The Tennis Channel, Inc. v. Comcast Cable Communications, LLC; File No. CSR-8258-P, 65323-65330 [2010-26766]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 204 (Friday, October 22, 2010)]
[Notices]
[Pages 65323-65330]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-26766]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 10-204; DA 10-1918]


The Tennis Channel, Inc. v. Comcast Cable Communications, LLC; 
File No. CSR-8258-P

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document designates a program carriage complaint for 
hearing before an Administrative Law Judge (``ALJ'') to resolve the 
factual disputes and to return an Initial Decision.

DATES: The Tennis Channel, Inc. (``The Tennis Channel'') and Comcast 
Cable Communications, LLC (``Comcast'') shall each file with the Chief, 
Enforcement Bureau and Chief ALJ, by October 15, 2010, its respective 
elections as to whether it wishes to proceed to Alternative Dispute 
Resolution (``ADR''). The hearing proceeding is suspended during this 
time. If one or both of the parties do not elect ADR, then the hearing 
proceeding will commence on October 18, 2010. In order to avail itself 
of the opportunity to be heard, The Tennis Channel and Comcast, in 
person or by their attorneys, shall each file with the Commission, by 
October 22, 2010, a written appearance stating that it will appear on 
the date fixed for hearing and present evidence on the issues specified 
herein.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact David Konczal, David.Konczal@fcc.gov, of the Media 
Bureau, Policy Division, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Hearing Designation 
Order and Notice of Opportunity for Hearing for Forfeiture, DA 10-1918, 
adopted and released on October 5, 2010. The full text of this document 
is available for public inspection and copying during regular business 
hours in the FCC Reference Center, Federal Communications Commission, 
445 12th Street, SW., CY-A257, Washington, DC 20554. This document will 
also be available via ECFS (https://www.fcc.gov/cgb/ecfs/). (Documents 
will be available electronically in ASCII, Word 97, and/or Adobe 
Acrobat.) The complete text may be purchased from the Commission's copy 
contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. 
To request this document in accessible formats (computer diskettes, 
large print, audio recording, and Braille), send an e-mail to 
fcc504@fcc.gov or call the Commission's Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis of the Order

I. Introduction

    1. By this Hearing Designation Order and Notice of Opportunity for 
Hearing for Forfeiture (``Order''), the Chief, Media Bureau 
(``Bureau''), pursuant to delegated authority, hereby designates for 
hearing before an ALJ the above-captioned program carriage complaint 
filed by The Tennis Channel against Comcast. The complaint alleges that 
Comcast, a vertically integrated multichannel video programming 
distributor (``MVPD''), discriminated against The Tennis Channel, a 
video programming vendor, on the basis of affiliation, with the effect 
of unreasonably restraining The Tennis Channel's ability to compete 
fairly, in violation of Section 616(a)(3) of the Communications Act of 
1934, as amended (``the Act''), and Section 76.1301(c) of the 
Commission's Rules. 47 U.S.C. 536(a)(3); 47 CFR 76.1301(c). The 
complaint arises from Comcast's denial of The Tennis Channel's request 
to be repositioned from a premium sports tier to a more broadly 
distributed programming tier.
    2. After reviewing The Tennis Channel's complaint, we find that The 
Tennis Channel has put forth sufficient evidence supporting the 
elements of its program carriage discrimination claim to establish a 
prima facie case. Below,

[[Page 65324]]

we review the evidence from The Tennis Channel's complaint establishing 
a prima facie case. We note that in the most recent program carriage 
decisions making a prima facie determination, the Bureau provided a 
detailed discussion of the defendant's counter-arguments to each of the 
claims made by the complainant. See Herring Broadcasting Inc., d/b/a 
WealthTV, et al., Memorandum Opinion and Hearing Designation Order, 73 
FR 65312, 65313-18, Nov. 3, 2008 (``WealthTV HDO''); NFL Enters. LLC v. 
Comcast Cable Communications, LLC, Memorandum Opinion and Hearing 
Designation Order, 73 FR 65312, 65319-23, Nov. 3, 2008 (``NFL 
Enterprises HDO''); TCR Sports Broadcasting Holding, LLP, d/b/a Mid-
Atlantic Sports Network v. Comcast Corp., Memorandum Opinion and 
Hearing Designation Order, 73 FR 65312, 65323-27, Nov. 3, 2008 (``MASN 
II HDO''). The Bureau did not follow this approach, however, in earlier 
program carriage cases. See TCR Sports Broadcasting Holding, L.L.P. v. 
Comcast Corp., Memorandum Opinion and Hearing Designation Order, 71 FR 
47222, Aug. 16, 2006 (``MASN I HDO''); Classic Sports Network, Inc. v. 
Cablevision Systems Corp., Memorandum Opinion and Hearing Designation 
Order, 12 FCC Rcd 10288 (CSB 1997) (``Classic Sports''). We believe the 
approach taken in MASN I HDO and Classic Sports is more appropriate for 
a prima facie determination, which requires the Bureau to assess the 
evidence set forth in the complaint. Moreover, providing a detailed 
discussion of the defendant's counter-arguments to each of the claims 
made by the complainant may incorrectly imply that the Bureau is taking 
a position on the merits of those arguments. While we do not summarize 
each of Comcast's counter-arguments below, our review of the existing 
record, including Comcast's Answer, makes clear that there are 
substantial and material questions of fact as to whether Comcast has 
engaged in conduct that violates the program carriage provisions of the 
Act and the Commission's rules.
    3. While we rule on a threshold procedural issue regarding 
application of the program carriage statute of limitations, we do not 
reach the merits on any of the other issues discussed below. Rather, 
the existing record, including Comcast's Answer, makes clear that there 
are substantial and material questions of fact as to whether Comcast 
has engaged in conduct that violates the program carriage provisions of 
the Act and the Commission's rules. We therefore initiate this hearing 
proceeding. We direct the Presiding Judge to develop a full and 
complete record and to conduct a de novo examination of all relevant 
evidence in order to make an Initial Decision.
    4. As set forth below, the following matters are not designated for 
the ALJ to resolve: (i) Whether The Tennis Channel has put forth 
evidence in its complaint sufficient to warrant designation of this 
matter for hearing; and (ii) whether The Tennis Channel's complaint was 
filed in accordance with the program carriage statute of limitations. 
As required by the Commission's Rules, to the extent Comcast seeks 
Commission review of our decision on these issues, such review, if any, 
shall be deferred until exceptions to the Initial Decision in this 
proceeding are filed. See 47 CFR 1.115(e)(3).

