IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

STANFORD GLABERSON, et al., 

Plaintiffs, 

v. 

COMCAST CORPORATION, et al., 

Defendants. 

Case No. 03-cv-06604 (JP) 

Expert Report of 

Stanley M. Besen, Ph.D. 

January 15, 2014 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 1 of 61
 1 

I. INTRODUCTION 

1) My name is Stanley M. Besen and I am currently a Senior Consultant to Charles River 

Associates (“CRA”) where I previously served as a Vice President. I have published 

widely on telecommunications economics and policy, intellectual property, and the 

economics of standards, and have consulted to many companies in the telecommunications 

and information industries. I have served as a Brookings Economic Policy Fellow, Office 

of Telecommunications Policy, Executive Office of the President (1971-1972); CoDirector, Network Inquiry Special Staff, Federal Communications Commission (1978-

1980); Coeditor, RAND Journal of Economics (1985-1988); Senior Economist, RAND 

Corporation (1980-1992); a member of the Editorial Board of Information Economics and 

Policy (1992-2004); and Vice President, Charles River Associates (1992-2008). I am 

currently a member of the Editorial Board of Economics of Innovation and New 

Technology. 

2) I have an extensive academic background. I have taught at Rice University (1965-1980), 

where I was the Allyn R. and Gladys M. Cline Professor of Economics and Finance (1979-

1980); Columbia University (1988-1989), where I was the Visiting Henley Professor of 

Law and Business; and the Georgetown University Law Center (1990-1991), where I was 

Visiting Professor of Law and Economics. I hold a Ph.D. in Economics from Yale 

University. 

3) I have analyzed the telecommunications industry, including the cable television industry, 

for more than 40 years. My published articles on the cable television industry include 

analyses of Federal Communications Commission (“FCC”) policies that restricted entry, 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 2 of 61
 2 

regulated rates, and limited vertical integration. I have also testified as a witness before 

committees of the U.S. Congress on cable television matters including, among others, entry 

policy, the effects of vertical integration, and leased access. In addition, I have consulted to 

both cable operators and cable programmers on, among others, issues of rate regulation, 

national ownership caps, and vertical integration, and have provided expert testimony and 

filed reports to the FCC and other government agencies on behalf of these clients. My 

curriculum vitae is attached as Appendix A to this report. CRA receives a standard hourly 

rate of $950 for my services in this matter. 

4) I have been asked by attorneys for Comcast to review the analysis in Second Supplemental 

Expert Report of Michael A. Williams, Ph.D., dated August 19, 2013 (the “Williams 

Report”), submitted in support of plaintiffs’ motion to certify a revised class in Stanford 

Glaberson, et al., v. Comcast Corporation, et al., No. 03-6604, in the United States District 

Court for the Eastern District of Pennsylvania. A list of the materials I relied on in forming 

my opinions is attached as Appendix B to this report. My research in this matter is ongoing 

and I reserve the right to modify or supplement my opinions as additional information 

becomes available. 

II. SUMMARY OF OPINIONS 

5) The Williams Report contains two primary conclusions. First, Dr. Williams concludes that, 

but for Comcast’s allegedly anticompetitive conduct, RCN would have overbuilt1

 the areas 

 

1

 As explained by the FCC: “The term ‘overbuild’ describes the situation in which a second cable 

operator enters a local market in direct competition with an incumbent cable operator. In these 

markets, the second operator, or ‘overbuilder,’ lays wires in the same area as the incumbent, 

‘overbuilding’ the incumbent’s plant, thereby giving consumers a choice between cable service 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 3 of 61
 3 

of Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in Pennsylvania for 

which it had received an Open Video System (“OVS”) authorization from the FCC and 

would have offered programming comparable to that of Comcast in those areas. More 

specifically, Dr. Williams concludes that, by January 1, 2003, RCN would have offered this 

programming to at least 50 percent of the households (the “homes passed standard”) and 

would have provided service to at least 15 percent of the households in those areas, (the 

“subscribership standard”), thereby satisfying the FCC’s “50/15 Standard” for effective 

competition.2,3 Second, Dr. Williams concludes that Comcast’s market power in Bucks, 

Chester, Delaware, Montgomery, and Philadelphia Counties allowed it to charge 

supracompetitive prices to all members of the putative class in those five counties, 

including Comcast subscribers located in areas in which RCN had not received an OVS 

authorization from the FCC. 

6) To support his first conclusion, Dr. Williams describes a sequence of steps by which, he 

claims, RCN would have overbuilt portions of Bucks, Chester, Delaware, Montgomery, 

and Philadelphia Counties but for Comcast’s allegedly anticompetitive conduct: (1) RCN 

 

providers.” (Federal Communications Commission. (Adopted: 2006, December 20, Released: 

2007, March 5). “Report and Order and Further Notice of Proposed Rulemaking, In the Matter 

of Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as 

amended by the Cable Television Consumer Protection and Competition Act of 1992” (MB 

Docket No. 05-311), p. 15, footnote 97. Available at www.mhcrc.org/docs/ops_FCCCFAR.pdf, 

viewed on January 10, 2014.) 

2

 Dr. Williams writes: “But for Comcast’s anticompetitive conduct, RCN would have offered 

video services comparable to those offered by Comcast to at least 50 percent of the households in 

the area in the five counties in which it was authorized to serve and would have served at least 15 

percent of the households in that area that subscribe to multichannel video programming 

distributor (‘MVPD’) services by January 1, 2003.” (Williams Report, ¶ 9.) 

3

 The “50/15” criteria are among the criteria used by the FCC to identify whether an incumbent 

cable operator is subject to “effective competition.” (47 C.F.R. § 76.905.) 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 4 of 61
 4 

obtained an OVS authorization from the FCC in June 1998 for parts of the five counties; 

(2) RCN would have reached agreements with the local franchising authorities (“LFAs”) in 

all areas for which it had obtained OVS authorization within one year after it had obtained 

that authorization (i.e., by July 1999); and (3) RCN would have built out these franchises to 

the FCC’s 50/15 Standard within three and one half years after reaching those local 

franchise agreements.4 In sum, Dr. Williams describes a sequence of steps whereby he 

concludes that RCN would have built out franchises in parts of the five counties to the 

FCC’s 50/15 Standard by January 2003. 

7) For the reasons summarized here, it is my opinion that Dr. Williams’ characterization of 

RCN’s build out in the five counties in the absence of Comcast’s allegedly anticompetitive 

conduct is not supported by (and in many cases is contradicted by) the examples on which 

he relies and by the historical performance of RCN and other overbuilders. Among other 

flaws, Dr. Williams relies on an extremely small sample from the available wireline 

overbuilder data, uses information on projected rather than actual construction times, and 

conflates the experience of new entrant overbuilders with that of incumbent telephone 

operators. Furthermore, Dr. Williams provides no evidence that any of the communities 

that he refers to in his report have ever received an effectively competitive designation 

because a wireline overbuilder other than a local telephone company had met the FCC’s 

50/15 Standard in the community. I briefly summarize my opinions regarding each of Dr. 

Williams’s posited steps below. 

 

4

 The sequence that Dr. Williams describes includes a fourth step, which corresponds to the point 

at which RCN would have overbuilt in their entirety the areas in which it had obtained OVS 

authorization, a step that Dr. Williams opines would have occurred within seven years after RCN 

reached local franchise agreements. (Williams Report, ¶ 14.) 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 5 of 61
 5 

8) I note at the outset that the overbuilding sequence that Dr. Williams describes—and the 

conclusions that he draws from it—applies at most to the 106 communities in the five 

counties for which RCN received an OVS authorization. It does not apply to the other 110 

communities in the five counties in which Comcast provides television service. Because 

RCN neither sought nor obtained an OVS authorization for these 110 communities—step 

(1) of Dr. Williams’s overbuilding sequence—the conclusion from Dr. Williams’s analysis 

must be that they would not have been overbuilt by RCN. 

9) Regarding Dr. Williams’ step (2), his conclusion that RCN would have reached agreements 

with the LFAs within one year after it obtained an OVS authorization in the 106 

communities covered by that authorization, ignores the fact that, by July 15, 1999, more 

than a year after receiving the OVS authorization, RCN had actually only signed nine such 

agreements. Significantly, this date was before Comcast had acquired or swapped any 

cable franchise in the five counties or had commenced the targeted discounts of the 

Comcast Advantage Plan. 

10) Moreover, Dr. Williams’ conclusion in this regard is based on a review of only nine 

franchise agreements signed by overbuilders, including RCN, that had received OVS 

authorizations. Of these nine agreements, five are for franchises that never became 

operational, so they cannot be viewed as examples of successful build outs; two are for 

OVS franchises with no build-out requirements; and one is for a franchise where the 

overbuilder, RCN, initially failed to meet its build-out requirement. 

11) Dr. Williams’s assertion that the OVS authorization obtained by RCN for communities in 

the five counties would have resulted in operational franchises but for Comcast’s alleged 

anticompetitive conduct is also belied by the experience of RCN in other areas of the 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 6 of 61
 6 

United States and by the experiences of other overbuilders. In fact, of all the communities 

outside of Philadelphia, Boston, and Chicago in which RCN has obtained OVS approval, 

fewer than three percent currently have an operational RCN system. Moreover, this is 

consistent with the failure of other overbuilders to develop operational systems in the areas 

in which they had obtained OVS authorizations or even to develop operational systems in 

areas in which they had signed franchise agreements. 

12) Regarding Dr. Williams’ step (3), his analyses support neither the subscribership nor 

homes passed standard of the 50/15 Standard. With respect to the subscribership standard, 

Dr. Williams cites absolutely no evidence on the fraction of households that would have 

subscribed to RCN’s service but for Comcast’s allegedly anticompetitive conduct. As a 

result of this omission alone, Dr. Williams has provided no basis upon which to conclude 

that RCN would have ever satisfied the 50/15 Standard in any community in the five 

counties, let alone satisfied the 50/15 Standard by January 1, 2003. 

13) As to the homes passed standard, Dr. Williams’s first category of “evidence” that RCN 

would have met this standard in the communities for which it had received an OVS 

authorization by January 2003 is various overbuilders’ projected or anticipated time to 

complete construction rather than on the actual time it took those overbuilders to complete 

construction. Dr. Williams takes no account of the fact that several of the overbuilders on 

whose behavior his conclusion is based were not successful in meeting the build-out 

requirements in their franchise agreements years after their projected completion dates. 

14) The second category of evidence offered by Dr. Williams regarding the amount of time that 

RCN would have taken to meet the homes passed standard comprises eight examples of the 

actual time taken by overbuilders to build out portions of their systems. However, all but 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 7 of 61
 7 

one of these examples involve Incumbent Local Exchange Carriers (“ILECs”)—local 

telephone companies—which Dr. Williams has previously acknowledged are inappropriate 

“comparables” for overbuilders like RCN because ILECs, unlike RCN, have existing 

infrastructure that can be upgraded to offer television service. 

15) The remaining example referenced by Dr. Williams is RCN’s build out of its system in 

Boston, but this example also offers no support for Dr. Williams’s opinion that RCN would 

have met the homes passed standard anywhere in the five counties. Indeed, in 2012, more 

than twelve years after receiving its franchise, the FCC found that RCN had passed less 

than one third of all Boston households, well short of the 50 percent homes passed standard 

of the FCC’s 50/15 Standard. 

16) The final piece of evidence offered by Dr. Williams regarding the homes passed standard is 

based on a misreading of a single Comcast document, which Dr. Williams states reflects 

“Comcast’s assessment of when nine franchises in Delaware County were overbuilt by 

RCN.”5

 The document, which refers to a very small number of franchises in a single 

county, says nothing about RCN reaching the 50/15 Standard (or any other overbuilding 

milestone) in any franchise area. Moreover, another Comcast document (to which Dr. 

Williams does not refer) demonstrates that the document cited by Dr. Williams refers to the 

dates at which RCN first started to serve customers in each franchise area. As a result, the 

document cited by Dr. Williams provides no information about the amount of time it would 

take RCN to meet the homes passed standard or the subscribership standard in any 

franchise area.

 

5

 Williams Report, ¶ 21. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 8 of 61
 8 

17) Dr. Williams attempts to bolster his opinion that RCN could have completed step (3) of his 

framework by arguing that “RCN had substantial funds available to invest in its network 

development plan, a plan that likely would have succeeded within the time periods I have 

estimated but for Comcast’s conduct complained of in this case.”6 However, the 

experience of overbuilders—by no means limited to RCN—during the period that he 

analyzes shows that the industry faced serious financial difficulties as it became apparent 

that the economics of overbuilding were not favorable. These industry-wide financial 

difficulties substantially decrease the likelihood that RCN would have met the homes 

passed standard in the communities for which it had received an OVS authorization by 

January 1, 2003, which is consistent with RCN’s own contemporaneous statements. 

18) Dr. Williams’s second primary conclusion is that Comcast’s behavior allowed it to charge 

supracompetitive prices to all members of the putative class in the five counties, including 

Comcast subscribers not located in areas for which RCN had received an OVS 

authorization from the FCC. However, RCN specifically noted in filings with the FCC that 

the effect of its entry on the prices charged by cable operators was limited to the areas in 

which it had actually entered, which is also consistent with plaintiffs’ contention in this 

litigation that Comcast “targeted” its discounts to the areas in Delaware County in which 

RCN had actually entered. 

19) I discuss each of these opinions in greater detail in the remainder of this report. 

 

 

6

 Williams Report, ¶ 17. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 9 of 61
 9 

III. DR. WILLIAMS PRESENTS NO EVIDENCE THAT RCN WOULD HAVE 

OVERBUILT MANY OF THE COMMUNITIES IN THE FIVE COUNTIES 

20) In his Report, Dr. Williams describes a sequence of steps by which, he claims, RCN would 

have overbuilt parts of Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties 

but for Comcast’s allegedly anticompetitive conduct. The first step in Dr. Williams’ 

posited sequence is that RCN obtained an OVS authorization from the FCC in June 1998 

for parts of the five counties. 

21) However, it is important to observe at the outset that RCN had obtained an OVS 

authorization by June 1998, Dr. Williams’s chronological starting point, for only 1067 of 

the 216 communities in which Comcast has active cable franchises in the five counties.8,9 

(There are a total of 246 communities in the five counties with active cable franchises, but 

Comcast is not the incumbent cable operator in all of them.) For the remaining 110 

communities in the five counties in which Comcast provides cable television service, RCN 

never even reached that “starting point” of the sequence of events that Dr. Williams posits. 

 

7

 Federal Communications Commission. “Archived Filings for Certification of Open Video 

Systems.” Available at www.fcc.gov/encyclopedia/archived-filings-certification-open-videosystems, viewed on November 26, 2013. 

8

 Federal Communications Commission. “FCC Cable Communities Registered.” Available at

www.fcc.gov/encyclopedia/cable-communities-registered-fcc, viewed on November 26, 2013. 

9

 I understand that these 216 communities correspond to 235 Comcast billing areas, and that 

plaintiffs’ expert Dr. James T. McClave assumes that 117 of these Comcast billing areas, 

corresponding to the 106 communities for which RCN had received an OVS authorization, 

would have been overbuilt by RCN but for Comcast’s allegedly anticompetitive conduct. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 10 of 61
 10 

Indeed, Dr. McClave expressly assumes that those communities would not have been 

overbuilt absent Comcast’s allegedly anticompetitive conduct.10 

IV. DR. WILLIAMS’S EVIDENCE REGARDING THE TIMING AND LIKELIHOOD 

OF RCN OBTAING FRANCHISE AGREEMENTS IS FLAWED 

22) The second step in Dr. Williams’s posited sequence is that RCN would have reached 

agreements with the LFAs in all of the 106 communities in the five counties for which it 

had received an OVS authorization. To support his conclusion that RCN would have 

reached agreements with the LFAs in all of these communities within twelve months of 

receiving the OVS authorization from the FCC, Table 1 of the Williams Report, Time 

Elapsed Between FCC Approval Dates and Franchise Agreement Dates by Cable 

Overbuilders, presents nine examples of the number of months between (i) the date on 

which an overbuilder received an OVS authorization from the FCC and (ii) the date on 

which the overbuilder signed a franchise agreement. Based on these nine examples, Dr. 

