**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | MB Docket No. 08-214         |
|                                  | *) |                              |
| Herring Broadcasting, Inc. d/b/a | ** | File No. CSR-7709-P          |
| WealthTV,                        |    |                              |
|                                  | *  | File No. CSR-7822-P          |
| Complainant                      | *) |                              |
|                                  | ** | File No. CSR-7829-P          |
| v\.                              |    |                              |
|                                  | *  | File No. CSR-7907-P          |
| Time Warner Cable Inc.           | *) |                              |
|                                  | ** | File No. CSR-7876-P          |
| Defendant                        |    |                              |
|                                  | *  | File No. CSR-8001-P          |
| Herring Broadcasting, Inc. d/b/a | *) |                              |
| WealthTV,                        | ** |                              |
|                                  |    |                              |
| Complainant                      | *  |                              |
|                                  | *) |                              |
| v\.                              | ** |                              |
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| Bright House Networks, LLC,      | *  |                              |
|                                  | *) |                              |
| Defendant                        | ** |                              |
|                                  |    |                              |
| Herring Broadcasting, Inc. d/b/a | *  |                              |
| WealthTV,                        | *) |                              |
|                                  | ** |                              |
| Complainant                      |    |                              |
|                                  | *  |                              |
| v\.                              | *) |                              |
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| Cox Communications, Inc.,        |    |                              |
|                                  | *  |                              |
| Defendant                        | *) |                              |
|                                  | ** |                              |
| Herring Broadcasting, Inc. d/b/a |    |                              |
| WealthTV,                        | *  |                              |
|                                  | *) |                              |
| Complainant                      | ** |                              |
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| Comcast Corporation,             | ** |                              |
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| NFL Enterprises LLC,             | ** |                              |
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| Comcast Cable Communications,    | *  |                              |
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| TCR Sports Broadcasting Holding, | *) |                              |
| L.L.P.,                          | ** |                              |
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| d/b/a Mid-Atlantic Sports        | *  |                              |
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| Comcast Corporation,             |    |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND HEARING DESIGNATION ORDER**

**Adopted: October 10, 2008 Released: October 10, 2008**

By the Chief, Media Bureau

Table of Contents

Heading Paragraph \#

I. iNTRODUCTION 2

II\. Background 5

III\. Discussion 8

A. WealthTV 9

1\. WealthTV v. TWC 11

a\. Background 12

b\. Similarly Situated 13

c\. Differential Treatment 19

d\. Harm to Ability to Compete 20

e\. Alleged Business and Editorial Justifications for TWC's Refusal to
Carry WealthTV 21

f\. Conclusion 25

2\. WealthTV v. BHN 26

a\. Background 27

b\. Similarly Situated 28

c\. Differential Treatment 29

d\. Harm to Ability to Compete 30

e\. Alleged Business and Editorial Justifications for BHN's Refusal to
Carry WealthTV 32

f\. Conclusion 36

3\. WealthTV v. Cox 37

a\. Background 38

b\. Procedural Issues 39

c\. Similarly Situated 40

d\. Differential Treatment 41

e\. Harm to Ability to Compete 42

f\. Alleged Business and Editorial Justifications for Cox's Refusal to
Carry WealthTV 44

g\. Conclusion 47

4\. WealthTV v. Comcast 48

a\. Background 49

b\. Similarly Situated 52

c\. Differential Treatment 53

d\. Harm to Ability to Compete 54

e\. Alleged Business and Editorial Justifications for Comcast's Refusal
to Carry WealthTV 56

f\. Conclusion 58

5\. Conclusion 59

B. NFL Enterprises v. Comcast 60

1\. Background 61

2\. Procedural Issues 69

a\. Program Carriage Statute of Limitations 70

b\. Dismissal Pending Litigation 72

c\. Specificity of Requested Relief 74

d\. Signature and Verification Requirements 75

2\. Discrimination Claim 76

a\. Similarly Situated 76

b\. Differential Treatment 77

c\. Harm to Ability to Compete 78

d\. Alleged Business and Editorial Justifications for Comcast's Refusal
to Carry NFL Network on an Expanded Basic Tier 80

e\. Conclusion 86

3\. Financial Interest Claim 87

C. MASN v. Comcast 91

1\. Background 93

2\. Procedural Issues 102

a\. Program Carriage Statute of Limitations 103

b\. Res Judicata 107

3\. Similarly Situated 109

4\. Differential Treatment 110

5\. Harm to Ability to Compete 111

6\. Alleged Contract-Based, Business and Editorial Justifications for
Comcast's Refusal to Carry MASN on the Unlaunched Systems 112

a\. Contract-Based Justifications 113

\(i\) Term Sheet 113

\(ii\) Release 115

b\. Editorial and Business Justifications 116

\(i\) License Fee 117

\(ii\) Bandwidth 118

\(iii\) Demand 119

7\. Conclusion 120

IV\. Referral to Administrative Law Judge or Alternative Dispute
Resolution 121

V. Ordering Clauses 123

A. WealthTV v. TWC 123

B. WealthTV v. BHN 127

C. WealthTV v. Cox 131

D. WealthTV v. Comcast 135

E. NFL v. Comcast 139

F. MASN v. Comcast 143

# iNTRODUCTION

1.  Herring Broadcasting, Inc. d/b/a WealthTV ("WealthTV) has filed
    program carriage complaints against Time Warner Cable Inc. ("TWC"),
    Bright House Networks, LLC ("BHN"), Cox Communications, Inc.
    ("Cox"), and Comcast Corporation ("Comcast").[^1] WealthTV, a video
    programming vendor, alleges that TWC, BHN, Cox, and Comcast, all
    multichannel video programming distributors ("MVPDs"), discriminated
    against WealthTV's programming in favor of a similarly situated
    video programming vendor, MOJO, which is affiliated with TWC, BHN,
    Cox, and Comcast,[^2] in violation of Section 76.1301(c) of the
    Commission's rules.[^3] As discussed below, we direct these matters
    to an Administrative Law Judge ("ALJ") and order that the ALJ return
    Recommended Decisions in these matters to the Commission pursuant to
    the procedures set forth below within 60 days of the release of this
    *Memorandum Opinion and Hearing Designation Order* ("*Order*").

2.  NFL Enterprises LLC ("NFL") has filed a program carriage complaint
    against Comcast Cable Communications, LLC, a subsidiary of
    Comcast.[^4] The NFL owns the NFL Network, a video programming
    vendor. The NFL alleges that Comcast, an MVPD, has (i) discriminated
    against the NFL Network in favor of its affiliated video programming
    vendors in violation of Section 76.1301(c) of the Commission's
    rules;[^5] and (ii) required a financial interest in the NFL's
    programming as a condition for carriage of the NFL Network, in
    violation of Section 76.1301(a) of the Commission's rules.[^6] As
    discussed below, we direct this matter to an ALJ and order that the
    ALJ return Recommended Decisions in these matters to the Commission
    pursuant to the procedures set forth below within 60 days of the
    release of this *Order*.

3.  TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports
    Network ("MASN") has filed a program carriage complaint against
    Comcast.[^7] MASN alleges that Comcast, an MVPD, has discriminated
    against MASN in favor of its affiliated video programming vendors in
    violation of Section 76.1301(c) of the Commission's rules.[^8] As
    discussed below, we direct this matter to an ALJ and order that the
    ALJ return a Recommended Decision in this matters to the Commission
    pursuant to the procedures set forth below within 60 days of the
    release of this *Order*.

# Background

4.  Section 616 of the Communications Act of 1934, as amended (the
    "Communications Act"), directs the Commission to "establish
    regulations governing program carriage agreements and related
    practices between cable operators or other multichannel video
    programming distributors and video programming vendors."[^9] Among
    other things, Congress directed that the regulations:

> \(1\) include provisions designed to prevent a cable operator or other
> \[MVPD\] from requiring a financial interest in a program service as a
> condition for carriage on one or more of such operator's systems;[^10]
> \[and\]
>
> \* \* \*
>
> \(3\) contain provisions designed to prevent a \[MVPD\] from engaging
> in conduct the effect of which is to unreasonably restrain the ability
> of an unaffiliated video programming vendor to compete fairly by
> discriminating in video programming distribution on the basis of
> affiliation or nonaffiliation of vendors in the selection, terms, or
> conditions for carriage of video programming provided by such
> vendors.[^11]

5.  The Commission adopted rules in 1993 to implement Section 616.[^12]
    Specifically, Sections 76.1301(a) and (c) were added to the
    Commission's rules to prohibit a cable operator or other MVPD from
    requiring a financial interest in any program service as a condition
    for carriage of such service[^13] or engaging in conduct that
    unreasonably restrains the ability of an unaffiliated programming
    vendor to compete fairly by discriminating against such vendor on
    the basis of its nonaffiliation.[^14]

6.  In addition to establishing rules governing program carriage, the
    *Second Report and Order* also established procedures for the review
    of program carriage complaints and appropriate penalties and
    remedies. The Commission adopted procedures by which cases would be
    resolved on the basis of a complaint, answer and reply.[^15]
    Additional pleadings are generally not considered unless
    specifically requested by reviewing staff.[^16] The Commission
    recognized that "resolution of Section 616 complaints \[would\]
    necessarily focus on the specific facts pertaining to each
    negotiation, and the manner in which certain rights were obtained,
    in order to determine whether a violation has, in fact,
    occurred."[^17] The Commission anticipated that the "staff would be
    unable to resolve most carriage agreement complaints on the sole
    basis of a written record...."[^18] In such cases, if the staff
    determines that the complainant has established a *prima facie* case
    but that "disposition of the complaint would require the resolution
    of factual disputes or other extensive discovery," the staff is to
    notify the parties that they have the option of choosing Alternative
    Dispute Resolution ("ADR") or an adjudicatory hearing before an
    Administrative Law Judge.[^19] The Commission stated that the
    appropriate relief for program carriage violations would be
    determined on a case-by-case basis, and that appropriate remedies
    and sanctions would include forfeitures, mandatory carriage, or
    carriage on terms revised or specified by the Commission.[^20]

# Discussion

7.  When filing a program carriage complaint, the burden of proof is on
    the video programming vendor to establish a *prima facie* case that
    the defendant MVPD has engaged in behavior that is prohibited by
    Section 616 and the Commission's program carriage rules.[^21] After
    reviewing the pleadings and supporting documentation filed by the
    parties in each case, we find that the complainants have established
    a *prima facie* showing of a violation of the program carriage rules
    in each case. We also find that the pleadings and supporting
    documentation present several factual disputes, such that we are
    unable to determine on the basis of the existing records whether we
    can grant relief based on these claims.[^22]  

## WealthTV

8.  WealthTV is a video programming vendor as defined in Section 616(b)
    of the Act and Section 76.1300(e) of the Commission's rules.[^23]
    WealthTV focuses on "inspirational and aspirational programming
    about prosperous and fulfilling lifestyles."[^24] WealthTV states
    that it is a "truly independent stand-alone programming service" and
    is not supported by or affiliated with any MVPD, telephone company,
    or broadcaster.[^25] WealthTV is currently carried by over 75
    MVPDs.[^26]

9.  As discussed below, WealthTV had filed program carriage complaints
    against TWC, BHN, Cox, and Comcast. WealthTV asks the Commission to
    order TWC, BHN, Cox, and Comcast to provide WealthTV carriage on all
    TWC, BHN, Cox, and Comcast systems without delay, pursuant to the
    terms of a carriage agreement similar to that accorded to MOJO.[^27]
    To the extent one or more of the systems claim to lack capacity to
    add an additional channel, WealthTV asks the Commission to order the
    system to delete an affiliated programming service to accommodate
    the addition of WealthTV.[^28] WealthTV also urges the Commission to
    order TWC, BHN, Cox, and Comcast to comply with any documentary and
    interrogatory discovery that may be reasonably necessary to resolve
    the issues in dispute.[^29] Moreover, WealthTV requests the
    Commission to order the ALJ to use "baseball style arbitration"
    rules to resolve the complaints.[^30]

### WealthTV v. TWC

10. After reviewing the pleadings and supporting documentation filed by
    the parties, we find that WealthTV has established a *prima facie*
    showing of discrimination under Section 76.1301(c). TWC is an MVPD
    and the second largest cable operator in the nation as measured by
    number of subscribers.[^31] As of September 30, 2007, TWC operated
    cable systems that pass approximately 26 million homes and provided
    service to 13.3 million basic video subscribers in 33 states.[^32]
    TWC operates the largest cable systems as measured by number of
    subscribers in the nation's two largest cities, New York City and
    Los Angeles.[^33] TWC is affiliated with MOJO, a video programming
    vendor.[^34] According to TWC, MOJO's orientation is "exclusively
    male" and its principal programming consists of sports, movies,
    music concerts, and reality series.[^35] On May 7, 2007, WealthTV
    provided TWC with a pre-filing notice pursuant to Section 76.1302(b)
    of the Commission's rules informing TWC of its intent to file a
    program carriage complaint.[^36] On December 20, 2007, WealthTV
    filed its complaint, alleging that TWC violated Section 76.1301(c)
    by refusing to carry WealthTV while granting carriage to its
    affiliated MOJO service.[^37]

#### Background

11. WealthTV states that it has been seeking carriage on TWC systems
    since prior to its launch in June 2004.[^38] WealthTV explains that
    it proposed to provide its high definition ("HD") video on demand
    ("VOD") service to TWC free of charge provided that TWC grant it a
    "hunting license"[^39] and commit to launch WealthTV in its linear
    line-up in one TWC system.[^40] TWC rejected this proposal because
    it was unwilling to commit to a linear launch on even one
    system.[^41] In December 2007, TWC offered a compromise whereby it
    agreed not to launch WealthTV's free HD VOD service until after it
    launched WealthTV in its linear line-up in one system.[^42]
    According to TWC, this proposal was meant to address WealthTV's
    concern that TWC could launch its free HD VOD service without ever
    launching WealthTV on a linear basis.[^43] WealthTV rejected this
    proposal because it still did not guarantee a linear launch in even
    one system.[^44] TWC contends that it offered WealthTV a hunting
    license that was similar to the deals it has offered to dozens of
    other programmers, including some of its affiliated programmers, and
    that WealthTV has accepted a hunting license from other MVPDs that
    have no ownership interest in MOJO, such as Charter.[^45] As
    WealthTV explains, however, its agreement with Charter guarantees a
    linear launch in a set number of systems, whereas TWC refused to
    commit to linear carriage in even one system.[^46] Moreover,
    WealthTV states that TWC has launched MOJO on a nationwide basis
    while it has offered WealthTV only a hunting license, thereby
    demonstrating TWC's discriminatory treatment.[^47] WealthTV also
    states that a hunting license with TWC is meaningless given the
    reluctance of TWC's corporate programming group to agree to carriage
    of WealthTV even if individual systems desire to carry the
    network.[^48] In its Motion to Strike, TWC states that, after the
    filing of the WealthTV complaint, it acceded to WealthTV's demands
    and proposed a hunting license coupled with a firm commitment for
    linear carriage of WealthTV on TWC's San Antonio system.[^49] In its
    Reply, WealthTV admits that discussions between TWC and WealthTV
    have continued after the filing of the Complaint, but states that it
    cannot address these discussions because the Commission's rules
    require a Reply to be responsive to matters contained in the Answer
    and not contain new matters.[^50]

#### Similarly Situated

12. As discussed below, WealthTV has provided the following evidence
    that MOJO is "substantially similar to WealthTV" with respect to
    programming, target demographic (affluent males aged 25 to 49),
    target audience, look and feel, targeted programming theme, and
    target advertisers.[^51]

13. *Similar programming*. WealthTV provides examples of similar
    programming that both WealthTV and MOJO offer, regarding topics such
    as wine, automobiles, sports interviews, food, and electronics.[^52]
    For example, in June 2004, WealthTV launched *Taste! The Beverage
    Show*, which focuses on educating viewers about wine and spirits; in
    April 2007, MOJO launched *Uncorked*, which focuses on the same
    subject matter.[^53] In June 2004, WealthTV launched *Wealth on
    Wheels*, which focuses on the latest trends in automotive
    technology; in August 2007, MOJO launched *Test Drive*, which
    focuses on the same subject matter.[^54] In June 2004, WealthTV
    launched *Charlie Jones, Live to Tape*, which features interviews of
    sports figures; MOJO shows *Timeless*, which also features
    interviews of sports figures.[^55] In June 2004, WealthTV launched
    *Taste of Life*, which educates viewers about behind the scenes
    experiences with travel, spirits, and food; in June 2006, MOJO
    launched *After Hours*, which focuses on a behind the scenes look at
    Los Angeles restaurants.[^56] In April 2005, WealthTV launched
    *Innov8*, which educates viewers about new "gadgets and gizmos"; in
    December 2006, MOJO launched *Geared Up*, which focuses on high-end
    electronics and technology.[^57] WealthTV also provides an affidavit
    from Jedd Palmer, a consultant with more than twenty-five years of
    experience in the cable industry, who reviewed the programming
    schedules of MOJO and WealthTV and concludes that "the overwhelming
    majority of the programming on both networks is the same, or very,
    very similar, in subject, type, feel, look and target
    audience."[^58]

14. *Similar target demographics*. WealthTV provides evidence that
    WealthTV and MOJO both are focused on the same target demographic
    \-- affluent males aged 25 to 49. WealthTV provides the results of a
    survey demonstrating that the demographics of WealthTV's viewers are
    affluent males aged 25 to 49.[^59] The results of the survey
    indicate that 71 percent of WealthTV's audience is male and 55
    percent have incomes greater than \$75,000.[^60] TWC provides
    similar results for MOJO \-- 72 percent of its audience is male and
    61 percent have incomes greater than \$75,000.[^61] WealthTV also
    provides an excerpt from a 2004 presentation where WealthTV
    described its programming as geared towards males 25 to 49.[^62]
    WealthTV notes that the CEO of iN DEMAND has stated that MOJO is for
    "men making more than \$100,000 per year."[^63] MOJO has also used
    the term "active affluents" to describe its target audience.[^64] In
    his declaration, Jedd Palmer concludes that WealthTV targets the
    same audience as MOJO based on his review of marketing materials,
    press releases, and the networks' schedules and programming.[^65]
    Descriptions of WealthTV and MOJO's programming found on their
    respective websites further suggests the two networks offer similar
    programming.[^66]

15. *Similar focus on a targeted audience rather than on general
    entertainment*. WealthTV explains that iN DEMAND announced the
    launch of MOJO in March 2007, almost three years after the launch of
    WealthTV.[^67] WealthTV notes that, upon the launch of MOJO, TWC
    agreed to offer the channel across all of its systems carrying
    HD.[^68] While TWC claims that the service now known as MOJO was
    originally launched in 2003 under the name INHD, before the launch
    of WealthTV,[^69] WealthTV provides evidence that MOJO did not
    result from merely a name change[^70] and that MOJO is a targeted
    programming service whereas INHD was a general entertainment
    service.[^71] WealthTV notes that the CEO of iN DEMAND stated that
    INHD could not survive as "general entertainment programming," thus
    INHD was converted into a targeted programming service with similar
    programming to WealthTV.[^72] In his declaration, Jedd Palmer
    concludes that "MOJO is not a general entertainment service, but
    rather a highly targeted niche programming service."[^73]

16. *Similar target advertisers*. WealthTV explains that it targets the
    same advertisers as MOJO.[^74] WealthTV explains that both WealthTV
    and MOJO feature programming on wine and spirits and both networks
    have targeted the same advertising agency for Grey Goose Vodka.[^75]

17. TWC disputes that WealthTV and MOJO are similar programming services
    or that they have similar target demographics.[^76] TWC appears to
    be arguing that a complainant must demonstrate that its programming
    is identical to an affiliated network in order to demonstrate
    discrimination. We find that this is a misreading of the program
    carriage statute and our rules.

#### Differential Treatment

18. WealthTV argues that TWC has treated WealthTV differently than MOJO
    by carrying MOJO on its systems but refusing to carry WealthTV on
    those same systems. While TWC claims that it recently offered
    WealthTV a hunting license coupled with a firm commitment for linear
    carriage of WealthTV on TWC's San Antonio system,[^77] the salient
    issue for our analysis is that TWC has launched its affiliated MOJO
    network on a nationwide basis but it has refused to carry WealthTV
    on the same terms.

#### Harm to Ability to Compete

19. As required by the program carriage statute and our rules, WealthTV
    has provided evidence that TWC's refusal to carry WealthTV restrains
    its ability to compete fairly.[^78] WealthTV provides evidence that
    advertisers are not interested in placing advertisements on
    programming services that are available to fewer than 20 million
    households.[^79] Absent carriage on one or both of the largest cable
    MSOs, such as TWC or Comcast, a programmer's ability to attract
    advertisers is impeded and its long-term financial viability is
    limited.[^80] In addition, WealthTV provides evidence that TWC has
    "quasi monopolies" in key markets, such as New York and Los Angeles,
    that are essential to WealthTV's long-term viability.[^81] WealthTV
    also notes that many MVPDs refuse to carry a programming service
    that has been denied carriage by TWC.[^82] WealthTV explains further
    that TWC's refusal to carry WealthTV has harmed WealthTV's ability
    to bargain with advertisers and other cable systems.[^83] TWC argues
    that WealthTV could meet a 20 million subscriber benchmark through
    carriage agreements with other large MVPDs, including MVPDs with no
    affiliation with MOJO, such as DIRECTV and DISH Network, but that
    WealthTV has failed to reach carriage agreements with these MVPDs as
    well.[^84] We reject this claim because it would effectively exempt
    all MVPDs from program carriage obligations based on the possibility
    of carriage on other MVPDs. Moreover, the program carriage provision
    of the Act prohibits an MVPD from discriminating against an
    unaffiliated programmer regardless of the competition the MVPD
    faces.

#### Alleged Business and Editorial Justifications for TWC's Refusal to Carry WealthTV

20. TWC offers a number of alleged business and editorial justifications
    for its refusal to carry WealthTV but to carry MOJO. First, TWC
    claims that its minority stake in MOJO does not provide a sufficient
    basis to influence its decision regarding carriage of WealthTV.[^85]
    A determination whether the program carriage rules have been
    violated does not turn on whether or not TWC has a minority stake in
    the affiliated programmer, but rather it focuses on the factors we
    have identified above. Indeed, TWC admits that its interest in MOJO
    satisfies the attribution threshold, thus the program carriage rules
    apply to its conduct regarding carriage of MOJO.[^86]

21. Second, TWC claims that the video marketplace is competitive and
    that no MVPD can afford to keep "a programming service with
    attractive pricing and content off its systems based on ownership if
    doing so would cost it subscribers."[^87] We reject this claim
    because it would effectively require a program carriage complainant
    to demonstrate that an MVPD's failure to carry its service will
    cause subscribers to switch to other MVPDs that do carry the
    service.[^88] This is not a requirement of the program carriage
    statute or our rules. In addition, because TWC carries an affiliated
    programming service, MOJO, that provides programming that is
    substantially similar to WealthTV, there is even less reason for
    TWC's subscribers to switch to a competitor that carries
    WealthTV.[^89]

22. Third, TWC states that its decision to carry a channel depends on
    capacity constraints; the proven track record of success of the
    channel; the experience of the channel's management team; the
    subscriber interest in the channel; input from TWC's division
    management; and the terms offered by the channel.[^90] TWC argues
    that WealthTV has no proven audience demand and is led by
    individuals with no experience in creating a national cable
    network.[^91] WealthTV, on its behalf, has provided evidence
    demonstrating that it is an established channel with experienced
    management[^92] and proven consumer appeal, as demonstrated by: (i)
    its linear carriage on 75 MVPDs to date;[^93] (ii) a sampling of
    e-mails from viewers reflecting their support for the
    channel;[^94] (iii) the interest in the channel expressed by
    representatives of individual TWC systems;[^95] and (iv) the
    decision of TWC's San Antonio system to launch WealthTV's HD VOD
    service in March 2007.[^96]

23. Fourth, TWC states that it made the same business decision as many
    other MVPDs, including Direct Broadcast Satellite ("DBS") operators
    DIRECTV and DISH Network, that WealthTV did not warrant carriage
    given the terms it was demanding.[^97] WealthTV explains, however,
    that the decision of DBS operators to refrain from carrying WealthTV
    is irrelevant because they do not carry MOJO either.[^98]

#### Conclusion

24. We conclude that WealthTV has established a *prima facie* showing
    that TWC has discriminated against WealthTV in violation of the
    program carriage rules. []{.mark}

### WealthTV v. BHN

25. After reviewing the pleadings and supporting documentation filed by
    the parties, we find that WealthTV has established a *prima facie*
    showing of discrimination under Section 76.1301(c). BHN is an MVPD
    and the sixth largest cable operator in the nation as measured by
    number of subscribers.[^99] BHN is a subsidiary of Time Warner
    Entertainment -- Advance/Newhouse Partnership, a general partnership
    whose interests are held by subsidiaries of TWC and by
    Advance/Newhouse.[^100] As of March 2008, BHN owned, managed, or
    controlled cable systems that serve 2,312,000 basic video
    subscribers in various regions, including Indianapolis, Central
    Florida (Orlando area), Daytona Beach area, Tampa Bay area,
    Birmingham-Hoover area, west suburban Detroit, and
    Bakersfield.[^101] BHN is affiliated with MOJO, a video programming
    vendor.[^102] According to BHN, MOJO's orientation is "exclusively
    male" and its principal programming consists of sports, movies,
    music concerts, and reality series.[^103] On May 15, 2007, WealthTV
    provided BHN with a pre-filing notice pursuant to Section 76.1302(b)
    of the Commission's rules informing BHN of its intent to file a
    program carriage complaint.[^104] As discussed further below, on
    March 13, 2008, WealthTV filed its complaint, alleging that BHN
    violated Section 76.1301(c) by refusing to carry WealthTV while
    granting carriage to its affiliated MOJO service.[^105]

#### Background

26. WealthTV states that it has been seeking carriage on BHN systems
    since the summer of 2004.[^106] WealthTV describes its visits with
    BHN representatives in leading markets and claims that
    representatives of several BHN systems, including those in the Tampa
    Bay market, expressed an interest in carrying WealthTV, especially
    because Verizon FIOS TV offered WealthTV in both standard digital
    and HD formats in Tampa Bay.[^107] WealthTV claims that Anne Stith,
    formerly BHN's Director of Product Marketing for the Tampa Division,
    told WealthTV's President in July 2006 that BHN would like to launch
    WealthTV as soon as WealthTV completed a deal with TWC.[^108]
    WealthTV also notes that it was making its service available for
    free through 2008.[^109] BHN and Ms. Stith, however, state that Ms.
    Stith had no authority to make programming commitments on behalf of
    BHN and that most programmers understood that BHN was covered by the
    programming agreements negotiated by TWC.[^110] Moreover, Ms. Stith
    states that her inquiries of WealthTV were purely for purposes of
    research and that she never made statements indicating that BHN
    would be interested in carrying WealthTV.[^111] When WealthTV's Vice
    President of Affiliate Relations, John Scaro, contacted BHN's
    President, Steve Miron, Mr. Miron informed Mr. Scaro that BHN is
    covered by the programming agreements that TWC negotiates with
    national networks and that further direct negotiations with BHN
    would not be an efficient use of time.[^112] Based on this, WealthTV
    concludes that BHN was prepared to carry WealthTV but for the
    absence of a carriage agreement with TWC.[^113] WealthTV states that
    BHN thus completely refused to negotiate with WealthTV.[^114]
    WealthTV states the BHN is required to comply with the program
    carriage rules and cannot use its reliance on TWC to negotiate
    programming agreements as a defense.[^115]

#### Similarly Situated

27. WealthTV provides similar evidence submitted in connection with its
    complaint against TWC purporting to demonstrate that WealthTV and
    MOJO are similarly situated.[^116] BHN notes some general
    dissimilarities between specific programming on WealthTV and
    MOJO.[^117] BHN appears to be arguing that a complainant must
    demonstrate that its programming is identical to an affiliated
    network in order to demonstrate discrimination. We find that this is
    a misreading of the program carriage statute and our rules.

#### Differential Treatment

28. WealthTV argues that BHN has treated WealthTV differently by
    carrying MOJO on its systems but refusing to carry WealthTV on those
    same systems.

