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Verizon Telephone Cos. et al. v. Madison Square Garden, L.P., et al.

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Released: November 10, 2011

Federal Communications Commission

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Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Verizon Telephone Companies and
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File No. CSR-8185-P
Verizon Services Corp.,
)
Complainants,
)
)

v.
)
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Madison Square Garden, L.P. and
)
Cablevision Systems Corp.,
)
Defendants
)

MEMORANDUM OPINION AND ORDER

Adopted: November 9, 2011

Released: November 10, 2011

By the Commission:

I.

INTRODUCTION

1.
By this Memorandum Opinion and Order (“MO&O”), we deny an Application for
Review filed by MSG Holdings, L.P. (“MSG”; formerly Madison Square Garden, L.P.) and Cablevision
Systems Corporation (“Cablevision”) (MSG and Cablevision together, the “Defendants”)1 of the Media
Bureau’s (“Bureau”) Order released September 22, 2011.2 The Order found that Defendants violated
Section 628(b) of the Communications Act of 1934, as amended (the “Act”),3 and Section 76.1001(a) of
the Commission’s rules4 by withholding the high definition (“HD”) versions of the MSG and MSG+
Regional Sports Networks (“RSNs”) from Verizon Telephone Companies and Verizon Services
Corporation (collectively, “Verizon”) in the New York and Buffalo Designated Market Areas (“DMAs”).
The Order required MSG to enter into an agreement to license such programming to Verizon within 30
days of the release of the Order.5 For the reasons discussed below, we deny the Application for Review
and affirm the Bureau’s Order. In order to provide sufficient time for compliance, we grant MSG 15 days
after release of this MO&O to provide the subject programming to Verizon, unless the parties’ agreement
provides MSG a longer time period, in which case the agreed upon time period shall govern. We also
dismiss as moot Defendants’ Petition for Stay of the Bureau’s Order.6


1 See MSG Holdings, L.P. and Cablevision Systems Corporation, Application for Review, File No. CSR-8185-P
(filed Sept. 28, 2011) (“Application for Review”).
2 See Verizon Tel. Cos. et al., Order, DA 11-1594 (MB Sept. 22, 2011) (“Order”).
3 See 47 U.S.C. § 548(b).
4 See 47 C.F.R. § 76.1001(a).
5 See Order at ¶¶ 70, 83.
6 See MSG Holdings, L.P. and Cablevision Systems Corporation, Petition for Stay, File No. CSR-8185-P (filed Sept.
28, 2011) (“Petition for Stay”).

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II.

BACKGROUND

2.
Sections 628(b), 628(c)(1), and 628(d) of the Act grant the Commission broad authority
to prohibit “unfair acts” of cable operators, satellite cable programming vendors in which a cable operator
has an attributable interest, and satellite broadcast programming vendors that have the “purpose or effect”
of “hinder[ing] significantly or prevent[ing]” any multichannel video programming distributor (“MVPD”)
from providing “satellite cable programming or satellite broadcast programming to subscribers or
consumers.”7 In July 2009, Verizon filed a complaint alleging that Defendants’ withholding of the HD
versions of the MSG and MSG+ RSNs from Verizon in the New York and Buffalo DMAs violated these
provisions.8
3.
In January 2010, while Verizon’s complaint was pending, the Commission issued a
decision in a rulemaking proceeding (the “2010 Order”) interpreting the Commission’s statutory authority
to address “unfair acts” involving terrestrially delivered, cable-affiliated networks pursuant to Section
628(b).9 Relying on extensive evidence, including empirical studies, the Commission (i) established a
rebuttable presumption that an “unfair act” involving a terrestrially delivered, cable-affiliated RSN has the
purpose or effect of “significant hindrance” set forth in Section 628(b);10 and (ii) due to the growing
significance of HD programming to consumers and the inability of standard definition (“SD”)
programming to serve as an adequate substitute, concluded that it would analyze the HD version of a
network separately from the SD version with similar content for purposes of determining whether an
“unfair act” has the purpose or effect of “significant hindrance” set forth in Section 628(b).11 Thus, the
Commission concluded that in cases involving an RSN, withholding the HD version is rebuttably
presumed to cause “significant hindrance” even if an SD version of the network is made available to
competitors.12 In June 2011, in response to a challenge from the same Defendants here, the United States
Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) upheld the Commission’s decision in
substantial part, including the adoption of a rebuttable presumption of “significant hindrance” resulting from
the withholding of HD RSNs, such as MSG HD and MSG+ HD.13
4.
After conducting a proceeding that lasted over two years and involved over a thousand
pages of pleadings and studies, extensive discovery, multiple rounds of briefings, and multiple conferences
with the parties, the Bureau adopted a 61-page decision that applied the Commission’s interpretation of
Section 628(b) to the facts of this case and found that Defendants had violated this provision by withholding


7 See 47 U.S.C. § 548(b) (“[I]t shall be unlawful for a cable operator, a satellite cable programming vendor in which
a cable operator has an attributable interest, or a satellite broadcast programming vendor to engage in unfair methods
of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or to
prevent any multichannel video programming distributor from providing satellite cable programming or satellite
broadcast programming to subscribers or consumers.”); 47 U.S.C. § 548(c)(1); 47 U.S.C. § 548(d).
8 See Verizon Telephone Companies et al., Program Access Complaint, File No. CSR-8185-P (filed July 7, 2009)
(“Verizon Complaint”).
9 See Review of the Commission’s Program Access Rules and Examination of Programming Tying Arrangements,
First Report and Order, 25 FCC Rcd 746 (2010) (“2010 Order”), affirmed in part and vacated in part sub nom.
Cablevision Sys. Corp. et al. v. FCC
, 649 F.3d 695 (D.C. Cir. 2011) (“Cablevision II”).
10 See id. at 750, ¶ 8 and 782-83, ¶ 52.
11 See id. at 750-51, ¶ 9 and 784-85, ¶¶ 54-55.
12 See id. at 750-51, ¶ 9 and 785, ¶ 55.
13 See Cablevision II, 649 F.3d at 716-18.
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the MSG HD and MSG+ HD RSNs from Verizon.14 As a remedy for the violation of Section 628(b), the
Bureau ordered MSG to enter into an agreement to license MSG HD and MSG+ HD to Verizon on non-
discriminatory rates, terms, and conditions within 30 days of the release of the Order (i.e., by October 22,
2011) (the “agreement deadline”) and ordered that Cablevision shall not prevent or otherwise impede MSG
from entering into this agreement.15
5.
On September 28, 2011, Defendants filed with the Commission their Application for
Review as well as a Petition for Stay of the Order.16 On October 11, 2011, the Bureau released a decision
retaining the October 22, 2011 agreement deadline but staying the Order to the extent it would otherwise
require MSG to make MSG HD and MSG+ HD programming available to Verizon on or before
November 14, 2011.17 The Bureau explained that it took this action on its own motion to provide the
Commission an opportunity to consider Defendants’ Petition for Stay and Application for Review.18
6.
In their Application for Review, Defendants raise eight challenges to the Bureau’s Order.
First, Defendants claim that the Bureau interpreted the undefined term “significant hindrance” as used in
Section 628(b) in a way that is inconsistent with Commission and court precedent.19 Second, Defendants
claim that the Bureau unlawfully relied on the rebuttable presumption of “significant hindrance” pertaining
to HD RSNs adopted in the 2010 Order and subsequently upheld by the D.C. Circuit.20 Third,
Defendants claim that the Bureau arbitrarily and capriciously disregarded the results of surveys which
Defendants claim demonstrate that MSG HD and MSG+ HD are not factors driving consumer choice of
MVPD.21 Fourth, Defendants claim that the Bureau held Defendants to an impermissibly high standard in
rebutting the presumption and shifted the burden to Defendants to disprove liability.22 Fifth, Defendants
claim that the Bureau unlawfully disregarded substantial evidence pertaining to Defendants’ attempt to
rebut the presumption.23 Sixth, Defendants assert that the Order was not the product of reasoned
decisionmaking.24 Seventh, Defendants claim that the Bureau erred by finding Defendants’ withholding


14 See generally Order.
15 See id. at ¶¶ 69-71.
16 See generally Application for Review; Petition for Stay. Verizon filed Oppositions to the Stay Petition and to the
Application for Review. See Verizon, Opposition to Motion for Stay, File No. CSR-8185-P (filed Oct. 5, 2011);
Verizon, Opposition to Application for Review, File No. CSR-8185-P (filed Oct. 13, 2011) (“Verizon Opposition”).
Defendants filed a Reply to Verizon’s Opposition to the Application for Review. See MSG Holdings, L.P. and
Cablevision Systems Corporation, Reply, File No. CSR-8185-P (filed Oct. 24, 2011) (“Defendants’ Reply”).
17 See Verizon Tel. Cos. et al., Order, DA 11-1695 (MB Oct. 11, 2011).
18 See id. at ¶ 1.
19 See Application for Review at 3-6.
20 See id. at 6-8.
21 See id. at 8-14.
22 See id. at 14-16.
23 See id. at 16-19.
24 See id. at 19-21.
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to be “unfair.”25 Eighth, Defendants claim that the Order violates Defendants’ First Amendment rights.26
Defendants ask the Commission to reverse and vacate the Order.27

III.

