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FCC Affirms Bloomberg v. Comcast News Neighborhooding Decisions

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Released: September 26, 2013

Federal Communications Commission

FCC 13-124

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

BLOOMBERG L.P.

)
MB Docket No. 11-104
Complainant
)
)

v.
)
)

COMCAST CABLE COMMUNICATIONS,

)

LLC

)
Defendant
)

MEMORANDUM OPINION AND ORDER

Adopted: September 25, 2013

Released: September 26, 2013

By the Commission: Chairwoman Clyburn issuing a statement; Commissioner Pai approving in part,
dissenting in part, and issuing a statement.

Heading

Paragraph #

I. INTRODUCTION .......................................................................................................................... 1
II. BACKGROUND ............................................................................................................................ 2
III. DISCUSSION ................................................................................................................................. 7
A. Bloomberg's Application for Review of the News Neighborhooding Order ................. 8
1. Application of the News Neighborhood Condition to Headends with
Multiple News Neighborhoods.................................................................................. 9
2. Allowing Comcast to Choose the Neighborhood ................................................ 17
3. News Channels .................................................................................................... 19
4. System/Headend Distinction................................................................................ 21
B. Comcast's Application for Review of the News Neighborhooding Order.................... 22
1. Definition of a News Neighborhood........................................................................ 23
2. Applicability to Existing Channel Lineups.............................................................. 30
3. First Amendment Challenge..................................................................................... 35
C. Bloomberg and Comcast's Applications for Review of the Clarification Order....... 36
IV. CONCLUSION ............................................................................................................................. 40
V. ORDERING CLAUSES............................................................................................................... 41

I.

INTRODUCTION

1.
In this Memorandum Opinion and Order, we affirm Media Bureau orders that direct
Comcast to place Bloomberg Television in news neighborhoods, consistent with a condition of the
Comcast-NBCU Order.1 We agree with the Bureau's decision that four news or business news channels

1 Bloomberg L.P. v. Comcast Cable Communications, 27 FCC Rcd 4891 (MB 2012) ("News Neighborhooding
Order
"); Bloomberg L.P. v. Comcast Cable Communications, 27 FCC Rcd 9488 (MB 2012) ("Clarification
(continued....)

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within any five adjacent channel positions qualifies as a news neighborhood, regardless of whether the
channel grouping existed before or was created after the Comcast-NBCU Order. We reject a challenge
from Comcast that the Media Bureau's interpretation of the condition infringes Comcast's First
Amendment rights. We also find unpersuasive Bloomberg's argument that, if Comcast's channel lineup
has more than one news neighborhood, the condition obligates Comcast to carry independent news and
business news channels in all of those neighborhoods. We also reject a contention by Bloomberg that the
Media Bureau wrongly categorized some networks as news. Finally, we affirm the Bureau's
determination that its initial Order dealt with the issue of carriage of the standard definition ("SD")
version of Bloomberg Television in SD neighborhoods and we clarify that the condition generally applies
separately to SD and high definition ("HD") networks; that is, if Comcast carries both an SD and HD
version of an independent news network, each is treated as a different channel and is independently
entitled to carriage in an SD or HD news neighborhood respectively, where an SD or HD news
neighborhood exists.

II.

BACKGROUND

2.
The Commission approved the assignment and transfer of broadcast, satellite, and other
radio licenses from the General Electric Company to Comcast on January 18, 2011, subject to certain
conditions intended to ensure that the transaction served the public interest.2 With respect to the
"neighborhooding" of programming, the Commission adopted a narrowly tailored condition intended to
prevent Comcast from discriminating against unaffiliated news networks:
If Comcast now or in the future carries news and/or business news channels in a neighborhood,
defined as placing a significant number or percentage of news and/or business news channels
substantially adjacent to one another in a system's channel lineup, Comcast must carry all
independent news and business news channels in that neighborhood.3
The Commission defined an "independent news channel" as
a video programming network that is (i) unaffiliated with Comcast-NBCU or any of its affiliates
or subsidiaries, (ii) unaffiliated with one of the top 15 programming networks, as measured by
annual revenues, and (iii) whose programming is focused on public affairs, business, or local
news reporting and analysis during the hours from 6:00 a.m. through 4:00 p.m. in the U.S.
Eastern Time Zone.4
The Commission called this "narrowly tailored" condition appropriate "in accordance with the special
importance of news programming to the public interest."5
3.
Bloomberg filed a Complaint on June 13, 2011, requesting that the Media Bureau order
Comcast to move Bloomberg Television6 to any grouping containing four news channels within a cluster
of five adjacent channel positions on any headend located in the top 35 Nielsen Designated Market Areas
(Continued from previous page)
Order"). In the Comcast-NBCU Order, the Commission granted the application of Comcast, General Electric
Company, and NBC Universal, Inc. to assign and transfer control of licenses from General Electric Company to
Comcast. Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. For Consent
to Assign Licenses and Transfer Control of Licensees
, 26 FCC Rcd 4238 (2011) ("Comcast-NBCU Order").
2 Comcast-NBCU Order, 26 FCC Rcd 4238.
3 Id. at 4358 (App. A, Sec. III.2).
4 Id. at 4287, n.292.
5 Id. at 4287, 122.
6 Throughout this Order, the term "Bloomberg Television" refers to the standard definition version of Bloomberg
Television ("Bloomberg SD").
2

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("DMAs").7 On May 2, 2012, the Media Bureau issued the News Neighborhooding Order,8 in which the
Bureau decided (i) that a grouping of four news channels within a cluster of five adjacent channels
qualifies as a "significant number or percentage of news and/or business news channels" and therefore
constitutes a neighborhood for purposes of the news neighborhooding condition;9 (ii) that the condition
applies to the channel lineups existing on Comcast's systems at the time the Commission adopted the
Comcast-NBCU Order as well as future channel lineups;10 (iii) that the term "news channel" refers to a
channel carrying general interest news programming;11 and (iv) that, if a Comcast system has more than
one news neighborhood, the condition obligates Comcast to carry independent news and business news
channels in at least one news neighborhood of Comcast's choosing.12 Accordingly, the Bureau directed
Comcast to place Bloomberg Television in a news neighborhood on headends in the top-35 DMAs that
carry Bloomberg Television and have a news neighborhood.13
4.
Both parties filed applications for review of the News Neighborhooding Order on June 1,
2012. Bloomberg seeks review of (i) the Bureau's interpretation that, on systems with multiple news
neighborhoods, Bloomberg Television is entitled to carriage in a single news neighborhood, rather than
all news neighborhoods; (ii) the Bureau's decision to allow Comcast to choose the news neighborhood in
which it will place Bloomberg Television; and (iii) the Bureau's inclusion of certain channels as news
networks. Comcast seeks review of (i) the Bureau's definition of "news neighborhood" as four news
channels within a cluster of five adjacent channels; (ii) the application of the condition to lineups existing
on Comcast's systems at the time the Commission adopted the Comcast-NBCU Order; and (iii) the Media
Bureau's interpretation of the condition in light of the First Amendment to the Constitution.
5.
An additional issue has arisen with respect to whether Bloomberg Television must be
carried in an SD or HD news neighborhood.14 In its initial application for review, Bloomberg stated that
the relief it sought in its complaint was placement of the standard definition version of Bloomberg
Television ("Bloomberg SD") in SD news neighborhoods.15 In response to that application for review,

7 Complaint at 22.
8 News Neighborhooding Order, 27 FCC Rcd 4891.
9 News Neighborhooding Order, 27 FCC Rcd at 4895-7, 9-13.
10 News Neighborhooding Order, 27 FCC Rcd at 4894-5, 7-8.
11 News Neighborhooding Order, 27 FCC Rcd at 4897-9, 14-16.
12 Id. at 4899-4902, 17-23. The Bureau stated that, if Bloomberg demonstrated that Comcast had discriminated in
its choice of neighborhood, then Bloomberg could file a program carriage complaint pursuant to the Comcast-NBCU
Order
, where Bloomberg would need only "show that it was discriminated against on the basis of its affiliation or
non-affiliation"; Bloomberg would not need to "prove that it was unreasonably restrained from competing, as it
would under our program carriage rules." Id. at 4901, 22.
13 Id. at 4903, 27.
14 The complaint and responsive pleadings before the Media Bureau indicated that Comcast carried Bloomberg
Television in standard definition but not high definition (and incorrectly noted that Comcast did not have a license to
carry Bloomberg Television in high definition). Complaint at 10, 23 ("BTV HD is not currently carried by
Comcast."); Reply at 21. Comcast elected to carry Bloomberg Television in high definition in the wake of the News
Neighborhooding Order
, in some instances to place it in a high definition news neighborhood. Letter from David H.
Solomon and J. Wade Lindsay, Counsel to Comcast Cable Communications, LLC, to William T. Lake, Chief, Media
Bureau, Federal Communications Commission, at 3 (June 19, 2012). It appears that Comcast has a license to carry
Bloomberg Television in high definition at Comcast's discretion. See Comcast's June 18 Opposition at 4, n.7.
15 See Bloomberg June 1 Application for Review at 5, n.15 ("Bloomberg's Complaint dealt exclusively with the
placement of its standard definition feed and Bloomberg reserves the right to seek further relief in the event that
Comcast fails to honor the requirement that it place in news neighborhoods all independent news channels, such as
BTV for its high definition feed."). The parties limited their analysis and arguments before the Bureau to the
(continued....)
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Comcast filed a petition for stay and stated that, on some headends, it planned to comply with the News
Neighborhooding Order
by placing the HD version of Bloomberg Television ("Bloomberg HD") in an
HD news neighborhood rather than placing Bloomberg SD in a SD news neighborhood. Comcast
asserted that "Bloomberg's Application for Review has created substantial uncertainty and confusion
regarding what may ultimately be required for compliance with the [News Neighborhooding Order] in
this and other situations that may arise prior to Commission review."16 Therefore, Comcast sought a stay
of the News Neighborhooding Order pending a Commission ruling on this issue.17 At a meeting with
Commission staff on June 14, 2012, the parties agreed that Comcast would move Bloomberg SD to SD
neighborhoods on headends that do not have HD neighborhoods.18 The parties could not agree on how to
proceed with respect to the remaining headends, and asked the Commission for guidance on how the
News Neighborhooding Order applied to them.19 On August 14, 2012, the Bureau released an Order
("Clarification Order") to clarify that placing Bloomberg HD in an HD news neighborhood, in lieu of
placing Bloomberg SD in an SD neighborhood, would not satisfy the News Neighborhooding Order.20
The Bureau did grant Comcast a stay of the News Neighborhooding Order with respect to certain
headends21 , however, to "avoid potential disruption to consumers and any affected third-party
programmers in the event that the Commission subsequently reverses or modifies the [News
Neighborhooding Order
]."22
6.
Both parties filed applications for review of the Bureau's Clarification Order.
Bloomberg's application for review requests that the Commission lift the stay, and Comcast requests that
the Commission reverse the Clarification Order to allow Comcast to satisfy the News Neighborhooding
Order
by placing Bloomberg HD in an HD news neighborhood. Comcast also requests, to avoid the
burden of rearguing this issue in a separate proceeding, that the Commission now decide how the news
neighborhooding condition applies in general to independent news networks with both SD and HD
feeds.23 We resolve all the issues raised by the parties in this Memorandum Opinion and Order.

