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Cablevision Systems Corp., et al.

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Released: July 25, 2014

Federal Communications Commission

Washington, D.C. 20554

DA 14-1029

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.

Suite 800

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

Dear Counsel:

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

Media Bureau


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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