#### Harm to Ability to Compete

29. As required by the program carriage statute and our rules, WealthTV
    has provided evidence that BHN's refusal to carry WealthTV restrains
    its ability to compete fairly.[^118] WealthTV notes that BHN's
    decision to carry MOJO but to deny carriage to WealthTV provides
    MOJO with a first mover advantage with respect to the viewers and
    advertisers each network targets.[^119] WealthTV also explains that
    an independent channel must be available to at least 20 million
    subscribers in order to attract national advertisers and to achieve
    financial viability.[^120] WealthTV states that the inability to
    obtain carriage on BHN systems makes it more difficult for
    independent programmers to reach this level of subscribership.[^121]
    WealthTV also alleges that obtaining carriage in major markets where
    BHN owns cable systems, such as Tampa and Orlando, is essential for
    attracting advertisers.[^122] According to WealthTV, many MVPDs
    refuse to carry a programming service that has been denied carriage
    by TWC and BHN.[^123] In addition, WealthTV states that BHN's
    refusal to carry WealthTV has harmed WealthTV's ability to bargain
    with advertisers and other cable systems.[^124]

30. In response, BHN argues that carriage on its systems is not
    necessary in order to reach the 20 million subscriber
    benchmark.[^125] The program carriage rules, however, apply to all
    MVPDs, regardless of their subscriber base.[^126] BHN claims that
    WealthTV could meet this benchmark through carriage agreements with
    other MVPDs, including MVPDs with no affiliation with MOJO, such as
    DIRECTV and DISH Network, but that WealthTV has failed to reach
    carriage agreements with these MVPDs as well.[^127] We reject this
    claim because it would effectively exempt all MVPDs from program
    carriage obligations based on the possibility of carriage on other
    MVPDs. Moreover, the program carriage provision of the Act prohibits
    an MVPD from discriminating against an unaffiliated programmer
    regardless of the competition the MVPD faces. While BHN asserts that
    the 20 million subscriber benchmark cannot apply to an HD network
    such as WealthTV because there are fewer than 20 million HD
    customers nationwide,[^128] WealthTV responds that its HD feed is
    also available as a downconverted standard definition ("SD") feed
    that can be viewed by all subscribers.[^129] While BHN notes that
    WealthTV has been operational for four years despite the lack of a
    carriage agreement with BHN,[^130] we agree with WealthTV that the
    more pertinent consideration is its ability to compete over the long
    term absent a carriage agreement with BHN.[^131]

#### Alleged Business and Editorial Justifications for BHN's Refusal to Carry WealthTV

31. BHN offers a number of alleged business and editorial justifications
    for its refusal to carry WealthTV but to carry MOJO. First, BHN
    claims that its five percent economic interest in MOJO does not
    provide a sufficient basis to influence its decision regarding
    carriage of WealthTV.[^132] BHN admits, however, that its interest
    in MOJO satisfies the attribution threshold, thus the program
    carriage rules apply to its conduct regarding carriage of
    MOJO.[^133]

32. Second, BHN claims that the video marketplace is competitive and
    that "customers will take their business elsewhere if BHN fails to
    offer them desirable services at a fair price."[^134] We reject this
    claim because it would effectively require a program carriage
    complainant to demonstrate that an MVPD's failure to carry the
    service will cause subscribers to switch to other MVPDs that do
    carry the service.[^135] In addition, because BHN carries its
    affiliated programming service, MOJO, that provides programming that
    is substantially similar to WealthTV, there is even less reason for
    BHN's subscribers to switch to a competitor that carries
    WealthTV.[^136]

33. Third, BHN claims that its negotiations reflect "sound business and
    editorial judgment."[^137] Specifically, BHN states that its
    decision to carry a channel depends on capacity constraints; whether
    the channel is carried by competitors; the experience of the
    channel's management team; the overall product mix of the BHN
    system; subscriber demand for the channel; input from BHN's division
    management; and the terms offered by the channel.[^138] BHN contends
    that WealthTV has no proven consumer demand and is managed by
    individuals with no experience in launching successful
    networks.[^139] WealthTV, for its part, has provided evidence
    demonstrating that it is an established channel with experienced
    management[^140] and proven consumer appeal, as demonstrated by: (i)
    its linear carriage on 75 MVPDs to date;[^141] (ii) a sampling of
    e-mails from viewers reflecting their support for the channel;[^142]
    and (iii) the interest in the channel expressed by representatives
    of individual BHN systems.[^143] WealthTV also provides the results
    of an independent survey which reports that WealthTV's HD VOD
    product ranked fourth out of twenty HD services.[^144]

34. Fourth, BHN contends that virtually all of the MVPDs that do not
    carry WealthTV are not affiliated with MOJO, again demonstrating
    that decisions regarding carriage of WealthTV are not based on
    affiliation.[^145] For example, BHN notes that DBS operators,
    DIRECTV and DISH Network, do not carry WealthTV.[^146] WealthTV
    explains that the decision of DBS operators to refrain from carrying
    WealthTV is irrelevant because they do not carry MOJO either.[^147]
    Moreover, WealthTV notes that Verizon, BHN's wireline competitor in
    Tampa, carries WealthTV but not MOJO.[^148] In any event, we agree
    with WealthTV that the salient fact is that each owner of the
    cable-affiliated MOJO network has refused to carry WealthTV, and a
    discrimination claim requires the Commission to assess why these
    cable operators have refused to carry WealthTV but have decided to
    carry MOJO.[^149]

#### Conclusion

35. We conclude that WealthTV has established a *prima facie* that BHN
    has discriminated against WealthTV in violation of the program
    carriage rules.

### WealthTV v. Cox

36. After reviewing the pleadings and supporting documentation filed by
    the parties, we find that WealthTV established a *prima facie*
    showing of discrimination under Section 76.1301(c). Cox is an MVPD
    and the third largest cable operator in the nation.[^150] Cox
    provides cable services to over six million customers in numerous
    regions across the United States, including Southern California, New
    England, Arizona, Las Vegas, Oklahoma, Kansas, Hampton Roads, and
    Central Florida.[^151] Cox is affiliated with MOJO, a video
    programming vendor.[^152] According to Cox, MOJO's orientation is
    "exclusively male" and its principal programming consists of sports,
    movies, music concerts, and reality series.[^153] On May 7, 2007,
    WealthTV provided Cox with a pre-filing notice pursuant to Section
    76.1302(b) of the Commission's rules informing Cox of its intent to
    file a program carriage complaint.[^154] As discussed further below,
    on March 27, 2008, WealthTV filed its complaint, alleging that Cox
    violated Section 76.1301(c) by refusing to carry WealthTV while
    granting carriage to its affiliated MOJO service.[^155]

#### Background

37. WealthTV states that it has been seeking carriage on Cox systems
    since the summer of 2004, but that Cox has refused to negotiate in
    good faith.[^156] WealthTV discusses its visits with representatives
    of individual Cox systems in leading markets during 2004 and 2005
    and claims that some of these systems expressed a strong desire to
    carry WealthTV.[^157] Cox states that its programming negotiations
    are conducted at the corporate level and provides declarations from
    representatives of individual Cox systems stating that they informed
    WealthTV that all carriage decisions are made by Cox's corporate
    programming department.[^158] Cox states that it informed WealthTV
    at a May 2005 meeting that the interest expressed by a few
    individual systems was insufficient to justify carriage of WealthTV
    and that it was denying carriage to WealthTV.[^159] WealthTV states
    that it considered Cox's comments to be a form of bargaining and
    that Cox did not state that a final decision had been made to deny
    carriage to WealthTV.[^160]

#### Procedural Issues

38. Cox contends that the WealthTV complaint is barred by the program
    carriage statute of limitations because the complaint does not
    allege any act by Cox occurring within one year of the Complaint or
    the pre-filing notice.[^161] Rather, according to Cox, the last
    formal contact between WealthTV and Cox alleged in the complaint
    occurred no later than a June 7, 2005 letter; thus, Cox claims that
    the statute of limitations required WealthTV to file its complaint
    no later than June 7, 2006.[^162] We reject Cox's claim for the
    following reasons. First, WealthTV states that Cox never expressed a
    final decision to deny carriage to WealthTV and provides evidence
    that communications between Cox and WealthTV continued after June
    2005.[^163] Second, WealthTV states that it was not until the launch
    of MOJO in March 2007 and the failure of subsequent carriage
    discussions when it became obvious to WealthTV that Cox intended to
    favor its affiliated MOJO service.[^164] Third, the plain language
    of the Commission's rules provides that the statute of limitations
    is satisfied if the program carriage complaint is filed within one
    year of the pre-filing notice, which WealthTV has done in this
    case.[^165]

#### Similarly Situated

39. WealthTV provides similar evidence submitted in connection with its
    complaint against TWC purporting to demonstrate that WealthTV and
    MOJO are similarly situated.[^166] Cox notes some general
    dissimilarities between specific programming on WealthTV and
    MOJO.[^167] Cox appears to be arguing that a complainant must
    demonstrate that its programming is identical to an affiliated
    network in order to demonstrate discrimination. We find that this is
    a misreading of the program carriage statute and our rules.

#### Differential Treatment

40. WealthTV argues that Cox has treated WealthTV differently by
    carrying MOJO on its systems but refusing to carry WealthTV on those
    same systems.

#### Harm to Ability to Compete

41. As required by the program carriage statute and our rules, WealthTV
    has provided evidence that Cox's refusal to carry WealthTV restrains
    its ability to compete fairly.[^168] WealthTV explains that Cox's
    decision to carry MOJO but to deny carriage to WealthTV provides
    MOJO with a first mover advantage with respect to the viewers and
    advertisers each network targets.[^169] WealthTV also submits that
    an independent channel must be available to at least 20 million
    subscribers in order to attract national advertisers and to achieve
    financial viability.[^170] WealthTV states that the inability to
    obtain carriage on Cox systems makes it more difficult for
    independent programmers to reach this level of subscribership.[^171]
    In addition, WealthTV explains that obtaining carriage in major
    markets where Cox owns or operates systems, such as Central Florida,
    New England, Phoenix, and San Diego, is essential for attracting
    advertisers.[^172] According to WealthTV, many MVPDs refuse to carry
    a programming service that has been denied carriage by Cox.[^173] In
    addition, Cox's refusal to carry WealthTV has harmed WealthTV's
    ability to bargain with advertisers and other cable systems.[^174]

42. In response, Cox does not dispute that 20 million subscribers are
    needed for a channel to achieve long-term viability,[^175] but
    states that it serves approximately six million MVPD households,
    thereby making carriage on its systems not necessary in order to
    reach the 20 million subscriber benchmark.[^176] The program
    carriage rules, however, apply to all MVPDs, regardless of their
    subscriber base.[^177] Cox also claims that WealthTV could meet this
    benchmark through carriage agreements with other MVPDs, including
    MVPDs with no affiliation with MOJO, such as DIRECTV and DISH
    Network, but that WealthTV has failed to reach carriage agreements
    with these MVPDs as well.[^178] We reject this claim because it
    would effectively exempt all MVPDs from program carriage obligations
    based on the possibility of carriage on other MVPDs. Moreover, the
    program carriage provision of the Act prohibits an MVPD from
    discriminating against an unaffiliated programmer regardless of the
    competition the MVPD faces. Cox also asserts that the 20 million
    subscriber benchmark cannot apply to an HD network such as WealthTV
    because there are fewer than 20 million HD customers
    nationwide.[^179] WealthTV explains, however, that its HD feed is
    also available as a downconverted SD feed that can be viewed by all
    subscribers.[^180] While Cox notes that WealthTV has obtained
    carriage on a number of MVPDs despite the lack of a carriage
    agreement with Cox,[^181] we agree with WealthTV that the more
    pertinent consideration is its ability to compete over the long term
    absent a carriage agreement with Cox.[^182]

#### Alleged Business and Editorial Justifications for Cox's Refusal to Carry WealthTV

43. Cox offers a number of alleged business and editorial justifications
    for its refusal to carry WealthTV but to carry MOJO. First, Cox
    claims that its minority interest in MOJO does not provide a
    sufficient basis for Cox to decline to carry WealthTV.[^183] Cox
    admits, however, that its interest in MOJO satisfies the attribution
    threshold, thus the program carriage rules apply to its conduct
    regarding carriage of MOJO.[^184]

44. Second, Cox claims that it declined to carry WealthTV based on
    "sound business considerations and reasonable editorial
    judgment."[^185] Specifically, Cox states that its decision to carry
    a channel depends on the following criteria: likely viewer appeal;
    the quality of the programming; whether the channel has a proven
    track record of attracting viewers or is associated with an
    established brand; the likelihood of the channel's success
    considering its management team and business plan; bandwidth
    management; proposed terms of carriage; the local needs of Cox's
    cable systems; and whether the channel has a regional appeal that
    might be attractive to certain systems. Cox claims that WealthTV
    does not justify carriage based on these criteria.[^186] WealthTV
    argues that it satisfies Cox's selection criteria.[^187] For
    example, WealthTV asserts that it is an established channel with
    experienced management;[^188] offered very favorable terms for
    carriage;[^189] and that Cox's alleged concern regarding bandwidth
    constraints from carrying an HD channel are not a valid concern
    because WealthTV was offering SD digital and VOD products in
    addition to HD.[^190] WealthTV also provides evidence that it has
    proven viewer appeal, as demonstrated by: (i) its linear carriage on
    75 MVPDs to date;[^191] (ii) a sampling of e-mails from viewers
    reflecting their support for the channel;[^192] (iii) the interest
    in the channel expressed by representatives of various Cox
    systems;[^193] (iv) the interest expressed by Cox-San Diego and a
    Cox programming network in San Diego (4SD -- High Definition) in
    carrying WealthTV-produced content;[^194] and (v) the interest
    expressed by a CBS affiliate in Las Vegas in carrying WealthTV as a
    multicast channel, which the General Manager of Cox-Las Vegas
    refused to carry because of the potential for negative customer
    reaction if the CBS affiliate were to drop the WealthTV
    programming.[^195]

45. Third, Cox contends that most of the MVPDs that do not carry
    WealthTV are not affiliated with MOJO, thus demonstrating that
    decisions to refrain from carrying WealthTV are not based on
    affiliation.[^196] For example, Cox notes that DBS operators,
    DIRECTV and DISH Network, do not carry WealthTV.[^197] WealthTV
    explains, however, that the decision of DBS operators to refrain
    from carrying WealthTV is irrelevant because they do not carry MOJO
    either.[^198] In any event, we agree with WealthTV that the salient
    fact is that each owner of the cable-affiliated MOJO network has
    refused to carry WealthTV, and a discrimination claim requires the
    Commission to assess why these cable operators have decided to
    refuse carriage to WealthTV.[^199]

#### Conclusion

46. We conclude that WealthTV has established a *prima facie* showing
    that Cox has discriminated against WealthTV in violation of the
    program carriage rules. []{.mark}

### WealthTV v. Comcast

47. After reviewing the pleadings and supporting documentation filed by
    the parties, we find that WealthTV has established a *prima facie*
    showing of discrimination under Section 76.1301(c). Comcast is an
    MVPD and the largest cable operator in the nation as measured by
    number of subscribers.[^200] Comcast serves over 24 million basic
    video subscribers in thirty-nine states and the District of
    Columbia.[^201] Comcast operates the largest cable systems in
    Philadelphia, Chicago, Boston, San Francisco, Washington, D.C., and
    Houston.[^202] Comcast is affiliated with MOJO, a video programming
    vendor.[^203] According to Comcast, MOJO is aimed at
    18-to-49-year-old males and its principal programming consists of
    sports, movies, and concerts.[^204] On May 3, 2007, WealthTV
    provided Comcast with a pre-filing notice pursuant to Section
    76.1302(b) of the Commission's rules informing Comcast of its intent
    to file a program carriage complaint.[^205] As discussed further
    below, on April 21, 2008, WealthTV filed its complaint, alleging
    that Comcast violated Section 76.1301(c) by refusing to carry
    WealthTV while granting carriage to its affiliated MOJO
    service.[^206]

#### Background

48. WealthTV states that it has been seeking carriage on Comcast systems
    since early to mid-2004.[^207] WealthTV discusses its visits with
    Comcast representatives in leading markets and claims that systems
    in Comcast's Atlantic Division, San Francisco, Washington
    DC/Virginia, Chicago, Washington state, and Florida all expressed
    interest in carrying WealthTV.[^208] According to WealthTV, in the
    summer of 2004, Comcast's corporate programming group acknowledged
    the interest among Comcast systems in carrying WealthTV but Comcast
    refused to engage in meaningful negotiations.[^209] WealthTV alleges
    that Alan Dannenbaum, Comcast's Corporate Senior Vice President of
    Programming, stated in the second half of 2004 that a draft carriage
    agreement would be forthcoming but blamed "scarce resources" for the
    failure to produce a draft.[^210] Comcast states that neither its
    corporate management nor any individual Comcast system expressed an
    interest in carrying WealthTV.[^211]

49. In August 2006, WealthTV representatives, including WealthTV's
    President, Charles Herring, met with Mr. Dannenbaum.[^212] According
    to WealthTV, Mr. Dannenbaum stated that "Comcast will not allow
    another MTV to be made on Comcast's back without owning it."[^213]
    WealthTV states that it understood this to mean that Comcast would
    not allow a non-affiliated network to become successful without
    owning it.[^214] WealthTV states that this is direct evidence of
    discrimination in Comcast's carriage decisions.[^215] Comcast
    provides a declaration from Mr. Dannenbaum in which he denies making
    this statement.[^216]

50. Comcast states that it made two offers to carry WealthTV in April
    2008, after WealthTV sent its pre-filing notice but prior to the
    filing of the Complaint.[^217] WealthTV counters that Comcast never
    made a firm offer for carriage during these discussions and that
    none of the proposals was remotely comparable to the terms and
    conditions offered to MOJO.[^218]

#### Similarly Situated

51. WealthTV provides similar evidence submitted in connection with its
    complaint against TWC purporting to demonstrate that WealthTV and
    MOJO are similarly situated.[^219] Comcast notes some general
    dissimilarities between specific programming on WealthTV and
    MOJO.[^220] Comcast appears to be arguing that a complainant must
    demonstrate that its programming is identical to an affiliated
    network in order to demonstrate discrimination. We find that this is
    a misreading of the program carriage statute and our rules.

#### Differential Treatment

52. WealthTV argues that Comcast has treated WealthTV differently by
    carrying MOJO on its systems but refusing to carry WealthTV on those
    same systems. While Comcast claims that it recently offered WealthTV
    a hunting license coupled with a firm commitment for linear carriage
    of WealthTV on a system in the Chicago DMA,[^221] the salient issue
    for our analysis is that Comcast has launched its affiliated MOJO
    network on a nationwide basis but it has refused to carry WealthTV
    on the same terms.

#### Harm to Ability to Compete

53. As required by the program carriage statute and our rules, WealthTV
    has provided evidence that Comcast's refusal to carry WealthTV
    restrains its ability to compete fairly.[^222] WealthTV explains
    that Comcast's decision to carry MOJO while denying carriage to
    WealthTV provides MOJO with a first mover advantage with respect to
    the viewers and advertisers each network targets.[^223] WealthTV
    also claims that an independent channel must be available to at
    least 20 million subscribers in order to attract national
    advertisers and to achieve financial viability.[^224] WealthTV
    states that the inability to obtain carriage on Comcast systems
    makes it more difficult for independent programmers to reach this
    level of subscribership.[^225] WealthTV also explains that obtaining
    carriage in major markets where Comcast owns or operates cable
    systems, such as Philadelphia, Chicago, San Francisco, Boston,
    Washington, and Houston, is essential for attracting
    advertisers.[^226] According to WealthTV, cable systems and
    satellite companies look to Comcast in making programming decisions,
    thereby making Comcast's refusal to carry WealthTV particularly
    harmful.[^227] In addition, Comcast's refusal to carry WealthTV has
    harmed WealthTV's ability to bargain with advertisers and other
    cable systems.[^228]

54. In response, Comcast claims that carriage on its competitors, such
    as DIRECTV, DISH Network, AT&T, and Verizon, would allow WealthTV to
    reach its subscriber goals.[^229] We reject this claim because it
    would effectively exempt all MVPDs from program carriage obligations
    based on the possibility of carriage on other MVPDs.[^230] Moreover,
    the program carriage provision of the Act prohibits an MVPD from
    discriminating against an unaffiliated programmer regardless of the
    competition the MVPD faces.[^231] Comcast also states that WealthTV
    could distribute its programming on alternative distribution
    platforms, such as VOD or the Internet.[^232] The program carriage
    statute, however, does not excuse an MVPD's discriminatory conduct
    based on the possibility of alternative distribution
    platforms.[^233]

#### Alleged Business and Editorial Justifications for Comcast's Refusal to Carry WealthTV

55. Comcast offers a number of alleged business and editorial
    justifications for its refusal to carry WealthTV but to carry MOJO.
    First, Comcast states that it declined to carry WealthTV on terms
    similar to MOJO based on its business and editorial judgment.[^234]
    Specifically, Comcast states that its decision to carry a channel
    depends on capacity constraints; the type and quality of the
    programming; the channel's track record of producing programming;
    evidence of consumer appeal for the channel; the experience of the
    channel's management team; and the terms offered by the
    channel.[^235] Based on these factors, Comcast contends that it
    determined that WealthTV does not warrant extensive carriage.[^236]
    WealthTV argues that it meets Comcast's carriage criteria,
    explaining that it is an established channel with experienced
    management[^237] and proven consumer appeal, as demonstrated by: (i)
    its linear carriage on 75 MVPDs to date;[^238] (ii) a sampling of
    e-mails from viewers reflecting their support for the
    channel;[^239] (iii) the interest in the channel expressed by
    representatives of various Comcast systems as well as favorable
    comments about WealthTV made by Madison Bond, Comcast's Executive
    Vice President for Content Acquisition;[^240] and (iv) the results
    of an independent survey which reports that WealthTV's HD VOD
    product ranked fourth out of twenty HD services.[^241] WealthTV also
    notes that it offered very favorable terms for carriage.[^242]

56. Second, Comcast contends that most MVPDs do not carry WealthTV,
    including those that have no affiliation with MOJO, again
    demonstrating that decisions regarding carriage of WealthTV are not
    based on affiliation.[^243] For example, Comcast notes that DBS
    operators, DIRECTV and DISH Network, do not carry WealthTV.[^244]
    WealthTV explains, however, that the decision of DBS operators to
    refrain from carrying WealthTV is irrelevant because they do not
    carry MOJO either.[^245] Moreover, WealthTV notes that AT&T,
    Verizon, and other Comcast competitors carry WealthTV but not
    MOJO.[^246]

#### Conclusion

57. We conclude that WealthTV has established a *prima facie* showing
    that Comcast has discriminated against WealthTV in violation of the
    program carriage rules.

### Conclusion

58. In the *Second Report and Order*, the Commission stated that it
    would identify specific behavior that constitutes discrimination on
    a case-by-case basis "because the practices at issue will
    necessarily involve behavior that must be evaluated within the
    context of specific facts pertaining to each negotiation."[^247] Any
    complainant alleging a violation of the prohibition in Section
    616(a)(3) on discrimination must demonstrate that the alleged
    discrimination is "on the basis of affiliation or nonaffiliation" of
    a vendor, and that "the effect of the conduct that prompts the
    complaint is to unreasonably restrain the ability of the complainant
    to compete fairly."[^248] After reviewing the pleadings and
    supporting documentation filed by the parties, we find that WealthTV
    has established a *prima facie* case in the above-referenced cases
    under Section 76.1301(c). We also find that the pleadings and
    supporting documentation present several factual disputes as to
    whether TWC, BHN, Cox, and Comcast discriminated against WealthTV in
    favor of their affiliated MOJO service. Accordingly, we direct the
    ALJ to make and return a Recommended Decision to the Commission
    pursuant to the procedures set forth below within 60 days after
    release of this *Order*.

## NFL Enterprises v. Comcast

59. After reviewing the pleadings and supporting documentation filed by
    the parties, we find that the NFL has established a *prima facie*
    case that Comcast (i) discriminated against the NFL Network in
    violation of Section 76.1301(c) of our rules; and (ii) required a
    financial interest in the NFL's programming as a condition for
    carriage of the NFL Network, in violation of Section 76.1301(a) of
    the Commission's rules. The NFL owns the NFL Network, a video
    programming vendor as defined in Section 616(b) of the Act and
    Section 76.1300(e) of the Commission's rules.[^249] The NFL Network
    was launched in 2003 as a fan development vehicle to offer
    football-related programming.[^250] In addition to offering eight
    live NFL regular season games, the NFL Network offers pre-season
    live and tape-delayed games as well as coverage of the NFL Scouting
    Combine, the NFL Draft, team training camps, and other
    programming.[^251] The NFL states that the NFL Network is an
    independent network that is not owned by any cable or satellite
    operator.[^252] The NFL Network is currently carried by over 240
    MVPDs to 36 million subscribers nationwide.[^253] Comcast is the
    largest MVPD in the nation, with approximately 24.7 million
    subscribers.[^254] Comcast is affiliated with Versus (previously
    named the Outdoor Life Network ("OLN")), the Golf Channel, as well
    as other video programming vendors.[^255]

### Background

60. On April 17, 2008, the NFL provided Comcast with a pre-filing notice
    pursuant to Section 76.1302(b) of the Commission's rules informing
    Comcast of its intent to file a program carriage complaint.[^256] As
    discussed further below, on May 6, 2008, the NFL filed its
    complaint, alleging that Comcast (i) discriminated against the NFL
    Network in favor of its affiliated video programming vendors,
    including Versus and the Golf Channel, in violation of Section
    76.1301(c) of the Commission's rules;[^257] and (ii) required a
    financial interest in the NFL's programming as a condition for
    carriage of the NFL Network, in violation of Section 76.1301(a) of
    the Commission's rules.[^258] In its Complaint, the NFL requests the
    Commission to (i) find Comcast in violation of Sections 76.1301(a)
    and (c) of the Commission's rules; (ii) enjoin Comcast from further
    program carriage discrimination; (iii) order Comcast to carry the
    NFL Network on equitable terms that do not unreasonably restrict its
    ability to compete fairly, as determined by the Media Bureau;
    and (iv) order any other relief that may be appropriate.[^259] In
    its Reply, the NFL specifies further that the Commission should
    require Comcast to carry the NFL Network on the same tier as its
    affiliated national sports networks, Versus and the Golf Channel,
    beginning with the commencement of the fall 2008 football
    season.[^260] The NFL also contends that an extensive evidentiary
    investigation is not needed and that the Commission should promptly
    enter an Order providing its requested relief.[^261]

61. According to Comcast, the NFL approached Comcast regarding carriage
    of the NFL Network in 2003.[^262] Comcast claims that it was not
    interested in carrying the NFL Network because consumer interest in
    a football-only network without any live NFL games appeared weak;
    Comcast had bandwidth constraints; and Comcast was concerned about
    the soaring costs of sports programming.[^263] Comcast claims that
    around the time the NFL was seeking carriage for the NFL Network, it
    was also seeking to make available to MVPDs its NFL Sunday Ticket
    package[^264] and a package of eight live NFL regular season games
    (the "Eight-Game Package").[^265] Comcast states that it was
    interested in acquiring the rights to telecast the NFL Sunday Ticket
    because it had lost subscribers to DIRECTV which had exclusive
    rights to NFL Sunday Ticket.[^266] Comcast states that it was also
    interested in licensing the Eight-Game Package for its Versus
    network.[^267] According to Comcast, the NFL sought to make carriage
    of the NFL Network more attractive by coupling carriage of the NFL
    Network on a widely distributed tier with an opportunity for Comcast
    to bid on NFL Sunday Ticket and the Eight-Game Package.[^268]
    Comcast was concerned, however, that it might be forced to carry the
    NFL Network on a widely distributed tier even if it did not acquire
    the licensing rights to NFL Sunday Ticket and the Eight-Game
    Package.[^269]

