Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Media Bureau Designates GSN's Program Carriage Complaint For Hearing

Download Options

Released: May 9, 2012

Federal Communications Commission

DA 12-739

REDACTED VERSION

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Game Show Network, LLC,
)
MB Docket No. 12-122
Complainant,
)
File No. CSR-8529-P
)
v.
)
)

Cablevision Systems Corp.,
)
Defendant
)

HEARING DESIGNATION ORDER and

NOTICE OF OPPORTUNITY FOR HEARING FOR FORFEITURE

Adopted: May 9, 2012

Released: May 9, 2012

By the Chief, Media Bureau:

I.

INTRODUCTION

1.
By this Hearing Designation Order and Notice of Opportunity for Hearing for Forfeiture
(“Order”), the Chief, Media Bureau (“Bureau”), pursuant to delegated authority,1 hereby designates for
hearing before an Administrative Law Judge (“ALJ”) the above-captioned program carriage complaint
filed by Game Show Network, LLC (“GSN”) against Cablevision Systems Corporation (“Cablevision”).
The complaint alleges that Cablevision, a vertically integrated multichannel video programming
distributor (“MVPD”), discriminated against GSN, a video programming vendor, on the basis of
affiliation, with the effect of unreasonably restraining GSN’s ability to compete fairly, in violation of
Section 616(a)(3) of the Communications Act of 1934, as amended (“the Act”), and Section 76.1301(c) of
the Commission’s Rules.2 The complaint arises from Cablevision’s decision to move GSN from a basic
tier to a premium sports tier, resulting in a loss of Cablevision subscribers for GSN.3
2.
After reviewing GSN’s complaint, we find that GSN has put forth sufficient evidence
supporting the elements of its program carriage discrimination claim to establish a prima facie case.
Below, we review the evidence from GSN’s complaint establishing a prima facie case.4 While we rule on


1 See 47 C.F.R. § 0.61.
2 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c).
3 See Game Show Network, LLC, Program Carriage Complaint, File No. CSR-8529-P (filed Oct. 12, 2011), at ¶ 2
(“GSN Complaint”).
4 See The Tennis Channel Inc. v. Comcast Cable Communications, LLC, Hearing Designation Order and Notice of
Opportunity for Hearing for Forfeiture, 25 FCC Rcd 14149, 14149-50, ¶ 2 n.3 (MB 2010) (“Tennis Channel HDO”),
application for review pending; see also Leased Commercial Access; Development of Competition and Diversity in
Video Programming Distribution and Carriage
, Second Report and Order, 26 FCC Rcd 11494, 11506, ¶ 17 (2011)
(“We also clarify that the Media Bureau’s determination of whether a complainant has established a prima facie case
is based on a review of the complaint (including any attachments) only. If the Media Bureau determines that the
complainant has established a prima facie case, the Media Bureau will then review the answer (including any
attachments) and reply to determine whether there are procedural defenses that might warrant dismissal of the case

Federal Communications Commission

DA 12-739

REDACTED VERSION

a threshold procedural issue regarding application of the program carriage statute of limitations, we do not
reach the merits on any of the other issues discussed below.5 Rather, the existing record, including
Cablevision’s Answer and other pleadings,6 makes clear that there are substantial and material questions
of fact as to whether Cablevision has engaged in conduct that violates the program carriage provisions of
the Act and the Commission’s Rules. We therefore initiate this hearing proceeding.7 We direct the
Presiding Judge to develop a full and complete record and to conduct a de novo examination of all
relevant evidence in order to make an Initial Decision.





(e.g., arguments pertaining to the statute of limitations); whether there are any issues that the defendant MVPD
concedes; whether there are substantial and material questions of fact as to whether the defendant MVPD has
engaged in conduct that violates the program carriage rules; whether the case can be addressed by the Media Bureau
on the merits based on the pleadings or whether further evidentiary proceedings are necessary; and whether the
proceeding should be referred to an ALJ in light of the nature of the factual disputes.”) (“2011 Program Carriage
Order
”), appeal pending sub nom. Time Warner Cable Inc. et al. v. FCC, No. 11-4138 (2nd Cir.). While we do not
summarize each of Cablevision’s counter-arguments below, our review of the existing record, including
Cablevision’s Answer and other pleadings, makes clear that there are substantial and material questions of fact as to
whether Cablevision has engaged in conduct that violates the program carriage provisions of the Act and the
Commission’s rules.
5 As set forth below, the following matters are not designated for the ALJ to resolve: (i) whether GSN has put forth
evidence in its complaint sufficient to warrant designation of this matter for hearing; and (ii) whether GSN’s
complaint was filed in accordance with the program carriage statute of limitations. See infra n.71, n.193. As
required by the Commission’s Rules, to the extent Cablevision seeks Commission review of our decision on these
issues, such review, if any, shall be deferred until exceptions to the Initial Decision in this proceeding are filed. See
47 C.F.R. § 1.115(e)(3).
6 See Cablevision Systems Corporation, Answer, File No. CSR-8529-P (filed Dec. 12, 2011) (“Cablevision
Answer
”); Game Show Network, LLC, Reply, File No. CSR-8529-P (filed Jan. 17, 2012) (“GSN Reply”);
Cablevision Systems Corporation, Motion for Leave to File a Surreply, File No. CSR-8529-P (filed Feb. 9, 2012)
(“Cablevision Motion”); Cablevision Systems Corporation, Surreply, File No. CSR-8529-P (filed Feb. 9, 2012)
(“Cablevision Surreply”); Game Show Network, LLC, Opposition to Cablevision’s Motion for Leave to File a
Surreply and Alternative Motion for Leave to File Response to Surreply, File No. CSR-8529-P (filed Feb. 21, 2012)
(“GSN Opposition”); Cablevision, Reply to Opposition to Motion for Leave to File a Surreply, File No. CSR-8529-P
(filed Feb. 28, 2012) (“Cablevision Reply”).
7 In the 2011 Program Carriage Order, the Commission adopted a rule directing the Chief, Media Bureau to release
a decision determining whether the complainant has established a prima facie case within 60 calendar days after the
complainant’s reply to the defendant’s answer is filed. See 2011 Program Carriage Order, 26 FCC Rcd at 11508, ¶
20; see also 47 C.F.R. § 76.1302(g). The new procedures adopted in the 2011 Program Carriage Order, however,
do not apply to program carriage complaints that were filed before the effective date of the new procedures. See
2011 Program Carriage Order
, 26 FCC Rcd at 11495-96, ¶ 2 n.8. The GSN complaint was filed on October 12,
2011, prior to the effective date of the new procedures. See Federal Communications Commission, 47 C.F.R. Parts
0, 1, and 76, Leased Commercial Access; Development of Competition and Diversity in Video Programming
Distribution and Carriage, 76 FR 60652 (Sept. 29, 2011) (announcing effective date of October 31, 2011 for rules
adopted in the 2011 Program Carriage Order that do not require approval from the Office of Management and
Budget (“OMB”) pursuant to the Paperwork Reduction Act of 1995 (“PRA”)); Notice of Effective Date of Program
Carriage Complaint Rules: 47 C.F.R. §§ 1.221(h); 1.229(b)(3), (b)(4); 1.248(a), (b); 76.7(g)(2); 76.1302(c)(1), (d),
(e)(1), (k)
, Public Notice, DA 12-169 (MB, Feb. 8, 2012) (announcing effective date of February 8, 2012 for rules
adopted in the 2011 Program Carriage Order requiring approval from OMB pursuant to the PRA).

2

Federal Communications Commission

DA 12-739

REDACTED VERSION

II.

BACKGROUND

3.
Section 616(a)(3) of the Act directs the Commission to establish rules governing program
carriage agreements and related practices between cable operators or other MVPDs and video
programming vendors that, among other things:
prevent [an MVPD] from engaging in conduct the effect of which is to unreasonably
restrain the ability of an unaffiliated video programming vendor to compete fairly by
discriminating in video programming distribution on the basis of affiliation or
nonaffiliation of vendors in the selection, terms, or conditions for carriage of video
programming provided by such vendors.8
In implementing this statutory provision, the Commission adopted Section 76.1301(c) of its rules, which
closely tracks the language of Section 616(a)(3).9
4.
The Commission has established specific procedures for the review of program carriage
complaints.10 While those procedures provide for resolution on the basis of a complaint, answer, and
reply, the Commission expected that, in most cases, it would be unable to resolve carriage complaints
solely on the basis of a written record.11 Rather, it anticipated that the majority of complaints would
require a hearing before an ALJ, given that alleged Section 616 violations typically involve contested
facts and behavior related to program carriage negotiations.12 In such cases, where the complainant is
found to have established a prima facie case but disposition of the complaint13 requires the resolution of
factual disputes or extensive discovery, the parties can elect either Alternative Dispute Resolution
(“ADR”) or an adjudicatory hearing before an ALJ.14 If the parties proceed to a hearing before an ALJ,
any party aggrieved by the ALJ’s Initial Decision may file an appeal directly with the Commission.15 The
appropriate relief for violation of the program carriage provisions is determined on a case-by-case basis.16


8 47 U.S.C. § 536(a)(3).
9 See 47 C.F.R. § 76.1301(c). Section 76.1301(c) of the Commission’s Rules provides:
No multichannel video programming distributor shall engage in conduct the effect of which is to
unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly by
discriminating in video programming distribution on the basis of affiliation or nonaffiliation of
vendors in the selection, terms, or conditions for carriage of video programming provided by such
vendors.
Id.
10 See 47 C.F.R. § 76.1302.
11 See Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act of
1992, Development of Competition and Diversity in Video Programming Distribution and Carriage
, 9 FCC Rcd
2642, 2652, ¶ 24 (“1993 Program Carriage Order”).
12 See id. at 2652, ¶¶ 23-24, 2656, ¶ 34.
13 Pursuant to Section 76.7(g)(1) of the Commission’s Rules, the Commission may refer to an ALJ entire
proceedings or discrete issues arising from proceedings. See 47 C.F.R. § 76.7(g)(1); see also 1998 Biennial
Regulatory Review – Part 76 – Cable Television Service Pleading and Complaint Rules
, Report and Order, 14 FCC
Rcd 418, 421 ¶ 11 (1999) (“[T]he Commission can refer discrete issues arising out of a proceeding for an
adjudicatory hearing before an ALJ. . . . [T]he Commission is not limited to referring only entire proceedings for an
adjudicatory hearing before an ALJ.”).
14 See 1993 Program Carriage Order, 9 FCC Rcd at 2656, ¶ 34.
15 See id. at 2652, ¶ 24.
16 See id. at 2653, ¶ 26.
3

Federal Communications Commission

DA 12-739

REDACTED VERSION

Available sanctions and remedies include forfeiture and/or mandatory carriage and/or carriage on terms
revised or specified by the Commission.17 For purposes of our prima facie determination, we discuss
below the factual bases for GSN’s claim of program carriage discrimination.18
5.
Cablevision is a cable operator that owns or manages cable systems serving more than
3.3 million subscribers, primarily in New York, New Jersey, and Connecticut.19 Both prior to and after its
repositioning of GSN to a premium sports tier in February 2011, Cablevision has been affiliated with the
WE tv and Wedding Central national cable networks.20 WE tv was launched in the 1990s as “Romance
Classics,” rebranded in 2001 as “WE: Women’s Entertainment,” and renamed WE tv in 2006.21
Cablevision states that WE tv features programming on topics of interest to women, including high-
profile, original series and specials, as well as off-network licensed dramas and comedies.22 Cablevision
states that Wedding Central, which was launched in August 2009 and subsequently closed in July 2011,
featured series, specials, and movies related to weddings, dating, and relationships.23 Cablevision has
carried WE tv on an expanded basic tier since its launch and also carried Wedding Central on an
expanded basic tier from its launch until its closing in July 2011.24