II. Background

    5. Section 616(a)(3) of the Act directs the Commission to establish 
rules governing program carriage agreements and related practices 
between cable operators or other MVPDs and video programming vendors 
that, among other things: ``prevent [an MVPD] from engaging in conduct 
the effect of which is to unreasonably restrain the ability of an 
unaffiliated video programming vendor to compete fairly by 
discriminating in video programming distribution on the basis of 
affiliation or nonaffiliation of vendors in the selection, terms, or 
conditions for carriage of video programming provided by such 
vendors.'' 47 U.S.C. 536(a)(3). In implementing this statutory 
provision, the Commission adopted Section 76.1301(c) of its rules, 
which closely tracks the language of Section 616(a)(3). See 47 CFR 
76.1301(c). The Commission has established specific procedures for the 
review of program carriage complaints. See 47 CFR 76.1302.
    6. While those procedures provide for resolution on the basis of a 
complaint, answer, and reply, the Commission expected that, in most 
cases, it would be unable to resolve carriage complaints solely on the 
basis of a written record. Program Carriage Second Report and Order, 58 
FR 60390, Nov. 16, 1993. Rather, it anticipated that the majority of 
complaints would require a hearing before an ALJ, given that alleged 
Section 616 violations typically involve contested facts and behavior 
related to program carriage negotiations. In such cases, where the 
complainant is found to have established a prima facie case but 
disposition of the complaint requires the resolution of factual 
disputes or extensive discovery, the parties can elect either ADR or an 
adjudicatory hearing before an ALJ. Pursuant to Section 76.7(g)(1) of 
the Commission's Rules, the Commission may refer to an ALJ entire 
proceedings or discrete issues arising from proceedings. See 47 CFR 
76.7(g)(1); see also 1998 Biennial Regulatory Review, 64 FR 6565, Feb. 
10, 1999. If the parties proceed to a hearing before an ALJ, the ALJ's 
Initial Decision is directly appealable to the Commission. 47 CFR 
1.276. The appropriate relief for violation of the program carriage 
provisions is determined on a case-by-case basis. Available sanctions 
and remedies include forfeiture and/or mandatory carriage and/or 
carriage on terms revised or specified by the Commission. For the 
purpose of our prima facie determination, we discuss below the factual 
bases for The Tennis Channel's claim of program carriage 
discrimination.
    7. The Tennis Channel is a national cable sports network that 
launched in May 2003 with a broad range of racquet-sport-related 
programming. The Tennis Channel is a video programming vendor as 
defined in Section 76.1300(e) of the Commission's Rules. See 47 CFR 
76.1300(e). The Tennis Channel states that, to foster its growth, it 
offered preferential terms to distributors, like Comcast, that agreed 
to carry the network before it had become well-established. The Tennis 
Channel asserts that, since its launch on Comcast systems, it has 
become the ``leading provider of 24/7 tennis programming'' and ``the 
only cable network in the nation dedicated to covering the sport.'' 
According to the network, in 2008, it offered more than 2,700 hours of 
worldwide event coverage, including major coverage of three of the four 
Grand Slam events--the Australian Open, the French Open, and Wimbledon. 
The Tennis Channel states that in 2009 it added the fourth Grand Slam 
event, the U.S. Open, to its programming, as well as other event 
coverage such as exclusive telecasts of every worldwide and U.S. Davis 
Cup and Fed Cup match. In addition to coverage of more than 70 top 
tennis tournaments worldwide, The Tennis Channel offers non-event 
content, including original lifestyle, instructional, and fitness 
series, specials, and short-form programs featuring the sport's most 
popular figures.
    8. Comcast is a multiple system cable operator with approximately 
24 million subscribers nationwide. Comcast is a multichannel video 
programming distributor, as defined in Section 76.1300(d) of the 
Commission's Rules. See 47 CFR 76.1300(d). Comcast serves customers in 
39 States and the District

[[Page 65325]]

of Columbia, and in 24 of the top 30 designated market areas 
(``DMAs''). A DMA is a local television market area designated by The 
Nielsen Company (formerly, Nielsen Media Research). There are 210 DMAs 
in the United States. In addition to its role as a programming 
distributor, Comcast is a programming supplier by virtue of its 
affiliation with several cable networks. Among other interests, 
Comcast's parent company holds a financial stake in the Golf Channel, 
the MLB Network, the NHL Network, NBA TV, and a variety of other 
national cable programming networks. Comcast's parent company also owns 
Versus, a national sports network that provides programming coverage of 
multiple sports, as well as a number of regional sports networks 
(``RSNs''). In general, Comcast carries the Golf Channel, Versus, and 
its affiliated RSNs on its widely distributed Expanded Basic/Digital 
Starter tier.
    9. In 2005, The Tennis Channel executed an affiliation agreement 
with Comcast that provided for carriage of the network on Comcast 
systems nationwide. The agreement did not specify the tier on which 
Comcast would carry the network. With limited exceptions, Comcast has 
carried The Tennis Channel on a premium sports tier, the ``Sports and 
Entertainment Package'' (``SEP''), since the parties executed their 
carriage agreement. A few Comcast systems initially launched The Tennis 
Channel on a digital basic tier, but relocated the network to the 
premium sports tier. Comcast currently carries The Tennis Channel on 
the premium sports tier in all of its systems nationwide except one.
    10. The Tennis Channel states that in early 2009, after it 
concluded strategic efforts to enhance the quality of its technical 
service and programming content, it proposed that Comcast reposition 
the network to a level of carriage that The Tennis Channel believed was 
justified given the network's expansion and service improvements. 
Following discussions between the parties in the spring of 2009, 
Comcast informed The Tennis Channel in June 2009 that it would not 
relocate the network to a more widely distributed programming tier. The 
Tennis Channel asserts that during the course of those discussions, 
Comcast indicated that it would retier The Tennis Channel only if the 
network offered a financial ``incentive'' to do so. Comcast states that 
it decided to keep The Tennis Channel on a sports tier because (i) 
increasing the network's distribution would increase Comcast's costs; 
(ii) no Comcast system expressed an interest in repositioning the 
network; and (iii) there was no indication of subscriber defections to 
another MVPD that carried the network more widely. Comcast states that 
it informed The Tennis Channel that it could attempt to seek broader 
distribution with individual Comcast systems on a market-by-market 
basis. Consequently, in December 2009, The Tennis Channel notified 
Comcast of its intention to file a program carriage complaint with the 
Commission, and brought its complaint shortly thereafter. Pursuant to 
Section 76.1302(b) of the Commission's Rules, The Tennis Channel 
provided its pre-filing notification to Comcast on December 10, 2009. 
The Tennis Channel filed its program carriage complaint with the 
Commission on January 5, 2010.