62. In August 2004, the NFL and Comcast entered into a Negotiating
    Agreement regarding the NFL Sunday Ticket and the Eight-Game Package
    and an Affiliation Agreement regarding carriage of the NFL
    Network.[^270] In the Affiliation Agreement, Comcast agreed to carry
    the NFL Network on its digital basic tier (called the "D2"
    tier).[^271] The Affiliation Agreement provided that, with one
    exception, no Comcast system could distribute the NFL Network solely
    in a sports tier.[^272] The exception provided that Comcast would
    have the right to move the NFL Network from the digital basic tier
    to any tier (including a premium sports tier) if Comcast and the NFL
    did not reach an agreement by July 31, 2006 concerning carriage of
    the NFL Sunday Ticket or the Eight-Game Package (the "Conditional
    Tiering Provision").[^273] The NFL alleges that Comcast "forced" it
    to agree to the Conditional Tiering Provision.[^274] Comcast states
    that this provision was meant to address its concern that it might
    be forced to carry the NFL Network on a widely distributed tier even
    if it did not acquire the licensing rights to NFL Sunday Ticket or
    the Eight-Game Package.[^275] Comcast claims that the Conditional
    Tiering Provision was a fundamental part of the parties' agreement
    and that it would not have agreed to carry the NFL Network without
    this provision.[^276] Pursuant to this Affiliation Agreement,
    Comcast began to carry the NFL Network on its digital basic tier in
    2004.[^277] According to the NFL, from 2004 until the summer of
    2007, approximately 8.6 million Comcast customers received the NFL
    Network on the digital basic tier.[^278]

63. In November 2004, the NFL renewed its exclusive contract with
    DIRECTV for the NFL Sunday Ticket through 2010, but Comcast and the
    NFL continued negotiations regarding the Eight-Game Package.[^279]
    During the negotiations regarding the Eight-Game Package, Comcast
    claims that it reminded the NFL on more than one occasion that the
    Conditional Tiering Provision would provide Comcast with the right
    to move the NFL Network to a sports tier if Comcast did not obtain
    the rights to the Eight-Game Package for its Versus network.[^280]

64. On January 24, 2006, Comcast's Chief Executive Officer Brian Roberts
    met with then-NFL Commissioner Paul Tagliabue and others from the
    NFL.[^281] The NFL states that Mr. Tagliabue told Mr. Roberts that
    the NFL's then-current thinking was that it would not license the
    Eight-Game Package to Comcast.[^282] According to the NFL, Mr.
    Roberts "threatened that if the NFL did not license the package to
    Versus, Comcast would drop the NFL Network from the 'D2' tier and
    shift it to an undesirable premium sports tier. . . ."[^283]
    According to Comcast, Mr. Roberts was simply reminding the NFL of
    Comcast's rights under the Conditional Tiering Provision.[^284]
    Following this meeting, the NFL awarded the Eight-Game Package to
    the NFL Network.[^285]

65. According to the NFL, on January 27, 2006, Mr. Roberts "warned" Mr.
    Tagliabue that, because of the NFL's failure to license the
    Eight-Game Package to Comcast, the NFL's "relationships with the
    cable industry are going to get very interesting."[^286] Mr.
    Tagliabue states that he believes that this statement foreshadowed
    Comcast's retaliation against the NFL for refusing to license the
    Eight-Game Package to Comcast.[^287] Mr. Roberts states that he has
    no recollection of making this statement.[^288] Rather, Mr. Roberts
    states that he expressed his disappointment about the NFL's decision
    and said that he foresaw that the NFL would continue to face
    difficulties persuading cable operators to provide the NFL Network
    with broad distribution given that the Eight-Game Package would add
    significantly to the price of the network but would not improve the
    overall appeal of the content.[^289]

66. Pursuant to the Affiliation Agreement, Comcast would have the right
    to show the Eight-Game Package on the NFL Network on its cable
    systems only if Comcast agreed to an increase in the license fee for
    the NFL Network of up to \$0.55 per subscriber per month.[^290] If
    Comcast did not agree to pay this increase in the license fee, then
    the NFL Network would show alternate programming on Comcast's
    systems at the times these games would be shown.[^291] On July 27,
    2006, Comcast agreed to the fee increase.[^292] Comcast claims that
    it agreed to this fee increase only after confirming with the NFL
    that the Conditional Tiering Provision was mutually understood to
    remain in effect.[^293]

67. On September 24, 2006, Comcast announced its plans to launch the NFL
    Network on a premium sports tier on systems it had acquired from
    Time Warner.[^294] In October 2006, the NFL sued Comcast in New York
    state court claiming that Comcast did not have the right under the
    parties' agreements to carry the NFL Network on a premium sports
    tier.[^295] In the NFL's view, the Conditional Tiering Provision in
    the Affiliation Agreement was not triggered because Comcast and the
    NFL reached an agreement concerning carriage of the Eight-Game
    Package when Comcast agreed to pay an additional \$0.55 per
    subscriber per month to deliver the NFL Network's broadcast of the
    Eight-Game Package via Comcast's cable systems.[^296] In Comcast's
    view, Comcast and the NFL did not reach an agreement concerning
    carriage of the Eight-Game Package because the games were awarded to
    the NFL Network and not to Comcast's affiliated Versus
    network.[^297] In May 2007, the trial court granted Comcast's motion
    for summary judgment.[^298] Following release of the trial court's
    order, Comcast formally notified the NFL of its intent to shift NFL
    Network to a sports tier in most of its systems.[^299] The NFL
    states that Comcast's action to shift the NFL Network from a digital
    basic tier to a premium sports tier reduced the number of Comcast
    subscribers that received the NFL Network from 8.6 million to 1.4
    million.[^300] On February 26, 2008, a New York appellate court
    reversed the lower court's ruling and found that the parties'
    agreement was sufficiently ambiguous to create a triable issue of
    fact.[^301] In May 2008, the parties agreed to pursue non-binding
    mediation at the request of the court.[^302]

### 2. Procedural Issues {#procedural-issues-1 .unnumbered}

68. Comcast argues that the NFL complaint should be dismissed on any of
    the following procedural grounds.[^303] For the reasons discussed
    below, we decline to dismiss the complaint on any of these grounds.

#### Program Carriage Statute of Limitations

69. Comcast argues that the NFL complaint is barred by the program
    carriage statute of limitations.[^304] Comcast contends that, of the
    events that trigger the running of the program carriage statute of
    limitations, only the date on which the parties entered into a
    carriage agreement for the NFL Network is applicable in this
    case.[^305] Comcast states that the Affiliation Agreement was
    executed on August 11, 2004, thereby causing the statute of
    limitations to expire on August 11, 2005.[^306] Comcast asserts that
    its exercise of its contractual right to retier the NFL Network
    cannot be the triggering event because that is a decision made under
    the Affiliation Agreement and any disagreement regarding the terms
    of the agreement must be addressed in state court.[^307] In
    response, the NFL states that its complaint does not allege that the
    Affiliation Agreement violates the program carriage rules.[^308]
    Rather, the NFL claims that the issue is the legality of Comcast's
    act of retiering the NFL Network to a premium sports tier between
    June 1, 2007 and July 15, 2007.[^309] The NFL states that it filed
    its complaint within days after its pre-filing notice and less than
    a year after Comcast's action to retier the NFL Network, in
    compliance with the statute of limitations in Section
    76.1302(f)(3).[^310] Comcast argues that the statute of limitations
    period cannot run from the date of the NFL Network's pre-filing
    notice.[^311] Comcast alleges that such an interpretation would
    allow a programmer to bring a program carriage complaint simply by
    sending a "trigger" letter at any time.[^312] The NFL contends,
    however, that the statute of limitations cannot be interpreted to
    run only from the date an existing agreement was executed because
    that would preclude a programmer from seeking relief regarding
    discriminatory acts that occurred greater than one year after the
    agreement was executed.[^313]

70. We conclude that the NFL filed its program carriage complaint in
    compliance with the program carriage statute of limitations.[^314]
    The alleged act of discrimination about which the NFL complains is
    Comcast's act of moving the NFL Network from a digital basic tier to
    a premium sports tier. This act occurred no earlier than June
    2007.[^315] The NFL filed its program carriage complaint within one
    year of this act and within one year of its pre-filing notice.
    Accordingly, the NFL filed its complaint in compliance with the
    statute of limitations. We reject Comcast's argument that the
    one-year statute of limitations is triggered by the execution of the
    agreement because that act did not give rise to the discrimination
    claim and treating that act as the triggering event here would
    render Section 76.1302(f)(3) of our rules superfluous and frustrate
    enforcement of the statute and rules.

#### Dismissal Pending Litigation

71. Comcast argues that the NFL complaint should be dismissed pending
    the outcome of the state court litigation.[^316] Comcast states that
    the NFL and Comcast are involved in contract litigation involving
    the same set of operative facts that underlie the complaint, and the
    resolution of which is inextricably intertwined with the resolution
    of the complaint.[^317] Comcast contends that, if the court rules
    that the Conditional Tiering Provision was triggered, then it would
    be difficult if not impossible for the Commission to decide that
    Comcast violated the program carriage rules by exercising a right
    granted to it by the NFL.[^318] According to the NFL, however, the
    issue of the interpretation of the contract is irrelevant to the
    program carriage dispute.[^319] In the NFL's view, even if the court
    finds that the Conditional Tiering Provision was triggered and
    Comcast had the "right" to retier the NFL Network, Comcast could not
    exercise that right in a discriminatory manner that violates the
    program carriage rules.[^320] According to the NFL, Section 616
    protects independent programmers and the public regardless of the
    terms of a private agreement.[^321] Comcast asserts that dismissal
    of the complaint pending litigation is consistent with Commission
    precedent.[^322] The NFL disputes this and notes that the Commission
    addressed a program carriage complaint filed by TCR Sports
    Broadcasting Holding, L.L.P. against Comcast despite the pendency of
    related litigation in state court.[^323] Comcast also claims that it
    would be a waste of resources for the Commission to consider the
    complaint because the parties have already decided to mediate the
    issues in dispute.[^324] According to Comcast, the NFL agreed to a
    broad mediation that would encompass all issues between the parties,
    including those in the program carriage complaint proceeding.[^325]
    According to the NFL, the state court litigation does not address
    the issues of program carriage discrimination addressed in the
    program carriage complaint proceeding.[^326] The NFL also states
    that, even if the court were to address program carriage
    discrimination, it would not be ripe for resolution until after the
    next football season and likely the one that follows
    (2009-2010).[^327] The NFL also notes that the parties have not
    agreed to seek a stay of the program carriage proceeding pending the
    outcome of the mediation.[^328] Thus, the NFL argues that the
    mediation should not affect the Commission's consideration of the
    program carriage issues in this proceeding.[^329]

72. We decline to dismiss the NFL complaint pending the outcome of the
    state court litigation. The act of alleged discrimination about
    which the NFL complains is Comcast's act of moving the NFL Network
    from a digital basic tier to a premium sports tier. Whether or not
    Comcast had the right to retier the NFL Network pursuant to a
    private agreement is not relevant to the issue of whether doing so
    violated Section 616 of the Act and the program carriage rules.
    Parties to a contract cannot insulate themselves from enforcement of
    the Act or our rules by agreeing to acts that violate the Act or
    rules. Because the state court litigation will not resolve the NFL's
    program carriage claim, we conclude that we can proceed with the
    program carriage complaint despite the pendency of the litigation.
    Moreover, the parties have not agreed to stay this proceeding
    pending the outcome of mediation, and we find no cause to do so on
    our own motion.

#### Specificity of Requested Relief

73. Comcast argues that the NFL complaint should be dismissed because
    the complaint failed to state "with specificity" the relief
    requested.[^330] Comcast states that the NFL's requested relief does
    not include specific proposals regarding price, tier placement, and
    other carriage terms.[^331] The NFL argues that its complaint was
    sufficiently specific in seeking carriage by Comcast on
    non-discriminatory terms, *i.e*., on the same terms and conditions
    as Comcast's affiliated national sports networks, Versus and the
    Golf Channel, including carriage on the expanded basic tier.[^332]
    We conclude that the NFL's requested relief was sufficiently
    specific under our rules[^333] and did not deprive Comcast of an
    adequate opportunity to respond in its Answer.

#### Signature and Verification Requirements

74. Comcast states that the NFL complaint does not comply with the
    signature[^334] and verification requirements applicable to program
    carriage complaints.[^335] The NFL does not dispute these claims,
    but argues that other program carriage complaints that did not
    comply with the signature requirement have been accepted by the
    Commission and that its complaint included a Declaration of an NFL
    executive certifying the accuracy of the factual statements in the
    complaint.[^336] We agree with Comcast that these instances of
    non-compliance are of "limited consequence."[^337] Accordingly, on
    our own motion, we waive these requirements in the interests of
    resolving the important issues raised in the complaint in an
    expeditious manner and due to the presence of the Declaration of an
    NFL executive referenced above.

### Discrimination Claim

#### Similarly Situated

75. The NFL alleges that Comcast has discriminated against the NFL
    Network in favor of its affiliated video programming vendors,
    including Versus and the Golf Channel, in violation of Section
    76.1301(c) of the Commission's rules. The NFL argues that the NFL
    Network is a national sports network and therefore is similarly
    situated to the national sports networks that Comcast owns (Versus
    and the Golf Channel).[^338] The NFL also argues that the NFL
    Network, Versus, and the Golf Channel compete for programming,
    advertising, or target viewers.[^339] Comcast claims that the NFL
    Network is not a direct competitor to Versus or the Golf Channel in
    terms of programming, advertising, or target viewers.[^340] Comcast
    appears to be arguing that a complainant must demonstrate that its
    programming is identical to an affiliated network in order to
    demonstrate discrimination. We find that this is a misreading of the
    program carriage statute and our rules.

#### Differential Treatment

76. The NFL alleges that Comcast has discriminated against the NFL
    Network in violation of Section 76.1301(c) by carrying the NFL
    Network on a premium sports tier (which costs subscribers an
    additional \$5-7 per month[^341] and is subscribed to by
    approximately 2 million Comcast subscribers[^342]) while Comcast
    carries the national sports networks that it owns (Versus and Golf
    Channel) on an expanded basic tier which has approximately 24
    million subscribers.[^343] Comcast admits that it carries the NFL
    Network on a premium sports tier but carries Versus and the Golf
    Channel on its expanded basic tier.[^344]

#### Harm to Ability to Compete

77. As required by the program carriage statute and our rules, the NFL
    Network has provided evidence purporting to demonstrate that
    Comcast's refusal to carry the NFL Network on an expanded basic tier
    restrains its ability to compete fairly. The NFL explains how
    Comcast's decision to exclude the NFL Network from a basic tier has
    prevented the network from achieving economies of scale and has
    blocked the network from the most efficient distribution channel for
    the provision of national sports programming and the sale of
    advertising.[^345] The NFL explains that carriage of the NFL Network
    on a widely distributed tier is better for the network, viewers, and
    advertisers than carriage on a premium tier and that carriage on a
    premium tier unreasonably impedes the NFL Network's ability to
    compete fairly.[^346] With respect to the benefits for the network,
    the NFL discusses how basic tier carriage results in more
    subscribers which results in greater advertising revenues,[^347]
    greater license revenues,[^348] and a greater ability to compete for
    national advertisers and for content,[^349] and relieves the network
    from having to incur promotional expenses to convince consumers to
    subscribe to the premium tier.[^350] Moreover, the NFL explains that
    basic tier carriage maximizes a network's subscribership and, thus,
    advertising revenues, which allows for reduced license fees.[^351]
    The NFL also submits that carriage of a network on a basic tier
    benefits consumers by allowing the network to discipline the license
    fees of rival networks.[^352] In addition, the NFL claims that basic
    tier carriage benefits advertisers by enabling the NFL Network to
    discipline advertising rates of rival networks.[^353] The NFL
    explains that Comcast's affiliated national sports networks, Versus
    and the Golf Channel, benefit from Comcast's decision to carry the
    NFL Network on a premium tier.[^354] Specifically, placing the NFL
    Network in a premium sports tier harms its ability to compete with
    Comcast's affiliated national sports networks by (i) increasing the
    NFL Network's promotional costs and by reducing its advertising
    revenues; and (ii) providing Comcast's affiliated national sports
    networks with a competitive advantage in attracting advertisers and
    obtaining new content because these networks have greater
    distribution than their rival the NFL Network.[^355] The NFL also
    notes that Comcast's behavior to favor its affiliated national
    sports networks is similar to behavior that has been found to be a
    violation of the program carriage rules in another case.[^356]

78. Comcast argues that the NFL Network can achieve a critical mass of
    subscribers without carriage on Comcast.[^357] Comcast claims that
    there are multiple competing MVPDs that offer the NFL Network in all
    areas served by Comcast, such as DIRECTV, DISH Network, RCN,
    Verizon, and AT&T.[^358] According to Comcast, if its subscribers do
    not like Comcast's decision to place the NFL Network on a premium
    sports tier, they can switch to an MVPD that provides the NFL
    Network with wider carriage.[^359] Comcast also argues that the fact
    that it already makes the NFL Network available to 24 million
    households undermines the NFL's claim that Comcast is unreasonably
    restraining the ability of the NFL Network to compete fairly.[^360]

#### Alleged Business and Editorial Justifications for Comcast's Refusal to Carry NFL Network on an Expanded Basic Tier

79. Comcast offers a number of alleged business and editorial
    justifications for its decision to place the NFL Network on a
    premium sports tier while placing Versus and the Golf Channel on an
    expanded basic tier.[^361] First, Comcast notes that the license fee
    for Versus is approximately \$0.25 per subscriber per month and the
    license fee for the Golf Channel is less than \$0.35 per subscriber
    per month, whereas the license fee for the NFL Network with the
    Eight-Game Package is \$0.70 per subscriber per month.[^362] The NFL
    contends that Comcast has failed to consider the record evidence
    that the NFL Network receives substantially higher ratings than
    Versus and the Golf Channel, despite the fact that the NFL Network
    is carried on a premium tier.[^363] The NFL notes that the
    relatively lower license fees for Versus and the Golf Channel
    reflect their lower popularity.[^364] Moreover, NFL provides
    evidence that the NFL Network is less expensive than some other
    sports networks, such as ESPN and some RSNs.[^365] While Comcast
    argues that it acted to protect its customers by placing expensive
    programming such as the NFL Network on a premium sports tier,[^366]
    the NFL alleges that Comcast's decision to move the NFL Network to a
    premium sports tier did not result in a reduction in the monthly
    fees for its digital basic service, thereby undermining its claim
    that its decision to retier the NFL Network was intended to protect
    consumers.[^367]

80. Second, Comcast claims that Versus and the Golf Channel offer far
    more live and same-day event programming than the NFL Network.[^368]
    The NFL responds that the record evidence demonstrates that the NFL
    Network receives substantially higher ratings than Versus and the
    Golf Channel, despite the amount of live sports programming on
    Versus and the Golf Channel.[^369]

81. Third, Comcast argues that different carriage histories justify wide
    distribution for Versus and the Golf Channel and more limited
    distribution for the NFL Network.[^370] Specifically, Comcast notes
    that Versus and the Golf Channel launched in 1995 when there were
    greater opportunities for launch of a network, even on expanded
    basic.[^371] The NFL argues, however, that basing carriage decisions
    on carriage histories unfairly favors affiliated networks that have
    enjoyed a history of preferential treatment from vertically
    integrated MVPDs and does not serve to distinguish discriminatory
    from nondiscriminatory treatment, as the Act and our rules
    require.[^372]

82. Fourth, Comcast contends that cable subscribers already have access
    to a substantial quantity of live NFL programming on broadcast
    television and ESPN.[^373] Moreover, Comcast notes that the
    out-of-market games offered by the NFL Network are available on
    local broadcast channels in the home markets of the participating
    teams.[^374] The NFL submits that the consistently high ratings for
    the NFL Network refute Comcast's claim that there is a lack of
    demand for football programming.[^375] The NFL also notes that
    Comcast's previous decision to place the NFL Network on its digital
    basic tier demonstrates Comcast's view that the programming on the
    NFL Network has broad appeal.[^376]

83. Fifth, Comcast notes that some MVPDs, such as Charter, Time Warner,
    Cablevision, Bright House, Suddenlink, and Mediacom, do not carry
    the NFL Network at all, while others, such as Cox, carry the NFL
    Network on a sports tier.[^377] According to Comcast, the fact that
    other MVPDs that are not vertically integrated with national sports
    networks have decided to carry the NFL Network on a premium sports
    tier (or not at all) demonstrates that Comcast's decision to place
    the NFL Network on a premium sports tier was based on legitimate
    business reasons.[^378] The NFL contends that this claim is rebutted
    by the record evidence that demonstrates substantial carriage of NFL
    Network by various MVPDs on widely distributed tiers. The NFL notes
    that all of Comcast's major competitors -- DIRECTV, DISH Network,
    Verizon, and AT&T -- carry the NFL Network on a more widely
    distributed tier than the digital basic tier that Comcast formerly
    carried the NFL Network on before it was shifted to a premium sports
    tier.[^379] Moreover, the NFL states that most of the approximately
    240 MVPDs that carry the NFL Network carry it on widely distributed
    tiers that are available in at least 70 percent of the households
    served by these MVPDs.[^380] In addition, the NFL claims that
    Comcast is the only MVPD that carries the NFL Network on a tier
    taken by less than ten percent of subscribers.[^381]

84. Finally, Comcast argues that Versus and the Golf Channel are carried
    on widely distributed tiers of virtually every major MVPD, even
    though these MVPDs have no ownership interest in either
    network.[^382] The NFL argues that the conduct of other cable
    operators is irrelevant to the issue of whether Comcast carries its
    affiliated programmers on more favorable terms than the NFL Network,
    an unaffiliated programmer.[^383]

#### Conclusion

85. In the *Second Report and Order*, the Commission stated that it
    would identify specific behavior that constitutes discrimination on
    a case-by-case basis "because the practices at issue will
    necessarily involve behavior that must be evaluated within the
    context of specific facts pertaining to each negotiation."[^384] Any
    complainant alleging a violation of the prohibition in Section
    616(a)(3) on discrimination must demonstrate that the alleged
    discrimination is "on the basis of affiliation or nonaffiliation" of
    a vendor, and that "the effect of the conduct that prompts the
    complaint is to unreasonably restrain the ability of the complainant
    to compete fairly."[^385] After reviewing the pleadings and
    supporting documentation filed by the parties, we find that the NFL
    has established a *prima facie* case in the above-referenced case
    under Section 76.1301(c). We also find that the pleadings and
    supporting documentation present several factual disputes as to
    whether Comcast discriminated against the NFL in favor of its
    affiliated services. Accordingly, we direct the ALJ to make and
    return a Recommended Decision to the Commission pursuant to the
    procedures set forth below within 60 days after release of this
    *Order*.

### Financial Interest Claim

86. The NFL claims that Comcast retaliated against the NFL by dropping
    the NFL Network from the digital basic tier to a premium sports tier
    after the NFL refused to grant Comcast rights to the Eight-Game
    Package for Comcast's Versus network.[^386] The NFL alleges that
    this amounts to a violation of Section 76.1301(a) because Comcast
    has required a financial interest in the NFL's programming as a
    condition for program carriage.[^387] The NFL argues that Comcast's
    behavior here is similar to behavior that has been found to present
    a *prima facie* case of a violation of the program carriage rules in
    another proceeding.[^388]

87. Comcast states that it never required or even requested an equity
    interest in the NFL Network.[^389] Comcast states that Section
    76.1301(a) does not prohibit an MVPD from seeking licensing rights
    in programming as a condition for carriage.[^390] Rather, Comcast
    states that this rule only prohibits an MVPD from requiring a
    financial interest in a "program service" as a condition for
    carriage.[^391] According to Comcast, the NFL incorrectly conflates
    Comcast's interest in acquiring the licensing rights to the
    Eight-Game Package with a demand for equity in the NFL
    Network.[^392] Comcast notes that it has no financial interest in
    the NFL Network or the NFL and yet it still carries the NFL
    Network.[^393] Accordingly, Comcast argues that it has not
    conditioned carriage of the NFL Network on obtaining an equity
    interest in the NFL Network.[^394]

88. In response, the NFL argues that the statute precludes an MVPD from
    requiring any "financial interest" in a program service, not merely
    an "equity interest," and thus includes an MVPD's demand that a
    programmer provide licensing rights, equity interests, or other
    financial interests in a program service.[^395] The NFL submits that
    narrowly construing the term "financial interest" to pertain only to
    demands for an equity interest would fail to curb many
    anticompetitive abuses of vertically integrated MVPDs during
    carriage negotiations.[^396] Moreover, the NFL notes that Section
    76.1301(a) prohibits an MVPD from requiring a financial interest in
    "any program service," not merely the program service for which
    carriage is sought[^397] and not only in a "video programming
    vendor."[^398]

89. In the *Second Report and Order*, the Commission emphasized that the
    statute "does not explicitly prohibit multichannel distributors from
    acquiring a financial interest or exclusive rights that are
    otherwise permissible," and thus, that "multichannel distributors
    \[may\] negotiate for, but not insist upon such benefits in exchange
    for carriage on their systems."[^399] The Commission stated,
    however, that "ultimatums, intimidation, conduct that amounts to
    exertion of pressure beyond good faith negotiations, or behavior
    that is tantamount to an unreasonable refusal to deal with a vendor
    who refuses to grant financial interests or exclusivity rights for
    carriage, should be considered examples of behavior that violates
    the prohibitions set forth in Section 616."[^400] We find that the
    NFL has presented sufficient evidence to make a *prima facie*
    showing that Comcast indirectly and improperly demanded a financial
    interest in the NFL's programming in exchange for carriage. We
    further find that the pleadings and documentation present several
    factual disputes as to whether Comcast's retiering of the NFL
    Network is the result of Comcast's failure to obtain a financial
    interest in the NFL's programming. Accordingly, we direct an
    Administrative Law Judge to hold a hearing, issue a recommended
    decision on the facts underlying the financial interest claim and a
    recommended remedy, if necessary, and then return the matter to the
    Commission within 60 days.

## MASN v. Comcast

90. After reviewing the pleadings and supporting documentation filed by
    the parties, we find that MASN has established a *prima facie* case
    under Section 76.1301(c). MASN is an RSN that owns the rights to
    produce and exhibit the games of the Baltimore Orioles and
    Washington Nationals, among other sporting events.[^401] MASN is a
    video programming vendor as defined in Section 616(b) of the Act and
    Section 76.1300(e) of the Commission's rules.[^402] Pursuant to the
    by-laws of Major League Baseball ("MLB"), each MLB team is assigned
    television rights to certain geographic regions based on its
    determination of which teams' baseball fans in certain areas would
    or would not support.[^403] The home territory for MASN consists of
    the entire states of Virginia, Maryland, Delaware, and Washington,
    D.C., and certain parts of southern Pennsylvania, eastern West
    Virginia, and a substantial part of North Carolina (the "MASN
    Territory").[^404] Comcast is the nation's largest MVPD and holds an
    attributable ownership interest in Comcast SportsNet Philadelphia
    ("CSN-P") and Comcast SportsNet Mid-Atlantic ("CSN-MA"), among other
    networks.[^405]

91. On March 7, 2008, MASN provided Comcast with its pre-filing
    notice.[^406] MASN filed its complaint on July 1, 2008, alleging
    that Comcast discriminated against MASN in violation of the program
    carriage rules.[^407] MASN asks the Commission to (i) declare that
    Comcast's conduct is a violation of the program carriage obligations
    under the Act and the Commission's rules; (ii) order mandatory
    carriage of MASN on the Comcast systems in the MASN Territory that
    do not carry MASN; (iii) if necessary, require Comcast to delete its
    affiliated programming to clear capacity for MASN; (iv) require
    Comcast to provide a timetable for the upgrade of the
    former-Adelphia systems; (v) grant MASN substantial damages that
    have resulted from Comcast's misconduct; and (vi) grant MASN such
    other and further relief as the Commission deems just and
    proper.[^408] Comcast urges the Commission to find MASN in violation
    of the rules prohibiting frivolous pleadings and to impose
    appropriate penalties, including monetary forfeitures.[^409]

### Background

92. MASN claims that since 2005 it has sought carriage on *all* of
    Comcast's cable systems located within the MASN Territory, including
    in the Harrisburg-Lancaster-Lebanon-York DMA ("Harrisburg DMA"), as
    well as the Roanoke-Lynchburg DMA and the Tri-Cities DMA (the later
    two DMAs are referred to as the "southwestern Virginia DMAs").[^410]
    Comcast denies that MASN ever specifically sought carriage in
    Harrisburg and southwestern Virginia during negotiations in 2005 or
    2006.[^411] In fact, Comcast claims that MASN's primary focus was to
    obtain carriage in its core Washington, D.C. and Baltimore markets
    before the end of the 2006 baseball season, and at no point did MASN
    express any specific interest in Comcast's Harrisburg or
    southwestern Virginia systems.[^412]

93. The parties failed to reach a carriage agreement. In June 2005, MASN
    filed a program carriage complaint alleging discrimination and that
    Comcast illegally demanded a financial interest in MASN as a
    condition of carriage.[^413] MASN requested that the Commission
    order Comcast to provide carriage of MASN on *all* Comcast systems
    in the MASN Territory.[^414] On July 21, 2006, while MASN's program
    carriage complaint against Comcast was pending, the Commission
    adopted the *Adelphia Order*, which provided unaffiliated RSNs with
    the opportunity to pursue commercial arbitration of program carriage
    disputes with Comcast.[^415] On July 31, 2006, the Commission found
    that MASN had established a *prima facie* case of discrimination in
    its pending program carriage complaint and referred the matter to an
    ALJ.[^416] The Commission stayed the decision to give MASN an
    opportunity to decide whether to proceed with the complaint or with
    the expedited arbitration provided in the *Adelphia Order*.[^417]
    MASN claims that pursuant to the *Adelphia Order* conditions it had
    only five days \-- until August 4, 2006 \-- to decide whether to
    file an arbitration demand with the American Arbitration Association
    ("AAA") or to proceed with the carriage complaint before an
    ALJ.[^418] Comcast disputes this claim, arguing that MASN could have
    elected to file a simple notice with the AAA (or the Commission) and
    ask that the proceeding be held in abeyance while the parties
    continued to negotiate.[^419] With the deadline for filing for
    arbitration approaching, the parties entered into further
    negotiations.