17 See id.
18 GSN’s complaint is supported by declarations from the following: David Goldhill, President and Chief Executive
Officer (“CEO”) of GSN (see Decl. of David Goldhill (Oct. 7, 2011) at ¶ 1 (“Goldhill Decl.”)); Derek Chang,
Executive Vice President of Content Strategy and Development, DIRECTV, Inc. (“DIRECTV”) and representative
of DIRECTV on GSN’s board of directors (see Decl. of Derek Chang (Oct. 7, 2011) at ¶¶ 1-2 (“Chang Decl.”));
Dennis Gillespie, Senior Vice President of Distribution, GSN, from February 2007 to February 2011 (see Decl. of
Dennis Gillespie (Oct. 7, 2011) at ¶ 1 (“Gillespie Decl.”)); Timothy Brooks, media consultant (see Decl. of Timothy
Brooks (Oct. 10, 2011) at ¶ II.1 (“Brooks Decl.”)); Hal J. Singer, Managing Director, Navigant Economics (see
Decl. of Hal J. Singer (Oct. 11, 2011) at ¶ 8 (“Singer Decl.”)).
19 See GSN Complaint at ¶¶ 2, 14; Cablevision Answer at 73 (¶ 14). Cablevision is an MVPD as defined in Section
76.1300(d) of the Commission’s Rules. See 47 C.F.R. § 76.1300(d); GSN Complaint at ¶ 13; Cablevision Answer at
72 (¶ 13). GSN notes that Cablevision acquired Bresnan Communications in December 2010, thereby obtaining
additional subscribers. See GSN Complaint at ¶ 2 n.2. According to GSN, Cablevision has not yet integrated the
channel lineups on the Bresnan systems, thus the GSN Complaint focuses only on Cablevision’s conduct with regard
to its subscribers in New York, New Jersey, and Connecticut. See id.
20 See GSN Complaint at ¶ 14. Prior to July 2011, Cablevision wholly owned WE tv and Wedding Central. See id.
at ¶ 14 n.15; Singer Decl. at n.1; Cablevision Answer, Expert Report of Jonathan Orszag (Dec. 11, 2011) at ¶ 11
(“Cablevision owned both WE tv and Wedding Central prior to July 2011, and specifically in the first quarter of
2011 when Cablevision re-tiered GSN and put it on the [sports tier].”) (“Orszag Decl.”). On June 30, 2011,
Cablevision spun off WE tv and Wedding Central into a new company, AMC Networks, Inc. See GSN Complaint at
¶ 14 n.15; Singer Decl. at n.1; Orszag Decl. at ¶ 11. GSN notes that Cablevision and AMC Networks are
“affiliated” pursuant to the cable attribution rules because they share a common controlling shareholder (the Dolan
family) and thus are under common control. See GSN Complaint at ¶ 14 n.15; see also Cablevision Answer, Orszag
Decl. at ¶ 11 n.6 (“Given the Commission’s ownership attribution rules, I understand that WE tv is still considered
an affiliate of Cablevision, even though Cablevision has spun it out.”).
21 See Cablevision Answer at 23; Decl. of Michael Egan (Dec. 12, 2011) at ¶ 24 (“Egan Decl.”); see also GSN
Complaint
at ¶ 16.
22 See Cablevision Answer at 2-3; Egan Decl. at ¶ 24; see also GSN Complaint at ¶ 16.
23 See Cablevision Answer at 73 (¶ 17); see also GSN Complaint at ¶ 17.
24 See Cablevision Answer at 76 (¶ 44); see also GSN Complaint at ¶¶ 28, 44.
4

Federal Communications Commission

DA 12-739

REDACTED VERSION

6.
GSN is a national cable network launched on December 1, 1994 under the name “Game
Show Network,”25 which was subsequently rebranded in 2004 as “GSN.”26 GSN characterizes itself 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.”27 GSN’s predecessor and Cablevision entered
into a affiliation agreement on [REDACTED
]28
Cablevision claims that it did not believe that GSN’s programming had the potential to add significant
value to Cablevision’s existing channel lineups, but it was willing to agree to a deal if GSN was willing to
provide Cablevision certain favorable terms.29 One of these favorable terms provided Cablevision with
“carriage flexibility,”30 [REDACTED
].31 For almost 14 years (June 1997-February 2011), Cablevision
distributed GSN on an expanded basic tier to approximately [REDACTED
] of Cablevision subscribers.32
7.
On December 3, 2010, Cablevision notified GSN that Cablevision would reposition GSN
from an expanded basic tier to a premium sports tier effective February 1, 2011.33 Cablevision claims that


25 See GSN Complaint at ¶ 15; Gillespie Decl. at ¶ 3; Goldhill Decl. at ¶ 4. Sony Pictures Entertainment, Inc. and
DIRECTV have ownership interests in GSN. See GSN Complaint at ¶ 12; Goldhill Decl. ¶ 6. GSN states that it is a
video programming vendor as defined in Section 76.1300(e) of the Commission’s Rules. See GSN Complaint at ¶
10; see also 47 C.F.R. § 76.1300(e).
26 See GSN Complaint at ¶ 15; Goldhill Decl. at ¶ 8.
27 GSN Complaint at ¶ 15; see Goldhill Decl. at ¶ 7.
28 See GSN Complaint at ¶ 22; Gillespie Decl. at ¶ 4; see also Cablevision Answer at 7; Decl. of Thomas
Montemagno (Dec. 9, 2011) at ¶ 12 (“Montemagno Decl.”). [REDACTED


] See GSN Complaint at ¶ 22; Gillespie Decl. at ¶ 4; see also
Cablevision Answer at 7; Montemagno Decl. at ¶ 19. Since that date, Cablevision has carried GSN on an “at-will”
basis, on the same terms contained in the written affiliation agreement. See GSN Complaint at ¶¶ 22-23; Gillespie
Decl. at ¶ 7; Goldhill Decl. at ¶ 5; see also Cablevision Answer at 8; Montemagno Decl. at ¶ 28.
29 See Cablevision Answer at 7; Montemagno Decl. at ¶¶ 9-11, 16-17.
30 See Cablevision Answer at 7; Montemagno Decl. at ¶ 17 (“Specifically, Cablevision would not have agreed to
carry the Game Show Network if it were not given this flexibility. During this time, Cablevision consistently sought
carriage flexibility from programmers (and was often successful), particularly when negotiating with new networks
that were seeking to grow subscribers in the New York DMA.”).
31 The agreement does not specify the tier on which Cablevision must carry GSN. See Montemagno Decl. at ¶ 15.
Rather, the agreement provides that Cablevision [REDACTED
]
32 See GSN Complaint at ¶¶ 15, 22; Gillespie Decl. at ¶ 3; Cablevision Answer at 73 (¶ 15).
33 See GSN Complaint at ¶ 25; Gillespie Decl. at ¶ 8; see also Cablevision Answer at 12; Montemagno Decl. at ¶ 50.
5

Federal Communications Commission

DA 12-739

REDACTED VERSION

its decision was based on its efforts to find programming cost savings34 and that GSN was a good
candidate for repositioning because (i) its affiliation agreement [REDACTED
];35 (ii) GSN had historically received low
viewership among Cablevision subscribers;36 and (iii) GSN, as a general family entertainment network,
did not offer anything unusual to attract a particular segment of viewers.37 GSN’s attempts to persuade
Cablevision to reverse its decision were unsuccessful.38 Cablevision moved GSN to the premium sports
tier on February 1, 2011.39 Prior to Cablevision’s repositioning of GSN from an expanded basic tier to a
premium sports tier, more than [REDACTED
]
subscribers nationwide received GSN.40 As a result of the repositioning, GSN’s Cablevision subscribers
fell by [REDACTED
].41 While Cablevision now
distributes GSN to approximately [REDACTED
] percent of
Cablevision’s subscribers,42 other MVPDs with over two million basic subscribers distribute GSN to an
average of [REDACTED
] percent of their subscribers.43
8.
Pursuant to Section 76.1302(b) of the Commission’s Rules, GSN provided Cablevision
with its pre-filing notice on September 26, 2011.44 On October 12, 2011, GSN filed its Complaint45 as
well as a Petition for Temporary Relief asking the Commission to order Cablevision to restore GSN to
basic tier carriage while GSN’s program carriage complaint is pending.46 On December 7, 2011, the


34 See infra ¶ 30 (explaining that the repositioning of GSN from an expanded basic tier to a premium sports tier
reduced Cablevision’s annual license fee payments to GSN by [REDACTED
]); Cablevision Answer at 4, 10-11, 50; Montemagno Decl. at ¶¶ 40-41; see also GSN Complaint
at ¶¶ 25, 47; Chang Decl. at ¶ 5; Gillespie Decl. at ¶ 8; Goldhill Decl. at ¶ 18.
35 See Cablevision Answer at 11, 50; Montemagno Decl. at ¶¶ 40-41.
36 See Cablevision Answer at 4, 11, 50; Montemagno Decl. at ¶¶ 22, 24, 27, 41-42.
37 See Cablevision Answer at 4, 11, 50; Montemagno Decl. at ¶ 41.
38 See GSN Complaint at ¶¶ 26-27, 29-30; Chang Decl. at ¶¶ 4-7; Gillespie Decl. at ¶ 9; Goldhill Decl. at ¶¶ 18-21.
39 See GSN Complaint at ¶ 28; Gillespie Decl. at ¶ 9; Cablevision Answer at 13; Montemagno Decl. at ¶ 52.
Specifically, Cablevision repositioned GSN to its “iO Sports and Entertainment Pak,” for which subscribers must
pay a fee of $6.95 per month in addition to the fees for purchasing an entry-level package of digital cable
programming and a digital cable box. See GSN Complaint at ¶¶ 28, 45; Goldhill Decl. at ¶ 14; Singer Decl. at ¶ 3;
see also Cablevision Answer at 13, 76 (¶ 45); Montemagno Decl. at ¶ 52. In addition to GSN, this premium sports
tier includes the following networks: ESPN Classic, ESPN-U, MLB Network, NHL Network, TVG Network
(horseracing), FUEL-TV (extreme sports), FCS Pacific (West Coast collegiate conferences), FCS Central (Midwest
collegiate conferences), FCS Atlantic (East Coast collegiate conferences), Outdoor Channel, Versus, Go1TV
(soccer), Golf Channel, MavTV, CBS College Sports, Big Ten, NBA TV, FOX Soccer Plus, Sportsman Channel,
Neo Cricket, and Fight Now TV. See GSN Complaint at ¶ 45 n.87.
40 See GSN Complaint at ¶ 11; Gillespie Decl. at ¶ 3; Goldhill Decl. at ¶ 7; Singer Decl. at ¶ 22.
41 See GSN Complaint at ¶¶ 25, 59; Chang Decl. at ¶ 3; Goldhill Decl. at ¶ 15; Singer Decl. at ¶ 6.
42 See GSN Complaint at ¶ 45; Goldhill Decl. at ¶ 14; Singer Decl. at ¶ 18.
43 See Singer Decl. at ¶ 44 and Table 7; see also GSN Complaint at ¶ 24; Gillespie Decl. at ¶ 3.
44 See GSN Complaint, Exhibit 9.
45 See generally GSN Complaint. The parties mutually agreed to extend the deadline for filing an Answer and a
Reply to December 12, 2011 and January 17, 2012, respectively.
46 See Game Show Network, LLC, Petition for Temporary Relief Pending Resolution of Program Carriage
Complaint, File No. CSR-8529-P (filed Oct. 12, 2011).
6

Federal Communications Commission

DA 12-739

REDACTED VERSION

Bureau denied the Petition, finding that GSN had failed to satisfy its burden of demonstrating that interim
relief was warranted.47

III.