III.

DISCUSSION

7.
As explained in further detail below, we generally deny the applications for review. We
find that the Bureau properly interpreted the language and the purpose of the news neighborhooding
condition, and properly analyzed the facts in the record. We reject Comcast's argument that the News
(Continued from previous page)
application of the neighborhooding condition to Bloomberg SD. Complaint at 10, 23; Answer of Comcast, nn.32,
71 (filed July 27, 2011).
16 See Motion for Expedited Stay of Comcast Cable Communications, LLC at 10-11 (filed June 8, 2012).
17 See Motion for Expedited Stay of Comcast Cable Communications, LLC (filed June 8, 2012).
18 See Letter from David H. Solomon and J. Wade Lindsay, Counsel to Comcast Cable Communications, LLC, to
William T. Lake, Chief, Media Bureau, Federal Communications Commission, at 1, 4 (June 19, 2012).
19 See Bloomberg L.P.'s Response to the Media Bureau's Request for Additional Information Regarding High
Definition News Neighborhoods, MB Docket No. 11-104 (filed June 19, 2012); Letter from David H. Solomon and
J. Wade Lindsay, Counsel for Comcast Communications LLC, to William T. Lake, Chief, Media Bureau, Federal
Communications Commission, MB Docket No. 11-104, at 4 (June 19, 2012).
20 Clarification Order, 27 FCC Rcd 9488.
21 The Bureau stayed the News Neighborhooding Order on its own motion with respect to "any headend that (i)
carries BTV SD, (ii) does not carry BTV SD in an SD news neighborhood, (iii) has multiple news neighborhoods
(regardless whether those neighborhoods are HD or SD), and (iv) has no vacant channel adjacent to any SD news
neighborhood." Clarification Order, 27 FCC Rcd at 9491-2, 10.
22 Clarification Order, 27 FCC Rcd at 9492, 11.
23 Comcast's September 13 Application for Review at 14-15.
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Neighborhooding Order infringed on its First Amendment rights. We affirm the Bureau's finding that the
News Neighborhooding Order considered only the issue of whether Bloomberg SD is entitled to carriage
in an SD news neighborhood, and thus that Comcast must carry Bloomberg SD in an SD news
neighborhood on headends that have at least one SD news neighborhood. We interpret the condition
more generally to mean that SD and HD feeds of an independent news network are considered different
channels and are separately entitled to carriage in SD or HD news neighborhoods, respectively. In
addition, we make one minor clarification of the News Neighborhooding Order, finding that, on systems
with multiple headends, Comcast must carry Bloomberg in a news neighborhood on each headend that
has a news neighborhood. Below, we address each application for review of the News Neighborhooding
Order
individually. We then address the applications for review of the Clarification Order together
because they both generally concern how the news neighborhooding condition applies to SD and HD
news networks and neighborhoods.

A. Bloomberg's Application for Review of the News Neighborhooding Order


8.
Bloomberg seeks Commission review of four aspects of the News Neighborhooding
Order. First, Bloomberg requests that we require Comcast to carry Bloomberg Television in all news
neighborhoods.24 Second, Bloomberg alternatively requests that we allow Bloomberg to choose the
neighborhood in which Comcast must place Bloomberg Television.25 Third, Bloomberg asks that we
declare that Current TV and other networks are not news networks.26 Lastly, Bloomberg requests that we
clarify that Comcast must carry Bloomberg Television in every headend's lineup if Comcast has multiple
headends serving a single system.27 As we explain below, we reject Bloomberg's challenges to the News
Neighborhooding Order
, but we grant its request that we clarify that, if Comcast has multiple headends
on a single system, the condition applies to each headend serving that system.
1. Application of the News Neighborhooding Condition to Headends with

Multiple News Neighborhoods

9.
In the News Neighborhooding Order, the Bureau decided that, on headends that include
multiple news neighborhoods, Comcast must carry Bloomberg Television in one news neighborhood that
Comcast chooses, rather than every news neighborhood in the headend's lineup.28 To be sure, as the
Bureau acknowledged, the condition does not explicitly contemplate the existence of multiple news
neighborhoods.29 And Bloomberg is correct that one possible reading of the language of the condition is
that Comcast must place independent news channels in every news neighborhood it carries.30 We find,
however, that such a reading is not compelled by the language and would be unduly burdensome.
Moreover, as discussed further below, reading the condition as Bloomberg proposes not only is
unnecessary to achieve the purpose of the condition, but would, as a practical matter, lead Comcast either
to create a single news neighborhood or eliminate all news neighborhoods (a result the Commission did
not intend). If every independent news network can insist on being included in every news neighborhood,
Comcast will have the choice of either creating only one news neighborhood (or multiple, identical ones,

24 Bloomberg's June 1 Application for Review at 7-18.
25 Bloomberg's June 1 Application for Review at 18-19.
26 Bloomberg's June 1 Application for Review at 20-22.
27 Bloomberg's June 1 Application for Review at 19-20.
28 News Neighborhooding Order, 27 FCC Rcd at 4899, 17.
29 News Neighborhooding Order, 27 FCC Rcd at 4900, 19-20.
30 Bloomberg's June 1 Application for Review at 8-12.
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a clearly irrational choice) or rearranging its lineup to eliminate all news neighborhoods as defined by the
condition.
10.
The Bureau's conclusion that the language of the condition "contemplates[s] a single
news neighborhood and does not, as Bloomberg contends, provide a clear remedy in a situation involving
multiple news neighborhoods" is reasonable.31 Bloomberg's argument that the Bureau did not point to
any specific language in the condition to support its conclusion32 incorrectly characterizes the Bureau's
finding that "the condition does not clearly address the situation in which Comcast has established
multiple news neighborhoods in the same channel lineup."33 Because the express language of the
condition does not unambiguously address the situation where multiple news neighborhoods are in the
same channel lineup, it was appropriate for the Bureau to consider the meaning of the condition within the
context of industry practice.
11.
The record in the Comcast-NBCU Order supports the Bureau's reading of the condition
to require carriage of unaffiliated news networks in a single news neighborhood: the Commission did not
adopt Bloomberg's proposed language for the condition that would require Comcast to "carry all
independent news and business news channels in that AND ALL SUCH neighborhoods."34 As the
Bureau stated, "[t]he Commission's decision not to adopt a requirement that Comcast carry independent
news channels in all news neighborhoods indicates that the Commission did not intend to impose that
requirement."35 Therefore, we believe the Bureau reasonably chose to apply the condition by requiring
Comcast to carry independent news and business news channels in a single neighborhood of its choosing.
As the Bureau reasoned, the Commission "narrowly tailored" the condition in the Comcast-NBCU Order
to "limit major channel realignments and the cost and consumer disruptions associated with those
realignments."36
12.
We also find unavailing Bloomberg's argument that the Bureau's interpretation violates
the rule of statutory construction, set out in Section 1 of the United States Code, that "the singular
generally includes the plural."37 Section 1 states that this principle of statutory construction does not
apply if "the context indicates otherwise."38 The fact that the Commission declined to adopt proffered
language that would require that the condition be applied to "ALL SUCH neighborhoods" evidences the
Commission's intent that the "singular" was not intended to include the "plural" in this case. Moreover,
as explained below, the goal of the condition was to ensure that independent news programming is carried
"in close proximity to other channels of the same genre." That goal is accomplished when the
independent news programming is carried in one news neighborhood and must be balanced against the
increased burden, cost, and consumer disruption that would result if we were to construe the condition
more broadly. Given the Commission's chosen language, the purpose of the condition, and the costs and
burdens associated with implementation of the condition, we find that the Bureau correctly concluded that

31 News Neighborhooding Order, 27 FCC Rcd at 4900, 19.
32 See Bloomberg's June 1 Application for Review at 11.
33 News Neighborhooding Order, 27 FCC Rcd at 4900, 20.
34 Letter from Markham C. Erickson, Counsel to Bloomberg, L.P., to Marlene H. Dortch, Secretary, Federal
Communications Commission, MB Docket No. 10-56 (filed January 19, 2011).
35 News Neighborhooding Order, 27 FCC Rcd at4900, n.72.
36 News Neighborhooding Order, 27 FCC Rcd at 4901, 19. See also Comcast-NBCU Order, 26 FCC Rcd at 4287-
8, 122.
37 Bloomberg's June 1 Application for Review at 9-11; Bloomberg's June 28 Reply at 2-3 (citing 1 U.S.C. 1).
38 1 U.S.C. 1. See also Comcast's June 18 Opposition at 6 (quoting First Nat'l Bank v. Missouri, 263 U.S. 640,
657 (1924) and citing Singer & Singer, Sutherland Statutory Construction 47:34 (7th ed. 2007)).
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the better reading of the news neighborhooding condition is that Comcast is required only to place an
independent news channel in one news neighborhood.39
13.
Requiring Comcast to place Bloomberg Television in every news neighborhood it carries
is unnecessary to achieve the purpose underlying the condition and would afford Bloomberg more relief
than the Commission contemplated. The Bureau correctly concluded that the condition was intended to
prevent Comcast from neighborhooding "its newly affiliated news channels while isolating independent
news channels outside of any news neighborhood."40 Bloomberg misconstrues the condition's narrow
purpose by suggesting that the condition requires Comcast to place Bloomberg Television in every
channel position as advantageous as the channel positions of Comcast's affiliated news channels.41 The
news neighborhooding condition supplements the Commission's carriage complaint process available to
address affiliate-based discrimination harms beyond the scope of the news neighborhooding condition. As
the Bureau points out, Bloomberg can file a program carriage complaint with a reduced burden of proof
under the Comcast-NBCU Order if Bloomberg believes that Comcast has placed Bloomberg Television in
a discriminatory manner.42 To read the news neighborhooding condition to require Comcast to place
independent news and business news channels in every neighborhood on a system would grant
Bloomberg a windfall while unduly burdening Comcast. The Commission "narrowly tailored" the
condition to remedy a specific harm--the isolation of an unaffiliated news channel.
14.
It would also be inconsistent with common industry practice to require carriage of
Bloomberg Television in more than one news neighborhood. Comcast does not typically place news
networks in more than one neighborhood; for that matter, Comcast does not typically place any
programming network in more than one channel location.43 We agree with Comcast that "[p]lacing
[Bloomberg Television] in every `news neighborhood' on a lineup would not be `equitable': it would
favor [Bloomberg Television] over almost every other news network, none of which is consistently