DISCUSSION

7.
The Bureau’s Order found that Defendants violated Section 628(b) of the Act by
withholding from Verizon the HD versions of approximately half the hometown major league sports
teams in the New York and Buffalo DMAs.28 The Bureau found that Defendants’ withholding of the HD
versions of this non-replicable and “must have” local sports programming was an “unfair act” because, on
balance, the anticompetitive effects of the withholding outweighed any procompetitive benefits.29 The
Bureau also found that Defendants had failed to produce evidence that rebutted the presumption that the
withholding of this “must have” local sports programming “significantly hindered” Verizon.30 Additional
evidence supported the Bureau’s finding, including (i) statements from Cablevision executives stressing
the competitive significance of MSG HD and MSG+ HD, including their belief that Verizon’s inability to
offer these networks was one factor that would not only impede Verizon from obtaining new subscribers,
but also cause Verizon to lose subscribers it had already gained;31 (ii) Cablevision’s advertisements
emphasizing Verizon’s inability to offer MSG HD and MSG+ HD;32 (iii) survey evidence demonstrating
the importance of local sports programming to consumers in New York and Buffalo;33 and (iv) additional
support for the rebuttable presumption of “significant hindrance” pertaining to HD RSNs.34 For the
reasons discussed below and stated in the Bureau’s Order, we deny Defendants’ Application for Review
and affirm the Bureau’s Order.35 Below, we address Defendants’ challenges to the Order.

A.

The Bureau’s Interpretation of “Significant Hindrance” Was Proper and Consistent
with Commission Precedent

8.
Based on a thorough review of existing Commission and court precedent pertaining to the
term “significant hindrance,”36 the Bureau in the Order concluded that “rather than requiring an MVPD to
demonstrate complete foreclosure or that its commercial viability is in doubt, we believe this precedent
establishes that the salient issue in assessing ‘significant hindrance’ is whether an MVPD has been
hindered relative to its competitors and whether the hindrance is substantial enough to eliminate the


25 See id. at 22-23.
26 See id. at 24-25.
27 See id. at 1, 25.
28 See Order at ¶¶ 10, 49.
29 See id. at ¶¶ 24-41.
30 See id. at ¶¶ 42-68.
31 See id. at ¶ 25.
32 See id.
33 See id. at ¶ 47 n.224.
34 See id. at ¶¶ 47-48.
35 In their Petition for Stay, Defendants ask the Commission to stay the Order pending resolution of their
Application for Review. See Petition for Stay at 1-2. In light of our decision to deny Defendants’ Application for
Review
, we dismiss the Petition for Stay as moot.
36 See Order at ¶¶ 43-44.
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MVPD as a competitive choice for a meaningful number of consumers.”37 Defendants do not contend
that the Bureau’s decision misconstrues the statutory term “significant hindrance.” Rather, Defendants
claim that the first prong – “whether an MVPD has been hindered relative to its competitors” – could be
satisfied by any successful competitive initiative.38 Defendants’ criticism, however, ignores the fact that
Section 628(b) first requires the Commission to assess whether the challenged conduct is “unfair” before
it considers whether the conduct has resulted in “significant hindrance.”39 Determining whether
challenged conduct is “unfair” requires balancing the anticompetitive harms of the challenged conduct
against the procompetitive benefits.40 Many competitive initiatives, such as offering superior customer
service, are not “unfair” and thus the Commission will have no reason to consider whether such conduct
results in “significant hindrance” under Section 628(b).
9.
Defendants contend that the second prong – “whether the hindrance is substantial enough
to eliminate the MVPD as a competitive choice for a meaningful number of consumers” – is
impermissibly vague and allows the Bureau “unbounded discretion” to vary the requisite quantity of
affected consumers in individual cases.41 In the 2010 Order, the Commission specifically adopted a case-
by-case approach for assessing “significant hindrance” resulting from “unfair acts” involving terrestrially
delivered, cable-affiliated programming to allow for an evaluation of the facts presented in individual
cases.42 For the reasons stated by the Bureau, the record in this proceeding supports the conclusion that
the withholding of HD RSN programming eliminated Verizon as a competitive choice for a meaningful –
i.e., significant – number of consumers. Defendants’ withholding foreclosed Verizon from access to the
HD versions of approximately half the hometown major league sports teams in the New York DMA (New
York Knicks, New York Rangers, New York Islanders, and New Jersey Devils) and the Buffalo DMA
(Buffalo Sabres). The record further shows that a significant percentage of consumers in the New York
DMA and Buffalo DMA considered watching a sports team they closely follow to be important.43 The


37 Id. at ¶ 44.
38 See Application for Review at 4. This requirement, as originally adopted by the Commission in the 1993 Program
Access Order
, simply reflects the commonsense notion that a complainant alleging “significant hindrance” must be
harmed in the competitive marketplace. See Order at ¶ 43 (citing 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
, First Report and Order, 8 FCC Rcd 3359, 3374, ¶ 41 n.26 (1993) (“We
note that our analysis of the hindrance in the context of an alleged unfair practice will focus on whether the purpose
or effect of the practice was to hinder or harm the complainant relative to its competitors.”)).
39 See Order at ¶¶ 24-41; Verizon Opposition at 9-10.
40 See Order at ¶¶ 24-41.
41 See Application for Review at 4-5.
42 See 2010 Order, 25 FCC Rcd at 785-86, ¶ 56 (“We decline to adopt specific evidentiary requirements with respect
to proof, in a complaint brought under Section 628(b), that the defendant’s alleged activities have the purpose or
effect of hindering significantly or preventing the complainant from providing satellite cable programming or
satellite broadcast programming. The evidence required to satisfy this burden will vary based on the facts and
circumstances of each case and may depend on, among other things, whether the complainant is a new entrant or an
established competitor and whether the programming the complainant seeks to access is new or existing
programming.”).
43 See Order at ¶ 47 n.224 (citing Verizon Telephone Companies et al., Reply, File No. CSR-8185-P (filed Aug. 13,
2009), Exhibit 1 (Declaration of Chris Stella (Aug. 13, 2009) and Global Marketing Research Services Survey of
Paid Television Subscribers in NY and Buffalo Designated Market Areas (Aug. 7, 2009) (“Verizon/GMRS
Survey
”))).
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Bureau’s reliance on additional evidence put forth by Verizon supports the conclusion that withholding
HD RSN programming in this instance impacted a meaningful number of consumers and thus resulted in
“significant hindrance.”44 In adjudicating the program access complaint before it, the Bureau was under
no obligation to define the outer boundaries of what constitutes a “meaningful number” of consumers in
order to decide that the hindrance was “significant” on the particular facts of this case. Moreover, the
Bureau’s finding is fully consistent with (and supported by) the Commission’s prior determination that
withholding of HD RSN programming is rebuttably presumed to impact a meaningful number of
consumers and thus to result in “significant hindrance.”45 In upholding that decision, the D.C. Circuit
held that the “Commission advanced compelling reasons to believe that withholding RSN programming
is, given its desirability and non-replicability, uniquely likely to significantly impact the MVPD
market.”46
10.
Defendants also claim that the Bureau’s interpretation of “significant hindrance” is
inconsistent with the Bulk Billing Order,47 where the Commission found that bulk billing arrangements,
which allow an MVPD to provide service to every resident of a multiple dwelling unit (MDU) at a
significant discount from the usual retail rate, do not result in “significant hindrance.”48 We see no
inconsistency. As the Bureau explained in the proceeding below, the Commission’s finding of no
“significant hindrance” in the Bulk Billing Order was based on record evidence demonstrating that (i)
competing MVPDs wire MDUs for service even in the presence of bulk billing arrangements;49 and (ii)
many MDU residents who have access to an MVPD service through their landlord under a bulk billing