DISCUSSION

9.
Based on our review of the complaint and as explained more fully below, we conclude
that GSN has established a prima facie case of program carriage discrimination pursuant to Section
616(a)(3) of the Act and Section 76.1301(c) of the Commission’s Rules.48 When filing a program
carriage complaint, the video programming vendor carries the burden of proof to establish a prima facie
case that the defendant MVPD has engaged in behavior prohibited by Section 616 and the Commission’s
implementing rules.49 In previous cases assessing whether a complainant has established a prima facie
case of program carriage discrimination, the Bureau has considered whether the complaint contains
sufficient evidence to support the elements of a program carriage discrimination claim.50
10.
As an initial matter, all complaints alleging a violation of any of the program carriage
rules must contain evidence that (i) the complainant is a video programming vendor as defined in Section
616(b) of the Act and Section 76.1300(e) of the Commission’s Rules or an MVPD as defined in Section
602(13) of the Act and Section 76.1300(d) of the Commission’s Rules;51 and (ii) the defendant is an
MVPD as defined in Section 602(13) of the Act and Section 76.1300(d) of the Commission’s Rules.52 A
prima facie case of discrimination “on the basis of affiliation or nonaffiliation” can be based on direct
evidence or circumstantial evidence or both.53 A complaint relying on direct evidence requires
documentary evidence or testimonial evidence (supported by an affidavit from a representative of the


47 See Game Show Network, LLC v. Cablevision Sys. Corp., Order, 26 FCC Rcd 16471, 16475-76, ¶ 11 (MB 2011)
(“We question the urgency of the 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, it did not seek relief until almost nine months after the repositioning
occurred.”) (emphasis in original).
48 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c).
49 See 1993 Program Carriage Order, 9 FCC Rcd at 2654, ¶ 29.
50 See Tennis Channel HDO, 25 FCC Rcd at 14153-62, ¶¶ 9-21; Herring Broadcasting Inc., d/b/a WealthTV, et al.,
Memorandum Opinion and Hearing Designation Order, 23 FCC Rcd 14787, 14792-814, ¶¶ 8-58 (MB 2008)
(“WealthTV HDO”); NFL Enters. LLC v. Comcast Cable Communications, LLC, Memorandum Opinion and
Hearing Designation Order, 23 FCC Rcd 14787, 14814-29, ¶¶ 59-89 (MB 2008) (“NFL Enterprises HDO”); TCR
Sports Broadcasting Holding, LLP v. Comcast Corp.
, Memorandum Opinion and Hearing Designation Order, 23
FCC Rcd 14787, 14829-42, ¶¶ 90-119 (MB 2008) (“MASN II HDO”); TCR Sports Broadcasting Holding, L.L.P. v.
Comcast Corp.,
Memorandum Opinion and Hearing Designation Order, 21 FCC Rcd 8989, 8993-95, ¶¶ 11-12
(2006) (“MASN I HDO”); Hutchens Communications, Inc. v. TCI Cablevision of Georgia, Inc., Memorandum
Opinion and Order, 9 FCC Rcd 4849, ¶ 27 (CSB 1994); see also 2011 Program Carriage Order, 26 FCC Rcd at
11501-06, ¶¶ 9-17; 1993 Program Carriage Order, 9 FCC Rcd at 2654, ¶ 29.
51 See 47 U.S.C. §§ 522(13), 536(b); 47 C.F.R. § 76.1300(d), (e); Tennis Channel HDO, 25 FCC Rcd at 14154, ¶ 10;
WealthTV HDO, 23 FCC Rcd at 14792, ¶ 8; NFL Enterprises HDO, 23 FCC Rcd at 14814-15, ¶ 59; MASN II HDO,
23 FCC Rcd at 14829, ¶ 90; MASN I HDO, 21 FCC Rcd at 8989, ¶ 1; see also 2011 Program Carriage Order, 26
FCC Rcd at 11502-03, ¶ 11; 1993 Program Carriage Order, 9 FCC Rcd at 2654, ¶ 29.
52 See 47 U.S.C. § 522(13); 47 C.F.R. § 76.1300(d); Tennis Channel HDO, 25 FCC Rcd at 14154, ¶ 10; WealthTV
HDO,
23 FCC Rcd at 14793, ¶ 10, 14799-800, ¶ 25, 14804-05, ¶ 36, 14809-10, ¶ 47; NFL Enterprises HDO, 23
FCC Rcd at 14814-15, ¶ 59; MASN II HDO, 23 FCC Rcd at 14829, ¶ 90; MASN I HDO, 21 FCC Rcd at 8989, ¶ 1;
see also 2011 Program Carriage Order, 26 FCC Rcd at 11502-03, ¶ 11; 1993 Program Carriage Order, 9 FCC Rcd
at 2654, ¶ 29.
53 See 2011 Program Carriage Order, 26 FCC Rcd at 11503-05, ¶¶ 13-14.
7

Federal Communications Commission

DA 12-739

REDACTED VERSION

complainant) that supports the claim that the defendant discriminated on the basis of affiliation or non-
affiliation of vendors.54 A complaint relying on circumstantial evidence requires (i) evidence that the
complainant provides video programming that is similarly situated to video programming provided by a
programming vendor affiliated with the defendant MVPD, based on a combination of factors, such as
genre, ratings, license fee, target audience, target advertisers, target programming, and other factors;55 and
(ii) evidence that the defendant MVPD has treated the video programming provided by the complainant
differently than the similarly situated video programming provided by the programming vendor affiliated
with the defendant MVPD with respect to the selection, terms, or conditions for carriage.56 Regardless of
whether the complaint relies on direct or circumstantial evidence of discrimination “on the basis of
affiliation or nonaffiliation,” the complaint must also contain evidence that the defendant MVPD’s
conduct has the effect of unreasonably restraining the ability of the complainant to compete fairly.57
11.
The parties do not dispute that GSN is a video programming vendor58 and that
Cablevision is an MVPD as defined in the Act and the Commission’s Rules.59 In addition, Cablevision
does not contest that it was affiliated with the WE tv and Wedding Central cable networks pursuant to the
Commission’s attribution rules when it repositioned GSN to a premium sports tier in February 2011.60
With respect to the remaining factors, we conclude that GSN has put forth sufficient circumstantial
evidence in its complaint to establish a prima facie case that Cablevision has engaged in unlawful


54 See id. at 11503-04, ¶ 13; 1993 Program Carriage Order, 9 FCC Rcd at 2654, ¶ 29. In the 2011 Program
Carriage Order
, the Commission provided the following examples of direct evidence of discrimination “on the basis
of affiliation or nonaffiliation”: (i) an email from the defendant MVPD stating that the MVPD took an adverse
carriage action against the complainant programmer because it is not affiliated with the MVPD; and (ii) an affidavit
from a representative of the complainant programmer involved in the relevant carriage negotiations detailing the
facts supporting a claim that a representative of the defendant MVPD informed the complainant programmer that the
MVPD took an adverse carriage action because the complainant programmer is not affiliated with the MVPD. See
2011 Program Carriage Order
, 26 FCC Rcd at 11503-04, ¶ 13.
55 See Tennis Channel HDO, 25 FCC Rcd at 14159-60, ¶¶ 17-18; WealthTV HDO, 23 FCC Rcd at 14795-97, ¶¶ 12-
17, 14801, ¶ 27, 14806, ¶ 39, 14811-12, ¶ 51; NFL Enterprises HDO, 23 FCC Rcd at 14822-23, ¶ 75; MASN II
HDO
, 23 FCC Rcd at 14835-36, ¶ 108; MASN I HDO, 21 FCC Rcd at 8993-94, ¶ 11; see also 2011 Program
Carriage Order
, 26 FCC Rcd at 11504-05, ¶ 14; 1993 Program Carriage Order, 9 FCC Rcd at 2654, ¶ 29.
56 See Tennis Channel HDO, 25 FCC Rcd at 14160-61, ¶ 19; WealthTV HDO, 23 FCC Rcd at 14797, ¶ 18, 14801, ¶
28, 14806, ¶ 40, 14812, ¶ 52; NFL Enterprises HDO, 23 FCC Rcd at 14823, ¶ 76; MASN II HDO, 23 FCC Rcd at
14836, ¶ 109; MASN I HDO, 21 FCC Rcd at 8993-94, ¶ 11; see also 2011 Program Carriage Order, 26 FCC Rcd at
11504-05, ¶ 14; 1993 Program Carriage Order, 9 FCC Rcd at 2654, ¶ 29; but see Hutchens, 9 FCC Rcd at 4853, ¶
27 (finding that complainant programming vendor did not make a prima facie showing of discrimination on the
basis of affiliation or nonaffiliation because it failed to demonstrate that it was offered different price, terms, or
conditions as compared to that offered to an affiliated programming vendor).
57 In previous cases, the Media Bureau has made this assessment based on the impact of the defendant MVPD’s
adverse carriage action on the programming vendor’s subscribership, licensee fee revenues, advertising revenues,
ability to compete for advertisers and programming, and ability to realize economies of scale. See Tennis Channel
HDO
, 25 FCC Rcd at 14161-62, ¶¶ 20-21; WealthTV HDO, 23 FCC Rcd at 14798, ¶ 19, 14802, ¶¶ 29-31, 14807-08,
¶¶ 41-42, 14812-13, ¶¶ 53-54; NFL Enterprises HDO, 23 FCC Rcd at 14823-25, ¶¶ 77-78; MASN II HDO, 23 FCC
Rcd at 14836, ¶ 110; MASN I HDO, 21 FCC Rcd at 8993-94, ¶ 11; see also 2011 Program Carriage Order, 26 FCC
Rcd at 11505, ¶ 15; 1993 Program Carriage Order, 9 FCC Rcd at 2648, ¶ 14.
58 See 47 U.S.C. § 536(b) (defining “video programming vendor”); 47 C.F.R. § 76.1300(e) (same); GSN Complaint
at ¶ 10; Cablevision Answer at 72 (¶ 10).
59 See 47 U.S.C. § 522(13) (defining “MVPD”); 47 C.F.R. § 76.1300(d) (same); GSN Complaint at ¶ 13;
Cablevision Answer at 72 (¶ 13).
60 See supra n.20.
8

Federal Communications Commission

DA 12-739

REDACTED VERSION

discrimination in the “selection of . . . video programming” by repositioning GSN to a premium sports
tier, while carrying comparable affiliated networks on a more widely distributed tier.61 We do not reach
the merits of this claim. Rather, we find that the existing record, including Cablevision’s Answer, makes
clear that there are significant and material questions of fact warranting resolution at hearing.62

A.