III. Discussion

    11. Based on our review of the complaint and as explained more 
fully below, we conclude that The Tennis Channel has established a 
prima facie case of program carriage discrimination pursuant to Section 
616(a)(3) of the Act and Section 76.1301(c) of the Commission's Rules. 
47 U.S.C. 536(a)(3); 47 CFR 76.1301(c). When filing a program carriage 
complaint, the video programming vendor carries the burden of proof to 
establish a prima facie case that the defendant MVPD has engaged in 
behavior prohibited by Section 616 and the Commission's implementing 
rules. In previous cases assessing whether a complainant has 
established a prima facie case of program carriage discrimination, the 
Bureau has considered whether the complaint contains sufficient 
evidence to support the elements of a program carriage discrimination 
claim: (i) The complainant is a video programming vendor as defined in 
Section 76.1300(e) of the Commission's Rules; (ii) the defendant is an 
MVPD as defined in Section 76.1300(d) of the Commission's Rules; (iii) 
the complainant programmer is similarly situated to a programmer 
affiliated with the defendant MVPD; (iv) the defendant MVPD has treated 
the complainant programmer differently from its similarly situated, 
affiliated programmer with respect to the selection, terms, or 
conditions for carriage; and (v) the defendant MVPD's discriminatory 
conduct has the effect of unreasonably restraining the ability of the 
complainant programmer to compete fairly. See 47 CFR 76.1302(c); 
WealthTV HDO, 73 FR 65312, 65312-18, Nov. 3, 2008; NFL Enterprises HDO, 
73 FR 65312, 65318-23, Nov. 3, 2008; MASN II HDO, 73 FR 65312, 65323-
29, Nov. 3, 2008; MASN I HDO, 71 FR 47222, Aug. 16, 2006; Hutchens 
Communications, Inc. v. TCI Cablevision of Georgia, Inc., Memorandum 
Opinion and Order, 9 FCC Rcd 4849, para. 27 (CSB 1994); see also 
Program Carriage Second Report and Order, 58 FR 60390, Nov. 16, 1993.
    12. With regard to the first and second factors above, the parties 
agree that Comcast is an MVPD and that The Tennis Channel is a video 
programming vendor as defined in the Commission's Rules. For purposes 
of the third factor, Comcast admits that it is affiliated with the Golf 
Channel and Versus. With respect to the remaining factors, we conclude 
that The Tennis Channel has put forth sufficient evidence in its 
complaint to establish a prima facie case that Comcast has engaged in 
unlawful discrimination in the ``selection of * * * video programming'' 
by declining to reposition the network to a more widely distributed 
programming tier, while carrying comparable affiliated networks on such 
a tier. 47 U.S.C. 536(a)(3). (As discussed below, The Tennis Channel 
does not contend that its existing affiliation agreement with Comcast 
contains discriminatory ``terms'' or ``conditions.'' The Tennis Channel 
claims that Comcast has impermissibly discriminated in its 
``selection'' of The Tennis Channel for placement on a sports tier 
while selecting its affiliated networks for placement on a more widely 
distributed programming tier. See NFL Enterprises HDO, 73 FR 65312, 
65318-23, Nov. 3, 2008 (program carriage complaint alleging that 
defendant impermissibly discriminated by selecting complainant for 
placement on sports tier while selecting affiliated networks for 
placement on a more widely distributed programming tier).) We do not 
reach the merits of this claim. Rather, we find that the existing 
record, including Comcast's Answer, makes clear that there are 
significant and material questions of fact warranting resolution at 
hearing. Because we are not ruling on the merits of The Tennis 
Channel's claims at this prima facie stage, we find it premature to 
address Comcast's arguments regarding the need to interpret Section 
616(a)(3) of the Act and Section 76.1301(c) of the Commission's Rules 
narrowly to protect Comcast's First Amendment rights.
A. Procedural Issues
    13. As a threshold matter, we reject Comcast's contention that The 
Tennis Channel's complaint is foreclosed as untimely filed under the 
program carriage statute of limitations. Pursuant to Section 76.1302(f) 
of the Commission's Rules, an aggrieved programmer has a one-year 
period in

[[Page 65326]]