Williams concludes that RCN would have negotiated franchise agreements in all 106 

communities for which it had received an OVS authorization within twelve months of 

receiving that authorization (i.e., no later than July 1999).11 

23) In reaching this conclusion, however, Dr. Williams ignores the fact that by July 15, 1999, 

slightly more than twelve months after receiving the OVS authorization for the 106 

communities, RCN had signed franchise agreements with only nine communities in the 

 

10 McClave, James T. (2013, August 19). “Class Re-Certification Report of Dr. James T. 

McClave, in Caroline Behrend et al., v. Comcast Corporation, et al., In the United States District 

Court for the Eastern District of Pennsylvania,” p. 8. 

11 Williams Report, ¶ 12. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 11 of 61
 11 

Philadelphia area.12 Indeed, RCN itself explained in a letter to Comcast that “[i]t is likely 

we will not ultimately serve each of the communities [in the Philadelphia area within 

RCN’s OVS certification] but no final decisions have been taken in that respect.”13 In this 

regard, it is important to observe that Comcast had yet to acquire or swap any cable 

franchises in the five counties14 or to commence the targeted discounts of the Comcast 

Advantage Plan by this time.15 Thus, any failure by RCN to reach agreements with local 

franchising authorities at that time cannot be ascribed to Comcast’s allegedly 

anticompetitive conduct. 

24) As I explain in more detail below, even the nine examples selected by Dr. Williams do not 

support his conclusions. Five of the franchise agreements cited by Dr. Williams in his 

Table 1 are for systems that were never operational, two are RCN OVS franchise 

agreements that did not have build-out requirements, and one is for a franchise where the 

overbuilder, RCN, initially failed to meet its build-out requirements. 

25) The experience of RCN in other parts of the country also does not support Dr. Williams’ 

conclusion. Indeed, of all the communities outside of Philadelphia, Boston, and Chicago in 

 

12 Letter from John J. Gdovin to Geoffrey Sellers. (1999, July 15). (RCN0001007.) 

13 Ibid., emphasis added. 

14 Comcast’s acquisition of Marcus Cable closed in April 1998 but these franchises were located 

in Kent County, Delaware, not in the five counties at issue. Comcast’s acquisition of Greater 

Media closed in June 1999, which is at the end of Dr. Williams’s posited 12-month period. 

(Third Amended Class Action Complaint for Violations of the Sherman Antitrust Act, Caroline 

Behrend et al., v. Comcast Corporation, et al., In the United States District Court for the Eastern 

District of Pennsylvania, ¶ 52.) 

15 Comcast used seven versions of the Comcast Advantage Plan in Delaware County, the first of 

which began in March 2000. (“Competitive Overview – Delaware County.” (COMPA0982329-37.)) 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 12 of 61
 12 

which RCN obtained an OVS authorization (covering territories not served by Comcast as 

well as those served by Comcast), fewer than three percent currently contain an operational 

RCN system, either OVS or cable. Nonetheless, Dr. Williams concludes that, but for 

Comcast’s conduct, all of RCN’s OVS applications in the five counties would have 

resulted in operational RCN systems. I discuss these flaws in Dr. Williams’ analysis in 

more detail below. 

A. Dr. Williams’s Nine Examples of Franchise Agreement Dates Do Not Support His 

Ultimate Conclusion that RCN Would Have Satisfied the FCC’s 50/15 Standard in All 

Communities, Much Less Within the Time Period that He Asserts 

26) Although the information presented in Table 1 of the Williams Report pertains to 

communities that reached the “starting point” of the sequence of steps posited by Dr. 

Williams, an OVS authorization, that information does not support his conclusion that 

RCN would have satisfied the FCC’s 50/15 Standard in the 106 communities in Bucks, 

Chester, Delaware, Montgomery, and Philadelphia Counties that were covered by that 

authorization. 

27) The table below provides more information about the nine franchise agreements cited in 

Table 1 of the Williams Report. Digital Access, which accounts for four of the nine 

entries, went out of business shortly after signing the franchise agreements cited by Dr. 

Williams and thus never completed their respective build outs.16 Similarly, although 

Knology obtained a cable franchise in Louisville, Kentucky in 2000, that franchise never 

 

16 Estrella, J. (2001, March 4). “Digital Access Pulls the Plug.” Multichannel News. Available 

at www.multichannel.com/news-article/digital-access-pulls-plug/98802, viewed on November 

19, 2013. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 13 of 61
 13 

became operational.17 Thus, five of the nine entries in Table 1 of the Williams Report 

pertain to franchises that never became operational. 

Table 1: Franchise Agreements Cited in Table 1 of the Williams Report

Overbuilder Location 

Date of OVS 

Approval18

Ever 

Operational?19

Current 

Franchise 

Type 

Digital Access Indianapolis, IN December 1999 No N/A 

Digital Access Lenexa, KS December 1999 No N/A 

Digital Access Milwaukee, WI December 1999 No N/A 

Digital Access Nashville, TN December 1999 No N/A 

Knology Louisville, KY June 2000 No N/A 

RCN Boston, MA February 1997 Yes OVS 

RCN New York City, NY February 1997 Yes OVS 

RCN Redwood City, CA June 1998 Yes Cable 

RCN/Starpower Washington D.C. January 1998 Yes OVS 

28) Three of the examples in Dr. Williams’s Table 1 concern franchise agreements signed by 

RCN in Boston, New York City, and Redwood City, California. RCN initially obtained an 

OVS franchise in Boston in 1997, then converted it to a cable franchise in 1999, and, after 

failing to meet the build-out requirement in the cable franchise agreement, reverted to an 

 

17 Knology’s Form 10-K Filing for 2004 indicates that: “In connection with the restructuring of 

capitalization pursuant to the prepackaged plan of reorganization, the Company issued new 12% 

senior notes due 2009, which include covenants limiting the ability to fund expansion into new 

markets, including Nashville and Louisville.” (Knology, Inc., Form 10-K Filing for the fiscal 

year ended December 31, 2004, p. F-10.) A map on WOW’s current website does not indicate 

that it serves Louisville. (“WOW! Locations.” Available at www.wowway.com/home-map, 

viewed on January 10, 2014.) Thus, it appears that neither Knology nor its successor, WOW, 

ever provided service in Louisville. 

18 Williams Report, Table 1. 

19 A location is conservatively considered “ever operational” if the provider or its acquirer ever 

offered service there, regardless of whether the provider achieved the franchise build-out 

requirements or even satisfied the 50/15 Standard. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 14 of 61
 14 

OVS franchise without a build-out requirement in 2002.20,21 Similarly, RCN currently 

operates with an OVS franchise in New York City22 that does not contain a built-out 

requirement.23 Although the initial franchise agreement for RCN’s operation in Redwood 

City, California, did contain a build-out requirement,24 RCN later received an extension of 

its build-out deadline.25 The lack of build-out requirements in these franchise agreements 

or the franchisee’s failure to meet these requirements is important because Dr. Williams 

later relies on build-out requirements in franchise agreements to support his conclusion that 

 

20 City of Boston Department of Innovation & Technology. (2010, July 15). “Report on the 

Renewal and Transfer of the RCN-BecoCom Inc. Open Video System (OVS) Operating 

Agreement Between the City of Boston and ABRY Partners VI, L.P., Yankee Cable Acquisition, 

LLC,” p. 3. Available at

www.cityofboston.gov/Images_Documents/Boston%20Report%20on%20RCN%20OVS%20Re

newal%20and%20Transfer%20to%20Yankee%20Cable%20ABRY%20Partners%20July%2020

10_tcm3-18924.pdf, viewed on January 10, 2014. 

21 The FCC reports that some overbuilders “have converted cable franchises into OVS 

franchises, which has enabled some [Broadband Service Providers or ‘BSPs’] to eliminate 

buildout requirements.” (Federal Communications Commission. (Adopted: 2007, November 

27, Released: 2009, January 16). “Thirteenth Annual Report In the Matter of Annual 

Assessment of the Status of Competition in the Market for the Delivery of Video Programming” 

(MB-Docket No. 06-189), ¶ 135, emphasis added. Available at

hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-206A1.pdf, viewed on January 10, 2014.) 

BSPs are firms that provide video, voice, and data services over a single network; RCN is a BSP.

22 “Open Video System Agreement between The City of New York and RCN Telecom Services 

of New York, Inc.” (1997, December 23). Available at: 

www.nyc.gov/html/doitt/downloads/pdf/rcn_franchise_agreement.pdf, viewed on January 10, 

2014. 

23 New York City Information Technology & Telecommunications. “Frequently Asked 

Questions: Open Video System.” Available at www.nyc.gov/html/doitt/html/faq/video.shtml, 

viewed on January 8, 2014. 

24 “Report To the Honorable Mayor and City Council From the City Manager of the City of 

Redwood City, Amend RCN Franchise Agreement.” (2004, September 13), p. 1. Available at 

rwcteens.org/government/council/packets/2004/0913/Reg_040913-6-4C.pdf, viewed on January 

10, 2014. 

25 “Amendment No. 1 to Cable System Franchise Agreement between the City of Redwood City 

and RCN Telecom Services, Inc.” (2004, September 21), pp. 3-4. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 15 of 61
 15 

RCN would have met the homes passed standard of the 50/15 Standard by January 2003 in 

the 106 communities in the five counties for which it had received an OVS authorization. 

29) Despite these facts, Dr. Williams uses the average time between the FCC OVS approval 

dates and the franchise agreement dates for these nine OVS observations to support his 

conclusion that all 106 communities in the five counties for which RCN had received an 

OVS authorization would have been substantially built out by RCN only a few years after 

the date of the authorization. 

B. The Vast Majority of RCN’s OVS Applications Never Resulted in Operational 

Systems 

30) Whereas the Williams Report presents data for only nine OVS applications, a systematic 

analysis of RCN’s OVS applications nationwide demonstrates that almost none of the OVS 

authorizations that were received by RCN have resulted in systems that are currently 

operational.26

31) When I exclude communities in Philadelphia, Boston, and Chicago (that is, the 

communities in which I understand counsel for plaintiffs allege consumers were harmed by 

Comcast’s so-called clustering of cable franchises), I find that RCN obtained OVS 

authorizations from the FCC for 375 communities.27 Of these, only eleven currently 

 

26 One observer has attributed the lack of success of OVS systems to: (1) the availability of direct 

broadcast satellite service in much of the United, which made OVS a “second entrant” and the 

(2) the requirement that OVS operators lease a very large proportion of their channel capacity to 

programmers at “just and reasonable rates,” which severely limited the profitability of OVS 

providers. (Botein, M. (2006). “Open Video Systems: Too Much Regulation Too Late?” 

Federal Communications Law Journal, Vol.58, pp. 442-443.) 

27 Supra footnote 7. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 16 of 61
 16 

contain an operational RCN system.28,29 That is, of all the communities outside of 

Philadelphia, Boston, and Chicago in which RCN obtained OVS authorizations from the 

FCC, there are operational RCN systems in fewer than three percent.30,31

 

28 I consider a community in which RCN received an OVS authorization to have an operational 

OVS system or cable franchise if either (i) the Warren Communications TV Factbook lists an 

operating RCN (or, in California, Astound Broadband) system that includes the community, or 

(ii) the FCC lists RCN (or, in California, Astound Broadband) as having an active OVS system 

or cable franchise in the community. 

29 Because of the difficulty in matching community names in the FCC OVS authorizations with 

the list of currently active cable franchises and OVS systems, I also performed this analysis at 

the county level. Excluding counties in Philadelphia, Boston, and Chicago, RCN received OVS 

authorizations from the FCC in 25 counties. In only six (24 percent) of these counties is there 

currently an active RCN OVS system or cable franchise. Although this calculation is extremely 

conservative because it counts an RCN OVS authorization as successful if RCN has an active 

system anywhere in the same county, it still demonstrates that the vast majority of RCN OVS 

authorizations did not lead to operational systems. 

30 I note that, although counsel for plaintiffs alleges that Comcast’s clustering in Philadelphia, 

Boston, and Chicago harmed consumers in those areas, RCN was actually more successful in 

developing operational OVS systems or cable franchises than it was elsewhere in the country. In 

Philadelphia, of the 106 OVS authorizations received by RCN, 23 (22 percent) are currently 

operational. In Boston, of the 49 OVS authorizations received by RCN, 19 (39 percent) are 

currently operational. In Chicago, of the 21 authorizations received by RCN, two (ten percent) 

are currently operational. 

31 RCN’s failure to develop operational systems in many communities is well documented. For 

example, RCN obtained OVS authorizations in the Portland, OR and Seattle, WA areas, and in 

parts of New Jersey but never offered service in those areas. (Federal Communications 

Commission. (Adopted: 1998, July 31, Released: 1998, July 31). “Memorandum Opinion and 

Order In the Matter of RCN Telecom Services of New Jersey, Inc., Certification to Operate an 

Open Video System.” Available at transition.fcc.gov/Bureaus/Cable/Orders/1998/da981530.txt, 

viewed on January 10, 2014; Federal Communications Commission. (Adopted: 1999, 

September 1, Released: 1999, September 1). “Memorandum Opinion and Order In the Matter of 

RCN Telecom Services of Washington, Inc., Certification to Operate an Open Video System.” 

Available at transition.fcc.gov/Bureaus/Cable/Orders/1999/da991772.txt, viewed on January 10, 

2014; and Federal Communications Commission. (Adopted: 2000, February 4, Released: 2000, 

February 7). “Memorandum Opinion and Order In the Matter of RCN Telecom Services of 

Oregon, Inc., Certification to Operate an Open Video System.”) Moreover, in its Form 10-K 

Filing for the fiscal year ended December 31, 2001, RCN noted that it had written off the value 

of property and equipment “located in abandoned markets primarily located in Portland, Seattle 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 17 of 61
 17 

32) RCN’s experience is consistent with that of other overbuilders. Knology, one of the more 

successful overbuilders, obtained OVS authorizations from the FCC in 2000 for both 

Lexington and Louisville, Kentucky,32 but WideOpenWest (“WOW”), which acquired 

Knology in 2012, does not report currently providing service in either of these areas.33 

Moreover, Knology reported in 2002 that it had a franchise in Nashville, Tennessee,34 but 

WOW does not currently provide service in that area.35 Similarly, WOW obtained 

franchises in Tucson, Arizona;36 Colorado Springs,37 Denver, and Boulder, Colorado;38 and 

Irving, Texas,39 but does not currently provide service in any of those areas.40 Another 

 

and Northern New Jersey.” (RCN Corp., Form 10-K Filing for the fiscal year ended December 

31, 2001, p. 79, emphasis added.) 

32 Supra footnote 7. 

33 A map on WOW’s current website does not indicate that it serves these locations. (“WOW! 

Locations.” Available at www.wowway.com/home-map, viewed on November 24, 2013.) 

Furthermore, the Warren Communications TV Factbook does not list an operating WOW system 

in these locations. (Advanced TV Factbook. Warren Communications News. Available at

www.advancedtvfactbook.com, viewed on December 11, 2013.) 

34 Knology, Inc., Form 10-K Filing for the fiscal year ended December 31, 2002, p. 2. 

35 Supra footnote 33. 

36 “WideOpenWest to Provide Tucson Service.” (2000, August 8). Denver Business Journal. 

Available at www.bizjournals.com/denver/stories/2000/08/07/daily11.html, viewed on January 

9, 2014. 

37 “Cable Television Franchise Agreement Between The City of Colorado Springs and 

WideOpenWest Colorado, LLC.” (2001, June 22). Available at

www.springsgov.com/doccenter/internalservices/wideopenwestcablefranchiseagreement.pdf, 

viewed on January 9, 2014. 

38 “Voters Approve WideOpenWest Franchises in Denver and Boulder.” (2000, August 9). 

PRNewswire. Available at

www.thefreelibrary.com/Voters+Approve+WideOpenWest+Franchises+in+Denver+and+Boulde

r.-a063969639, viewed on January 9, 2014. 

