an opportunity to decide whether to proceed with the 
complaint or with the expedited arbitration provided in the Adelphia 
Order. MASN claims that pursuant to the Adelphia Order conditions it 
had only five days--until August 4, 2006--to decide whether to file an 
arbitration demand with the American Arbitration Association (``AAA'') 
or to proceed with the carriage complaint before an ALJ. Comcast 
disputes this claim, arguing that MASN could have elected to file a 
simple notice with the AAA (or the Commission) and ask that the 
proceeding be held in abeyance while the parties continued to 
negotiate. With the deadline for filing for arbitration

[[Page 65324]]

approaching, the parties entered into further negotiations.
    88. MASN claims that on August 2, 2006, it e-mailed a revised 
version of the Term Sheet the parties had been negotiating to Comcast. 
As with the previous versions, MASN claims that the Term Sheet 
contained an intentionally blank list of the Comcast systems on which 
Comcast would carry MASN (the ``List of Systems''). MASN claims that it 
understood and intended that Comcast would fill in the List of Systems 
with all of Comcast's cable systems within the MASN Territory. MASN 
claims that on August 2, 2006, Comcast for the first time expressed 
concern that it could not immediately commit to carry MASN on systems 
serving a number of subscribers in Roanoke/Lynchburg and other Virginia 
areas that were served by systems that Comcast acquired from Adelphia 
because these systems lacked sufficient capacity.
    89. MASN states that on the afternoon of August 4, 2006--just three 
hours before the arbitration deadline--Comcast transmitted to MASN via 
e-mail a revised version of the Term Sheet the parties had been 
negotiating. MASN states that Comcast's e-mail provided Comcast's List 
of Systems for the first time. MASN explains that Comcast gave no 
indication that the list excluded any of its systems except for the 
former-Adelphia systems in Roanoke/Lynchburg and other Virginia areas. 
Comcast explains that its revised draft of the Term Sheet specifically 
deleted the language providing for carriage of MASN on ``all Comcast 
systems'' and inserted language limiting Comcast's carriage obligation 
to the specific systems listed in the List of Systems. Comcast claims 
that MASN never asked whether any Comcast systems were excluded from 
the List of Systems or otherwise raised any objections to the List of 
Systems. MASN states that Comcast's e-mail accompanying the Term Sheet 
stated that the revised version ``reflects the deal we've been 
discussing over the past two days as well as some other clean-up 
changes.'' MASN claims that this representation is clear that the Term 
Sheet would memorialize and not alter the parties' discussions, which 
concerned carriage of MASN to all Comcast subscribers within the MASN 
Territory with the sole exception of the former-Adelphia subscribers 
previously discussed. Comcast disagrees, claiming that the deal Comcast 
and MASN had been discussing was for carriage on most, but not all, of 
Comcast's systems. Comcast claims that it never committed to carry MASN 
on all of its systems.
    90. MASN claims that it attempted to review the List of Systems, 
but it lacked any independent means of verifying the contents, 
particularly with only three hours before the arbitration deadline. In 
response, Comcast states that MASN never claimed during the 
negotiations that it did not have adequate time to review the List of 
Systems. In addition, Comcast states that, because the List of Systems 
is less than two pages long with only 60 systems listed, it should not 
have taken hours to review. Comcast also claims that there were 
multiple public sources available to MASN that would have allowed it to 
easily determine which Comcast systems were and were not included in 
the List of Systems. MASN claims that none of these public sources 
would have allowed MASN to verify the contents of the List of Systems.
    91. MASN and Comcast signed the Term Sheet on August 4, 2006, less 
than one-half hour before the deadline to file for arbitration. The 
Term Sheet included a Release which required MASN to withdraw its 
pending program carriage complaint against Comcast. MASN filed a Motion 
to withdraw its complaint on August 9, 2006. On August 15, 2006, an ALJ 
released a decision granting the Motion and terminating the proceeding.
    92. In January 2007, four months after Comcast's first launch in 
September 2006 of MASN on some of its systems, MASN learned that 
Comcast did not intend to launch MASN on certain systems around 
Harrisburg. MASN then initiated an effort to document the Comcast 
systems where Comcast did not launch MASN. MASN determined that it had 
not been launched on Comcast systems in the Harrisburg, Roanoke/
Lynchburg, and Tri-Cities DMAs, and in other small systems in Virginia 
and Pennsylvania as well as in other areas (collectively, the 
``Unlaunched Systems''). Some of these systems are not former-Adelphia 
systems, which MASN claims Comcast never raised as an issue during 
negotiations. Some of these systems are former-Adelphia systems, but 
MASN argues that Comcast has provided no indication as to when these 
systems will be upgraded. Moreover, some former-Adelphia systems have 
been upgraded but are still not carrying MASN.
    93. Thus, the Unlaunched Systems on which MASN is not being carried 
fall into two relevant categories: (i) Unlaunched Comcast systems in 
the MASN Territory that Comcast did not acquire from Adelphia (the 
``Unlaunched Non-Former-Adelphia Systems''); and (ii) unlaunched 
Comcast systems in the MASN Territory that Comcast acquired from 
Adelphia (the ``Unlaunched Former-Adelphia Systems'').
    94. For approximately a year, the parties engaged in negotiations 
for carriage of MASN on the Unlaunched Systems. These negotiations have 
not resulted in an agreement.