which to file a program carriage complaint that commences upon the 
occurrence of one of three specified events. 47 CFR 76.1302(f). We find 
that the third of those triggering events--the provision of an 
aggrieved programmer's pre-filing notification pursuant to Section 
76.1302(b) of the Commission's Rules--is present in this case. See 47 
CFR 76.1302(f)(3). (We agree with Comcast that the limitations period 
in Section 76.1302(f)(2) of the Commission's Rules, which governs 
carriage offers unrelated to existing affiliation agreements, is 
inapplicable in this case.) Contrary to Comcast's assertions, nothing 
in the text of Section 76.1302(f)(3) limits the applicability of that 
provision to situations where the defendant ``unreasonably refuses to 
negotiate with [the] complainant.'' While Comcast notes that the rule 
now found at Section 76.1302(f)(3) formerly contained language limiting 
its applicability to refusals to negotiate, the Commission eliminated 
this language in 1994. See Program Carriage Second Report and Order, 58 
FR 60390, Nov. 16, 1993; Program Carriage Memorandum Opinion and Order, 
59 FR 43776, Aug. 25, 1994. Although Comcast contends that this 
language was eliminated to accommodate program carriage complaints 
filed by MVPDs and was not intended to otherwise alter the intent of 
this provision, the plain language of the rule allows a program 
carriage complaint to be filed within one year of the pre-filing 
notice, provided that the claim is not otherwise barred by one of the 
other two triggering events. WealthTV HDO, 73 FR 65312, 65316, Nov. 3, 
2008 (``the plain language of the Commission's rules provides that the 
statute of limitations is satisfied if the program carriage complaint 
is filed within one year of the pre-filing notice''). On its face, 
Section 76.1302(f)(3) arguably could be read to allow a complainant to 
file a program carriage complaint based on allegedly unlawful conduct 
that occurred years before the filing of the pre-filing notice provided 
the complaint was filed within one year of the pre-filing notice. We 
are not presented with such a case here. Comcast informed The Tennis 
Channel in June 2009 that it would not relocate the network to a more 
widely distributed programming tier. While Comcast states that it 
invited The Tennis Channel to seek broader distribution with individual 
Comcast systems on a market-by-market basis, it is undisputed that in 
June 2009 Comcast rejected The Tennis Channel's proposal that it be 
moved to a more widely distributed tier across Comcast's entire 
subscriber base. The Tennis Channel filed its program carriage 
complaint within one year of this allegedly discriminatory refusal to 
retier the Tennis Channel, as well as within one year of its pre-filing 
notice. Accordingly, we conclude that the complaint was timely filed 
pursuant to Section 76.1302(f)(3) of the Commission's Rules. 
(Similarly, in both NFL Enterprises HDO and MASN II HDO, the 
complainant filed its complaint within one year of the pre-filing 
notice as well as within one year of the alleged discriminatory act.)
    14. We disagree with Comcast that The Tennis Channel's complaint is 
barred by Section 76.1302(f)(1) of the rules, which establishes a one-
year period for the filing of a program carriage complaint that 
commences with the ``[execution of] a contract with [an MVPD] that a 
party alleges to violate one or more of the [program carriage] rules.'' 
47 CFR 76.1302(f)(1). The timeliness of The Tennis Channel's complaint 
is not an issue designated for resolution by the Presiding Judge. As 
required by the Commission's Rules, to the extent Comcast seeks 
Commission review of our decision on this issue, such review, if any, 
shall be deferred until exceptions to the Initial Decision in this 
proceeding are filed. See 47 CFR 1.115(e)(3).
    15. Although the parties executed their existing carriage agreement 
in 2005, The Tennis Channel does not claim that this agreement contains 
unlawfully discriminatory prices, terms, or conditions. Nor do the 
parties dispute that Comcast has abided by the explicit terms of the 
2005 agreement. The agreement at issue did not otherwise specify the 
tier on which Comcast would carry the network. Comcast thus has the 
discretion to carry The Tennis Channel to a greater number of 
subscribers than specified in the contract and on a more widely 
distributed tier than the premium sports tier on which Comcast 
currently carries The Tennis Channel. The gravamen of The Tennis 
Channel's complaint is that Comcast has refused to exercise its 
discretion to do so, while at the same time carrying its allegedly 
similar affiliated networks on a more widely distributed tier, and has 
thus failed to meet its obligation under Section 616(a)(3) of the Act 
and Section 76.1301(c) of the Commission's Rules to avoid 
discrimination on the basis of affiliation. It is this refusal, not the 
terms of the contract, which forms the basis for The Tennis Channel's 
complaint. As discussed above, The Tennis Channel establishes that this 
refusal to retier occurred in June 2009. The Tennis Channel filed its 
complaint within one year of this date, as well as within one year of 
the pre-filing notice.
    16. This interpretation is consistent with Bureau precedent 
defining the scope of the Commission's program carriage statute of 
limitations at the prima facie stage of review. See NFL Enterprises 
HDO, 73 FR 65312, 65320, Nov. 3, 2008 (prima facie determination); MASN 
II HDO, 73 FR 65312, 65324-25, Nov. 3, 2008 (prima facie 
determination). We note that both of these cases were settled before a 
decision on the merits by an ALJ or the Commission. While Comcast 
claims that these cases were wrongly decided, we disagree and find no 
reason to ignore or reverse this precedent. In NFL Enterprises HDO, the 
contract at issue provided that the defendant had the contractual right 
to move the complainant to a premium sports tier if certain events 
occurred. After those events occurred, the defendant exercised this 
contractual right. The complainant filed a program carriage complaint 
alleging that the defendant's exercise of its contractual right to move 
the complainant to a premium sports tier, while at the same time 
carrying allegedly similar affiliated networks on a more widely 
distributed tier, was impermissibly discriminatory under Section 
616(a)(3) of the Act and Section 76.1301(c) of the Commission's Rules. 
The complaint was filed within one year of the date of the retiering 
but more than one-year from the date the contract was executed. The 
Bureau rejected claims that the basis for the dispute was the contract 
and that the complaint should have been filed within one year from the 
date the contract was executed. The Bureau explained that the alleged 
act of discrimination that formed the basis for the complaint was the 
act of moving the complainant to a premium sports tier, not the terms 
of the contract. As The Tennis Channel did in this case, the complaint 
was filed within one year of the allegedly discriminatory act and 
within one year of the pre-filing notice. Thus, the Bureau held that 
the complaint was filed in accordance with the statute of limitations 
in Section 76.1302(f)(3).
    17. In MASN II HDO, the contract at issue provided that the 
defendant would carry the complainant on certain specified systems but 
left it to the defendant's future discretion to choose to carry the 
complainant on systems not specified in the contract. After 
negotiations regarding carriage of the complainant on systems not 
specified in the contract reached an impasse, the complainant filed its 
program carriage complaint. The complainant alleged that

[[Page 65327]]