Procedural Issues

12.
As a threshold matter, we reject Cablevision’s contention that GSN’s complaint is
foreclosed as untimely filed under the program carriage statute of limitations.63 Pursuant to Section
76.1302(f) of the Commission’s Rules, an aggrieved programmer has a one-year period in which to file a
program carriage complaint that commences upon the occurrence of one of three specified events.64 We
find that the third of those triggering events – the provision of an aggrieved programmer’s pre-filing
notification pursuant to Section 76.1302(b) of the Commission’s Rules – is present in this case.65 The
plain language of the rule allows a program carriage complaint to be filed within one year of the pre-filing
notice.66 As the Commission and the Bureau have recognized previously, Section 76.1302(f)(3) could be


61 47 U.S.C. § 536(a)(3) (requiring the Commission to adopt regulations that prevent an MVPD “from engaging in
conduct the effect of which is to unreasonably restrain the ability of an unaffiliated video programming vendor to
compete fairly by discriminating in video programming distribution on the basis of affiliation or nonaffiliation of
vendors in the selection, terms, or conditions for carriage of video programming provided by such vendors”)
(emphasis added). As discussed below, GSN does not contend that its affiliation agreement with Cablevision
contains discriminatory “terms” or “conditions.” See infra ¶ 13. Rather, GSN claims that Cablevision has
impermissibly discriminated in its “selection” of GSN for placement on a premium sports tier while selecting its
affiliated networks for placement on a more widely distributed programming tier. See Tennis Channel HDO, 25
FCC Rcd 14149 (MB 2010) (program carriage complaint alleging that defendant impermissibly discriminated by
selecting complainant for placement on sports tier while selecting affiliated networks for placement on a more
widely distributed programming tier); NFL Enterprises HDO, 23 FCC Rcd 14787 (MB 2008) (same).
62 Because we are not ruling on the merits of GSN’s claims at this prima facie stage, we find it premature to address
Cablevision’s argument that requiring Cablevision to reposition GSN back to an expanded basic tier would infringe
upon Cablevision’s First Amendment rights. See Cablevision Answer at 61-69.
63 See id. at 69-71.
64 47 C.F.R. § 76.1302(f). Section 76.1302(f) of the Commission’s Rules provides that:
Any complaint filed pursuant to [Section 76.1302] must be filed within one year of the date on
which one of the following events occurs:
(1) The [MVPD] enters into a contract with a video programming distributor that a party alleges
to violate one or more of the rules contained in this section; or
(2) The [MVPD] offers to carry the video programming vendor’s programming pursuant to terms
that a party alleges to violate one or more of the rules contained in this section, and such offer to
carry programming is unrelated to any existing contract between the complainant and the
multichannel video programming distributor; or
(3) A party has notified a [MVPD] that it intends to file a complaint with the Commission based
on violations of one or more of the rules contained in this section.
Id.
65 See 47 C.F.R. § 76.1302(f)(3). We agree with Cablevision that the limitations period in Section 76.1302(f)(2) of
the Commission’s Rules, which governs carriage offers unrelated to existing affiliation agreements, is inapplicable
in this case. See Cablevision Answer at 70.
66 See Tennis Channel HDO, 25 FCC Rcd 14149, 14154-56, ¶ 11 (MB 2010); see also WealthTV HDO, 23 FCC Rcd
14787, 14806, ¶ 38 (MB 2008) (“the plain language of the Commission’s rules provides that the statute of
limitations is satisfied if the program carriage complaint is filed within one year of the pre-filing notice”).
9

Federal Communications Commission

DA 12-739

REDACTED VERSION

read to allow a complainant to file a program carriage complaint based on allegedly unlawful conduct that
occurred years before the submission of the pre-filing notice provided the complaint was filed within one
year of the pre-filing notice.67 We are not presented with such a case here. Cablevision informed GSN on
December 3, 2010 that it would reposition the network to a premium sports tier and it subsequently took
this allegedly impermissible discriminatory action on February 1, 2011.68 GSN filed its program carriage
complaint on October 12, 2011, within one year of these dates, as well as within one year of its pre-filing
notice.69 Accordingly, we conclude that the complaint was timely filed pursuant to Section 76.1302(f)(3)
of the Commission’s Rules.70
13.
We disagree with Cablevision that GSN’s complaint is barred by Section 76.1302(f)(1) of
the Rules, which establishes a one-year period for the filing of a program carriage complaint that
commences with the “[execution of] a contract with [an MVPD] that a party alleges to violate one or
more of the [program carriage] rules.”71 Although the parties executed and extended their existing
carriage agreement well over one year ago in [REDACTED
],72 respectively, GSN does not claim that this agreement contains unlawfully
discriminatory prices, terms, or conditions. Nor do the parties dispute that Cablevision has abided by the
explicit terms of the agreement.73 The agreement at issue does not specify the tier on which Cablevision
must carry GSN74 and instead grants Cablevision the [REDACTED


67 See Revision of the Commission’s Program Carriage Rules, Notice of Proposed Rulemaking, 26 FCC Rcd 11494,
11522-23, ¶ 38 (2011) (“Program Carriage NPRM”); Tennis Channel HDO, 25 FCC Rcd at 14154-56, ¶ 11 (MB
2010).
68 See supra ¶ 7.
69 See supra ¶ 8.
70 Similarly, in the Tennis Channel HDO, NFL Enterprises HDO, and MASN II HDO, the complainant filed its
complaint within one year of the pre-filing notice as well as within one year of the allegedly impermissible
discriminatory act. See infra n.78; Tennis Channel HDO, 25 FCC Rcd 14149, 14154-56, ¶ 11 (MB 2010); NFL
Enterprises HDO,
23 FCC Rcd at 14819-20, ¶¶ 69-70 (MB 2008); MASN II HDO, 23 FCC Rcd at 14833-35, ¶¶
102-105 (MB 2008). In the 2011 Program Carriage NPRM, the Commission acknowledged that Section
76.1302(f)(3) could be read to provide that a complaint is timely filed even if the allegedly discriminatory act
occurred many years before the filing of the complaint and that, based on such a reading, “Section 76.1302(f)(3)
undermines the fundamental purpose of a statute of limitations ‘to protect a potential defendant against stale and
vexatious claims by ending the possibility of litigation after a reasonable period of time has elapsed.’” 2011
Program Carriage NPRM
, 26 FCC Rcd at 11522-23, ¶ 38 (quoting Bunker Ramo Corp., Memorandum Opinion and
Order, 31 FCC 2d 449, ¶ 12 (Review Board 1971)); see also Cablevision Answer at 70-71. To address this concern,
the Commission “propose[d] to revise our program carriage statute of limitations to provide that a complaint must be
filed within one year of the act that allegedly violated the program carriage rules.” 2011 Program Carriage NPRM,
26 FCC Rcd at 11523, ¶ 39. GSN’s complaint would be timely even under the Commission’s proposed revised
program carriage statute of limitations.
71 47 C.F.R. § 76.1302(f)(1). The timeliness of GSN’s complaint is not an issue designated for resolution by the
Presiding Judge. As required by the Commission’s Rules, to the extent Cablevision seeks Commission review of
our decision on this issue, such review, if any, shall be deferred until exceptions to the Initial Decision in this
proceeding are filed. See 47 C.F.R. § 1.115(e)(3).
72 See supra n.28.
73 See Cablevision Answer at 11, 50; Montemagno Decl. at ¶ 41; GSN Reply at 49-50.
74 See Montemagno Decl. at ¶ 15.
10

Federal Communications Commission

DA 12-739

REDACTED VERSION

].75 The gravamen of GSN’s complaint is that Cablevision exercised this
discretion in an impermissibly discriminatory manner by repositioning GSN to a premium sports tier
while at the same time continuing to carry its allegedly similarly situated affiliated networks on a more
widely distributed tier, and has thus failed to meet its obligation under Section 616(a)(3) of the Act and
Section 76.1301(c) of the Commission’s Rules to avoid discrimination on the basis of affiliation.76 It is
this allegedly discriminatory act of repositioning of GSN, not the terms of the contract, which forms the
basis for GSN’s complaint.77
14.
This interpretation is consistent with Bureau precedent establishing that, despite the
execution of a carriage contract more than one year prior to the filing of a program carriage complaint, the
complaint may nonetheless be timely if the basis for the claim is an allegedly discriminatory decision
made by the MVPD, such as tier placement, that the contract left to the MVPD’s discretion.78 The
exercise of such discretion is subject to the MVPD’s obligations under the program carriage statute,
which prohibits an MVPD from “discriminating in video programming distribution on the basis of
affiliation or nonaffiliation of vendors in the selection, terms, or conditions for carriage . . . .”79 As the
Bureau explained in the NFL Enterprises HDO, “[w]hether or not [an MVPD] had the right to [make a
tiering decision] pursuant to a private agreement is not relevant to the issue of whether doing so violated
Section 616 of the Act and the program carriage rules. Parties to a contract cannot insulate themselves


75 Gillespie Decl., Exhibit A, 1997 Affiliation Agreement at § 4; see also Cablevision Answer at 7; Montemagno
Decl. at ¶ 15.
76 See GSN Complaint at ¶ 2; GSN Reply at 49.
77 See GSN Complaint at ¶ 2; GSN Reply at 49.
78 See Tennis Channel HDO, 25 FCC Rcd at 14154-59, ¶¶ 11-16 (MB 2010) (the contract at issue did not specify the
tier on which the defendant/MVPD would carry the complainant/programmer and provided the defendant/MVPD
with the discretion to carry the complainant/programmer on a more widely distributed tier than the premium sports
tier on which the complainant/programmer had been carried since its launch; the Bureau rejected claims that the
basis for the dispute was the contract and that the complaint should have been filed within one year from the
contract execution date; rather, the Bureau found the complaint was timely filed within one year of the pre-filing
notice as well as within one year of the defendant/MVPD’s allegedly discriminatory act of refusing to exercise its
discretion to carry the complainant/programmer on a more widely distributed tier), application for review pending;
NFL Enterprises HDO, 23 FCC Rcd at 14819-20, ¶¶ 69-70 (MB 2008) (the defendant/MVPD exercised its
contractual right to move the complainant/programmer to a premium sports tier after certain events occurred; the
Bureau rejected claims that the basis for the dispute was the contract and that the complaint should have been filed
within one year from the contract execution date; rather, the Bureau found the complaint was timely filed within one
year of the pre-filing notice as well as within one year of the defendant/MVPD’s allegedly discriminatory act of
moving the complainant/programmer to a premium sports tier); MASN II HDO, 23 FCC Rcd at 14833-35, ¶¶ 102-
105 (MB 2008) (the contract at issue left it to the defendant/MVPD’s discretion to carry the complainant/
programmer on systems not specified in the contract, but the defendant/MVPD declined to exercise this discretion;
the Bureau rejected claims that the basis for the dispute was the contract and that the complaint should have been
filed within one year from the contract execution date; rather, the Bureau found the complaint was timely filed
within one year of the pre-filing notice as well as within one year of the defendant/MVPD’s allegedly discriminatory
refusal to carry the complainant/programmer on systems not specified in the contract).
We note that Comcast has filed an Application for Review of the Tennis Chanel HDO challenging the Bureau’s
ruling that the complaint was filed in compliance with the program carriage statute of limitations. See Comcast
Cable Communications, LLC, Application for Review, MB Docket No. 10-204, File No. CSR-8258-P (filed Jan. 19,
2012). Comcast’s Application for Review is pending.
79 47 U.S.C. § 536(a)(3).
11

