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Game Show Network, Llc V. Cablevision Systems Corporation

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Released: December 7, 2011

Federal Communications Commission

DA 11-1993

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Game Show Network, LLC,
)
File No. CSR-8529-P
Complainant,
)
)

v.
)
)

Cablevision Systems Corp.,
)
Defendant
)

ORDER

Adopted: December 7, 2011

Released: December 7, 2011

By the Chief, Media Bureau:

I.

INTRODUCTION

1.
By this Order, we deny a Petition for Temporary Relief filed by Game Show Network,
LLC (“GSN”) asking the Commission to order Cablevision Systems Corporation (“Cablevision”) to
restore GSN to basic tier carriage while GSN’s program carriage complaint against Cablevision is
pending.1 As discussed below, we conclude that GSN has failed to satisfy its burden of demonstrating
that interim relief is warranted.

II.

BACKGROUND

2.
GSN operates a cable network (called “GSN”) which it characterizes as a “general
interest network that features extensive female-oriented original programming (much, but not all of it,
consisting of games of skill and chance and reality programs of various kinds), which typically accounts
for more than 80% of its primetime schedule.”2 Cablevision is the fifth-largest cable operator in the
nation, serving over 3.3 million subscribers.3 Cablevision is also affiliated with several cable networks,
including WE tv and Wedding Central.4
3.
On October 12, 2011, GSN filed a program carriage complaint alleging that Cablevision
discriminated against GSN on the basis of affiliation, with the effect of unreasonably restraining GSN’s
ability to compete fairly, in violation of Section 616 of the Communications Act of 1934, as amended
(“the Act”), and the Commission’s program carriage rules.5 According to GSN, the complaint arises from
Cablevision’s decision to reposition GSN on February 1, 2011 from a basic tier to a premium sports tier,
resulting in a loss of Cablevision subscribers for GSN.6


1 See Game Show Network, LLC, Petition for Temporary Relief Pending Resolution of Program Carriage
Complaint, File No. CSR-8529-P (filed Oct. 12, 2011) (“Petition”).
2 See Game Show Network, LLC, Program Carriage Complaint, File No. CSR-8529-P (filed Oct. 12, 2011), at 7
(“Complaint”).
3 See id. at 6 (citing Cablevision Systems Corporation, Form 10-K (Feb. 16, 2011), at 1, Ex. 10).
4 See Petition at 5-6; Complaint at 7-10, 17-21, 24.
5 See generally Complaint; see also 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c).
6 See Complaint at 2.

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DA 11-1993

4.
Along with its complaint, GSN filed a Petition for Temporary Relief asking the
Commission to order Cablevision, during the pendency of GSN’s complaint, to restore GSN to the basic
tier carriage it was receiving on Cablevision’s cable systems as of January 31, 2011.7 Cablevision filed
an Opposition to GSN’s Petition for Temporary Relief, to which GSN filed a Reply.8 GSN claims that it
qualifies for interim relief under the traditional four-factor test.9 In response, Cablevision notes that,
because GSN has already been repositioned from the basic tier to a premium sports tier, GSN is seeking
to change rather than to preserve the status quo and is thus required to “show[] that both the facts and law
clearly favor grant of its request.”10
5.
With respect to the first factor (i.e., whether the complainant is likely to prevail on the
merits of its complaint), GSN argues that it is likely to succeed on the merits of its complaint because its
complaint establishes that (i) GSN is similarly situated with two Cablevision-affiliated networks (WE tv
and Wedding Central), because these networks (like GSN) are aimed at women viewers and generally
compete with GSN for viewers, advertisers, and programmers;11 (ii) Cablevision has treated GSN
differently from these affiliated networks by carrying GSN on a premium sports tier while carrying WE tv
and Wedding Central on a basic tier with substantially more subscribers;12 and (iii) this discriminatory
conduct has caused unreasonable harm to GSN’s ability to compete fairly by reducing its viewership and
thus its license and advertising revenues.13 In addition, GSN alleges that there is direct evidence of
discrimination because a Cablevision officer discussed the possibility of carriage of GSN on
Cablevision’s basic tier if GSN’s part-owner, DIRECTV, would carry the Cablevision-affiliated Wedding
Central.14
6.
In response, Cablevision contends that GSN is not likely to succeed on the merits of its
complaint.15 As an initial matter, Cablevision claims that GSN’s complaint is barred by the program
carriage statute of limitations because it was not filed within one year from the date when the parties
entered into a contract.16 In addition, Cablevision argues that (i) GSN is not similarly situated with WE tv
or Wedding Central because GSN (like many other networks) simply has a significant female audience,
while WE tv and Wedding Central are specifically targeted to women;17 (ii) Cablevision moved GSN to a
premium sports tier in order to reduce costs and because GSN added little value to Cablevision’s basic
tier line-up, which Cablevision claims are legitimate and non-discriminatory reasons for its carriage
decision;18 and (iii) the repositioning of GSN to a premium sports tier on Cablevision’s systems does not