the defendant's refusal to exercise its discretion to carry the 
complainant on systems not specified in the contract, while at the same 
time carrying allegedly similar affiliated networks on those systems, 
was impermissibly discriminatory under Section 616(a)(3) of the Act and 
Section 76.1301(c) of the Commission's Rules. The complaint was filed 
within one year of the date when negotiations regarding carriage of the 
complainant on systems not specified in the contract reached an 
impasse, but more than one-year from the date the contract was 
executed. The Bureau rejected claims that the basis for the dispute was 
the contract and that the complaint should have been filed within one 
year from the date the contract was executed. The Bureau explained that 
the alleged act of discrimination that formed the basis for the 
complaint was the defendant's refusal to exercise its discretion to 
carry the complainant on systems not specified in the contract, not the 
terms of the contract. As The Tennis Channel did in this case, the 
complaint was filed within one year of the date of the allegedly 
discriminatory refusal to carry the complainant on systems not 
specified in the contract and within one year of the pre-filing notice. 
Thus, the Bureau held that the complaint was filed in accordance with 
the statute of limitations in Section 76.1302(f)(3).
    18. As NFL Enterprises HDO and MASN II HDO demonstrate, Bureau 
precedent establishes that a complainant may have a timely program 
carriage claim in the middle of a contract term if the basis for the 
claim is an allegedly discriminatory decision made by the MVPD, such as 
tier placement, that the contract left to the MVPD's discretion. The 
exercise of such discretion is subject to the MVPD's obligations under 
the program carriage statute, which prohibits an MVPD from 
``discriminating in video programming distribution on the basis of 
affiliation or nonaffiliation of vendors in the selection, terms, or 
conditions for carriage * * *.'' 47 U.S.C. 536(a)(3). Comcast claims 
that such an interpretation would create uncertainty and ``open the 
floodgates to program carriage cases'' because parties could bring 
complaints at any time, regardless of the existence of a non-
discriminatory agreement, based on a demand to renegotiate the terms of 
the contract. We disagree because neither this case, nor the previous 
NFL Enterprises HDO and MASN II HDO cases, involves a request to 
renegotiate a term in an existing contract. Rather, all of these cases 
involve contracts which left a carriage decision to the defendant's 
discretion, and the gravamen of the complaints is whether the 
defendant's exercise of such discretion was consistent with its 
obligations under Section 616(a)(3) of the Act and Section 76.1301(c) 
of the Commission's Rules. Moreover, we note that the present case is 
the only program carriage complaint filed in the two years since the 
Bureau adopted NFL Enterprises HDO and MASN II HDO, thus refuting 
Comcast's claim that this interpretation of the statute of limitations 
will ``open the floodgates to program carriage cases.''
    19. As the Bureau explained in NFL Enterprises HDO, ``[w]hether or 
not Comcast had the right to [make a tiering decision] pursuant to a 
private agreement is not relevant to the issue of whether doing so 
violated Section 616 of the Act and the program carriage rules. Parties 
to a contract cannot insulate themselves from enforcement of the Act or 
our rules by agreeing to acts that violate the Act or rules.'' See NFL 
Enterprises HDO, 73 FR 65312, 65320, Nov. 3, 2008. Subsequent to the 
Bureau's decision in NFL Enterprises HDO, the Chief ALJ supported this 
view in denying a motion for a ruling on judicial estoppel and laches 
issues. See NFL Enterprises LLC v. Comcast Cable Communications, LLC, 
Memorandum Opinion and Order, FCC 09M-36 (Chief ALJ 2009), at para. 3 
(denying motion that program carriage case should be dismissed because 
complainant was also pursuing a contract-based claim in state court, 
explaining that ``NFL Enterprises seeks to vindicate its alleged 
private contractual rights in the New York litigation and its alleged 
federal and regulatory rights in this case * * *. The statutory and 
regulation issues in this case are separate and distinct from the 
contractual issues in the New York action.''). As in NFL Enterprises 
HDO and MASN II HDO, we designate the present case for a hearing to 
determine whether Comcast exercised its discretion consistent with its 
obligations under the program carriage statute and rules when it 
declined to tier The Tennis Channel on a more widely distributed tier.
    20. Under Comcast's interpretation of the program carriage statute 
of limitations, a programmer would be forever barred from bringing a 
discrimination claim unless the claim is brought within one year from 
the date the contract was executed. While Comcast notes that such an 
interpretation would provide certainty to MVPDs, it would also preclude 
programmers from bringing legitimate claims regarding allegedly 
discriminatory actions occurring more than one year after a contract 
was executed. Tennis Channel explains that fledgling networks often 
enter into contracts that provide the MVPD with tiering flexibility 
that allows the MVPD to increase the network's distribution as it 
develops. Under Comcast's interpretation, a programmer would be 
precluded from bringing a program carriage discrimination claim after 
the first year of the contract even if the MVPD refuses to provide the 
programmer with increased distribution in order to favor its own 
affiliated network.
    21. Despite Comcast's claims to the contrary, this precedent is 
consistent with the decision of the Cable Services Bureau in EchoStar 
dismissing a program access case on procedural grounds. See EchoStar 
Communications Corp. v. Fox/Liberty Networks, LLC, 13 FCC Rcd 21841 
(CSB 1998), recon. denied, EchoStar Communications Corp. v. Fox/Liberty 
Networks, LLC, 14 FCC Rcd 10480 (CSB 1999). The contract at issue in 
EchoStar specified the rate the complainant would pay for the 
defendant's programming. Over one year after the parties entered into 
the contract, however, the complainant sought to renegotiate the rate 
set forth in the contract. The Bureau found that the complaint was 
barred by the applicable statute of limitations, which requires that 
program access complaints be brought within one year of the date of 
execution of an affiliation agreement that allegedly violates the 
Commission's program access requirements. Thus, unlike the present case 
where the contract at issue does not specify the tier on which Comcast 
will carry The Tennis Channel and instead leaves tier placement to 
Comcast's discretion, EchoStar involved a complainant's attempt to 
renegotiate a rate set forth in the contract more than one year after 
the contract's execution date. Here, The Tennis Channel's complaint 
does not relate to any of the specific rates, terms, or conditions set 
forth in the parties' contract, but rather, Comcast's allegedly 
discriminatory tiering decision that occurred subsequent to the 
contract's execution. Citing EchoStar, the Commission later explained 
that ``an offer to amend an existing contract that has been in effect 
for more than one year does not reopen the existing contract to 
complaints that the provisions thereof are discriminatory.'' 1998 
Biennial Regulatory Review, 64 FR 6565, Feb. 10, 1999. As discussed 
above, The Tennis Channel does not allege that the contract at issue 
contains discriminatory provisions and does not seek to amend its 
contract.