44 See id. at ¶¶ 47-48.
45 See 2010 Order, 25 FCC Rcd at 750-51, ¶¶ 8-9, 768, ¶ 32, 782-83, ¶ 52, 784-85, ¶¶ 54-55. The Commission
reached this conclusion based on its findings that RSNs have no good substitutes, are important for competition, are
non-replicable, and that SD is not an adequate substitute for HD programming. See Order at ¶¶ 3-4 (citing 2010
Order
, 25 FCC Rcd at 750-51, ¶¶ 8-9, 768, ¶ 32, 782-83, ¶ 52, 784-85, ¶¶ 54-55); General Motors Corporation and
Hughes Electronics Corporation, Transferors and The News Corporation Limited, Transferee
, Memorandum
Opinion and Order, 19 FCC Rcd 473, 535, ¶ 133 (2004) (stating that RSNs are unique because they “purchase
exclusive rights to show sporting events and sports fans believe that there is no good substitute for watching their
local and/or favorite team play an important game”). Among other things, the Commission relied on empirical
studies concluding that withholding of RSN programming from Direct Broadcast Satellite (“DBS”) operators caused
the percentage of television households subscribing to DBS to be 33-40 percent lower than what it otherwise would
have been. See Order at ¶ 3 (citing 2010 Order, 25 FCC Rcd at 750, ¶ 8, 768, ¶ 32, 782-83, ¶ 52). While
Defendants criticize the Order for failing to provide a similar quantitative assessment of the impact of withholding
in this case (see Application for Review at 5 n.17), the Commission specifically provided in the 2010 Order that it
“will not require litigants and the Commission staff to undertake repetitive examinations of our RSN precedent and
the relevant historical evidence. Instead, we recognize the weight of the existing precedent and categorical evidence
concerning RSNs by allowing complainants to invoke a rebuttable presumption that an unfair act involving a
terrestrially delivered, cable-affiliated RSN has the purpose or effect set forth in Section 628(b).” 2010 Order, 25
FCC Rcd at 782-83, ¶ 52.
46 Cablevision II, 649 F.3d at 716-17; see id. at 717 (“We likewise find reasonable the Commission’s decision to
extend its rebuttable presumption to RSN HD programming.”).
47 See Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units and Other Real Estate
Developments,
Second Report and Order, 25 FCC Rcd 2460 (2010) (“Bulk Billing Order”).
48 See Application for Review at 3-4; Defendants’ Reply at 2; see also Order at ¶ 43 (discussing Bulk Billing Order).
49 See Order at ¶ 43 (citing Bulk Billing Order, 25 FCC Rcd at 2470, ¶ 26 (“second MVPD providers wire MDUs
for video service even in the presence of bulk billing arrangements and [] many consumers choose to subscribe to
those second video services”)).
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arrangement nonetheless pay for service from an additional MVPD of their own choice.50 Here, by
contrast, there is no evidence demonstrating that any consumer (let alone “many”) in the New York or
Buffalo DMA is willing to subscribe to Verizon FiOS TV after having already subscribed to another
MVPD (e.g., Cablevision or DIRECTV) that offers MSG HD and MSG+ HD.51 The Commission also
found it “especially significant” in the Bulk Billing proceeding “that Verizon, which more than any other
commenter . . . argued that building exclusivity clauses deterred competition and other pro-consumer
effects, ma[de] no claim . . . that bulk billing hinders significantly or, as a practical matter, prevents it
from introducing its service into MDUs.”52 In short, there was no record that would have supported a
finding of “significant hindrance” in the Bulk Billing Order. Here, by contrast, Verizon has argued –
based on record evidence53 – that Defendants’ withholding of HD versions of “must have” RSN
programming has hindered significantly its ability to attract customers to subscribe to its FiOS TV
service.


50 See id.
51 See Verizon Opposition at 9. The Commission stated in the Bulk Billing Order that bulk billing “may deter a
second MVPD in some cases . . . because it limits the entrant’s patronage to residents in the MDU who are willing to
pay for the services of two MVPDs or who simply insist on receiving the services of the second MVPD for the
characteristics of that service (e.g., high-speed broadband for a home business).” 25 FCC Rcd at 2465, ¶ 15
(emphasis added). The only evidence cited in support of that proposition consisted of comments from an individual
who complained about having to “pay[] double” for a second MVPD service in addition to the service provided
under a bulk billing arrangement with her MDU. See Comments of Tammy Callarman (noting that she subscribed
to a second MVPD (Verizon), notwithstanding the existence of a bulk billing arrangement with Century
Communications). The Bulk Billing Order did not cite any evidence that bulk billing arrangements deter a
meaningful (i.e., significant) number of consumers from subscribing to a second MVPD service. To the contrary, it
relied on record evidence showing that “many” consumers choose to do so. Bulk Billing Order, 25 FCC Rcd at
2470, ¶ 26. The record in this case is very different. The presumption of “significant hindrance” applied by the
Bureau (see supra ¶ 9) was based on an empirical study conducted by the Commission regarding the significant
impact of withholding of RSN programming on consumers in two major markets. See Cablevision II, 649 F.3d at
716-17 (upholding presumption based on substantial evidence). Moreover, in this case, Verizon submitted
additional evidence supporting the Commission’s findings regarding this conduct, as well as statements from
Cablevision’s own Chief Operating Officer that Verizon’s inability to offer MSG HD and MSG+ HD would impede
Verizon from obtaining new subscribers and would cause Verizon to lose subscribers it had already gained. See
supra
¶ 7.
Defendants appear to read the Bulk Billing Order as supporting their argument that “significant hindrance” under
Section 628(b) cannot be found where the challenged “unfair act” makes a competing MVPD’s service “less
attractive” to consumers. See Application for Review at 3-4. We do not read the Bulk Billing Order as establishing
such a proposition, and – even if it did – we would reject that proposition as contrary to the D.C. Circuit’s decision
in Cablevision II. In that case, the court rejected Defendants’ argument that the “commercial attractiveness [of
withheld programming] has nothing to do with whether the MVPD can provide satellite programming.” Cablevision
II
, 649 F.3d at 708. The court recognized that the “lack of commercial attractiveness” due to withholding of “RSNs
that are both nonreplicable and highly coveted” can “significantly hinder” a competing MVPD by, for instance,
hindering its ability to compete for baseball fans. Id.; see also Order at ¶ 44 (noting that the Cablevision II court
“explained that when an MVPD is denied access to ‘programming that customers want and that competitors are
unable to duplicate – like the games of a local team selling broadcast rights to a single sports network – competitor
MVPDs will find themselves at a serious disadvantage when trying to attract customers away from the incumbent
cable company.’”) (quoting Cablevision II, 649 F.3d at 708).
52 Bulk Billing Order, 25 FCC Rcd at 2470, ¶ 26.
53 See supra ¶ 7.
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11.
Defendants also claim that the D.C. Circuit in Cablevision II held that a lack of
commercial attractiveness resulting from withholding could cause “significant hindrance” only where (i)
an MVPD is deprived of all games of a local professional team, thus rendering expansion
“uneconomical”;54 and (ii) the withholding makes “it completely impossible for competitors to enter or
survive in a market.”55 On the contrary, the court merely provided illustrative examples of how a lack of
commercial attractiveness could result in “significant hindrance.”56 Moreover, Defendants’ reading of
Cablevision II, as the Bureau noted, is inconsistent with the plain language of Section 628(b) as well as
court and Commission precedent because it would require a showing of complete foreclosure.57 The D.C.
Circuit in Cablevision II specifically rejected the claim that “significant hindrance” requires a showing of
complete foreclosure, stating that “[t]he problem with petitioners’ argument is that it wrongly assumes an
MVPD’s lack of commercial attractiveness will never prevent or significantly hinder it from providing
satellite programming.”58



54 See Application for Review at 5; Cablevision II, 649 F.3d at 708. Defendants claim that Verizon is not deprived of
“all” the games of a local professional team because Verizon has access to the SD versions of MSG and MSG+. See
Application for Review
at 5. But, as the Bureau explained, the Commission in the 2010 Order determined that the
SD and HD versions of the same network are not substitutes. See Order at ¶¶ 4, 49; 2010 Order, 25 FCC Rcd at
784-85, ¶ 54. The D.C. Circuit affirmed the Commission’s decision on this issue. See Cablevision II, 649 F.3d at
717. Moreover, the withholding in the current case is even more egregious than that described by the D.C. Circuit in
Cablevision II because Verizon is deprived of the HD games of five local professional teams, not merely one team.
See id. at 708.
55 Application for Review at 5; see Cablevision II, 649 F.3d at 709.
56 See Cablevision II, 649 F.3d at 708-09. In fact, the D.C. Circuit has upheld the Commission’s finding that every
exclusive contract between a cable operator and an owner of an MDU “significantly hinders” MVPDs even though
there was no finding that these contracts rendered expansion “uneconomical” or rendered it impossible for
competitors to enter or survive in the video distribution market. See Nat’l Cable & Telecomm. Ass’n v. FCC, 567
F.3d 659 (D.C. Cir. 2009); Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units
and Other Real Estate Developments,
Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd
20235 (2007) (“MDU Order”); see also Verizon Opposition at 8 (“If Cablevision were correct in asserting that a
competitor’s competitive viability is sufficient to bar a finding of significant hindrance, then exclusion from serving
a significant number of consumers living in MDUs would not be enough — so long as those providers were able to
attract enough other consumers to stay in the market.”).
57 See Order at ¶¶ 43-44 (explaining that Section 628(b), which prohibits “unfair acts” that have the purpose or
effect “to hinder significantly or to prevent” an MVPD from providing programming to subscribers or consumers,
indicates that Congress intended “significant hindrance” to mean something less than complete foreclosure, or
prevention, from providing service); see also Cablevision II, 649 F.3d at 708-09. Defendants also contend that the
Bureau ignored the Commission’s previous statement that “significant hindrance” is a “higher standard” than
impairment. See Application for Review at 6; Defendants’ Reply at 1-2. The Bureau, however, appropriately
considered this guidance in its assessment of the Commission precedent pertaining to the meaning of “significant
hindrance.” See Order at ¶ 43 (citing 2010 Order, 25 FCC Rcd at 781, ¶ 51 n.200). While Defendants argue that
the Commission’s statement means that a complainant cannot be “significantly hindered” if it is able to “viably
compete” (see Application for Review at 6; Defendants’ Reply at 2), this argument again equates “significant
hindrance” with complete foreclosure or “prevention” from providing service, an equation which the Bureau
appropriately rejected. See Order at ¶¶ 43-44.
58 Cablevision II, 649 F.3d at 708. Moreover, despite Defendants’ contrary claim, the D.C. Circuit never stated or
implied that a complainant can demonstrate “significant hindrance” only by showing that it is “completely
impossible for competitors to enter or survive in a market.” See Application for Review at 5. Rather, the D.C.
Circuit noted that Defendants conceded that the “Commission can in principle regulate terrestrial withholding when
such withholding completely prevents an MVPD from competing, thus preventing that MVPD from providing
(continued….)
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B.