94. MASN claims that on August 2, 2006, it emailed a revised version of
    the Term Sheet the parties had been negotiating to Comcast.[^420] As
    with the previous versions, MASN claims that the Term Sheet
    contained an intentionally blank list of the Comcast systems on
    which Comcast would carry MASN (the "List of Systems").[^421] MASN
    claims that it understood and intended that Comcast would fill in
    the List of Systems with all of Comcast's cable systems within the
    MASN Territory.[^422] MASN claims that on August 2, 2006, Comcast
    for the first time expressed concern that it could not immediately
    commit to carry MASN on systems serving approximately
    **\[REDACTED\]** subscribers in Roanoke/Lynchburg and other Virginia
    areas that were served by systems that Comcast acquired from
    Adelphia because these systems lacked sufficient capacity.[^423]

95. MASN states that on the afternoon of August 4, 2006 -- just three
    hours before the arbitration deadline -- Comcast transmitted to MASN
    via email a revised version of the Term Sheet the parties had been
    negotiating.[^424] MASN states that Comcast's email provided
    Comcast's List of Systems for the first time.[^425] MASN explains
    that Comcast gave no indication that the list excluded any of its
    systems except for the former-Adelphia systems in Roanoke/Lynchburg
    and other Virginia areas that served **\[REDACTED\]**
    subscribers.[^426] Comcast explains that its revised draft of the
    Term Sheet specifically deleted the language providing for carriage
    of MASN on "all Comcast systems" and inserted language limiting
    Comcast's carriage obligation to the specific systems listed in the
    List of Systems.[^427] Comcast claims that MASN never asked whether
    any Comcast systems were excluded from the List of Systems or
    otherwise raised any objections to the List of Systems.[^428] MASN
    states that Comcast's email accompanying the Term Sheet stated that
    the revised version "reflects the deal we've been discussing over
    the past two days as well as some other clean-up changes."[^429]
    MASN claims that this representation is clear that the Term Sheet
    would memorialize and not alter the parties' discussions, which
    concerned carriage of MASN to all Comcast subscribers within the
    MASN Territory with the sole exception of the estimated
    **\[REDACTED\]** former-Adelphia subscribers previously
    discussed.[^430] Comcast disagrees, claiming that the deal Comcast
    and MASN had been discussing was for carriage on most, but not all,
    of Comcast's systems.[^431] Comcast claims that it never committed
    to carry MASN on all of its systems.[^432]

96. MASN claims that it attempted to review the List of Systems, but it
    lacked any independent means of verifying the contents, particularly
    with only three hours before the arbitration deadline.[^433] In
    response, Comcast states that MASN never claimed during the
    negotiations that it did not have adequate time to review the List
    of Systems.[^434] In addition, Comcast states that, because the List
    of Systems is less than two pages long with only 60 systems listed,
    it should not have taken hours to review.[^435] Comcast also claims
    that there were multiple public sources available to MASN that would
    have allowed it to easily determine which Comcast systems were and
    were not included in the List of Systems.[^436] MASN claims that
    none of these public sources would have allowed MASN to verify the
    contents of the List of Systems.[^437]

97. MASN and Comcast signed the Term Sheet on August 4, 2006, less than
    one-half hour before the deadline to file for arbitration.[^438] The
    Term Sheet included a Release which required MASN to withdraw its
    pending program carriage complaint against Comcast.[^439] MASN filed
    a Motion to withdraw its complaint on August 9, 2006. On August 15,
    2006, an ALJ released a decision granting the Motion and terminating
    the proceeding.[^440]

98. In January 2007, four months after Comcast's first launch in
    September 2006 of MASN on some of its systems, MASN learned that
    Comcast did not intend to launch MASN on certain systems around
    Harrisburg.[^441] MASN then initiated an effort to document the
    Comcast systems where Comcast did not launch MASN.[^442] MASN
    determined that it had not been launched on Comcast systems
    encompassing approximately **\[REDACTED\]** Comcast subscribers in
    the Harrisburg, Roanoke/Lynchburg, and Tri-Cities DMAs, and in other
    small systems in Virginia and Pennsylvania as well as in
    **\[REDACTED\]** (collectively, the "Unlaunched Systems").[^443]
    These Unlaunched Systems serve approximately **\[REDACTED\]** of
    Comcast's subscribers within the MASN Territory.[^444] Some of these
    systems are not former-Adelphia systems, which MASN claims Comcast
    never raised as an issue during negotiations.[^445] Some of these
    systems are former-Adelphia systems, but MASN argues that Comcast
    has provided no indication as to when these systems will be
    upgraded.[^446] Moreover, some former-Adelphia systems have been
    upgraded but are still not carrying MASN.[^447]

99. Thus, the Unlaunched Systems on which MASN is not being carried fall
    into two relevant categories: (i) unlaunched Comcast systems in the
    MASN Territory that Comcast did not acquire from Adelphia (the
    "Unlaunched Non-Former-Adelphia Systems") (which serve a total of
    approximately **\[REDACTED\]** Comcast subscribers[^448]); and (ii)
    unlaunched Comcast systems in the MASN Territory that Comcast
    acquired from Adelphia (the "Unlaunched Former-Adelphia Systems")
    (which serve a total of approximately **\[REDACTED\]** Comcast
    subscribers[^449]).

100. For approximately a year, the parties engaged in negotiations for
     carriage of MASN on the Unlaunched Systems.[^450] These
     negotiations have not resulted in an agreement.[^451]

### Procedural Issues

101. Comcast argues that the MASN complaint should be dismissed on the
     following procedural grounds.[^452] For the reasons discussed
     below, we decline to dismiss the complaint on any of these grounds.

#### Program Carriage Statute of Limitations

102. Comcast argues that the MASN Complaint is barred by the program
     carriage statute of limitations.[^453] Comcast contends that, of
     the three events that trigger the running of the program carriage
     statute of limitations, only the first event \-- the date on which
     the parties entered into the Term Sheet \-- is applicable in this
     case.[^454] Comcast notes that the Term Sheet was executed on
     August 4, 2006, and thus argues that the statute of limitations
     expired one year later---on August 4, 2007.[^455] Comcast points
     out that the Complaint was filed on July 1, 2008, almost 11 months
     after that date.[^456] MASN disagrees. MASN notes that the Term
     Sheet commits future carriage decisions to Comcast's "discretion,"
     but any such discretion is constrained by the non-discrimination
     obligations of the Act and the Commission's rules.[^457] MASN
     states that its Complaint is based on Comcast's discriminatory
     refusal to carry MASN on the Unlaunched Systems since 2007.[^458]

103. Comcast argues that MASN's claim regarding post-Term Sheet conduct
     is a new claim which MASN raised for the first time in its
     Reply.[^459] MASN disagrees, explaining that its Complaint was
     clear that its legal claims focused on Comcast's post-Term Sheet
     conduct.[^460] MASN explains that from the time it discovered that
     Comcast would not carry MASN on the Unlaunched Systems until the
     filing of its Complaint in July 2008, MASN attempted to reach a
     carriage agreement with Comcast.[^461] Because those negotiations
     had appeared to reach an impasse in March 2008, MASN sent a notice
     letter to Comcast on March 7, 2008.[^462] MASN filed its Complaint
     on July 1, 2008, well within one year of notifying Comcast, as
     required by Section 76.1302(f)(3).[^463]

104. In any event, Comcast argues that there can be no "refusal to
     negotiate" or "refusal to carry" with respect to any Comcast system
     in the MASN Territory because a Term Sheet and Release were already
     executed between the parties in August 2006.[^464] MASN responds
     that this line of argument is a contract-based defense to MASN's
     carriage claims that is legally and factually unfounded.[^465]
     Comcast also claims that there is no "refusal to carry" because
     Comcast carries MASN in the vast majority of Comcast systems in the
     MASN Territory.[^466] MASN responds that there is no legal
     authority to support Comcast's view that carriage of MASN on some
     Comcast systems extinguishes MASN's legal right to enforce its
     program carriage rights with respect to other Comcast
     systems.[^467]

105. We conclude that MASN filed its program carriage complaint in
     compliance with the program carriage statute of limitations.[^468]
     MASN's claims regarding program carriage discrimination apply to
     Comcast's refusal to exercise its discretion to carry MASN on the
     Unlaunched Systems after the Term Sheet was signed. As MASN notes,
     the Term Sheet committed Comcast's future carriage decisions,
     including carriage on systems not included in the List of Systems,
     to Comcast's "discretion." The Term Sheet, however, does not
     indicate that MASN waived its statutory program carriage rights
     with respect to Comcast's exercise of such discretion. Accordingly,
     MASN's claims based on Comcast's exercise of its discretion
     pursuant to the Term Sheet are not subject to the one-year
     limitations period in Section 76.1302(f)(1). MASN explains that its
     negotiations with Comcast for carriage of MASN on the Unlaunched
     Systems appeared to reach an impasse in March 2008. MASN filed its
     program carriage complaint within one year of this date and within
     one year of its pre-filing notice. Accordingly, MASN filed its
     complaint in compliance with the limitations period in Section
     76.1302(f)(3).[^469]

#### Res Judicata

106. Comcast claims that MASN's complaint is barred by the doctrine of
     *res* *judicata*.[^470] As required by the Release, MASN
     voluntarily sought and received from the Commission dismissal of
     its 2005 Complaint.[^471] Comcast asserts that voluntary dismissal
     with prejudice of a complaint constitutes a final judgment on the
     merits as to all claims encompassed therein.[^472] MASN disagrees,
     arguing that *res judicata* only applies where the prior and
     subsequent actions share a "common nucleus of operative
     facts."[^473] MASN's past complaint against Comcast concerned
     Comcast's discriminatory refusal to carry MASN in response to its
     carriage requests beginning in 2005.[^474] MASN claims that the
     current action, however, is forward-looking and concerns Comcast's
     discriminatory refusal to carry MASN after the August 2006 date of
     the Release.[^475]

107. We conclude that the MASN complaint is not barred by *res
     judicata*. MASN's claims regarding program carriage discrimination
     apply to Comcast's refusal to exercise its discretion to carry MASN
     on the Unlaunched Systems after the parties settled their previous
     disputes and signed the Term Sheet. This presents a different set
     of facts and circumstances than those presented in the 2005
     Complaint.[^476]

### Similarly Situated

108. MASN claims that it is similarly situated to CSN-MA in the
     southwestern Virginia DMAs and to CSN-P in the Harrisburg DMA
     because the networks are all RSNs and they compete head-to-head in
     the same geographic areas.[^477] MASN explains that it is an RSN
     that provides live sports programming of major professional sports
     teams (the Orioles and Nationals).[^478] Similarly, Comcast's
     affiliated RSNs carry major professional sports programming
     throughout Comcast's footprint (including the Washington Wizards
     and Capitals (in the case of CSN-MA) and the Philadelphia Phillies
     and Flyers (in the case of CSN-P)).[^479] Comcast has not attempted
     to demonstrate that MASN, CSN-MA, and CSN-P are not similarly
     situated.

### Differential Treatment

109. MASN explains that Comcast treats CSN-MA and CSN-P differently than
     MASN: on the majority of the Unlaunched Systems, Comcast carries
     CSN-P and/or CSN-MA, but Comcast has refused to carry MASN on those
     same systems.[^480]

### Harm to Ability to Compete

110. As required by the program carriage statute and rules, MASN has
     provided evidence that Comcast's refusal to carry MASN on the
     Unlaunched Systems restrains its ability to compete fairly by (i)
     preventing MASN from achieving maximum subscribership;[^481] (ii)
     restraining MASN's ability to compete for advertising
     revenues;[^482] (iii) restraining MASN's ability to compete for
     sports programming rights;[^483] and (iv) increasing MASN's
     average, **\[REDACTED\]** costs.[^484] MASN has put forth evidence
     demonstrating that as an RSN it needs access to the maximum number
     of subscribers within its geographic footprints in order to compete
     optimally for advertisers and sports programming rights.[^485] In
     response, Comcast explains that MASN is carried very broadly in its
     territory,[^486] including by Comcast, DIRECTV, DISH Network, Cox,
     Verizon, RCN, and many others.[^487] Moreover, Comcast explains
     that MASN reaches over 5 million MVPD subscribers, making it one of
     the largest RSNs in the country.[^488] Comcast notes that it is
     carrying MASN to approximately **\[REDACTED\]** subscribers, or
     almost **\[REDACTED\]** of its subscribers in the MASN
     Territory,[^489] and there is no evidence that its refusal to carry
     MASN in the "outer reaches" of Harrisburg and southwestern Virginia
     has in any way harmed MASN or affected its ability to
     compete.[^490]

### Alleged Contract-Based, Business and Editorial Justifications for Comcast's Refusal to Carry MASN on the Unlaunched Systems

111. Comcast offers a number of contract-based and alleged business and
     editorial justifications for its decision to refrain from carrying
     MASN on the Unlaunched Systems.

#### Contract-Based Justifications

##### Term Sheet 

###### Unlaunched Non-Former-Adelphia Systems

112. Comcast argues that the unambiguous terms of the Term Sheet do not
     obligate it to carry MASN on the Unlaunched Non-Former-Adelphia
     Systems because those systems are not included in the List of
     Systems attached to the Term Sheet.[^491] Comcast asserts that the
     exclusion of these systems from the List of Systems was "an
     important part of the negotiated compromise" that led to the
     settlement of the carriage dispute between Comcast and MASN.[^492]
     MASN notes that the Term Sheet, however, commits future carriage
     decisions to Comcast's "discretion," which is constrained by the
     non-discrimination obligations of the program carriage rules.[^493]
     By signing the Term Sheet, MASN claims that it did not forfeit its
     rights to insist that Comcast abide by its program carriage
     obligations with respect to any Comcast system within the MASN
     Territory.[^494]

###### Unlaunched Former-Adelphia Systems

113. Comcast argues that, under the unambiguous terms of the Term Sheet,
     it is not obligated to carry MASN on the Unlaunched Former-Adelphia
     Systems because those systems are not included in the List of
     Systems.[^495] MASN states that it agreed to Comcast's proposal to
     exclude certain former Adelphia systems in Roanoke/Lynchburg and
     other small Virginia communities based on Comcast's representation
     that there was not sufficient capacity to carry MASN on these
     systems at the time.[^496] MASN explains that Comcast represented
     to the Commission that it would rapidly upgrade the former Adelphia
     systems it acquired in 2006, a representation that was crucial to
     the Commission's approval of the Adelphia transaction.[^497] MASN
     states that, given assurances made by Comcast to the Commission
     that it would soon upgrade the Former-Adelphia systems, thereby
     providing sufficient capacity to MASN, MASN viewed Comcast's
     representations to the Commission as sufficient protection that
     MASN would eventually be launched on the Former-Adelphia
     systems.[^498] Comcast states that it never committed to launch
     MASN in Roanoke and other Former-Adelphia systems in Virginia once
     those systems were upgraded, nor is such a commitment reflected in
     the Term Sheet.[^499] MASN notes that, as with the
     Non-Former-Adelphia Systems, the Term Sheet commits future carriage
     decisions to Comcast's "discretion," which is constrained by the
     non-discrimination obligations of the program carriage rules.[^500]
     By signing the Term Sheet, MASN claims that it did not forfeit its
     rights to insist that Comcast abide by its program carriage
     obligations with respect to any Comcast system within the MASN
     Territory.[^501]

##### Release

114. Comcast argues that the Term Sheet and Release comprehensively
     settled MASN's 2005 program carriage complaint against Comcast, in
     which MASN requested carriage on "all Comcast systems," including
     the Harrisburg and the southwestern Virginia systems, and thereby
     relinquished any right MASN may have had to seek any different deal
     with Comcast covering Comcast's cable systems in the MASN
     Territory.[^502] MASN notes, however, that the Release covers only
     conduct "until the date of this Release clause" -- that is, up
     until August 2006.[^503] MASN's complaint, however, concerns
     Comcast's refusal to exercise its discretion to carry MASN since
     2007 when MASN discovered it was not being carried on the
     Unlaunched Systems, well after the date of the Release.[^504]
     Accordingly, MASN contends that the Release does not justify
     Comcast's decision to refuse to carry MASN on the Unlaunched
     Systems but to carry its affiliated RSNs.

#### Editorial and Business Justifications

115. Comcast argues that its refusal to carry MASN on the Unlaunched
     Systems was based on its editorial and business judgment that
     carriage on those systems was not justified in light of a number of
     factors, including MASN's carriage cost (both licensee fee and
     bandwidth) and its allegedly low consumer appeal.[^505]

##### License Fee

116. Comcast contends that MASN would be among the most expensive
     networks carried in its Harrisburg and southwestern Virginia
     systems.[^506] MASN contends that Comcast has submitted no
     evidence, however, demonstrating that the cost of carrying MASN is
     materially greater than the cost of carrying Comcast's affiliated
     RSNs in the relevant DMAs.[^507] MASN claims that Comcast provides
     no justification for applying a stricter cost standard to
     unaffiliated programming than to affiliated programming.[^508]
     Moreover, while Comcast claims that a network's license fee is a
     relevant consideration in making carriage decisions, MASN argues
     that Comcast has not submitted any evidence that its
     decision-makers compared the cost of MASN to the cost of its
     affiliated RSNs in deciding to deny carriage to MASN on the
     Unlaunched Systems but to grant carriage to Comcast's affiliated
     RSNs.[^509] MASN provides the following evidence which it claims
     justifies its license fee for carriage on the Unlaunched
     Systems: (i) the carriage rates proposed by MASN are fair and
     reasonable in light of the popularity and value of live sports
     programming that MASN offers;[^510] (ii) every other major MVPD in
     the relevant parts of the MASN Territory other than Comcast (such
     as Cox, DIRECTV, and DISH Network) has agreed to carry MASN on
     their basic or expanded basic tier (or equivalent) at the rates
     MASN has proposed for Comcast;[^511] (iii) Comcast has agreed to
     the same carriage terms for MASN on its systems in other areas
     (some of which are farther away from Baltimore and Washington than
     the Harrisburg and southwestern Virginia DMAs);[^512] and (iv)
     MASN's rate is comparable to what other RSNs charge and MVPDs pay
     for comparable extended inner-market programming.[^513]

##### Bandwidth

117. Comcast argues that, because the Term Sheet requires carriage of
     MASN on Comcast's expanded basic tier, Comcast would be required to
     devote scarce analog capacity to carriage of the network.[^514]
     Moreover, Comcast notes that MASN would require two analog channels
     to accommodate both the Orioles' and Nationals' games.[^515] MASN
     argues that Comcast has provided no evidence regarding its
     bandwidth constraints on the Unlaunched Systems.[^516] In addition,
     MASN contends that Comcast has failed to justify why its alleged
     bandwidth constraints on the Unlaunched Systems justified denying
     carriage to MASN but granting carriage to Comcast's affiliated
     RSNs.[^517]

##### Demand

118. Comcast argues that its refusal to carry MASN on the Unlaunched
     Systems is justified based on MASN's low consumer appeal.[^518]
     Comcast notes that, even in its core Baltimore and Washington, DC
     markets, MASN has the lowest viewership ratings of any RSN in the
     country, attracting less than one-third the average number of
     households of any other RSN.[^519] MASN argues that Comcast has
     submitted no evidence, however, demonstrating that the demand for
     MASN is materially different than the demand for Comcast's
     affiliated RSNs in the relevant DMAs.[^520] MASN also alleges that
     Comcast provides no justification for applying a stricter demand
     standard to unaffiliated programming than to affiliated
     programming.[^521] Moreover, while Comcast claims that demand is a
     relevant consideration in making carriage decisions, MASN submits
     that Comcast has not provided any evidence that its decision-makers
     compared the demand for MASN to the demand for its affiliated RSNs
     in deciding to deny carriage to MASN on the Unlaunched Systems but
     to grant carriage to Comcast's affiliated RSNs.[^522] MASN argues
     that the following demonstrates consumer demand for its programming
     on the Unlaunched Systems based on the following factors: (i) the
     decisions of 21 other major MVPDs throughout the MASN Territory to
     carry MASN (including Charter, Cox, DIRECTV, DISH Network, RCN, and
     Verizon);[^523] (ii) Comcast's efforts to keep the rights to the
     Orioles games and to acquire the rights to the Nationals games,
     both of which are now shown on MASN;[^524] (iii) prior to the
     launch of MASN, Comcast's affiliated RSN carried Orioles games in
     the Harrisburg DMA;[^525] (iv) every other major MVPD serving
     Harrisburg (DIRECTV, DISH Network, **\[REDACTED\]**) except Comcast
     has agreed to carry MASN;[^526] (v) prior to the launch of MASN,
     Comcast's affiliated RSN carried Orioles games on systems in
     southwestern Virginia;[^527] (vi) other major MVPDs serving
     southwestern Virginia (Cox, DIRECTV, DISH Network) have agreed to
     carry MASN;[^528] (vii) evidence that demand for MASN's programming
     is comparable to or eclipses demand for Comcast's affiliated
     programming in MASN's core markets on a per-game ratings
     basis;[^529] (viii) MASN is among the top RSNs in the country with
     respect to live major professional sports programming;[^530]
     and (ix) MASN carries other programming of interest to subscribers
     in the Harrisburg and southwestern Virginia DMAs, including
     sporting events of local colleges.[^531] MASN also argues that
     Comcast's claim that there is no demand for MASN in Harrisburg is
     contradicted by the fact that Comcast has launched MASN on other
     systems in southern Pennsylvania, such as in York, Pennsylvania (25
     miles from Harrisburg).[^532] Moreover, MASN submits that Comcast's
     claim that there is no demand for MASN on the periphery of the MASN
     Territory is contradicted by the fact that it carries CSN-MA on the
     same cable systems in southwestern Virginia despite the fact that
     CSN-MA's core sports programming of Washington Wizards and Capitals
     games is also based in the Washington DMA.[^533]

### Conclusion

119. In the *Second Report and Order*, the Commission stated that it
     would identify specific behavior that constitutes discrimination on
     a case-by-case basis "because the practices at issue will
     necessarily involve behavior that must be evaluated within the
     context of specific facts pertaining to each negotiation."[^534]
     Any complainant alleging a violation of the prohibition in Section
     616(a)(3) on discrimination must demonstrate that the alleged
     discrimination is "on the basis of affiliation or nonaffiliation"
     of a vendor, and that "the effect of the conduct that prompts the
     complaint is to unreasonably restrain the ability of the
     complainant to compete fairly."[^535] After reviewing the pleadings
     and supporting documentation filed by the parties, we find that
     MASN has established a *prima facie* case in the above-referenced
     case under Section 76.1301(c). We also find that the pleadings and
     supporting documentation present several factual disputes as to
     whether Comcast discriminated against MASN in favor of its
     affiliated services. Accordingly, we direct the ALJ to make and
     return a Recommended Decision to the Commission pursuant to the
     procedures set forth below within 60 days after release of this
     *Order*.

# Referral to Administrative Law Judge or Alternative Dispute Resolution

120. We direct that an Administrative Law Judge resolve the factual
     disputes with respect to the claims and return a recommended
     decision and a recommended remedy, if necessary, to the Commission
     within 60 days of the date of this *Order*. Pursuant to Section
     76.7(g)(2) of the Commission's rules, the parties will have ten
     days following release of this *Order* to elect to resolve this
     dispute through ADR.[^536] Each party will notify the Commission,
     in writing, of its election within 10 days of release of this
     *Order* and, in the event that ADR is chosen, will update the
     Commission monthly on the status of the ADR process.[^537] If the
     parties elect to resolve the dispute through ADR, the 60-day period
     for review by an Administrative Law Judge will be tolled. In the
     event that the parties fail to reach a settlement through the ADR
     process, the parties shall promptly notify the Commission in
     writing, and the 60-day period will resume upon receipt of such
     notification.

121. Upon receipt of the Administrative Law Judge's recommended decision
     and remedy, the Commission will make the requisite legal
     determinations as to whether (i) the defendant has discriminated
     against the complainant's programming in favor of its own
     programming, with the effect of unreasonably restraining the
     complainant's ability to compete fairly in violation of Section
     76.1301(c); and (ii) only in the case of NFL Network v Comcast,
     whether Comcast has demanded a financial interest in the NFL's
     programming in exchange for carriage in violation of Section
     76.1301(a). If necessary, the Commission will then decide upon
     appropriate remedies.

# Ordering Clauses 

## WealthTV v. TWC

122. Accordingly, **IT IS ORDERED**, that Herring Broadcasting, Inc.
     d/b/a/ WealthTV's Complaint against Time Warner Cable Inc. is
     **DESIGNATED FOR HEARING** at a date and place to be specified in a
     subsequent order by an Administrative Law Judge for a recommended
     determination of the following issues:

\(a\) whether the defendant has discriminated against the complainant's
programming in favor of its own programming, with the effect of
unreasonably restraining the complainant's ability to compete fairly in
violation of Section 76.1301(c);

\(b\) if the Administrative Law Judge determines that the defendant has
discriminated against the complainant's programming in violation of
Section 76.1301(c), the appropriate price, terms and conditions on which
the complainant's programming should be carried on defendant's systems
and such other remedies as the Administrative Law Judge recommends.

123. **IT IS FURTHER ORDERED**, that pursuant to Section 616 of the
     Communications Act of 1934, as amended, 47 U.S.C. § 536, and 47
     C.F.R. §§ 76.1300-1302, Herring Broadcasting, Inc. d/b/a WealthTV
     and Time Warner Cable Inc. submit to the Commission, in writing
     within ten days of this *Order*, their respective elections as to
     whether each wishes to proceed to Alternative Dispute Resolution
     and, in the event that Alternative Dispute Resolution is chosen,
     monthly update the Commission on the status of that process.

124. **IT IS FURTHER ORDERED**, that the Administrative Law Judge,
     within 60 days of this *Order*, will resolve all factual disputes
     and submit a recommended decision and remedy, if appropriate.

125. **IT IS FURTHER ORDERED**, that if the parties elect Alternative
     Dispute Resolution, the period for Administrative Law Judge review
     shall be tolled, until such time as the parties notify the
     Commission that they have failed to reach a settlement through
     Alternative Dispute Resolution.

