Federal Communications Commission
Washington, D.C. 20554
Released: July 25, 2014
Tara M. Corvo, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
701 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Frederick W. Giroux, Esq.
Davis Wright Tremaine LLP
1919 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-3401
Seth A. Davidson, Esq.
Edwards Wildman Palmer LLP
1255 23rd Street, N.W.
Washington, D.C. 20037
Donald J. Evans, Esq.
Fletcher, Heald & Hildreth, P.L.C.
1300 North 17th Street, 11th Floor
Arlington, Virginia 22209
Requests to Defer Mandatory Carriage of
KVNV(TV), Middletown Township, New Jersey
FCC File No. BPCDT-20130528AJP
Facility ID No. 86537
This is with respect to the June 12, 2014 letter filed on behalf of Cablevision Systems
Corporation (“Cablevision”) and the July 11, 2014 letters filed on behalf of Time Warner Cable Inc.
(“TWC”) and Comcast Cable Communications, LLC (“Comcast”) (collectively the “MVPDs” and
“Deferral Letters”). The MVPDs request that we issue an order allowing them to defer implementing the
must-carry request and channel position election of PMCM TV, LLC (“PMCM”) for television station
KVNV(TV), digital RF channel 3, Middletown, Township until 90 days from the date of a final decision
on the appropriate Program System and Information Protocol (“PSIP”) virtual channel for the station. 1
For the reasons set forth below, we grant the MVPD’s letter requests.
Background and Pleadings. PMCM filed the above-referenced modification application to
relocate KVNV(TV) from Ely, Nevada to Middletown Township after its RF channel 3 was allotted to
Middletown Township pursuant to a decision by the U.S. Court of Appeals for the District of Columbia
1 PSIP channels are also commonly referred to as “virtual” or “major” channels and the parties used the terms
Circuit.2 Meredith Corporation (“Meredith”), the licensee of WFSB(TV), RF channel 33, virtual channel
3, Hartford, Connecticut, filed an informal objection to the modification application objecting to PMCM’s
future operations on virtual channel 3 because WFSB(TV) had been assigned that channel since 2004.
Meredith argued that because the two stations’ noise limited contours have significant overlap, both
stations cannot operate on the same virtual channel. Meredith further argued that, under the PSIP
Standard adopted by the Commission, KVNV(TV) should be assigned virtual channel 33, which is
WFSB(TV)’s RF channel. On April 17, 2014, the Video Division granted PMCM’s application and
dismissed Meredith’s informal objection as premature, stating that a station’s virtual channel designation
is customarily considered after grant of the license modification application in a separate proceeding that
solely addresses the virtual channel designation.3
Meredith filed a timely Petition for Reconsideration
and Request for Declaratory Ruling on May 22, 2014, again asserting that KVNV(TV) should be assigned
virtual channel 33, which PMCM opposes. Briefing on this matter closed on July 11, 2014 and a decision
has not yet been issued. 4
PMCM notified the MVPDs by separate letters dated June 6, 2014 that KVNV(TV) would
commence operation as a new television station in the New York, New York DMA during the week of
August 4, 2014.5
PMCM elected mandatory carriage of the station’s signal6 on all cable systems operated
by the MVPDs, their subsidiaries, and affiliates serving communities in the New York DMA, and
requested carriage on the systems on channel 3. Under the Commission’s rules, KVNV(TV)’s election
takes effect 90 days from the date it was made, which is September 4, 2014.7
In addition, cable operators
are required to notify customers in writing of any changes in programming services or channel positions a
minimum of 30 days in advance of such changes if the change is within control of the cable operator.8
In its Deferral Letter, Cablevision states that, while WFSB(TV) is in the Hartford-New Haven
DMA, as a result of an FCC market modification its local market also includes Fairfield County,
Connecticut, which is in the New York DMA.9
According to Cablevision, WFSB(TV) is entitled to
carriage on virtual channel 3 on Cablevision’s cable systems serving Fairfield County, and repositioning
WFSB(TV) to another channel would cause significant disruptions to its channel lineups and require
negotiations with the network or broadcast station that currently operates on the channel to which
WFSB(TV) would be moved.10 Comcast also retransmits WFSB(TV) on channel 3 in cable systems
serving Fairfield County, as well as three other counties in the New York DMA.11
TWC states that it
owns and operates cable systems serving over one million subscribers in the New York DMA, that these
systems offer a variety of different channel lineups, and that “not only is Cable Channel 3 already
occupied on the overwhelming majority of these line-ups, but in most instances the programming service
2 See PMCM LLC, TV v. FCC, 701 F.3d 380 (D.C. Cir. 2012); Reallocation of Channel 3 from Ely, Nevada to
Middletown Township, New Jersey, Report and Order, 28 FCC Rcd 2825 (Vid. Div. 2013).