39 “WOW Gets 2nd Texas Franchise.” (2000, May 28). Multichannel News. Available at

www.multichannel.com/news-article/wow-gets-2nd-texas-franchise/69229, viewed on January 9, 

2014. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 18 of 61
 18 

overbuilder, WINfirst, signed franchise agreements in Austin, Dallas, Houston, and San 

Antonio, Texas; Los Angeles, Sacramento, and San Diego, California; and Seattle, 

Washington.41 However, WINfirst suspended its sole build out (in Sacramento) and later 

declared bankruptcy.42 Thus, not only is an OVS authorization from the FCC not a 

guarantee that construction will occur and a system will become operational, evidence from 

a wider sample of communities nationwide demonstrates that overbuilding is highly 

unlikely even where an overbuilder has obtained a franchise. 

33) In summary, RCN’s experience outside of Philadelphia (and Boston and Chicago) belies 

Dr. Williams’s assertion that RCN would have overbuilt all 106 Comcast communities in 

 40 Supra footnote 33. WOW’s Colorado assets were sold in 2003 to Champion Broadband. 

(City and County of Denver, Office of the Auditor. (2006, January). “Champion Broadband, 

LLC Cable Franchise Agreement Compliance Audit.” Available at

www.denvergov.org/Portals/741/documents/Audits2006/Champion%20Broadband,%20LLC.pdf

, viewed on January 13, 2014.) However, Champion Broadband is not listed as currently 

providing service in Colorado Springs, Denver, or Boulder, Colorado in the Advanced TV 

Factbook. 

41 Haugsted, L. (2002, March 10). “Capital Constraints Cripple WINfirst, Too.” Multichannel 

News. Available at www.multichannel.com/news-article/capital-constraints-cripple-winfirsttoo/93393, viewed on January 10, 2014. 

42 Hofmeister, S. (2002, March 14). “Council’s Plan for Cable Competition Goes Bust.” Los 

Angeles Times. Available at articles.latimes.com/2002/mar/14/local/me-cable14, viewed on 

January 10, 2014. The assets of WINfirst were later purchased by SureWest (“SureWest 

acquires Winfirst assets.” (2002, July 15). Sacramento Business Journal. Available at

www.bizjournals.com/sacramento/stories/2002/07/15/daily5.html?page=all, viewed on January 

13, 2014.); SureWest was subsequently acquired by Consolidated Communications in 2012 

(Consolidated Communications. (2012, July 2). “Consolidated Communicates completes 

purchase of SureWest Communications.” Available at

www.consolidated.com/news/archive/2012/consolidated-communications-completes-purchaseof-surewest-communications, viewed on January 13, 2014.). According to the Warren 

Communications TV Factbook, Consolidated Communications currently has an operating system 

in Sacramento but not the other cities in which WINfirst signed franchise agreements. 

(Advanced TV Factbook. Warren Communications News. Available at

www.advancedtvfactbook.com, viewed on December 11, 2013.) 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 19 of 61
 19 

the five counties for which it had received an OVS authorization from the FCC. The 

experience of RCN in those areas shows that an exceedingly small fraction of OVS 

authorizations ever resulted in an operational OVS system or cable franchise. This is also 

consistent with the failure of other overbuilders to develop operational systems in the areas 

in which they had obtained OVS authorizations for reasons that have nothing to do with 

Comcast’s conduct. Nonetheless, Dr. Williams asserts that, but for Comcast’s conduct, all

of the communities for which RCN had received an OVS authorization in the five counties 

would have resulted in operational OVS or cable systems. I find that Dr. Williams’s 

conclusion is not supported by—and is in fact contradicted by—the empirical evidence. 

V. DR. WILLIAMS’S EVIDENCE REGARDING BUILD-OUT TIMES FOR 

OVERBUILDERS IS FLAWED 

34) The third step in Dr. Williams’s posited sequence is that after signing, by July 1999, 

franchise agreements in the communities in which it had received an OVS authorization, 

RCN would have built out these franchises to the FCC’s 50/15 Standard three and one half 

years later. As I noted earlier, Dr. Williams provides absolutely no evidence on the 

fraction of households to which RCN would have provided service (i.e., the subscribership 

standard) but for Comcast’s allegedly anticompetitive conduct. As a result of this omission 

alone, he has no basis upon which to conclude that RCN would have overbuilt any 

community in the five counties to the 50/15 Standard by January 1, 2003. 

35) Dr. Williams’s evidence on the fraction of households to which RCN service would have 

been available (i.e., the homes passed standard) but for Comcast’s allegedly 

anticompetitive conduct is also flawed. The first piece of evidence offered by Dr. Williams 

regarding the time that RCN would have required to meet that standard are a set of 22 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 20 of 61
 20 

projected or anticipated times for overbuilders to build out a cable system. However, these 

do not reflect the actual amount of time taken by an overbuilder to build out a cable 

system. This is an important distinction because, as shown below, several of the 

overbuilders referenced by Dr. Williams were not successful in meeting these projected or 

anticipated build-out times, including the build-out requirements in their franchise 

agreements. 

36) The second piece of evidence offered by Dr. Williams regarding the time that RCN would 

have required to meet the homes passed standard are eight examples of the actual time 

taken by overbuilders to build out portions of their systems. However, all but one of these 

examples involve ILECs, local telephone companies, which can be expected to be (and 

have been) more successful overbuilders than RCN because they had an existing 

infrastructure and relationships with consumers in the areas in which they entered as 

providers of television service. The remaining example referenced by Dr. Williams is 

RCN’s build out of its system in Boston where the FCC found in 2012, more than twelve 

years after receiving its franchise, that RCN had passed fewer than one third (i.e., well 

under 50 percent) of all households. 

37) The final piece of evidence offered by Dr. Williams is based on a misinterpretation of a 

single Comcast document. Dr. Williams contends that the document refers to the 

completion of overbuilding in a community. However, another Comcast document, to 

which Dr. Williams does not refer, demonstrates that the document Dr. Williams cites 

refers instead to the commencement of RCN’s service in that community. That is, the 

document, which refers to a very small number of franchise areas in one county, says 

nothing about RCN reaching the 50/15 Standard (or any other overbuilding milestone) in 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 21 of 61
 21 

any franchise area. Consequently, this document does not support the conclusion that Dr. 

Williams attempts to draw from it. 

38) Dr. Williams attempts to bolster his opinion that RCN would have completed the third step 

of the sequence that he describes by arguing that RCN had sufficient capital to invest in 

developing its network in Bucks, Chester, Delaware, Montgomery, and Philadelphia 

Counties. However, that claim is inconsistent with the statements of RCN itself, even 

before Comcast entered into any of the acquisitions or swaps that are at issue in this 

litigation. It is also inconsistent with the experience of overbuilders, including but not 

limited to RCN, in markets other than Philadelphia (and Chicago and Boston) during the 

same time period. I discuss each of these flaws in Dr. Williams’s analyses in more detail in 

the remainder of this section. 

A. Dr. Williams Lacks Support for His Conclusion Regarding the Timing of Meeting the 

Homes Passed Standard 

39) To support his opinion that RCN would have met the homes passed standard in the 

communities where it had received an OVS authorization three and one half years after 

signing agreements with the franchising authorities in those communities, Table 2 of the 

Williams Report, Build-Out Times for Overbuilders, purports to provide evidence on the 

amount of time overbuilders actually took to construct their systems. However, the 

Williams Report does not provide a consistent definition (or, indeed, in many cases, any

definition at all) of “build out” and, at least as important, the time periods reported in the 

table are merely planned build-out time periods and do not reflect the actual amount of 

time taken by an overbuilder to build out a cable system. That is, the table reports only the 

time in a franchise agreement within which the overbuilder “shall” complete a build out, or 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 22 of 61
 22 

“must” make its service available, or is “required” to begin to provide service. The table 

provides not a single measure of how long a build out actually took in any of the cases 

reported or the actual extent of the build out. It is clearly inappropriate to rely on planned 

or promised construction timetables when the timing of actual construction can be 

observed. 

40) This is important because, contrary to Dr. Williams’s suggestion that the build-out time 

requirements specified in franchise agreements correspond to actual build-out times, it is 

apparent that several of the overbuilders listed in Table 2 of the Williams Report were not 

successful in meeting the build-out requirements in their franchise agreements: 

 Knology, which had been granted a franchise in Knoxville, Tennessee that contained a 

four year build-out requirement in 2000, and which had been granted a five year 

extension in 2004,43 had apparently still failed to meet that requirement in 2009.44

 WOW, which acquired Knology in 2011, does not currently provide any service in 

Louisville, Kentucky,45 despite the fact that Knology had acquired a cable franchise in 

200046 and had, according to Table 2 of the Williams Report, committed to a 4.5 year 

build out.

 

43 Hickman, H. (2008, February 20). “Knology to finish work.” Knoxville News Sentinel. 

Available at www.knoxnews.com/news/2008/feb/20/knology-finish-work, viewed on January 

14, 2014. 

44 Ferrar, R. (2009, November 30). “Knoxville City Council wants report from Knology.” 

Knoxville News Sentinel. Available at www.knoxnews.com/news/2009/nov/30/councilmenwant-report-from-knology, viewed on November 18, 2013. 

45 Supra footnote 33. 

46 “Knology seeks Jefferson County franchise.” (2000, November 29). Business First. Available 

at www.bizjournals.com/louisville/stories/2000/11/27/daily23.html, viewed on November 20, 

2013. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 23 of 61
 23 

 Knology, which was granted a cable franchise in Mount Pleasant, South Carolina in 

March 1999 with a requirement that the system be completely built out by July 2005,47

was reported as first starting construction of its system in 2011.

48

 RCN, which applied for a cable franchise with a five year build-out requirement in San 

Diego, California in 2000, 49 does not currently provide service in that area.50

41) It is also important to note that eight of the 22 examples in Table 2 of the Williams Report 

relate to commitments made by Verizon, an ILEC. Because ILECs already provided 

telephone service throughout an area, it was far simpler and less costly for them to add 

television service to their offerings than it is for new entrants to construct facilities de novo

in order to provide television service to the same households. In addition to existing 

distribution plants, ILECs already have access to rights-of-way and typically own the poles 

and conduits through which their video plant would be extended. They also have existing 

relationships with households to which they have provided telephone service. New 

entrants have none of these advantages. For both reasons, ILECs, particularly AT&T and 

 

47 Town of Mount Pleasant. (1999, March 9). “Knology Cable Franchise Ordinance and 

Knology Telecommunications Franchise Ordinance,” Exhibit “A,” Construction Schedule. 

Available at www.secinfo.com/dsVsf.63K9.b.htm#16thPage, viewed on January 13, 2014. 

48 Bird, A. (Posted: 2011, January 7, Updated: 2012, March 23). “Knology expands service to 

Mount Pleasant.” The Post and Courier. Available at 

www.postandcourier.com/article/20110107/PC05/301079901, viewed on November 18, 2013.

49 The City of San Diego, Manager’s Report. (2000, October 18). “Grant of Competitive Cable 

Television Franchise Agreement with RCN Telecom Services.” Available at 

docs.sandiego.gov/reportstocouncil/2000/00-214.wpd.pdf, viewed on January 10, 2014. Dr. 

Williams includes this example in his Table 2, which presents “the time period between the date 

overbuilders enter into franchise agreements and the 50/15 and 100 percent build-out dates,” 

(Williams Report, ¶13) although it is unclear that RCN ever obtained a franchise agreement with 

the City of San Diego.

50 RCN’s website does not currently indicate that it provides service in San Diego. (RCN. 

“Where We Service.” Available at www.rcn.com/about-rcn/where-we-service, viewed on 

January 10, 2014.) Furthermore, the Warren Communications TV Factbook does not list an 

operating RCN or Astound, which acquired RCN’s San Francisco assets in 2007, system in San 

Diego. (Advanced TV Factbook. Warren Communications News. Available at

www.advancedtvfactbook.com, viewed on December 11, 2013.) 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 24 of 61
 24 

Verizon, have been far more successful as overbuilders than have new entrants such as 

RCN and WOW.51 Indeed, Dr. Williams made exactly this point in an earlier declaration: 

ILECs already have made large investments [in] infrastructure.... 

[I]nstead of building an entirely new network from scratch, ILECs 

only need to upgrade their existing telephone access lines to provide 

the additional video and data services.52

Despite having earlier acknowledged these marked differences between the economics of 

ILECs and overbuilders like RCN, Dr. Williams nonetheless attempts to infer the likely 

behavior of RCN from the behavior of ILECs. 

42) Moving beyond the examples in Dr. Williams’s Table 2, it is not difficult to find examples 

of overbuilders that failed to meet the build-out requirements in their franchise agreements. 

For example, the Greater Metro Telecommunications Consortium (“GMTC”) is an agency 

comprising 32 cities, counties, and towns in Colorado. 53 Combined, the GMTC 

 

51 According to the National Cable and Telecommunications Association, in 2012 Verizon was 

the fifth largest multiple-system operator (“MSO”) in the U.S. with 4.7 million subscribers and 

AT&T was the seventh largest MSO in the U.S. with 4.5 million subscribers. In contrast, newentrant overbuilders like WOW and RCN were the thirteenth and fifteenth largest MSOs in the 

U.S., respectively, with 702 thousand and 328 thousand subscribers, respectively. (National 

Cable and Telecommunications Association. “Industry Data: Top 25 Multichannel Video 

Service Customers (2012).” Available at www.ncta.com/industry-data, viewed on January 9, 

2014.) 

52 Williams, Michael A. (2009, May 11). “Expert Reply Declaration of Michael A. Williams, 

Ph.D., in Caroline Behrend, et al. v. Comcast Corporation, et al., in the United States District 

Court for the Eastern District of Pennsylvania,” ¶ 67, internal quotation marks and footnote 

omitted. See also, Williams, Michael A. (2009, September 11). “Supplemental Expert 

Declaration of Michael A. Williams, Ph.D., in Caroline Behrend, et al. v. Comcast Corporation, 

et al., in the United States District Court for the Eastern District of Pennsylvania,” ¶ 26. 

53 “Comments of the Greater Metro Telecommunications Consortium, the Rainier 

Communications Commission, Howard County, Maryland, the Cities of Bellevue and Olympia, 

Washington, and the Washington Association of Telecommunications Officers and Advisors 

Before the Federal Communications Commission In the Matter of Implementation of Section 

621(a)(1) of the Cable Communications Policy Act of 1984 as amended by the Cable Television 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 25 of 61
 25 

represented a population of 459,000 cable subscribers and 925,000 households.54 

According to a 2006 filing to the FCC: “The GMTC communities entered in competitive 

franchise agreements with WideOpenWest (now Champion Broadband) in 2000. While 

the franchise area requires construction of the cable system and offering of cable service to 

all households within the boundaries of each GMTC jurisdiction, Champion Broadband is 

only providing services to approximately 2,000 subscribers [i.e., fewer than one percent of 

cable subscribers in the GMTC] in very small sections of the Cities of Denver and 

Lakewood.”55 Similarly, as discussed previously, the overbuilder WINfirst signed 

franchise agreements in eight large cities but announced in 2002 that it had stopped 

construction of its only system, which was located in Sacramento, and was quoted as being 

in “capital preservation mode.” 56 A few days later, the company filed for bankruptcy 

protection. 57

43) Similarly, RCN has requested significant relief from the build-out requirements in many of 

its cable franchises (including the requirements in its Redwood City, California franchise 

agreement cited by Dr. Williams). For example, in its 2001 Form 10-K Filing, RCN stated 

that: 

 

Consumer Protection and Competition Act of 1992.” (2006, February 13). (MB Docket No. 05-

311), p. 2. Available at www.watoa.org/FCC_Franchise_Comments.pdf, viewed on January 10, 

2014. 

54 Ibid.

55 Ibid., p. 4. 

56 Supra footnote 41. 

57 Supra footnote 42. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 26 of 61
 26 

[I]t is probable that the Company will not be able to meet all of the 

construction and system build-out requirements contained in some 

of the cable franchises arrangements it has entered into with 

certain local governments. In certain communities...the Company 

has agreed with the franchising authorities either to terminate the 

franchise without penalty or prejudice to enter into a new franchise 

in the future or to postpone indefinitely any build-out obligations. 