B. Procedural Issues

    95. Comcast argues that the MASN complaint should be dismissed on 
the following procedural grounds. For the reasons discussed below, we 
decline to dismiss the complaint on any of these grounds.
1. Program Carriage Statute of Limitations
    96. Comcast argues that the MASN Complaint is barred by the program 
carriage statute of limitations. Comcast contends that, of the three 
events that trigger the running of the program carriage statute of 
limitations, only the first event--the date on which the parties 
entered into the Term Sheet--is applicable in this case. Comcast notes 
that the Term Sheet was executed on August 4, 2006, and thus argues 
that the statute of limitations expired one year later--on August 4, 
2007. Comcast points out that the Complaint was filed on July 1, 2008, 
almost 11 months after that date. MASN disagrees. MASN notes that the 
Term Sheet commits future carriage decisions to Comcast's 
``discretion,'' but any such discretion is constrained by the non-
discrimination obligations of the Act and the Commission's rules. MASN 
states that its Complaint is based on Comcast's discriminatory refusal 
to carry MASN on the Unlaunched Systems since 2007.
    97. Comcast argues that MASN's claim regarding post-Term Sheet 
conduct is a new claim which MASN raised for the first time in its 
Reply. MASN disagrees, explaining that its Complaint was clear that its 
legal claims focused on Comcast's post-Term Sheet conduct. Based on our 
examination of the pleadings, we agree with MASN that its claim 
regarding post-Term Sheet conduct was not raised for the first time in 
its Reply. MASN explains that from the time it discovered that Comcast 
would not carry MASN on the Unlaunched Systems until the filing of its 
Complaint in July 2008, MASN attempted to reach a carriage agreement 
with Comcast. Because those negotiations had appeared to reach an 
impasse in March 2008, MASN sent a notice letter to Comcast on March 7, 
2008. MASN filed its Complaint on July 1, 2008, well within one year of 
notifying Comcast, as required by Section 76.1302(f)(3).

[[Page 65325]]

    98. In any event, Comcast argues that there can be no ``refusal to 
negotiate'' or ``refusal to carry'' with respect to any Comcast system 
in the MASN Territory because a Term Sheet and Release were already 
executed between the parties in August 2006. MASN responds that this 
line of argument is a contract-based defense to MASN's carriage claims 
that is legally and factually unfounded. Comcast also claims that there 
is no ``refusal to carry'' because Comcast carries MASN in the vast 
majority of Comcast systems in the MASN Territory. MASN responds that 
there is no legal authority to support Comcast's view that carriage of 
MASN on some Comcast systems extinguishes MASN's legal right to enforce 
its program carriage rights with respect to other Comcast systems.
    99. We conclude that MASN filed its program carriage complaint in 
compliance with the program carriage statute of limitations. MASN's 
claims regarding program carriage discrimination apply to Comcast's 
refusal to exercise its discretion to carry MASN on the Unlaunched 
Systems after the Term Sheet was signed. As MASN notes, the Term Sheet 
committed Comcast's future carriage decisions, including carriage on 
systems not included in the List of Systems, to Comcast's 
``discretion.'' The Term Sheet, however, does not indicate that MASN 
waived its statutory program carriage rights with respect to Comcast's 
exercise of such discretion. Accordingly, MASN's claims based on 
Comcast's exercise of its discretion pursuant to the Term Sheet are not 
subject to the one-year limitations period in Section 76.1302(f)(1). 
MASN explains that its negotiations with Comcast for carriage of MASN 
on the Unlaunched Systems appeared to reach an impasse in March 2008. 
MASN filed its program carriage complaint within one year of this date 
and within one year of its pre-filing notice. Accordingly, MASN filed 
its complaint in compliance with the limitations period in Section 
76.1302(f)(3). The EchoStar case cited by Comcast is inapposite. 
EchoStar Communications Corp. v. Speedvision Network, L.L.C. and 
Outdoor Life Network, L.L.C., Memorandum Opinion & Order, 14 FCC Rcd 
9327 (CSB, 1999), aff'd, EchoStar Communications Corp. v. Speedvision 
Network, L.L.C. and Outdoor Life Network, L.L.C., Memorandum Opinion & 
Order, 16 FCC Rcd 4949 (2001). In that decision, the Commission did not 
hold that a refusal to sell claim is barred when the parties reached a 
carriage agreement over one year earlier.
2. Res Judicata
    100. Comcast claims that MASN's complaint is barred by the doctrine 
of res judicata. As required by the Release, MASN voluntarily sought 
and received from the Commission dismissal of its 2005 Complaint. 
Comcast asserts that voluntary dismissal with prejudice of a complaint 
constitutes a final judgment on the merits as to all claims encompassed 
therein. MASN disagrees, arguing that res judicata only applies where 
the prior and subsequent actions share a ``common nucleus of operative 
facts.'' MASN's past complaint against Comcast concerned Comcast's 
discriminatory refusal to carry MASN in response to its carriage 
requests beginning in 2005. MASN claims that the current action, 
however, is forward-looking and concerns Comcast's discriminatory 
refusal to carry MASN after the August 2006 date of the Release.
    101. We conclude that the MASN complaint is not barred by res 
judicata. MASN's claims regarding program carriage discrimination apply 
to Comcast's refusal to exercise its discretion to carry MASN on the 
Unlaunched Systems after the parties settled their previous disputes 
and signed the Term Sheet. This presents a different set of facts and 
circumstances than those presented in the 2005 Complaint.