7 See Petition at 1.
8 See Cablevision Systems Corporation, Opposition to Petition for Temporary Relief, File No. CSR-8529-P (filed
Nov. 2, 2011) (“Cablevision Opposition”); Game Show Network, LLC, Reply, File No. CSR-8529-P (filed Nov. 14,
2011) (“Reply”).
9 See Petition at 4 (citing Time Warner Cable, Order on Reconsideration, 21 FCC Rcd 9016, 9018-19, ¶ 9 (MB
2006)).
10 Cablevision Opposition at 13-14.
11 See Petition at 5-6; Reply at 5-13.
12 See Petition at 6; Reply at 13-17.
13 See Petition at 6-7; Reply at 18-19.
14 See Complaint at 26-27.
15 See Cablevision Opposition at 14-33.
16 See id. at 14-16 (citing 47 C.F.R. § 76.1302(f)(3)).
17 See id. at 17-21.
18 See id. at 22-25.
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DA 11-1993

unreasonably restrain GSN’s ability to compete fairly because GSN is carried by many MVPDs nationally
to a total of over 75 million subscribers, and the repositioning at issue here results in only a relatively
small reduction in GSN’s total licensing and advertising revenues.19 With respect to GSN’s claim that
there is direct evidence of affiliation-based discrimination, Cablevision contends that the conversation
between Cablevision and DIRECTV pertaining to DIRECTV’s potential carriage of Cablevision-affiliated
Wedding Central occurred after Cablevision notified GSN of its decision to reposition GSN to a premium
sports tier, thus undermining any claim that this demonstrates affiliation-based discrimination.20
7.
With respect to the second factor (i.e., whether the complainant will suffer irreparable
harm absent interim relief), GSN claims that it will suffer irreparable harm because Cablevision’s
repositioning of GSN has resulted in a substantial reduction in GSN’s Cablevision subscribers.21 GSN
argues that this reduction in subscribers has resulted in and will continue to result in (i) lost licensing and
advertising revenues; (ii) lost viewers, whom GSN may be unable to reacquire even if it is returned to a
basic tier at the conclusion of the complaint proceeding; and (iii) harm to its reputation among advertisers
and programming licensors as an established national brand.22 In response, Cablevision notes that, to
qualify for interim relief, GSN’s alleged harms must be “‘certain and great; . . . actual and not
theoretical’” and “‘of such imminence that there is a clear and present need for equitable relief to prevent
irreparable harm.’”23 Cablevision contends that GSN’s claims of irreparable harm are undercut by GSN’s
delay in seeking interim relief.24 Moreover, to the extent that GSN alleges harm from lost revenues
resulting from the repositioning, Cablevision states that “it is well established that monetary damages are
not irreparable harm.”25
8.
With respect to the third factor (i.e., whether grant of a stay will not substantially harm
other interested parties), GSN notes that grant of interim relief would require Cablevision to pay GSN a
license fee while the complaint is pending, but it claims that this will not substantially harm Cablevision
because the fee (i) is commercially reasonable; (ii) has been paid by Cablevision for many years prior to
the repositioning; and (iii) can be remedied at the end of the proceeding by applying any new terms as of
the date of the repositioning.26 Cablevision argues that it will suffer harm if GSN’s requested relief is
granted because it will be forced to redesign its service packages and expand its basic tier to include GSN,
which will (i) result in lost revenue; (ii) require Cablevision to redesign its channel guides and marketing
materials; (iii) force Cablevision to incur increased costs from training call center personnel about the
channel addition; (iv) result in loss of goodwill among Cablevision subscribers, who disfavor channel
disruptions; and (v) violate its rights under the First Amendment.27