In other cases, the Company is attempting to negotiate with 

franchising authorities to extend or modify the terms of the 

applicable franchise to avoid any breaches and related penalties, 

terminate the applicable franchise without penalty or prejudice to 

entering a new franchise in the future or to postpone indefinitely 

any build-out obligations under the franchise.58

44) Table 3 of the Williams Report, Comparison of “Built Out Percentage” to “Percentage of 

Required Build Out Time”, is presumably intended to provide evidence of actual, as 

opposed to “required,” build outs. However, all but one of the cases in Table 3 rely on the 

performances of incumbent phone companies, which, for the reasons that I described above 

(and that Dr. Williams has recognized in the past), can be expected to be more successful 

overbuilders than new entrants such as RCN. 

45) The one example cited by Dr. Williams in Table 3 that does not pertain to overbuilding by 

an ILEC relates to RCN’s operation in Boston. Dr. Williams apparently considers RCN’s 

operation in Boston a success. Based on press accounts he claims that RCN had built out a 

system that covered 81 percent of Boston’s households.59 However, in 2012, the FCC 

 

58 RCN Corp., Form 10-K Filing for the fiscal year ended December 31, 2001, p. 20, emphasis 

added. 

59 Williams Report, Table 3, citing Horn, P. (2000, December 12). “RCN Has Long-term 

Promise, Immediate Costs with Network the Telecom Firm Bundles Services for Residential 

Users. But Its Funds are Limited, and It May Scale Back its Goals.” The Philadelphia Inquirer

and “RCN to build broadband network in Boston.” (1999, July 27). The Associated Press State 

& Local Wire. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 27 of 61
 27 

found that the RCN system passed only 32 percent of all households in Boston.60 The 

Commission also concluded that “[a]t present, RCN has neither an obligation to expand the 

geographic scope of its system nor any prospect of doing so.”61 In fact, RCN reported in 

2004 that it had “terminated” its Boston cable franchise and reverted to OVS status.62 

RCN’s system in Boston, therefore, cannot serve as an example of RCN’s ability to 

successfully meet the build-out requirements set forth in its franchise agreements, let alone 

as an example of its success in meeting the 50/15 Standard. 

46) Dr. Williams’s final analysis of the time that it supposedly would have taken RCN to 

overbuild communities where it had received an OVS authorization from the FCC absent 

the allegedly anticompetitive conduct is based on a single Comcast document. He states 

that: 

According to Comcast, on average, a franchise was overbuilt by 

RCN approximately one year and five months after the franchise 

agreement date. Out of the nine franchises, the longest period from 

the date of RCN’s franchise agreement to the date Comcast 

concluded the franchise was overbuilt was three years. Therefore, 

my conclusion [is] that RCN’s 50/15 build-out date would be no 

 

60 Federal Communications Commission. (Adopted: 2012, April 6, Released: 2012, April 9). 

“Memorandum Opinion and Order, In the Matter of Petition of the City of Boston, 

Massachusetts, For Recertification to Regulate the Basic Cable Service Rates of Comcast Cable 

Communications, LLC (CUID MA0182),” (CSR 8488-R), ¶ 7. Available at 

hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-553A1.pdf, viewed on January 10, 2014. 

61 Ibid., footnote omitted, emphasis added. 

62 RCN Corp., Form 10-K Filing for the fiscal year ended December 31, 2004, p. 16. RCN also 

reported that it had entered into an OVS agreement and terminated its cable franchise in San 

Francisco. It later sold those operations. (“RCN Corporation and Astound Broadband Close Sale 

of RCN’s San Francisco Assets.” (2007, March 14). Business Wire. Available at

www.businesswire.com/news/home/20070314005987/en/RCN-Corporation-AstoundBroadband-Close-Sale-RCNs#.UtA4MJ5dUk0, viewed on November 17, 2013.) 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 28 of 61
 28 

later than three and one half years after the franchise agreement date, 

but for Comcast’s anticompetitive conduct.63 

The Comcast document on which Dr. Williams relies does not support this conclusion. 

47) The document, which refers to a very small number of franchises in a single county, says 

nothing about RCN reaching the 50/15 Standard (or any other overbuilding milestone) in 

any franchise area.64 Moreover, another Comcast document (to which Dr. Williams does 

not refer) demonstrates that the document cited by Dr. Williams refers to the dates at which 

RCN first started to serve customers in each franchise area.65 As a result, the document 

cited by Dr. Williams provides no information about the amount of time it would take RCN 

to meet the homes passed standard or the subscribership standard in any franchise area. 

B. Dr. Williams’s Conclusions Regarding RCN’s Financial Strength Are Incorrect 

48) To support his opinion that RCN would have met the homes passed standard by January 1, 

2003 in the 106 communities in the five counties for which it had received an OVS 

authorization, Dr. Williams interprets “RCN’s contemporaneous filings with the U.S. 

Securities and Exchange Commission (‘SEC’)” as “indicat[ing] that the firm had the ability 

to complete the build out of the franchises in the five counties for which it had FCC 

 

63 Williams Report, ¶ 21. 

64 “Competitive Overview – Delaware County.” (COM-PA0982329-37.) 

65 “Competitive Subscriber Number Analysis.” (COM-PA2002234-335 at 255-334.) The dates 

listed in Table 4 of the Williams Report correspond to the dates listed in this document as the 

“date competition started.” For example, the document shows that Comcast estimated that RCN 

had 21 (a one percent penetration rate) customers in Tinicum Township as of October 2001, a 

month after Dr. Williams asserts that Comcast determined the franchise to be “overbuilt.” (Ibid.

at 255.) As another example, the document shows that Comcast estimated that RCN had 209 

customers (a four percent penetration rate) in Yeadon as of November 2003, the date on which 

Dr. Williams asserts that Comcast had determined the franchise to be “overbuilt.” (Ibid. at 312.) 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 29 of 61
 29 

approval.”66 He concludes that “RCN had substantial funds available to invest in its 

network development plan, a plan that likely would have succeeded within the time periods 

I have estimated but for Comcast’s conduct complained of in this case.”67 However, the 

evidence shows that RCN, like other overbuilders at the time, faced serious financial 

difficulties as it became apparent that the economics of overbuilding were not favorable. 

These industry-wide financial difficulties substantially decreased the likelihood that RCN 

would have been able to successfully build out its franchises in the five counties but for the 

alleged anticompetitive conduct of Comcast. 

49) Overbuilders’ lack of access to capital and the corresponding effect on their ability to 

complete build outs were described contemporaneously by industry analysts. For example, 

Bank of America wrote in the first quarter of 2001:

Regarding overbuilding, there has been continuing evidence of the 

difficulty of the overbuild business model and the trepidation of the 

private capital markets to fund these types of businesses. In the past 

month RCN ended its efforts to obtain a franchise in Philadelphia, 

American Broadband cancelled plans to enter Buffalo and Digital 

Access shuttered the company altogether.68 

Similarly, an article in Multichannel News in the first quarter of 2002 noted that: 

Another overbuilder has found the capital markets to be a bigger 

threat to long-term viability than incumbent cable companies. The 

president of Western Integrated Networks, which does business as 

WINfirst, has confirmed that the company has stopped construction 

in its sole build in Sacramento, Calif., and is in ‘capital preservation 

mode’.... The inability to continue raising large sums for telecom-

 

66 Williams Report, ¶ 16. The reference is to RCN’s SEC Form 10-K Filing for the fiscal year 

ending December 31, 2000. 

67 Williams Report, ¶ 17. 

68 Banc of America Securities, Equity Research, Montgomery Division. “Cable Industry 

Comment.” (2001, March 26). (COM-PA1059444-51 at 47.) 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 30 of 61
 30 

network buildouts has killed or crippled many once-hot start-up 

‘broadband service providers’ over the last couple of years. 

American Broadband Inc. of Rhode Island and Digital Access Inc., 

which had plans to build in five states, scrapped their overbuilds 

entirely. And the likes of Carolina Broadband Inc., TotaLINK LLC 

and even the well-established RCN Corp. have scaled back their 

construction plans.69

50) The FCC described the financial difficulties faced by overbuilders in its Ninth Annual 

Report on competition in the market for video services, which was issued at the end of 

2002. For example, the FCC noted that WOW, the second largest BSP, had “suspended 

build-out commitments due to financial difficulties”70 and Knology, the third largest BSP, 

“experienced financial troubles in the last year, and filed a pre-packaged Chapter 11 

bankruptcy that allows it to continue service uninterrupted.”71 In the same report, the FCC 

noted that these financial difficulties extended to RCN and, as a result, RCN had reduced 

the number of markets it planned to enter: “Like all BSPs...RCN has experienced trouble 

acquiring financing and, as a result, has scaled back expansion plans and focused on 

marketing to existing passed homes.”72 Thus, Dr. Williams’s opinion that RCN had 

sufficient capital to build out its OVS communities by 2003 is completely at odds with the 

FCC’s contemporaneous finding that RCN was scaling back its building commitments 

because of inadequate capitalization. 

 

69 Supra footnote 41. 

70 Federal Communications Commission. (Adopted: 2002, December 23, Released: 2002, 

December 31). “Ninth Annual Report In the Matter of Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video Programming” (MB Docket No. 02-145), ¶ 

104, footnote omitted. Available at hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-

338A1.pdf, viewed on January 10, 2014. 

71 Ibid. 

72 Ibid., ¶ 103, footnote omitted. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 31 of 61
 31 

51) To support his contention that RCN had the financial ability to complete the build out of 

franchises in the five counties in which it had OVS approvals, Dr. Williams relies on the 

following language from RCN’s 2000 SEC Form 10-K Filing: “The Company believes its 

currently available funds are sufficient to fund development of the markets the company 

has committed to entering.”73 However, he ignores other statements made by RCN 

concerning its operations either before or shortly after issuing its 2000 Form 10-K Filing 

that make clear that RCN had already reduced the number of areas that it planned to enter. 

For example, an article released on December 16, 2000 (i.e., months before RCN filed its 

2000 Form 10-K Filing and weeks before December 31, 2000, a date on which Dr. 

Williams concluded “that RCN had substantial funds available to invest in its network 

development plan”74) states: 

RCN Corp., a telecommunications company that serves more than 

130,000 Lehigh Valley customers, announced this week that it has 

abandoned an aggressive plan to enter new markets in order to 

conserve cash.75

52) As another example, in RCN’s 2001 Form 10-K Filing, it noted that it had curtailed the 

number of markets that it planned to enter in the second quarter of 2001, the same quarter 

in which it released the 2000 Form 10-K Filing cited by Dr. Williams: 

As the economy changed and the capital available to our industry 

became limited, the Company revised its strategic and fundamental 

plans accordingly. During the second quarter of 2001, the Company 

 

73 Williams Report, ¶17, quoting RCN Form 10-K Filing for the fiscal year ended December 31, 

2000, p. 47, emphasis added. 

74 Ibid. 

75 Berg, C. (2000, December 16). “RCN pulls back on plans for growth.” The Morning Call. 

Available at articles.mcall.com/2000-12-16/business/3328168_1_rcn-mccourt-telephone-andinternet-services, viewed on January 10, 2014, emphasis added. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 32 of 61
 32 

shifted focus from beginning construction in new markets to 

additional construction activities in its existing markets to achieve 

higher growth with lower incremental capital spending. The 

expansion plans in certain existing markets over the next 18 to 24 

months were also curtailed and delayed in some markets.... As a 

result of the change in expansion plans, we initiated discussions with 

the respective franchising authorities to inform them of the 

Company's decision to stop or delay construction.76

Indeed, a November 1, 2001 Philadelphia Inquirer article quoted RCN as stating that “it 

would be too expensive and too difficult to build a network in the entire [City of 

Philadelphia] at once, and that it prefers to commit to only two of the four franchise areas” 

in Philadelphia.77 Despite this, Dr. Williams asserts that RCN would have had the financial 

capacity to build out its systems to the 50/15 Standard in all of the 106 communities 

(including all of the City of Philadelphia) for which it had received an OVS authorization 

within only three and one half years of signing franchise agreements.

53) In summary, contemporaneous business documents and statements by RCN itself 

demonstrate that RCN was cutting back its building plans at exactly the time that Dr. 

Williams contends the company had sufficient capital to complete the build out of all the 

communities in the five counties for which it had received an OVS authorization from the 

FCC. The financial difficulties that led RCN to reduce the number of markets that it 

planned to enter were related to its access to capital, difficulties that confronted many other 

overbuilders, including WOW, Knology, American Broadband, and Digital Access. 

 

76 RCN Corp., Form 10-K Filing for the fiscal year ended December 31, 2001, pp. 51-52, 

emphasis added. 

77 Horn, P. (2000, November 1). “Phila. Council Panel Questions RCN on Cable Plan.” 

Philadelphia Inquirer. Available at articles.philly.com/2000-11-01/business/25613267_1_rcnfranchise-areas-cable-franchise-contracts, viewed on January 10, 2014. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 33 of 61
 33 

VI. DR. WILLIAMS LACKS SUPPORT FOR HIS CONCLUSIONS REGARDING THE 

EFFECT OF OVERBUILDING ON NEIGHBORING FRANCHISES 

54) The second primary conclusion contained in the Williams Report is that Comcast’s 

acquisition of market power allowed it to charge supracompetitive prices to all members of 

the putative class in Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties. 

That is, Dr. Williams contends that consumers in the communities in which RCN had not

applied for OVS authorization (and so for which he provides no evidence that RCN had 

any prospect of overbuilding) would have nonetheless benefited from overbuilding in 

neighboring franchises.78 

55) The sole authority cited by Dr. Williams to support this conclusion79 is the following 

passage from the FCC’s Eighth Annual Report, In the Matter of Annual Assessment of the 

Status of Competition in the Market for the Delivery of Video Programming: 

Similarly, RCN contends that in Somerville, Massachusetts, upon its 

entry, Time Warner, the incumbent, announced a rate freeze for only 

that area where it faced competition. In suburban Philadelphia, as a 

result of RCN’s entry, Comcast, the incumbent, began to offer “rate 

locks” and service improvements in the towns where it faced 

competition. In the Washington, D.C., area, as a result of entry by 

Starpower, an RCN affiliate, Comcast, the incumbent cable operator, 

reduced a previously proposed rate increase. RCN also contends that 

in anticipation of its entry in Fairfax County, a suburb of 

 

78 Williams Report, ¶ 29. Dr. Williams writes: “the competitive effect of overbuilder entry may 

extend to geographic areas not served by the [overbuilder].” 

79 Williams Report, ¶ 29. Dr. Williams cites the Declaration of Dr. Robert D. Willig on Behalf 

of EchoStar Communications Corporation, General Motors Corporation, and Hughes Electronics 

Corporation, CS Docket No. 01-348 (2002), ¶ 45, which in turn cites Federal Communications 

Commission. (Adopted: 2001, December 27, Released: 2002, January 14). “Eighth Annual 

Report In the Matter of Annual Assessment of the Status of Competition in the Market for the 

Delivery of Video Programming.” (CS Docket No. 01-129), ¶ 201. Available at

hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-389A1.pdf, viewed on January 10, 2014. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 34 of 61
 34 

Washington, D.C., the incumbent Cox announced an upgrade of its 

plant.80

56) It is clear, however, that this passage is consistent with the view that the effect of RCN’s 

entry on cable prices is limited to the areas in which entry had actually occurred. Even the 

reference to RCN’s entry in Fairfax County, Virginia, is consistent with this view since 

RCN currently provides service in Fairfax County, so that Cox’s upgrade of its physical 

plant was being made in response to future entry by an actual competitor. 

57) Moreover, in its own filings with the FCC in connection with the Eighth Annual Report, 

RCN repeatedly emphasized that the effect of its entry on cable rates was limited to the 

areas in which it had actually entered: 

Incumbent Time Warner announced rate freezes in Somerville, a 

Boston suburb, upon RCN’s entry, even though it was raising rates 

in most of the eastern Massachusetts communities in which it was 

the franchisee by 10% to 15%.... 

In Manhattan the incumbent, Time Warner, adopted an aggressive 

bulk discount plan for apartment buildings targeted for service by 

RCN.... 

As RCN has rolled-out its competitive cable and local telephone 

services in suburban Philadelphia communities such as Folcroft, 

the incumbent, Comcast, began offering rate locks and service 

improvements in towns to which RCN was offering or about to 

begin offering service. These special offers were highly selective, 

and focused specifically on the imminent arrival of RCN’s 

competitive service.81

 

80 Federal Communications Commission. (Adopted: 2001, December 27, Released: 2002, 

January 14). “Eighth Annual Report In the Matter of Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video Programming.” (CS Docket No. 01-129), ¶ 

201, emphasis added, footnotes omitted. Available at

hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-389A1.pdf, viewed on January 10, 2014. 