39 See infra 9-11. But see 37-39 below regarding separate treatment of SD and HD channels. We also dismiss
Bloomberg's argument that the Commission used the terms "a" and "that" to refer to the plural as well as the
singular in other contexts of the Comcast-NBCU Order, and therefore must have intended to do so here. See
Bloomberg's June 1 Application for Review at 10 (quoting a condition of the Comcast-NBCU Order that states that
if Comcast provides or makes available a set-top box that has "a capability that enables a customer to access a
Specialized Service, the requirements of Sections IV.E.1 & 2 shall apply to that Specialized Service," and arguing
that the condition applies to set-top boxes that provides access to one or more specialized services). Even though
the Commission used "a" and "that" to refer to the plural elsewhere in the Comcast-NBCU Order, the context of the
news neighborhooding condition, as explained above, indicates that the better reading of this condition is that
Comcast is required only to place an independent news channel in one news neighborhood.
40 News Neighborhooding Order, 27 FCC Rcd at 4901, 21. See also Comcast-NBCU Order, 26 FCC Rcd at 4287-
8, 122.
41 Bloomberg's June 1 Application for Review at 12-13.
42 News Neighborhooding Order, 27 FCC Rcd at 4901, 22 (citing Comcast-NBCU Order, 26 FCC Rcd at 4287-8,
121, 123; 47 C.F.R. 76.1301(c)). We reject Bloomberg's assertion that we should grant it carriage in every
news neighborhood to ease the administrative burdens it would face if it had to file program carriage complaints to
complain of discriminatory channel placement. Bloomberg's June 1 Application for Review at 17-18. There is no
mention of the easing of administrative burdens in the text of the condition. To the contrary, in the Comcast-NBCU
Order
, the Commission chose to establish a limited neighborhooding condition and to allow independent news
channels to bring fact-specific claims of discrimination, with a reduced burden of proof, in the event Comcast treats
them unfairly.
43 See Bloomberg Channel Lineup Analysis (provided to Media Bureau staff and Comcast counsel on June 14,
2012). As we explain below, we consider SD and HD feeds of a network to be different channels, and therefore we
do not consider placing the SD feed of a network in a SD news neighborhood and the HD feed of a network in an
HD news neighborhood to be placing a network into more than one news neighborhood, as Bloomberg suggests.
Bloomberg's June 28 Reply at 3-4.
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present in multiple news neighborhoods."44 In the Comcast-NBCU Order, the Commission made clear
that it wanted to protect independent news channels from anticompetitive harm,45 but Comcast-NBCU
Order
cannot reasonably be read to provide Bloomberg with benefits that exceed those that Comcast
offers its affiliated channels. Therefore, we conclude that industry practice also supports the Bureau's
interpretation.
15.
Requiring Comcast to place independent news and business news channels in every news
neighborhood may result in Comcast having no news neighborhoods as they are defined by the condition.
Reading the condition to require Comcast to carry independent news channels in every news
neighborhood would be overly burdensome on headends in which Comcast has a news neighborhood
with an open adjacent channel (where Comcast would be able to place Bloomberg Television) and
another news neighborhood that does not have an open adjacent channel,46 as is the case with most of the
channel lineups at issue. As Comcast points out, it faces other carriage obligations (such as required
carriage of must-carry and PEG channels) that further limit the available slots below channel 100, where
Comcast often carries a news neighborhood without an open adjacent channel.47 The goal of the
condition was not to force Comcast to forgo neighborhooding news channels altogether rather than
relocate a network that currently has a channel position below 100 to another position on the lineup in
order to accommodate the new independent news network, when a less burdensome alternative exists.
Changes to the lineup may be necessary to achieve the purpose of the condition in cases in which
Comcast carries only one news neighborhood and it is in a crowded part of the channel lineup;48 it is not
necessary in cases in which Comcast has multiple news neighborhoods and it would be easier to place
Bloomberg Television in one rather than the other. Accordingly, we reject Bloomberg's argument that a
balance of the benefits and burdens entitles it to carriage in every news neighborhood.
16.
Conclusion. As explained above, the Bureau correctly concluded that the language and
purpose of the condition support the Bureau's interpretation of the condition to require Comcast to carry
Bloomberg Television in a neighborhood, but not every news neighborhood. This will prevent Comcast
from isolating independent news channels, consistent with the purpose of the condition and industry
practice, without subjecting Comcast to burdens not contemplated when the Commission approved the
transaction.
2. Allowing Comcast to Choose the Neighborhood
17.
Bloomberg next challenges the Media Bureau's decision to allow Comcast to choose the
news neighborhood in which it places Bloomberg Television, reasoning that the decision will allow
Comcast to favor affiliated networks.49 We disagree. As we explain above, and the Bureau explained in
the News Neighborhooding Order, the purpose of the condition is to prevent isolation of an independent
news channel when other news channels are grouped in neighborhoods.50 We agree with the Bureau that,
"[i]f we were to require Comcast to place Bloomberg in every news neighborhood or allow Bloomberg,

44 Comcast's June 18 Opposition at 6.
45 Comcast-NBCU Order, 26 FCC Rcd 4285-4289, 116-124.
46 See Bloomberg's June 1 Application for Review at 13-14; Comcast's June 18 Opposition at 10.
47 Comcast's June 18 Opposition at 12 (explaining that federal law requires Comcast to carry broadcast channels on
certain channel numbers and local franchising authorities require Comcast to carry public, educational, and
governmental access channels on certain channel numbers).
48 See infra 29.
49 Bloomberg's June 1 Application for Review at 18.
50 News Neighborhooding Order, 27 FCC Rcd at 4900-4901, 21. Comcast-NBCU Order, 26 FCC Rcd at 4285,
4287-8 116, 122.
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along with any other independent news and/or business news channel invoking this condition, to choose
its neighborhood, Comcast could face major realignments of its channel lineups," which "[w]e do not
believe the Commission contemplated . . . in the NBCU-Comcast Order."51 We reject Bloomberg's
critique of the News Neighborhooding Order for "fail[ing] to consider the importance of placing
independent news channels in the most viewed neighborhoods and similarly fail[ing] to recognize the
importance of [Bloomberg Television]'s location in relation to its largest competitor, CNBC, which is
now affiliated with Comcast."52 The news neighborhooding condition did not impose an obligation on
Comcast to arrange channel placement on the basis of competitor status. In addition, Comcast correctly
notes that nothing in the Comcast-NBCU Order suggests that the Commission intended to benefit
independent news programmers such as Bloomberg by allowing them to pick their channel positions.53
Indeed, the text of the condition does not mention anything about the location of particular competitors or
"most viewed neighborhoods."54 The Commission did not adopt Bloomberg's recommendation that the
Commission require Comcast to locate independent business news channels "adjacent and contiguous to
CNBC and any similar Comcast business news channels at each position where such channel is carried."55
Accordingly, we agree with the Bureau's conclusion that "the news neighborhooding condition is most
reasonably interpreted to require Comcast to carry all independent news channels and business news
channels, including Bloomberg Television, in a news neighborhood, but does not require Comcast to
carry such channels in every news neighborhood or in a particular neighborhood of Bloomberg's
choosing."56
18.
As discussed above, the Commission intended to protect against potential discrimination
through program carriage conditions, and the Bureau committed to "expeditiously and closely
scrutinize[]" any carriage complaint that Bloomberg files.57 In such a proceeding, whether Comcast chose
to locate Bloomberg's channel in a news neighborhood separate from CNBC or in news neighborhood
with channels with substantially different characteristics may be relevant. If presented to us, we would
consider the Nielsen ratings of news channels in Comcast's news neighborhoods (i.e., the neighborhood
that includes the complainant and those that do not) as well as any other facts as potentially probative
evidence in a fact-specific determination as to discrimination.58 The Bureau's interpretation both gives
Comcast a measure of flexibility and the editorial discretion to manage its lineup obligations and protects
Bloomberg Television from discriminatory placement. Therefore, we conclude that the Bureau's decision
is consistent with the policy goals the Commission established when it adopted the condition.
Accordingly, we find that the Bureau prudently concluded that it should consider any allegations of
discriminatory placement on a fact-based record instead of deciding a priori that Comcast will
discriminate against Bloomberg Television and place it in a detrimental neighborhood.

51 News Neighborhooding Order, 27 FCC Rcd at 4900-4901, 21.
52 Bloomberg's June 1 Application for Review at 14.
53 Comcast's June 18 Opposition at 11.
54 See Comcast's June 18 Opposition at 14-15.
55 See Applications of Comcast Corporation, General Electric Company, and NBC Universal, Inc. for Consent to
Assign Licenses and Transfer Control of Licenses, MB Docket No. 10-56, Petition to Deny of Bloomberg L.P. at 33
(filed June 21, 2010).
56 News Neighborhooding Order, 27 FCC Rcd at 4900, 20.
57 News Neighborhooding Order, 27 FCC Rcd at 4901, 22.
58 We note that any probative evidence on that point would have to be reviewed in the context of the full record to
determine whether Comcast engaged in the type of discriminatory conduct actionable under Section 616 of the Act.
47 U.S.C. 536.
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3. News Channels
19.
We affirm the Bureau's conclusion that Current TV and Link TV are news channels. The
Comcast-NBCU Order defines an independent news channel as a channel unaffiliated with Comcast or a
top-15 programming network "whose programming is focused on public affairs, business, or local news
reporting and analysis during the hours from 6:00 a.m. through 4:00 p.m. in the U.S. Eastern Time
Zone."59 In the underlying complaint proceeding, the parties disagreed about what constituted a news
channel for purposes of the condition.60 In the News Neighborhooding Order, the Bureau held that the
"the term `news channels,' as used in the condition, refers to channels whose programming during the
hours from 6:00 a.m. to 4 p.m. is focused on reporting and analysis relating to public affairs or local
affairs of general interest or relating to business." Based on this definition, the Bureau concluded that
Bloomberg erred in analyzing whether Comcast was carrying Bloomberg Television in news
neighborhoods on the relevant headends, by "exclud[ing] news channels like BBC World News, Current
TV, Link TV, and MHz Worldview from its analysis" of news neighborhoods, because those networks
meet the definition.61 Bloomberg argues that the Bureau either ignores Bloomberg's evidence regarding
the nature of Current TV and Link TV, or incorrectly modifies and applies the definition of news
channel.62 Therefore, Bloomberg asks us to redefine the meaning of "news channel" under the news
neighborhooding condition.63
20.
We find that the Bureau correctly concluded that Current TV and Link TV are news
channels within the meaning of the condition. The Bureau concluded, based on program schedules
provided by Comcast, that Current TV and Link TV's "programming during the hours from 6:00 a.m. to 4
p.m. is focused on reporting and analysis relating to public affairs or local affairs of general interest or
relating to business."64 Bloomberg seeks to refute the Bureau's finding that Current TV is a news channel
by pointing to a blog post that criticized some of its content,65 a statement from a media company
executive who did not consider Current TV to be a news channel based on his "review of Current TV's
website and programming schedule,"66 and a statement from a Communications professor that "Current
TV is not in the same league as MSNBC or CNN."67 The Media Bureau reasonably concluded, however,