19 See id. at 25-28. Cablevision also argues that grant of GSN’s requested relief would violate Cablevision’s First
Amendment rights. See id. at 28-33.
20 See id. at 23-24.
21 See Petition at 7; Reply at 19-21.
22 See Petition at 7; Reply at 19-21.
23 See Cablevision Opposition at 34 (citations omitted).
24 See id. at 33-34 (“If GSN were truly concerned about viewers changing viewing habits, it would have brought its
claim in time to prevent that harm.”).
25 See id. at 34 (“‘[E]conomic loss does not, in and of itself, constitute irreparable harm . . . . Also, because
competitive harm is merely a type of economic loss, revenues and customers lost to competition which can be
regained through competition are not irreparable.’”) (quoting KSWB, Inc., 13 FCC Rcd 21867, 21868, ¶ 3 (CSB
1998)).
26 See Petition at 7-8.
27 See Cablevision Opposition at 35-36.
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9.
With respect to the fourth factor (i.e., whether the public interest favors grant of a stay),
GSN contends that interim relief will serve the public interest by restoring GSN to many Cablevision
subscribers and by protecting the public’s interest in diversity and competition in the market for video
programming.28 Cablevision argues that the public interest would not be served by forcing Cablevision to
carry GSN and thereby increasing the cost of its basic tier.29

III.

DISCUSSION

10.
In evaluating a request for preliminary injunctive relief, the Commission and the courts
generally consider the following four factors: (i) whether the complainant is likely to prevail on the
merits of its complaint; (ii) whether the complainant will suffer irreparable harm absent a stay; (iii)
whether grant of a stay will not substantially harm other interested parties; and (iv) whether the public
interest favors grant of a stay.30 As the moving party, GSN has the burden of proof in support of its
request.31 Applying the factors set forth above, we conclude that GSN has failed to satisfy its burden of
demonstrating that interim relief is warranted.32
11.
We find that the equitable factors favor denial of interim relief. With respect to the
second and fourth factors (i.e., whether the complainant will suffer irreparable harm absent a stay and
whether the public interest favors grant of a stay), GSN argues that GSN and the public will continue to
be harmed during the pendency of the complaint absent interim relief. We question the urgency of the