The Bureau’s Reliance on the Rebuttable Presumption of “Significant Hindrance”
Pertaining to HD RSNs Was Proper

12.
Defendants also claim that the Bureau unlawfully relied on the rebuttable presumption of
“significant hindrance” pertaining to HD RSNs adopted in the 2010 Order and subsequently upheld by the
D.C. Circuit.59 We find that the Bureau thoroughly addressed and correctly rejected Defendants’ claims
that it was inappropriate to apply the rebuttable presumption in this case.60 Accordingly, we uphold the
Bureau’s decision on this point.61 While Defendants contend that the Bureau should have taken their
claims regarding the applicability of the rebuttable presumption into account in determining the “quantum
of evidence needed to rebut the presumption,”62 the Bureau properly explained that Defendants’ claims
did not in any way undermine the rebuttable presumption established by the Commission.63

C.

The Bureau’s Analysis of Defendants’ Consumer Surveys Was Proper

13.
Defendants claim that the Bureau arbitrarily and capriciously disregarded the results of
two surveys which Defendants claim demonstrate that MSG HD and MSG+ HD are not factors driving
consumer choice of MVPD.64 The Bureau, however, thoroughly reviewed the methodology underlying
(Continued from previous page)


satellite programming.” Cablevision II, 649 F.3d at 709. Based on this concession, the D.C. Circuit explained that
Defendants “have no basis for arguing that section 628 unambiguously precludes the Commission from regulating
where it has evidence that such withholding ‘hinder[s] significantly,’ an MVPD from competing with the incumbent
cable operator to deliver satellite programming to customers.” Id. (emphasis in original) (citations omitted).
59 See Application for Review at 6-8; Order at ¶¶ 46-49; see also Cablevision II, 649 F.3d at 716-18; 2010 Order, 25
FCC Rcd at 750-51, ¶¶ 8-9, 782-85, ¶¶ 52-55.
60 See Order at ¶ 49; see also id. at ¶¶ 47-48.
61 See id. at ¶ 49; see also id. at ¶¶ 47-48. We note that Defendants contend that a statement in one of Verizon’s
pleadings in this proceeding concedes that the “must have” component of the programming at issue is the content of
the games, rather than the format. See Application for Review at 7 (citing Verizon Telephone Companies et al.,
Reply, File No. CSR-8185-P (filed Aug. 13, 2009), at 17). In fact, as the Bureau noted in the Order, Verizon later in
this proceeding asserted that “[t]he record confirms that the HD format of MSG and MSG+ is distinct from the
standard definition feed, and that there is strong independent consumer demand for HD programming generally, and
HD regional sports programming in particular.” Reply Brief of Verizon, File No. CSR-8185-P (filed Oct. 22, 2010),
at 6; see Order at ¶ 77. In any event, Verizon’s initial statement is insufficient to undermine the Commission’s
conclusion in the 2010 Order, reached in the context of a rulemaking proceeding and subsequently upheld by the
D.C. Circuit, that the SD and HD versions of the same network are distinct and are not considered adequate
substitutes by consumers. See 2010 Order, 25 FCC Rcd at 750-51, ¶ 9, 784-85, ¶¶ 54-55; Cablevision II, 649 F.3d
at 717.
We also reject Defendants’ claim that the Bureau “disregard[ed]” the Owen Study pertaining to bundling. See
Application for Review
at 7. As the Bureau explained, neither the Owen Study nor any other submission in the
record provided “empirical data . . . to support the claim that bundling of video, voice, data, and wireless service
shrinks the importance of HD RSNs to consumers in selecting a video provider.” Order at ¶ 64.
62 See Application for Review at 8; see also Defendants’ Reply at 3.
63 See Order at ¶ 49.
64 See Application for Review at 8-14; see Defendants’ Supplement in Response to Verizon’s Late-Filed Consumer
Survey, File No. CSR-8185-P (filed March 15, 2010) (“Defendants’ Supplement”), Exhibit A (Declaration of Leslie
Shifrin (March 15, 2010)) (“Shifrin Decl.”), Exhibit B (“Radius Global Market Research – Market Research
Assessing Reasons for Choice of Television Provider”) (“Radius Survey”), Exhibit C (“OTX Online Testing
Exchange Assessing the Impact of Verizon Offering MSG HD/MSG+ HD on Verizon Customer Acquisition”)
(“OTX Survey”); see also Defendants, Answer to Verizon’s Supplement to Program Access Complaint, File No.
(continued….)
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each of these surveys, considered the expert opinions presented by both sides, and explained in detail why
each survey was materially flawed and thus too unreliable to support the factual propositions for which it
was offered.65
14.
With respect to the Radius Survey, while the Bureau identified several fundamental
problems with the survey,66 Defendants take issue with only two.67 First, as the Bureau noted, the Radius
Survey
did not provide the actual text of the questions and probing techniques used for the survey.68 The
Bureau explained that this omission rendered it “impossible to assess whether the probing questions asked
were biased or misleading and the nature and extent of the probing used to elicit responses.”69
Defendants claim that the non-directive probing technique is well-established in the industry and
recognized as a means of guarding against bias, thus the Bureau should have assumed that none of the
questioning and probing here were biased.70 As the Bureau explained, however, the Radius Survey offers
no basis on which the Bureau could verify this claim without the actual text of the questions and probing
techniques used.71 Second, the Bureau explained that the Radius Survey demonstrates, at most, that MSG
HD and MSG+ HD are not “top of mind” considerations, but that this does not necessarily mean that
these networks are not significant to many consumers.72 Defendants claim that, in evaluating the
evidence, the Bureau was nonetheless required to give weight to the Radius Survey because the non-
(Continued from previous page)


CSR-8185-P (filed Oct. 13, 2010) (“Defendants’ Post-Discovery Answer to Supplement”), Exhibit G (“Win-Back
Survey
”).
65 See Order at ¶¶ 54-55 (discussing Radius Survey); id. at ¶¶ 56-58 (discussing OTX Survey); id. at ¶¶ 59-60
(discussing Win-Back Survey). Defendants do not challenge the Bureau’s findings regarding the Win-Back Survey.
66 See Order at ¶ 55.
67 See Application for Review at 8-9. Defendants contend that the Bureau was wrong in characterizing one of their
experts (Dr. Scott) as supporting the Bureau’s conclusions on two matters. See Application for Review at 12 n.55.
For example, Defendants contend that the Bureau was wrong in characterizing Dr. Scott as supporting the
conclusion that the Radius Survey does not directly address the key issue of the impact of the lack of MSG HD and
MSG+ HD on the willingness of consumers to choose Verizon. See Order at ¶ 55. Dr. Scott, however, specifically
stated that the methodology used in the Radius Survey “does not address the question of whether or not consumers
would switch subscription television providers in order to receive MSG HD or MSG+ HD . . . .” Defendants’ Post-
Discovery Answer to Supplement
, Declaration of Professor Carol A. Scott (Oct. 12, 2010), at ¶ 6(b) (“Scott Decl.”).
In any event, regardless of whether Dr. Scott supports the Bureau’s conclusions on these matters, the Bureau’s
conclusions were proper and amply supported by the record. See Order at ¶ 55.
68 See Order at ¶ 55. Defendants contend that the Radius Survey includes a list of “[k]ey questions asked,” but in
fact it provides only a broad outline of the subject matter of the questions. See Application for Review at 8; Order at
¶ 55; Radius Survey at 2. With respect to probing questions, Defendants concede that the “actual text of probing
questions was not included.” See Application for Review at 9.
69 Order at ¶ 55.
70 See Application for Review at 9.
71 See Order at ¶ 55. Defendants also contend that the Bureau does not explain how a survey questioner could use
probing techniques to induce a respondent not to mention a factor (such as MSG HD and MSG+ HD) that is
important to them. See Application for Review at 9. Because the actual text of the questions and probing techniques
were not provided, the Bureau could not verify, for example, whether questioners suggested factors other than MSG
HD and MSG+ HD for respondents to consider. Moreover, while the Radius Survey conclusorily asserts that
“[q]uality control procedures were implemented . . . including explicit interviewing instructions,” these instructions
were not submitted to the Bureau. See Radius Survey at 3.
72 See Order at ¶ 55.
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directive probing ensured that respondents would dig below their “top of mind” considerations.73 Again,
however, the Bureau explained that there was no basis in the record to assess the extensiveness of the
probing used to elicit responses, or whether the probing was biased or misleading.74 In sum, the Bureau
properly concluded that the survey was too unreliable to rebut the presumption of “significant hindrance.”
15.
Defendants also contend that the Bureau erred by failing to consider the results of the
OTX Survey, which sought to assess whether the availability of MSG HD and MSG+ HD impacts whether
consumers will “consider” switching to Verizon FiOS.75 We find no error because the Bureau considered
the OTX Survey, correctly determined it was unreliable, and thus properly gave it no weight.76 The OTX
Survey
was designed to present two groups of survey respondents with written offers for a Verizon FiOS
bundle of voice, video, and Internet service, with the only difference between the offers being the
presence or absence of MSG HD and MSG+ HD.77 The Bureau found a fundamental problem with the
survey design in that, while the written offer presented to one group (the Test Group) stated that MSG HD
and MSG+ HD were available, the written offer presented to the other group (the Control Group) also
implied that MSG HD and MSG+ HD were available.78 We agree with the Bureau’s finding that, because
the offers presented to both groups either stated or implied that MSG HD and MSG+ HD were likely
available, the survey was unreliable.79