C. Similarly Situated

    102. MASN claims that it is similarly situated to CSN-MA in the 
southwestern Virginia DMAs and to CSN-P in the Harrisburg DMA because 
the networks are all RSNs and they compete head-to-head in the same 
geographic areas. MASN explains that it is an RSN that provides live 
sports programming of major professional sports teams (the Orioles and 
Nationals). Similarly, Comcast's affiliated RSNs carry major 
professional sports programming throughout Comcast's footprint 
(including the Washington Wizards and Capitals (in the case of CSN-MA) 
and the Philadelphia Phillies and Flyers (in the case of CSN-P)). 
Comcast has not attempted to demonstrate that MASN, CSN-MA, and CSN-P 
are not similarly situated.

D. Differential Treatment

    103. MASN explains that Comcast treats CSN-MA and CSN-P differently 
than MASN: On the majority of the Unlaunched Systems, Comcast carries 
CSN-P and/or CSN-MA, but Comcast has refused to carry MASN on those 
same systems.

E. Harm to Ability To Compete

    104. As required by the program carriage statute and rules, MASN 
has provided evidence that Comcast's refusal to carry MASN on the 
Unlaunched Systems restrains its ability to compete fairly by (i) 
Preventing MASN from achieving maximum subscribership; (ii) restraining 
MASN's ability to compete for advertising revenues; (iii) restraining 
MASN's ability to compete for sports programming rights; and (iv) 
increasing MASN's costs. MASN has put forth evidence demonstrating that 
as an RSN it needs access to the maximum number of subscribers within 
its geographic footprints in order to compete optimally for advertisers 
and sports programming rights. In response, Comcast explains that MASN 
is carried very broadly in its territory, including by Comcast, 
DIRECTV, DISH Network, Cox, Verizon, RCN, and many others. Moreover, 
Comcast explains that MASN reaches over 5 million MVPD subscribers, 
making it one of the largest RSNs in the country. Comcast notes that it 
is carrying MASN to a number of subscribers and there is no evidence 
that its refusal to carry MASN in the ``outer reaches'' of Harrisburg 
and southwestern Virginia has in any way harmed MASN or affected its 
ability to compete.

F. Alleged Contract-Based, Business and Editorial Justifications for 
Comcast's Refusal to Carry MASN on the Unlaunched Systems

    105. Comcast offers a number of contract-based and alleged business 
and editorial justifications for its decision to refrain from carrying 
MASN on the Unlaunched Systems.
1. Contract-Based Justifications
a. Term Sheet
(i) Unlaunched Non-Former-Adelphia Systems
    106. Comcast argues that the unambiguous terms of the Term Sheet do 
not obligate it to carry MASN on the Unlaunched Non-Former-Adelphia 
Systems because those systems are not included in the List of Systems 
attached to the Term Sheet. Comcast asserts that the exclusion of these 
systems from the List of Systems was ``an important part of the 
negotiated compromise'' that led to the settlement of the carriage 
dispute between Comcast and MASN. MASN notes that the Term Sheet, 
however, commits future carriage decisions to Comcast's ``discretion,'' 
which is constrained by the non-discrimination obligations of the 
program carriage rules. By signing the Term Sheet, MASN

