07-5553

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
─────────────
No. 07-5553-ag
─────────────
CABLEVISION SYSTEMS CORPORATION,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION,
UNITED STATES OF AMERICA,
Respondents
─────────────
On Petition for Review
of an Order of the Federal Communications Commission
─────────────
BRIEF FOR PETITIONER (Final Version)
─────────────

HOWARD J. SYMONS HENK BRANDS

TARA M. CORVO
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
701 Pennsylvania Avenue, N.W.,
Suite 900
Washington, D.C. 20004
(202) 434-7300
February 8, 2008
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1615 L Street, N.W.,
Suite 1300
Washington, D.C. 20036
(202) 223-7300
Counsel for Cablevision Systems
Corporation
ALLAN J. ARFFA
J. ADAM SKAGGS
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
 Corporate Disclosure Statement

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,

petitioner states as follows. Cablevision Systems Corporation is a publicly

traded company. Cablevision Systems Corporation has no parent

corporation. The following publicly held corporations own 10% or more of

Cablevision Systems Corporation’s stock: Legg Mason, Inc. (through

ClearBridge Advisors, LLC, Smith Barney Fund Management LLC, and

ClearBridge Asset Management, Inc. as a group) and T. Rowe Price

Associates, Inc. Directly or indirectly, Cablevision Systems Corporation

owns and operates (among other things) cable systems.

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 Table of Contents
Page(s):

Corporate Disclosure Statement . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Decision Under Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Broadcasting and Cable . . . . . . . . . . . . . . . . . . . . . . . . 4

2. The Must-Carry Statute . . . . . . . . . . . . . . . . . . . . . . . . 8

3. The Statute’s Market-Modification Mechanism. . . . . . . 12

4. WRNN’s First Attempt at Carriage on Long Island . . . . 15

5. WRNN’s Second Attempt at Carriage on Long Island . . 19

6. Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

I. THE FCC ERRED IN ANALYZING WRNN’S

SUPPOSED SERVICE TO LONG ISLAND . . . . . . . . . . . 31

A. The FCC’s Overruling of the Bureau’s Findings

About Long-Island-Targeted Programming Is
Unexplained and Unexplainable . . . . . . . . . . . . . . . 32

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 B. The FCC’s Interpretation of the “Historical Carriage”
Factor Flies in the Face of Unambiguous Statutory
Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

C. The FCC’s Reliance on Signal Coverage Is Directly

Contrary to Governing FCC Precedent. . . . . . . . . . . 37

D. The FCC’s Refusal To Consider Local Programming

Provided by Other Stations Is Contrary to Plain
Statutory Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

E. The FCC’s Refusal To Consider Viewing Patterns Is

Contrary to Plain Statutory Text . . . . . . . . . . . . . . . 41

II. THE FCC IGNORED THE STATUTORY INSTRUCTION

THAT MARKET MODIFICATION SHOULD “BETTER
EFFECTUATE THE PURPOSES OF” MUST-CARRY . . 42

A. The FCC Fundamentally Misapprehended the

Governing “Value of Localism” . . . . . . . . . . . . . . . 42

B. The FCC’s Policy of Rewarding Must-Carry

Gamesmanship Is Directly Contrary to the Statute’s
Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

III. THE FCC ERRED BY COMPELLING CARRIAGE IN

VIOLATION OF CABLEVISION’S CONSTITUTIONAL
RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

A. Compelled Carriage of WRNN on Long Island

Cannot Withstand a First Amendment Challenge . . . 50

B. Compelled Carriage of WRNN on Long Island

Cannot Withstand a Fifth Amendment Challenge . . . 60

C. Constitutional Concerns Can and Must Be Avoided . 61

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

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 Table of Authorities

Page(s):
Cases
Blake v. Carbone,
489 F.3d 88 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Buckley v. Valeo,
424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Century Communications Corp. v. FCC,

835 F.2d 292 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Clearing House Assoc. v. Cuomo,

510 F.3d 105 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Field Day, LLC v. County of Suffolk,

463 F.3d 167 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Fox Television Stations, Inc. v. FCC,

280 F.3d 1027 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Fox Television Stations, Inc. v. FCC,

489 F.3d 444 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Midwest Video Corp. v. FCC,

571 F.2d 1025 (8th Cir. 1978), aff’d, 440 U.S. 689 (1979) . . . . . . . . . . . . . . 61

Mistick PBT v. Chao,

440 F.3d 503 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

New York State Elec. & Gas Corp. v. Sec’y of Labor,

88 F.3d 98 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

NLRB v. Aces Mechanical Corp.,

837 F.2d 570 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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 Page(s):
Quincy Cable TV, Inc. v. FCC,
768 F.2d 1434 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 55

Rust v. Sullivan,
500 U.S. 173 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Time Warner Entm’t Co. v. FCC,