[[Page 65328]]

B. Discrimination Claim
1. Similarly Situated
    22. We find that The Tennis Channel has provided evidence 
sufficient to demonstrate for the purpose of establishing a prima facie 
case of program carriage discrimination that it is similarly situated 
with Comcast-affiliated networks--the Golf Channel and Versus. (Comcast 
disputes that The Tennis Channel is similarly situated to the Golf 
Channel and Versus.) The Tennis Channel asserts that the relevant 
programming services are all nationally distributed sports television 
networks that generally compete in the same markets and have similar 
levels of viewer popularity. In particular, The Tennis Channel claims 
that it competes with Versus and the Golf Channel for the same viewers, 
advertisers, and programming. In support of its contention, The Tennis 
Channel points to the results of a survey purporting to show that the 
three networks attract affluent viewers that are predominantly male. In 
particular, the survey results indicate that the median household 
income for viewers of The Tennis Channel, Golf Channel, and Versus are 
$82,754, $71,786, and $65,353, respectively. Of viewer households with 
incomes above $100,000, the median income for The Tennis Channel and 
Golf Channel viewers is $148,700 and $144,500, respectively, which 
places those two networks in the top ten networks for median income 
among these affluent households. The survey results indicate that 
nearly 60 percent of The Tennis Channel viewers are male, and 
approximately 70 percent of Golf Channel and Versus viewers are male. 
With regard to competition for advertisers, The Tennis Channel has put 
forth evidence indicating that almost half of Versus's revenue from its 
top 30 advertisers derives from companies that either have purchased 
advertising on The Tennis Channel, or have evaluated formal proposals 
from The Tennis Channel during one of the past four ``up front'' 
periods in which advertisers solicit such proposals. Similarly, The 
Tennis Channel claims that 68 percent of the revenue that the Golf 
Channel earns from its top 30 advertisers originates from companies 
that have purchased advertising on The Tennis Channel or from companies 
that evaluated The Tennis Channel proposals during one of the past four 
``up front'' periods. The Tennis Channel further asserts that it 
competes with Versus for tennis programming, and has shared rights to 
tennis tournaments with Versus.
    23. In addition, The Tennis Channel has submitted evidence 
demonstrating that The Tennis Channel's ratings in its coverage area 
are generally comparable to those of both the Golf Channel and Versus. 
With regard to the ``value proposition'' of The Tennis Channel (i.e., 
the rate charged by the network relative to the popularity of the 
network's programming), the network claims that it compares favorably 
to both Versus and the Golf Channel. The Tennis Channel asserts that, 
according to published data, the ratio between the license fee charged 
for the Golf Channel and its average all-day rating--the ``price per 
point'' of the network--is $3.13, and that Versus's price per point is 
$2.75. Although national ratings for The Tennis Channel are unavailable 
due to the network's limited distribution, The Tennis Channel claims 
that its average all-day household rating for the first nine months of 
2009, in the local markets where it is rated, made its price per point 
approximately $1.46.
    24. Similarly, The Tennis Channel contends that it surpasses Versus 
and the Golf Channel in terms of the quantity of event coverage and 
level of viewer engagement or participation in the covered sporting 
events. The Tennis Channel maintains that, in 2008, it offered more 
than 2,700 hours of worldwide event coverage, the vast majority of 
which was composed of exclusive events within the United States. By 
comparison, the Golf Channel and Versus offered only 2,400 and 1,350 
hours of event coverage, respectively, that year. The Tennis Channel 
further asserts that it holds exclusive rights to telecast significant 
portions of all four of the major events in its field, the Grand Slams, 
and covers the world's top 70 tennis tournaments. By contrast, The 
Tennis Channel maintains, the Golf Channel does not offer live or 
first-run coverage of the most significant events in its field, the 
Majors. In addition, The Tennis Channel claims that ice hockey and the 
Tour de France comprise Versus's most popular programming, and that 
Versus covers only two games in the ice hockey championship series, the 
Stanley Cup Finals. The Tennis Channel puts forth the results of a 
recent study by an industry trade association indicating that tennis is 
``the fastest-growing sport in the country.'' The study purports to 
show that participation in tennis grew 43 percent between 2000 and 
2008. Conversely, the study indicates that participation in golf 
dropped one percent, and participation in ice hockey, Versus's 
principally featured sport, declined 22 percent during the same period.
2. Differential Treatment
    25. We also find that The Tennis Channel has put forth evidence 
sufficient to demonstrate for the purpose of establishing a prima facie 
case of program carriage discrimination that Comcast has treated The 
Tennis Channel differently ``on the basis of affiliation or 
nonaffiliation'' from Comcast's similarly situated, affiliated 
networks. (Comcast argues that its differential treatment of The Tennis 
Channel is justified by various legitimate and non-discriminatory 
reasons.) Comcast distributes Versus and the Golf Channel to virtually 
all of its subscribers on a comparatively inexpensive, widely 
distributed programming tier, and such subscribers need not pay an 
additional fee to receive those programming networks. By contrast, 
Comcast customers wishing to receive The Tennis Channel must subscribe 
to a premium tier and pay a monthly fee for the programming, in 
addition to fees they must pay to purchase an entry-level package of 
digital cable programming and acquire a digital cable box. According to 
The Tennis Channel, customers that subscribe to Comcast's SEP must pay 
approximately five dollars each month in addition to the fees they must 
pay for digital cable service. The SEP also includes other sports 
programming services. In Washington, DC, for example, this premium tier 
includes the Big Ten Network, Horse Racing Television, TV Games, the 
Fox College Sports regional channel, Fox Soccer Channel, GolTV, Speed 
Channel, NFL Red Zone, and CBS College Sports. According to The Tennis 
Channel, approximately ten percent of Comcast's customers subscribe to 
the SEP. The Tennis Channel claims that Comcast carries all of its 
affiliated programmers on broadly penetrated tiers, whereas Comcast's 
premium sports tier is occupied only by unaffiliated networks. The 
Tennis Channel has also provided evidence that Comcast affords more 
favorable channel positioning to sports networks with which it is 
affiliated. For example, in Washington, DC, Comcast carries Versus and 
the Golf Channel on low-numbered channels that are adjacent to EPSN and 
ESPN2, two popular sports programming networks. The Tennis Channel, 
however, is located at channel 735, adjacent to other networks that 
comprise Comcast's SEP.
3. Harm to Ability To Compete Fairly
    26. The Tennis Channel has put forth evidence sufficient to 
demonstrate for the purpose of establishing a prima facie case of 
program carriage discrimination