[[Page 65326]]

claims that it did not forfeit its rights to insist that Comcast abide 
by its program carriage obligations with respect to any Comcast system 
within the MASN Territory.
(ii) Unlaunched Former-Adelphia Systems
    107. Comcast argues that, under the unambiguous terms of the Term 
Sheet, it is not obligated to carry MASN on the Unlaunched Former-
Adelphia Systems because those systems are not included in the List of 
Systems. MASN states that it agreed to Comcast's proposal to exclude 
certain former Adelphia systems in Roanoke/Lynchburg and other small 
Virginia communities based on Comcast's representation that there was 
not sufficient capacity to carry MASN on these systems at the time. 
MASN explains that Comcast represented to the Commission that it would 
rapidly upgrade the former Adelphia systems it acquired in 2006, a 
representation that was crucial to the Commission's approval of the 
Adelphia transaction. MASN states that, given assurances made by 
Comcast to the Commission that it would soon upgrade the Former-
Adelphia systems, thereby providing sufficient capacity to MASN, MASN 
viewed Comcast's representations to the Commission as sufficient 
protection that MASN would eventually be launched on the Former-
Adelphia systems. Comcast states that it never committed to launch MASN 
in Roanoke and other Former-Adelphia systems in Virginia once those 
systems were upgraded, nor is such a commitment reflected in the Term 
Sheet. MASN notes that, as with the Non-Former-Adelphia Systems, the 
Term Sheet commits future carriage decisions to Comcast's 
``discretion,'' which is constrained by the non-discrimination 
obligations of the program carriage rules. By signing the Term Sheet, 
MASN claims that it did not forfeit its rights to insist that Comcast 
abide by its program carriage obligations with respect to any Comcast 
system within the MASN Territory.
b. Release
    108. Comcast argues that the Term Sheet and Release comprehensively 
settled MASN's 2005 program carriage complaint against Comcast, in 
which MASN requested carriage on ``all Comcast systems,'' including the 
Harrisburg and the southwestern Virginia systems, and thereby 
relinquished any right MASN may have had to seek any different deal 
with Comcast covering Comcast's cable systems in the MASN Territory. 
MASN notes, however, that the Release covers only conduct ``until the 
date of this Release clause''--that is, up until August 2006. MASN's 
complaint, however, concerns Comcast's refusal to exercise its 
discretion to carry MASN since 2007 when MASN discovered it was not 
being carried on the Unlaunched Systems, well after the date of the 
Release. Accordingly, MASN contends that the Release does not justify 
Comcast's decision to refuse to carry MASN on the Unlaunched Systems 
but to carry its affiliated RSNs.
2. Editorial and Business Justifications
    109. Comcast argues that its refusal to carry MASN on the 
Unlaunched Systems was based on its editorial and business judgment 
that carriage on those systems was not justified in light of a number 
of factors, including MASN's carriage cost (both licensee fee and 
bandwidth) and its allegedly low consumer appeal.
a. License Fee
    110. Comcast contends that MASN would be among the most expensive 
networks carried in its Harrisburg and southwestern Virginia systems. 
MASN contends that Comcast has submitted no evidence, however, 
demonstrating that the cost of carrying MASN is materially greater than 
the cost of carrying Comcast's affiliated RSNs in the relevant DMAs. 
MASN claims that Comcast provides no justification for applying a 
stricter cost standard to unaffiliated programming than to affiliated 
programming. Moreover, while Comcast claims that a network's license 
fee is a relevant consideration in making carriage decisions, MASN 
argues that Comcast has not submitted any evidence that its decision-
makers compared the cost of MASN to the cost of its affiliated RSNs in 
deciding to deny carriage to MASN on the Unlaunched Systems but to 
grant carriage to Comcast's affiliated RSNs. MASN provides the 
following evidence which it claims justifies its license fee for 
carriage on the Unlaunched Systems: (i) The carriage rates proposed by 
MASN are fair and reasonable in light of the popularity and value of 
live sports programming that MASN offers; (ii) every other major MVPD 
in the relevant parts of the MASN Territory other than Comcast (such as 
Cox, DIRECTV, and DISH Network) has agreed to carry MASN on their basic 
or expanded basic tier (or equivalent) at the rates MASN has proposed 
for Comcast; (iii) Comcast has agreed to the same carriage terms for 
MASN on its systems in other areas (some of which are farther away from 
Baltimore and Washington than the Harrisburg and southwestern Virginia 
DMAs); and (iv) MASN's rate is comparable to what other RSNs charge and 
MVPDs pay for comparable extended inner-market programming.
b. Bandwidth
    111. Comcast argues that, because the Term Sheet requires carriage 
of MASN on Comcast's expanded basic tier, Comcast would be required to 
devote scarce analog capacity to carriage of the network. Moreover, 
Comcast notes that MASN would require two analog channels to 
accommodate both the Orioles' and Nationals' games. MASN argues that 
Comcast has provided no evidence regarding its bandwidth constraints on 
the Unlaunched Systems. In addition, MASN contends that Comcast has 
failed to justify why its alleged bandwidth constraints on the 
Unlaunched Systems justified denying carriage to MASN but granting 
carriage to Comcast's affiliated RSNs.
c. Demand-
    112. Comcast argues that its refusal to carry MASN on the 
Unlaunched Systems is justified based on MASN's low consumer appeal. 
Comcast notes that, even in its core Baltimore and Washington, DC, 
markets, MASN has the lowest viewership ratings of any RSN in the 
country, attracting less than one-third the average number of 
households of any other RSN. MASN argues that Comcast has submitted no 
evidence, however, demonstrating that the demand for MASN is materially 
different than the demand for Comcast's affiliated RSNs in the relevant 
DMAs. MASN also alleges that Comcast provides no justification for 
applying a stricter demand standard to unaffiliated programming than to 
affiliated programming. Moreover, while Comcast claims that demand is a 
relevant consideration in making carriage decisions, MASN submits that 
Comcast has not provided any evidence that its decision-makers compared 
the demand for MASN to the demand for its affiliated RSNs in deciding 
to deny carriage to MASN on the Unlaunched Systems but to grant 
carriage to Comcast's affiliated RSNs. MASN argues that the following 
demonstrates consumer demand for its programming on the Unlaunched 
Systems based on the following factors: (i) The decisions of 21 other 
major MVPDs throughout the MASN Territory to carry MASN (including 
Charter, Cox, DIRECTV, DISH Network, RCN, and Verizon); (ii) Comcast's 
efforts to keep the rights to the Orioles games and to acquire the 
rights to the Nationals games, both of which are now shown on MASN; 
(iii) prior to the launch of MASN, Comcast's