59 Comcast-NBCU Order, 26 FCC Rcd at 4288, n.292.
60 News Neighborhooding Order, 27 FCC Rcd at 4898, 14 ("Comcast asserts that Bloomberg excludes certain
news channels from its analysis of channel lineups, which (i) paints an inaccurate picture of whether a channel
grouping represents a significant percentage of news channels on a given headend, and (ii) does not accurately
reflect whether Comcast already carries Bloomberg Television in a news neighborhood. Comcast argues that
Bloomberg wrongly excluded from its analysis a number of channels that meet this definition, including PEG
channels, weather channels, foreign news channels, Current TV, and sports news channels. Bloomberg responds
that Comcast seeks to define those channels as news channels `to minimize the percentage of news channels carried
in the neighborhoods identified by Bloomberg.'").
61 News Neighborhooding Order, 27 FCC Rcd at 4899, n.60.
62 Bloomberg's June 1 Application for Review at 20-22.
63 Bloomberg's June 1 Application for Review at 20-22. To the extent that the Bureau did not adequately justify its
conclusion that Current TV and Link TV are news channels, as Bloomberg argues, we do so here. See Bloomberg's
June 28 Reply at 5.
64 News Neighborhooding Order, 27 FCC Rcd at 4898, 15.
65 See Reply of Bloomberg at 28-29 (filed Aug. 30, 2011) (citing
http://latimesblogs.latimes.com/entertainmentnewsbuzz/2011/06/current-tv-watching-comcast-bloomberg-fight-
closely.html).
66 Reply of Bloomberg at Exhibit B, 26 (filed Aug. 30, 2011).
67 Reply of Bloomberg at Exhibit D, 19 (filed Aug. 30, 2011).
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based on programming schedules for the news networks at issue, that those channels were news channels
within the definition in the condition.68 We find no error in the Bureau's conclusion that Current TV and
Link TV are news networks. Although Current TV and Link TV's schedules may not focus heavily on
breaking news reporting, both Current TV and Link TV air "programming [that] is focused on public
affairs . . . reporting and analysis during the hours from 6:00 a.m. through 4:00 p.m. in the U.S. Eastern
Time Zone."69 Therefore, we conclude that the Media Bureau correctly applied the term "news channel"
as defined by the news neighborhooding condition and we affirm its decision to include news channels
like Current TV and Link TV in its analysis of whether Bloomberg Television was contained in a news
neighborhood.
4. System/Headend Distinction
21.
In the News Neighborhooding Order, the Media Bureau pointed out that, while the news
neighborhooding condition refers to a "system's channel lineup," Bloomberg analyzed channel lineups on
a headend-by-headend basis; the Bureau presumed that the difference between systems and headends was
"irrelevant" in this context.70 In its application for review, Bloomberg requests that we clarify that
Bloomberg Television must be carried in each news neighborhood on each headend on systems with
multiple headends.71 In its Opposition, Comcast states that it "intends to implement the Order with regard
to each individual channel lineup that contains a news neighborhood in the relevant DMAs," and that
"Bloomberg's request for clarification is therefore moot."72 Though it appears there is no dispute as to the
proper interpretation of this provision, we clarify this point as Bloomberg requests and find that
interpreting the condition to apply on a headend-by-headend basis is appropriate.

B. Comcast's Application for Review of the News Neighborhooding Order


22.
Comcast seeks Commission review of three aspects of the News Neighborhooding Order.
First, Comcast challenges the Bureau's definition of a "news neighborhood" as arbitrary and bad policy.73
Second, Comcast argues that the condition does not apply to channel groupings that existed at the time of
the transaction.74 And finally, Comcast argues that the Bureau's construction of the condition infringes on
Comcast's editorial discretion as protected by the First Amendment.75 For the reasons set forth below, we
find that Comcast's challenges have no merit.

68 Surreply of Comcast Cable Communications, LLC at Exhibit 1, Attachments A-D (filed Sept. 27, 2011).
69 Comcast-NBCU Order, 26 FCC Rcd at 4288, n.292. See, e.g., http://www.linktv.org/schedule/ (listing
programming between the hours of 6:00 a.m. and 4:00 p.m. in the Eastern Time Zone that is almost exclusively
News & Current Affairs or documentary programming regarding public affairs); http://current.com/schedule/ (listing
programming between the hours of 6:00 a.m. and 4:00 p.m. in the Eastern Time Zone that focuses heavily on
documentary programming regarding public affairs). See also http://current.com/shows/vanguard/ ("`Vanguard' is a
no-limits documentary series whose award-winning correspondents put themselves in extraordinary situations to
immerse viewers in global issues that have a large social significance."); http://www.linktv.org/mosaic ("The
Peabody Award-winning daily compilation of television news reports from the Middle East"). See also Comcast's
June 18 Opposition at 16-17 (stating that Current TV and Link TV carry serious documentaries, discussions,
speeches, legislative sessions, and panels, and arguing that if this does not qualify as "public affairs" programming,
"then it is not clear how any party could ever say with certainty what would").
70 News Neighborhooding Order, 27 FCC Rcd at 4892, n.2.
71 Bloomberg's June 1 Application for Review at 19-20.
72 Comcast's June 18 Opposition at 19, n.61.
73 Comcast's June 1 Application for Review at 7-15.
74 Comcast's June 1 Application for Review at 16-22.
75 Comcast's June 1 Application for Review at 23-25.
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1. Definition of a News Neighborhood
23.
In the News Neighborhooding Order, the Media Bureau decided that "four news or
business news channels within any five adjacent channel positions qualifies as a `significant number or
percentage of news and/or business news channels' and therefore constitutes a neighborhood for purposes
of the news neighborhooding condition."76 Comcast argues that this interpretation runs counter to the
plain language of the condition and does not properly analyze the word "significant" in the context of the
condition.77 Comcast also argues that the Bureau's interpretation is inconsistent with the Commission's
intent in the Comcast-NBCU Order, which Comcast maintains was to define a neighborhood as a
grouping of all or nearly all of Comcast's news channels. We reject Comcast's arguments.
24.
Language of the Condition. The news neighborhooding condition states that, "[i]f
Comcast now or in the future carries news and/or business news channels in a neighborhood, defined as
placing a significant number or percentage of news and/or business news channels substantially adjacent
to one another in a system's channel lineup, Comcast must carry all independent news and business news
channels in that neighborhood."78 Comcast contends that the term "news neighborhood" refers to a single
grouping of news channels, where Comcast would locate all or most of the news networks it carries.79
Accordingly, Comcast's main arguments against the Bureau's interpretation of the language of the
condition are (1) that the condition applies only where Comcast carries one grouping of news channels,
and (2) that a grouping of news channels is not "significant" unless it contains all (or at least an
overwhelming majority) of the news programming in that one grouping.80
25.
We reject Comcast's argument that the condition applies only when Comcast carries a
single grouping of news channels. Contrary to Comcast's assertion, the language of the condition could
reasonably be read to encompass both situations, i.e., where a headend has a single news neighborhood or
has multiple news neighborhoods. There is nothing in the language itself that suggests the condition
applies only when a single large neighborhood exists and, indeed, such an interpretation would be at odds
with the purpose of the condition. While Comcast may be correct that a common purpose of a
neighborhood is to place "all (or at least most) channels of a kind in a single location for viewers to more
easily access,"81 the purpose of the condition was to prevent Comcast from placing some news channels
in neighborhoods and leaving independent news and business news channels out of neighborhoods to
their detriment.82 This discrimination can take place regardless of the number of news neighborhoods
Comcast has in a lineup. Moreover, if Comcast were correct that the condition applies only when a
channel lineup has a single neighborhood,83 Comcast could easily evade the condition by creating two
neighborhoods that both exclude independent news channels. Adopting Comcast's interpretation thus

76 News Neighborhooding Order, 27 FCC Rcd at 4891, 2. As the Bureau explained, it concluded that four news
channels in five adjacent channel positions represents a significant number of news channels, rather than a
significant percentage: "Although four news channels may not represent a significant percentage of Comcast's news
channels on every headend, it does represent a significant number of news channels in the context of the news
neighborhooding condition." News Neighborhooding Order, 27 FCC Rcd at 4897, 13.
77 Comcast's June 1 Application for Review at 7-9; Comcast's June 28 Reply at 1-2.
78 Comcast-NBCU Order, 26 FCC Rcd at 4358 (App. A, Sec. III.2).
79 Comcast's June 1 Application for Review at 8-12.
80 Comcast's June 1 Application for Review at 7-11.
81 Comcast's June 1 Application for Review at 7-8.
82 See supra 13; News Neighborhooding Order, 27 FCC Rcd at 4899-4902, 17-23.
83 Comcast's June 1 Application for Review at 8.
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could render the condition essentially meaningless.84 Accordingly, we conclude that the Bureau properly
applied the news neighborhooding condition to lineups that have multiple news neighborhoods.
26.
We also conclude that the Bureau properly interpreted the word "significant" in the
context of the condition. We agree with Comcast that "in determining whether a given variable is
`significant' an agency must engage in a `factually-specific inquiry which takes into account a multitude
of factors,' including analysis and consideration of `economic and social implications.'"85 The Bureau's
analysis of the word "significant" does exactly that. The Bureau agreed with Comcast that, "in this
context, the most relevant definitions of the word `significant' are `having meaning' and `important.'"86
But the Bureau rejected Comcast's argument that a reasonable consumer would consider only a grouping
of more than 10 news channels to have meaning or to be important.87 As Bloomberg states in its
Opposition (and supported with expert statements in the Complaint proceeding), viewers tend to "flip"
between channels using the channel up and channel down commands on their remotes, as well as by
looking at nearby channels on programming guides.88 This phenomenon supports the Bureau's
conclusion that four news channels in any five adjacent channel positions is significant; that is, it is
"important" from a network's perspective because viewers tend to stay within neighborhoods, and these
neighborhoods "have meaning" to viewers because they mean that the viewer does not need to wander the
channel lineup in search of lone news networks.89 Accordingly we are not persuaded by Comcast's
argument that "the analysis of how many news networks constitutes a `significant number or percentage'
properly turns on whether `customers, encountering a given number of news channels in adjacent channel
positions, would assume that other news channels will not be found elsewhere on the system.'"90 As the
Bureau stated, "a grouping of [four news channels in five adjacent positions] can be `important' and `have
meaning' even if a reasonable consumer would assume that other channels with like content are available
at other channel positions on the headend . . . because it is large enough to attract viewers in search of
news programming."91 Therefore, we find that the Bureau reasonably concluded that a concentration of