Federal Communications Commission

DA 12-739

REDACTED VERSION

from enforcement of the Act or our rules by agreeing to acts that violate the Act or rules.”80 As in the
Tennis Channel HDO, NFL Enterprises HDO, and MASN II HDO, we designate the present case for a
hearing to determine whether Cablevision exercised its discretion consistent with its obligations under the
program carriage statute and rules when it repositioned GSN to a premium sports tier.
15.
This precedent is consistent with the decision of the Cable Services Bureau in EchoStar
dismissing a program access case on procedural grounds.81 The contract at issue in EchoStar specified
the rate the complainant would pay for the defendant’s programming.82 Over one year after the parties
entered into the contract, however, the complainant sought to renegotiate the rate set forth in the
contract.83 The Bureau found that the complaint was barred by the applicable statute of limitations, which
requires that program access complaints be brought within one year of the date of execution of an
affiliation agreement that allegedly violates the Commission’s program access requirements.84 Thus,
unlike the present case where the contract at issue does not specify the tier on which Cablevision will
carry GSN and instead leaves tier placement to Cablevision’s discretion, EchoStar involved a
complainant’s attempt to renegotiate a rate set forth in the contract more than one year after the contract’s
execution date. Here, GSN’s complaint does not relate to any of the specific rates, terms, or conditions
set forth in the parties’ contract, but rather, Cablevision’s allegedly discriminatory tiering decision that
occurred subsequent to the contract’s execution.85
16.
Notwithstanding this clear Bureau precedent, Cablevision argues that the contractual
provision [REDACTED
] and
that, if GSN believed this provision violated the program carriage rules, it should have filed its complaint
within one year.86 We disagree. Under Cablevision’s interpretation of the program carriage statute of
limitations, a programmer would be forever barred from bringing a discrimination claim unless the claim
is brought within one year from the date the contract was executed.87 Such an interpretation would
preclude programmers from bringing program carriage discrimination claims after the first year of a
contract even if the MVPD exercises its discretion pursuant to the contract by moving the programmer to


80 NFL Enterprises HDO, 23 FCC Rcd at 14821, ¶ 72 (MB 2008). Subsequent to the Bureau’s decision in NFL
Enterprises HDO
, the Chief ALJ supported this view in denying a motion for a ruling on judicial estoppel and
laches issues. See NFL Enters. LLC v. Comcast Cable Communications, LLC, Memorandum Opinion and Order,
FCC 09M-36 (Chief ALJ 2009), at ¶ 3 (denying motion that program carriage case should be dismissed because
complainant was also pursuing a contract-based claim in state court, explaining that “NFL Enterprises seeks to
vindicate its alleged private contractual rights in the New York litigation and its alleged federal and regulatory rights
in this case. . . . The statutory and regulation issues in this case are separate and distinct from the contractual issues
in the New York action.”).
81 See EchoStar Communications Corp. v. Fox/Liberty Networks, LLC, 13 FCC Rcd 21841 (CSB 1998), recon.
denied, EchoStar Communications Corp. v. Fox/Liberty Networks, LLC,
14 FCC Rcd 10480 (CSB 1999).
82 See EchoStar, 13 FCC Rcd at 21845, ¶ 10.
83 See id. at 21844-45, ¶¶ 9-10.
84 See id. at 21848, ¶ 17.
85 Citing EchoStar, the Commission later explained that “an offer to amend an existing contract that has been in
effect for more than one year does not reopen the existing contract to complaints that the provisions thereof are
discriminatory.” 1998 Biennial Regulatory Review – Part 76, Report and Order, 14 FCC Rcd 418, 424, ¶ 18 (1999).
As discussed above, GSN does not allege that the contract at issue contains discriminatory provisions and does not
seek to amend its contract. See supra ¶ 13.
86 Cablevision Answer at 69-70 and n.278.
87 See Tennis Channel HDO, 25 FCC Rcd at 14158, ¶ 15 (MB 2010).
12

Federal Communications Commission

DA 12-739

REDACTED VERSION

a less-distributed tier in order to favor its own affiliated network.88 Such an interpretation would allow
even blatant affiliation-based discrimination to go unremediated, provided the defendant waits at least one
year before taking the discriminatory action.89 Moreover, we note that Cablevision characterizes the
[REDACTED
] term of the contract as “favorable”
to Cablevision and that it sought such terms in particular from “new networks that were seeking to grow
subscribers in the New York DMA.”90 Under Cablevision’s interpretation of the program carriage statute
of limitations, MVPDs could use their leverage over “new networks” to extract “favorable” terms that
circumvent the protections provided by the program carriage statute. Indeed, one of the other “favorable”
terms in the [REDACTED
].91 Under
Cablevision’s view of the program carriage statute of limitations, an MVPD could delete an unaffiliated
network from all of its systems one year after the execution of the contract in order to favor its affiliated
network and then claim that such conduct cannot be challenged under the program carriage rules because
it occurred outside of the one-year window for filing a complaint. We find this view untenable as it
would eviscerate the protections provided by the program carriage statute.

B.

Discrimination Claim

1.

Circumstantial Evidence

a.

Similarly Situated

17.
We find that GSN has provided evidence sufficient to demonstrate for purposes of
establishing a prima facie case of program carriage discrimination that it is similarly situated with
Cablevision-affiliated networks – WE tv and Wedding Central.92 As discussed above, a complaint relying
on circumstantial evidence of discrimination “on the basis of affiliation or nonaffiliation” requires
evidence that the complainant provides video programming that is similarly situated to video
programming provided by a programming vendor affiliated with the defendant MVPD, based on a
combination of factors, such as genre, ratings, license fee, target audience, target advertisers, target
programming, and other factors.93 As discussed below, GSN provides evidence with respect to these
factors, as well as additional factors.
18.
Genre. GSN provides evidence that GSN, WE tv, and Wedding Central are similarly
situated with respect to genre. GSN provides a declaration from its CEO and experts opining that GSN,
WE tv, and Wedding Central all feature female-oriented reality and competition-based programming,


88 See id.
89 Moreover, GSN notes that Cablevision’s interpretation would discourage MVPDs from signing contracts with
unaffiliated programmers to avoid triggering the one-year period during which program carriage complaints could
be filed. See GSN Reply at 48-49.
90 Cablevision Answer at 7; Montemagno Decl. at ¶¶ 9-11, 16-17 (“Specifically, Cablevision would not have agreed
to carry the Game Show Network if it were not given this flexibility. During this time, Cablevision consistently
sought carriage flexibility from programmers (and was often successful), particularly when negotiating with new
networks that were seeking to grow subscribers in the New York DMA.”).
91 See Gillespie Decl., Exhibit A, 1997 Affiliation Agreement at § 5(a).
92 Cablevision disputes that GSN is similarly situated to WE tv and Wedding Central. See, e.g., Cablevision Answer
at 14-48.
93 See supra ¶ 10. The Commission has also emphasized that “[a]lthough no single factor is necessarily dispositive,
the more factors that are found to be similar, the more likely the programming in question will be considered
similarly situated to the affiliated programming.” 2011 Program Carriage Order, 26 FCC Rcd at 11504-05, ¶ 14.
13

Federal Communications Commission

DA 12-739

REDACTED VERSION

often with a focus on relationships, dating, or marriage.94 GSN puts forth dating-based game shows
appearing on GSN that feature romantic relationships (Baggage, The Newlywed Game, and Love
Triangle
) as similar to wedding-based reality shows on WE tv that touch upon the same themes of dating,
romance, and family dynamics (such as Bridezillas, Rich Bride, Poor Bride, and I Do Over).95 In
addition, GSN states that a reality show on GSN (Carnie Wilson: Unstapled) was similar to a reality show
on WE tv (The Cupcake Girls) in that both shows dealt with women starting dessert businesses.96
Moreover, while the programming on GSN consists primarily of game shows,97 GSN’s expert, Mr.
Brooks, opines that game shows are comparable to reality programming98 and that game shows appeal
predominantly to women, similar to the female-oriented reality programming on WE tv.99
19.
Ratings. GSN provides evidence that GSN and WE tv are similarly situated with respect
to ratings on a national basis and within the New York DMA, as well as among specific demographic
groups.100 GSN provides national ratings data from 2009, 2010, and 2011 indicating that GSN and WE tv
were [REDACTED

] on a total-day (household)101 basis and [REDACTED
] on a total-day (persons) basis.102 Based on
total-day (household) national ratings in 2010, GSN ranked [REDACTED
] national networks, whereas WE tv ranked [REDACTED
].103 With respect to national prime time ratings, GSN
and WE tv were [REDACTED


94 See Brooks Decl. at ¶ III.1; Goldhill Decl. at ¶¶ 7-8; Singer Decl. at ¶¶ 4, 23-26; see also GSN Complaint at ¶¶ 15-
18, 36. According to GSN’s expert, Mr. Brooks, the programming on Wedding Central consisted of reruns of
female-oriented programming that had originally aired on WE tv. See Brooks Decl. at ¶¶ III.1.g, III.2.h; see also
GSN Complaint
at ¶ 17.
95 See Brooks Decl. at ¶¶ III.1.e-f; Goldhill Decl. at ¶¶ 7-8; see also GSN Complaint at ¶ 18; Singer Decl. at ¶ 25.
GSN’s expert, Dr. Singer, states that two of these shows, Baggage and The Newlywed Game, account for
[REDACTED
] of GSN’s weekday programming between 6:30 pm and
midnight. See Singer Decl. at ¶ 25.
96 See Goldhill Decl. at ¶¶ 7-8; see also GSN Complaint at ¶ 18; Singer Decl. at ¶ 26. The GSN show Carnie
Wilson: Unstapled
followed the singer Carnie Wilson as she built a dessert business. See GSN Complaint at ¶ 18;
Goldhill Decl. at ¶ 7; Singer Decl. at ¶ 26. The WE tv show The Cupcake Girls follows a group of women
entrepreneurs who start a cupcake company. See GSN Complaint at ¶ 18; Goldhill Decl. at ¶ 8; Singer Decl. at ¶ 26.
97 See Brooks Decl. at ¶ III.1.a.
98 See id. at ¶ III.1.c.
99 See id.; see also GSN Complaint at ¶ 36.
100 GSN’s expert, Mr. Brooks, states that ratings data [REDACTED
] while Mr. Gillespie states that Wedding Central’s ratings were far inferior to
GSN’s ratings. See Brooks Decl. at ¶¶ III.1.a (n.1), III.2.h; Gillespie Decl. at ¶ 8. Wedding Central was shut down
in July 2011. See supra ¶ 5.
101 The total-day (household) national ratings were as follows in 2010: [REDACTED
]. See Brooks Decl. at ¶ III.2.a; see also GSN Complaint at ¶¶ 45, 48.
102 The total-day (persons) national ratings were as follows in 2010: [REDACTED
]. See Brooks Decl. at ¶ III.2.a; see also GSN Complaint at ¶¶ 45, 48.
103 See Brooks Decl. at ¶ III.2.b; see also GSN Complaint at ¶ 48.
14

Federal Communications Commission

DA 12-739

REDACTED VERSION


].104 Within the New York DMA, GSN and WE tv were [REDACTED
] on a total-day
(household) basis using 2010 data.105
20.
With respect to specific demographics, GSN provides total-day national ratings data from
2009 and 2010 indicating that WE tv and GSN were [REDACTED
] among Women 25-54 and Women 18-49;106 and
(ii) [REDACTED
]
among Persons 25-54 and Persons 18-49.107 In his declaration, GSN’s expert, Mr. Brooks, states that
[REDACTED
].108 Based on total-day national ratings in
2010, (i) GSN ranked [REDACTED
] national
networks among Women 25-54, whereas WE tv ranked [REDACTED

];109 and (ii) GSN ranked [REDACTED
]
national networks among Women 18-49, whereas WE tv ranked [REDACTED
].110 In his declaration, GSN’s expert, Mr. Brooks,
states that these rankings put [REDACTED
].111 Within the New York DMA, GSN provides total-day
ratings data from the second quarter of 2010 indicating that WE tv and GSN were [REDACTED
] among