[[Page 65327]]

affiliated RSN carried Orioles games in the Harrisburg DMA; (iv) every 
other major MVPD serving Harrisburg (e.g., DIRECTV, DISH Network) 
except Comcast has agreed to carry MASN (while Comcast notes that some 
small cable operators in Harrisburg that do not carry MASN, we do not 
believe that the decisions of a few small cable operators cast doubt on 
MASN's value given the evidence of extensive carriage of MASN by other 
MVPDs in Harrisburg); (v) prior to the launch of MASN, Comcast's 
affiliated RSN carried Orioles games on systems in southwestern 
Virginia; (vi) other major MVPDs serving southwestern Virginia (Cox, 
DIRECTV, DISH Network) have agreed to carry MASN (while Comcast argues 
that, with the exception of Cox's carriage of MASN in Roanoke, most 
other cable operators serving southwestern Virginia have made the same 
decision as Comcast not to carry MASN, we do not believe that the 
decisions of certain cable operators cast doubt on MASN's value given 
the evidence of extensive carriage of MASN by other MVPDs in 
southwestern Virginia, such as DIRECTV and DISH Network); (vii) 
evidence that demand for MASN's programming is comparable to or 
eclipses demand for Comcast's affiliated programming in MASN's core 
markets on a per-game ratings basis; (viii) MASN is among the top RSNs 
in the country with respect to live major professional sports 
programming; and (ix) MASN carries other programming of interest to 
subscribers in the Harrisburg and southwestern Virginia DMAs, including 
sporting events of local colleges. MASN also argues that Comcast's 
claim that there is no demand for MASN in Harrisburg is contradicted by 
the fact that Comcast has launched MASN on other systems in southern 
Pennsylvania, such as in York, Pennsylvania (25 miles from Harrisburg). 
Moreover, MASN submits that Comcast's claim that there is no demand for 
MASN on the periphery of the MASN Territory is contradicted by the fact 
that it carries CSN-MA on the same cable systems in southwestern 
Virginia despite the fact that CSN-MA's core sports programming of 
Washington Wizards and Capitals games is also based in the Washington 
DMA.

G. Conclusion

    113. In the Second Report and Order, the Commission stated that it 
would identify specific behavior that constitutes discrimination on a 
case-by-case basis ``because the practices at issue will necessarily 
involve behavior that must be evaluated within the context of specific 
facts pertaining to each negotiation.'' Second Report and Order, 58 FR 
60390, November 16, 1993. Any complainant alleging a violation of the 
prohibition in Section 616(a)(3) on discrimination must demonstrate 
that the alleged discrimination is ``on the basis of affiliation or 
nonaffiliation'' of a vendor, and that ``the effect of the conduct that 
prompts the complaint is to unreasonably restrain the ability of the 
complainant to compete fairly.'' After reviewing the pleadings and 
supporting documentation filed by the parties, we find that MASN has 
established a prima facie case in the above-referenced case under 
Section 76.1301(c). We also find that the pleadings and supporting 
documentation present several factual disputes as to whether Comcast 
discriminated against MASN in favor of its affiliated services. 
Accordingly, we direct the ALJ to make and return a Recommended 
Decision to the Commission pursuant to the procedures set forth below 
within 60 days after release of this Order (i.e., by December 9, 2008).