240 F.3d 1126 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Traction Wholesale Center Co., Inc. v. NLRB,

216 F.3d 92 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Turner Broad. Sys., Inc. v. FCC,

520 U.S. 180 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Turner Broad. Sys., Inc. v. FCC,

819 F. Supp. 32 (D.D.C. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

United States v. Carolene Prods. Co.,

304 U.S. 144 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

United States v. Gonzalez,

420 F.3d 111 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

United States v. Morris,

928 F.2d 504 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

United States v. Salerno,

481 U.S. 739 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

WLNY-TV, Inc. v. FCC,

163 F.3d 137 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 32

Yang v. Gonzales,
478 F.3d 133 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

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 Page(s):
Administrative Decisions

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, Biennial Review Report, 15 FCC
Rcd 11058 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2002 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, Report and Order and Notice of
Proposed Rulemaking, 18 FCC Rcd 13620 (2003) . . . . . . . . . . . . . . . . . . . . 5, 6

Amendment of Section 3.606 of the Commission’s Rules and Regulations,

41 FCC 148 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Amendment of Section 73.606(b),

11 FCC Rcd 12229 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Broadcast Localism, Notice of Inquiry, 19 FCC Rcd 12425 (2004) . . . . . . 5, 6, 7

Commission Seeks To Update the Record for a Petition for Reconsideration

Regarding Home Shopping Stations, Public Notice, 22 FCC Rcd 8550
(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Definition of Markets for Purposes of the Cable Television Broadcast Signal

Carriage Rules, Order on Reconsideration and Second Report and Order,
14 FCC Rcd 8366 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 50

Definition of Markets for Purposes of the Cable Television Mandatory

Television Broadcast Signal Carriage Rules, Report and Order and
Further Notice of Proposed Rulemaking, 11 FCC Rcd 6201 (1996) . . . . . . . 12

Market Modifications and the New York Area of Dominant Influence,

Memorandum Opinion and Order, 12 FCC Rcd 12262 (1997)
(“1997 Order”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Media Bureau Staff Report Concerning Over-the-Air Broadcast Television

Viewers, MB Docket No. 04-210, 2005 WL 473322 (MB rel. Feb. 28,
2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

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 Page(s):
Petition of Cablevision, Memorandum Opinion and Order, 11 FCC Rcd
6453 (CSB 1996) (“1996 Order”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 39

Petition of Time Warner New York City Cable Group, Memorandum

Opinion and Order, 11 FCC Rcd 6528 (1996) . . . . . . . . . . . . . . . . . . . . . . . 16

Petition of WRNN License Co. LLC, for Modification of Television Market

for WRNN-DT, Kingston, New York, Memorandum Opinion and Order,
CSR-6956-A, FCC 07-151, 2007 WL 4208281 (rel. Nov. 29,
2007)(“2007 Order”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Service Rules for the 746-764 MHz Bands, and Revisions to Part 27 of the
Commission’s Rules, Notice of Proposed Rulemaking,
14 FCC Rcd 11006 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

WRNN License Co., Memorandum Opinion and Order, 21 FCC Rcd 5952
(MB 2006) (“2006 Order”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

WRNN License Co.,

20 FCC Rcd 7904 (MB 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

WRNN-TV Assocs.,
19 FCC Rcd 12343 (MB 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 54

Statutes
5 U.S.C. § 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

28 U.S.C. § 2342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

47 U.S.C. 307(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

47 U.S.C. § 402(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

47 U.S.C. § 534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

47 U.S.C. § 534(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

47 U.S.C. § 534(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

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 Page(s):
47 U.S.C. § 534(h)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

47 U.S.C. § 534(h)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

47 U.S.C. § 534(h)(1)(C)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 47

47 U.S.C. § 534(h)(1)(C)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

47 C.F.R. § 1.115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

47 C.F.R. § 73.606(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

47 C.F.R. § 73.625(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

47 C.F.R. § 73.1120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

47 C.F.R. § 73.3526(e)(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

47 C.F.R. § 76.55(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

47 C.F.R. § 76.59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Other Authorities
Audio Tape: Cablevision v. FCC, No. 07-5553, Oral Argument (Jan. 15,
2008) (2nd. Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 46

Cable Television Consumer Protection and Competition Act of 1992 (“1992

Cable Act”), Pub. L. No. 102-385, 106 Stat. 1460 . . . . . . . . . . . . . . . . . 7, 9, 10

Cablevision’s Emergency Motion for a Stay, Cablevision Sys. Corp. v. FCC,

No. 07-5553 (filed 2d Cir. Dec. 19, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

FCC Adopts 13th Annual Report to Congress on Video Competition and

Notice of Inquiry for the 14th Annual Report, News Release, (Nov. 27,
2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 57

FCC Opposition to Emergency Motion for Stay, Cablevision Sys. Corp. v.