81 “Initial Comments of RCN Corporation In the Matter of Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video Programming.” (2001, August 3). (CS 

Docket No. 01-129). Appendix A, pp. 1-2, emphasis added. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 35 of 61
Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 36 of 61
Appendix A: Curriculum Vitae 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 37 of 61
Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 38 of 61
Stanley M. Besen 

Charles River Associates Page 2 

 Member, The National Academies Computer Science and Telecommunications Board 

Committee on Internet Searching and the Domain Name System, 2001–2004 

 Member, Editorial Board, Information Economics and Policy, 1992–2004 

 Member, Editorial Board, Economics of Innovation and New Technology, 1989–Present 

 Member, US National Committee on Data for Science and Technology (CODATA), National 

Academy of Sciences/National Research Council, 1993–1996 

 Member, Office of Technology Assessment Advisory Panel on Communications Systems for an 

Information Age, 1986–1988 

 Member, Regional Telecommunications Planning Advisory Committee, City of Cincinnati, 1985 

 Member, Office of Technology Assessment Advisory Panel on Intellectual Property Rights in 

an Age of Electronics and Information, 1984–1985 

 Expert, World Intellectual Property Organization/UNESCO Meeting on Unauthorized Private 

Copying of Recordings, Broadcasts and Printed Matter, 1984 

 Member, Editorial Board, Southern Economic Journal, 1979–1981 

 Member, Task Force on National Telecommunications Policy Making, Aspen Institute Program 

on Communications and Society, 1977 

 Member, Technical Advisory Committee on Business Development, Model City Program, City 

of Houston, 1969–1971 

 Listed in Who’s Who in America, 1982–1983, 1984–1985, 1986–1987, 1988–1989, 1990–

1991, 1992–1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 

2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014 

 Brookings Economic Policy Fellow, 1971–1972 

 Wilson University Fellow, 1959–1961 

 Overbrook Fellow, 1958–1959 

 Beta Gamma Sigma, 1958 

Publications 

Books and reports 

Survey in the Area of the Economic Assessment of Media Markets: Royalties and Cost Structures of 

Collecting Societies for Music Rights in Cable Retransmission. With E.J. Murdoch, R. Nitsche, and 

A. Kleymenova. Final Report, October 31, 2003. 

Telecommunications and Information Technology Standardization in Japan: A Preliminary Survey. 

The RAND Corporation, N-3204-CUSJR, 1991. 

Compensating Creators of Intellectual Property: Collectives that Collect. With S. Kirby. The RAND 

Corporation, R-3751-MF, 1989. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 39 of 61
Stanley M. Besen 

Charles River Associates Page 3 

New Technologies and Intellectual Property: An Economic Analysis. The RAND Corporation, 

N-2601-NSF, 1987. 

Compatibility Standards, Competition, and Innovation in the Broadcasting Industry. With L. Johnson. 

The RAND Corporation, R-3453-NSF, 1986. 

The Economics of Bulk Power Exchanges. With J. Acton. The RAND Corporation, N-2277-DOE, 

1985. 

Misregulating Television: Network Dominance and the FCC. With T. Krattenmaker, A. Metzger, and 

J. Woodbury. Chicago: University of Chicago Press, 1984. 

An Analysis of the Federal Communication Commission’s Group Ownership Rules. With 

L. Johnson. The RAND Corporation, N-2097-MF, 1984. 

Regulation of Media Ownership by the Federal Communications Commission: An Assessment. With 

L. Johnson. The RAND Corporation, R-3206-MF, 1984. 

Issues in the Design of a Market Experiment for Bulk Electrical Power. With J. Acton. The RAND 

Corporation, N-2029-DOE, 1983. 

An Economic Analysis of Mandatory Leased Channel Access for Cable Television. With L. Johnson. 

The RAND Corporation, R-2989-MF, 1982. 

After Energy Price Decontrol: The Role of Government Conservation Programs. With L. Johnson. 

The RAND Corporation, N-1903-DOE, 1982. 

Cable Copyright and Consumer Welfare: The Hidden Cost of the Compulsory License. With 

H. Shooshan, C. Jackson, and J. Wilson. Shooshan and Jackson, 1981. 

New Television Networks: Entry, Jurisdiction, Ownership, and Regulation” With T. Krattenmaker et 

al. Final Report, Network Inquiry Special Staff, Federal Communications Commission, 1980. 

Economic Policy Research on Cable Television: Assessing the Costs and Benefits of Cable 

Deregulation. With B.M. Mitchell, R.G. Noll, B.M. Owen, R.E. Park, and J.N. Rosse. Prepared for the 

Office of Telecommunications Policy, Executive Office of the President, December 1976. Reprinted 

in P. MacAvoy (ed.), Deregulation of Cable Television. American Enterprise Institute, 1977. 

On Measuring the Gain in Economic Welfare from Marginal Cost Pricing when a Related Market Is 

of Importance: The Case of Electricity and Natural Gas. With B. Mitchell. The RAND Corporation, 

P-5755, 1977. 

A Simultaneous Equations Model of Television Station Revenue and Expenditure. Appendix F to 

R. Park, L. Johnson, and B. Fishman, Projecting the Growth of Television Broadcasting: 

Implications for Spectrum Use. The RAND Corporation, R-1841-FCC, 1976. 

Introduction to Monetary Economics. Harper and Row, 1975. 

An Economic Evaluation of an Alternative Method of Funding Public Broadcasting. Broadcasting 

Institute of North America, 1973.

Evaluating the Returns to Regional Economic Development Programs. Institute for Defense 

Analyses, B-272, 1966.

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 40 of 61
Stanley M. Besen 

Charles River Associates Page 4 

Internal Prices as an Administrative Tool: An Application to the Military Air Transport Service. With 

M. Bailey, J. Cross, and W. Sewell. Institute for Defense Analyses, S-200, 1965.

Articles and book chapters 

“The Economics of Internet Standards.” With G. Sadowsky. Handbook on the Economics of the 

Internet, Johannes M. Bauer and Michael Latzer (editors), forthcoming. 

“Trying to Promote Network Entry: From the Chain Broadcasting Rules to the Channel Occupancy 

Limits.” Review of Industrial Organization, forthcoming. 

“Library Demand for E-Books and E-Book Pricing: An Economic Analysis.” With S.N. Kirby, Journal 

of Scholarly Publishing, 2014. 

“The Evolution of Internet Interconnection from Hierarchy to ‘Mesh’: Implications for Government 

Regulation.” With M.A. Israel. Information Economics and Policy, 2013. 

 “An Economic Analysis of the AT&T-T-Mobile USA Wireless Merger.” With S.D. Kletter, S.X. 

Moresi, S.C. Salop, and J.R. Woodbury. Journal of Competition Law and Economics, 2013. 

Introduction to Symposium, “The Use and Abuse of Voluntary Standard-Setting Processes in a 

Post-Rambus World: Law, Economics, and Competition Policy.” Co-editor with R.J. Levinson. The 

Antitrust Bulletin, Spring 2012. 

“Economic Remedies for Anticompetitive Hold-up: The Rambus Cases.” With R.J. Levinson. The 

Antitrust Bulletin, 2011. 

“The FCC’s Network Inquiry: A Thirty Year Retrospective.” With T.J. Krattenmaker. Virginia Journal 

of Sports and Entertainment Law, 2011. 

“Lessons from FTC v. Rambus.” With R.J. Levinson. Icarus, Communications & Digital Technology 

Industries Committee, American Bar Association Section of Antitrust Law, Summer 2010. 

“Standards, Intellectual Property Disclosure, and Patent Royalties after Rambus.” With R.J. 

Levinson. North Carolina Journal of Law & Technology, 2009. 

“Regulating Intellectual (Property) Monopolies.” Competition & Consumer Law Journal, December 

2008. 

“Evaluating the Competitive Effects of Mergers of Internet Backbone Providers.” With J.S. Spigel 

and P. Srinagesh. ACM Transactions on Internet Technology. 2002. 

“Advances in Routing Technologies and Internet Peering Agreements.” With P. Milgrom, B.M. 

Mitchell, and P. Srinagesh. American Economic Association Papers and Proceedings. 2001. 

“Intellectual Property.” In The New Palgrave Dictionary of Economics and the Law. The Macmillan 

Press, 1998. Reprinted in R. Towse and R.W. Holzhauer (eds.), The Economics of Intellectual 

Property, Edward Elgar, 2001. 

“Analyzing Vertical and Horizontal Cross Ownership in Cable Television: the Time Warner-Turner 

Merger (1996).” With E. Murdoch, D. O’Brien, S. Salop and J. Woodbury. In J.E. Kwoka and L.J. 

White, The Antitrust Revolution: Economics, Competition, and Policy. Third Edition, Scott, 

Foresman, 1998. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 41 of 61
Stanley M. Besen 

Charles River Associates Page 5 

“Telecommunications in the USA: Evolution to Pluralism.” With S.R. Brenner and J.R. Woodbury, in 

B. Lange (ed.), ISDN: An International Comparison of Trends in the USA, Japan, Singapore and 

Europe. Final Report to the ISDN Commission of North Rhine-Westphalia, 1996. 

“The Standards Processes in Telecommunications and Information Technology.” In R. Hawkins, R. 

Mansell and J. Skea (eds.), Standards, Innovation, and Competitiveness: The Politics and Economics 

of Standards in Natural and Technical Environments. Edward Elgar, 1995. 

“Rate Regulation, Effective Competition, and the Cable Act of 1992.” With J.R. Woodbury. Hastings 

Communications and Entertainment Law Journal. 1994. 

“Choosing How to Compete: Strategies and Tactics in Standardization.” With J. Farrell. Journal of 

Economic Perspectives, 1994. 

“AM v. FM: The Battle of the Bands.” Industrial and Corporate Change, 1992. 

“An Economic Analysis of Copyright Collectives.” With S. Kirby and S. Salop. Virginia Law Review, 

1992. Reprinted in R.P. Merges (ed.), Economics of Intellectual Property Law, Cheltenham, UK and 

Northampton, MA, USA: Edward Elgar Publishing, 2007; reprinted in Stephen E. Margolis and Craig M. 

Newmark (editors), Intellectual Property and Business, Edgar Elgar Publishing, 2010. 

“The Role of the ITU in Telecommunications Standardization: Pre-Eminence, Impotence, or Rubber 

Stamp?” With J. Farrell. Telecommunications Policy, 1991. Reprinted as The RAND Corporation, 

RP-100, 1992. 

“An Introduction to the Law and Economics of Intellectual Property.” Journal of Economic 

Perspectives, (with L. Raskind), 1991. Translated and reprinted as “Introduzione agli Aspetti 

Legislativi ed Economici della Proprieta Intellettuale.” in G. Goisis (ed.), Efficienza Produttiva: Alcuni 

Contributi Su Noti (E Meno Noti) Argomenti. CEDAM, 1994; reprinted in K.E. Maskus (ed.), The 

WTO, Intellectual Property Rights and the Knowledge Economy. Cheltenham, UK and 

Northampton, MA, USA: Edward Elgar Publishing, 2004. 

“The European Telecommunications Standards Institute: A Preliminary Analysis.” 

Telecommunications Policy, 1990. Reprinted as The RAND Corporation, N-3320-NSF, 1991. 

“Separate Satellite Systems and INTELSAT: An American View.” Revue de Droit de l’Informatique 

et des Telecoms, 1989. 

“The Economics of Telecommunications Standards.” With G. Saloner, in R. Crandall and K. Flamm 

(eds.), Changing the Rules: Technological Change, International Competition, and Regulation in 

Communications, Brookings Institution. 1989. Reprinted as “Compatibility Standards and the Market 

for Telecommunications Services.” in T.J. Allen and M.S. Scott Morton (eds.), Information 

Technology and the Corporation of the 1990s. Oxford University Press, 1994. 

“Private Copying, Appropriability, and Optimal Copying Royalties.” With S. Kirby. Journal of Law and 

Economics, October 1989. Reprinted in R.P. Merges (ed.), Economics of Intellectual Property Law, 

Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2007. An earlier version 

appeared as The RAND Corporation, R-3546-NSF, 1987. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 42 of 61
Stanley M. Besen 

Charles River Associates Page 6 

“Assessing the Effects of Bulk Power Rate Regulation: Results from a Market Experiment.” Applied 

Economics (with J. Acton), May 1987. Reprinted in J. Plummer and S. Troopman (eds.),

Competition in Electricity: New Markets and New Structures (Public Utilities Reports and QED 

Research, 1990). An earlier and more extended version appeared as “Regulation, Efficiency, and 

Competition in the Exchange of Electricity: First-Year Results from the FERC Bulk Power Market 

Experiment.” The RAND Corporation, R-3301-DOE, 1985. 

“Discussion of Michael A. Tyler, ‘The Extent of Software Piracy.’ ” In F. Huband and R. Shelton 

(eds.), Protection of Computer Systems and Software. Clifton, NJ: Law & Business, Inc., 1986. 

“Private Copying, Reproduction Costs, and the Supply of Intellectual Property.” Information 

Economics and Policy, 1986. Reprinted in D. Lamberton (ed.), The Economics of Communication 

and Information. Edward Elgar, 1996. An earlier version appeared as The RAND Corporation, 

N-2207-NSF, 1984. 

“Copying Costs and the Costs of Copying.” In M. Greenberger (ed.), Electronic Publishing Plus: 

Media for a Technological Future. Knowledge Industries, 1985. 

“Regulation of Broadcast Station Ownership: Evidence and Theory.” With L. Johnson in E. Noam 

(ed.), Video Media Competition: Regulation, Economics, and Technology. Columbia University 

Press, 1985. 

“The Regulation of Telecommunications Networks.” Information Society, 1984. 

“The Determinants of Network Television Program Prices: Implicit Contracts, Regulation, and 

Bargaining Power.” With J. Woodbury and G. Fournier. The Bell Journal of Economics, 1983. 

“Regulation, Deregulation, and Antitrust in the Telecommunications Industry.” With J. Woodbury. 

The Antitrust Bulletin, 1983. 

Summary Comments in E. Noam (ed.), Telecommunications Regulation Today and Tomorrow. Law 

& Business, Inc./Harcourt Brace Jovanovich, 1983. 

“Economic Implications of Mandated Efficiency Standards for Household Appliances: Comment.” 

With L. Johnson. The Energy Journal, 1982. 

“Regulating Network Television: Dubious Premises and Doubtful Solutions.” With T. Krattenmaker. 

Regulation, 1981. 

“The Deregulation of Cable Television,” Law and Contemporary Problems, Winter 1981 (with R.W. 

Crandall). Reprinted in T. G. Krattenmaker, Telecommunications Law and Policy, Carolina 

Academic Press, 1995 and 1998 (Second Edition); S. M. Benjamin, D. Lichtman, and H.A. 

Shelanski, Telecommunications Law and Policy, Carolina Academic Press, 2001; and S.M. 

Benjamin, D.G. Lichtman, H.A. Shelanski, and P. J. Weiser, Telecommunications Law and Policy, 

Carolina Academic Press, 2006 (Second Edition). 

“An Analysis of the Network-Affiliate Relationship in Television.” With S. Preskill. Network Inquiry 

Special Staff, Federal Communications Commission, 1980. 

“The Value of Television Time: Some Problems and Attempted Solutions: Reply.” Southern 

Economic Journal, 1978. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 43 of 61
Stanley M. Besen 

Charles River Associates Page 7 

“Copyright Liability for Cable Television: Compulsory Licensing and the Coase Theorem.” With 

W. Manning and B. Mitchell. Journal of Law and Economics, April 1978. Reprinted in R. Towse and 

R.W. Holzhauer (eds.), The Economics of Intellectual Property, Edward Elgar, 2001. An earlier version 

appeared as “Copyright Liability for Cable Television: Is Compulsory Licensing the Solution?” The 

RAND Corporation, R-2023-MF, 1977. 

“Deregulating Telecommunications—Sorting Out Mixed Signals.” Regulation, 1978. 