IV. Referral to Administrative Law Judge or Alternative Dispute 
Resolution

    114. We direct that an Administrative Law Judge resolve the factual 
disputes with respect to the claims and return a recommended decision 
and a recommended remedy, if necessary, to the Commission within 60 
days of the release of this Order (i.e., by December 9, 2008). Pursuant 
to Section 76.7(g)(2) of the Commission's rules, the parties will have 
ten days following release of this Order (i.e., by October 20, 2008) to 
elect to resolve this dispute through ADR. 47 CFR 76.7(g)(2). Each 
party will notify the Commission, in writing, of its election within 10 
days of release of this Order (i.e., by October 20, 2008) and, in the 
event that ADR is chosen, will update the Commission monthly on the 
status of the ADR process. If the parties elect to resolve the dispute 
through ADR, the 60-day period for review by an Administrative Law 
Judge will be tolled. In the event that the parties fail to reach a 
settlement through the ADR process, the parties shall promptly notify 
the Commission in writing, and the 60-day period will resume upon 
receipt of such notification.
    115. Upon receipt of the Administrative Law Judge's recommended 
decision and remedy, the Commission will make the requisite legal 
determinations as to whether (i) the defendant has discriminated 
against the complainant's programming in favor of its own programming, 
with the effect of unreasonably restraining the complainant's ability 
to compete fairly in violation of Section 76.1301(c); and (ii) only in 
the case of NFL Network v Comcast, whether Comcast has demanded a 
financial interest in the NFL's programming in exchange for carriage in 
violation of Section 76.1301(a). If necessary, the Commission will then 
decide upon appropriate remedies.

V. Ordering Clauses

A. WealthTV v. TWC

    116. Accordingly, it is ordered, that Herring Broadcasting, Inc. d/
b/a/ WealthTV's Complaint against Time Warner Cable Inc. is Designated 
for Hearing at a date and place to be specified in a subsequent order 
by an Administrative Law Judge for a recommended determination of the 
following issues:
    (a) Whether the defendant has discriminated against the 
complainant's programming in favor of its own programming, with the 
effect of unreasonably restraining the complainant's ability to compete 
fairly in violation of Section 76.1301(c);
    (b) If the Administrative Law Judge determines that the defendant 
has discriminated against the complainant's programming in violation of 
Section 76.1301(c), the appropriate price, terms and conditions on 
which the complainant's programming should be carried on defendant's 
systems and such other remedies as the Administrative Law Judge 
recommends.
    117. It is further ordered, that pursuant to Section 616 of the 
Communications Act of 1934, as amended, 47 U.S.C. 536, and 47 CFR 
76.1300-1302, Herring Broadcasting, Inc. d/b/a WealthTV and Time Warner 
Cable Inc. submit to the Commission, in writing within ten days of this 
Order (i.e., by October 20, 2008), their respective elections as to 
whether each wishes to proceed to Alternative Dispute Resolution and, 
in the event that Alternative Dispute Resolution is chosen, monthly 
update the Commission on the status of that process.
    118. It is further ordered, that the Administrative Law Judge, 
within 60 days of this Order (i.e., by December 9, 2008), will resolve 
all factual disputes and submit a recommended decision and remedy, if 
appropriate.
    119. It is further ordered, that if the parties elect Alternative 
Dispute Resolution, the period for Administrative Law Judge review 
shall be tolled, until such time as the parties notify the Commission 
that they have failed to reach a settlement through Alternative Dispute 
Resolution.

[[Page 65328]]

B. WealthTV v. BHN

    120. Accordingly, it is ordered, that Herring Broadcasting, Inc. d/
b/a/ WealthTV's Complaint against Bright House Networks, LLC is 
Designated for Hearing at a date and place to be specified in a 
subsequent order by an Administrative Law Judge for a recommended 
determination of the following issues:
    (a) Whether the defendant has discriminated against the 
complainant's programming in favor of its own programming, with the 
effect of unreasonably restraining the complainant's ability to compete 
fairly in violation of Section 76.1301(c);
    (b) If the Administrative Law Judge determines that the defendant 
has discriminated against the complainant's programming in violation of 
Section 76.1301(c), the appropriate price, terms and conditions on 
which the complainant's programming should be carried in defendant's 
systems and such other remedies as the Administrative Law Judge 
recommends.
    121. It is further ordered, that pursuant to Section 616 of the 
Communications Act of 1934, as amended, 47 U.S.C. 536, and 47 CFR 
76.1300-1302, Herring Broadcasting, Inc. d/b/a WealthTV and Bright 
House Networks, LLC submit to the Commission, in writing within ten 
days of this Order (i.e., by October 20, 2008), their respective 
elections as to whether each wishes to proceed to Alternative Dispute 
Resolution and, in the event that Alternative Dispute Resolution is 
chosen, monthly update the Commission on the status of that process.
    122. It is further ordered, that the Administrative Law Judge, 
within 60 days of this Order (i.e., by December 9, 2008), will resolve 
all factual disputes and submit a recommended decision and remedy, if 
appropriate.
    123. It is ordered, that if the parties elect Alternative Dispute 
Resolution, the period for Administrative Law Judge review shall be 
tolled, until such time as the parties notify the Commission that they 
have failed to reach a settlement through Alternative Dispute 
Resolution.