FCC, No. 07-5553 (filed 2d Cir. Jan. 10, 2008) . . . . . . . . . . . . . . . . . . . . . . . 47

H.R. Rep. No. 102-628 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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 Page(s):
Opposition of WRNN License Co., LLC to Motion for Stay of Cablevision,
Cablevision Sys. Corp. v. FCC, No. 07-5553 (filed 2d Cir. Jan. 11, 2008) . . 46

Peter Grant & Dionne Searcey, Verizon’s FiOS Challenges Cable’s Clout,
Wall St. J., Oct. 24, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

R.R. Bowker LLC, Broadcasting & Cable Yearbook 2006, at B-186 (2005) . . 15

Random House Webster’s Unabridged Dictionary 1004 (2001) . . . . . . . . . . . . 46

Verizon Communications, Inc., News Release, Verizon Provides New

Financial and Operational Details on Its Fiber Network as Deployment
Gains Momentum, Sept. 27, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Verizon Communications Inc., Press Release, Verizon Reports Continued

Success in 3Q 2007, Oct. 29, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

WLNY-TV, Inc. v. FCC, No. 97-4243, Brief for Respondents

(filed 2d Cir. Jan. 22, 1998) (“FCC’s WLNY Br.”) . . . . . . . . . . . . . . . . . passim

WRNN License Company, LLC for Modification of the Television Market for
WRNN-DT, Kingston, New York, CSR 6956-A,
Opposition of Cablevision Systems Corporation
(filed Feb. 13, 2006) (“Opp”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

- ix -
 Introduction

This case is about cynical gamesmanship by an upstate New York television

station in pursuit of cable carriage on Long Island, where it has never had a

viewing audience.

In 1992, Congress enacted the so-called must-carry statute, which gives

television broadcast stations rights to be carried on local cable systems. Shortly

thereafter, investors bought WRNN, a cheap television station licensed to

Kingston. They then changed the station’s format to home-shopping and started to

seek cable carriage throughout the huge New York City television market.

A decade ago, however, the FCC rejected WRNN’s effort, holding that

carriage outside upstate New York would not promote “the value of localism,” the

statutory touchstone for defining a station’s must-carry market. In doing so, the

FCC noted that WRNN had never cast an over-the-air signal over Long Island and

that its programming did not target Long Island. This Court affirmed.

In the wake of that ruling, WRNN moved its antenna closer to Long Island

and added a token amount of Long Island-targeted programming to its broadcast

schedule. Based on those new facts, WRNN asked the FCC to reconsider. And

the agency did so: it granted WRNN’s request.

 That was error. The must-carry statute provides that the FCC may grant

must-carry rights only insofar as they promote “the value of localism.” Granting

carriage on Long Island to a station that is licensed to Kingston, a community with

few economic, social, and cultural ties to Long Island, and that broadcasts only a

token amount of Long Island-targeted programming, does not appreciably promote

localism for Long Islanders.

Meanwhile, such carriage harms television viewers in upstate New York.

Stations licensed to outlying areas like Kingston are supposed to serve their

community of license with local news and information. Granting broad cable

carriage encourages them to replace programming targeted at their community of

license with programming targeted at distant and more populous communities in

pursuit of greater advertising revenue.

Moreover, the must-carry statute was intended to restore stations to the

audience that they had in a world without cable — not to make them better off.

Thus, where the FCC previously defined a station’s natural market as not including

Long Island, a station should not be granted a second bite at the apple after making

some token changes solely with a view to obtaining more cable carriage.

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 All of these points have particular urgency because compelled carriage on

Long Island violates the Constitution. The Supreme Court upheld the must-carry

statute against a facial challenge on the basis of a narrow rationale that by its terms

cannot be used to justify carriage here. Thus, the FCC should have practiced

“constitutional avoidance” by denying WRNN’s request on non-constitutional

grounds.

Decision Under Review

The FCC decision under review is Petition of WRNN License Co. LLC, for

Modification of Television Market for WRNN-DT, Kingston, New York,

Memorandum Opinion and Order, CSR-6956-A, FCC 07-151, 2007 WL 4208281

(rel. Nov. 29, 2007) (“2007 Order”). The decision has not yet been reported.

Statement of Jurisdiction

A decade ago, the FCC excluded certain Long Island communities from

WRNN’s local television market for purposes of Section 614 of the

Communications Act.1 This case began when WRNN asked the FCC to re-include

those communities. The Federal Communications Commission (“FCC”)

entertained that request pursuant to 47 U.S.C. § 534(h)(1)(C) and 47 C.F.R.

1
47 U.S.C. § 534.