84 See Bloomberg's June 18 Opposition at 4.
85 Comcast's June 1 Application for Review at 10 (quoting United States v. Lancaster, 6 F.3d 208, 210 (4th Cir.
1983)).
86 News Neighborhooding Order, 27 FCC Rcd at 4897, 13. The mere fact that there are neighborhoods that consist
of 10 to 15 channels on some cable systems does not axiomatically imply that neighborhoods of four news channels
within a cluster of five adjacent channels is not significant. As Bloomberg explains, networks benefit from being
located close to other networks of the same genre and do not necessarily have to be in large, 10-to-15 channel
neighborhoods in which consumers might expect to find all news channels. Bloomberg's June 18 Opposition at 9-
10.
87 News Neighborhooding Order, 27 FCC Rcd at 4897, 13.
88 Bloomberg's June 18 Opposition at 9-10 (citing Reply of Bloomberg at Exhibit B, 18; Exhibit C, 14, 15;
Exhibit E, 19; Exhibit F, 13, 15, 17 (filed Aug. 30, 2011)).
89 Although the issue is not before us, we note that the term "neighborhood" as defined under our condition would
also cover a cluster of fewer than four channels where the cluster represents a "significant percentage" of the news
channels carried on that system. For example, if Comcast were to purchase a system with a small number of
channels that included a total of four news channels, then a cluster of three news channels substantially adjacent to
one another would be a "significant percentage" of the news channels carried on that system, even under Comcast's
expert's definition of "significant percentage." See Answer of Comcast at Exhibit 4 at 12 (filed July 27, 2011)
("DirecTV, Verizon, AT&T U-Verse, and Insight have set the industry standard for news channels in a news
neighborhood at 70% or more of all news channels in the lineup."). We believe viewers' tendency to "flip" i.e.,
navigate through the line-up using the channel up and channel down commands on their remotes makes clustering
important on any system, large or small, and thus our condition applies to any system, regardless of size, where a
grouping of news channels has significance. See 26, supra.
90 Comcast's June 1 Application for Review at 9 (quoting Answer of Comcast at 53).
91 News Neighborhooding Order, 27 FCC Rcd at 4897, 13.
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four news channels within five adjacent channel positions is significant and constitutes a news
neighborhood under the condition.92
27.
The Commission's Intent. We also reject Comcast's arguments that the News
Neighborhooding Order is inconsistent with the Commission's intent in the Comcast-NBCU Order.93
Comcast argues that the record in the Comcast-NBCU Order demonstrates that the Commission intended
that the condition apply only to Comcast's Master Channel Lineup ("MCLU"), which includes "a
capacious, digital channel range in upper channel numbers"94 that "groups sixteen news channels
together--including, in each case, [Bloomberg Television]."95 In support of this position, Comcast argues
that: (1) the record before the Commission in the Comcast-NBCU Order indicated that news
neighborhoods typically consist of 10 to 15 channel clusters of news networks,96 and (2) the Commission
called the condition "narrowly tailored," and therefore intended to minimize disruption to Comcast, its
subscribers, and television networks that Comcast carries.97 As explained below, we conclude that the
Bureau properly rejected Comcast's argument that the Commission intended the condition to apply only
to such a grouping of nearly all of its news channels.
28.
We disagree with Comcast's position that the news neighborhooding condition applies
only to single, large news neighborhoods. The Comcast-NBCU Order does not refer to the MCLU or any
other cluster of more than 10 news channels that some of Comcast's competitors carry.98 The
Commission was aware of Comcast's MCLU trials,99 yet, instead of defining a news neighborhood with
reference to the MCLU or similarly sized groupings of channels, it chose to define a news neighborhood
as "a significant number or percentage of news and/or business news channels substantially adjacent to
one another."100 In so doing, the Commission considered the burdens this approach would impose on
Comcast, including potential channel realignments, and found that, "in accordance with the special
importance of news programming to the public interest,"101 the condition was necessary to protect
independent news programmers.102 We agree with the Bureau that reading the condition to apply only to
news neighborhoods of more than 10 channels would exclude many groupings of a "significant" number
of news channels.103 Moreover, such an interpretation would eviscerate the protections that the

92 An agency is entitled to substantial deference when it must draw numerical lines. See National Association of
State Utility Consumer Advocates v. FCC
, 372 F. 3d 454 (D.C. Cir. 2004); see also Home Box Office, Inc. v. FCC,
567 F.2d 9, 60 (D.C. Cir. 1977) (line drawing performed by the Commission will receive deference unless the lines
drawn "are patently unreasonable, having no relationship to the underlying regulatory problem").
93 Comcast's June 1 Application for Review at 11-15.
94 Comcast's June 1 Application for Review at 15 ("Comcast's MCLU aligned news channels only in higher,
capacious digital channel ranges that are capable of accommodating additional news networks that might later
emerge. By aligning news channels in this manner, Comcast's MCLU ensures that news channels can be added to
the grouping in the future without the disruption resulting from the Bureau's interpretation of the Condition.").
95 Answer of Comcast at 22.
96 Comcast's June 1 Application for Review at 11-12.
97 Comcast's June 1 Application for Review at 12-15.
98 Comcast's June 1 Application for Review at 12-15 (citing Answer of Comcast at 23-24).
99 See Letter from Stephen Diaz Gavin, Counsel to Bloomberg, to Marlene H. Dortch, Secretary, Federal
Communications Commission, MB Docket No. 10-56, at 8-9 (filed December 8, 2010).
100 Comcast-NBCU Order, 26 FCC Rcd at 4284-9, 116-124.
101 Comcast-NBCU Order, 26 FCC Rcd at 4287, 122.
102 See Bloomberg's June 18 Opposition at 14.
103 News Neighborhooding Order, 27 FCC Rcd at 4897, 13.
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Commission found necessary to protect unaffiliated news channels and to which Comcast agreed104 by
enabling Comcast to easily evade the condition.
29.
Comcast argues that the News Neighborhooding Order is not narrowly tailored and
requests that instead we read the news neighborhooding condition to apply only when Comcast does not
need to "reshuffl[e] channel lineups."105 We deny that request. As explained below, the Bureau
considered the burdens of requiring Comcast to place independent news in groupings of four news
channels in five adjacent channel positions. The Commission adopted a "narrowly tailored" condition
that imposes no more burdens than necessary to protect independent news from isolation when Comcast
carries news neighborhoods.106 The Bureau concluded that allowing Comcast to choose one existing
news neighborhood in which to carry an independent news channel would limit the burden on Comcast
while protecting independent news channels from isolation.107 The Bureau specified that its
"interpretation of the news neighborhooding condition will not, absent a showing of discrimination,
require Comcast to reorganize channel positions to place Bloomberg Television in a neighborhood below
channel number 100 if there is another neighborhood above channel 100."108 This demonstrates that the
Bureau gave due consideration to Comcast's concerns about channel changes below channel 100; the
Bureau correctly recognized that the news neighborhooding condition is narrowly tailored, but not
tailored in such a way as to remove all burdens that Comcast may face.109 For these reasons, we reject
Comcast's argument that the news neighborhooding condition should apply only to the 16 channel news
neighborhood on its MCLU or only to 10 or more channels.
2. Applicability to Existing Channel Lineups
30.
We also reject Comcast's challenge to the Bureau's decision that the condition applies to
Comcast's lineups as they existed on the date of the Comcast-NBCU Order, in addition to any lineups
created after the Comcast-NBCU Order.110 The Bureau decided that "the plain language of the condition
suggests that the Commission intended that the condition would apply to Comcast's existing channel

104 Comcast should have raised any arguments it had about the burdens of adjusting its channel lineups to
accommodate independent news networks before it agreed to the condition. If Comcast believed that the condition
was too burdensome, it had the option to reject the conditional grant of its application and the matter would have
been set for hearing. See 47 C.F.R. 1.110. Comcast cannot challenge a condition that was essential to the
Commission's approval now that it has benefited from the transaction's completion. See infra 35; see also
Bloomberg's June 18 Opposition at 14.
105 Comcast's June 1 Application for Review at 14.
106 Comcast-NBCU Order, 26 FCC Rcd at 4282, 110; News Neighborhooding Order, 27 FCC Rcd at 4902, 23.
Moreover, we agree with Bloomberg's argument that the condition is narrowly tailored because the Commission
limited the condition to news channels. Bloomberg's June 18 Opposition at 17.
107 News Neighborhooding Order, 27 FCC Rcd at 4900-1, 20-1.
108 News Neighborhooding Order, 27 FCC Rcd at 4902, n.85.
109 Comcast and Bloomberg have each raised detailed arguments about the level of burden associated with
Comcast's channel realignments: Bloomberg points out that Comcast frequently moves channels, and Comcast
argues that those changes are usually outside of the 1-99 channel range. See, e.g., Comcast's June 1 Application for
Review at 11-15; Bloomberg's June 18 Opposition at 15-17; Comcast's June 28 Reply at 3. The Commission and
Comcast already considered the burden that the news neighborhooding condition would have on Comcast, and
concluded that the condition was necessary to balance against public interest harms because the "vertical integration
of Comcast's distribution network with NBCU's programming assets will increase the ability and incentive for
Comcast to discriminate against or foreclose unaffiliated programming." Comcast-NBCU Order, 26 FCC Rcd at
4282, 110. Thus, it would be inappropriate for us to reconsider those burdens long after the Commission and
Comcast agreed to the condition and Comcast has reaped the benefits of the transaction.
110 Comcast's June 1 Application for Review at 16.
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lineups," because the condition is triggered if Comcast "`now ... carries' news channels in a
neighborhood."111 Comcast makes three main arguments to support its contrary interpretation. First,
Comcast argues that the language of the condition expressly contemplates action on Comcast's part
before it is triggered.112 Second, Comcast asserts that the Commission typically uses transaction
conditions to protect against post-transaction activities and indicated it was doing so in the Comcast-
NBCU Order
. Finally, Comcast argues that the Bureau interpreted the condition to prevent a harm that it
was not intended to prevent. We reject all of Comcast's arguments.
31.
Language of the Condition. The Media Bureau correctly interpreted the language of the
news neighborhooding condition that states that if Comcast "now or in the future carries news and/or
business news channels in a neighborhood" to mean that the condition applies to neighborhoods that
existed at the time of the transaction. As the News Neighborhooding Order said, "Comcast's argument
that the condition applies only to future lineups would read out of the condition the term `now... carries'
and, thus, would be contrary to the Commission's stated intent regarding the condition's applicability."113
Comcast points out that the condition defines a news neighborhood as "placing a significant number or
percentage of news and/or business news channels substantially adjacent to one another in a system's
channel lineup," and argues that this language requires Comcast to move a channel in order to trigger the
condition.114 We disagree. As Bloomberg correctly indicates, the word "placing" is used in defining what
it means to carry news or business news channels in a neighborhood, and the verb used in the condition's
triggering clause is "carries," which does not require any affirmative movement of channels.115 We reject
Comcast's argument that use of the word "placing" in the definition of a news neighborhood means that
Comcast needed to affirmatively place channels after the transaction to trigger the condition. Instead, the
condition's triggering verb is the word "carries," and the condition is triggered if Comcast "now or in the
future carries news and/or business news channels in a neighborhood." Accordingly, Comcast's carriage
of news and/or business news channels in a neighborhood at the time of the transaction triggered the
condition without any further action on Comcast's part.
32.
Language of the Comcast-NBCU Order. The text of the Comcast-NBCU Order supports
the conclusion that the condition applies to neighborhoods that existed at the time of the transaction. In
its application for review, Comcast points out that Commission said the condition "would only take effect
if Comcast-NBCU undertook to neighborhood its news or business news channels."116 Therefore,
Comcast argues, the condition was meant solely to remedy post-transaction discriminatory actions by the
entity formed as a result of the transaction.117 We disagree. Comcast has taken this sentence out of
context. Footnote 295 of the Comcast-NBCU Order states:
Comcast-NBCU argues that evolving interactive guides and navigation features have the potential
to make neighborhooding less important in the future, as viewers may find programming through
a search function. Our condition, however, would only take effect if Comcast-NBCU undertook