C. WealthTV v. Cox

    124. Accordingly, it is ordered, that Herring Broadcasting, Inc. d/
b/a/ WealthTV's Complaint against Cox Communications, Inc. is 
Designated for Hearing at a date and place to be specified in a 
subsequent order by an Administrative Law Judge for a recommended 
determination of the following issues:
    (a) Whether the defendant has discriminated against the 
complainant's programming in favor of its own programming, with the 
effect of unreasonably restraining the complainant's ability to compete 
fairly in violation of Section 76.1301(c);
    (b) If the Administrative Law Judge determines that the defendant 
has discriminated against the complainant's programming in violation of 
Section 76.1301(c), the appropriate price, terms and conditions on 
which the complainant's programming should be carried on defendant's 
systems and such other remedies as the Administrative Law Judge 
recommends.
    125. It is further ordered, that pursuant to Section 616 of the 
Communications Act of 1934, as amended, 47 U.S.C. 536, and 47 CFR 
76.1300-1302, Herring Broadcasting, Inc. d/b/a WealthTV and Cox 
Communications, Inc. submit to the Commission, in writing within ten 
days of this Order (i.e., by October 20, 2008), their respective 
elections as to whether each wishes to proceed to Alternative Dispute 
Resolution and, in the event that Alternative Dispute Resolution is 
chosen, monthly update the Commission on the status of that process.
    126. It is further ordered, that the Administrative Law Judge, 
within 60 days of this Order (i.e., by December 9, 2008), will resolve 
all factual disputes and submit a recommended decision and remedy, if 
appropriate.
    127. It is further ordered, that if the parties elect Alternative 
Dispute Resolution, the period for Administrative Law Judge review 
shall be tolled, until such time as the parties notify the Commission 
that they have failed to reach a settlement through Alternative Dispute 
Resolution.

D. WealthTV v. Comcast

    128. Accordingly, it is ordered, that Herring Broadcasting, Inc. d/
b/a/ WealthTV's Complaint against Comcast Corporation is Designated for 
Hearing at a date and place to be specified in a subsequent order by an 
Administrative Law Judge for a recommended determination of the 
following issues:
    (a) Whether the defendant has discriminated against the 
complainant's programming in favor of its own programming, with the 
effect of unreasonably restraining the complainant's ability to compete 
fairly in violation of Section 76.1301(c);
    (b) If the Administrative Law Judge determines that the defendant 
has discriminated against the complainant's programming in violation of 
Section 76.1301(c), the appropriate price, terms and conditions on 
which the complainant's programming should be carried on defendant's 
systems and such other remedies as the Administrative Law Judge 
recommends.
    129. It is further ordered, that pursuant to Section 616 of the 
Communications Act of 1934, as amended, 47 U.S.C. 536, and 47 CFR 
76.1300-1302, Herring Broadcasting, Inc. d/b/a WealthTV and Comcast 
Corporation submit to the Commission, in writing within ten days of 
this Order (i.e., by October 20, 2008), their respective elections as 
to whether each wishes to proceed to Alternative Dispute Resolution 
and, in the event that Alternative Dispute Resolution is chosen, 
monthly update the Commission on the status of that process.
    130. It is further ordered, that the Administrative Law Judge, 
within 60 days of this Order (i.e., by December 9, 2008), will resolve 
all factual disputes and submit a recommended decision and remedy, if 
appropriate.
    131. It is further ordered, that if the parties elect Alternative 
Dispute Resolution, the period for Administrative Law Judge review 
shall be tolled, until such time as the parties notify the Commission 
that they have failed to reach a settlement through Alternative Dispute 
Resolution.