## WealthTV v. BHN

126. Accordingly, **IT IS ORDERED**, that Herring Broadcasting, Inc.
     d/b/a/ WealthTV's Complaint against Bright House Networks, LLC is
     **DESIGNATED FOR HEARING** at a date and place to be specified in a
     subsequent order by an Administrative Law Judge for a recommended
     determination of the following issues:

\(a\) whether the defendant has discriminated against the complainant's
programming in favor of its own programming, with the effect of
unreasonably restraining the complainant's ability to compete fairly in
violation of Section 76.1301(c);

\(b\) if the Administrative Law Judge determines that the defendant has
discriminated against the complainant's programming in violation of
Section 76.1301(c), the appropriate price, terms and conditions on which
the complainant's programming should be carried in defendant's systems
and such other remedies as the Administrative Law Judge recommends.

127. **IT IS FURTHER ORDERED**, that pursuant to Section 616 of the
     Communications Act of 1934, as amended, 47 U.S.C. § 536, and 47
     C.F.R. §§ 76.1300-1302, Herring Broadcasting, Inc. d/b/a WealthTV
     and Bright House Networks, LLC submit to the Commission, in writing
     within ten days of this *Order*, their respective elections as to
     whether each wishes to proceed to Alternative Dispute Resolution
     and, in the event that Alternative Dispute Resolution is chosen,
     monthly update the Commission on the status of that process.

128. **IT IS FURTHER ORDERED**, that the Administrative Law Judge,
     within 60 days of this *Order*, will resolve all factual disputes
     and submit a recommended decision and remedy, if appropriate.

129. **IT IS FURTHER ORDERED**, that if the parties elect Alternative
     Dispute Resolution, the period for Administrative Law Judge review
     shall be tolled, until such time as the parties notify the
     Commission that they have failed to reach a settlement through
     Alternative Dispute Resolution.

## WealthTV v. Cox

130. Accordingly, **IT IS ORDERED**, that Herring Broadcasting, Inc.
     d/b/a/ WealthTV's Complaint against Cox Communications, Inc. is
     **DESIGNATED FOR HEARING** at a date and place to be specified in a
     subsequent order by an Administrative Law Judge for a recommended
     determination of the following issues:

\(a\) whether the defendant has discriminated against the complainant's
programming in favor of its own programming, with the effect of
unreasonably restraining the complainant's ability to compete fairly in
violation of Section 76.1301(c);

\(b\) if the Administrative Law Judge determines that the defendant has
discriminated against the complainant's programming in violation of
Section 76.1301(c), the appropriate price, terms and conditions on which
the complainant's programming should be carried on defendant's systems
and such other remedies as the Administrative Law Judge recommends.

131. **IT IS FURTHER ORDERED**, that pursuant to Section 616 of the
     Communications Act of 1934, as amended, 47 U.S.C. § 536, and 47
     C.F.R. §§ 76.1300-1302, Herring Broadcasting, Inc. d/b/a WealthTV
     and Cox Communications, Inc. submit to the Commission, in writing
     within ten days of this *Order*, their respective elections as to
     whether each wishes to proceed to Alternative Dispute Resolution
     and, in the event that Alternative Dispute Resolution is chosen,
     monthly update the Commission on the status of that process.

132. **IT IS FURTHER ORDERED**, that the Administrative Law Judge,
     within 60 days of this *Order*, will resolve all factual disputes
     and submit a recommended decision and remedy, if appropriate.

133. **IT IS FURTHER ORDERED**, that if the parties elect Alternative
     Dispute Resolution, the period for Administrative Law Judge review
     shall be tolled, until such time as the parties notify the
     Commission that they have failed to reach a settlement through
     Alternative Dispute Resolution.

## WealthTV v. Comcast

134. Accordingly, **IT IS ORDERED**, that Herring Broadcasting, Inc.
     d/b/a/ WealthTV's Complaint against Comcast Corporation is
     **DESIGNATED FOR HEARING** at a date and place to be specified in a
     subsequent order by an Administrative Law Judge for a recommended
     determination of the following issues:

\(a\) whether the defendant has discriminated against the complainant's
programming in favor of its own programming, with the effect of
unreasonably restraining the complainant's ability to compete fairly in
violation of Section 76.1301(c);

\(b\) if the Administrative Law Judge determines that the defendant has
discriminated against the complainant's programming in violation of
Section 76.1301(c), the appropriate price, terms and conditions on which
the complainant's programming should be carried on defendant's systems
and such other remedies as the Administrative Law Judge recommends.

135. **IT IS FURTHER ORDERED**, that pursuant to Section 616 of the
     Communications Act of 1934, as amended, 47 U.S.C. § 536, and 47
     C.F.R. §§ 76.1300-1302, Herring Broadcasting, Inc. d/b/a WealthTV
     and Comcast Corporation submit to the Commission, in writing within
     ten days of this *Order*, their respective elections as to whether
     each wishes to proceed to Alternative Dispute Resolution and, in
     the event that Alternative Dispute Resolution is chosen, monthly
     update the Commission on the status of that process.

136. **IT IS FURTHER ORDERED**, that the Administrative Law Judge,
     within 60 days of this *Order*, will resolve all factual disputes
     and submit a recommended decision and remedy, if appropriate.

137. **IT IS FURTHER ORDERED**, that if the parties elect Alternative
     Dispute Resolution, the period for Administrative Law Judge review
     shall be tolled, until such time as the parties notify the
     Commission that they have failed to reach a settlement through
     Alternative Dispute Resolution.

## NFL v. Comcast

138. Accordingly, **IT IS ORDERED**, that NFL Enterprises LLC's
     Complaint against Comcast Corporation is **DESIGNATED FOR HEARING**
     at a date and place to be specified in a subsequent order by an
     Administrative Law Judge for a recommended determination of the
     following issues:

\(a\) whether the defendant has discriminated against the complainant's
programming in favor of its own programming, with the effect of
unreasonably restraining the complainant's ability to compete fairly in
violation of Section 76.1301(c);

\(b\) whether the defendant has demanded a financial interest in the
complainant's

programming in exchange for carriage in violation of Section 76.1301(a);

\(c\) if the Administrative Law Judge determines that the defendant has
discriminated against the complainant's programming in violation of
Section 76.1301(c) or demanded a financial interest in the complainant's
programming in exchange for carriage in violation of Section 76.1301(a),
the appropriate price, terms and conditions on which the complainant's
programming should be carried on defendant's systems and such other
remedies as the Administrative Law Judge recommends.

139. **IT IS FURTHER ORDERED**, that pursuant to Section 616 of the
     Communications Act of 1934, as amended, 47 U.S.C. § 536, and 47
     C.F.R. §§ 76.1300-1302, NFL Enterprises LLC and Comcast Corporation
     submit to the Commission, in writing within ten days of this
     *Order*, their respective elections as to whether each wishes to
     proceed to Alternative Dispute Resolution and, in the event that
     Alternative Dispute Resolution is chosen, monthly update the
     Commission on the status of that process.

140. **IT IS FURTHER ORDERED**, that the Administrative Law Judge,
     within 60 days of this *Order*, will resolve all factual disputes
     and submit a recommended decision and remedy, if appropriate.

141. **IT IS FURTHER ORDERED**, that if the parties elect Alternative
     Dispute Resolution, the period for Administrative Law Judge review
     shall be tolled, until such time as the parties notify the
     Commission that they have failed to reach a settlement through
     Alternative Dispute Resolution.

## MASN v. Comcast

142. Accordingly, **IT IS ORDERED**, that TCR Sports Broadcasting
     Holding, L.L.P., d/b/a Mid-Atlantic Sports Network's Complaint
     against Comcast Corporation is **DESIGNATED FOR HEARING** at a date
     and place to be specified in a subsequent order by an
     Administrative Law Judge for a recommended determination of the
     following issues:

\(a\) whether the defendant has discriminated against the complainant's
programming in favor of its own programming, with the effect of
unreasonably restraining the complainant's ability to compete fairly in
violation of Section 76.1301(c);

\(b\) if the Administrative Law Judge determines that the defendant has
discriminated against the complainant's programming in violation of
Section 76.1301(c), the appropriate price, terms and conditions on which
the complainant's programming should be carried on defendant's systems
and such other remedies as the Administrative Law Judge recommends.

143. **IT IS FURTHER ORDERED**, that pursuant to Section 616 of the
     Communications Act of 1934, as amended, 47 U.S.C. § 536, and 47
     C.F.R. §§ 76.1300-1302, TCR Sports Broadcasting Holding, L.L.P.,
     d/b/a Mid-Atlantic Sports Network and Comcast Corporation submit to
     the Commission, in writing within ten days of this *Order*, their
     respective elections as to whether each wishes to proceed to
     Alternative Dispute Resolution and, in the event that Alternative
     Dispute Resolution is chosen, monthly update the Commission on the
     status of that process.

144. **IT IS FURTHER ORDERED**, that the Administrative Law Judge,
     within 60 days of this *Order*, will resolve all factual disputes
     and submit a recommended decision and remedy, if appropriate.

145. **IT IS FURTHER ORDERED**, that if the parties elect Alternative
     Dispute Resolution, the period for Administrative Law Judge review
     shall be tolled, until such time as the parties notify the
     Commission that they have failed to reach a settlement through
     Alternative Dispute Resolution.

## General Ordering Clauses

146. **IT IS FURTHER ORDERED** that, pursuant to Section 4(i) of the
     Communications Act of 1934, as amended, 47 U.S.C. § 154(i), in
     order to avail itself of the opportunity to be heard, each party to
     an above-captioned proceeding, in person or by its attorney,
     **SHALL FILE** with the Commission, by October 17, 2008, a written
     appearance stating that the party will appear on the date fixed for
     hearing and present evidence on the issues specified herein.[^538]

147. **IT IS FURTHER ORDERED** that, if any complainant in an
     above-captioned proceeding fails to file a written appearance by
     the deadline specified above, or has not filed prior to that
     deadline, a petition to accept, for good cause shown, a written
     appearance beyond the deadline, the Presiding Administrative Law
     Judge **SHALL DISMISS** the relevant above-captioned proceeding
     with prejudice for failure to prosecute.

148. **IT IS FURTHER ORDERED** that all parties to the above-captioned
     proceedings will be served with a copy of this Order and the
     Erratum thereto by e-mail and by certified mail, return receipt
     requested.

149. **IT IS FURTHER ORDERED** that the Chief, Enforcement Bureau, shall
     be made a party to each of the above-captioned proceedings without
     the need to file a written appearance and will determine the
     Enforcement Bureau's level of participation in the proceedings.

150. **IT IS FURTHER ORDERED** that a copy of this Hearing Designation
     Order and the Erratum thereto or a summary thereof **SHALL BE
     PUBLISHED** in the Federal Register.

FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai

Chief, Media Bureau

#  {#section .unnumbered}

[^1]: *See* Herring Broadcasting, Inc. d/b/a WealthTV, Carriage
    Agreement Complaint Against TWC, File No. CSR-7709-P (filed December
    20, 2007) ("WealthTV Complaint Against TWC"); Herring Broadcasting,
    Inc. d/b/a WealthTV, Carriage Agreement Complaint Against BHN, File
    No. CSR-7822-P (filed March 13, 2008) ("WealthTV Complaint Against
    BHN"); Herring Broadcasting, Inc. d/b/a WealthTV, Carriage Agreement
    Complaint Against Cox, File No. CSR-7829-P (filed March 27, 2008)
    ("WealthTV Complaint Against Cox"); Herring Broadcasting, Inc. d/b/a
    WealthTV, Carriage Agreement Complaint Against Comcast, File No.
    CSR-7907-P (filed April 21, 2008) ("WealthTV Complaint Against
    Comcast").

[^2]: MOJO is owned by iN DEMAND L.L.C., which is owned 54.1% by Comcast
    iN DEMAND Holdings, Inc.; 15.6% by Cox Communications Holdings,
    Inc.; and 30.3% by Time Warner Entertainment-Advance/Newhouse
    Partnership ("TWE-A/N"). *See infra* n. 34.

[^3]: 47 C.F.R. § 76.1301(c).

[^4]: *See* NFL Enterprises LLC, Program Carriage Complaint, File No.
    CSR-7876-P (filed May 6, 2008) ("NFL Complaint Against Comcast").

[^5]: 47 C.F.R. § 76.1301(c).

[^6]: 47 C.F.R. § 76.1301(a).

[^7]: *See* TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic
    Sports Network, Program Carriage Complaint, File No. CSR-8001-P
    (filed July 1, 2008) ("MASN Complaint Against Comcast").

[^8]: 47 C.F.R. § 76.1301(c).

[^9]: 47 U.S.C. § 536. Section 616 was added to the Communications Act
    by the Cable Television Consumer Protection and Competition Act of
    1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992).

[^10]: 47 U.S.C. § 536(a)(1); *see* 47 C.F.R. § 76.1301(a) (implementing
    financial interest provision).

[^11]: 47 U.S.C. § 536(a)(3); *see* 47 C.F.R. § 76.1301(c) (implementing
    discrimination provision).

[^12]: *See* 47 C.F.R. §§ 76.1300 -- 76.1302; *Implementation of
    Sections 12 and 19 of the Cable Television Consumer Protection and
    Competition Act of 1992 and Development of Competition and Diversity
    in Video Programming Distribution and Carriage*, 9 FCC Rcd 2642
    (1993) ("*Second Report and Order*").

[^13]: 47 C.F.R. § 76.1301(a).

[^14]: 47 C.F.R. § 76.1301(c).

[^15]: *See* 47 C.F.R. § 76.1302(c), (d), (e).

[^16]: *See* 47 C.F.R. § 76.7(e)(2); *see also* 47 C.F.R. 76.1302(a).

[^17]: *Second Report and Order*, 9 FCC Rcd at 2648.

[^18]: *Id.* at 2652.

[^19]: *Id.* at 2656.

[^20]: *Id.* at 2653.

[^21]: *See id.* at 2654.

[^22]: *See id.* at 2655.

[^23]: *See* 47 U.S.C. § 536(b); 47 C.F.R. § 76.1300(e); *see also*
    WealthTV Complaint Against TWC at ¶ 3; WealthTV Complaint Against
    BHN at ¶ 4; WealthTV Complaint Against Cox at ¶ 4; WealthTV
    Complaint Against Comcast at ¶ 4.

[^24]: *See* WealthTV Complaint Against TWC at ¶ 8; WealthTV Complaint
    Against BHN at ¶ 9; WealthTV Complaint Against Cox at ¶ 9; WealthTV
    Complaint Against Comcast at ¶ 9.

[^25]: *See* WealthTV Complaint Against TWC at ¶ 9; WealthTV Complaint
    Against BHN at ¶ 10; WealthTV Complaint Against Cox at ¶ 10;
    WealthTV Complaint Against Comcast at ¶ 10.

[^26]: These MVPDs include GCI, Charter Communications, Verizon,
    WideOpenWest, Qwest, Armstrong Cable, SureWest, Metrocast, Grande
    Communications, Service Electric, Sunflower Cable, Western
    Broadband, AT&T U-Verse, and OEN Fision. *See* WealthTV Complaint
    Against TWC at ¶¶ 9, 16; WealthTV Complaint Against BHN at ¶¶ 10,
    16; WealthTV Complaint Against Cox at ¶¶ 10, 16; WealthTV Complaint
    Against Comcast at ¶¶ 10, 15. TWC, BHN, and Comcast state that this
    represents a modest number of the 6,600 cable systems nationwide and
    only one of the top-ten cable multiple system operators ("MSOs")
    (Charter). *See* Time Warner Cable Inc., Answer, File No. CSR-7709-P
    (February 5, 2008), at 12 ("TWC Answer"); Bright House Networks,
    LLC, Answer, File No. CSR-7822-P (April 14, 2008), at 17 ("BHN
    Answer"); Comcast Corporation, Answer, File No. CSR-7907-P (May 21,
    2008), at 22 ("Comcast Answer to WealthTV").

[^27]: *See* WealthTV Complaint Against TWC at 28; WealthTV Complaint
    Against BHN at 23; WealthTV Complaint Against Cox at 25; WealthTV
    Complaint Against Comcast at 25. We note that, at the time WealthTV
    requested carriage, the defendants carried MOJO in the relevant
    cable systems. Although iN DEMAND recently announced that MOJO will
    cease operations on December 1, 2008, this does not render moot or
    discredit WealthTV's discrimination claim. *See* Letter from Michael
    H. Hammer, Counsel for Comcast, to Marlene H. Dortch, Secretary,
    FCC, File No. CSR-7907-P (filed October 10, 2008); Letter from
    Arthur H. Harding, Counsel for TWC, to Marlene H. Dortch, Secretary,
    FCC, File No. CSR-7709-P (filed October 10, 2008). The fact that
    MOJO will cease operations in the future is not relevant to the
    issue of whether the defendants engaged in unlawful discrimination
    during the period that WealthTV sought carriage. Our conclusion is
    consistent with the Commission's finding in other contexts that
    steps taken by a licensee following a violation do not eliminate the
    licensee's responsibility for the period during which the violation
    occurred. *See SBC Communications, Inc*., Order of Forfeiture, 16
    FCC Rcd 5535, 5542, ¶ 18; *see also Coleman Enters., Inc. d/b/a
    Local Long Distance, Inc., Order of Forfeiture*, 15 FCC Rcd 24385,
    24388, ¶ 8 (2000); *America's Tele-Network Corp., Order of
    Forfeiture*, 16 FCC Rcd 22350, 22355, ¶ 15 (2001). In addition, if
    carriage of WealthTV is ultimately required, the fact that the
    defendants will no longer be carrying MOJO on the relevant cable
    systems indicates that they will have a vacant channel on which to
    accommodate WealthTV.

[^28]: *See* WealthTV Complaint Against TWC at 28; WealthTV Complaint
    Against BHN at 23; WealthTV Complaint Against Cox at 26; WealthTV
    Complaint Against Comcast at 25.

[^29]: *See* WealthTV Complaint Against TWC at 28; WealthTV Complaint
    Against BHN at 24; WealthTV Complaint Against Cox at 26; WealthTV
    Complaint Against Comcast at 26.

[^30]: *See* WealthTV Complaint Against TWC at 29; WealthTV Complaint
    Against BHN at 24; WealthTV Complaint Against Cox at 27; WealthTV
    Complaint Against Comcast at 26.

[^31]: *See* TWC Answer at 42.

[^32]: *See* *id*.

[^33]: *See* WealthTV Complaint Against TWC at ¶ 10; TWC Answer at 42.

[^34]: MOJO is distributed by iN DEMAND L.L.C., which is owned 54.1% by
    Comcast iN DEMAND Holdings, Inc.; 15.6% by Cox Communications
    Holdings, Inc.; and 30.3% by Time Warner
    Entertainment-Advance/Newhouse Partnership. *See* TWC Answer at 9
    n.13. Due to the structure of the TWE-A/N partnership, TWC claims
    that its actual interest in MOJO is less than 25.9%. *See id*.

[^35]: *See* *id*. at 9 n.13, 20, and 42.

[^36]: *See* WealthTV Complaint Against TWC, Exhibit 1.

[^37]: *See* *id*. at ¶ 69.

[^38]: *See* *id*. at ¶¶ 12-15, 38-53, 69. WealthTV supports the
    statements made in its Complaint with documentary evidence as well
    as sworn affidavits from Charles Herring, WealthTV's President, and
    Robert Herring, Sr., WealthTV's Chairman and Chief Executive
    Officer. *See id.*, Exhibits 2 and 3.

    On March 11, 2008, TWC filed a Motion to Strike WealthTV's Reply,
    alleging that WealthTV's Reply contained "new matters" in violation
    of the Commission rules. *See* Time Warner Cable Inc., Motion to
    Strike, File No. CSR-7709-P (March 11, 2008) ("TWC Motion to
    Strike"); *see also* 47 C.F.R. § 76.1302(e) (stating that a reply
    "shall be responsive to matters contained in the answer and shall
    not contain new matters"). On March 17, 2008, WealthTV filed a
    Motion seeking leave to file an Opposition and Response to TWC's
    Motion to Strike. *See* Herring Broadcasting, Inc. d/b/a WealthTV,
    Motion in Response to TWC Motion to Strike, File No. CSR-7709-P
    (March 17, 2008) ("WealthTV Motion in Response to TWC Motion to
    Strike"). In its Motion, WealthTV argues that TWC's Motion to Strike
    is an additional pleading that is not permitted by the Commission's
    rules. *See* WealthTV Motion In Response to TWC Motion to Strike at
    1; *see also Second Report and Order*, 9 FCC Rcd at 2652 ("Given the
    statute's explicit direction to the Commission to handle program
    carriage complaints expeditiously, additional pleadings will not be
    accepted or entertained unless specifically requested by the
    reviewing staff."). We grant WealthTV's Motion and consider its
    Opposition and Response herein. We agree with WealthTV that its
    Reply does not raise "new matters." *See* WealthTV Motion in
    Response to TWC Motion to Strike at 2-3. Rather, the information
    contained in WealthTV's Reply is directly responsive to matters
    contained in TWC's Answer, such as the number of subscribers needed
    to make a network attractive to advertisers, the similarity between
    WealthTV and MOJO, and the offers made by TWC during carriage
    negotiations prior to the filing of WealthTV's Complaint. Although
    we agree with WealthTV that TWC's Motion to Strike is an
    impermissible additional pleading, we nonetheless consider the
    arguments made in TWC's Motion to Strike in the interest of a
    complete record.

[^39]: A "hunting license" refers to an agreement that specifies basic
    carriage terms and gives the programmer the right to seek carriage
    by individual cable systems owned by a cable MSO, as opposed to a
    nationwide carriage agreement which provides the programming service
    with carriage on all systems owned by the MSO. *See* WealthTV
    Complaint Against TWC at ¶ 44; TWC Answer at 12 n.19; *id*. at
    Exhibit 1, Declaration of Andrew I. Rosenberg, at ¶ 7.

[^40]: *See* WealthTV Complaint Against TWC at ¶ 52; Herring
    Broadcasting, Inc. d/b/a WealthTV, Reply to TWC, File No. CSR-7709-P
    (filed February 25, 2008), at 11 ("WealthTV Reply to TWC"); *see
    also* TWC Answer at 49 (¶ 52).

[^41]: *See* WealthTV Reply to TWC at 11; *see also* TWC Answer at 31,
    49 (¶ 52).

[^42]: *See* TWC Answer at 13-14, 31; TWC Motion to Strike at 11-12;
    *see also* WealthTV Reply to TWC at 11.

[^43]: *See* TWC Answer at 14; TWC Motion to Strike at 12.

[^44]: *See* WealthTV Reply to TWC at 11.

[^45]: *See* TWC Answer at 2, 4-5, 13, 27-28, 30; *id*. at Exhibit 1,
    Declaration of Andrew I. Rosenberg, at ¶¶ 8, 16; *id*. at Exhibit 8,
    Declaration of Michael Egan, at ¶ 12; TWC Motion to Strike at 11.

[^46]: *See* WealthTV Reply to TWC at 13.

[^47]: *See* *id*. at 12.

[^48]: *See id*.

[^49]: *See* TWC Motion to Strike at 13.

[^50]: *See* WealthTV Reply to TWC at 13 n.11.

[^51]: *See* WealthTV Complaint Against TWC at ¶¶ 22, 28-36; *see also*
    WealthTV Reply to TWC at 13-15.

[^52]: *See* WealthTV Complaint Against TWC at ¶ 29.

[^53]: *See id*.

[^54]: *See id*.

[^55]: *See id*.

[^56]: *See id*.

[^57]: *See id*.

[^58]: *See* WealthTV Reply to TWC, Exhibit 4, Declaration of Jedd
    Palmer, at ¶¶ 7-10. TWC argues that the Commission cannot rely on
    the information provided in the Palmer Declaration because it fails
    to identify the programming reviewed or provide any analysis to
    support the conclusions. *See* TWC Motion to Strike at 9. We
    conclude that the Palmer Declaration adequately sets forth the basis
    for its conclusions. *See* WealthTV Reply to TWC, Exhibit 4,
    Declaration of Jedd Palmer, at ¶¶ 7-10.

[^59]: *See* WealthTV Reply to TWC, Exhibit 3, Declaration of Mark
    Kersey. TWC argues that the Commission cannot rely on the survey
    results provided in the Kersey Declaration because it fails to
    provide the methodology, sample size, and other factors needed to
    test the validity of the conclusions. *See* TWC Motion to Strike at
    8-9. We find that the Kersey Declaration adequately sets forth the
    basis for its conclusions. *See* WealthTV Reply to TWC, Exhibit 3,
    Declaration of Mark Kersey, at ¶ 3.

[^60]: *See* WealthTV Reply to TWC, Exhibit 3, Declaration of Mark
    Kersey.

[^61]: *See* TWC Answer, Exhibit 9, Declaration of Stacie Gray, at ¶ 5.

[^62]: *See* WealthTV Complaint Against TWC at ¶ 30 and Exhibit 12.

[^63]: *See* *id*. at ¶¶ 30, 35 and Exhibit 11.

[^64]: *See* *id*. at ¶ 34.

[^65]: *See* WealthTV Reply to TWC, Exhibit 4, Declaration of Jedd
    Palmer, ¶ 8.

[^66]: *Compare* http://www.wealthtv.net/programming.html (stating that
    WealthTV provides "fresh and compelling landmark exclusive
    programming in high definition. From programs on private jets and
    exotic first-class travel to the intellectual discussion of money
    and philanthropy, WealthTV showcases a wide range of programming
    designed to have a broad appeal") *with*
    http://www.mojohd.com/about/ (describing the MOJO network as "the
    new 100% hi-def channel \[that\] is tailored to fit your interests
    from exceptional food to extreme locales, from high tech toys to
    high stake antics, from Wall Street to easy street and the best of
    sports, music, movies and more. It's 180º from ordinary and 100%
    high definition, because life is how you see it").

[^67]: *See* WealthTV Complaint Against TWC at ¶ 22.

[^68]: *See id.* at ¶ 25.

[^69]: *See* TWC Answer at 22-25; *id*. at Exhibit 8, Declaration of
    Michael Egan, at ¶¶ 5-7, 14; *id*. at Exhibit 9, Declaration of
    Stacie Gray, at ¶¶ 3, 6, 8.

[^70]: *See* WealthTV Reply to TWC at 15.

[^71]: *See id.* at 15; *id*. at Exhibit 4, Affidavit of Jedd Palmer, at
    ¶ 7.

[^72]: *See* WealthTV Complaint Against TWC at ¶ 32.

[^73]: *See* WealthTV Reply to TWC at 15; *id*. at Exhibit 4, Affidavit
    of Jedd Palmer, at ¶ 7.

[^74]: *See* WealthTV Complaint Against TWC at ¶ 36.

[^75]: *See id*.

[^76]: For example, TWC contends that MOJO's orientation is exclusively
    males aged 18 to 49, whereas WealthTV's website describes its
    programming as appealing to a broad audience. *See* TWC Answer at 3,
    18-24; *id*. at Exhibit 3, Declaration of Michael Egan, at ¶¶ 7-11;
    *id*. at Exhibit 9, Declaration of Stacie Gray, at ¶¶ 3, 7-8; *id*.
    at Exhibit 10 (comparing programs identified in WealthTV's
    Complaint); *id*. at Exhibit 11 (chart providing categories of
    programming shown on WealthTV and MOJO); *id*. at Exhibits 12-15
    (providing programming schedules for WealthTV and MOJO for sample
    weeks in July 2007 and January 2008); TWC Motion to Strike at 8-11.

[^77]: *See* TWC Motion to Strike at 13.

[^78]: *See* WealthTV Complaint Against TWC at ¶ 1; WealthTV Reply to
    TWC at 7-8, 17-20; *id*. at Exhibit 3, Supplemental Affidavit of
    Charles Herring, at ¶¶ 2-5; *id*. at Exhibit 4, Affidavit of Jedd
    Palmer, at ¶ 11; *see also* 47 U.S.C. § 536(a)(3); 47 C.F.R. §
    76.1301(c).

[^79]: *See* WealthTV Complaint Against TWC at ¶ 62; WealthTV Reply to
    TWC, Exhibit 3, Supplemental Affidavit of Charles Herring, at ¶ 3.

[^80]: *See* WealthTV Complaint Against TWC at ¶ 62; WealthTV Reply to
    TWC, Exhibit 3, Supplemental Affidavit of Charles Herring, at ¶¶
    2-3.