“The Value of Television Time.” Southern Economic Journal, January 1976. An earlier version 

appeared as “The Value of Television Time and the Prospects for New Stations,” The RAND 

Corporation, R-1328-MF, 1973. 

“Watergate and Television: An Economic Analysis.” With B. Mitchell. Communications Research, 

July 1976. An earlier version appeared as The RAND Corporation, R-1712-MF, 1975. 

“Market Size, VHF Allocations, and the Viability of Television Stations.” With P. Hanley. Journal of 

Industrial Economics, 1975. 

“The Economics of the Network-Affiliate Relationship: Reply.” With R. Soligo. American Economic 

Review, 1975. 

“The Economics of the Cable Television ‘Consensus.’” Journal of Law and Economics, 1974. 

“Education and Productivity in United States Manufacturing: Some Cross-Section Evidence.” 

Journal of Political Economy, 1973. 

“The Economics of the Network-Affiliate Relationship in the Television Broadcasting Industry.” With 

R. Soligo. American Economic Review, 1973. 

“Elasticities of Substitution and Returns to Scale in United States Manufacturing: Some Additional 

Evidence.” Southern Economic Journal, 1967. 

“Cost Effectiveness Analysis for the ‘War on Poverty.’” With A. Fechter and A. Fisher, in T. Goldman 

(ed.). Cost-Effectiveness Analysis: New Approaches in Decision-Making. New York: Praeger, 1967. 

“An Empirical Analysis of Commercial Bank Lending Behavior.” Yale Economic Essays, 1965. 

Congressional testimony 

Witness, Subcommittee on Intellectual Property and Judicial Administration, Committee on the 

Judiciary, US House of Representatives, 1991. Prepared statement and testimony appear in 

Intellectual Property and International Issues, 102nd Congress, 1st Session. 

Witness, Subcommittee on Telecommunications and Finance, Committee on Energy and 

Commerce, US House of Representatives, 1990. Prepared statement and testimony appear in 

Cable Television Regulation (Part 2), 101st Congress, 2nd Session. 

Witness, Subcommittee on Telecommunications, Consumer Protection, and Finance, Committee on 

Energy and Commerce, US House of Representatives, 1983. Prepared statement and testimony 

appear in Options for Cable Legislation, 98th Congress, 1st Session. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 44 of 61
Stanley M. Besen 

Charles River Associates Page 8 

Witness, Subcommittee on Communications, Committee on Commerce, Science, and 

Transportation, US Senate, 1982. Prepared statement and testimony appear in Cable Television 

Regulation, 97th Congress, 2nd Session. 

Witness, Subcommittee on Telecommunications, Consumer Protection, and Finance, Committee on 

Energy and Commerce, US House of Representatives, 1981. Prepared statement and testimony 

appear in Status of Competition and Deregulation in the Telecommunications Industry, 97th 

Congress, 1st Session. 

Witness, Subcommittee on General Oversight and Minority Enterprise, Committee on Small 

Business, US House of Representatives, 1980. Prepared statement and testimony appear in Media 

Concentration (Part 1), 96th Congress, 2nd Session. 

Witness, Subcommittee on Communications, Committee on Commerce, Science, and 

Transportation, US Senate, 1977. Prepared statement and testimony appear in Cable Television, 

95th Congress, 1st Session. 

Witness, Subcommittee on Communications, Committee on Interstate and Foreign Commerce, US 

House of Representatives, 1976. Prepared statement and testimony appear in Cable Television 

Regulation Oversight (Part 1), 94th Congress, 2nd Session. 

Other presentations 

“Regulating Intellectual (Property) Monopolies,” Australian Competition and Consumer Commission 

Conference on Revisiting the Rationale for Regulation, 2008. 

Panelist, P2P File-Sharing and Its Impact on Copyright Holders, Federal Trade Commission Public 

Workshop on Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues, 

December 16, 2004. 

Panelist, DOJ/FTC Hearings on Competition and Intellectual Property Law and Policy in the 

Knowledge-Based Economy, Session on Licensing Terms in Standards Activities, April 18, 2002. 

Panelist, Federal Communications Commission Roundtable on Media Ownership Policies, Session 

on Ownership Policies and Competition, October 29, 2001. 

Panelist, Federal Trade Commission Hearings on Global and Innovation-Based Competition, 

November 30, 1995. 

“The Economics of Performance Rights in Sound Recordings”, (with S.C. Salop), International 

Center for Art Economics (ICARE), International Conference on the Economics of Intellectual 

Property Rights, University of Venice, Ca’ Dolfin, Venice, October 6–8, 1994. 

Panelist, Session on “The Role of Competition in the Electronic Media,” Federal Trade Commission 

Symposium on Media Concentration, 1978. Comments reprinted in Federal Trade Commission, 

Bureau of Competition, Proceedings of the Symposium on Media Concentration, Volume I. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 45 of 61
Stanley M. Besen 

Charles River Associates Page 9 

Expert witness activities 

Expert Rebuttal Report of Stanley M. Besen, Ph.D., in TriStar Investors, Inc. v. American Tower 

Company et al, In the United States District Court for the Northern District of Texas, Dallas Division, 

Civil Action No: 3:12-CV-499, September 18, 2013. 

Expert Report of Stanley M. Besen, Ph.D., in TriStar Investors, Inc. v. American Tower Company et 

al, In the United States District Court for the Northern District of Texas, Dallas Division, Civil Action 

No: 3:12-CV-499, August 20, 2013. 

Expert Report of Stanley M. Besen, PhD, in Deseret Management Corporation v. United States of 

America, Case No. 09-273T in the United States Court of Federal Claims, December 28, 2010. 

Expert Report of Stanley M. Besen, PhD, in Deseret Management Corporation v. United States of 

America, Case No. 09-273T in the United States Court of Federal Claims, August 27, 2010. 

Declaration of Dr. Stanley M. Besen In Reply to Plaintiffs’ Amended Motion to Certify the 

Philadelphia Cluster Class, in Caroline Behrend et al. v. Comcast Corporation et al., Civil Action No. 

03-6604, May 6, 2009. 

Expert Report of Dr. Stanley M. Besen In Opposition to Plaintiffs’ Motion for Class Certification of 

the “Chicago Cluster,” in Caroline Behrend et al. v. Comcast Corporation et al., Civil Action No. 03-

6604, July 18, 2007. 

Expert Report of Dr. Stanley M. Besen In Opposition to Plaintiffs’ Motion for Class Certification of 

the “Philadelphia Cluster,” in Caroline Behrend et al. v. Comcast Corporation et al., Civil Action No. 

03-6604, November 9, 2006. 

Expert Report of Stanley M. Besen, filed before Minnesota Arbitration Panel in the Arbitration 

Proceeding, and testimony, April 18, 2001. In the Matter of Hubbard Broadcasting, Inc. v. CBS 

Broadcasting Inc. and Multimedia Holdings Corporation. 

Supplemental Expert Report of Stanley M. Besen filed before the United States District Court 

Southern District of New York on behalf of Turner Broadcasting et al., December 16, 1999. United 

States v. ASCAP: In the Matter of the Application of Turner Broadcasting System, Inc., et al., Civ. 

No. 13-95 (WCC). 

Expert Report of Stanley M. Besen filed before the United States District Court Southern District of 

New York on behalf of Turner Broadcasting et al., April 16, 1999. United States v. ASCAP: In the 

Matter of the Application of Turner Broadcasting System, Inc., et al., Civ. No. 13-95 (WCC).

Affidavit of Stanley M. Besen filed before the US District Court, Middle District of Florida, Tampa 

Division on behalf of Comcast Cablevision of West Florida, Inc., February 14, 1998. DeSoto

Broadcasting, Inc. as the General Partner of and on behalf of DeSoto-Channel 62 Associates, Ltd. 

v. Comcast Cablevision of West Florida, Inc., Case No. 96-1581-CIV-T-24A. 

Preliminary Expert Report of Stanley M. Besen filed before the US District Court, Middle District of 

Florida, Tampa Division on behalf of Comcast Cablevision of West Florida, Inc., February 5, 1998. 

DeSoto Broadcasting, Inc. as the General Partner of and on behalf of DeSoto-Channel 62 

Associates, Ltd. v. Comcast Cablevision of West Florida, Inc., Case No. 96-1581-CIV-T-24A.

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 46 of 61
Stanley M. Besen 

Charles River Associates Page 10 

Testimony of Stanley M. Besen before the Library of Congress, Copyright Arbitration Royalty Panel 

on behalf of the Motion Picture Association of America, August 15, 1995. In the Matter of 

Distribution of 1990, 1991, and 1992 Cable Royalty Funds.

Third Declaration of Stanley M. Besen filed on behalf of Turner Broadcasting System, Inc., et al., 

June 25, 1995. Turner Broadcasting System, Inc., et al. v. FCC. Civil Action No. 92-2247 (and 

Consolidated Civil Action Nos. 92-2292, 92-2492, 92-2495, 92-2558) (SFW, TPJ, SS).

Second Declaration of Stanley M. Besen filed on behalf of Turner Broadcasting System, Inc., et al., 

June 15, 1995. Turner Broadcasting System, Inc., et al. v. FCC. Civil Action No. 92-2247 (and 

Consolidated Civil Action Nos. 92-2292, 92-2492, 92-2495, 92-2558) (SFW, TPJ, SS).

Declaration of Stanley M. Besen filed on behalf of Turner Broadcasting System, Inc., et al., May 24, 

1995. Turner Broadcasting System, Inc., et al. v. FCC. Civil Action No. 92-2247 (and Consolidated 

Civil Action Nos. 92-2292, 92-2492, 92-2495, 92-2558) (SFW, TPJ, SS). 

Expert Report of Stanley M. Besen filed on behalf of Plaintiffs Turner Broadcasting System, Inc., et 

al., April 21, 1995. Turner Broadcasting System, Inc., et al. v. FCC. Civil Action No. 92-2247 (and 

Consolidated Civil Action Nos. 92-2292, 92-2492, 92-2495, 92-2558) (SFW, TPJ, SS).

Report of Stanley M. Besen and Testimony on behalf of McCaw Cellular Communications, Inc., 

February 7, 1995. Donald W. DePreist, et al. v. McCaw Cellular Communications, Inc., et al.

Affidavit of Stanley M. Besen filed before the United States District Court, Southern District of 

Indiana, Indianapolis Division on behalf of TCI of Indiana, Inc., August 2, 1994. Reporter Times, 

Inc., Plaintiff, v. TCI of Indiana, Inc. and Tele-Communications, Inc., Defendants, Cause No. IP 93-

1287 C. 

Testimony on Behalf of the Motion Picture Association of America et al., Copyright Royalty Tribunal 

1990 Cable Royalty Distribution Proceeding, August 16, 1993. 

Declaration of Stanley M. Besen In Opposition to Plaintiff’s Motion for Preliminary Injunction, April 

23, 1985, and testimony on behalf of the City of Sacramento, Pacific West Cable Company v. City 

of Sacramento, In the United States District Court in and for the Eastern District of California, 1987. 

Testimony of Stanley M. Besen on behalf of Program Suppliers before the Copyright Royalty Tribunal, 

1983 Cable Royalty Distribution Proceeding, November 4, 1985. 

Other selected consulting activities 

Why Restricting Participation in Spectrum Auctions Can Increase Bidder Participation, Increase 

Auction Revenues, and Increase Competition in Wireless Markets (with Serge X. Moresi and Steven 

C. Salop), filed on behalf of Sprint Nextel Corporation, March 12, 2013. In the Matter of Expanding 

the Economic and Innovation Opportunities of Spectrum Through Incentive Auction, GN Docket No. 

12-268.

Joint Reply Declaration of Steven C. Salop, Stanley M. Besen, Stephen D. Kletter, Serge X. Moresi, 

and John R. Woodbury filed before the Federal Communications Commission on behalf of Sprint 

Nextel, June 20, 2011. In the Matter of Applications of AT&T Inc. and Deutsche Telekom AG For 

Consent to Assign or Transfer Control of Licenses and Authorizations, WT Docket No. 11-65. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 47 of 61
Stanley M. Besen 

Charles River Associates Page 11 

Joint Declaration of Steven C. Salop, Stanley M. Besen, Stephen D. Kletter, Serge X. Moresi, and 

John R. Woodbury filed before the Federal Communications Commission on behalf of Sprint Nextel, 

May 31, 2011. In the Matter of Applications of AT&T Inc. and Deutsche Telekom AG For Consent to 

Assign or Transfer Control of Licenses and Authorizations, WT Docket No. 11-65. 

Declaration of Stanley M. Besen and Bridger M. Mitchell filed before the Federal Communications 

Commission on behalf of Time Warner Telecom, Inc., August 10, 2006. In the Matter of AT&T Inc. 

and BellSouth Corporation Applications for Approval of Transfer of Control, WC Docket No. 06-74. 

Declaration of Stanley M. Besen and John R. Woodbury filed before the Federal Communications 

Commission on behalf of the National Cable & Telecommunications Association, March 28, 2006. In 

the Matter of Implementation of Section 621 (a) of the Cable Communications Policy Act of 1984 as 

Amended by the Cable Television Consumer Protection and Competition Act of 1992, MB Docket 

No. 05-311. 

Joint declaration of Stanley M. Besen, Steven C. Salop and John R. Woodbury; Attachment B to, In 

re Applications of Nextel Communications, Inc., Transferor, and Sprint Corporation, Transferee, for 

Consent to the Transfer of Control of Entities Holding Commission Licenses and Authorizations 

Pursuant to Sections 214 and 310 (d) of the Communications Act, Before the Federal 

Communications Commission, February 8, 2005. 

Verified statement of Steven C. Salop, Kevin Neels, Larry A. Shughart, and Stanley M. Besen on 

behalf of Trinity Industries Before the Surface Transportation Board in TTX Company–Application 

for Approval of Pooling of Car Service with Respect to Flatcars, Docket No. 27590 (Sub-No. 3), April 

12, 2004. 

“An Economic Analysis of NOAA’s Draft Report Fair Market Value Analysis for a Submarine Cable 

Permit in National Marine Sanctuaries (August 2001). With P.J. DeGraba filed on behalf of Global 

Crossing Ltd., October 15, 2001. In the Matter of Fair Market Value Analysis for A Submarine Cable 

Permit in National Marine Sanctuaries, US Department of Commerce, National Oceanic and 

Atmospheric Administration, Docket No. 010712175-1175-01. 

“The Incentives of Cable Operators to Carry Multiple ISPs.” With P. J. DeGraba and J. R. 

Woodbury. December 1, 2000, To the Federal Communications Commission on behalf of The 

National Cable Television Association, In the Matter of Inquiry Concerning High-Speed Access to 

the Internet Over Cable and Other Facilities, GN Docket No. 00-185.

Declaration of Stanley M. Besen, Steven R. Brenner, and Christopher L. Cavanagh filed before the 

Federal Communications Commission on behalf of Sprint Corporation, June 21, 2000. In re 

Applications of Sprint Corporation, Transferor, and MCI WorldCom, Inc., Transferee, for Consent to 

Transfer Control of Corporations Holding Commission Licenses and Authorizations Pursuant to 

Sections 214 and 310 (d) of the Communications Act and Parts 1, 21, 24, 25, 63, 73, 78, 90, and 

101, FCC, CC Docket No. 99-333.

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 48 of 61
Stanley M. Besen 

Charles River Associates Page 12 

Declaration of Stanley M. Besen and Steven R. Brenner filed before the Federal Communications 

Commission on behalf of Sprint Corporation, March 20, 2000. In re Applications of Sprint 

Corporation, Transferor, and MCI WorldCom, Inc., Transferee, for Consent to Transfer Control of 

Corporations Holding Commission Licenses and Authorizations Pursuant to Sections 214 and 310 

(d) of the Communications Act and Parts 1, 21, 24, 25, 63, 73, 78, 90, and 101, FCC, CC Docket 

No. 99-333. 

Declaration of Stanley M. Besen and Steven R. Brenner filed before the Federal Communications 

Commission on behalf of Sprint Corporation, November 17, 1999. In re Applications of Sprint 

Corporation, Transferor, and MCI WorldCom, Inc., Transferee, for Consent to Transfer Control of 

Corporations Holding Commission Licenses and Authorizations Pursuant to Sections 214 and 310 

(d) of the Communications Act and Parts 1, 21, 24, 25, 63, 73, 78, 90, and 101, FCC, CC Docket 

No. 99-333. 