104 The prime time national ratings were as follows: [REDACTED
]. See Singer Decl. at ¶ 43.
105 The total-day (household) ratings in the New York DMA in 2010 were as follows: [REDACTED
]. See Brooks Decl. at ¶¶ III.2.k, III.2.l,
III.5.b.
106 See id. at ¶ III.2.e; see also GSN Complaint at ¶ 38. Among Women 25-54, the total-day national ratings were as
follows: [REDACTED
].
See Brooks Decl. at ¶ III.2.e. Among Women 18-49, the total-day national ratings were as follows: [REDACTED

]. See id.
107 See Brooks Decl. at ¶ III.2.e; see also GSN Complaint at ¶ 38. Among Persons 25-54, the total-day national
ratings were as follows: [REDACTED
]. See Brooks Decl. at ¶ III.2.e. Among Persons 18-49, the total-day
national ratings data were as follows: [REDACTED
]. See id.
108 See Brooks Decl. at ¶ III.2.f.
109 See id.
110 See id.
111 See id.
15

Federal Communications Commission

DA 12-739

REDACTED VERSION

Women 25-54 and Women 18-49;112 and (ii) [REDACTED
] among Persons 25-54 and Persons 18-49.113
21.
In addition to this ratings evidence, GSN’s expert, Mr. Brooks, presents viewer
satisfaction data for GSN and WE tv.114 Averaging the results from the [REDACTED
115
116
117
118
.119
].120
22.
License fee. GSN provides evidence that GSN, WE tv, and Wedding Central are
similarly situated with respect to the license fees they charge to MVPDs: [REDACTED
121
122
].123 GSN’s evidence also shows that, on a price-per-


112 See id. at ¶ III.3.d-e. Among Women 25-54, the total-day ratings in the New York DMA in the second quarter of
2010 were as follows: [REDACTED
]. See id.
Among Women 18-49, the total-day ratings in the New York DMA in the second quarter of 2010 were as follows:
[REDACTED
]. See id.
113 See id. Among Persons 25-54, the total-day ratings in the New York DMA in the second quarter of 2010 were as
follows: [REDACTED
]. See id. Among
Persons 18-49, the total-day ratings in the New York DMA in the second quarter of 2010 were as follows:
[REDACTED
]. See id.
114 See id. at ¶ III.4.a-d, III.5.c, and Appendix 1. According to Mr. Brooks, viewer satisfaction is considered by
distributors because it “reflects subscribers’ presumed willingness to remain subscribers and potentially buy
enhanced services.” Id. at ¶ III.4.a.
115 According to Mr. Brooks, Beta Research Corp. provides the “best known and most widely used impartial, third-
party survey of cable subscriber satisfaction,” and the Beta Research Cable Subscriber Study “has been used
throughout the industry for many years as an impartial ‘benchmark’ on viewer attitudes.” Id.
116 See id. at ¶ III.5.c.
117 See id. at ¶ III.4.b.
118 See id. [REDACTED
]. See id.
119 See id. at ¶ III.4.c. [REDACTED
]. See id.
120 See id. at ¶¶ III.4.d, III.5.c, and Appendix 1.
121 See Singer Decl. at ¶¶ 6, 22, 43, and Table 6.
122 See id.
123 See id. at ¶ 22.
16

Federal Communications Commission

DA 12-739

REDACTED VERSION

rating point basis using 2009 total-day national ratings and 2009 license fee data, GSN is [REDACTED
].124 Moreover, GSN provides
evidence that, on a price-per-rating point basis using 2010 total-day ratings in the New York DMA and
2009 licensee fee data, GSN [REDACTED
].125
23.
Target Audience. GSN provides evidence that GSN, WE tv, and Wedding Central are
similarly situated with respect to target audience. GSN states that GSN, WE tv, and Wedding Central are
in a core group of networks (along with Bravo, E!, Hallmark Channel, Lifetime, and Oxygen) that appeal
predominantly to women and that they primarily target women ages 25 to 54.126 In support, GSN notes
total-day national ratings data from 2010 indicating that GSN, WE tv, and Wedding Central are viewed
primarily by women: GSN ([REDACTED
]);127 WE tv ([REDACTED
]
);128 Wedding Central ([REDACTED
]
).129 Citing the ratings data detailed above,130 GSN states that GSN and WE tv have
[REDACTED
].131 GSN also provides advertising sales revenue broken down by demographic,
which reflects that [REDACTED
].132 Moreover, GSN states that the audiences of GSN and WE tv
are sufficiently similar that the networks have developed “crossovers” with respect to their programming:
(i) three couples from the WE tv show Bridezillas appeared on GSN’s The Newlywed Game; and (ii) WE
tv showed promotions for The Newlywed Game on WE tv.133 In addition, GSN submits that
[REDACTED
].134


124 See id. at ¶ 43 and Table 6; see also GSN Complaint at ¶ 49.
125 See Singer Decl. at ¶ 43 n.47.
126 See GSN Complaint at ¶¶ 19, 36; Goldhill Decl. at ¶¶ 7-9; Brooks Decl. at ¶¶ I.2, III.5.e; Singer Decl. at ¶ 32.
127 See Brooks Decl. at ¶¶ III.2.c, III.5.a; Goldhill Decl. at ¶ 7; Singer Decl. at ¶ 32.
128 See Brooks Decl. at ¶ III.2.c; Singer Decl. at ¶ 32.
129 See Brooks Decl. at ¶ III.1.h.
130 See supra ¶¶ 19-20.
131 See Brooks Decl. at ¶¶ III.2.e-h, III.5.a; GSN Complaint at ¶ 38.
132 See Brooks Decl. at ¶ III.2.d.
133 See Goldhill Decl. at ¶ 9; see also GSN Complaint at ¶¶ 20, 37.
134 See Brooks Decl. at ¶¶ III.4.e-f, III.5.d.
17

Federal Communications Commission

DA 12-739

REDACTED VERSION

24.
Competition for Viewers. GSN provides evidence that GSN, WE tv, and Wedding
Central compete for the same viewers. First, GSN’s expert, Mr. Brooks, provides Nielsen data which
ranked WE tv as [REDACTED
] among all cable networks
in terms of shared audience with GSN during the fourth quarter of 2010:135 [REDACTED
136
].137
25.
Second, GSN’s expert, Dr. Singer, analyzes Nielsen audience duplication data for four
dating-related shows airing on GSN138 and finds that [REDACTED

]:139 (i) more than [REDACTED
]
of all viewers who watched the GSN show Baggage also watched WE tv within the same quarter;140 (ii)
[REDACTED
] of WE tv viewers watched Baggage
within the same period;141 and (iii) the combined shared audience of both Baggage and WE tv against the
total number of unique viewers reached over the same quarter was [REDACTED
].142 Dr. Singer finds that, when ranked according to Both Duplication
percentage, Baggage is [REDACTED
].143 In addition, Dr.
Singer notes that GSN’s The Newlywed Game is [REDACTED
].144 Based on this data, Dr. Singer concludes that [REDACTED


135 See GSN Complaint at ¶¶ 19, 37; Brooks Decl. at ¶ III.2.g.
136 See GSN Complaint at ¶ 19; Brooks Decl. at ¶ III.2.g.
137 See GSN Complaint at ¶ 19; Brooks Decl. at ¶ III.2.g.
138 Dr. Singer states that two of these four shows, Baggage and The Newlywed Game, account for [REDACTED
] of GSN’s weekday programming between 6:30 pm and
midnight. See Singer Decl. at ¶ 25.
139 See GSN Complaint at ¶ 37; Singer Decl. at ¶¶ 27-30.
140 See GSN Complaint at ¶ 37; Singer Decl. at ¶ 29 and Table 2. This figure, referred to as the “Primary
Duplication” percentage, reflects the percentage of viewers of a particular GSN show (in this case, Baggage) who
also watched the alternative network analyzed (in this case, WE tv). See Singer Decl. at ¶ 29.
141 See Singer Decl. at ¶ 29 and Table 2. This figure, referred to as the “Secondary Duplication” percentage, reflects
the percentage of viewers of the alternative network analyzed (in this case, WE tv) who also watched the particular
GSN show analyzed (in this case, Baggage). See id. at ¶ 29.
142 See id. at ¶ 29 and Table 2. This figure, referred to as the “Both Duplication” percentage, reflects the combined
shared audience of both the alternative network analyzed (in this case, WE tv) and the particular GSN show
analyzed (in this case, Baggage) divided by the total number of unique viewers of both. See id. at ¶ 29.
143 See id. at ¶ 29 and Table 2.
144 See id. at ¶ 29 and Table 3-3. Dr. Singer also analyzed [REDACTED
]
18

Federal Communications Commission

DA 12-739

REDACTED VERSION

] and that the four GSN shows he analyzed are [REDACTED
] in product space to WE tv and other women’s
programming networks ([REDACTED
]) than they are to [REDACTED
], and even other networks that skew toward women, such as
[REDACTED
].145 In summary, Dr. Singer states that “there
appears to be a special relationship between the dating-related programs on GSN and WE tv.”146
26.
Third, GSN’s expert, Mr. Brooks, concludes that the extent of competition and audience
overlap between GSN, WE tv, and other female-oriented networks is evidenced by the fact that
[REDACTED
].147 Comparing
the second quarter of 2010 (before repositioning of GSN) with the second quarter of 2011 (after the
repositioning of GSN), Mr. Brooks finds that (i) GSN’s total-day (households) rating in the New York
DMA [REDACTED
];148 and (ii) WE tv’s total-day (households) rating in the New York DMA
[REDACTED
.149
150
151
152
153
154


145 See id. at ¶ 30
146 Id.
147 See GSN Complaint at ¶ 40; Brooks Decl. at ¶ III.3.
148 See Brooks Decl. at ¶ III.3.a.
149 See id. at ¶ III.3.b. [REDACTED
]
150 See id. at ¶ III.3.c.
151 See id. at ¶ III.3.d-e.
152 See id. at ¶ III.3.d.
153 See id.
154 See id. at ¶ III.3.e.
19

Federal Communications Commission

DA 12-739

REDACTED VERSION

].155
27.
Competition for Advertisers. GSN provides evidence that GSN and WE tv compete for
the same advertisers.156 GSN’s expert, Dr. Singer, provides evidence of substantial overlap among
advertisers for GSN and WE tv:157 (i) [REDACTED
]
of WE tv’s top 40 advertising accounts (weighted by expenditures on WE tv commercials)158 also
advertise on GSN;159 (ii) [REDACTED
] of GSN’s
top 40 advertising accounts (weighted by expenditures on GSN commercials) also advertise on WE tv;160
(iii) [REDACTED
] of all of WE tv’s advertising
accounts (weighted by expenditures on WE tv commercials) also advertise on GSN;161 and (iv)
[REDACTED
] of all of GSN’s advertising accounts (weighted
by expenditures on WE tv commercials) also advertise on WE tv.162 In addition, Dr. Singer provides a
“multivariate measure of distance” study whereby various networks were analyzed based on several
characteristics of their viewers, such as household size/age, gender, education, race, occupation, and
presence of children.163 Based on these viewer characteristics, Dr. Singer measured the relative distance
between GSN and WE tv as compared to the relative distance between GSN and a number of other cable
networks.164 WE tv was closer to GSN than [REDACTED
] networks analyzed, leading Dr. Singer to conclude that “viewers of GSN and viewers
of WE tv are relatively close in product space.”165
b.