[^81]: *See* WealthTV Complaint Against TWC at ¶ 10; WealthTV Reply to
    TWC, Exhibit 3, Supplemental Affidavit of Charles Herring, at ¶ 5;
    *id*. at Exhibit 4, Affidavit of Jedd Palmer, at ¶ 11.

[^82]: *See* WealthTV Reply to TWC at 19.

[^83]: *See id*.

[^84]: *See* TWC Answer at 5, 34; TWC Motion to Strike at 6 n.15.

[^85]: *See* TWC Answer at 17; *id*. at Exhibit 1, Declaration of Andrew
    I. Rosenberg, at ¶¶ 20, 22; *id*. at Exhibit 8, Declaration of
    Michael Egan, at ¶ 15.

[^86]: *See* WealthTV Reply to TWC at 7; *see also* TWC Answer at 9
    n.13.

[^87]: *See* TWC Answer at 17; *see also* *id*. at Exhibit 1,
    Declaration of Andrew I. Rosenberg, at ¶¶ 14, 18, 21; *id*. at
    Exhibit 8, Declaration of Michael Egan, at ¶ 15; TWC Motion to
    Strike at 15-16.

[^88]: *See* WealthTV Reply to TWC at 16.

[^89]: *See id.* at 17.

[^90]: *See* TWC Answer at 16-17; *id*. at Exhibit 1, Declaration of
    Andrew I. Rosenberg, at ¶¶ 3-5, 12-14.

[^91]: *See* TWC Answer at 17 n.32, 29; *id*. at Exhibit 1, Declaration
    of Andrew I. Rosenberg, at ¶ 16.

[^92]: *See* WealthTV Reply to TWC, Exhibit 4, Affidavit of Jedd Palmer,
    at ¶ 12.

[^93]: *See* WealthTV Complaint Against TWC at ¶ 16.

[^94]: *See id.*, Exhibit 20.

[^95]: *See id.* at ¶ 17 and Exhibits 5-6.

[^96]: *See id.* at ¶ 20 and Exhibits 7-9.

[^97]: *See* TWC Answer at 18, 28-29.

[^98]: *See* WealthTV Reply to TWC at 20.

[^99]: *See* BHN Answer at 33.

[^100]: *See id*., Exhibit 1, Declaration of Steve Miron, at ¶ 2.

[^101]: *See* WealthTV Complaint Against BHN at ¶ 11; BHN Answer at
    33-34; *id*. at Exhibit 1, Declaration of Steve Miron, at ¶ 4.

[^102]: BHN is a wholly owned subsidiary of the TWE-A/N partnership and
    does not have a direct ownership stake in MOJO. *See* BHN Answer at
    18. Due to the structure of the TWE-A/N partnership, BHN claims that
    its actual economic interest in MOJO is about 5%. *See id.* at
    Exhibit 1, Declaration of Steve Miron, at ¶ 3.

[^103]: *See* BHN Answer at 24, 25 n.61, 38; *id.* at Exhibit 6,
    Declaration of Stacie Gray, at ¶¶ 3, 6.

[^104]: *See* WealthTV Complaint Against BHN, Exhibit 1.

[^105]: *See id.* at ¶¶ 46-47.

[^106]: *See id.* at ¶ 12. WealthTV supports the statements made in its
    Complaint with documentary evidence as well as sworn affidavits or
    declarations from Charles Herring, WealthTV's President; Robert
    Herring, Sr., WealthTV's Chairman and Chief Executive Officer; Jedd
    Palmer, principal of Jedd Palmer Consulting; and Mark Kersey,
    President of Kersey Research Strategies. *See id*., Exhibits 2, 3,
    7, 11, and 13.

[^107]: *See id*. at ¶¶ 12-15; Herring Broadcasting, Inc. d/b/a
    WealthTV, Reply to BHN, File No. CSR-7822-P (filed May 5, 2008), at
    13, 16-17 ("WealthTV Reply to BHN"); *id*. at Exhibit 2,
    Supplemental Affidavit of Charles Herring, at ¶ 2.

[^108]: *See* WealthTV Complaint Against BHN at ¶ 13; WealthTV Reply to
    BHN, Exhibit 2, Supplemental Affidavit of Charles Herring, at ¶ 2.

[^109]: *See* WealthTV Reply to BHN at 16.

[^110]: *See* BHN Answer at 13 n.16; *id*. at Exhibit 2, Declaration of
    Anne Stith, at ¶ 2.

[^111]: *See* BHN Answer at 13-15; *id*. at Exhibit 2, Declaration of
    Anne Stith, at ¶¶ 5-7.

[^112]: *See* WealthTV Complaint Against BHN at ¶ 15; WealthTV Reply to
    BHN at 14; BHN Answer at 15; *id*. at Exhibit 1, Declaration of
    Steve Miron, at ¶ 12. BHN states that while it is covered by
    programming contracts that TWC negotiates for national networks, it
    consults with TWC on programming needs and often meets with
    programmers. *See* BHN Answer at 14 n.17; *id*. at Exhibit 1,
    Declaration of Steve Miron, at ¶ 7. BHN notes that the WealthTV
    Complaint is not supported by an affidavit from Mr. Scaro. *See* BHN
    Answer at 12-13. WealthTV explains that Mr. Scaro no longer works
    for WealthTV and that all contacts discussed in its pleadings,
    including those involving Mr. Scaro, have been verified through
    affidavits of Charles Herring and Robert Herring. *See* WealthTV
    Reply to BHN at 21 n.19.

[^113]: *See* WealthTV Reply to BHN at 5.

[^114]: *See* WealthTV Complaint Against BHN at ¶¶ 2, 15.

[^115]: *See* WealthTV Reply to BHN at 6, 23-24.

[^116]: *See supra* ¶¶ 12-16; *see also* WealthTV Complaint Against BHN
    at ¶¶ 17, 23-32; *id*. at Exhibit 7, Affidavit of Jedd Palmer, at ¶¶
    8-10 (discussing similarity of WealthTV and MOJO); *id*. at Exhibit
    11, Declaration of Mark Kersey (providing survey results
    demonstrating the demographics of WealthTV's viewers); WealthTV
    Reply to BHN at 9, 14-15.

[^117]: For example, BHN states that MOJO's orientation is exclusively
    males aged 18 to 49, whereas WealthTV's website describes its
    programming as appealing to a broad audience. *See* BHN Answer at 4,
    20-26; *id*. at Exhibit 6, Declaration of Stacie Gray, at ¶¶ 3, 7-9;
    *id*. at Exhibit 7 (comparing programs identified in WealthTV
    complaint); *id*. at Exhibit 8 (chart providing categories of
    programming shown on WealthTV and MOJO); *id*. at Exhibits 9-12
    (providing programming schedules for WealthTV and MOJO for sample
    weeks in July 2007 and January 2008).

[^118]: *See* WealthTV Complaint Against BHN at ¶ 2; *id*. at Exhibit 7,
    Affidavit of Jedd Palmer, at ¶ 11; *id*. at Exhibit 13, Supplemental
    Affidavit of Charles Herring, at ¶¶ 2-5; WealthTV Reply to BHN at
    10, 19-23; *see also* 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c).

[^119]: *See* WealthTV Complaint Against BHN at ¶ 2; WealthTV Reply to
    BHN at 10.

[^120]: *See* WealthTV Complaint Against BHN at ¶ 39; *id*. at Exhibit
    13, Supplemental Affidavit of Charles Herring, at ¶¶ 2-3.

[^121]: *See* WealthTV Complaint Against BHN at ¶¶ 2, 39.

[^122]: *See id*. at ¶¶ 11, 38

[^123]: *See* WealthTV Reply to BHN at 10, 21.

[^124]: *See id*. at 21.

[^125]: *See* BHN Answer at 6, 30.

[^126]: *See* WealthTV Reply to BHN at 4-5.

[^127]: *See* BHN Answer at 6, 18, 31.

[^128]: *See* *id*. at 29-30.

[^129]: *Se*e WealthTV Reply to BHN at 28.

[^130]: *See* BHN Answer at 31.

[^131]: *See* WealthTV Reply to BHN at 28.

[^132]: *See* BHN Answer at 18-19, 20; *id.* at Exhibit 1, Declaration
    of Steve Miron, at ¶ 3.

[^133]: *See* WealthTV Reply to BHN at 9-10; *see also* BHN Answer at
    18-19 (admitting that BHN's interest in iN DEMAND satisfies the
    attribution threshold).

[^134]: *See* BHN Answer at 19; *id*. at Exhibit 1, Declaration of Steve
    Miron, at ¶ 11.

[^135]: *See* WealthTV Reply to BHN at 18.

[^136]: *See id*. at 17-18.

[^137]: *See* BHN Answer at 5; *see also* *id*. 3-4, 19.

[^138]: *See* *id*. at 20; *id*. at Exhibit 1, Declaration of Steve
    Miron, at ¶ 8.

[^139]: *See* BHN Answer at 4, 14, 16-17, 20 n.35, 21; *id*. at Exhibit
    1, Declaration of Steve Miron, at ¶¶ 9-10; *id*. at Exhibit 2,
    Declaration of Anne Stith, at ¶ 8.

[^140]: *See* WealthTV Complaint Against BHN, Exhibit 4, Affidavit of
    Jedd Palmer, at ¶ 12.

[^141]: *See* WealthTV Complaint Against BHN at ¶ 16.

[^142]: *See* WealthTV Complaint Against BHN, Exhibit 6.

[^143]: *See* WealthTV Complaint Against BHN at ¶¶ 13-15; WealthTV Reply
    to BHN at 13; *id*. at Exhibit 2, Supplemental Affidavit of Charles
    Herring, at ¶ 2.

[^144]: *See* WealthTV Reply to BHN at 18-19; *id*. at Exhibit 1. While
    BHN provides the results of a July 2007 customer survey in which
    WealthTV was ranked next-to-last among HD networks in terms of
    subscriber interest (*see* BHN Answer, Exhibit 5; *see also* BHN
    Answer at 4, 16-17, 21; *id*. at Exhibit 1, Declaration of Steve
    Miron, at ¶ 10), WealthTV notes that this survey is irrelevant
    because it was conducted after BHN ceased discussions with WealthTV,
    thereby providing no probative value as to BHN's decision making
    process in refusing to carry WealthTV. *See* WealthTV Reply to BHN
    at 18.

[^145]: *See* BHN Answer at 18.

[^146]: *See id*.

[^147]: *See* WealthTV Reply to BHN at 22.

[^148]: *See id*. WealthTV claims that MOJO is only made available to
    MVPDs that do not compete with the owners of MOJO (BHN, Comcast,
    Cox, and TWC). *See id*. at 22-23. IN DEMAND, the owner of MOJO,
    states that MOJO is available to any MVPD and notes that MOJO is
    currently carried by competitors such as RCN, Knology, Atlantic
    Telephone Cable, and Grande Communications. *See* Letter from
    Michael S. Berman, iN DEMAND L.L.C., to Ms. Marlene H. Dortch, FCC,
    File No. CSR-7822-P (June 12, 2008).

[^149]: *See* WealthTV Reply to BHN at 5.

[^150]: *See* WealthTV Complaint Against Cox at ¶¶ 3, 12; Cox
    Communications, Inc., Answer, File No. CSR-7829-P (May 5, 2008), at
    43 (¶ 3), 44 (¶ 12) ("Cox Answer").

[^151]: *See* WealthTV Complaint Against Cox at ¶ 12; Cox Answer at 44
    (¶ 12).

[^152]: Cox has a 15.6% interest in iN DEMAND and MOJO. *See* WealthTV
    Complaint Against Cox at ¶ 1; Cox Answer at 43 (¶ 1).

[^153]: *See* Cox Answer at 29-30; *id*. at Exhibit 2, Declaration of
    Stacie Gray, at ¶¶ 3, 6.

[^154]: *See* WealthTV Complaint Against Cox, Exhibit 1.

[^155]: *See* WealthTV Complaint Against Cox at ¶¶ 48-49.

[^156]: *See* *id*. at ¶ 13. WealthTV supports the statements made in
    its Complaint with documentary evidence as well as sworn affidavits
    or declarations from Charles Herring, WealthTV's President; Robert
    Herring, Sr., WealthTV's Chairman and Chief Executive Officer; Jedd
    Palmer, principal of Jedd Palmer Consulting; and Mark Kersey,
    President of Kersey Research Strategies. *See id*., Exhibits 2, 3,
    6, 10, and 12.

[^157]: *See id*. at ¶¶ 13-15. WealthTV states that Mark Cameron of
    Cox-New England in July 2004 stated that he was interested in
    carrying WealthTV and offered to assist in obtaining corporate
    approval. *See* *id*. at ¶ 13; Herring Broadcasting, Inc. d/b/a
    WealthTV, Reply to Cox, File No. CSR-7829-P (filed May 27, 2008)
    ("WealthTV Reply to Cox") at Exhibit 3, Declaration of Charles
    Herring, at ¶ 4. WealthTV claims that in a subsequent meeting held
    in May 2005, Mr. Cameron confirmed that he would launch WealthTV
    once a corporate agreement was concluded. *See* *id*., Exhibit 3,
    Declaration of Charles Herring, at ¶ 5. Cox notes that Mr. Cameron
    is now deceased. *See* Cox Answer at 14 n.35. In addition, WealthTV
    claims that representatives from Cox-Wichita confirmed that they
    were responsible for programming choices for their system and that
    they offered to carry WealthTV. *See* WealthTV Complaint Against Cox
    at ¶¶ 13-14; WealthTV Reply to Cox at Exhibit 3, Declaration of
    Charles Herring, at ¶¶ 7-11. According to WealthTV, in May 2005, the
    General Manager of Cox-Wichita called Cox's Senior Vice President of
    Programming to ask that an agreement with WealthTV be concluded.
    *See* WealthTV Complaint Against Cox at ¶ 15.

[^158]: *See* Cox Answer at Exhibit 1, Declaration of Robert C. Wilson,
    at ¶¶ 1-2. For example, two of Mr. Cameron's former employees claim
    that WealthTV was informed that programming decisions were made by
    Cox's corporate programming group. *See* Cox Answer at 14-15; *id*.
    at Exhibit 5, Declaration of Mike Patrie, at ¶ 2; *id*. at Exhibit
    6, Declaration of Joyce Arcand, at ¶ 2. They also state that Mr.
    Cameron previously expressed to them that he had no intention of
    following up with WealthTV regarding carriage. *See* Cox Answer at
    Exhibit 5, Declaration of Mike Patrie, at ¶ 2; *id*. at Exhibit 6,
    Declaration of Joyce Arcand, at ¶ 2. Cox provides an affidavit from
    one of the Cox-Wichita representatives denying that he offered to
    launch WealthTV and stating that he informed WealthTV's
    representatives that a carriage agreement could not be concluded
    without corporate approval. *See* Cox Answer at 15 n.36, 44-45 (¶
    13); *id*. at Exhibit 3, Declaration of Tony Matthews, at ¶¶ 2-3.

[^159]: *See* Cox Answer at 6-7, 10-11, 19; *id*. at Exhibit 1,
    Declaration of Robert C. Wilson, at ¶ 8.

[^160]: *See* WealthTV Reply to Cox at 3; *id*. at Exhibit 3,
    Declaration of Charles Herring, at ¶¶ 2, 12, 15.

[^161]: *See* Cox Answer at 3, 5-6.

[^162]: *See* *id*. at 7-8, 11.

[^163]: *See* WealthTV Reply to Cox at 3; *id* at Exhibit 3, Declaration
    of Charles Herring, at ¶¶ 2, 12, 15-16; *id*. at Exhibits 4-7
    (providing emails exchanged between WealthTV and Cox after June
    2005). To further support its claim that the Complaint was filed in
    accordance with the statute of limitations, WealthTV explains that
    it was not until May 2006, one year prior to the pre-filing notice,
    when Cox refused to carry the multicast stream of a Las Vegas CBS
    affiliate that proposed to broadcast WealthTV programming. *See*
    WealthTV Reply to Cox at 4; *see also* WealthTV Complaint Against
    Cox at ¶ 18. Cox argues, however, that this incident did not involve
    direct communication between Cox and WealthTV. *See* Cox Answer at 6
    n.4; *id*. at Exhibit 11, Declaration of Leo Brennan, at ¶ 4.
    WealthTV, however, claims that Leo Brennan of Cox-Las Vegas informed
    WealthTV of this decision in mid-May 2006. *See* WealthTV Reply to
    Cox at 4; *id*. at Exhibit 8 (e-mail from Charles Herring, WealthTV,
    to Leo Brennan, Cox-Las Vegas).

[^164]: *See* WealthTV Reply to Cox at 3-4; *id*. at Exhibit 3,
    Declaration of Charles Herring, at ¶¶ 2, 16.

[^165]: *See* 47 C.F.R. § 76.1302(f)(3); WealthTV Reply to Cox at 3-4.

[^166]: *See supra* ¶¶ 12-16; *see* *also* WealthTV Complaint Against
    Cox at ¶¶ 1, 2, 24, 25-34; *id*. at Exhibit 6, Affidavit of Jedd
    Palmer, at ¶¶ 8-10 (discussing similarity of WealthTV and MOJO);
    *id*. at Exhibit 10, Declaration of Mark Kersey (providing survey
    results demonstrating the demographics of WealthTV's viewers);
    WealthTV Reply to Cox at 8-9, 17-18.

[^167]: For example, Cox states that MOJO's orientation is exclusively
    males aged 18 to 49, whereas WealthTV's website describes its
    programming as appealing to a broad audience. *See* Cox Answer at
    2-3, 23-30, 44 (¶ 9), 48-50 (¶¶ 25-34); *id*. at Exhibit 2,
    Declaration of Stacie Gray, at ¶¶ 3, 7-10; *id*. at Exhibits 9-10
    (providing programming schedules for WealthTV and MOJO for a week in
    April 2008).

[^168]: *See* WealthTV Complaint Against Cox at ¶¶ 2, 40-41; *id*. at
    Exhibit 12, Supplemental Affidavit of Charles Herring, at ¶¶ 2-5;
    *id*. at Exhibit 6, Affidavit of Jedd Palmer, at ¶ 11; WealthTV
    Reply to Cox at 9, 19-20, 22-23; *see also* 47 U.S.C. § 536(a)(3);
    47 C.F.R. § 76.1301(c).

[^169]: *See* WealthTV Complaint Against Cox at ¶ 2.

[^170]: *See* *id*. at ¶ 41; *id*. at Exhibit 12, Supplemental Affidavit
    of Charles Herring, at ¶¶ 2-3; WealthTV Reply to Cox at 20.

[^171]: *See* WealthTV Complaint Against Cox at ¶¶ 2, 41; WealthTV Reply
    to Cox at 19.

[^172]: *See* WealthTV Complaint Against Cox at ¶¶ 12, 40.

[^173]: *See* WealthTV Reply to Cox at 9, 19-20; *see also* WealthTV
    Complaint Against Cox at Exhibit 12, Supplemental Affidavit of
    Charles Herring, at ¶ 4.

[^174]: *See* WealthTV Reply to Cox at 19-20.

[^175]: *See* Cox Answer at 34 n.118.

[^176]: *See* *id*. at 34.

[^177]: *See* WealthTV Reply to Cox at iii.

[^178]: *See* Cox Answer at 34-35.

[^179]: *See* *id*. at 33-34.

[^180]: *Se*e WealthTV Reply to Cox at 22-23.

[^181]: *See* Cox Answer at 31.

[^182]: *See* WealthTV Reply to Cox at 28.

[^183]: *See* Cox Answer at 22.

[^184]: *See* WealthTV Reply to Cox at 9; *see also* Cox Answer at 43
    (¶ 1) (admitting that Cox's interest in iN DEMAND is 15.6 percent,
    thereby making MOJO an affiliated programming service).

[^185]: *See* Cox Answer at 14; *see also id*. at 2, 14-20.

[^186]: *See* *id*. at 16-20; *id*. at Exhibit 1, Declaration of Robert
    C. Wilson, at ¶¶ 3-8.

[^187]: *See* WealthTV Reply to Cox at 12-14.

[^188]: *See id.* at 13; *see also* WealthTV Complaint Against Cox at
    Exhibit 6, Affidavit of Jedd Palmer, at ¶ 12.

[^189]: *See* WealthTV Reply to Cox at 13-14.

[^190]: *See id*. at 14, 23.

[^191]: *See* WealthTV Complaint Against Cox at ¶ 10; WealthTV Reply to
    Cox at 13.

[^192]: *See* WealthTV Complaint Against Cox at Exhibit 5.

[^193]: *See* WealthTV Complaint Against Cox at ¶¶ 13-15; WealthTV Reply
    to Cox at 13; *id*. at Exhibit 3, Declaration of Charles Herring
    (providing chart indicating support for WealthTV expressed by
    individual Cox systems).

[^194]: *See* WealthTV Complaint Against Cox at ¶ 17; WealthTV Reply to
    Cox at Exhibit 3, Declaration of Charles Herring, at ¶¶ 17-18. Cox
    states that it decided not to carry the WealthTV programming because
    it has no local or regional appeal for San Diego viewers. *See* Cox
    Answer at 18, 46 (¶ 17); *id*. at Exhibit 4, Declaration of William
    K. Geppert, at ¶ 3; *id*. at Exhibit 8, Declaration of Dennis
    Morgigno, at ¶¶ 3-4. WealthTV claims that the parties never reached
    an agreement because WealthTV was unwilling to agree to Cox's demand
    that its programming be branded under the Cox San Diego name. *See*
    WealthTV Reply to Cox at Exhibit 3, Declaration of Charles Herring,
    at ¶¶ 17-18.

[^195]: *See* WealthTV Complaint Against Cox at ¶ 18. Cox states that it
    was unwilling to carry WealthTV as a multicast stream because of the
    terms of the parties' retransmission consent agreement. *See* Cox
    Answer at 6 n.4; *id*. at Exhibit 11, Declaration of Leo Brennan, at
    ¶ 3.

[^196]: *See* Cox Answer at 2, 21.

[^197]: *See id*. at 21, 34.

[^198]: *See* WealthTV Reply to Cox at 21. WealthTV claims that MOJO is
    only made available to MVPDs that do not compete with the owners of
    MOJO (BHN, Comcast, Cox, and TWC). *See id*. IN DEMAND, the owner of
    MOJO, states that MOJO is available to any MVPD and notes that MOJO
    is currently carried by competitors such as RCN, Knology, Atlantic
    Telephone Cable, and Grande Communications. *See* Letter from
    Michael S. Berman, iN DEMAND L.L.C., to Ms. Marlene H. Dortch, FCC,
    File No. CSR-7829-P (June 12, 2008).

[^199]: *See* WealthTV Reply to Cox at iii.

[^200]: *See* WealthTV Complaint Against Comcast at ¶ 11; Comcast Answer
    to WealthTV at 31 (¶ 11).

[^201]: *See* WealthTV Complaint Against Comcast at ¶ 11; Comcast Answer
    to WealthTV at 31 (¶ 11).

[^202]: *See* WealthTV Complaint Against Comcast at ¶ 11; Comcast Answer
    to WealthTV at 31 (¶ 11).

[^203]: Comcast has a 54.1% interest in iN DEMAND and MOJO. *See*
    Comcast Answer to WealthTV at 30 (¶ 1).

[^204]: *See id*. at 3 (¶ 6), 18 (¶ 36), 19 (¶ 38), 21 (¶ 42); *id*. at
    Exhibit 6, Declaration of Stacie Gray, at ¶¶ 4, 9-10.

[^205]: *See* WealthTV Complaint Against Comcast, Exhibit 1.

[^206]: *See* WealthTV Complaint Against Comcast at ¶¶ 44-45.

[^207]: *See* *id*. at ¶¶ 6, 12, 33; Herring Broadcasting, Inc. d/b/a
    WealthTV, Reply to Comcast, File No. CSR-7907-P (filed June 9,
    2008), at 15-16 ("WealthTV Reply to Comcast"); *id.* at Exhibit 3,
    Declaration of Charles Herring, at ¶ 16. WealthTV supports the
    statements made in its Complaint with documentary evidence as well
    as sworn affidavits or declarations from Charles Herring, WealthTV's
    President; Robert Herring, Sr., WealthTV's Chairman and Chief
    Executive Officer; Jedd Palmer, principal of Jedd Palmer Consulting;
    and Mark Kersey, President of Kersey Research Strategies. *See*
    WealthTV Complaint Against Comcast at Exhibits 2, 3, 6, 10, and 12.

    On June 30, 2008, Comcast filed a Motion to Dismiss WealthTV's
    Complaint. *See* Comcast Corporation, Motion to Dismiss, File No.
    CSR-7907-P (June 30, 2008) ("Comcast Motion to Dismiss"). On July 7,
    2008, WealthTV filed a Motion seeking leave to file an Opposition to
    Comcast's Motion to Dismiss. *See* Herring Broadcasting, Inc. d/b/a
    WealthTV, Motion, File No. CSR-7907-P (July 7, 2008) ("WealthTV
    Opposition to Comcast Motion to Dismiss"). In its Motion, WealthTV
    argues that Comcast's Motion to Dismiss is an additional pleading
    that is not permitted by the Commission's rules. *See* WealthTV
    Opposition to Comcast Motion to Dismiss at ¶ 1; *see also Second
    Report and Order*, 9 FCC Rcd at 2652. We grant WealthTV's Motion and
    consider its Opposition to Comcast's Motion to Dismiss herein.
    Although we agree with WealthTV that Comcast's Motion to Dismiss is
    an impermissible additional pleading, we nonetheless consider the
    arguments made in Comcast's Motion to Dismiss in the interest of a
    complete record.

[^208]: *See* WealthTV Complaint Against Comcast at ¶¶ 12, 15.

[^209]: *See id*. at ¶ 12.

[^210]: *See id*. at ¶ 13 and Exhibit 4.

[^211]: *See* Comcast Answer to WealthTV at 6-7 (¶ 14), 14 (¶ 28); *id*.
    at Exhibit 2, Declaration of Madison Bond, at ¶ 16; *id.* at Exhibit
    3, Declaration of Alan Dannenbaum, at ¶¶ 4-6.

[^212]: *See* WealthTV Complaint Against Comcast at ¶ 14.

[^213]: *See id*.; *see also* WealthTV Reply to Comcast at 17; *id.* at
    Exhibit 3, Declaration of Charles Herring, at ¶¶ 2-4, 20; *id*. at
    Exhibit 6, Declaration of John Ghiorzi, at ¶¶ 1-3.

[^214]: *See* WealthTV Complaint Against Comcast at ¶ 14; *see* WealthTV
    Reply to Comcast at 17; *id.* at Exhibit 3, Declaration of Charles
    Herring, at ¶¶ 2-4; *id*. at Exhibit 6, Declaration of John Ghiorzi,
    at ¶¶ 1-3.

[^215]: *See* WealthTV Reply to Comcast at 17.

[^216]: *See* Comcast Answer to WealthTV at 16 (¶ 32); *id.* at Exhibit
    3, Declaration of Alan Dannenbaum, at ¶ 9.

[^217]: *See* *id*. at 1-2 (¶¶ 2-3); 5-9 (¶¶ 11-19); *id*. at Exhibit 2,
    Declaration of Madison Bond, at ¶¶ 6-10; Comcast Motion to Dismiss
    at 1-2. Comcast explains that its first carriage offer was made on
    April 14, 2008 when Mr. Bond proposed a hunting license which would
    enable WealthTV to seek carriage directly from individual Comcast
    systems. *See* Comcast Answer to WealthTV at 1-2 (¶ 2); 6 (¶ 13);
    *id*. at Exhibit 2, Declaration of Madison Bond, at ¶ 6; Comcast
    Motion to Dismiss at 1-2. WealthTV states that the hunting license
    proposed by Comcast was not an offer for carriage but merely an
    invitation to talk to individual Comcast systems. *See* WealthTV
    Reply to Comcast at 5, 9. In addition, WealthTV explains that it has
    never agreed to a hunting license with other MVPDs without a
    commitment for scheduled launches over a period of time. *See*
    WealthTV Reply to Comcast at 14 n.12. Comcast states that its second
    carriage offer was made on April 17, 2008 when Mr. Bond proposed
    that, in addition to providing WealthTV with a hunting license,
    Comcast would pay to launch WealthTV on the digital basic tier on a
    system in Chicago for a guaranteed period of time and would also
    carry WealthTV in Comcast's VOD service. *See* Comcast Answer to
    WealthTV at 1-2 (¶ 2), 7-8 (¶ 16); *id*. at Exhibit 2, Declaration
    of Madison Bond, at ¶ 8; Comcast Motion to Dismiss at 2-4. Comcast
    explains that its offer would provide WealthTV with an opportunity
    to demonstrate whether there is consumer interest in the channel.
    *See* Comcast Answer to WealthTV at 7-8 (¶ 16); *id*. at Exhibit 2,
    Declaration of Madison Bond, at ¶ 8. WealthTV states that Comcast's
    desire to test the appeal of WealthTV is unwarranted because
    WealthTV has been operating for over three years and has thousands
    of subscribers on other MVPDs in Chicago. *See* WealthTV Reply to
    Comcast at 15 n.13. WealthTV states that Comcast never offered
    specific terms and that the discussions with Mr. Bond never
    constituted an offer for carriage. *See* *id*. at 16; *id.* at
    Exhibit 3, Declaration of Charles Herring, at ¶ 18.