73 See Application for Review at 9.
74 See Order at ¶ 55. Defendants’ experts likewise assert that the probing conducted was “exhaustive,” but the
Radius Survey provides no basis to assess the adequacy of the probing. See Defendants’ Reply to Verizon’s
Response to Motion for Protective Order and to Supplement the Record, File No. CSR-8185-P (filed April 6, 2010),
Exhibit A (Declaration of Leslie Shifrin (April 6, 2010) at ¶ 13) (“Shifrin Reply Decl.”); Defendants’ Post-
Discovery Answer to Supplement
, Declaration of Professor Eric T. Bradlow (Oct. 11, 2010), at ¶ 19 (“Bradlow
Decl.”) and Declaration of Professor Dilip Soman (Oct. 11, 2010), at ¶ 16 (“Soman Decl.”). Moreover, the Bureau
explained that under the questions posed, it is possible that some respondents simply never thought of the possibility
that they might lose MSG HD or MSG+ HD programming. See Order at ¶ 55. Thus, even apart from the
fundamental flaws in the Radius Survey that rendered it unreliable, the Bureau properly found that the survey did not
support the factual propositions for which it was offered. See id.
75 See Application for Review at 9-11; see OTX Survey at 2.
76 See Order at ¶¶ 56-57.
77 See id. at ¶ 56; OTX Survey at 1. Defendants’ experts stated that, because the only difference between the offers
presented was the availability of MSG HD and MSG+ HD, any statistical difference in responses between the
groups to the question of whether they would “consider” switching based on the offer can be attributed to the
presence or absence of MSG HD and MSG+ HD. See Shifrin Decl. at ¶¶ 9-10; Soman Decl. at ¶ 15(d); Scott Decl.
at ¶ 14; see also OTX Survey at 1.
78 See Order at ¶ 57 (noting that the offer presented to the Control Group included a “reference to ‘tons of sports,
including all 9 NY sports teams’ [that] appeared directly after a reference to ‘[m]ore than 335 all-digital channels,
and over 70 in HD,’” thereby misleadingly implying that MSG HD and MSG+ HD were available). Defendants
claim that the Bureau did not consider the opinions of their experts that the offer presented to the Control Group was
biased in favor of Verizon by implying that no HD sports were offered. See Application for Review at 13; Shifrin
Decl. at ¶ 14; Shifrin Reply Decl. at ¶ 24; Bradlow Decl. at ¶ 20; Soman Decl. at ¶ 17. In fact, the Bureau properly
concluded the opposite. See Order at ¶ 57. That is, by referring to sports directly after a reference to HD channels,
the offer implies that the sports programming was offered in HD. See id.; see also Verizon, Response to
Defendants’ Motion for Protective Order and to Supplement the Record, File No. CSR-8185-P (filed March 25,
2010), at 4-5.
79 See Order at ¶ 57.
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16.
We reject Defendants’ argument that the written offer presented to the Control Group
was appropriate because it allegedly mirrors Verizon’s real-world advertisements.80 The Bureau found
that the first page of this offer mirrored Verizon’s real-world advertisements only to the extent that neither
emphasize the lack of MSG HD and MSG+ HD.81 The Bureau explained, even if Verizon’s real-world
advertisements were as misleading as the written offer presented to the Control Group,82 then this may
entice some consumers to “consider” switching, which is precisely what the OTX Survey asked
respondents.83 We agree with the Bureau, however, that before real-world consumers choose to switch
video service providers, they are likely to compare the offerings of different video providers (which were
not presented to the survey respondents here) and to ensure that the video service provider they select has
the channels and features they desire.84 Defendants claim that because survey respondents were presented
with Verizon’s channel line-up, they had every opportunity to ensure that their desired channels were
offered.85 But, the OTX Survey did not ask whether respondents would actually switch providers based on
the offer presented. Rather, it asked Control Group respondents whether they would “consider”
switching.86 As the Bureau explained, when presented with such a limited question and the misleading
survey offer, there was no reason for respondents to proceed past the first page to the channel line-up
because the offer implied that MSG HD and MSG+ HD were available.87 In the real world, those
respondents who might “consider” switching will likely ensure that their prospective video service
provider has all of the channels and features they desire before actually switching.88
17.
Defendants also claim that the Order is inconsistent in criticizing the written offer
presented to the Control Group for failing to indicate to respondents that MSG HD and MSG+ HD were
not available while at the same time noting that overemphasizing the lack of a network may bias the
study.89 We see no inconsistency. To the contrary, we agree with the Bureau that in order to obtain


80 See Application for Review at 10.
81 See Order at ¶ 57. This is consistent with the OTX Survey and the statements of Defendants’ experts. Neither the
OTX Survey nor Defendants’ experts state that the first page of the offer presented to the Control Group is identical
to Verizon’s real-world advertisements. Rather, the OTX Survey and Defendants’ experts state that the first page of
the offer presented to the Control Group mirrors Verizon’s real-world advertisements only to the extent that neither
emphasize the lack of MSG HD and MSG+ HD and that both include the tag line “tons of sports.” See OTX Survey
at 1; Shifrin Decl. at ¶ 14; Shifrin Reply Decl. at ¶ 21; Bradlow Decl. at ¶ 20; Soman Decl. at ¶ 17.
82 The Bureau found the offer presented to the Control Group to be misleading because it implied that Verizon offers
all local sports in HD. The Bureau did not reach this conclusion based on the failure of the offer (consistent with
Verizon’s real-world advertisements) to emphasize the lack of MSG HD and MSG+ HD. Rather, the Bureau found
the offer to be misleading because the “reference to ‘tons of sports, including all 9 NY sports teams’ appeared
directly after a reference to ‘[m]ore than 335 all-digital channels, and over 70 in HD,’” which likely misled some
Control Group respondents to believe that MSG HD and MSG+ HD were available. See Order at ¶ 57.
83 See id. at ¶ 57 n.282; OTX Survey at 2.
84 See Order at ¶ 57 n.282.
85 See Application for Review at 10-11.
86 We note that the Bureau stated that the OTX Survey “sought to isolate the key variable at issue in this case – the
impact of the lack of MSG HD and MSG+ HD on the willingness of consumers to choose Verizon.” See Order at ¶
58 (emphasis added). In fact, the OTX Survey sought only whether respondents would “consider” switching, not
whether they would choose Verizon. See OTX Survey at 2.
87 See Order at ¶ 57.
88 See id. at ¶ 57 n.282.
89 See Application for Review at 9-10.
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reliable and meaningful results, the offer presented to the Control Group should have provided
respondents with an adequate indication that MSG HD and MSG+ HD were not available so that they
could make a sufficiently informed assessment of the offer. The Bureau properly recognized, however,
that indicating that the HD programming is not available requires a careful balance to avoid
overemphasizing the negative aspects of lacking these networks to avoid biasing the study.90 There was
no reason to determine whether such a balance had been struck here, however, because the offer presented
to the Control Group misleadingly implied that these networks were in fact available, thereby rendering
the OTX Survey unreliable.
18.
Defendants also claim that the Bureau failed to consider the similar results of the surveys
submitted by Defendants,91 but the Bureau properly addressed this issue.92 Defendants further claim that
the Bureau did not consider the opinions put forth by Defendants’ experts,93 but the Order demonstrates
that the Bureau considered and weighed the opinions provided by both Defendants’ and Verizon’s experts
in reaching its conclusion that the surveys were materially flawed and thus unreliable for their intended
purpose.94 Defendants also take issue with the Bureau’s conclusion that Defendants’ surveys, which
purport to demonstrate that the availability of MSG HD and MSG+ HD is not a factor for consumers
when choosing an MVPD, conflict with Defendants’ strategy of using MSG HD and MSG+ HD as a
competitive differentiator and stressing the importance of MSG HD and MSG+ HD in their public
statements and their advertising.95 The Bureau held that the contradiction between the survey results and
Defendants’ real-world actions and statements further supports the conclusion that the surveys contain
significant flaws and deficiencies that render them unreliable.96 Defendants claim that there is no
contradiction because the availability of MSG HD and MSG+ HD might be important to a “small group”
of consumers.97 That is not, however, what Defendants’ flawed surveys concluded.98 Thus, the Bureau
properly concluded that the survey results conflict with Defendants’ real-world actions and statements


90 See Order at ¶ 57 n.283.
91 See Application for Review at 11-12.
92 See Order at ¶ 52 n.255 (“Because all three of these surveys contain significant flaws and deficiencies, and we do
not know what other evidence Defendants chose not to present, we assign no significance to the fact that the three
studies lead to convergent results.”).
93 See Application for Review at 12-13.
94 See Order at ¶¶ 54-60.
95 See Application for Review at 13-14; Order at ¶¶ 17 n.87, 25-26, 53. The Bureau noted that, if consumers truly
attach no significance to the availability of MSG HD and MSG+ HD, as Defendants’ surveys purport to show, then
there appears to be no reason for Defendants to withhold these networks from Verizon. See Order at ¶ 53. Rather,
the Bureau explained, Defendants could instead benefit by licensing this content to Verizon and earning increased
licensing fees and advertising revenues. See id.
96 See Order at ¶ 53.
97 Application for Review at 14.
98 See Radius Survey at 1 (concluding that the availability of local sports in HD is [REDACTED
] for consumers when choosing a video provider); OTX Survey at 1
(concluding that Verizon’s ability to offer MSG HD and MSG+ HD would not result in “any meaningful increase in
customers”); Defendants’ Post-Discovery Answer to Supplement at 55 and Exhibit G at 2 (concluding that, in
response to the question of why respondents decided to leave Verizon FiOS TV service and subscribe to Cablevision
instead, only a [REDACTED
]).
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stressing the importance of MSG HD and MSG+ HD, thus providing additional support for the
conclusion that the surveys contain significant flaws and deficiencies that render them unreliable.99 Even
if there was no conflict between the survey results and Defendants’ real-world actions, however, the
significant flaws and deficiencies noted by the Bureau stand on their own without this additional support.