28 See Petition at 8-9; Reply at 22-23.
29 See Cablevision Opposition at 36.
30 See, e.g., Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958); see also Washington
Metropolitan Area Transit Comm’n v. Holiday Tours
, 559 F.2d 841 (D.C. Cir. 1977) (clarifying the standard set
forth in Virginia Petroleum Jobbers Ass’n v. FPC); Hispanic Information and Telecomm. Network, Inc., 20 FCC
Rcd 5471, 5480, ¶ 26 (2005).
31 See Amendment of Part 22 of the Commission’s Rules, Order, 8 FCC Rcd 5087, 5087, ¶ 2 (1993).
32 While the Commission has adopted procedures for the filing of a request for a temporary standstill of an existing
programming contract by a program carriage complainant seeking renewal of such a contract, those procedures
contemplate that the petition would be filed and acted on before the existing contract expires, thus maintaining the
status quo. See 47 C.F.R. § 76.1302(k) (not yet effective; awaiting approval from the Office of Management and
Budget (“OMB”) under the Paperwork Reduction Act (“PRA”)); Leased Commercial Access; Development of
Competition and Diversity in Video Programming Distribution and Carriage
, Report and Order, 26 FCC Rcd 11494,
11512-17, ¶¶ 25-30 (2011) (“2011 Program Carriage Order”). GSN’s request for interim relief seeks to change the
status quo, and thus would not be covered by Section 76.1302(k) even if it were in effect. See 2011 Program
Carriage Order
, 26 FCC Rcd at 11515, ¶ 27 n.109 (“a program carriage standstill, if granted, will preserve the
status quo by requiring continued carriage of a network that is being carried at the time the standstill is granted”).
Nonetheless, the Commission has statutory authority to act on GSN’s petition for interim relief pursuant to the
authority granted to the Commission under Section 4(i) of the Act. See 47 U.S.C. § 154(i) (stating that the
Commission “may perform any and all acts . . . and issue such orders, not inconsistent with this chapter, as may be
necessary in the execution of its functions”); United States v. Southwestern Cable Co., 392 U.S. 157, 181 (1968);
AT&T Corp. v. Ameritech Corp., Memorandum Opinion and Order, 13 FCC Rcd 14508 (1998); Amendment of
Rules Governing Procedures to be Followed When Formal Complaints Are Filed Against Common Carriers
, Report
and Order, 12 FCC Rcd 22497, 22566 ¶ 159 and n.464 (1997); Time Warner Cable, Order on Reconsideration, 21
FCC Rcd 9016 (MB 2006); Sky Angel U.S., LLC, Order, 25 FCC Rcd 3879 (MB 2010). The Media Bureau
(“Bureau”) has delegated authority to resolve a petition for interim relief under Sections 0.61 and 0.283 of the
Commission’s rules. See 47 C.F.R. §§ 0.61, 0.283. Because GSN’s petition for interim relief would not be covered
by Section 76.1302(k) even if it were in effect, we need not consider Cablevision’s claim that we cannot act on a
program carriage standstill request pursuant to Section 4(i) of the Act while OMB approval of Section 76.1302(k)
under the PRA is pending. See Cablevision Opposition at 9-11.
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relief requested and the irreparability of these alleged harms, however, given GSN’s lengthy delay in
pursuing interim relief. Although GSN was aware of Cablevision’s plan to reposition GSN two months
before the repositioning occurred,33 it did not seek relief until almost nine months after the repositioning
occurred.34 Specifically, the challenged conduct occurred on February 1, 2011, when Cablevision
repositioned GSN from a basic tier to a premium sports tier.35 GSN waited until October 12, 2011 to ask
the Commission to restore GSN to the basic tier carriage it was receiving on Cablevision’s cable systems
as of January 31, 2011.36 GSN has failed to adequately explain the lengthy delay in seeking interim relief,
principally relying on the fact that its complaint and petition were filed within the applicable statute of
limitations, which requires a program carriage complaint to be filed within one year of one of the events
listed in Section 76.1302(f) of the Commission’s rules.37 GSN states that it used this time to pursue
negotiations with Cablevision to avoid litigation and to compile complete information about the nature of
the discrimination and the harm it would cause.38 The statute of limitations, however, provides the
maximum period of time in which to file a complaint. Here, we are attempting to determine whether
GSN will suffer irreparable harm absent a stay.
12.
GSN’s long delay in seeking equitable relief suggests that a stay is not necessary to
prevent irreparable harm.39 GSN claims that interim relief is necessary to prevent irreparable harm to its
short-term and long-term viewership and competitiveness and that this harm will be difficult if not
impossible to compensate through a damages remedy.40 Notwithstanding these concerns, the delay of
almost eleven months before GSN’s filing causes us to question its claim of irreparable harm.
Considering the amount of time GSN waited, we believe it to be more appropriate to allow the case to be
decided on the merits rather than change the positions of the parties at an interim stage in the proceeding.
Given the length of delay which has already occurred, the Bureau’s final order is likely to be as effective
as an order for interim relief. Based on this record, we find that the second factor (i.e., whether the
complainant will suffer irreparable harm absent a stay) weighs against a grant of interim relief. With
respect to the fourth factor (i.e., whether the public interest favors grant of a stay), GSN argues that grant
of interim relief will serve the public interest by restoring GSN to many Cablevision subscribers,41 while
Cablevision counters that this restoration will increase the cost of its basic service tier, thereby leading to