[[Page 65329]]

that Comcast's unwillingness to distribute the network more broadly and 
its disparate treatment of the network has unreasonably restrained The 
Tennis Channel's ability to compete fairly. (Comcast disputes that The 
Tennis Channel has been unreasonably restrained in its ability to 
compete fairly.) The Tennis Channel claims that Comcast's failure to 
carry the network at the same level offered to Versus and the Golf 
Channel has impaired the network's overall distribution and 
subscription fee revenue, thereby depriving The Tennis Channel of 
license fees that can be used to improve the network. Because Comcast 
is the dominant cable operator in seven of the ten largest television 
markets, The Tennis Channel asserts that its refusal to expand The 
Tennis Channel's distribution is particularly detrimental to the 
network. Moreover, The Tennis Channel contends that the smaller 
viewership of Comcast's premium sports tier reduces the value of 
advertising on networks carried on that tier. The Tennis Channel claims 
that many national advertisers use a threshold number of subscribers, 
e.g., 40 million subscribers, as a benchmark for assessing whether a 
network will be considered a viable competitor for national advertising 
purchases. Thus, The Tennis Channel asserts, networks with a 
distribution level below that threshold experience more difficulty 
attracting national advertisers. Indeed, The Tennis Channel claims that 
top cable advertisers have excluded the network as a competitor for 
national advertising contracts due to its narrow distribution. By 
contrast, The Tennis Channel claims, some of those national advertisers 
have expended significant resources to place ads on both the Golf 
Channel and Versus.
    27. In addition, The Tennis Channel asserts that Comcast's 
disparate treatment has impaired the network's ability to compete for 
programming, and points to several examples where the network either 
failed to win programming rights or was forced to make concessions in 
order to obtain such rights. Finally, The Tennis Channel claims that 
Comcast's refusal to expand its distribution has deprived the network 
of economies of scale. The Tennis Channel points out that, because a 
cable network's expenses are fixed irrespective of the number of 
subscribers, broader distribution of the network increases revenues 
without increasing costs. Thus, it claims, the operating costs are 
substantially less for a widely distributed network than for one whose 
distribution is more limited. As a consequence of its inability to 
realize economies of scale, The Tennis Channel asserts that it has been 
forced to limit marketing, production, and programming expenses, and 
was unable to renew agreements for certain smaller tournaments in 2010.
4. Referral to ALJ or ADR
    28. Based on the foregoing, we find it appropriate to designate the 
captioned complaint on the issues specified below for a hearing before 
an ALJ. The question of whether The Tennis Channel has put forth 
evidence sufficient to warrant designation of this matter for hearing 
is not an issue before the Presiding Judge. As required by the 
Commission's Rules, to the extent Comcast seeks Commission review of 
our decision on this issue, such review, if any, shall be deferred 
until exceptions to the Initial Decision in this proceeding are filed. 
See 47 CFR 1.115(e)(3). Despite our prima facie determination, the 
Presiding Judge will conduct a de novo examination of all relevant 
evidence after developing a full and complete record. Pursuant to 
Section 76.7(g)(2) of the Commission's Rules, each party will have ten 
days following release of this Order to notify the Chief, Enforcement 
Bureau and Chief ALJ, in writing, of its election to resolve this 
dispute through ADR. The hearing proceeding will be suspended during 
this ten-day period. In the event that both parties elect ADR, the 
hearing proceeding will remain suspended, and the parties shall update 
the Chief, Enforcement Bureau and Chief ALJ monthly, in writing, on the 
status of the ADR process. If both parties elect ADR but fail to reach 
a settlement, the parties shall promptly notify the Chief, Enforcement 
Bureau and Chief ALJ in writing, and the proceeding before the ALJ will 
commence upon the receipt of such notification. If both parties elect 
ADR and reach a settlement, the parties shall promptly notify the 
Chief, Enforcement Bureau, Chief ALJ, and Chief, Media Bureau in 
writing, and the hearing designation will be terminated upon the Media 
Bureau's order dismissing the complaint becoming a final order. If one 
or both parties do not elect ADR, then the hearing proceeding will 
commence the day after the ten-day period has lapsed.
    29. Notwithstanding our determination that The Tennis Channel has 
made out a prima facie case of program carriage discrimination by 
Comcast, we direct the Presiding Judge to develop a full and complete 
record in the instant hearing proceeding and to conduct a de novo 
examination of all relevant evidence in order to make an Initial 
Decision on each of the outstanding factual and legal issues. In 
addition, we direct the Presiding Judge to make all reasonable efforts 
to issue his Initial Decision on an expedited basis. In furtherance of 
this goal, we encourage the Presiding Judge to place limitations on the 
discovery tools available to the parties.
    30. Pursuant to Section 76.10(c)(2) of the Commission's Rules, a 
party aggrieved by the ALJ's decision on the merits may appeal such 
decision directly to the Commission in accordance with Sections 
1.276(a) and 1.277(a) through (c) of the Commission's Rules. 47 CFR 
76.10(c)(2). Unless the Commission grants a stay of the ALJ's decision, 
such decision will become effective upon release and will remain in 
effect pending appeal. However, if the ALJ's decision would require a 
defendant MVPD to delete existing programming from its system to 
accommodate carriage, the order for carriage will not become effective 
unless and until the decision of the ALJ is upheld by the Commission. 
47 CFR 76.1302(g)(1).

IV. Ordering Clauses

    31. Accordingly, it is ordered, that pursuant to Section 409(a) of 
the Communications Act of 1934, as amended, 47 U.S.C. 409(a), and 
Sections 76.7(g) and 1.221 of the Commission's Rules, 47 CFR 76.7(g), 
1.221, the captioned program carriage complaint filed by The Tennis 
Channel, Inc. against Comcast Cable Communications, LLC, is Designated 
For Hearing at a date and place to be specified in a subsequent order 
by an Administrative Law Judge upon the following issues:
    (a) To determine whether Comcast has engaged in conduct the effect 
of which is to unreasonably restrain the ability of The Tennis Channel 
to compete fairly by discriminating in video programming distribution 
on the basis of the complainant's affiliation or non-affiliation in the 
selection, terms, or conditions for carriage of video programming 
provided by The Tennis Channel, in violation of Section 616(a)(3) of 
the Act and/or Section 76.1301(c) of the Commission's Rules; and
    (b) In light of the evidence adduced pursuant to the foregoing 
issue, to determine whether Comcast should be required to carry The 
Tennis Channel on its cable systems on a specific tier or to a specific 
number or percentage of Comcast subscribers and, if so, the price, 
terms, and conditions thereof; and/or whether Comcast should be 
required to implement such other