D.

The Bureau Appropriately Applied the Rebuttable Presumption of “Significant
Hindrance” Pertaining to HD RSNs

19.
Defendants contend that the quantum of evidence required to defeat a rebuttable
presumption is low but the Bureau held Defendants to an impermissibly high standard.100 We disagree.
While the D.C. Circuit held that the rebuttable presumptions adopted in the 2010 Order shift only the
burden of production,101 a defendant cannot meet this burden by producing just any evidence, no matter
how unpersuasive.102 Indeed, such a standard would effectively nullify the presumption.103 Rather, as
court and Commission precedent make clear, the evidence put forth to rebut a presumption must be
substantial,104 sufficient,105 persuasive,106 or exculpatory,107 and not amount to merely “general allegations
and inconclusive evidence.”108 Consistent with the D.C. Circuit’s decision, the Bureau thoroughly


99 For example, the Bureau noted that (i) Cablevision’s Chief Operating Officer (“COO”) stated that one of the
“factors he believed would slow or reverse any subscriber flow to FiOS” was that “FiOS’ video product lacks key
components, specifically the HD formats of MSG and Fox Sports NY [now MSG Plus]”; (ii) in response to
questions regarding how Cablevision is competing with FiOS, Cablevision’s COO emphasized that for “four of the
nine professional sports teams in New York[, i]f you want to see them in HD, you have to get them from us”; and
(iii) an internal Cablevision memo specifically listed Verizon’s lack of MSG HD and MSG+ HD as one of the
factors that distinguishes Cablevision from Verizon. Order at ¶ 25. In addition, the Bureau noted that Cablevision
has emphasized in advertisements in various media both its ability to offer MSG HD and MSG+ HD and Verizon’s
inability to offer these same networks, thus demonstrating the importance of these networks. See id.
100 See Application for Review at 14-16 (stating that “a party need only show that there is a question of fact regarding
the subject matter of the presumption”); Defendants’ Reply at 3.
101 See Cablevision II, 649 F.3d at 716 (“Reviewing the Commission’s order, we think it clear that its rebuttable
presumptions shift only the burden of production.”).
102 See Verizon Opposition at 4, 16.
103 See 2010 Order, 25 FCC Rcd at 782-83, ¶ 52 (establishing the rebuttable presumption “recognize[s] the weight
of the existing precedent and categorical evidence concerning RSNs” and avoids “requir[ing]litigants and the
Commission staff to undertake repetitive examinations of our RSN precedent and the relevant historical evidence”).
104 See Harlem Taxicab Ass’n v. Nemesh, 191 F.2d 459, 461 (D.C. Cir. 1951) (“When substantial evidence contrary
to a presumption is introduced, . . . ‘the presumption falls out of the case . . . .’”) (emphasis added, citations
omitted).
105 See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 288 (3d Cir. 2006) (“the presumption shifts the burden
of producing sufficient evidence to rebut the presumed fact”) (emphasis added).
106 See Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
107 See Garvey v. National Transp. Safety Bd., 190 F.3d 571, 579 (D.C. Cir. 1999).
108 See Continental Cablevision of New Hampshire, Inc., Memorandum Opinion and Order, 96 F.C.C.2d 926, ¶ 5
(1984) (“general allegations and inconclusive evidence are insufficient to overcome a presumption of adequate
signal quality”); see also New England Video, Keene, N.H. Request for Waiver of Section 74.1103 of the
Commission’s Rules
, Memorandum Opinion and Order, 7 F.C.C.2d 231, ¶ 3 (1967) (“Petitioner’s general allegations
concerning the transmissions of WRLP fall far short of the showing required to overcome the presumption that an
adequate signal is provided the community.”).
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reviewed the evidence put forth by Defendants and properly concluded that it was insufficient to rebut the
presumption.
20.
Defendants claim that the Bureau shifted the burden to Defendants to disprove liability.109
In fact, the Bureau specifically explained in the Order that a rebuttable presumption does not shift the
burden of proof to defendants; rather, it requires defendants to come forward with evidence that rebuts or
meets the presumption.110 In support of their argument, Defendants emphasize that the Bureau noted that:
[A] complainant attempting to establish that an “unfair act” has resulted in “significant
hindrance” could not simply rely on evidence that its service is generally performing
poorly. Rather, the complainant would need to provide evidence explaining how the
“unfair act” has contributed to such performance. Likewise, in coming forward with
evidence to rebut the presumption here, Defendants cannot simply rely on what they
perceive to be Verizon’s general success in the affected markets without isolating the
impact of the key variable here – the presence or absence of MSG HD and MSG+ HD.111
Contrary to Defendants’ understanding, the language quoted above does not mean that the Bureau
reversed the burden of proof.112 Rather, the Bureau correctly observed that evidence failing to isolate the
impact of the “unfair act” at issue – in this case, the presence or absence of MSG HD and MSG+ HD – is
unlikely to be persuasive in attempting to rebut the presumption of “significant hindrance.”113 And, on
the specific facts presented here, it was highly significant that Defendants failed to isolate this important
variable by supplying a regression analysis or other competent evidence, including a reliable survey.114
21.
Defendants provide two examples of evidence they claim militates against a finding of
“significant hindrance” and which, they claim, should have shifted the onus to Verizon to overcome the
presumption of no “significant hindrance.”115 First, in response to penetration data they submitted in the
record, Defendants claim the Bureau should have required Verizon, not Defendants, to perform a
regression analysis.116 Second, in response to data they submitted in the record demonstrating that


109 See Application for Review at 14-16; Defendants’ Reply at 3.
110 See Order at ¶ 50; see also Cablevision II, 649 F.3d at 716 (“Reviewing the Commission’s order, we think it
clear that its rebuttable presumptions shift only the burden of production.”).
111 Order at ¶ 61; Application for Review at 15.
112 See Application for Review at 15; Defendants’ Reply at 3.
113 See Order at ¶ 50. We do not understand the Bureau’s Order to have suggested that evidence demonstrating a
complainant’s substantial market share or penetration rate can never, under any circumstances, rebut the
presumption of “significant hindrance,” absent a regression analysis or other evidence isolating the impact of the
complainant’s lack of access to the relevant RSN programming. In any event, we do not adopt such an approach in
this MO&O. Rather, we conclude that, even assuming that there may be situations where a complainant’s market
share and/or penetration rate is itself so substantial that it weighs against the presumption of “significant hindrance,”
Defendants did not present such evidence in this case. See infra ¶ 23. We note that this is consistent with our prior
guidance in the 2010 Order that a regression analysis or reliable survey data are illustrative examples of evidence
that litigants might consider providing in assessing the issue of “significant hindrance.” See 2010 Order, 25 FCC
Rcd at 785-86, ¶ 56. As noted in the text, Defendants in this case provided neither a regression analysis nor reliable
survey evidence isolating the impact of the “unfair act.”
114 See Order at ¶¶ 61, 63.
115 See Application for Review at 15-16; Defendants’ Reply at 3.
116 See Application for Review at 16; see also Order at ¶ 63. “Penetration” data refers to an MVPD’s share of video
subscribers only in those geographic regions within a defined market area (e.g., a DMA) where the MVPD provides
(continued….)
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[REDACTED
] in the New York DMA, Defendants claim that the Bureau should have required
Verizon, not Defendants, to come forward with evidence demonstrating whether there are other factors
explaining [REDACTED
].117 But as the Bureau properly explained, differences in penetration levels or
subscriber numbers may be attributable to several factors.118 Accordingly, on the record presented here,
raw penetration or subscriber numbers are insufficient to rebut the presumption absent an analysis (such
as a regression analysis) that isolates the impact of the “unfair act” at issue.119

E.