“An Economic Analysis of CLEC Access Pricing.” With J. P. Acton. Filed on behalf of Sprint 

Communications, October 28, 1999. Reply Comments of Sprint Corporation In the Matter of 

Provision of Directory Listing Information Under the Telecommunications Act of 1994, As Amended, 

CC Docket No. 99-273. 

“An Economic Analysis of the Effects of the AT&T-MediaOne Merger on Competition in the Supply 

and Distribution of Video Program Services: Response to the Critics.” September 17, 1999. With S. 

X. Moresi and J. R. Woodbury to the Federal Communications Commission on behalf of AT&T 

Corp. In the Matter of Applications for Transfer of Control of Licenses, MediaOne Group, Inc., 

Transferor To AT&T Corp., Transferee, CS Docket No. 99-251. 

“An Economic Analysis of Regulatory Takings and Just Compensation With an Application to Mobile 

Satellite Services,” With J. P. Acton. Filed on behalf of ICO Global Communications Services before 

the Federal Communications Commission, June 16, 1999. In the Matter of the FCC’s Proposed 

Policy for Compensating Parties Displaced by the Entry of Mobile Satellite Services. 

“A Competitive Analysis of the Japan-US Cable Network.” With S. R. Brenner. To the Federal 

Communications Commission on behalf of Japan-US Cable Network, March 8, 1999. In the Matter 

of AT&T Corp., et al., Joint Application for a License to Land and Operate a Submarine Cable 

Network Between the United States and Japan, File No. SCL-LIC-19981117-00025. 

“An Economic Analysis of the Proposed Bell Atlantic/GTE Merger.” With J. R. Woodbury and P. 

Srinagesh. To the Federal Communications Commission on behalf of Sprint Communications 

Company, L.P., November 23, 1998. In the Matter of GTE Corporation, Transferor, and Bell Atlantic 

Corporation, Transferee, for Consent to Transfer of Control, Application for Transfer of Control, 

Public Interest Statement. 

“Standard Setting for Digital Radio.” With J. M. Gale. To the Federal Communications Commission 

on behalf of USA Digital Radio Partners, L.P., October 7, 1998. Petition for Rulemaking In the 

Matter of Amendment of Part 73 of the Commission’s Rules to Permit the Introduction of Digital 

Audio Broadcasting in the AM and FM Broadcast Services.

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 49 of 61
Stanley M. Besen 

Charles River Associates Page 13 

“An Economic Analysis of the Proposed SBC/Ameritech Merger.” With J. R. Woodbury and P. 

Srinagesh. To the Federal Communications Commission on behalf of Sprint Communications 

Company, L.P., October 14, 1998. In the Matter of the Application for Consent of to the Transfer of 

Control of Licenses and Section 214 Authorization from Ameritech Corporation to SBC 

Communications, Inc. 

Declaration of Stanley M. Besen and R. Craig Romaine filed before the Federal Communications 

Commission on behalf of Sprint Corporation, September 4, 1998. In the Matter of Implementation of 

the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 

1996, CC Docket No. 96-128. 

“A Response to Ameritech’s New Media’s ‘Allegations of a Price Squeeze’ by Vertically Integrated 

Cable Operators.” With J. R. Woodbury. To the Federal Communications Commission on behalf of 

Tele-Communications, Inc., September 3, 1998. In re Comments of Ameritech New Media, Inc., 

Filed in MM Docket No. 92-264 and CS Docket No. 98-82 (August 14, 1998).

“Comments on Dertouzos and Wildman, ‘Programming Access and Effective Competition in Cable 

Television.’” With J. R. Woodbury. To the Federal Communications Commission on behalf of TeleCommunications, Inc., September 3, 1998. In re Comments of Ameritech New Media, Inc., Filed in 

MM Docket No. 92-264 and CS Docket No. 98-82 (August 14, 1998). 

“An Economic Analysis of the Effects of Partial Ownership Interests in Cable Systems.” With J. R. 

Woodbury, D. P. O’Brien, and S. X. Moresi. To the Federal Communications Commission on behalf 

of Tele-Communications, Inc., August 14, 1998. FCC Notice of Proposed Rulemaking In the Matter 

of Implementation of the Cable Television Consumer Protection and Competition Act of 1992: 

Review of the Commission’s Cable Attribution Rules, CS Docket No. 98-82 (released June 26, 

1998). 

“An Economic Analysis of the FCC’s Cable Ownership Restrictions.” With J. R. Woodbury. To the 

Federal Communications Commission on behalf of Tele-Communications, Inc., August 14, 1998. 

FCC Memorandum Opinion and Order on Reconsideration and Further Notice of Proposed 

Rulemaking In the Matter of Implementation of Section 11(c) of the Cable Television Consumer 

Protection and Competition Act of 1992: Horizontal Ownership Limits, MM Docket No. 92-264 

(released June 26, 1998).

“An Economic Analysis of the Efficiency Benefits from Newspaper-Broadcast Station CrossOwnership.” With D. P. O’Brien. To the Federal Communications Commission on behalf of 

Chronicle Publishing and Gannett Co., Inc., July 21, 1998. In the Matter of 1998 Biennial Regulatory 

Review–Review of the Commission’s Broadcast Ownership Rules and Other Rules Adopted 

Pursuant to Section 202 of the Telecommunications Act of 1996.

“A Further Analysis of the Effects of Cable Diversion, Premium Service Buy Rates, and Volume 

Discounts on Primestar’s Competitive Incentives: A Response to Dr. Rosston.” With S. C. Salop, J. 

R. Woodbury, and E. J. Murdoch. To the Federal Communications Commission on behalf of 

PRIMESTAR Partners, L.P., May 19, 1998. In re Application of MCI Telecommunications 

Corporation and PRIMESTAR LHC, INC. For Consent to Assignment of Direct Broadcast Satellite 

Authorization. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 50 of 61
Stanley M. Besen 

Charles River Associates Page 14 

“An Economic Analysis of the Impact of the WorldCom-MCI Merger on the Provision of Internet 

Backbone Services.” With J. R. Woodbury and P. Srinagesh. To the Federal Communications 

Commission and the European Commission on behalf of Sprint Corporation, April 7, 1998. In re 

Application of WorldCom, Inc. and MCI Communications Corporation for Transfer of Control of MCI 

Communications Corporation to WorldCom, Inc., FCC CC Docket No. 97-211.

“A Comparison of Primestar’s Costs with Those of a Standalone Entrant.” With Steven C. Salop, J. 

R. Woodbury, and E. J. Murdoch. To the Federal Communications Commission on behalf of 

PRIMESTAR Partners, L.P., March 31, 1998. In re Application of MCI Telecommunications 

Corporation and PRIMESTAR LHC, INC. For Consent to Assignment of Direct Broadcast Satellite 

Authorization. 

“An Economic Analysis of Primestar’s Competitive Behavior and Incentives: Reply to the 

Oppositions.” With S. C. Salop, J. R. Woodbury, and E. J. Murdoch. To the Federal 

Communications Commission on behalf of PRIMESTAR Partners, L.P., February 20, 1998. In re 

Applications of TCI Satellite Entertainment, Inc. and PRIMESTAR, Inc. For Transfer of Control of 

TEMPO Satellite, Inc. and MCI Telecommunications Corporation and PRIMESTAR LHC, INC. For 

Consent to Assignment of Direct Broadcast Satellite Authorization, File Nos. 91-SAT-TC-97 and 

106-SAT-AL-97, respectively. 

“An Economic Analysis of Primestar’s Competitive Behavior and Incentives.” With S. C. Salop, J. R. 

Woodbury, and E. J. Murdoch. To the Federal Communications Commission on behalf of 

PRIMESTAR Partners, L.P., January 7, 1998. In Applications of TCI Satellite Entertainment, Inc. 

and PRIMESTAR, Inc. For Transfer of Control of TEMPO Satellite, Inc. and MCI 

Telecommunications Corporation and PRIMESTAR LHC, INC. For Consent to Assignment of Direct 

Broadcast Satellite Authorization, File Nos. 91-SAT-TC-97 and 106-SAT-AL-97, respectively. 

Declaration of Stanley M. Besen filed before the Federal Communications Commission on behalf of 

Fox/Liberty Networks, December 19, 1997. Program Access Complaint In the Matter of EchoStar 

Communications Corporation, Complainant v. Fox/Liberty Networks, LLC, FX Networks, 

Defendants, November 24, 1997. 

Declaration of Stanley M. Besen filed before the Federal Communications Commission on behalf of 

Fox Sports Direct, December 10, 1997. Program Access Complaint In the Matter of EchoStar 

Communications Corporation, Complainant v. Fox/Liberty Networks LLC, Fox Sports LLC and Fox 

Sports Direct, Defendants, October 27, 1997. 

Declaration of Stanley M. Besen filed before the Federal Communications Commission on behalf of 

Rainbow Media Holdings, November 24, 1997. Program Access Complaint in the Matter of 

EchoStar Communications Corporation, Complainant, v. Rainbow Media Holdings, Inc. and 

Rainbow Programming Holdings, Inc., Defendants, October 14, 1997. 

“A Further Economic Analysis of the Commercial Availability of ‘Navigation Devices’ Used in 

Multichannel Video Programming Systems.” With J. M. Gale. To the Federal Communications 

Commission on behalf of General Instrument Corporation, June 23, 1997. In the Matter of 

Implementation of Section 304 of the Telecommunications Act of 1996, Commercial Availability of 

Navigation Devices, CS Docket No. 97-80. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 51 of 61
Stanley M. Besen 

Charles River Associates Page 15 

“An Economic Analysis of the Competitive Effects of TCI’s Proposed Expanded Ownership Interest 

in HSNI.” With D. P. O’Brien. To the Federal Communications Commission on behalf of TeleCommunications, Inc., June 20, 1997. Memorandum Opinion and Order and Notice of Apparent 

Liability, In re Applications of Roy M. Speer and Silver Management Company, Adopted June 6, 

1996, Released June 14, 1996.

“An Economic Analysis of the Commercial Availability of ‘Navigation Devices’ Used in Multichannel 

Video Programming Systems.” With J. M. Gale. To the Federal Communications Commission on 

behalf of General Instrument Corporation, May 16, 1997. In the Matter of Implementation of Section 

304 of the Telecommunications Act of 1996, Commercial Availability of Navigation Devices, CS 

Docket No. 97-80. 

“The Impact of the FCC’s Leased Access Proposal on Cable Television Program Services.” With E. 

J. Murdoch. To the Federal Communications Commission on behalf of Tele-Communications, Inc., 

May 15, 1996. FCC, Order on Reconsideration of the First Report and Order and Further Notice of 

Proposed Rulemaking, In the Matter of Implementation of Sections of the Cable Television and 

Consumer Protection and Competition Act of 1992: Rate Regulation, Leased Commercial Access, 

MM Docket No. 92-266, CS Docket No. 96-60, Adopted: March 21, 1996, Released: March 29, 

1996.

“An Economic Analysis of the FCC’s Cable Leased Access Proposal.” With E. J. Murdoch. To the 

Federal Communications Commission on behalf of Tele-Communications, Inc., May 15, 1996. FCC, 

Order on Reconsideration of the First Report and Order and Further Notice of Proposed 

Rulemaking, In the Matter of Implementation of Sections of the Cable Television and Consumer 

Protection and Competition Act of 1992: Rate Regulation, Leased Commercial Access, MM Docket 

No. 92-266, CS Docket No. 96-60, Adopted: March 21, 1996, Released: March 29, 1996. 

Affidavit of Stanley M. Besen, filed before the Federal Communications Commission on behalf of 

the Cable News Network, March 18, 1996. Complaints for Price Discrimination and Unfair Practices 

brought by Turner Vision, Inc., Consumer Satellite Systems, Inc., Satellite Receivers, Ltd., and 

Programmers Clearing House, Inc., v. Cable News Network, Inc., filed February 1, 1996. 

“A Game-Theoretic Analysis of the FCC’s Proposed Reciprocity Rule.” With J. M. Gale. To the 

Federal Communications Commission on behalf of Sprint Communications Company L.P., April 11, 

1995. In the Matter of Market Entry and Regulation of Foreign-Affiliated Entities, IB Docket No. 95-

22, RM-8355, RM-8392. 

Affidavit of Stanley M. Besen, Robert J. Larner, and E. Jane Murdoch filed before the Federal 

Communications Commission, February 23, 1995. In the Matter of the Petition of the People of the 

State of California and the Public Utilities Commission of the State of California to Retain State 

Regulatory Authority Over Intrastate Cellular Service Rates. 

“Concentration, Competition, and Performance in the Mobile Telecommunications Services Market,” 

Appendix to Comments of GTE Mobilnet September 9, 1994 In the Matter of Equal Access and 

Interconnection Obligations Pertaining to Commercial Mobile Radio Services, Federal 

Communications Commission CC Docket No. 94-54. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 52 of 61
Stanley M. Besen 

Charles River Associates Page 16 

Report of Charles River Associates in the Matter of the Petition of the People of the State of 

California and the Public Utilities Commission of the State of California to Retain State Regulatory 

Authority Over Intrastate Cellular Service Rates. With R. J. Larner and E. J. Murdoch. To the 

Federal Communications Commission on behalf of the Cellular Telecommunications Industry 

Association, September 19, 1994. FCC GN Docket No. 93-252, In the Matter of the Petition of the 

People of the State of California and the Public Utilities Commission of the State of California to 

Retain State Regulatory Authority over Intrastate Cellular Service Rates, August 8, 1994. 

“A Competitive Markup Approach to Establishing Rates When Adding Cable Program Services,” 

Appendix to Comments of Tele-Communications, Inc. June 29, 1994. With J.R. Woodbury. In the 

Matter of Implementation of Sections of the Cable Television Consumer Protection and Competition 

Act of 1992, Rate Regulation, Fifth Notice of Proposed Rulemaking. 

“Results of a Survey of Commercial Rates Charged by Overbuilt Cable Systems,” Appendix to 

Comments of Tele-Communications, Inc. June 29, 1994. With J.R. Woodbury. In the Matter of 

Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 

1992, Rate Regulation, Fifth Notice of Proposed Rulemaking. 

Affidavit of Stanley M. Besen filed before the District of Columbia Office of Cable Television on 

behalf of District Cablevision, January 4, 1994. In the Matter of Benchmark Cable Rate Regulation. 

“An Antitrust Analysis of the Market for Mobile Telecommunications Services,” Appendix A to 

Petition for Reconsideration of the Cellular Telecommunications Industry Association. December 8, 

1993. With W.B. Burnett. In the Matter of Amendment of the Commission’s Rules to Establish New 

Personal Communications Services. 

“An Analysis of the FCC’s Proposed Cable Cost-of-Service Backstop,” Attachment A to Comments 

of Tele-Communications, Inc. August 25, 1993. With J. R. Woodbury. Implementation of Sections of 

the Cable Television Consumer Protection and Competition Act of 1992, Rate Regulation. 

“A Further Analysis of the FCC’s Cable Television Benchmark Rates,” Attachment to Reply 

Comments of Tele-Communications, Inc. July 2, 1993. With J.R. Woodbury. Implementation of 

Sections of the Cable Television Consumer Protection and Competition Act of 1992, Rate 

Regulation. 

“An Analysis of the FCC’s Cable Television Benchmark Rates,” Appendix to Comments of TeleCommunications, Inc. June 17, 1993. With J.R. Woodbury. Implementation of Sections of the Cable 

Television Consumer Protection and Competition Act of 1992, Rate Regulation, Further Notice of 

Proposed Rulemaking. 

“An Economic Analysis of the FCC’s Proposed Cable Ownership Restrictions,” Attachment to 

Comments of Tele-Communications, Inc. February 9, 1993. With S.R. Brenner and J.R. Woodbury.

In the Matter of Implementation of Sections 11 and 13 of the Cable Television Consumer Protection 

and Competition Act of 1992, Horizontal and Vertical Ownership Limits, Cross-Ownership 

Limitations and Anti-trafficking Provisions. 