111 News Neighborhooding Order, 27 FCC Rcd at 4895, 8.
112 Comcast's June 1 Application for Review at 17-18.
113 News Neighborhooding Order, 27 FCC Rcd at 4895, 8.
114 Comcast's June 1 Application for Review at 17-18; Comcast's June 28 Reply at 4-5.
115 See Bloomberg's June 18 Opposition at 19-20.
116 Comcast's June 1 Application for Review at 19 (quoting Comcast-NBCU Order, 26 FCC Rcd at 4288, n.295).
See also Comcast's June 28 Reply at 4-5.
117 Comcast's June 1 Application for Review at 19.
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to neighborhood its news or business news channels, which therefore would indicate that there
was some value to neighborhooding despite additional search capabilities.118
In this context, it is clear that the Commission intended to respond to Comcast's argument that future
advances in search technology used to find programming could render neighborhooding obsolete. The
Commission stated that if Comcast neighborhoods its news despite search technology improvements, then
neighborhoods must still have some value. Nothing in the footnote suggests that the Commission
intended for that statement to have any broader significance than simply responding to Comcast's
argument or, in particular, to limit the scope of the condition to neighborhoods created post-transaction.119
33.
Purpose of the Condition. We also conclude that applying the news neighborhooding
condition to existing news neighborhoods is consistent with the Commission's intent in the Comcast-
NBCU Order
. As the News Neighborhooding Order recognized, the transaction changed Comcast's
incentives with respect to the neighborhooding of independent news channels.120 That is, post-transaction,
placing or maintaining independent news networks outside of news neighborhoods may benefit
Comcast's newly affiliated news networks. 121 As Bloomberg explained in the record before the
Bureau,122 and as the Bureau recognized in the News Neighborhooding Order,123 networks benefit from
being placed close to other networks of the same genre. Comcast argues that we should interpret the
condition to govern only its actions to exclude news channels from news neighborhoods newly created
after the transaction changed Comcast's incentives. In effect, Comcast argues that the Comcast-NBCU
Order
blessed all preexisting Comcast channel lineups as nondiscriminatory. This interpretation renders
the condition and its purpose hollow. It is well established on this record that, at the time the transaction
was consummated, Comcast had news neighborhoods on hundreds of headends. In this regard, the
Bureau noted that, "[a]fter the Comcast-NBCU Order was adopted and the `neighborhooding condition'
became effective, Bloomberg requested to be placed in existing neighborhoods, and Comcast refused that
request."124 The Bureau determined that Comcast's incentive and ability to discriminate on the basis of
affiliation significantly increased for unaffiliated news programming now that Comcast is affiliated with
NBCU, which owns several news networks.125 The Bureau also found that this increased incentive and

118 Comcast-NBCU Order, 26 FCC Rcd at 4288, n.295 (citing Letter from Michael Hammer, Counsel for Comcast,
to Marlene H. Dortch, Secretary, FCC, at 4-5 (filed Oct. 22, 2010)).
119 Moreover, as Bloomberg points out, Comcast concedes that the condition applies to certain neighborhoods that
existed at the time of the transaction. Bloomberg's June 18 Opposition at 19.
120 News Neighborhooding Order, 27 FCC Rcd at 4895, n.31.
121 News Neighborhooding Order, 27 FCC Rcd at 4895, n.31. See also id. at 4901, 21-22; Bloomberg's June 18
Opposition at 21.
122 Reply of Bloomberg at 17 (filed Aug. 30, 2011) (stating that "because viewers use their remote controls to `flip'
between channels as well as to pull up electronic programming guides that organize listings by channel number and
automatically focus on the channel being viewed, channels benefit simply from being located in close proximity to
other channels of the same genre" (citations omitted)).
123 News Neighborhooding Order, 27 FCC Rcd at 4901, n.74.
124 News Neighborhooding Order, 27 FCC Rcd at 4895, 8.Bloomberg's June 18 Opposition at 20-22.
125 For example, because Comcast had nothing to gain by disadvantaging one news programming network against
another before it acquired NBCU, a decision to place a news programming network outside a news neighborhood
before the transaction is likely to have been based on a valid business justification and not based on affiliation. In
that scenario, over time the out-of-neighborhood news programming network may acquire more viewers, thus
improving its ability to negotiate with Comcast for a more favorable neighborhood placement in the future. After
acquiring NBCU, however, Comcast has an incentive to advantage its affiliated news programming networks, such
as CNBC and MSNBC, by declining to neighborhood a popular competing news programming network, even if by
doing so Comcast risks losing the right to carry the network. This is because any subscribers Comcast might lose as
(continued....)
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ability to discriminate was not limited solely to a sub-category of newly-created, post-transaction news
neighborhoods, but, instead applied to all independent news channels and all news neighborhoods of
whatever vintage. To balance against such an anticompetitive effect, the Bureau found that the condition
was intended to apply equally to all independent news programmers and all news neighborhoods.
Regardless of Comcast's incentives when it created a pre-transaction news neighborhood, it now has an
incentive to discriminate against an independent news channel by denying a post-transaction request to
place that channel in a neighborhood.
34.
We also disagree with Comcast's argument that the Commission intended to rely only on
the program carriage complaint process to address discrimination existing at the time of the merger.126 To
the contrary, as explained above, the Commission decided that the changes in Comcast's incentives and
abilities with regard to discriminatory neighborhooding of news channels required this additional specific
relief. Accordingly, we conclude that the Bureau properly considered these incentives, consistent with
the purpose of the news neighborhooding condition.
3. First Amendment Challenge
35.
We reject Comcast's claim that the News Neighborhooding Order is a violation of
Comcast's editorial discretion.127 As the Bureau stated, "Comcast voluntarily assented to this condition
knowing that it might affect some of its carriage choices."128 If Comcast thought the condition was too
burdensome, it had the option to reject the conditional grant of its application and the matter would be set
for hearing.129 The condition was a prerequisite to the Commission's approval of the transaction, to which
Comcast agreed; therefore, having secured the benefit of the Commission's conditional approval,
Comcast is now foreclosed from challenging the condition.130 Comcast does not dispute that the
Commission has the authority to adopt and enforce the news neighborhooding condition.131 We find
Comcast's claim that it was unaware that this condition would impact Comcast, its programming partners,
(Continued from previous page)
a result of losing access to an independent news network would be offset by the increased proceeds Comcast would
gain from increased viewership of its affiliated networks.
126 Comcast's June 1 Application for Review at 20-21.
127 Comcast's June 1 Application for Review at 23.
128 News Neighborhooding Order, 27 FCC Rcd at 4902, 23 (citing TCR Sports Broadcasting Holding, L.L.P. d/b/a
Mid-Atlantic Sports Network v. Time Warner Cable Inc.
, 23 FCC Rcd 15783, 15811-12, 49 (MB 2008), rev'd on
other grounds
, 25 FCC Rcd 18099 (2010) ("MASN Case")).
129 See 47 C.F.R. 1.110 (where the Commission without a hearing grants any application with conditions, the
action of the Commission shall be considered as a grant of such application unless the applicant, within 30 days of
issuance of the grant, files with the Commission "a written request rejecting the grant as made. Upon receipt of such
request, the Commission will vacate its original action upon the application and set the application for hearing . . .
"). See also Central Television, Inc. v. FCC, 834 F.2d 186, 190 (D.C. Cir. 1987) (finding that under the prescribed
procedure set forth in section 1.110 of the Commission's rules, "Acceptance of a grant, with any attendant
conditions, is presumed if no rejection occurs within thirty days of the grant's issuance").
130 Central Television, 834 F.2d at 190 (having secured the benefit of an FCC order conditionally approving a
transfer application, the applicant is foreclosed from later challenging the terms of the condition); MASN Case, 23
FCC Rcd at 15811, 49 ("As an initial matter, we note that TWC, as part of the Commission's grant of its
applications in the Adelphia transaction, voluntarily assented to a condition that it knew might result in mandatory
carriage. Consequently, TWC is now foreclosed from challenging the very conditions that were prerequisite to that
grant.").
131 See Comcast's June 28, 2012 Reply at 5 ("Comcast has never contended that the Commission was without
authority to adopt the condition"); Comcast's October 9, 2012 Reply at 4-5 ("Comcast has never challenged the
Commission's authority to enforce the condition").
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and its subscribers132 unpersuasive, as the condition plainly imposes a carriage obligation on Comcast
even if it does not explicitly address each and every one of the possible contingencies associated with that
obligation. In any event, the condition on its face is fully consistent with constitutional requirements a
point Comcast does not dispute.133 And given that this is a reasonable construction of the condition to
which Comcast voluntarily agreed, no First Amendment issue should arise.134 In any event, we reject
Comcast's argument that the manner in which the condition was implemented by the Bureau raises First
Amendment concerns. Under the intermediate scrutiny test applicable here, the news neighborhooding
condition is permissible "if the government's interest is important or substantial and the means chosen to
promote that interest do not burden substantially more speech than necessary to achieve the aim."135 The
neighborhooding condition, and the manner in which it was implemented by the Bureau, furthers the
substantial government interests in promoting diversity, competition, and independence in the news
programming marketplace by preventing Comcast from exploiting its market power to inhibit
independent news competitors from drawing audiences away from Comcast's affiliated news networks.
The Commission found the proposed transaction posed a threat to competition because "the combination
of Comcast, the nation's largest cable service provider and a producer of its own content, with NBCU, the
nation's fourth largest owner of national cable networks, will result in an entity with increased ability and
incentive to harm competition in video programming by engaging in foreclosure strategies or other
discriminatory actions against unaffiliated video programming networks."136 The Commission stated that
"Comcast's extensive cable distribution network affords it the ability to use its video distribution market
position to harm other competing video programming firms and harm competition in video
programming."137 The neighborhooding condition, and the manner in which the Bureau implemented it,
thus furthers the substantial government interest in promoting diversity, competition, and independence in
the news programming marketplace by preventing Comcast from using its "significant market share in
distribution" to "limit access to customers for any network it wishes to disadvantage"138 by placing some
news channels in neighborhoods and leaving independent news and business news channels out of