E. NFL v. Comcast

    132. Accordingly, it is ordered, that NFL Enterprises LLC's 
Complaint against Comcast Corporation is Designated for Hearing at a 
date and place to be specified in a subsequent order by an 
Administrative Law Judge for a recommended determination of the 
following issues:
    (a) Whether the defendant has discriminated against the 
complainant's programming in favor of its own programming, with the 
effect of unreasonably restraining the complainant's ability to compete 
fairly in violation of Section 76.1301(c);
    (b) Whether the defendant has demanded a financial interest in the 
complainant's programming in exchange for carriage in violation of 
Section 76.1301(a);
    (c) If the Administrative Law Judge determines that the defendant 
has discriminated against the complainant's programming in violation of 
Section 76.1301(c) or demanded a financial interest in the 
complainant's programming in exchange for carriage in violation of 
Section 76.1301(a), the appropriate price, terms and conditions on 
which the complainant's programming should be carried on defendant's 
systems and such other

[[Page 65329]]

remedies as the Administrative Law Judge recommends.
    133. It is further ordered, that pursuant to Section 616 of the 
Communications Act of 1934, as amended, 47 U.S.C. 536, and 47 CFR 
76.1300-1302, NFL Enterprises LLC and Comcast Corporation submit to the 
Commission, in writing within ten days of this Order (i.e., by October 
20, 2008), their respective elections as to whether each wishes to 
proceed to Alternative Dispute Resolution and, in the event that 
Alternative Dispute Resolution is chosen, monthly update the Commission 
on the status of that process.
    134. It is further ordered, that the Administrative Law Judge, 
within 60 days of this Order (i.e., by December 9, 2008), will resolve 
all factual disputes and submit a recommended decision and remedy, if 
appropriate.
    135. It is further ordered, that if the parties elect Alternative 
Dispute Resolution, the period for Administrative Law Judge review 
shall be tolled, until such time as the parties notify the Commission 
that they have failed to reach a settlement through Alternative Dispute 
Resolution.

F. MASN v. Comcast

    136. Accordingly, it is ordered, that TCR Sports Broadcasting 
Holding, L.L.P., d/b/a Mid-Atlantic Sports Network's Complaint against 
Comcast Corporation is Designated for Hearing at a date and place to be 
specified in a subsequent order by an Administrative Law Judge for a 
recommended determination of the following issues:
    (a) Whether the defendant has discriminated against the 
complainant's programming in favor of its own programming, with the 
effect of unreasonably restraining the complainant's ability to compete 
fairly in violation of Section 76.1301(c);
    (b) If the Administrative Law Judge determines that the defendant 
has discriminated against the complainant's programming in violation of 
Section 76.1301(c), the appropriate price, terms and conditions on 
which the complainant's programming should be carried on defendant's 
systems and such other remedies as the Administrative Law Judge 
recommends.
    137. It is further ordered, that pursuant to Section 616 of the 
Communications Act of 1934, as amended, 47 U.S.C. 536, and 47 CFR 
76.1300-1302, TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-
Atlantic Sports Network and Comcast Corporation submit to the 
Commission, in writing within ten days of this Order (i.e., by October 
20, 2008), their respective elections as to whether each wishes to 
proceed to Alternative Dispute Resolution and, in the event that 
Alternative Dispute Resolution is chosen, monthly update the Commission 
on the status of that process.
    138. It is further ordered, that the Administrative Law Judge, 
within 60 days of this Order (i.e., by December 9, 2008), will resolve 
all factual disputes and submit a recommended decision and remedy, if 
appropriate.
    139. It is further ordered, that if the parties elect Alternative 
Dispute Resolution, the period for Administrative Law Judge review 
shall be tolled, until such time as the parties notify the Commission 
that they have failed to reach a settlement through Alternative Dispute 
Resolution.

G. General Ordering Clauses

    140. It is further ordered that, pursuant to Section 4(i) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), in order to 
avail itself of the opportunity to be heard, each party to an above-
captioned proceeding, in person or by its attorney, shall file with the 
Commission, by October 17, 2008, a written appearance stating that the 
party will appear on the date fixed for hearing and present evidence on 
the issues specified herein. In light of the deadline for a Recommended 
Decision contained in this Order, the deadline for written appearances 
set forth in 47 CFR 1.221 is waived and replaced with the deadline set 
forth above.
    141. It is further ordered that, if any complainant in an above-
captioned proceeding fails to file a written appearance by the deadline 
specified above, or has not filed prior to that deadline, a petition to 
accept, for good cause shown, a written appearance beyond the deadline, 
the Presiding Administrative Law Judge shall dismiss the relevant 
above-captioned proceeding with prejudice for failure to prosecute.
    142. It is further ordered that all parties to the above-captioned 
proceedings will be served with a copy of this Order and the Erratum 
thereto by e-mail and by certified mail, return receipt requested.
    143. It is further ordered that the Chief, Enforcement Bureau, 
shall be made a party to each of the above-captioned proceedings 
without the need to file a written appearance and will determine the 
Enforcement Bureau's level of participation in the proceedings.
    144. It is further ordered that a copy of this Hearing Designation 
Order and the Erratum thereto or a summary thereof shall be published 
in the Federal Register.

    Federal Communications Commission.
Monica Shah Desai,
Chief, Media Bureau.
 [FR Doc. E8-26147 Filed 10-31-08; 8:45 am]
BILLING CODE 6712-01-P