3 Letter dated April 17, 2014 from Hossein Hashemzadeh, Deputy Chief, Video Division, to PMCM TV, LLC at
4 See Email dated July 14, 2014 from Donald J. Evans, Esq. to Barbara A. Kreisman, Chief, Video Division at
5 See Cablevision Deferral Letter at Attachment A.
6 See 47 C.F.R. § 76.56(b).
7 47 C.F.R. § 76.64(f)(4).
8 47 C.F.R. § 76.1603(b).
9 See Modification of the Television Market of Television Station WFSB, Memorandum Opinion and Order, 10 FCC
Rcd 4939 (CSB 1995).
10 Cablevision Deferral Letter at 1-2. According to Cablevision, “because of FCC rules and other restrictions on
where programming can be located in a channel line-up, repositioning one network or station often can set off a
domino effect of other changes that must be negotiated and accommodated, and some negotiations can be
significantly lengthy and contentious.” Id. at 2.
11 Comcast Deferral Letter at 2.
currently occupying Cable Channel 3 has been carried on that channel for many years.”12
assert that they should not be required to negotiate new channel positions for the services that would be
displaced by KVNV(TV)’s carriage on cable channel 3, which would result in the displacement of other
services and resulting customer confusion, while the question of KVNV(TV)’s virtual channel assignment
is pending before the Commission. In order to avoid unnecessary business disruption and customer
confusion, they request permission to defer implementing PMCM’s must-carry request until 90 days from
the date of a final order on KVNV(TV)’s virtual channel position.
On June 26, 2014, PMCM filed an opposition to Cablevision’s deferral request, arguing, inter
alia, that its right to mandatory carriage of KVNV(TV) on channel 3 “is so well settled as to require no
elaboration here.” PMCM further asserts that KVNV(TV) “currently operates on major channel 3 in Ely,
NV,“ and that “given the unique circumstances of KVNV’s transition to New Jersey” it would thwart the
Court’s mandate to change its PSIP channel.13
PMCM states, however, that it is “sensitive to the
complications posed by the insertion of KVNV’s channel 3 into Cablevision’s channel line-up” and that it
would be willing to accommodate a deferral but that it must be brief “since it is essential that KVNV get
on the air with full on-channel carriage prior to the key ratings periods coming up in the fall.”14
In response, Cablevision states that, while it will implement whatever channel position the
Commission orders, its “overriding priority is to minimize disruption for consumers [and] it would create
unnecessary confusion and disruption for [the MVPDs] to make immediate changes to their line-ups to
accommodate KVNV’s request to be placed on channel 3 when KVNV ultimately may be assigned a
different virtual channel, in all or part of the New York DMA.” Cablevision also observes (without
taking a position on the merits) that, while PMCM claims that the requested deferral is unnecessary
because its right to mandatory carriage on Channel 3 is well settled, “Meredith also has asserted a clear
right to Channel 3 [and] FCC databases indicate that both stations are assigned to virtual channel 3, and
the stations’ local carriage areas overlap in part (in Fairfield County, CT).” Given these “conflicting
mandates,” Cablevision reiterates its request that it be allowed to defer implementing the KVNV(TV)
must-carry request and channel position election until 90 days after a final decision.15
Discussion. Section 1.3 of the Commission’s Rules provides that we can waive our rules “for
good cause shown.” 16 We agree with the MVPDs that the public interest will be served by waiving the