132 Comcast's June 1 Application for Review at 23-25; Comcast's June 28 Reply at 5.
133 See Comcast's October 9, 2012 Reply at 4-5 (Comcast is not contending "that the Condition on its face infringes
Comcast's First Amendment rights").
134 See Erie Telecommunications Inc. v. City of Erie, PA, 853 F.2d 1084, 1096-1099 (3rd Cir. 1988) (holding that a
cable operator waived its First Amendment rights in connection with its execution of a general release terminating
all disputes arising out of a franchise agreement; the court rejected the contention that the operator was unaware of
its First Amendment rights at the time the release was executed given that, by that time, a number of federal courts
and commentators had recognized and specifically discussed the First Amendment rights of cable television
operators").
135 Time Warner Entm't Co. v. FCC, 93 F.3d 957, 969 (D.C. Cir. 1996) (provisions of the Cable Act that regulate
speech based on affiliation with a cable operator as opposed to the views contained therein are subject to
intermediate scrutiny).
136 Comcast-NBCU Order, 26 FCC Rcd at 4284.
137 Comcast-NBCU Order, 26 FCC Rcd at 4284-85 (explaining that "Comcast is the nation's largest multiple system
operator (MSO), with nearly 24 percent of MVPD subscribers nationwide" and that "Comcast's market share in
some of the nation's highest-ranked DMAs is considerably greater--for example, Comcast's market share is as much
as 62 percent in the Chicago DMA and 67 percent in the Philadelphia DMA"). The Commission further found that
the "transaction also increases Comcast's incentives to discriminate in favor of its affiliated programming [because]
[u]pon consummation of the transaction, Comcast will compete with an increased pool of unaffiliated programming
vendors offering content that viewers might consider substitutes for its affiliates' programming content and against
which it could potentially pursue foreclosure or discrimination strategies in order to favor that content." Id. at 4285-
86.
138 Comcast-NBCU Order, 26 FCC Rcd at 4285-86. See also id. at 4287 (by "disadvantaging rival programming
networks, Comcast can increase subscribership or advertising revenues for its own programming content").
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neighborhoods to their detriment.139 In addition, the condition, and the manner in which it was
implemented by the Bureau, is narrowly tailored to assure that independent news channels are not
excluded from neighborhoods altogether, while affording Comcast the editorial discretion to construct a
single neighborhood, multiple neighborhoods or none at all.140 In originally crafting the condition, the
Commission declined requests from parties commenting on the transaction to impose broad remedial
conditions on Comcast, such as specific channel placement requirements, instead finding that a "narrowly
tailored neighborhooding requirement will mitigate any potential public interest harm."141 As Bloomberg
notes, the condition applies only to news channels, and it does not distinguish between networks based on
the message of the speaker.142 The manner in which the Media Bureau interpreted the condition is
likewise narrowly tailored. As discussed above, on headends with multiple news neighborhoods, the
Media Bureau decision leaves to Comcast the discretion to choose which news neighborhood or
neighborhoods in which to place independent news channels.143 Along with this decision, the Bureau
declined Bloomberg's expansive reading of the condition, rejecting its arguments that independent news
channels should be permitted to choose their neighborhoods, are entitled to placement in every news
neighborhood used in Comcast's lineups, and/or are entitled to be located "adjacent and contiguous to
CNBC and any similar Comcast business news channels at each position where such channel is
carried."144 For all these reasons, the Bureau's implementation of the news neighborhooding condition is
fully consistent with the First Amendment. Accordingly, we reject Comcast's constitutional claims.

C. Bloomberg and Comcast's Applications for Review of the Clarification Order


36.
The Clarification Order established that the Bureau considered only the issue of whether
Bloomberg SD is entitled to carriage in an SD news neighborhood on Comcast's channel lineup.145 The
Bureau stated that "whether and how the news neighborhooding condition applies to HD news channels
or neighborhoods was not raised in the Media Bureau proceeding, and the News Neighborhooding Order
did not address the application of the condition with respect to HD news channels and neighborhoods."146
Thus, under the Bureau order, Comcast must place Bloomberg SD in a SD news neighborhood. Comcast
seeks review of the Bureau's conclusion that the instant proceeding applies only to the SD news
neighborhood and requests that we instead allow it to satisfy the News Neighborhooding Order by placing
Bloomberg HD in an HD neighborhood, while placing Bloomberg SD outside of a news neighborhood.147
37.
We affirm the Bureau's decision that the News Neighborhooding Order considered only
the issue of whether Bloomberg SD is entitled to carriage in an SD news neighborhood. As the Bureau
stated, "the relief Bloomberg sought in its complaint was necessarily limited to SD carriage under the
news neighborhooding condition, because Comcast did not carry Bloomberg HD before release of the

139 See supra 13, 25; News Neighborhooding Order, 27 FCC Rcd at 4899-4902, 17-23.
140 Comcast-NBCU Order, 26 FCC Rcd at 4287 (declining to require Comcast to affirmatively undertake
neighborhooding and instead requiring channel placement for independent news only where Comcast itself has
decided to use news neighborhoods in its lineups). See MASN Case, 23 FCC Rcd at 15811-12, 49. (citing Time
Warner Entertainment Co., L.P. v. FCC
, 93 F.3d 957, 969 (D.C. Cir. 1996)).
141 Comcast-NBCU Order, 26 FCC Rcd at 4282, 4288.
142 Bloomberg's June 18 Opposition at 23-24.
143 See supra 17-18.
144 Id.
145 Clarification Order, 27 FCC Rcd at 9491, 9.
146 Clarification Order, 27 FCC Rcd at 9491, 9.
147 Comcast's September 13 Application for Review at 7-14.
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[News Neighborhooding Order]."148 The Bureau analyzed only data regarding headends with SD news
neighborhoods in the News Neighborhooding Order,149 and the parties focused on Bloomberg SD and SD
neighborhoods in their pleadings before the Bureau.150
38.
Although the Bureau orders did not consider the issue of how the condition applies to
independent news channels with both SD and HD feeds, we agree with Comcast that we should "take[]
this opportunity to provide guidance on what the Condition requires in lineups that carry [Bloomberg HD]
and/or contain HD neighborhoods," because "there would be no public interest or administrative benefit
from the Commission deferring resolution of this issue."151 We conclude that SD and HD networks will
be treated as separate channels and each entitled to carriage pursuant to the terms of the condition. The
Commission has established that SD and HD versions of the same network are not adequate substitutes
for one another.152 In the record before the Bureau, Comcast itself recognized that SD and HD networks
are "distinct services,"153 and it has made similar arguments before the Commission in other contexts.154
Accordingly, we conclude that the SD and HD versions of independent news networks covered by the
news neighborhooding condition, including Bloomberg SD and Bloomberg HD, are separate and distinct
news networks, and both are entitled to carriage in SD or HD news neighborhoods, respectively, on the
headends on which Comcast carries them.
39.
In the Clarification Order, the Bureau acknowledged that the Commission had not
"addressed the implementation of the news neighborhooding condition" with respect to headends with SD
and HD neighborhoods.155 The Bureau also recognized that a decision on how the condition applies on
those headends would "affect how Comcast must handle similar requests from other independent news
networks."156 To "provide the Commission an opportunity to resolve the issues on review," the Bureau
stayed Comcast's obligation to comply with the News Neighborhooding Order on headends that (i) carry
Bloomberg SD, (ii) do not carry Bloomberg SD in an SD news neighborhood, (iii) have multiple news
neighborhoods, and (iv) have no vacant channel adjacent to any SD news neighborhood, as Comcast
requested.157 In its September 13 Application for Review, Bloomberg requested that we lift the stay with

148 Clarification Order, 27 FCC Rcd 9488, 9491, 9.
149 News Neighborhooding Order, 27 FCC Rcd at 4903, n.88.
150 Complaint at 10, 23; Answer of Comcast, nn.32, 71 (filed July 27, 2011).
151 Comcast's September 13 Application for Review at 14-15.
152 See Review of the Commissions Program Access Rules and Examination of Programming Tying Arrangements,
25 FCC Rcd 746, 784-5, 54-55, affirmed in part and vacated in part sub nom. Cablevision Sys. Corp. et al. v.
FCC
, 649 F.3d 695 (D.C. Cir. 2011) ("MVPD subscribers do not consider SD programming to be an acceptable
substitute for HD programming. The SD and HD versions of the same network have different technical
characteristics and sometimes even different content." (footnotes omitted)). See also Verizon Telephone Companies
v. Madison Square Garden, L.P. and Cablevision Systems Corp., 26 FCC Rcd 13145, 13148, 4 (MB 2011) aff'd
Verizon Telephone Companies v. Madison Square Garden, L.P. and Cablevision Systems Corp.
, 26 FCC Rcd 15849
(2011).
153 Surreply of Comcast at 13, 24 (filed Sept. 27, 2011).
154 See Petition for Stay Pending Judicial Review of Comcast Cable Communications, LLC, The Tennis Channel,
Inc. v. Comcast Cable Communications, LLC, MB Docket No. 10-204, at 5 (filed July 30, 2012); Letter from
Michael H. Hammer, counsel for Comcast, to Marlene H. Dortch, FCC MB Docket No. 10-56 at 17 (filed Oct. 18,
2010).
155 Clarification Order, 27 FCC Rcd at 9491-2, 10-11.
156 Clarification Order, 27 FCC Rcd at 9491-2, 10-11. The parties refer to this category as the "Bucket 2B"
lineups. Clarification Order, 27 FCC Rcd at 9491-2, 10-11, n.28.
157 Clarification Order, 27 FCC Rcd at 9491-2, 10-11.
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respect to those lineups.158 We have now addressed how the news neighborhooding condition applies on
headends where Comcast has both SD and HD news neighborhoods. Accordingly, we lift the stay that
the Bureau granted Comcast in the Clarification Order, and direct Comcast to place Bloomberg SD in an
SD news neighborhood on all headends in the top-35 DMAs that have at least one SD news
neighborhood.

IV.

CONCLUSION

40.
For the reasons explained above, we find that the Bureau made no material mistakes of
fact or law. We also lift the stay that the Media Bureau imposed in the Clarification Order. Accordingly,
we direct Comcast to carry, within 60 days of the release date of this Order, Bloomberg Television SD in
an SD news neighborhood on each headend in a top-35 DMA that includes such a neighborhood.

V.

ORDERING CLAUSES

41.
Accordingly,

IT IS ORDERED

, pursuant to Sections 4(i) and (j), 5, 303(r), 309, and
310(d) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 155, 303(r), 309,
310(d), and Sections 1.3, 1.115, 76.7, and 76.1302 of the Commission's rules, 47 C.F.R. 1.3, 1.115,
76.7, 76.1302, that the Applications for Review filed by Comcast Cable Communications, LLC on June 1,
2012 and September 13, 2012 and filed by Bloomberg, L.P. on June 1, 2012

ARE DENIED AND
DISMISSED

as described above.
42.