33 GSN states that Cablevision notified GSN of its plan to reposition the network two months prior to the
repositioning. See Petition at 3.
34 See id. at 1.
35 See id.
36 See id.
37 See Petition at 3-4; Reply at 25-28; see also 47 C.F.R. § 76.1302(f).
38 See Petition at 3-4; Reply at 26-27.
39 See Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377 (9th Cir.1985) (“Plaintiff’s long delay
before seeking a preliminary injunction implies a lack of urgency and irreparable harm.”); Kobell v. Suburban Lines,
Inc.,
731 F.2d 1076, 1092 n.27 (3rd Cir.1984) (“[T]he district court may legitimately think it suspicious that the
party who asks to preserve the status quo through interim relief has allowed the status quo to change through
unexplained delay.”). Our decision on this issue, however, should not be read to state or imply that GSN will be
unable to establish that the challenged conduct has “unreasonably restrain[ed] the ability of [GSN] to compete
fairly” as required to demonstrate a violation of Section 616(a)(3) of the Act and Section 76.1301(c) of the
Commission’s rules. See 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c).
40 See Petition at 7; Reply at 19-21.
41 See Petition at 8-9; Reply at 22-23.
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a potential increase in rates to the detriment of its subscribers.42 Based on the record here, we find that
the fourth factor does not tilt sharply in favor of or against GSN’s request for interim relief. Thus, on
balance, we find that the equities do not favor grant of GSN’s request for interim relief.
13.
Because the equities favor denial of interim relief, GSN must satisfy a “heavy” burden
under the first factor that it is likely to prevail on the merits of its complaint.43 As discussed above, the
record reflects numerous factual issues that must be resolved before GSN would be entitled to relief, each
of which the parties contest, including, but not limited to, (i) whether repositioning of GSN to a premium
sports tier on Cablevision’s systems has unreasonably harmed GSN’s ability to compete fairly; and (ii)
whether Cablevision has legitimate and non-discriminatory business reasons for its carriage decision.44
Based on the limited record before us at this early stage in the complaint proceeding, the first factor
neither favors nor disfavors granting the relief requested. In sum, because the equities favor denial of
interim relief, and GSN has not met its burden of demonstrating that it is likely to prevail on the merits of
its complaint, we find that grant of the Petition for Temporary Relief is unwarranted.

IV.

ORDERING CLAUSES

14.
Accordingly,

IT IS ORDERED

that, pursuant to Sections 4(i), 4(j), and 616 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), and 536, and Sections 76.1300-
1302 of the Commission’s rules, 47 C.F.R. §§ 76.1300-1302, the Petition for Temporary Relief Pending
Resolution of Program Carriage Complaint filed by Game Show Network, LLC

IS DENIED

.


42 See Cablevision Opposition at 36. We find no basis, however, to conclude that the third factor (i.e., whether grant
of a stay will not substantially harm other interested parties) weighs against a grant of interim relief. While
Cablevision alleges that it will incur increased costs if interim relief is granted from revising channel guides and
marketing materials, training call center personnel, and responding to consumer inquires, there is no basis in the
record to conclude that these costs will result in “substantial harm” to Cablevision. See id. at 35-36; Reply at 22.
We also question Cablevision’s claim that a grant of interim relief will result in consumer disruption and an
associated loss of goodwill by requiring Cablevision to “repackage its expanded basic tier to make room” for GSN.
See Cablevision Opposition at 35-36. Cablevision does not allege that it will be forced to remove a network from its
expanded basic tier to accommodate GSN. Moreover, GSN states that it has occupied the same channel position
both before and after its repositioning and that restoring GSN to basic tier carriage “requires little more than a flick
of a switch.” Reply at 22. In addition, GSN notes that grant of interim relief would provide Cablevision’s basic tier
subscribers with an additional network which, assuming no associated increase in rates, would be a positive change
from their perspective. See Reply, Supplemental Declaration of Timothy Brooks at 3; but see Cablevision
Opposition
at 22 (stating that “Cablevision’s decision to reposition GSN was based on its determination that . . .
moving GSN would assist in its efforts to reduce the costs of programming on the expanded basic tier, reducing
upward pressure on subscriber rates”).
43 See Columbia Communications, Order on Reconsideration, 1986 WL 291539, ¶ 19 (Common Carrier Bur., 1986)
(“Because the balance of equities militates strongly against [a stay], Columbia has a ‘heavy’ burden of
demonstrating a substantial likelihood of success on the merits in order to justify a stay.”) (quoting McSurely v.
McClellan,
697 F. 2d 309, 317 (D.C. Cir. 1982)).
44 See supra ¶¶ 5-6.
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DA 11-1993

15.
This action is taken pursuant to authority delegated by Section 0.283 of the
Commission’s rules, 47 C.F.R. § 0.283.
FEDERAL COMMUNICATIONS COMMISSION
William T. Lake
Chief, Media Bureau
7

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