The Bureau Did Not Disregard Substantial Evidence

22.
Defendants claim that the Bureau impermissibly limited the type of evidence Defendants
could use to rebut the presumption by requiring Defendants to isolate how the absence of MSG HD and
MSG+ HD has impacted Verizon’s ability to provide a competing video service.120 As discussed above,
evidence that does not isolate the impact of the “unfair act” at issue is unlikely to be sufficient or
persuasive in attempting to rebut the presumption of “significant hindrance” pertaining to HD RSNs.121
In any event, the Bureau did not disregard any evidence and, in fact, considered all evidence presented by
Defendants.122 The Bureau properly found that the evidence presented was insufficient and unpersuasive
and thus failed to rebut the presumption.123
23.
The Bureau considered Defendants’ claims regarding Verizon’s alleged “marketplace
success,”124 but properly found the evidence insufficient to obviate the need for evidence isolating the
(Continued from previous page)


service. See Order at ¶¶ 61, 63. “Market share” data refers to an MVPD’s share of all video subscribers within a
defined market area (e.g., a DMA), including subscribers in geographic regions where the MVPD does not currently
provide service. See id.
117 See Application for Review at 16 n.68; see also Order at ¶ 61 n.302.
118 See Order at ¶¶ 61 and n.302; id. at ¶ 63.
119 See id. at ¶ 63. [REDACTED

] Defendants argued that the data were insufficient because (i)
“regression analyses represent the Commission’s preferred means of assessing the impact of the lack of access to
RSN programming”; [REDACTED
]
120 See Application for Review at 16-19.
121 See supra ¶ 20. Defendants claim that the Commission in the Bulk Billing Order did not isolate the impact of the
practice at issue and instead considered only whether, notwithstanding the practice at issue, MVPDs could compete
effectively. See Application for Review at 17. In fact, the Commission in the Bulk Billing Order specifically
analyzed the impact of the bulk billing arrangements at issue and found that they do not result in “significant
hindrance.” See supra ¶ 10.
122 See Order at ¶¶ 53-68.
123 See id. at ¶¶ 50, 68.
124 See Application for Review at 17.
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impact of Defendants’ withholding of MSG HD and MSG+ HD from Verizon.125 The Bureau also
considered Verizon’s internal documents, [REDACTED
].126 The Bureau properly
found the evidence unpersuasive and insufficient to rebut the presumption because (i) the existence of
other factors that may impact Verizon’s performance does not mean that a lack of access to MSG HD and
MSG+ HD does not “significantly hinder” Verizon; and (ii) the particular RSN programming at issue here
is non-replicable and has no close substitutes, thus eliminating Verizon’s ability to match its competitors’
offering of MSG HD and MSG+ HD.127 Defendants also claim that the Bureau “disregard[ed] entirely”
their evidence regarding the satisfaction of Verizon’s current customers.128 In fact, the Bureau
specifically addressed this evidence and properly concluded that this evidence did not address whether
potential subscribers would be unwilling to switch to Verizon given its lack of MSG HD and MSG+
HD.129 While Defendants claim that the satisfaction of Verizon’s current customers demonstrates that
MSG HD and MSG+ HD are not “must have” for many customers in the New York area,130 the record
reflects that the number of Verizon FiOS TV subscribers at present is [REDACTED
].131 As the Bureau explained, the salient question is whether these potential subscribers,
whom Verizon seeks to subscribe to its FiOS service, would be unwilling to switch to Verizon given its
lack of MSG HD and MSG+ HD.132 Indeed, Section 628(b) specifically requires the Commission to
assess whether an “unfair act” has the purpose or effect of “significantly hindering” an MVPD from
providing programming to “subscribers or consumers,” reflecting Congress’s concern with the impact of
challenged conduct on both an MVPD’s current and potential customers.133

F.

The Bureau’s Order Was the Product of Reasoned Decisionmaking

24.
Defendants assert that the Order was not the product of reasoned decisionmaking.134
First, Defendants argue that the Bureau deemed their statements conceding the importance of MSG HD
and MSG+ HD to “nullify entirely” their survey results demonstrating the opposite, yet the Bureau
inconsistently ignored Verizon’s statements and advertisements attesting to its success and the robustness
of its sports programming.135 In fact, the Bureau appropriately deemed Defendants’ surveys unreliable
due to their fundamental flaws;136 Defendants’ contradictory statements and actions simply provided


125 See Order at ¶¶ 61, 63.
126 See Application for Review at 17-18.
127 See Order at ¶ 67.
128 See Application for Review at 18-19.
129 See Order at ¶ 66.
130 See Application for Review at 19.
131 See Order at ¶ 61.
132 See id. at ¶ 66.
133 47 U.S.C. § 548(b).
134 See Application for Review at 19-21.
135 See id. at 19.
136 See Order at ¶¶ 55, 57, 60.
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further support for the Bureau’s conclusion that these surveys were flawed.137 With respect to Verizon’s
statements and advertisements, the Bureau specifically considered this evidence and explained why they
did not rebut the presumption of “significant hindrance.”138
25.
Second, Defendants claim that prior instances of withholding in Philadelphia and San
Diego “weigh heavily” in the Bureau’s decision, but other instances where MVPDs have elected not to
carry RSNs have no bearing on whether RSN programming is “must have.”139 In fact, the Bureau
specifically considered other instances where MVPDs do not carry RSNs and found that they did not
undermine the rebuttable presumption because the record contained no evidence of the circumstances that
led to the MVPDs’ decisions to refrain from carrying an RSN.140 The Philadelphia and San Diego cases,
in contrast, were important here because (i) MVPDs sought to carry the RSNs at issue but were denied;
and (ii) the Commission analyzed empirically the impact of this withholding and found that it
“significantly hindered” competitors.141
26.
Third, Defendants contend that the Bureau dismissed evidence demonstrating that MSG
HD and MSG+HD have lower ratings than many well-known SD channels.142 In fact, the Bureau
carefully considered this evidence and explained that (i) despite these allegedly low ratings, Defendants
continue to emphasize MSG HD and MSG+ HD in advertisements and continue to withhold this
programming from Verizon, thereby demonstrating the market importance of the networks;143 and (ii) the
Commission has previously recognized that ratings “are not a perfect predictor of consumer response to
the withholding of a network.”144
27.
Fourth, Defendants claim that the Order cites Cablevision’s recent rate increase but “does
not even mention” Verizon’s rate increase.145 In fact, the Bureau considered and carefully explained the
significance of both rate increases to the issues raised in this case.146


137 See id. at ¶ 53; see also supra ¶ 18.
138 See supra ¶ 23 (stating that the evidence purporting to demonstrate Verizon’s success in the New York and
Buffalo DMAs was insufficient to obviate the need for evidence isolating the impact of Defendants’ withholding of
MSG HD and MSG+ HD from Verizon); see also Order at ¶ 61 and n.296 (discussing Verizon’s statements and
other evidence purporting to demonstrate Verizon’s general success); id. at ¶ 65 (explaining that, as the Commission
held previously and Defendants conceded, the salient issue is not the amount of sports or HD programming Verizon
offers in general; rather, the key issue is whether Verizon has been “significantly hindered” without MSG HD or
MSG+ HD).
139 See Application for Review at 20.
140 See Order at ¶ 47 n.219.
141 See id. at ¶¶ 3, 49-50; see also 2010 Order, 25 FCC Rcd at 768-69, ¶ 32 and 782, ¶ 52 n.202. In Cablevision II,
the D.C. Circuit stated that the Commission’s regression analysis studying the impact of withholding of RSNs in
Philadelphia and San Diego “constitute[d] substantial evidence that supports the Commission’s adoption of a
presumption” of “significant hindrance” for RSNs. Cablevision II, 649 F.3d at 717.
142 See Application for Review at 20.
143 See Order at ¶ 62.
144 See id. (citing 2007 Order, 22 FCC Rcd at 17817-18, ¶ 39). The Bureau cited the substantial ratings for MSG SD
and MSG+ SD to demonstrate that, in light of the growing significance of HD, the ratings for the HD versions will
continue to rise as more households obtain HDTV sets and subscribe to HD service offerings. See id.
145 See Application for Review at 20.
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28.
Fifth, Defendants claim that the Order “does not even mention” data which they claim
demonstrate that only one out of three households has an HDTV set and subscribes to HD service, and is
thus capable of viewing HD RSN programming.147 In fact, the Bureau squarely addressed this survey and
found the data to support, rather than undermine, the rebuttable presumption pertaining to HD RSNs.148
29.
Sixth, Defendants contend that the Bureau emphasized Defendants’ advertising of MSG
HD and MSG+ HD as an indication of “significant hindrance,” but gave no weight to Verizon’s decision
to advertise its sports and HD programming.149 In fact, the Bureau specifically and sensibly addressed
Verizon’s decision to advertise its sports and HD programming.150
30.
Seventh, Defendants contend that the Bureau improperly failed to give weight to data
pertaining to Verizon’s status on a nationwide basis, including its financial resources.151 The Bureau
properly explained, however, that such nationwide data do not address the pertinent issue here of how the
withholding of MSG HD and MSG+ HD impacts Verizon’s video service in the New York and Buffalo
DMAs.152
31.
Eighth, Defendants claim that the Bureau did not accurately state the level of competition
in the marketplace.153 On the contrary, there was no contradiction in the figures cited by the Bureau,154
(Continued from previous page)