IT IS FURTHER ORDERED

that the Application for Review filed by Bloomberg, L.P.
on September 13, 2012

IS GRANTED

to the extent set forth above. Comcast Cable Communications,
LLC

IS ORDERED

to carry Bloomberg Television in standard definition within a standard definition
news neighborhood on each headend in the top-35 most populous Nielsen Designated Market Areas that
(i) carries Bloomberg Television in standard definition, and (ii) has a grouping of at least four standard
definition news channels within a cluster of five adjacent channel positions within sixty days of the
release of this Order, as set forth above.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary

158 Bloomberg's September 13 Application for Review at 7-19.
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STATEMENT OF

ACTING CHAIRWOMAN MIGNON CLYBURN

Re:

Bloomberg L.P., Complainant v. Comcast Cable Communications, LLC, Defendant, MB
Docket No. 11-104

Anyone around in early 2011 knows that I had many concerns about the Comcast-NBC Universal
deal, which combined the nation's largest cable operator with the nation's fourth largest owner of national
cable networks. Ultimately, I voted to approve the transaction because I believed that if the parties lived
up to their voluntary commitments and the conditions we imposed on them, the deal would result in more
benefits to consumers than harms. That's why I am pleased that we are taking this step today to hold
Comcast to one of its commitments.
In the Order approving Comcast-NBCU, the Commission recognized that as a combined entity,
they would have "increased ability and incentive to harm competition in video programming by engaging
in foreclosure strategies or other discriminatory actions against unaffiliated video programming
networks."1 The Commission expressed concern that Comcast-NBCU could "reduce the viewership of
competing video programming networks, which in turn could render these networks less attractive to
advertisers, thus reducing their revenues and profits."2 The Commission recognized that news
programming is particularly important to the public interest. Therefore, the Commission adopted the
news "neighborhooding" condition to guard independent news channels from anticompetitive behavior
and to help ensure a vibrant marketplace of ideas.
In general terms, "neighborhooding" refers to the practice of grouping similarly themed TV
channels together, such as sports, children's programming, or news. Today's decision interprets the news
neighborhooding condition in the most reasonable way. It is an interpretation that is supported by the
record. It is an interpretation that aligns with industry and consumer practices. And most importantly, it
is an interpretation that protects independent news channels from anticompetitive harms, as the
Commission intended.
When the Commission adopted this condition, my colleagues and I were concerned that Comcast-
NBCU would include its affiliated programming in news neighborhoods and leave an independent news
channel on an island to itself. The record in this proceeding corroborates our concern. Comcast
overwhelmingly includes affiliated programming in neighborhoods of four news channels in five adjacent
channel positions. CNBC is included in a news neighborhood in 99 percent of lineups that have news
neighborhoods. For MSNBC, it's 98 percent.3 This is for good reason: the record also reflects that
consumers tend to "flip" between channels, particularly during breaking news events.4 Consumers'
tendency to "flip" also explains why a grouping of four news channels in five adjacent channel positions
is so significant. Once a viewer finds a channel grouping like that, she is unlikely to hunt around the dial
for other news channels. So, to sum up, if you are a news channel, you'd better be located in the "news
neighborhood," or viewers are going to be significantly less likely to find you. And Comcast now has an

1 Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. For Consent to Assign
Licenses and Transfer Control of Licensees
, 26 FCC Rcd 4238, 4284, 116 (2011).
2 Id. at 4285, 116.
3 Letter from David H. Solomon and J. Wade Lindsay, Counsel for Comcast Cable Communications, LLC, to
William T. Lake, Chief, Media Bureau, Federal Communications Commission, at Attachment A, page 2 (filed June
21, 2012).
4 Bloomberg's June 18 Opposition at 9-10 (citing Reply of Bloomberg at Exhibit B, 18; Exhibit C, 14, 15;
Exhibit E, 19; Exhibit F, 13, 15, 17 (filed Aug. 30, 2011)).
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incentive to keep its competitors, like Bloomberg Television, out of those news neighborhoods to deter
viewers from flipping to them. With this Order, we ensure that Comcast treats Bloomberg Television
comparably to its affiliated news channels. This will allow Bloomberg Television to compete on an equal
footing with its Comcast-affiliated competitors.
As a final note, my colleagues and I frequently stress that it is always important for the
Commission to act swiftly on complaints. It is particularly important for us to resolve news
neighborhooding complaints in a timely manner because the condition will expire in less than four and a
half years. This was a complex proceeding with an extensive record, and it is unusual to receive four
applications for review in a proceeding with only two parties. But if the Commission receives additional
complaints that allege violation of the news neighborhooding condition, the groundwork laid in resolving
this complaint should allow us to act on those more swiftly. Moreover, I hope that my colleagues will act
quickly on other matters involving conditions adopted in connection with this transaction. Doing so will
help safeguard the public as the Commission intended when it adopted the conditions in 2011.
I wish to thank the Media Bureau staff for their work on this item.
24

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STATEMENT OF

COMMISSIONER AJIT PAI

APPROVING IN PART AND DISSENTING IN PART

Re:

Bloomberg L.P., Complainant v. Comcast Cable Communications, LLC, Defendant, MB
Docket No. 11-104.

In the Comcast-NBCU Order, the Commission approved the transfer of a number of licenses
subject to a variety of conditions.1 The present dispute involves the news-neighborhood condition, which
requires that "[i]f Comcast now or in the future carries news and/or business news channels in a
neighborhood, . . . Comcast must carry all independent news and business news channels in that
neighborhood."2 For purposes of this condition, a news neighborhood is "defined as placing a significant
number or percentage of news and/or business news channels substantially adjacent to one another in a
system's channel lineup."3
I approve of almost all of the Order, which deftly handles several issues raised by Bloomberg and
Comcast regarding that condition. But there is one aspect of the Order where I diverge from my
colleagues. That is the determination that any "four news or business news channels within any five
adjacent channel positions" constitute a news neighborhood.4 In my view, this interpretation expands the
condition beyond its terms, to the detriment of Comcast, cable programmers, and ultimately consumers.
It would not do much for the supposed beneficiary (Bloomberg). And it would simply underscore that the
Commission's authority to enforce the condition is questionable at best. I accordingly dissent in part.
First, interpreting the condition to create a four-channel neighborhood renders half of the
condition superfluous. According to the Comcast-NBCU Order, a cluster of news channels (including
business news channels) is a news neighborhood if and only if it contains either (a) a "significant
number" of news channels or (b) a "significant . . . percentage" of news channels.5 And yet, the four-
channel neighborhood largely reads the second clause out of the condition because practically every
Comcast system has a cluster of four or more news channels. Indeed, under that interpretation, every
single one of the systems at issue in Bloomberg's complaint6 would qualify as having a neighborhood
based on a "significant number" of news channels--leaving no purpose for the "significant . . .
percentage" trigger.
Second, the four-channel neighborhood creates multiple neighborhoods where only one should
exist. Most of the systems identified in Bloomberg's complaint, for example, contain more than one four-
channel neighborhood. But the condition's trigger assumes that there will be only one neighborhood on
each system (recall the proviso "[i]f Comcast . . . carries news and/or business news channels in a
neighborhood
"), as does the condition's remedy ("Comcast must carry all independent news and business

1 Applications of Comcast Corp., General Electric Co. and NBC Universal, Inc. for Consent to Assign Licenses and
Transfer Control of Licensees
, MB Docket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4405
09 (2011) (App. C).
2 Id. at 4358 (App. A, Sec. III.2); see also id. at 428788, para. 122.
3 Id. at 4358 (App. A, Sec. III.2); see also id. at 428788, para. 122.
4 Order at para. 23.
5 Comcast-NBCU Order, 26 FCC Rcd at 4358 (App. A, Sec. III.2).
6 Complaint of Bloomberg L.P. v. Comcast Cable Communications, LLC, MB Docket No. 11-104, at 22 & App. G
(filed June 13, 2011) (seeking to apply the four-channel rule to "any Comcast headend in the top 35 most-populous
DMAs that carry" Bloomberg SD, and identifying those systems).
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news channels in that neighborhood").7 The Order forthrightly acknowledges that "the condition does
not explicitly contemplate the existence of multiple news neighborhoods,"8 but determines nonetheless
that there is "nothing in the language itself that suggests the condition applies only when a single large
neighborhood exists."9 Indeed, the fact that many systems will have multiple four-channel neighborhoods
creates a new question not contemplated by the rule--in how many neighborhoods "must" Comcast
"carry all independent news and business news channels"? Although the Order's answer--one, chosen
by Comcast--is the right policy, the better answer would have been to avoid the question entirely by
rejecting the four-channel neighborhood.
Third, the costs of requiring the four-channel neighborhood are significant. For Comcast, the rule
means that it will have to alter the lineup of almost every system in the country to cluster Bloomberg (and
other independent news channels) into a news neighborhood. For cable programmers carried by Comcast,
the rule means a reshuffling of channel lineups, and potentially the confusion and/or loss of viewers. For
consumers, the rule means learning a whole new channel lineup every time the condition is applied
following a complaint against Comcast.
And for Bloomberg? True, it is now guaranteed placement in a four-channel neighborhood on
every Comcast system. But the cure may be worse than the disease. After all, Comcast may create news
neighborhoods consisting entirely of independent news channels--clustering Bloomberg next to C-
SPAN, C-SPAN2, and C-SPAN3--and still comply with the condition. As such, the news-neighborhood
condition is unlikely to "protect unaffiliated news channels"10 in any meaningful way.
Finally, expanding the application of the news-neighborhood condition may not be enforceable.
No provision of the Communications Act gives the Commission the power to require or administer news
neighborhoods. Nor are the license transfer provisions of the Act a viable source of authority. Those
provisions only give us authority over the transfer of radio licenses, and the news-neighborhood condition
remedies no conceivable harm arising from the transfers that were at issue.11 And Comcast did not
voluntarily commit to the news-neighborhood condition.12 Whatever the wisdom of the condition when it
was adopted, we should resist expanding its scope when its continued enforcement cannot be assured.
For these reasons, I would not apply the condition to four-channel neighborhoods. Instead, I
would hold that a cluster of news channels cannot be a news neighborhood unless it has at least eight or
more news channels or an absolute majority of such channels on a system. That definition would have
fully effectuated the two-trigger language of the condition, eliminated the multiple-neighborhoods

7 Comcast-NBCU Order, 26 FCC Rcd at 4358 (App. A, Sec. III.2) (emphases added).
8 Order at para. 9.
9 Id. at para. 25.
10 Id. at para. 28.
11 Although the Commission claimed authority to review the "transaction," see Comcast-NBCU Order, 26 FCC Rcd
at 4240, para. 2, the Communications Act does not afford us such broad authority. Instead, the Act charges the
Commission with the much narrower task of reviewing the transfer of licenses (in this case, 12 private land mobile
and private fixed microwave licenses, 63 broadcast licenses, and 74 satellite communications licenses), see 47
U.S.C. 310(d), and the Telecommunications Act of 1996 charges the U.S. Department of Justice (not the
Commission) with reviewing transactions writ large for potential antitrust violations, see Pub. L. No. 104-104, Title
VI, 601(b) (stripping the Commission of its ability to review transactions between telephone companies and
eliminating the Clayton Act exemption for companies subject to Commission oversight).
12 Compare Comcast-NBCU Order, 26 FCC Rcd at 4287, para. 120 ("[T]he Applicants voluntarily commit to
several carriage obligations."), with id. at 428788, paras. 12122 (noting that "these commitments . . . are not
sufficient to allay our concerns" and adopting the news-neighborhood condition).
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problem, and limited the condition's effect to those few systems where Comcast arranges its news or
business news channels in a manner consistent with the rest of the industry.13 Because the Order
concludes otherwise, I respectfully dissent in part.

13 See Answer of Comcast Cable Communications, LLC, MB Docket No. 11-104, Exh. 4 at 516 (Declaration of
Michael Egan) (analyzing the news channel placement patterns across the industry, demonstrating that multichannel
video programming distributors that "neighborhood" their news channels cluster significantly more than four news
channels together, and explaining that four-channel clusters are a vestige of cable's analog era).
27

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