“The Cellular Service Industry: Performance and Competition,” Appendix to Reply Comments of the 

Cellular Telecommunications Industry Association. January 1993. With R.J. Larner and J. Murdoch. 

In the Matter of Amendment of the Commission’s Rules to Establish New Personal Communications 

Services. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 53 of 61
Stanley M. Besen 

Charles River Associates Page 17 

“An Analysis of Cable Television Rate Regulation,” Attachment to Comments of TeleCommunications, Inc. January 27, 1993. With S.R. Brenner and J.R. Woodbury. Implementation of 

Sections of the Cable Television Consumer Protection and Competition Act of 1992, Rate 

Regulation. 

“Exclusivity and Differential Pricing for Cable Program Services,” Attachment to Comments of TeleCommunications, Inc. January 25, 1993. With S.R. Brenner and J.R. Woodbury. Implementation of 

Sections of the Cable Television Consumer Protection and Competition Act of 1992, Development 

of Competition and Diversity in Video Programming Distribution and Carriage. 

“An Economic Analysis of Entry by Cellular Operators into Personal Communications Services,” 

Attachment A to Comments of the Cellular Telecommunications Industry Association. November 

1992. With R.J. Larner and J. Murdoch. In the Matter of Amendment of the Commission’s Rules to 

Establish New Personal Communications Services. 

Statement of Stanley M. Besen on behalf of the National Cable Television Association, Federal 

Communications Commission. August 3, 1989. Policy and Rules Concerning Rates for Dominant 

Carriers, CC Docket No. 87-313. 

Declaration of Stanley M. Besen on behalf of Sunbeam Television Corporation, Federal 

Communications Commission. March 19, 1987. In re Application of General Electric Property 

Management Company For Transfer of Control of WBC Associates, L.P. et al. 

Declaration of Stanley M. Besen, on behalf of Turner Broadcasting System, Inc., Federal 

Communications Commission. June 18, 1985. In re Applications of Turner Broadcasting System, 

Inc. For Transfer of Control of CBS Inc. 

Statement of Stanley M. Besen on behalf of the American Telephone and Telegraph Company, 

Federal Communications Commission. June 4,1984. In the Matter of Long-Run Regulation of 

AT&T’s Basic Domestic Interstate Service, CC Docket No. 83-1147. 

Economic Analysis of the Showtime/The Movie Channel Joint Venture, submitted to the United 

States Department of Justice on behalf of the proposed Joint Venture. April 4, 1983. With R. G. Noll, 

S. R. Brenner, and D. W. Webbink. 

“An Economic Analysis of the Hughes Satellite Transponder Sale Proposal,” submitted on behalf of 

Home Box Office, Inc., Federal Communications Commission. March 15, 1982. In the Matter of 

Domestic Fixed-Satellite Transponder Sales, CC Docket No. 82-45. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 54 of 61
Appendix B: Materials Relied On 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 55 of 61
1 

Legal Filings 

Third Amended Class Action Complaint for Violations of the Sherman Antitrust Act, in Caroline 

Behrend et al., v. Comcast Corporation, et al., In the United States District Court for the Eastern 

District of Pennsylvania, May 23, 2006. 

Expert Reports and Declarations 

Williams, Michael A. (2013, August 19). “Second Supplemental Expert Declaration of Michael 

A. Williams, Ph.D., in Caroline Behrend, et al. v. Comcast Corporation, et al., in the United 

States District Court for the Eastern District of Pennsylvania.” 

Williams, Michael A. (2009, September 11). “Supplemental Expert Declaration of Michael A. 

Williams, Ph.D., in Caroline Behrend, et al. v. Comcast Corporation, et al., in the United States 

District Court for the Eastern District of Pennsylvania.” 

Williams, Michael A. (2009, May 11). “Expert Reply Declaration of Michael A. Williams, 

Ph.D., in Caroline Behrend, et al. v. Comcast Corporation, et al., in the United States District 

Court for the Eastern District of Pennsylvania.” 

McClave, James T. (2013, August 19). “Class Re-Certification Report of Dr. James T. McClave, 

in Caroline Behrend et al., v. Comcast Corporation, et al., In the United States District Court for 

the Eastern District of Pennsylvania.” 

Singer, H. “Expert Declaration of Dr. Hal Singer, Caroline Behrend et al., v. Comcast 

Corporation, et al., Civil Action No. 03-6604, United States District Court for the Eastern 

District of Pennsylvania.” 

FCC Documents 

Federal Communications Commission. (Adopted: 2001, December 27, Released: 2002, January 

14). “Eighth Annual Report In the Matter of Annual Assessment of the Status of Competition in 

the Market for the Delivery of Video Programming.” (CS Docket No. 01-129). Available at

hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-389A1.pdf, viewed on January 10, 2014. 

Federal Communications Commission. (Adopted: 2002, December 23, Released: 2002, 

December 31). “Ninth Annual Report In the Matter of Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video Programming” (MB Docket No. 02-145). 

Available at hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-338A1.pdf, viewed on 

January 10, 2014. 

Federal Communications Commission. (Adopted: 2007, November 27, Released: 2009, January 

16). “Thirteenth Annual Report In the Matter of Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video Programming” (MB-Docket No. 06-189). 

Available at hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-206A1.pdf, viewed on 

January 10, 2014. 

Federal Communications Commission. (Adopted: 2006, December 20, Released: 2007, March 

5). “Report and Order and Further Notice of Proposed Rulemaking, In the Matter of 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 56 of 61
2 

Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as 

amended by the Cable Television Consumer Protection and Competition Act of 1992” (MB 

Docket No. 05-311). Available at www.mhcrc.org/docs/ops_FCCCFAR.pdf, viewed on January 

10, 2014. 

Federal Communications Commission. (Adopted: 1998, July 31, Released: 1998, July 31). 

“Memorandum Opinion and Order In the Matter of RCN Telecom Services of New Jersey, Inc., 

Certification to Operate an Open Video System.” Available at

transition.fcc.gov/Bureaus/Cable/Orders/1998/da981530.txt, viewed on January 10, 2014. 

Federal Communications Commission. (Adopted: 1999, September 1, Released: 1999, 

September 1). “Memorandum Opinion and Order In the Matter of RCN Telecom Services of 

Washington, Inc., Certification to Operate an Open Video System.” Available at

transition.fcc.gov/Bureaus/Cable/Orders/1999/da991772.txt, viewed on January 10, 2014. 

Federal Communications Commission. (Adopted: 2000, February 4, Released: 2000, February 

7). “Memorandum Opinion and Order In the Matter of RCN Telecom Services of Oregon, Inc., 

Certification to Operate an Open Video System.” 

Federal Communications Commission. (Adopted: 2012, April 6, Released: 2012, April 9). 

“Memorandum Opinion and Order, In the Matter of Petition of the City of Boston, 

Massachusetts, For Recertification to Regulate the Basic Cable Service Rates of Comcast Cable 

Communications, LLC (CUID MA0182),” (CSR 8488-R). Available at 

hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-553A1.pdf, viewed on January 10, 2014. 

Federal Communications Commission. “Archived Filings for Certification of Open Video 

Systems.” Available at www.fcc.gov/encyclopedia/archived-filings-certification-open-videosystems, viewed on November 26, 2013. 

Federal Communications Commission. “FCC Cable Communities Registered.” Available at

www.fcc.gov/encyclopedia/cable-communities-registered-fcc, viewed on November on 26, 

2013. 

“Initial Comments of RCN Corporation In the Matter of Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video Programming.” (2001, August 3). (CS 

Docket No. 01-129).

“Comments of the Greater Metro Telecommunications Consortium, the Rainier Communications 

Commission, Howard County, Maryland, the Cities of Bellevue and Olympia, Washington, and 

the Washington Association of Telecommunications Officers and Advisors before the Federal 

Communications Commission In the Matter of Implementation of Section 62l(a)(l) of the Cable 

Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection 

and Competition Act of 1992.” (2006, February 13). (MB Docket No. 05-311). Available at

www.watoa.org/FCC_Franchise_Comments.pdf, viewed on January 10, 2014. 

Bates Stamped Documents 

COM-PA0982329-37. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 57 of 61
3 

COM-PA1059444-51. 

COM-PA2002234-335. 

RCN0001007. 

SEC Filings 

RCN Corp., Form 10-K Filing for the fiscal year ended December 31, 2000. 

RCN Corp., Form 10-K Filing for the fiscal year ended December 31, 2001. 

RCN Corp., Form 10-K Filing for the fiscal year ended December 31, 2004. 

Knology, Inc., Form 10-K Filing for the fiscal year ended December 31, 2002. 

Knology, Inc., Form 10-K Filing for the fiscal year ended December 31, 2004. 

Local Franchise Agreements and Reports 

“Open Video System Agreement between The City of New York and RCN Telecom Services of 

New York, Inc.” (1997, December 23). Available at

www.nyc.gov/html/doitt/downloads/pdf/rcn_franchise_agreement.pdf, viewed on January 10, 

2014. 

Town of Mount Pleasant. (1999, March 9). “Knology Cable Franchise Ordinance and Knology 

Telecommunications Franchise Ordinance.” Available at 

www.secinfo.com/dsVsf.63K9.b.htm#16thPage, viewed on January 13, 2014. 

The City of San Diego, Manager’s Report. (2000, October 18). “Grant of Competitive Cable 

Television Franchise Agreement with RCN Telecom Services.” Available at 

docs.sandiego.gov/reportstocouncil/2000/00-214.wpd.pdf, viewed on January 10, 2014. 

“Cable Television Franchise Agreement Between The City of Colorado Springs and 

WideOpenWest Colorado, LLC.” (2001, June 22). Available at

www.springsgov.com/doccenter/internalservices/ wideopenwestcablefranchiseagreement.pdf, 

viewed on January 9, 2014. 

“Report To the Honorable Mayor and City Council From the City Manager of the City of 

Redwood City, Amend RCN Franchise Agreement.” (2004, September 13). Available at 

rwcteens.org/government/council/packets/2004/0913/Reg_040913-6-4C.pdf, viewed on January 

10, 2014. 

“Amendment No. 1 to Cable System Franchise Agreement between the City of Redwood City 

and RCN Telecom Services, Inc.” (2004, September 21). 

City and County of Denver, Office of the Auditor. (2006, January). “Champion Broadband, 

LLC Cable Franchise Agreement Compliance Audit.” Available at www.denvergov.org/Portals/ 

741/documents/Audits2006/Champion%20Broadband,%20LLC.pdf, viewed on January 13, 

2014. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 58 of 61
4 

City of Boston Department of Innovation & Technology. (2010, July 15). “Report on the 

Renewal and Transfer of the RCN-BecoCom Inc. Open Video System (OVS) Operating 

Agreement Between the City of Boston and ABRY Partners VI, L.P., Yankee Cable Acquisition, 

LLC.” Available at

www.cityofboston.gov/Images_Documents/Boston%20Report%20on%20RCN%20OVS%20Re

newal%20and%20Transfer%20to%20Yankee%20Cable%20ABRY%20Partners%20July%2020

10_tcm3-18924.pdf, viewed on January 10, 2014. 

Other 

Berg, C. (2000, December 16). “RCN Pulls Back on Plans for Growth.” The Morning Call. 

Available at articles.mcall.com/2000-12-16/business/3328168_1_rcn-mccourt-telephone-andinternet-services, viewed on January 10, 2014. 

Bird, A. (2011, January 7). “Knology expands service to Mount Pleasant.” The Post and 

Courier. Available at www.postandcourier.com/article/20110107/PC05/301079901, viewed on 

November 18, 2013. 

Botein, M. (2006). “Open Video Systems: Too Much Regulation Too Late?” Federal 

Communications Law Journal, Vol.58. 

Estrella, J. (2001, March 4). “Digital Access Pulls the Plug.” Multichannel News. Available at

www.multichannel.com/news-article/digital-access-pulls-plug/98802, viewed on November 19, 

2013. 

Ferrar, R. (2009, November 30). “Knoxville City Council Wants Report from Knology.” 

Knoxville News Sentinel. Available at www.knoxnews.com/news/2009/nov/30/councilmenwant-report-from-knology, viewed on November 18, 2013. 

Haugsted, L. (2002, March 10). “Capital Constraints Cripple WINfirst, Too.” Multichannel 

News. Available at www.multichannel.com/news-article/capital-constraints-cripple-winfirsttoo/93393, viewed on January 10, 2014. 

Hickman, H. (2008, February 20). “Knology to finish work.” Knoxville News Sentinel. 

Available at www.knoxnews.com/news/2008/feb/20/knology-finish-work, viewed on January 

14, 2014. 

Hofmeister, S. (2002, March 14). “Council’s Plan for Cable Competition Goes Bust.” Los 

Angeles Times. Available at articles.latimes.com/2002/mar/14/local/me-cable14, viewed on 

January 10, 2014. 

Horn, P. (2000, November 1). “Phila. Council Panel Questions RCN on Cable Plan.” 

Philadelphia Inquirer. Available at articles.philly.com/2000-11-01/business/25613267_1_rcnfranchise-areas-cable-franchise-contracts, viewed on January 10, 2014. 

Horn, P. (2000, December 12). “RCN Has Long-term Promise, Immediate Costs with Network 

the Telecom Firm Bundles Services for Residential Users. But Its Funds are Limited, and It May 

Scale Back its Goals.” The Philadelphia Inquirer. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 59 of 61
5 

Willig, Robert D. (2002). “Declaration of Dr. Robert D. Willig on Behalf of EchoStar 

Communications Corporation, General Motors Corporation, and Hughes Electronics 

Corporation, CS Docket No. 01-348.” 

Consolidated Communications. (2012, July 2). “Consolidated Communicates completes 

purchase of SureWest Communications.” Available at

www.consolidated.com/news/archive/2012/consolidated-communications-completes-purchaseof-surewest-communications, viewed on January 13, 2014. 

“Knology seeks Jefferson County franchise.” (2000, November 29). Business First. Available 

at www.bizjournals.com/louisville/stories/2000/11/27/daily23.html, viewed on November 20, 

2013. 

“RCN Corporation and Astound Broadband Close Sale of RCN’s San Francisco Assets.” (2007, 

March 14). Business Wire. Available at

www.businesswire.com/news/home/20070314005987/en/RCN-Corporation-AstoundBroadband-Close-Sale-RCNs#.UtA4MJ5dUk0, viewed on November 17, 2013. 

“RCN to build broadband network in Boston.” (1999, July 27). The Associated Press State & 

Local Wire. 

“SureWest acquires Winfirst assets.” (2002, July 15). Sacramento Business Journal. Available 

at www.bizjournals.com/sacramento/stories/2002/07/15/daily5.html?page=all, viewed on 

January 13, 2014. 

“Voters Approve WideOpenWest Franchises in Denver and Boulder.” (2000, August 9). 

PRNewswire. Available at

www.thefreelibrary.com/Voters+Approve+WideOpenWest+Franchises+in+Denver+and+Boulde

r.-a063969639, viewed on January 9, 2014. 

“WideOpenWest to Provide Tucson Service.” (2000, August 8). Denver Business Journal. 

Available at www.bizjournals.com/denver/stories/2000/08/07/daily11.html, viewed on January 

9, 2014. 

 “WOW Gets 2nd Texas Franchise.” (2000, May 28). Multichannel News. Available at

www.multichannel.com/news-article/wow-gets-2nd-texas-franchise/69229, viewed on January 9, 

2014. 

Advanced TV Factbook. Warren Communications News. Available at

www.advancedtvfactbook.com, viewed on December 11, 2013. 

National Cable and Television Association. “Industry Data: Top 25 Multichannel Video Service 

Customers (2012).” Available at www.ncta.com/industry-data, viewed on January 9, 2014. 

New York City Information Technology & Telecommunications. “Frequently Asked Questions: 

Open Video System.” Available at www.nyc.gov/html/doitt/html/faq/video.shtml, viewed on 

January 8, 2014. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 60 of 61
6 

RCN. “Where We Service.” Available at www.rcn.com/about-rcn/where-we-service, viewed on 

January 10, 2014. 

“WOW! Locations.” Available at www.wowway.com/home-map, viewed on November 24, 

2013. 

47 C.F.R. § 76.905. 

Case 2:03-cv-06604-JP Document 578 Filed 01/15/14 Page 61 of 61