[[Page 65330]]

carriage-related remedial measures as are deemed appropriate; and
    (c) In light of the evidence adduced pursuant to the foregoing 
issues, to determine whether a forfeiture should be imposed on Comcast.
    32. If the ALJ requires Comcast to carry The Tennis Channel on its 
cable systems on a specific tier or to a specific number or percentage 
of subscribers, the ALJ shall determine whether such remedy would 
``require [Comcast] to delete existing programming from its system to 
accommodate carriage of '' The Tennis Channel. 47 CFR 76.1302(g)(1). If 
the ALJ determines that this remedy would require Comcast to delete 
existing programming, then this remedy will be treated as Section 
76.1302(g)(1) treats ``mandatory carriage,'' thus delaying the 
effectiveness of this remedy unless and until the decision of the ALJ 
is upheld by the Commission. In that event, if the Commission upholds 
the remedy ordered by the ALJ in its entirety, Comcast will be required 
to carry The Tennis Channel's programming for an additional period 
equal to the time elapsed between the ALJ's decision and the 
Commission's ruling, on the terms and conditions approved by the 
Commission.
    33. It is further ordered, that pursuant to Section 4(i) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), The Tennis 
Channel and Comcast Shall Each File with the Chief, Enforcement Bureau 
and Chief ALJ, by October 15, 2010, its respective elections as to 
whether it wishes to proceed to Alternative Dispute Resolution. The 
hearing proceeding Is Hereby Suspended during this time. If one or both 
of the parties do not elect ADR, then the hearing proceeding will 
commence on October 18, 2010. If both parties elect ADR, the hearing 
proceeding will remain suspended, and The Tennis Channel and Comcast 
shall update the Chief, Enforcement Bureau and Chief ALJ monthly on the 
status of the ADR process. Such updates shall be provided in writing 
and shall reference the MB docket number and file number assigned to 
this proceeding. If both parties elect ADR but fail to reach a 
settlement, the parties shall promptly notify the Chief, Enforcement 
Bureau and Chief ALJ in writing, and the proceeding before the ALJ will 
commence upon the receipt of such notification by the Commission. If 
both parties elect ADR and reach a settlement, the parties shall 
promptly notify the Chief, Enforcement Bureau, Chief ALJ, and Chief, 
Media Bureau in writing, and the hearing will be terminated upon the 
Media Bureau's order dismissing the complaint becoming a final order.
    34. It is further ordered that, pursuant to Section 4(i) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), in order to 
avail itself of the opportunity to be heard, The Tennis Channel and 
Comcast, in person or by their attorneys, Shall Each File with the 
Commission, by October 22, 2010, a written appearance stating that it 
will appear on the date fixed for hearing and present evidence on the 
issues specified herein, provided that, if both parties elect ADR, each 
party shall file such written appearance within five days after 
notifying the Chief, Enforcement Bureau and Chief ALJ that it has 
failed to settle the dispute through ADR. In light of the expedited 
basis of this hearing proceeding, the deadline for filing written 
appearances set forth in Section 1.221(c) of the Commission's Rules, 47 
CFR 1.221(c), is waived and replaced with the deadlines set forth 
above. In addition, Section 1.221(f) of the Commission's Rules, 47 CFR 
1.221(f), provides that a ``fee must accompany each written appearance 
filed with the Commission in certain cases designated for hearing.'' 
However, neither the Act nor our rules specify a fee for hearings 
involving program carriage complaints. See 47 CFR 1.1104; see also 47 
U.S.C. 158. Accordingly, neither The Tennis Channel nor Comcast is 
required to pay a fee in connection with the filing of their respective 
appearances in this proceeding.
    35. It is further ordered that, if The Tennis Channel fails to file 
a written appearance by the deadline specified above, or fails to file 
prior to the deadline either a petition to dismiss the above-captioned 
proceeding without prejudice, or a petition to accept, for good cause 
shown, a written appearance beyond such deadline, the Administrative 
Law Judge Shall Dismiss the above-captioned proceeding with prejudice 
for failure to prosecute.
    36. It is further ordered that, if Comcast fails to file a written 
appearance by the deadline specified above, or fails to file prior to 
the deadline a petition to accept, for good cause shown, a written 
appearance beyond such deadline, its opportunity to present evidence at 
hearing will be deemed to have been waived. If the hearing is so 
waived, the Presiding Judge shall expeditiously terminate this 
proceeding and certify to the Commission the captioned complaint for 
resolution based on the existing record.
    37. It is further ordered that in addition to the resolution of the 
issues (a) through (c) in paragraph 18 above, the Presiding Judge shall 
also determine, pursuant to Section 503(b) of the Communications Act of 
1934, as amended, whether an Order for Forfeiture shall be issued 
against Comcast for each violation or each day of a continuing 
violation, except that the amount issued for any continuing violation 
shall not exceed the amount specified in Section 503(b)(2)(C), 47 
U.S.C. 503(b)(2)(C), for any single act or failure to act.
    38. It is further ordered that for the purposes of issuing a 
forfeiture, this document constitutes notice, as required by Section 
503 of the Communications Act of 1934, as amended, 47 U.S.C. 503.
    39. It is further ordered that a copy of this Order shall be sent 
by Certified Mail--Return Receipt Requested and regular first class 
mail to (i) The Tennis Channel, 2850 Ocean Park Boulevard, Suite 150, 
Santa Monica, CA 90405, with a copy (including a copy via e-mail) to 
Stephen A. Weiswasser, Esq., Covington and Burling LLP, 1201 
Pennsylvania Avenue, NW., Washington, DC 20004-2401 
(sweiswasser@cov.com); and (ii) Comcast Cable Communications, LLC, One 
Comcast Center, Philadelphia, PA 19103, with a copy (including a copy 
via e-mail) to David P. Murray, Esq., Willkie Farr & Gallagher LLP, 
1875 K Street, NW., Washington, DC 20006 (dmurray@willkie.com).
    40. It is further ordered that the Chief, Enforcement Bureau, is 
made a party to this proceeding without the need to file a written 
appearance, and she shall have the authority to determine the extent of 
her participation therein.
    41. It is further ordered that a copy of this order or a summary 
thereof shall be published in the Federal Register.

Federal Communications Commission.
Nancy Murphy,
Associate Chief, Media Bureau.
[FR Doc. 2010-26766 Filed 10-21-10; 8:45 am]
BILLING CODE 6712-01-P