146 See supra ¶ 23 (stating that the evidence purporting to demonstrate Verizon’s success in the New York and
Buffalo DMAs was insufficient to obviate the need for evidence isolating the impact of Defendants’ withholding of
MSG HD and MSG+ HD from Verizon); see also Order at ¶ 61 and n.297 (discussing Verizon’s rate increase and
other evidence purporting to demonstrate Verizon’s general success); id. at ¶ 61 and nn.295, 304 (explaining that
Defendants’ claim of robust competition is belied by the fact that incumbent cable market share in the New York
DMA ([REDACTED
]) far exceeds the national average (63.5
percent) and that Cablevision has raised its rates in excess of inflation despite the number of competitors in the
market).
147 See Application for Review at 20.
148 See Order at ¶ 48 n.235. Moreover, as the Commission previously held and the record here supports, HD
continues to grow in significance. See 2010 Order, 25 FCC Rcd at 784-85, ¶¶ 54-55; Order at ¶ 48.
149 See Application for Review at 20-21.
150 The Bureau explained that, as the Commission held previously and Defendants conceded, the salient issue is not
the amount of sports or HD programming Verizon offers in general; rather, the key issue is whether Verizon has
been “significantly hindered” without MSG HD or MSG+ HD. See Order at ¶ 65. Defendants’ decision to
emphasize MSG HD and MSG+ HD in advertisements provided additional support for the significance of these
networks. See id. at ¶¶ 25, 62.
151 See Application for Review at 21.
152 See Order at ¶ 61 n.294. Defendants contend that Congress and the Commission expected telcos to be unique
video competitors whose entry would bring durable, effective competition. See Application for Review at 21. Any
such expectations, however, did not contemplate that RSN programming would be withheld from telco competitors.
153 See Application for Review at 21.
154 See id. The Bureau (i) noted data cited in the 2010 Order demonstrating that incumbent cable market share in the
New York DMA far exceeds the national average (see Order at ¶ 61 n.295 (citing 2010 Order, 25 FCC Rcd at 763,
¶ 27 n.97)); and (ii) updated this figure based on the record evidence here to demonstrate that incumbent cable
market share in the New York DMA continues to far exceed the national average. See id. at ¶ 61 n.304.
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and the record evidence demonstrates that incumbent cable operators such as Cablevision continue to
dominate the market.155

G.

The Bureau’s Finding that Defendants’ Withholding Is “Unfair” Was Proper

32.
Defendants argue that the Bureau (i) conflated the definition of “unfair” with
“significantly hindered,” such that any activity that is found to “significantly hinder” a competitor also
will be found “unfair;”156 and (ii) held that withholding RSN programming will always be “unfair.”157 On
the contrary, consistent with Cablevision II and Commission precedent, the Bureau weighed the
anticompetitive harms of Defendants’ withholding against the procompetitive benefits.158 There is no
basis for Defendants’ assertion that the Bureau found Defendants’ conduct to be “unfair” because it
resulted in “significant hindrance.”159 The Bureau’s conclusion that Defendants’ conduct here was, on
balance, “unfair” was based on a careful weighing of the evidence presented in this case and does not
prejudge future cases, including those involving non-replicable programming such as RSNs.160 In
addition, despite Defendants’ claims,161 the Bureau specifically found that the withholding at issue here
harmed competition and consumers in the impacted markets.162 Defendants repeat their claim that it is


155 See Order at ¶ 61 nn.295, 303-304. None of these incumbent cable operators are among the four different
competitors that Defendants claim that Cablevision faces competition from in the market. See Application for
Review
at 21, 23.
156 See Application for Review at 22; Defendants’ Reply at 5.
157 See Application for Review at 22-23; Defendants’ Reply at 5.
158 See Order at ¶¶ 24-41.
159 See Application for Review at 22. The impact of Defendants’ conduct on competition in the video distribution
market was one of the statutory factors the Bureau considered in assessing whether Defendants’ conduct was
“unfair.” See Order at ¶¶ 28-29 (citing 47 U.S.C. § 548(c)(4)(A)). While the Bureau found that Defendants’
withholding MSG HD and MSG+ HD “significantly hindered” Verizon and thereby harmed consumers by limiting
competition in the video distribution market (see id. at ¶ 28), it noted that other factors could potentially tip the
scales in favor of a finding that the withholding is procompetitive on balance and, thus, is not “unfair” despite the
impact on competition in the video distribution market. See id. at ¶ 37; see also id. at ¶¶ 38-39. Thus, Defendants
are wrong when they argue that the Bureau found that withholding of RSN programming will always be “unfair.”
See Application for Review at 22. The Bureau specifically noted potential procompetitive benefits from withholding
even non-replicable RSN programming that may outweigh any anticompetitive harms based on the facts presented.
See Order at ¶¶ 27-41 (noting that withholding may promote investment in and carriage of a network).
160 See Order at ¶¶ 24-41; Application for Review at 22-23. Defendants also contend that the Bureau found that
withholding of programming from wireline entrants is more likely to be “unfair” than withholding from other
MVPDs. See Application for Review at 23. In fact, Defendants themselves deemed Verizon and other wireline
entrants as their “closest” competitors and conceded that they license programming to DBS operators because,
unlike Verizon, DBS operators do not offer voice or broadband service. See Defendants’ Post-Discovery Answer to
Supplement
at 82; see also Order at ¶ 28 n.147. The Commission has also found that DBS operators do not
constrain the price of cable service to the extent that Verizon and other wireline entrants do. See Order at ¶ 28
n.147. The Bureau did not find, however, that withholding from wireline entrants is always more likely to be
“unfair” than withholding from other MVPDs. Rather, in assessing one of the statutory factors in one of the tests
used in the unfairness analysis (“the development of competition in local and national [MVPD] markets”), the
Bureau noted that Defendants have conceded that they withhold MSG HD and MSG+ HD from only their “closest”
competitors and that this factor was relevant in assessing the impact on the development of competition under this
factor. See id. at ¶ 28.
161 See Application for Review at 23.
162 See Order at ¶¶ 28, 38, 40, 47, 61 nn.295 and 303-304; id. at ¶¶ 74-75.
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significant that some consumers in New York have a choice of up to five MVPDs, but the Bureau found
that incumbent cable market share in the New York DMA far exceeds the national average and that
Cablevision has raised its rates in excess of inflation despite the number of competitors in the market.163
While Defendants claim that their withholding of MSG HD and MSG+ HD will encourage other MVPDs
to invest and innovate, the Commission has previously concluded that “when programming is non-
replicable and valuable to consumers, such as regional sports programming, no amount of investment can
duplicate the unique attributes of such programming.”164

H.

The Order

Comports with the First Amendment

33.
Defendants claim that the Order violates the First Amendment as applied to Defendants
and the facts of this case.165 As the D.C. Circuit and Commission have explained previously, the program
access rules are subject to intermediate scrutiny, under which government action will be upheld if it
“furthers an important or substantial governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest.”166 We need not repeat the Bureau’s sound
analysis here, other than to state that the Bureau properly held that the decision satisfied the requirements
of intermediate scrutiny.167

I.

Compliance Deadline

34.
The Order required MSG to enter into an agreement to license MSG HD and MSG+ HD
to Verizon within 30 days of the release of the Order (i.e., by October 22, 2011). On October 11, 2011,
the Bureau released a decision retaining this deadline but staying the Order to the extent it would
otherwise require MSG to make MSG HD and MSG+ HD available to Verizon on or before November
14, 2011.168 In order to provide sufficient time for compliance, we grant MSG 15 days after release of
this MO&O to provide MSG HD and MSG+ HD to Verizon, unless the parties’ agreement provides MSG
a longer period, in which case the agreed upon time period shall govern.

IV.

ORDERING CLAUSES

35.
Accordingly,

IT IS ORDERED

that, pursuant to Sections 4(i), 4(j), 5(c), and 628 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 155(c), 548, and Section 1.115 of
the Commission’s rules, 47 C.F.R. § 1.115, the Application for Review filed by MSG Holdings, L.P. and
Cablevision Systems Corporation

IS DENIED

.


163 See id. at ¶ 61 nn.295, 303-304.
164 See id. at ¶ 29 (quoting 2010 Order, 25 FCC Rcd at 750-51, ¶ 9).
165 See Application for Review at 24-25; Defendants’ Reply at 5.
166 Time Warner Entertainment Co. L.P. v. FCC, 93 F.3d 957, 978 (D.C. Cir. 1996) (quoting Turner Broadcasting
System, Inc. v. FCC,
512 U.S. 622, 662 (1994) (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968))); see
also Cablevision II
, 649 F.3d at 710-11; Cablevision I, 597 F.3d at 1311; 2010 Order, 25 FCC Rcd at 775, ¶ 41;
2007 Order, 22 FCC Rcd at 17837-38, ¶ 65.
167 See Order at ¶¶ 72-75.
168 See Verizon Tel. Cos. et al., Order, DA 11-1695 (MB Oct. 11, 2011).
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36.

IT IS FURTHER ORDERED

that, pursuant to Sections 4(i), 4(j), and 628 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), and 548, and Section 1.43 of the
Commission’s rules, 47 C.F.R. § 1.43, the Petition for Stay filed by MSG Holdings, L.P. and Cablevision
Systems Corporation

IS DISMISSED AS MOOT.

FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
22

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