Differential Treatment

28.
We also find that GSN has put forth evidence sufficient to demonstrate for purposes of
establishing a prima facie case of program carriage discrimination that Cablevision has treated GSN
differently “on the basis of affiliation or nonaffiliation” from Cablevision’s similarly situated, affiliated
networks.166 Cablevision distributes its affiliated WE tv network on an expanded basic tier to
approximately [REDACTED
] of its subscribers, and


155 See id.
156 See Singer Decl. at ¶ 31 (“Because rival cable networks are competing for advertising dollars, the perception of
advertisers informs Cablevision’s tiering policy. If Cablevision perceives GSN to be a threat to WE tv’s advertising
revenues, then Cablevision has an incentive to discriminate against GSN.”).
157 See id. at ¶ 33 and Table 3.
158 According to Dr. Singer, “giving advertisers who advertise more heavily with WE tv more weight makes sense
for the purposes of an overlap analysis; tapping one’s largest client is more significant than tapping one’s smallest
client.” Id. at ¶ 33 n.39.
159 See id. at ¶ 33 and Table 3; see also GSN Complaint at ¶ 41.
160 See Singer Decl. at ¶ 33 and Table 3; see also GSN Complaint at ¶ 41.
161 See Singer Decl. at ¶ 33 and Table 3.
162 See id.
163 See Singer Decl. at ¶¶ 34-39 and Table 5; see also GSN Complaint at ¶ 39.
164 See Singer Decl. at ¶¶ 34-39 and Table 5; see also GSN Complaint at ¶ 39.
165 See Singer Decl. at ¶ 38; see also GSN Complaint at ¶ 39.
166 Cablevision argues that its differential treatment of GSN is justified by various legitimate and non-discriminatory
reasons. See, e.g., Cablevision Answer at 48-57.
20

Federal Communications Commission

DA 12-739

REDACTED VERSION

such subscribers need not pay an additional fee to receive this programming network.167 Cablevision also
distributed its affiliated Wedding Central network on an expanded basic tier,168 although GSN states that
no other major distributor provided Wedding Central with this level of distribution.169 By contrast,
Cablevision customers wishing to receive GSN must subscribe to the “iO Sports and Entertainment Pak,”
for which subscribers must pay a fee of $6.95 per month in addition to the fees for purchasing an entry-
level package of digital cable programming and a digital cable box.170 According to GSN, approximately
[REDACTED
] percent of Cablevision’s [REDACTED
] subscribers in New York, New Jersey, and
Connecticut subscribe to this premium sports tier.171 In addition, GSN claims that Cablevision places all
of its affiliated cable networks (American Movie Classics (AMC), Fuse, Independent Film Channel, WE
tv), including its affiliated sports network (MSG), on a highly penetrated tier, whereas Cablevision’s
premium sports tier is occupied only by unaffiliated networks.172
c.

Harm to Ability to Compete Fairly

29.
GSN has put forth evidence sufficient to demonstrate for purposes of establishing a prima
facie case of program carriage discrimination that Cablevision’s decision to reposition GSN to a premium
sports tier and its disparate treatment of the network have unreasonably restrained GSN’s ability to
compete fairly.173 GSN claims that all of the harms discussed below resulting from the repositioning of
GSN to a premium sports tier have “constrain[ed] GSN’s ability to continue to grow – to develop itself as
a network, to make adequate investments in content, promotion, and marketing, and to engage staff and
talent – making it more difficult for GSN to compete effectively against other networks, including its
competitor WE tv.”174
30.
Loss of subscribers from repositioning results in reduced license fee revenue. GSN
provides declarations from its CEO and expert stating that, as a result of the repositioning of GSN to a
premium sports tier, GSN’s Cablevision subscribers fell by [REDACTED
], resulting in a loss of [REDACTED
] in annual license fee revenue.175
31.
Loss of subscribers from repositioning results in reduced advertising revenue. GSN
provides declarations from its CEO and expert estimating that the loss of [REDACTED
] Cablevision subscribers resulting from the
repositioning of GSN to a premium sports tier causes the following reduction in GSN’s annual advertising
revenues: [REDACTED


167 See GSN Complaint at ¶¶ 28, 44; Singer Decl. at ¶¶ 3, 18; see also Cablevision Answer at 76 (¶ 44).
168 See GSN Complaint at ¶¶ 28, 44; Singer Decl. at ¶¶ 3, 18; see also Cablevision Answer at 76 (¶ 44).
169 See GSN Complaint at ¶¶ 28, 44; Singer Decl. at ¶ 19.
170 See GSN Complaint at ¶¶ 28, 45; Goldhill Decl. at ¶ 14; Singer Decl. at ¶ 3.
171 See GSN Complaint at ¶ 45; Goldhill Decl. at ¶ 14; Singer Decl. at ¶ 18.
172 See GSN Complaint at ¶ 45; Singer Decl. at ¶ 19 and Table 1.
173 See GSN Complaint at ¶¶ 58-62; Brooks Decl. at ¶ IV; Goldhill Decl. at ¶¶ 15-17; Singer Decl. at ¶¶ 46-52.
Cablevision disputes that GSN has been unreasonably restrained in its ability to compete fairly. See, e.g.,
Cablevision Answer
at 57-61.
174 GSN Complaint at ¶ 62.
175 See Singer Decl. at ¶¶ 6, 47; see also GSN Complaint at ¶ 59; Goldhill Decl. at ¶ 15.
21

Federal Communications Commission

DA 12-739

REDACTED VERSION

].176 Accordingly, as a result of the repositioning of
GSN to a premium sports tier, GSN estimates it will lose a total of approximately [REDACTED
] annually in license and advertising revenue.177
32.
Loss of subscribers from repositioning impairs GSN’s ability to compete for advertisers.
GSN provides declarations from its CEO and experts stating that (i) the reduction in subscribers resulting
from the repositioning of GSN to a premium sports tier has a negative impact on the audience GSN has to
sell to national advertisers;178 (ii) the repositioning was particularly harmful because it occurred in the
New York market, where Cablevision is the dominant cable operator179 and a large number of advertising
executives are located;180 and (iii) advertising buyers have expressed concern about the unavailability of
GSN to Cablevision’s expanded basic subscribers.181
33.
Placement on a premium sports tier impairs GSN’s ability to compete for viewers. GSN
provides declarations from its experts stating that (i) the placement of GSN on a premium sports tier
reduces the opportunity for GSN to benefit from casual viewers (“channel surfers”);182 and (ii) the
placement of the female-oriented, non-sports GSN on a sports tier featuring male-oriented sports
programming (major league baseball, hockey, horse racing, golf, basketball, soccer, and wrestling) means
that no meaningful number of GSN’s viewers would be sufficiently interested in this unrelated sports
programming to pay an additional fee to receive GSN.183


176 See Goldhill Decl. at ¶ 16; see also GSN Complaint at ¶ 59; Singer Decl. at ¶ 48.
177 See GSN Complaint at ¶ 60; see also Goldhill Decl. at ¶ 15.
178 See Brooks Decl. at ¶ IV.5; see also Singer Decl. at ¶ 6.
179 See Singer Decl. at ¶ 51 ([REDACTED
]).
180 See Goldhill Decl. at ¶ 17 (“Cablevision’s conduct has been particularly harmful because it is a dominant cable
operator in the New York market, where a large number of advertising executives are based. These executives often
treat a service’s availability in their homes as a prerequisite to considering it as a meaningful contender for a share
of their advertising budgets. Thus, GSN’s loss of . . . Cablevision subscribers has damaged GSN even more than the
harm that it would suffer from the loss of an equal number of subscribers in a different market.”); Brooks Decl. at ¶
IV.5 (“New York is well known as the media capital of the U.S., the home base of many of the top advertising
agencies and buying groups. Distribution in New York and its suburbs (where many executives live) is considered
in the industry to be essential for a network to remain familiar to and front-of-mind among those making buying
decisions. Thus, effectively being ‘blacked out’ in a large portion of New York homes will have a disproportionate
effect on GSN's national viability as an advertising medium.”); see also GSN Complaint at ¶ 61; Singer Decl. at ¶
51.
181 See Goldhill Decl. at ¶ 17 (stating that, during GSN’s presentation to the lead advertising buyer for
[REDACTED
], the buyer questioned GSN about its lack of availability on
Cablevision systems and, similarly, the lead advertising buyer for [REDACTED
] expressed concern about the inaccessibility of GSN to Cablevision’s basic
service subscribers); see also GSN Complaint at ¶ 61.
182 See Brooks Decl. at ¶ IV.2 (stating that the opportunity to attract “channel surfers” provides “an important means
by which networks gain viewers, by attracting viewers who happen upon the network or who tune to it for a special
event or premiere”); Singer Decl. at ¶ 52 (“[C]able programming is an ‘experience good’ that can best be learned
about while surfing the channels. It is impossible to gain that experience if a network is available only on a sports
tier, to which a consumer must affirmatively subscribe. In contrast, Cablevision subscribers can gain experience
with WE tv casually, as that network is available to them without the need to subscribe to a sports tier.”).
183 See Brooks Decl. at ¶¶ I.2, IV.3; see also GSN Complaint at ¶¶ 45-46; Singer Decl. at ¶ 19.
22

Federal Communications Commission

DA 12-739

REDACTED VERSION

34.
Impaired ability to secure distribution agreements. In his declaration, GSN’s expert, Dr.
Singer, states that vertically integrated cable operators other than Cablevision currently carry both GSN
and WE tv on highly penetrated tiers and that these cable operators monitor Cablevision’s carriage
decisions.184 Thus, according to Dr. Singer, Cablevision’s decision to reposition GSN likely has a
negative influence on the decisions of other cable operators with respect to carriage of GSN.185
2.

Direct Evidence

35.
In addition to circumstantial evidence, GSN also provides what it claims to be direct
evidence of discrimination “on the basis of affiliation or nonaffiliation.”186 Specifically, GSN provides a
declaration from Derek Chang, Executive Vice President of Content Strategy and Development at
DIRECTV and representative of DIRECTV on GSN’s board of directors, setting forth the following facts
regarding carriage negotiations with Cablevision.187 On December 3, 2010, Cablevision notified GSN
that Cablevision would reposition GSN to a sports tier effective February 1, 2011.188 After receiving this
notification, GSN’s CEO asked Mr. Chang to contact Cablevision’s Chief Operating Officer (“COO”) to
persuade Cablevision to reconsider.189 In response to Mr. Chang’s inquiry, Cablevision’s COO asked Mr.
Chang to speak with Josh Sapan, President and COO of Cablevision’s programming subsidiary, Rainbow
Media Holdings (“Rainbow”).190 Mr. Chang states that, during his conversations with Mr. Sapan and
other Rainbow staff, “it was made clear to me that Cablevision would consider continuing GSN’s broad
distribution on Cablevision’s systems if DIRECTV would consider giving distribution to Cablevision’s
new service, Wedding Central.”191 Mr. Chang declined because DIRECTV had previously decided that
Wedding Central did not merit distribution on DIRECTV.192
3.