[^218]: *See* WealthTV Reply to Comcast at 9-10, 12-13; *id.* at Exhibit
    3, Declaration of Charles Herring, at ¶¶ 13, 18, 20; WealthTV
    Opposition to Comcast Motion to Dismiss at ¶¶ 2-3, 6.

[^219]: *See supra* ¶¶ 12-16; *see also* WealthTV Complaint Against
    Comcast at ¶¶ 1, 2, 22, 23-32; *id*. at Exhibit 8, Affidavit of Jedd
    Palmer, at ¶¶ 8-10 (discussing similarity of WealthTV and MOJO);
    *id*. at Exhibit 12, Declaration of Mark Kersey (providing survey
    results demonstrating the demographics of WealthTV's viewers);
    WealthTV Reply to Comcast at 5, 17-19.

[^220]: For example, Comcast states that MOJO's orientation is
    exclusively males aged 18 to 49, whereas WealthTV's executives as
    well as its own website describe its programming as appealing to a
    broad audience. *See* Comcast Answer at 3-4 (¶¶ 6-7), 17 (¶ 34),
    21-26 (¶¶ 41-48), 34-37 (¶¶ 23-32); *id*. at Exhibit 6, Declaration
    of Stacie Gray, at ¶¶ 4, 7-14; *id*. at Exhibits 7 and 10 (providing
    programming schedules for WealthTV and MOJO for one week in May
    2008).

[^221]: *See* Comcast Answer to WealthTV at 1-2 (¶ 2), 7-8 (¶ 16); *id*.
    at Exhibit 2, Declaration of Madison Bond, at ¶ 8; Comcast Motion to
    Dismiss at 2-4.

[^222]: *See* WealthTV Complaint Against Comcast at ¶¶ 2, 36-37; *id*.
    at Exhibit 8, Affidavit of Jedd Palmer, at ¶ 11; *id*. at Exhibit
    14, Supplemental Affidavit of Charles Herring, at ¶¶ 2-5; WealthTV
    Reply to Comcast at 5-6, 23-26; *see also* 47 U.S.C. § 536(a)(3); 47
    C.F.R. § 76.1301(c).

[^223]: *See* WealthTV Complaint Against Comcast at ¶ 2; WealthTV Reply
    to Comcast at 23, 25.

[^224]: *See* WealthTV Complaint Against Comcast at ¶ 37; *id*. at
    Exhibit 14, Supplemental Affidavit of Charles Herring, ¶¶ 2-3.

[^225]: *See* WealthTV Complaint Against Comcast at ¶¶ 2, 37.

[^226]: *See id*. at ¶ 36.

[^227]: *See id.*; *id*. at Exhibit 14, Supplemental Affidavit of
    Charles Herring, ¶ 4; *see also* WealthTV Reply to Comcast at 24.

[^228]: *See* WealthTV Reply to Comcast at 23, 25.

[^229]: *See* Comcast Answer to WealthTV at 4 (¶ 9), 26-27 (¶ 49).

[^230]: *See* WealthTV Reply to Comcast at 26.

[^231]: *See id*.

[^232]: *See* Comcast Answer to WealthTV at 26-27 (¶ 49).

[^233]: *See* WealthTV Reply to Comcast at 25.

[^234]: *See* Comcast Answer to WealthTV at 2 (¶ 4), 4 (¶ 8), 10 (¶ 21);
    *id*. at Exhibit 2, Declaration of Madison Bond, at ¶ 12.

[^235]: *See* Comcast Answer to WealthTV at 9-10 (¶ 20); *id*. at
    Exhibit 2, Declaration of Madison Bond, at ¶ 11.

[^236]: *See* Comcast Answer to WealthTV at 10 (¶ 21), 11-12 (¶ 23), 12
    (¶ 24); *id*. at Exhibit 2, Declaration of Madison Bond, at ¶¶
    13-14.

[^237]: *See* WealthTV Complaint Against Comcast at Exhibit 8, Affidavit
    of Jedd Palmer, at ¶ 12.

[^238]: *See* WealthTV Complaint Against Comcast at ¶ 10.

[^239]: *See* WealthTV Complaint Against Comcast at Exhibit 5.

[^240]: *See* WealthTV Complaint Against Comcast at ¶¶ 12, 15, 16. Mr.
    Bond states that any encouraging statements he may have made to
    WealthTV did not constitute a commitment for carriage. *See* Comcast
    Answer to WealthTV at 17 n.55; *id*. at Exhibit 2, Declaration of
    Madison Bond, at ¶ 15.

[^241]: *See* WealthTV Reply to Comcast at 21.

[^242]: *See* *id*.

[^243]: *See* Comcast Answer to WealthTV at 2-3 (¶ 4), 10-11 (¶ 22);
    *id*. at Exhibit 2, Declaration of Madison Bond, at ¶ 12.

[^244]: *See* Comcast Answer to WealthTV at 10-11 (¶ 22); *id*. at
    Exhibit 2, Declaration of Madison Bond, at ¶ 12.

[^245]: *See* WealthTV Reply to Comcast at 23.

[^246]: *See id.* at 20-21. WealthTV claims that MOJO is only made
    available to MVPDs that do not compete with the owners of MOJO (BHN,
    Comcast, Cox, and TWC). *See id*. at 23. IN DEMAND, the owner of
    MOJO, states that MOJO is available to any MVPD and notes that MOJO
    is currently carried by competitors such as RCN, Knology, Atlantic
    Telephone Cable, and Grande Communications. *See* Letter from
    Michael S. Berman, iN DEMAND L.L.C., to Ms. Marlene H. Dortch, FCC,
    File No. CSR-7907-P (June 12, 2008).

[^247]: *Second Report and Order*, 9 FCC Rcd at 2648.

[^248]: *Id.*; 47 C.F.R. § 76.1302(c)(3).

[^249]: *See* 47 U.S.C. § 536(b); 47 C.F.R. § 76.1300(e); *see also* NFL
    Complaint Against Comcast at ¶ 12.

[^250]: *See* NFL Complaint Against Comcast at ¶ 25; *id*. at Exhibit
    10, Declaration of Frank Hawkins, at ¶ 2 ("Hawkins Decl.").

[^251]: *See* NFL Complaint Against Comcast at ¶¶ 25-26 and Hawkins
    Decl. at ¶ 2; NFL Enterprises LLC, Reply, File No. CSR-7876-P (filed
    July 10, 2008), at ¶ 23 ("NFL Reply to Comcast").

[^252]: *See* NFL Complaint Against Comcast at ¶ 12.

[^253]: *See id*. at ¶ 26.

[^254]: *See* Comcast Answer to NFL at 55 (¶ 2), 62 (¶ 28); *see also*
    Complaint at ¶ 2.

[^255]: *See* Comcast Answer to NFL at 62 (¶ 29); *see also* NFL
    Complaint Against Comcast at ¶ 29.

[^256]: *See* NFL Complaint Against Comcast, Exhibit 8.

[^257]: 47 C.F.R. § 76.1301(c).

[^258]: 47 C.F.R. § 76.1301(a).

[^259]: *See* NFL Complaint Against Comcast at 31-32.

[^260]: *See* NFL Reply to Comcast at ¶¶ 8, 50. The NFL states that, if
    Comcast changes the terms by which it carries its national sports
    networks, then the appropriate relief might change. *See* *id*. at ¶
    51.

[^261]: *See id*. at ¶ 71.

[^262]: *See* Comcast Answer to NFL at ¶ 8; *see id*. at Exhibit 1,
    Declaration of Stephen B. Burke, at ¶ 3 ("Burke Decl.").

[^263]: *See* Comcast Answer to NFL at ¶¶ 8-9 and Burke Decl. at ¶ 6;
    *id*. at Exhibit 2, Declaration of Madison Bond, at ¶ 19 ("Bond
    Decl."); *id*. at Exhibit 3, Declaration of Brian L. Roberts, at ¶ 4
    ("Roberts Decl.").

[^264]: *See* Comcast Answer to NFL at ¶ 9. NFL Sunday Ticket is a
    package of approximately 200 out-of-market live NFL games. *See*
    *id*. at ¶ 10. At the time, DIRECTV's exclusive rights to NFL Sunday
    Ticket were set to expire at the end of the 2005 season. *See id*.,
    Roberts Decl. at ¶ 4.

[^265]: *See* Comcast Answer to NFL at ¶ 9. The NFL states that making
    the Eight-Game Package available to a cable channel would increase
    the number of NFL games available to a national audience. *See* NFL
    Complaint Against Comcast at ¶ 70 and Hawkins Decl. at ¶ 6.

[^266]: *See* Comcast Answer to NFL at ¶ 10 and Roberts Decl. at ¶ 4.

[^267]: *See* Comcast Answer to NFL at 74 (¶ 67) and Roberts Decl. at ¶
    6.

[^268]: *See* Comcast Answer to NFL at ¶ 9.

[^269]: *See id*. at ¶ 11.

[^270]: *See* NFL Complaint Against Comcast at ¶ 64; Comcast Answer to
    NFL at ¶ 12 and Bond Decl. at ¶ 6.

[^271]: *See* Comcast Answer to NFL at ¶ 12.

[^272]: *See* NFL Complaint Against Comcast at 25 n.15.

[^273]: *See* NFL Complaint Against Comcast at 2 n.3 and 25 n.15;
    Comcast Answer to NFL at ¶ 12, Bond Decl. at ¶ 7, Burke Decl. at ¶
    10, Roberts Decl. at ¶ 5.

[^274]: *See* NFL Complaint Against Comcast at ¶ 64.

[^275]: *See* Comcast Answer to NFL at ¶¶ 50-52.

[^276]: *See* *id*. at ¶¶ 50-52, Bond Decl. at ¶ 7, Burke Decl. at ¶ 10,
    Roberts Decl. at ¶ 5.

[^277]: *See* NFL Complaint Against Comcast at ¶ 35 and Hawkins Decl. at
    ¶ 4.

[^278]: *See* NFL Complaint Against Comcast at ¶ 35 and Hawkins Decl. at
    ¶ 4.

[^279]: *See* Comcast Answer to NFL at ¶¶ 13-14, Roberts Decl. at ¶ 6;
    *see also* Complaint at ¶ 66. According to the NFL, Comcast demanded
    that the NFL provide it with exclusivity with respect to the
    Eight-Game Package, such that no local broadcasters in the competing
    teams' home markets could televise the games. *See* Complaint at ¶
    72 and Hawkins Decl. at ¶ 10. The NFL rejected this demand, because
    it violated the NFL's policy of showing games on free, over-the-air
    broadcast television in the competing teams' home markets. *See id*.
    Comcast disputes that it made such a demand. *See* Comcast Answer to
    NFL at 10 n.27, 75 (¶ 72), Burke Decl. at ¶ 15.

[^280]: *See* Comcast Answer to NFL at ¶ 14, 76 (¶ 73), Burke Decl. at ¶
    14, Roberts Decl. at ¶ 11.

[^281]: *See* NFL Complaint Against Comcast at ¶ 73, Hawkins Decl. at ¶
    11; Comcast Answer to NFL at 75 (¶ 73).

[^282]: *See* NFL Complaint Against Comcast, Hawkins Decl. at ¶ 11.

[^283]: *See id*.

[^284]: *See* Comcast Answer to NFL at 75 (¶ 73).

[^285]: *See* NFL Complaint Against Comcast, Hawkins Decl. at ¶ 12;
    Comcast Answer to NFL at ¶ 15.

[^286]: *See* NFL Complaint Against Comcast at ¶ 75; *id*. at Exhibit 9,
    Declaration of Paul Tagliabue, at ¶ 3 ("Tagliabue Decl.").

[^287]: *See* NFL Complaint Against Comcast, Tagliabue Decl. at ¶ 4.

[^288]: *See* Comcast Answer to NFL, Roberts Decl. at ¶ 12.

[^289]: *See id.*; *see also* Comcast Answer to NFL at ¶ 15.

[^290]: *See* Comcast Answer to NFL at 8 n.17.

[^291]: *See id*.; *see also* NFL Complaint Against Comcast, Hawkins
    Decl. at ¶ 13.

[^292]: *See* Comcast Answer to NFL at ¶ 16, 77 (¶ 76); *see also* NFL
    Complaint Against Comcast at ¶ 76 and Hawkins Decl. at ¶ 13.

[^293]: *See* Comcast Answer to NFL at ¶ 16, 77 (¶ 76).

[^294]: *See* *id*. at 77 (¶ 76); *see also* NFL Complaint Against
    Comcast at ¶¶ 34, 76 and Hawkins Decl. at ¶ 14.

[^295]: *See* NFL Complaint Against Comcast, Hawkins Decl. at ¶ 15;
    Comcast Answer to NFL at ¶ 17, Bond Decl. at ¶ 13; *id*. at Exhibit
    6, Declaration of Michael P. Carroll, at ¶ 2 ("Carroll Decl.").

[^296]: *See* NFL Complaint Against Comcast at 2 n.3 and 25 n.15.

[^297]: *See* Comcast Answer to NFL at 11 n.31.

[^298]: *See* Comcast Answer to NFL at ¶ 17, Bond Decl. at ¶ 14, Carroll
    Decl. at ¶ 14.

[^299]: *See* NFL Complaint Against Comcast at ¶ 77 and Hawkins Decl. at
    ¶ 16; Comcast Answer to NFL at ¶ 17 and Bond Decl. at ¶ 14.

[^300]: *See* NFL Complaint Against Comcast, Hawkins Decl. at ¶ 18.

[^301]: *See* Comcast Answer to NFL at ¶ 18, Carroll Decl. at ¶ 13.

[^302]: *See* NFL Enterprises LLC, Update of Record, File No. CSR-7876-P
    (filed June 17, 2008), at 2; Answer, Carroll Decl. at ¶ 21.

[^303]: *See* Comcast Answer to NFL at ¶¶ 2, 22-36.

[^304]: *See id*. at ¶¶ 23-27.

[^305]: *See id*. at ¶ 24 (citing 47 C.F.R. § 76.1302(f)(1)-(3) and
    *1998 Biennial Regulatory Review -- Part 76 -- Cable Television
    Service Pleading and Complaint Rules*, Order on Reconsideration, 14
    FCC Rcd 16433, ¶ 5 (1999)). Comcast states that it has made no
    effort to carry the NFL Network that is unrelated to any existing
    contract between Comcast and the NFL and that it has not refused to
    deal with the NFL. *See id*. at ¶ 25. Accordingly, Comcast states
    that these triggering events are not relevant. *See id*.

[^306]: *See* *id*. at ¶ 24.

[^307]: *See* *id*. at 16 n.52.

[^308]: *See* NFL Reply to Comcast at ¶ 43.

[^309]: *See id*. at ¶¶ 40, 43.

[^310]: *See id*. at ¶ 39.

[^311]: *See* Comcast Answer to NFL at 16 n.52.

[^312]: *See id.*

[^313]: *See* NFL Reply to Comcast at ¶¶ 44-45.

[^314]: *See* 47 C.F.R. § 76.1302(f).

[^315]: *See* NFL Complaint Against Comcast, Hawkins Decl. at ¶ 17
    (stating that Comcast moved the NFL Network from the digital basic
    tier to a premium sports tier between June 1, 2007 and July 15,
    2007); Comcast Answer to NFL at 77 (¶ 77) (stating that Comcast
    dropped the NFL Network from the digital basic tier in mid-2007);
    NFL Reply to Comcast at ¶¶ 40, 43-44 (stating that Comcast moved the
    NFL Network from the digital basic tier to a premium sports tier
    between June 1, 2007 and July 15, 2007).

[^316]: *See* Comcast Answer to NFL at ¶¶ 28-34.

[^317]: *See* *id*. at ¶ 28.

[^318]: *See* *id*. at ¶ 30.

[^319]: *See* NFL Complaint Against Comcast at ¶ 65; NFL Reply to
    Comcast at ¶¶ 4, 17, 33-35.

[^320]: *See* NFL Complaint Against Comcast at ¶ 65; NFL Reply to
    Comcast at ¶¶ 4, 17, 35.

[^321]: *See* NFL Reply to Comcast at ¶ 34.

[^322]: *See* Comcast Answer to NFL at ¶ 28 (citing *EchoStar
    Communications Corp. v. Speedvision Network, L.L.C. and Outdoor Life
    Network, L.L.C.*, Memorandum Opinion & Order, 14 FCC Rcd 9327 (CSB,
    1999), *aff'd*, *EchoStar Communications Corp. v. Speedvision
    Network, L.L.C. and Outdoor Life Network, L.L.C.*, Memorandum
    Opinion & Order, 16 FCC Rcd 4949 (2001)).

[^323]: *See* NFL Reply to Comcast at ¶ 36 (citing *TCR Sports
    Broadcasting Holding, L.L.P. v. Comcast Corporation,* MB Docket No.
    06-148, File No. CSR-6911-N, Memorandum Opinion and Hearing
    Designation Order, 21 FCC Rcd 8989, 8991 nn. 21-22 (2006)). The NFL
    claims that *Speedvision* is distinguishable because in that case
    the defendants refused to provide programming to an MVPD based on
    their claim that the MVPD breached a contract; thus, the Commission
    could not determine whether there had been a program access
    violation unless it was first determined whether the MVPD had
    breached the contract. *See id*. at ¶ 37. In this case, however, the
    interpretation of the contract has no bearing on a determination of
    whether Comcast discriminated against the NFL Network. *See id*.

[^324]: *See* Comcast Answer to NFL at ¶ 34.

[^325]: *See* Comcast Answer to NFL, Carroll Decl. at ¶ 24.

[^326]: *See* NFL Update of Record at 2.

[^327]: *See id*.

[^328]: *See id*.

[^329]: *See id*.

[^330]: *See* Comcast Answer to NFL at ¶ 35, 58 (¶ 11); *see* 47 C.F.R.
    § 76.6(a)(1) ("A pleading must be clear, concise, and explicit. All
    matters concerning a claim, defense or requested remedy, should be
    pleaded fully and with specificity."); *Second Report and Order*, 9
    FCC Rcd at 2653, ¶ 27 ("If a complainant seeks mandatory carriage,
    it should propose specific terms for such carriage, as well as an
    explanation of its rationale for proposing those terms, such as the
    existence of comparable terms in other program carriage agreements
    to which either the complainant or the defendant is a party, or
    comparable terms that have been approved by the Commission in other
    program carriage complaint cases.").

[^331]: *See* Comcast Answer to NFL at ¶ 35.

[^332]: *See* NFL Reply to Comcast at ¶¶ 50-51.

[^333]: *See* 47 C.F.R. § 76.1302(c).

[^334]: *See* Comcast Answer to NFL at 23 n.79 (citing 47 C.F.R. §
    76.6(a)(4)). Comcast notes that the complaint was signed by only the
    NFL's outside counsel, which violates the requirement that
    complaints be signed by the complainant. *See* *id*.

[^335]: *See* *id*. (citing 47 C.F.R. § 76.6(a)(4)). Comcast notes that
    the complaint does not comply with the requirement that submissions
    include a written statement signed by the complainant verifying that
    the complaint is grounded in fact and law, is filed in good faith,
    and is not interposed for any improper purpose. *See* *id*.

[^336]: *See* NFL Reply to Comcast at 21 n.14; *see also* NFL Complaint
    Against Comcast, Hawkins Decl. at ¶ 23.

[^337]: *See* Comcast Answer to NFL at 23 n.79.

[^338]: *See* NFL Complaint Against Comcast at ¶ 81; NFL Reply to
    Comcast at ¶¶ 9-11.

[^339]: *See* NFL Complaint Against Comcast at ¶¶ 5, 41-42, 46-47,
    49-51, 55; NFL Reply to Comcast at ¶ 16.

[^340]: *See* Comcast Answer to NFL at ¶ 58, 69 (¶ 51), *id*. at Exhibit
    8, Declaration of Jonathan Orszag and Jay Ezrielev, at ¶ 38 ("Orszag
    Decl."); *id*. at Exhibit 9, Declaration of Jeff Shell, at ¶ 9
    ("Shell Decl."). Accordingly, Comcast submits that Versus and the
    Golf Channel do not benefit from any actions that hinder the ability
    of the NFL Network to compete. *See* Comcast Answer to NFL, Orszag
    Decl. at ¶¶ 38-40.

[^341]: *See* NFL Complaint Against Comcast, Hawkins Decl. at ¶ 18;
    Comcast Answer to NFL at 68 (¶ 49), Bond Decl. at ¶ 14.

[^342]: *See* NFL Complaint Against Comcast, Hawkins Decl. at ¶ 18;
    Comcast Answer to NFL, Bond Decl. at ¶ 14.

[^343]: *See* NFL Complaint Against Comcast at ¶ 3; Comcast Answer to
    NFL at 55 (¶ 3), 62 (¶ 8), 63-64 (¶ 35); NFL Reply to Comcast at ¶¶
    1-2.

[^344]: *See* Comcast Answer to NFL at 55 (¶ 3).

[^345]: *See* NFL Complaint Against Comcast at ¶ 39, *id*. at Exhibit
    12, Declaration of Hal Singer, at ¶¶ 1, 14-15, 23-29 ("Singer
    Decl."); NFL Reply to Comcast at ¶ 26.

[^346]: *See* NFL Complaint Against Comcast at ¶¶ 38-55.

[^347]: The NFL states that carriage on a premium tier results in less
    subscribers which reduces advertising rates and revenues. *See* NFL
    Complaint Against Comcast at ¶ 47, Singer Decl. at ¶ 31; *id*. at
    Exhibit 4, Declaration of Ronald Furman, at ¶¶ 8-9 ("Furman Reply
    Decl.").

[^348]: The NFL states that the NFL Network has lost over \$4 million
    per month in license revenues after being shifted to Comcast's
    premium sports tier. *See* NFL Complaint Against Comcast at ¶ 48,
    Singer Decl. at ¶ 32.

[^349]: *See* NFL Complaint Against Comcast, Hawkins Decl. at ¶¶ 20-22,
    Singer Decl. at ¶ 33; NFL Reply to Comcast, Furman Reply Decl. at ¶¶
    10-12 . The NFL provides evidence that (i) national advertisers have
    reduced their advertising spending on the NFL Network as a result of
    its placement on a premium tier (NFL Complaint Against Comcast,
    Hawkins Decl. at ¶ 22; NFL Reply to Comcast, Furman Reply Decl. at
    ¶¶ 11-12); and (ii) the NFL Network lost a deal to license college
    football games because it did not have as many subscribers as
    Versus. *See* NFL Complaint Against Comcast at ¶ 46, Hawkins Decl.
    at ¶ 20, Singer Decl. at ¶ 33. The NFL claims that less popular
    networks that receive greater distribution than the NFL Network,
    such as Versus and the Golf Channel, have an advantage in attracting
    advertisers and content. *See* NFL Complaint Against Comcast at ¶
    48, Hawkins Decl. at ¶ 19. The NFL states that advertisers seeking
    to purchase time on a "national" cable channel seek 50-60 million
    subscribers. *See* NFL Complaint Against Comcast at ¶ 47, Hawkins
    Decl. at ¶ 21; NFL Reply to Comcast, Furman Reply Decl. at ¶ 2. The
    NFL explains that Comcast's decision to place the NFL Network on a
    premium sports tier that is subscribed to by only a fraction of
    Comcast's 24 million customers has obstructed its ability to reach
    this subscriber threshold. *See* NFL Complaint Against Comcast at ¶
    47.

[^350]: *See* NFL Complaint Against Comcast at ¶ 5.

[^351]: The NFL states that carriage on a premium tier reduces
    subscribership which reduces advertising revenues which leads to an
    increase in license fees. *See* NFL Complaint Against Comcast,
    Singer Decl. at ¶ 40.

[^352]: *See* NFL Complaint Against Comcast at ¶¶ 50-51, Singer Decl. at
    ¶ 38; NFL Reply to Comcast, Singer Reply Decl. at ¶¶ 34-35.

[^353]: *See* NFL Complaint Against Comcast, Singer Decl. at ¶ 45.

[^354]: *See* NFL Complaint Against Comcast at ¶ 60.

[^355]: *See id*. at ¶¶ 5, 46-47, 50-51, 55, 60.

[^356]: *See* *id*. at ¶ 8 (citing *TCR Sports Broadcasting Holding,
    L.L.P. v. Time Warner Cable*, AAA Case No. 71 472 E 00697 07
    (2008)). The NFL notes that the arbitrator in *TCR v. Time Warner*
    found that Time Warner's refusal to carry MASN on the same tier as a
    competing Time Warner-owned sports channel impaired MASN's ability
    to reach its intended audience. *See id*.; NFL Update of Record at
    1-2. The arbitrator found that Time Warner was motivated to squeeze
    MASN out of business through unfavorable tier placement so that Time
    Warner could obtain the rights to Washington Nationals games carried
    on MASN. *See* NFL Complaint Against Comcast at ¶ 8; NFL Update of
    Record at 1-2. Similarly, the NFL contends that, by demanding a
    Conditional Tiering Right and then moving the NFL Network to a
    premium sports tier after it failed to win the rights to the
    Eight-Game Package, Comcast impaired the ability of the NFL Network
    to compete and enhanced its own ability to acquire the Eight-Game
    Package. *See* NFL Complaint Against Comcast at ¶ 8.

[^357]: *See* Comcast Answer to NFL at ¶ 66, Orszag Decl. at ¶ 41.

[^358]: *See* Comcast Answer to NFL at ¶ 67, Orszag Decl. at ¶¶ 11, 41,
    52.

[^359]: *See* Comcast Answer to NFL at ¶ 67, Orszag Decl. at ¶¶ 11, 41,
    52.

[^360]: *See* Comcast Answer to NFL at ¶ 65, 62 (¶ 30), Orszag Decl. at
    ¶¶ 11, 41, 52

[^361]: Comcast argues that an MVPD's decision regarding whether and on
    what tier to carry a network involves a balancing of numerous
    factors, including the consumer appeal of the network, the cost and
    other terms of carriage, and whether the MVPD already carries
    similar programming. *See* Comcast Answer to NFL at ¶¶ 49-50, Bond
    Decl. at ¶¶ 3-4, Orszag Decl. at ¶¶ 14, 23, 31. Comcast contends
    that Section 616 does not give the Commission general authority to
    review outcomes of marketplace negotiations and argues that
    deference to the marketplace is even more appropriate now given that
    the cable industry is far less vertically integrated than in 1992.
    *See* *id*. at ¶¶ 39-41. In response, the NFL notes that Section 616
    is still in effect and that the Commission has recently determined
    that vertically integrated cable operators still possess sufficient
    market power to engage in anticompetitive abuses. *See* NFL Reply to
    Comcast at ¶¶ 53-54. Comcast argues that its editorial discretion is
    broadly protected by the First Amendment from government
    interference. *See* Comcast Answer to NFL at ¶ 43. Comcast also
    claims that the NFL is asking the Commission to engage in a
    content-based analysis comparing the NFL Network with Versus and the
    Golf Channel. *See id*. at ¶ 44. In response, the NFL notes that
    Section 616 prohibits discrimination based on ownership, not
    content, and is thus content-neutral. *See* NFL Reply to Comcast at
    ¶¶ 55-58.