requirement of Section 76.64(f)(4) that PMCM’s June 6, 2014 election of must-carry status take effect
within 90 days of its election. Section 73.682(d) requires digital television broadcast television to comply
with ATSC A/65C (“PSIP Standard”).17
The PSIP Standard is meant to “guarantee that the two-part
channel number combinations used by a broadcaster will be different from those used by any other
broadcaster with an overlapping DTV service area.”18
It is undisputed that PMCM and Meredith have
conflicting channel placement claims on certain cable systems in the New York DMA and that the matter
is currently pending before the Bureau. WFSB(TV) is entitled to mandatory carriage on cable channel 3
in areas where PMCM is also asserting mandatory carriage rights, and the local MVPDs do not have the
authority to resolve this conflict. Until this conflict is resolved, however, KVNV(TV)’s virtual channel
number may be subject to change and MVPDs cannot ascertain on which channel they will be required to
definitively carry the station.
12 TWC Deferral Letter at 1. See also Cablevision Deferral Letter at 2 (“Given the channel position at issue, it is
highly likely that very popular programming networks will be moved, requiring a lengthier and more comprehensive
consumer education effort than the usual 30 day notice period . . ..”)
13 Letter dated June 26, 2014 from Donald J. Evans, Esq. to Marlene H. Dortch, Secretary at 1-2.
14 Id. at 2.
15 Letter dated July 14, 2014 from Tara M. Corvo, Esq. to Marlene H. Dortch, Secretary at 1-2.
16 47 C.F.R. § 1.3.
17 47 C.F.R. § 73.682(d) (incorporated by reference, see § 73.8000).
18 PSIP Standard, Annex B at 1.8.
Under the Commission’s rules, cable operators must comply with channel positioning
requirements absent a compelling technical reason for not being able to accommodate those requests.19
this case, the MVPDs’ cable systems are already carrying WFSB(TV) or another station at the channel 3
position and it is not technically feasible to position a second station there as well. Thus, MVPDs cannot
carry KVNV(TV) on channel 3 without repositioning WFSB(TV) and possibly other programming
services. We acknowledge that delaying the effectiveness of PMCM’s must-carry request until after our
decision on KVNV(TV)’s virtual channel number may result in PMCM not obtaining cable carriage for
its station by the Fall. Nevertheless, the technical impediments and the consumer confusion that will
result if MVPDs commence carriage of KVNV(TV) on channel 3 as its virtual channel and we then
assign the station a different virtual channel shortly thereafter present serious countervailing
considerations. Under these circumstances, we conclude that a waiver of Section 76.64(f)(4) is
appropriate, to allow MVPD’s to defer carriage of KVNV(TV) until 90 days from the date there is a final
decision on the station’s virtual channel. The Bureau anticipates that it will be able to issue its decision
without lengthy delay.
Conclusion. Accordingly, we HEREBY WAIVE Section 76.64(f)(4) of the Rules to allow
Cablevision Systems Corporation, Time Warner Cable Inc. and Comcast Cable Communications, LLC to
defer implementing the must-carry request and channel position election of PMCM TV, LLC for
television station KVNV(TV), Middletown Township, New Jersey until 90 days from the date of a final
decision on KVNV(TV)’s virtual channel.
William T. Lake, Chief
Michael D. Basile, Esq.
(Counsel for Meredith Corporation)
19 See Implementation of the Cable Television Consumer Protection and Competition Act of 1992, MM Docket No.
92-259, Report and Order, 8 FCC Rcd 2965, 2988, para. 91 (1993).
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