Conclusion

36.
Based on the foregoing, we find it appropriate to designate the captioned complaint on
the issues specified below for a hearing before an ALJ.193 While we question whether GSN’s alleged
direct evidence of discrimination, standing alone, is sufficient to establish a prima facie case, we need not
address this issue because GSN has put forth sufficient circumstantial evidence of discrimination “on the
basis of affiliation or nonaffiliation” to warrant referral of this matter to an ALJ. We emphasize that our
determination that GSN has offered sufficient evidence on each required element to meet the threshold for
establishing a prima facie case does not mean that we have found each evidentiary proffer set forth above


184 See Singer Decl. at ¶¶ 6, 49.
185 See id.
186 See GSN Complaint at ¶¶ 52-53; Chang Decl. at ¶¶ 3-7; see also supra ¶ 10 (discussing requirements for
establishing a prima facie case based on direct evidence of affiliation-based discrimination).
187 See Chang Decl. at ¶ 1. As discussed above, DIRECTV has an ownership interest in GSN. See supra n.25.
188 See Chang Decl. at ¶ 3; see also GSN Complaint at ¶ 25.
189 See Chang Decl. at ¶ 4; see also GSN Complaint at ¶ 26; Goldhill Decl. at ¶ 12.
190 See Chang Decl. at ¶ 5; see also GSN Complaint at ¶ 26.
191 Chang Decl. at ¶ 6; see also GSN Complaint at ¶ 27; Goldhill Decl. at ¶ 13.
192 See Chang Decl. at ¶ 6; see also GSN Complaint at ¶ 27.
193 The question of whether GSN has put forth evidence sufficient to warrant designation of this matter for hearing is
not an issue before the Presiding Judge. As required by the Commission’s Rules, to the extent Cablevision seeks
Commission review of our decision on this issue, such review, if any, shall be deferred until exceptions to the Initial
Decision in this proceeding are filed. See 47 C.F.R. § 1.115(e)(3).
23

Federal Communications Commission

DA 12-739

REDACTED VERSION

necessarily persuasive, nor have we weighed GSN’s evidence in light of rebuttal evidence offered by
Cablevision. At hearing, the ALJ will be able to fully weigh all evidence offered by the parties.

C.

Referral to ALJ or ADR

37.
Pursuant to Section 76.7(g)(2) of the Commission’s Rules, each party will have ten days
following release of this Order to notify the Chief, Enforcement Bureau and Chief ALJ, in writing, of its
election to resolve this dispute through ADR. The hearing proceeding will be suspended during this ten-
day period. In the event that both parties elect ADR, the hearing proceeding will remain suspended, and
the parties shall update the Chief, Enforcement Bureau and Chief ALJ on the first of each month, in
writing, on the status of the ADR process. If both parties elect ADR but fail to reach a settlement, the
parties shall promptly notify the Chief, Enforcement Bureau and Chief ALJ in writing, and the proceeding
before the ALJ will commence upon the receipt of such notification. If both parties elect ADR and reach
a settlement, the parties shall promptly notify the Chief, Enforcement Bureau, Chief ALJ, and Chief,
Media Bureau in writing, and the hearing designation will be terminated upon the Media Bureau’s order
dismissing the complaint becoming a final order. If only one party elects ADR and the other elects to
proceed with an adjudicatory hearing, then the hearing proceeding will commence the day after the ten-
day period has lapsed.
38.
Notwithstanding our determination that GSN has made out a prima facie case of program
carriage discrimination by Cablevision, we direct the Presiding Judge to develop a full and complete
record in the instant hearing proceeding and to conduct a de novo examination of all relevant evidence in
order to make an Initial Decision on each of the outstanding factual and legal issues. In addition, we
direct the Presiding Judge to make all reasonable efforts to issue his Initial Decision on an expedited
basis.194 In furtherance of this goal, the Presiding Judge may consider placing limitations on the extent of
discovery to which the parties may avail themselves.

IV.

ORDERING CLAUSES

39.
Accordingly,

IT IS ORDERED

, that pursuant to Section 409(a) of the Communications
Act of 1934, as amended, 47 U.S.C. § 409(a), and Sections 76.7(g) and 1.221 of the Commission’s Rules,
47 C.F.R. §§ 76.7(g), 1.221, the captioned program carriage complaint filed by Game Show Network,
LLC against Cablevision Systems Corporation is

DESIGNATED FOR HEARING

at a date and place to
be specified in a subsequent order by an Administrative Law Judge upon the following issues:
(a) To determine whether Cablevision has engaged in conduct the effect of which is to
unreasonably restrain the ability of GSN to compete fairly by discriminating in video
programming distribution on the basis of the complainant’s affiliation or non-affiliation
in the selection, terms, or conditions for carriage of video programming provided by
GSN, in violation of Section 616(a)(3) of the Act and/or Section 76.1301(c) of the
Commission’s Rules; and
(b) In light of the evidence adduced pursuant to the foregoing issue, to determine
whether Cablevision should be required to carry GSN on its cable systems on a specific


194 In the 2011 Program Carriage Order, the Commission adopted a rule directing the ALJ to release an initial
decision within 240 calendar days after one of the parties informs the Chief ALJ that it elects not to pursue ADR or,
if the parties have mutually elected to pursue ADR, within 240 calendar days after the parties inform the Chief ALJ
that they have failed to resolve their dispute through ADR. See 2011 Program Carriage Order, 26 FCC Rcd at
11509-10, ¶ 21; see also 47 C.F.R. § 0.341(f). While this rule does not apply to this complaint (see supra n.7), we
encourage the ALJ to make all reasonable efforts to comply with this deadline. Pursuant to Section 76.10(c)(2) of
the Commission’s Rules, a party aggrieved by the ALJ’s decision on the merits may appeal such decision directly to
the Commission in accordance with Sections 1.276(a) and 1.277(a) through (c) of the Commission’s Rules. 47
C.F.R. § 76.10(c)(2).
24

Federal Communications Commission

DA 12-739

REDACTED VERSION

tier or to a specific number or percentage of Cablevision subscribers and, if so, the price,
terms, and conditions thereof; and/or whether Cablevision should be required to
implement such other carriage-related remedial measures as are deemed appropriate.
40.

IT IS FURTHER ORDERED

, that pursuant to Section 4(i) of the Communications Act
of 1934, as amended, 47 U.S.C. § 154(i), and Section 76.7(g)(2) of the Commission’s Rules, 47 C.F.R. §
76.(g)(2), GSN and Cablevision

SHALL EACH FILE

with the Chief, Enforcement Bureau and Chief
ALJ, by

MAY 21, 2012

, its respective elections as to whether it wishes to proceed to Alternative Dispute
Resolution. The hearing proceeding

IS HEREBY SUSPENDED

during this time. If only one party
elects ADR and the other elects to proceed with an adjudicatory hearing, then the hearing proceeding will
commence on

MAY 22, 2012

. If both parties elect ADR, the hearing proceeding will remain suspended,
and GSN and Cablevision shall update the Chief, Enforcement Bureau and Chief ALJ on the first of each
month, in writing, on the status of the ADR process.195 Such updates shall be provided in writing and
shall reference the MB docket number and file number assigned to this proceeding.
41.

IT IS FURTHER ORDERED

that, pursuant to Section 4(i) of the Communications Act
of 1934, as amended, 47 U.S.C. § 154(i), in order to avail itself of the opportunity to be heard, GSN and
Cablevision, in person or by their attorneys,

SHALL EACH FILE

with the Commission, by

MAY 29,
2012

, a written appearance stating that it will appear on the date fixed for hearing and present evidence on
the issues specified herein, provided that, if both parties elect ADR, each party shall file such written
appearance within five calendar days after notifying the Chief, Enforcement Bureau and Chief ALJ that it
has failed to settle the dispute through ADR.196
42.

IT IS FURTHER ORDERED

that, if GSN fails to file a written appearance by the
deadline specified above, or fails to file prior to the deadline either a petition to dismiss the above-
captioned proceeding without prejudice, or a petition to accept, for good cause shown, a written
appearance beyond such deadline, the Administrative Law Judge

SHALL DISMISS

the above-captioned
program carriage complaint with prejudice for failure to prosecute and

SHALL TERMINATE

this
proceeding.
43.

IT IS FURTHER ORDERED

that, if Cablevision fails to file a written appearance by
the deadline specified above, or fails to file prior to the deadline a petition to accept, for good cause
shown, a written appearance beyond such deadline, its opportunity to present evidence at hearing will be
deemed to have been waived. If the hearing is so waived, the Presiding Judge expeditiously

SHALL
TERMINATE

this hearing proceeding and certify to the Commission the above-captioned program
carriage complaint for resolution based on the existing record.
44.

IT IS FURTHER ORDERED

that in addition to the resolution of issues (a) and (b) in
paragraph 39 above, the Presiding Judge shall also determine, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, whether an Order for Forfeiture shall be issued against


195 See supra ¶ 37.
196 In the 2011 Program Carriage Order, the Commission adopted a specific deadline for filing written appearances
in a program carriage complaint proceeding referred to an ALJ for an initial decision. See 2011 Program Carriage
Order
, 26 FCC Rcd at 11510-11, ¶ 22; see also 47 C.F.R. § 1.221(h)(1). As discussed above, this rule does not
apply to this complaint. See supra n.7. Thus, the general rule in Section 1.221(c) applies. See 47 C.F.R. § 1.221(c).
In light of the expedited basis of this hearing proceeding, the deadline for filing written appearances set forth in
Section 1.221(c) of the Commission’s Rules, 47 C.F.R. § 1.221(c), is waived and replaced with the deadlines set
forth above. In addition, Section 1.221(f) of the Commission’s Rules, 47 C.F.R. § 1.221(f), provides that a “fee
must accompany each written appearance filed with the Commission in certain cases designated for hearing.”
However, neither the Act nor our rules specify a fee for hearings involving program carriage complaints. See 47
C.F.R. § 1.1104; see also 47 U.S.C. § 158. Accordingly, neither GSN nor Cablevision is required to pay a fee in
connection with the filing of their respective appearances in this proceeding.
25

Federal Communications Commission

DA 12-739

REDACTED VERSION

Cablevision for each willful and/or repeated violation, except that the amount issued for any continuing
violation shall not exceed the amount specified in Section 503(b)(2)(A), 47 U.S.C. § 503(b)(2)(A), for
any single act or failure to act.
45.

IT IS FURTHER ORDERED

that for the purposes of issuing a forfeiture, this
document constitutes notice, as required by Section 503 of the Communications Act of 1934, as amended,
47 U.S.C. § 503.
46.

IT IS FURTHER ORDERED

that a copy of this Order shall be sent by Certified Mail -
Return Receipt Requested and regular first class mail to (i) Game Show Network, LLC, 2150 Colorado
Avenue, Santa Monica, CA 90404, with a copy (including a copy via e-mail) to Stephen A. Weiswasser,
Esq., Covington and Burling LLP, 1201 Pennsylvania Avenue, N.W., Washington, DC 20004-2401
(sweiswasser@cov.com); and (ii) Cablevision Systems Corporation, 1111 Stewart Avenue, Bethpage, NY
11714, with a copy (including a copy via e-mail) to Howard J. Symons, Esq., Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., 701 Pennsylvania Avenue, N.W., Suite 900, Washington, D.C. 20004
(HJSymons@mintz.com).
47.

IT IS FURTHER ORDERED

that the Chief, Enforcement Bureau, is made a party to
this proceeding without the need to file a written appearance, and she shall have the authority to
determine the extent of her participation therein.
48.

IT IS FURTHER ORDERED

that a copy of this Order or a summary thereof

SHALL

BE PUBLISHED

in the Federal Register.
49.
This action is taken pursuant to authority delegated by Sections 0.61 and 0.283 of the
Commission’s Rules, 47 C.F.R. §§ 0.61, 0.283.
FEDERAL COMMUNICATIONS COMMISSION
William T. Lake
Chief, Media Bureau
26

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.