[^362]: *See* Comcast Answer to NFL at ¶ 59, Orszag Decl. at ¶¶ 19-20,
    *see id*. at Exhibit 9, Declaration of Jeff Shell, at ¶ 4 ("Shell
    Decl."); *see also* NFL Complaint Against Comcast at ¶ 67; NFL Reply
    to Comcast at ¶ 24.

[^363]: *See* NFL Reply to Comcast at ¶¶ 5, 19, Singer Reply Decl. at ¶
    14; *see also* NFL Complaint Against Comcast at ¶ 32 and Hawkins
    Decl. at ¶ 5

[^364]: *See* NFL Reply to Comcast at ¶ 24.

[^365]: *See* NFL Reply to Comcast at ¶ 24.

[^366]: *See* Comcast Answer to NFL at ¶¶ 54-55, Bond Decl. at ¶ 18,
    Orszag Decl. at ¶ 25.

[^367]: *See* NFL Reply to Comcast at ¶ 20; *id*. at Exhibit 3,
    Declaration of Frank Hawkins, at ¶ 8 ("Hawkins Reply Decl.").

[^368]: *See* Comcast Answer to NFL at ¶ 58, Shell Decl. at ¶¶ 3-4, 6-7.

[^369]: *See supra* n.365.

[^370]: *See* Comcast Answer to NFL at ¶ 61, Orszag Decl. at ¶ 30, Shell
    Decl. at ¶¶ 5, 10.

[^371]: *See* Comcast Answer to NFL ¶ 61, Orszag Decl. at ¶ 30.

[^372]: *See* NFL Reply to Comcast, Singer Reply Decl. at ¶ 39.

[^373]: *See* Comcast Answer to NFL at 33 n.108, 70 (¶ 57), Bond Decl.
    at ¶ 18.

[^374]: *See* Comcast Answer to NFL, Orszag Decl. at ¶ 25.

[^375]: *See* NFL Reply to Comcast at ¶ 19, Singer Reply Decl. at ¶ 14;
    *see also* NFL Complaint Against Comcast at ¶ 32 and Hawkins Decl.
    at ¶ 5.

[^376]: *See* NFL Reply to Comcast at 9 n.6, Hawkins Reply Decl. at ¶ 4.

[^377]: *See* Comcast Answer to NFL at ¶ 56.

[^378]: *See* *id*. at ¶¶ 57, 62, Orszag Decl. at ¶ 33.

[^379]: *See* NFL Complaint Against Comcast at ¶ 58; NFL Reply to
    Comcast, Singer Reply Decl. at ¶¶ 36-37.

[^380]: *See* NFL Reply to Comcast, Hawkins Reply Decl. at ¶ 2.

[^381]: *See* NFL Reply to Comcast, Hawkins Reply Decl. at ¶ 3.

[^382]: *See* Comcast Answer to NFL at ¶ 62, Orszag Decl. at ¶¶ 15, 33,
    Shell Decl. at ¶ 8. Versus has 64 million and the Golf Channel has
    67 million subscribers, compared to 36 million for the NFL Network.
    *See* Comcast Answer to NFL at ¶ 62, Shell Decl. at ¶ 8.

[^383]: *See* NFL Reply to Comcast at 8 n.4.

[^384]: *Second Report and Order*, 9 FCC Rcd at 2648.

[^385]: *Id.*; 47 C.F.R. § 76.1302(c)(3).

[^386]: *See* NFL Complaint Against Comcast at ¶¶ 4, 63, 77, 79, 83; NFL
    Reply to Comcast at ¶¶ 9, 59-60.

[^387]: *See* NFL Complaint Against Comcast at ¶¶ 4, 63, 77, 79, 83; NFL
    Reply to Comcast at ¶¶ 9, 59-60. Section 76.1301(a) of the
    Commission's rules mirrors Section 616(a) of the Act: "No cable
    operator or other multichannel video programming distributor shall
    require a financial interest in any program service as a condition
    for carriage on one or more of such operator's/provider's systems."
    *See* 47 C.F.R. § 76.1301(a); *see also* 47 U.S.C. § 536(a)(1).

[^388]: *See* NFL Complaint Against Comcast at ¶¶ 7, 22 (citing *TCR
    Sports Broadcasting Holding, L.L.P. v. Comcast Corporation,* MB
    Docket No. 06-148, File No. CSR-6911-N, Memorandum Opinion and
    Hearing Designation Order, 21 FCC Rcd 8989, 8995, ¶ 12 (2006)). The
    NFL notes that the Commission in *TCR v. Comcast* found that the
    programmer, MASN, had established a *prima facie* case that Comcast
    refused to carry MASN as a retaliatory action for Major League
    Baseball's decision to award distribution rights for the Washington
    Nationals baseball games to MASN. *See* NFL Complaint Against
    Comcast at ¶ 22, Singer Decl. at ¶ 12.

[^389]: *See* Comcast Answer to NFL, Burke Decl. at ¶¶ 11, 16, Roberts
    Decl. at ¶ 7.

[^390]: *See* Comcast Answer to NFL at 60-61 (¶¶ 20-21).

[^391]: *See* *id.* at 60-61 (¶¶ 20-21) (citing 47 C.F.R. § 76.1301(a)).

[^392]: *See* *id.* at ¶ 72, 55 (¶ 4).

[^393]: *See* *id.* at ¶ 74.

[^394]: *See id*.

[^395]: *See* NFL Reply to Comcast at ¶¶ 62-65.

[^396]: *See id*. at ¶ 66.

[^397]: *See id*. at ¶ 62.

[^398]: *See* NFL Reply to Comcast at ¶ 68.

[^399]: *Second Report and Order*, 9 FCC Rcd at 2649.

[^400]: *Id.*

[^401]: *See* MASN Complaint Against Comcast at ¶¶ 3, 68.

[^402]: *See* 47 U.S.C. § 536(b); 47 C.F.R. § 76.1300(e).

[^403]: *See* MASN Complaint Against Comcast at ¶ 8; **\[REDACTED\]**.

[^404]: *See* MASN Complaint Against Comcast at ¶ 8; **\[REDACTED\]**.

[^405]: Comcast Corporation, Answer, File No. CSR-8001-P (July 31,
    2008), at 48 (¶ 67) ("Comcast Answer to MASN").

[^406]: *See* MASN Complaint Against Comcast at ¶ 58 **\[REDACTED\]**.

[^407]: *See* *id*. at ¶ 1.

[^408]: *See* *id*. at p. 41-42.

[^409]: *See* Comcast Answer to MASN at 52 (citing 47 C.F.R. § 76.6(c);
    *Second Report and Order*, 9 FCC Rcd at 2657, ¶ 36).

[^410]: *See* MASN Complaint Against Comcast at ¶ 21; **\[REDACTED\]**.

[^411]: *See* Comcast Answer to MASN at 38 (¶ 21).

[^412]: *See id*. at Exhibit B, Declaration of Madison Bond, at ¶ 10
    ("Bond Decl").

[^413]: *See* MASN Complaint Against Comcast at ¶ 27.

[^414]: *See id.*

[^415]: *See* MASN Complaint Against Comcast at ¶ 32; *see also*
    *Applications for Consent to the Assignment and/or Transfer of
    Control of Licenses, Adelphia Communications Corporation, Assignors
    to Time Warner Cable, Inc., et al.,* MB Docket No. 05-192,
    Memorandum Opinion and Order, 21 FCC Rcd 8203, 8287, ¶¶ 189-90,
    Appendix B (2006) ("*Adelphia Order*").

[^416]: *See* *id*. at ¶ 34.

[^417]: *See* *id*. at ¶ 35.

[^418]: *See* *id*. at ¶ 32.

[^419]: *See* Comcast Answer to MASN at ¶¶ 8, 29 and p. 40 (¶ 32).

[^420]: *See* MASN Complaint Against Comcast at ¶ 39; **\[REDACTED\]**.

[^421]: *See* MASN Complaint Against Comcast at ¶ 39; **\[REDACTED\]**.

[^422]: *See* MASN Complaint Against Comcast at ¶ 39; **\[REDACTED\]**.

[^423]: *See* MASN Complaint Against Comcast at ¶ 40; **\[REDACTED\].**
    []{.mark}

[^424]: *See* MASN Complaint Against Comcast at ¶ 41, **\[REDACTED\].**

[^425]: *See* MASN Complaint Against Comcast at ¶ 41; **\[REDACTED\].**

[^426]: *See* MASN Complaint Against Comcast at ¶ 41; **\[REDACTED\].**

[^427]: *See* Comcast Answer to MASN at ¶ 25; Bond Decl. at ¶ 6; Comcast
    Corporation, Surreply, File No. CSR-8001-P (September 15, 2008) at 5
    ("Comcat Surreply").

[^428]: *See* Bond Decl. at ¶ 8.

[^429]: *See* MASN Complaint Against Comcast at ¶ 42; **\[REDACTED\].**
    []{.mark}

[^430]: *See* MASN Complaint Against Comcast at ¶ 42; **\[REDACTED\].**

[^431]: *See* Comcast Answer to MASN at ¶ 26; Bond Decl. at ¶ 5; *id*.
    at Exhibit C, Declaration of Michael Ortman, at ¶ 4 ("Ortman
    Decl.").

[^432]: *See* Comcast Answer to MASN at ¶ 26; Bond Decl. at ¶ 5; Ortman
    Decl. at ¶ 4.

[^433]: *See* MASN Complaint Against Comcast at ¶ 46; **\[REDACTED\]**;
    MASN Reply to Comcast at ¶ 38.

[^434]: *See* Bond Decl. at ¶ 11.

[^435]: *See* *id.*; Ortman Decl. at ¶ 11.

[^436]: *See* Comcast Answer to MASN at ¶¶ 7, 27; Bond Decl. at ¶¶ 7, 9;
    Ortman Decl. at ¶ 10.

[^437]: *See* MASN Reply to Comcast ¶ 38; **\[REDACTED\]**.

[^438]: *See* MASN Complaint Against Comcast at ¶ 50; **\[REDACTED\].**

[^439]: *See* MASN Complaint Against Comcast at ¶ 50; Comcast Answer to
    MASN at n.19.

[^440]: *See* *TCR Sports Broadcasting Holding, L.L.P. v. Comcast
    Corporation,* MB Docket No. 06-148, File No. CSR-6911-N, Order
    Terminating Proceeding (Arthur I. Steinberg, Administrative Law
    Judge, August 14, 2006).

[^441]: *See* MASN Complaint Against Comcast at ¶ 52; **\[REDACTED\]**.

[^442]: *See* MASN Complaint Against Comcast ¶ 53; **\[REDACTED\]**.

[^443]: *See* MASN Complaint Against Comcast at ¶ 53; **\[REDACTED\].**

[^444]: *See* MASN Complaint Against Comcast at ¶ 53.

[^445]: *See* MASN Complaint Against Comcast at ¶¶ 40, 48, 49;
    **\[REDACTED\].**

[^446]: *See* MASN Complaint Against Comcast at ¶ 51.

[^447]: *See* MASN Complaint Against Comcast at ¶ 43; **\[REDACTED\].**

[^448]: **\[REDACTED\].**

[^449]: **\[REDACTED\].**

[^450]: *See* MASN Complaint Against Comcast at ¶ 54; Comcast Answer to
    MASN at 45 (¶ 54); Ortman Decl. at ¶¶ 4, 6.

[^451]: *See* MASN Complaint Against Comcast at ¶ 54.

[^452]: *See* Comcast Answer to MASN at ¶¶ 19-21.

[^453]: *See* MASN Complaint Against Comcast at ¶¶ 32-36.

[^454]: *See* Comcast Answer to MASN at ¶ 34 and n.49. *See* 47 C.F.R. §
    76.1302(f)(1) ("Any complaint filed pursuant to this subsection must
    be filed within one year of the date on which one of the following
    events occurs: (1) The multichannel video programming distributor
    enters into a contract with a video programming distributor that a
    party alleges to violate one or more rules contained in this
    section").

[^455]: *See* Comcast Answer to MASN at ¶¶ 9, 34.

[^456]: *See* *id*.

[^457]: *See* MASN Reply to Comcast at ¶¶ 5, 34.

[^458]: *See* *id*. at ¶¶ 2, 90, 92.

[^459]: *See* Comcat Surreply at 4.

[^460]: *See* TCR Sports Broadcasting Holding, L.L.P., d/b/a
    Mid-Atlantic Sports Network, Opposition to Surreply, File No.
    CSR-8001-P (filed September 22, 2008), at ¶¶ 3, 5 ("MASN Opposition
    to Comcast Surreply"); MASN Complaint Against Comcast at ¶ 84 ("The
    core of this complaint seeks to hold Comcast liable for its conduct
    and its program carriage violations *since* the Term Sheet --
    namely, Comcast's unreasonable and discriminatory refusal to carry
    MASN on those unlaunched systems."). Based on our examination of the
    pleadings, we agree with MASN that its claim regarding post-Term
    Sheet conduct was not raised for the first time in its Reply.

[^461]: *See* MASN Reply to Comcast at ¶ 88.

[^462]: *See id*. at ¶¶ 88-90.

[^463]: *See id*. Comcast argues that the one-year limitations period
    cannot run from the date of filing of MASN's 10-day letter on March
    7, 2008 because, under such an interpretation, a programmer could
    bring a program carriage complaint simply by sending a "trigger
    letter" at any time. *See* Comcast Answer to MASN at n. 51. In
    response, MASN contends that Comcast's position is contradicted by
    the text of the Commission's rules, which provides that a
    programming vendor may bring a complaint for an unreasonable refusal
    to carry within one-year after sending a notice letter. *See* MASN
    Reply to Comcast ¶ 93.

[^464]: *See* Comcat Surreply at 4.

[^465]: *See* MASN Opposition to Comcast Surreply at ¶ 9; MASN Reply to
    Comcast at ¶¶ 33-57; *see also infra* at ¶¶ 112-114.

[^466]: *See* Comcat Surreply at 5.

[^467]: *See* MASN Opposition to Comcast Surreply at ¶ 10; MASN Reply to
    Comcast at ¶ 59.

[^468]: *See* 47 C.F.R. § 76.1302(f).

[^469]: The EchoStar case cited by Comcast is inapposite. Comcat
    Surreply at 6 (citing *EchoStar Communications Corp. v. Speedvision
    Network, L.L.C. and Outdoor Life Network, L.L.C.*, Memorandum
    Opinion & Order, 14 FCC Rcd 9327 (CSB, 1999), *aff'd*, *EchoStar
    Communications Corp. v. Speedvision Network, L.L.C. and Outdoor Life
    Network, L.L.C.*, Memorandum Opinion & Order, 16 FCC Rcd 4949
    (2001)). In that decision, the Commission did not hold that a
    refusal to sell claim is barred when the parties reached a carriage
    agreement over one year earlier.

[^470]: *See* Comcast Answer to MASN at n.19 (citing *Comcast Corp. v.
    IDB Mobile Communications, Inc*., Memorandum Opinion and Order, 15
    FCC Rcd 7906, ¶ 13 (2000)).

[^471]: *See* Comcast Answer to MASN at n.19.

[^472]: *See* Comcast Answer to MASN at n.19.

[^473]: *See* MASN Reply to Comcast at ¶ 52 (citing *Mid-Atlantic
    Network, Inc*., Memorandum Opinion and Order and Notice of Apparent
    Liability for Forfeiture, 23 FCC Rcd 7582, ¶ 8 (Chief, Audio
    Division, Media Bureau, 2008)).

[^474]: *See* MASN Reply to Comcast at ¶ 52.

[^475]: *See* *id*.

[^476]: *See* Restatement (2d) of Judgments, §§ 19, 24, 25; 18 Moore's
    Federal Practice § 131.01 at 131-11, 12 (3d ed. 1997) (collecting
    cases). *Cf. Teleservices Industry Ass'n v. AT&T Corp.*, 15 FCC Rcd
    21454, 21457-58 (Enf. Bur. 2000) (required *res judicata* element of
    a common nucleus of operative facts met where facts surrounding
    instant complaint were same as those in an earlier action).

[^477]: *See* MASN Complaint Against Comcast at ¶¶ 64, 65, 92; Comcast
    Answer to MASN at p. 47 (¶¶ 64-65), p. 48 (¶ 67), p. 50 (¶ 92); MASN
    Reply to Comcast at ¶¶ 14-15; MASN Opposition to Comcast Surreply at
    ¶ 8.

[^478]: *See* MASN Reply to Comcast at ¶ 14.

[^479]: *See* Comcast Answer to MASN at p. 47 (¶ 64), p. 48 (¶ 67), p.
    50 (¶ 92); MASN Reply to Comcast at ¶¶ 14-15.

[^480]: *See* MASN Complaint Against Comcast at ¶¶ 55, 71; MASN Reply to
    Comcast at ¶¶ 2, 6, 13, 16; MASN Opposition to Comcast Surreply at
    ¶¶ 8, 10.

[^481]: MASN claims that, unlike national programming networks, RSNs are
    by definition regional in nature and they must pay substantial
    license fees to get access to valuable sports programming;
    accordingly, they need access to the maximum number of subscribers
    within their geographic footprints in order to compete optimally.
    *See* MASN Reply to Comcast at ¶ 20; **\[REDACTED\]**.

[^482]: MASN explains that the prices it charges for advertising are
    based in part on the number of viewers that will get access to
    MASN's programming and thus to advertising; thus MASN would receive
    increased advertising revenue if Comcast carried MASN on the
    Unlaunched Systems. *See* MASN Reply to Comcast at ¶¶ 23, 29;
    **\[REDACTED\]**. Comcast disagrees, claiming that advertisers who
    buy time on MASN focus on how many households MASN can deliver
    inside the Baltimore and Washington, DC DMAs. *See* Comcast Answer
    to MASN at ¶¶ 13, 54; *id*. at Exhibit I, Declaration of Michael
    Wall, at ¶¶ 6-8 ("Wall Decl.").

[^483]: MASN argues that Comcast's refusal to deliver MASN to
    subscribers of the Unlaunched Systems reduces MASN's revenues and
    its distribution, which in turn decreases MASN's ability to compete
    with Comcast's affiliated RSNs to acquire high-priced sports
    programming. *See* MASN Complaint Against Comcast at ¶ 60;
    **\[REDACTED\]**; MASN Reply to Comcast at ¶¶ 21-22;
    **\[REDACTED\]**. While Comcast notes that its refusal to carry MASN
    in Harrisburg and southwestern Virginia has not diminished MASN's
    ability to obtain rights to numerous college sporting events,
    including Division I football and basketball games and Baltimore
    Ravens pre-season games (Comcast Answer to MASN at ¶¶ 13, 56; Ortman
    Decl. at ¶ 19), MASN explains that it would be better positioned to
    bid for the rights to sports programming if it were carried on the
    Unlaunched Systems. *See* MASN Reply to Comcast at ¶ 28;
    **\[REDACTED\]**.

[^484]: *See* **\[REDACTED\]**; MASN Reply to Comcast at ¶ 20;
    **\[REDACTED\].**

[^485]: *See* MASN Reply to Comcast at ¶ 20; **\[REDACTED\]**.

[^486]: *See* Comcast Answer to MASN at ¶¶ 13, 51.

[^487]: *See id*.

[^488]: *See id*.

[^489]: *See id*.; Bond Decl. at ¶¶ 13, 15; Ortman Decl. at ¶ 14.

[^490]: *See* Comcast Answer to MASN at ¶¶ 13, 42; *id*. at Exhibit H,
    Declaration of Jonathan Orszag and Jay Ezrielev, at ¶ 18 ("Orszag
    Decl.").

[^491]: *See* Comcast Answer to MASN at ¶¶ 4, 17, 18, 28, p. 43 (¶¶ 44,
    45), p. 45-46 (¶ 55), p. 46 (¶ 59); Bond Decl. at ¶ 9; Ortman Decl.
    at ¶¶ 4, 6; Comcast Surreply at 4-5.

[^492]: *See* Comcast Answer to MASN at ¶¶ 4, 17, 18; Bond Decl. at ¶ 4.

[^493]: *See* MASN Reply to Comcast at ¶¶ 5, 34, and p.19 n.60.

[^494]: *See* MASN Complaint Against Comcast at ¶ 83.

[^495]: *See* Comcast Answer to MASN at n. 46; Bond Decl. at ¶ 5;
    Comcast Surreply at 4-5.

[^496]: *See* MASN Complaint Against Comcast at ¶ 43; **\[REDACTED\].**

[^497]: *See* MASN Complaint Against Comcast at ¶¶ 33, 93, 97; MASN
    Reply to Comcast at ¶ 86.

[^498]: *See* MASN Complaint Against Comcast at ¶ 43; **\[REDACTED\].**

[^499]: *See* Comcast Answer to MASN at n. 46; Bond Decl. at ¶ 5.

[^500]: *See* MASN Reply to Comcast at ¶¶ 5, 34, p.19 n.60.

[^501]: *See* MASN Complaint Against Comcast at ¶ 83.

[^502]: *See* Comcast Answer to MASN at ¶¶ 3, 5, 15, 19, 20 and p.49 (¶
    84).

[^503]: *See* MASN Complaint Against Comcast at ¶ 84; MASN Reply to
    Comcast at ¶¶ 48-49.

[^504]: *See* MASN Complaint Against Comcast at ¶ 84; MASN Reply to
    Comcast at ¶¶ 48-49; MASN Opposition to Comcast Surreply ¶ 5.
    Comcast cites two cases to support its claims regarding the Release,
    both of which MASN claims are readily distinguishable. First,
    Comcast argues that in *Nova Cellular West v. AirTouch* *Cellular*,
    17 FCC Rcd 15026 (2002), the Commission concluded that the
    settlement and release covered the new complaint and that Nova
    Cellular had therefore waived its right to assert that AirTouch's
    conduct violated the Act. *See* Comcast Answer to MASN at n.19. MASN
    contends, however, *Nova Cellular* reaffirmed the Commission's
    position that release clauses do not cover post-release conduct, but
    carved out a narrow exception regarding contingent future acts which
    is not relevant here. *See* MASN Reply to Comcast at ¶ 55. Second,
    Comcast cites *Robert L. Kile*, Memorandum Opinion and Order, 5 FCC
    Rcd 513 (1990), for the proposition that the "validity of a
    settlement agreement is . . . a private contractual matter best
    resolved by negotiation of the parties or by the courts." *See*
    Comcast Answer to MASN at 10 n.14 (citing *Kile*, 5 FCC Rcd 513 ¶
    11)). MASN contends that the Commission in *Kile* took precisely the
    opposite course and, in fact, restated its longstanding position
    that "the Commission will not enforce or interpret settlement
    agreements among cellular applicants," particularly where
    enforcement of the settlement agreement might interfere with its
    ability to give full consideration to the public interest." *See*
    MASN Reply to Comcast at ¶ 57.

[^505]: *See* Comcast Answer to MASN at ¶ 43; Bond Decl. at ¶ 17; Ortman
    Decl. at ¶ 7.

[^506]: *See* Comcast Answer to MASN at ¶ 11; Ortman Decl. at ¶ 7.

[^507]: *See* MASN Reply to Comcast at ¶ 64.

[^508]: *See id*.

[^509]: *See id*.

[^510]: *See* MASN Complaint Against Comcast at ¶ 87; **\[REDACTED\]**.

[^511]: *See* MASN Complaint Against Comcast at ¶¶ 15; 87;
    **\[REDACTED\]**; MASN Reply to Comcast at ¶ 66. In response,
    Comcast notes that cable operators aside from Comcast have decided
    not to carry MASN in Harrisburg, including the Blue Ridge systems in
    Duncannon and North Lancaster, the Atlantic Broadband system in
    McClure, and the Nittany Media system in Mifflintown. *See* Comcast
    Answer to MASN at n.83; Ortman Decl. at ¶ 12. Moreover, Comcast
    notes that, with the exception of Cox's carriage of MASN in Roanoke,
    most other cable operators serving southwestern Virginia, such as
    Suddenlink, Jet Broadband, Almega Cable, and Citizens Cablevision,
    have made the same decision as Comcast not to carry MASN. *See*
    Comcast Answer to MASN at n.83; Ortman Decl. at ¶ 12. MASN contends
    that the decisions of a few small cable operators do not cast doubt
    on MASN's value given the evidence of extensive carriage of MASN by
    other MVPDs. *See* MASN Reply to Comcast at 44 n.139;
    **\[REDACTED\]**.

[^512]: *See* MASN Reply to Comcast at ¶ 65.

[^513]: *See* Wyche Decl. at ¶ 36; MASN Reply to Comcast at ¶ 67.

[^514]: *See* Comcast Answer to MASN at ¶ 44.

[^515]: *See* Comcast Answer to MASN at ¶¶ 11, 44; Bond Decl. at ¶ 17;
    Ortman Decl. at ¶ 7.

[^516]: *See* MASN Reply to Comcast at ¶ 69.

[^517]: *See id*.

[^518]: *See* Comcast Answer to MASN at ¶ 43; Bond Decl. at ¶ 17; Ortman
    Decl. at ¶ 7.

[^519]: *See* Comcast Answer to MASN at ¶¶ 11, 48.

[^520]: *See* MASN Reply to Comcast at ¶ 73.

[^521]: *See id*.

[^522]: *See id*. at ¶ 74.

[^523]: *See id*. at ¶ 82.

[^524]: *See id*. at ¶ 68.

[^525]: *See* MASN Complaint Against Comcast at ¶¶ 13, 78, 87;
    **\[REDACTED\]**; MASN Reply to Comcast at ¶ 81; **\[REDACTED\]**.
    Comcast notes that it carried the RSN on a sports tier and that it
    dropped it prior to the launch of MASN. *See* Comcast Answer to MASN
    at ¶¶ 11, 45, p.36-37 (¶ 13), p. 49 (¶ 78); Bond Decl. at ¶ 18;
    Ortman Decl. at ¶ 9.

[^526]: *See* MASN Complaint Against Comcast at ¶ 15; **\[REDACTED\]**;
    MASN Reply to Comcast at ¶ 82. Comcast notes some small cable
    operators in Harrisburg that do not carry MASN. *See* Comcast Answer
    to MASN at n.83; Ortman Decl. at ¶ 12. We do not believe that the
    decisions of few small cable operators cast doubt on MASN's value
    given the evidence of extensive carriage of MASN by other MVPDs in
    Harrisburg. *See* MASN Reply to Comcast at 44 n.139;
    **\[REDACTED\]**.

[^527]: *See* MASN Complaint Against Comcast at ¶¶ 13, 87;
    **\[REDACTED\]**; MASN Reply to Comcast at ¶ 81; **\[REDACTED\]**.

[^528]: *See* MASN Complaint Against Comcast at ¶ 15; **\[REDACTED\]**;
    MASN Reply to Comcast at ¶ 82; **\[REDACTED\].** Comcast argues
    that, with the exception of Cox's carriage of MASN in Roanoke, most
    other cable operators serving southwestern Virginia, such as
    Suddenlink, Jet Broadband, Almega Cable, and Citizens Cablevision,
    have made the same decision as Comcast not to carry MASN. *See*
    Comcast Answer to MASN at n.83; Ortman Decl. at ¶ 12. We do not
    believe that the decisions of certain cable operators cast doubt on
    MASN's value given the evidence of extensive carriage of MASN by
    other MVPDs in southwestern Virginia, such as DIRECTV and DISH.
    *See* MASN Reply to Comcast at 44 n.139; **\[REDACTED\]**.

[^529]: *See* MASN Reply to Comcast at ¶ 75; **\[REDACTED\]**.

[^530]: *See* MASN Complaint Against Comcast at ¶ 18.

[^531]: *See id*. at ¶ 19; **\[REDACTED\];** MASN Reply to Comcast at ¶
    83; **\[REDACTED\]**.

[^532]: *See* MASN Reply to Comcast at ¶¶ 55, 80; **\[REDACTED\]**.

[^533]: *See* MASN Reply to Comcast at ¶¶ 16, 73.

[^534]: *Second Report and Order*, 9 FCC Rcd at 2648.

[^535]: *Id.*; 47 C.F.R. § 76.1302(c)(3).

[^536]: 47 C.F.R. § 76.7(g)(2).

[^537]: *Id.*

[^538]: In light of the deadline for a Recommended Decision contained in
    this Order, the deadline for written appearances set forth in 47
    C.F.R. § 1.221 is waived and replaced with the deadline set forth
    above.