-3-
§ 76.59. On May 25, 2006, a division of the FCC, the Media Bureau, released a

Memorandum Opinion and Order granting WRNN’s request.2 After Cablevision

filed a timely petition for review,3 the full FCC denied review in a Memorandum

Opinion and Order released on November 29, 2007.4 Cablevision filed a timely

petition for review in this Court on December 13, 2007. This Court has

jurisdiction pursuant to 47 U.S.C. § 402(a) and 28 U.S.C. § 2342.

Statement of Issues

I. Did the FCC err in analyzing WRNN’s supposed service to Long Island?

II. Did the FCC ignore the statutory instruction that market modification should
“better effectuate the purposes of” must-carry?

III. Did the FCC err by compelling carriage in violation of Cablevision’s

constitutional rights?

Statement of the Case and Facts

1. Broadcasting and Cable.

Broadcast television stations hold FCC-issued licenses to use the public

airwaves for the broadcast of television programs. Anyone with a television set

2
WRNN License Co., Memorandum Opinion and Order, 21 FCC Rcd 5952
(MB 2006) (“2006 Order”).
3
See 47 C.F.R. § 1.115.
4
2007 Order.

-4-
and a “rabbit ear” or roof-top antenna can view such programs. Unlike most other

users of wireless spectrum, television stations are allowed to use over-the-air

spectrum free of charge. In return, television licensees must observe certain

requirements, including that they “air programming that is responsive to the

interests and needs of their communities of license.” 5 There are commercial and

non-commercial broadcast stations. While noncommercial stations rely on grants

and contributions, commercial stations rely on revenue from the sale of

advertising.

The FCC issued most television licenses decades ago; because there is only

so much spectrum assigned to over-the-air television, the licensing effort was

mostly completed in the 1950s. In allotting licenses, the FCC was guided by

Congress’s mandate that it “make such distribution of licenses . . . among the

5
Broadcast Localism, Notice of Inquiry, 19 FCC Rcd 12425, ¶ 1 (2004);
accord 2002 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, Report and Order and Notice of Proposed
Rulemaking, 18 FCC Rcd 13620, ¶ 78 (2003) (“The Commission decided long ago
that local station licensees have a responsibility to air programming that is suited to
the tastes and needs of their community . . . .”); 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, Biennial
Review Report, 15 FCC Rcd 11058, ¶ 89 (2000) (“broadcasters are required to air
programming that is responsive to issues facing their communities of license”).

-5-
several States and communities as to provide a fair, efficient, and equitable

distribution of . . . service to each of the same.”6 Thus, the FCC granted each

license to a particular community and required the broadcaster to serve that

particular community.7

In distributing licenses among communities, the FCC has long sought to

ensure not only that each community can receive television service, but also that it

can receive television service from a local station.8 That way, viewers in smaller

towns are able to receive not only news and information from a nearby metropolis,

but also from their own community.9 The policy that, as much as possible, viewers

6
47 U.S.C. 307(b).
7
See 47 C.F.R. § 73.1120 (“Each AM, FM, TV and Class A TV broadcast
station will be licensed to the principal community or other political subdivision
which it primarily serves. This principal community (city, town or other political
subdivision) will be considered to be the geographical station location.”).
8
See Broadcast Localism, Notice of Inquiry, 19 FCC Rcd 12425, ¶ 2 & n.5
(2004).
9
See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663 (1994)
(“Turner I”) (“Congress designed this system of allocation to afford each
community of appreciable size an over-the-air source of information and an outlet
for exchange on matters of local concern.”); 2002 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, Report and Order
and Notice of Proposed Rulemaking, 18 FCC Rcd 13620, ¶ 75 (2003) (“In
announcing the allotments, the Commission explained that dispersed allotments

-6-
should have access to television stations from their own communities is known as

“localism.” Since the beginning of television licensing in this country, this policy

has been “a cornerstone of broadcast regulation.”10

Cable systems use a delivery technology different from that used by

broadcast stations. Cable operators have not been granted over-the-air spectrum.

Rather, they transmit video signals through wires that they string along poles and

through underground conduits. Cable systems began as so-called “community

antenna television”: cable operators built tall receiving antennas connected by wire

to individual households, thereby providing them with better reception than might

be available with the use of individual antennas. Later, cable operators also began

to provide viewers with signals from sources other than broadcast television

stations. In particular, cable operators began to provide services like HBO, CNN,

and C-SPAN, which are not available over-the-air.

‘protect[] the interests of the public residing in smaller cities and rural areas more
adequately than any other system.’”).
10
Broadcast Localism, Notice of Inquiry, 19 FCC Rcd 12425, ¶ 1 (2004);
see Cable Television Consumer Protection and Competition Act of 1992 (“1992
Cable Act”), Pub. L. No. 102-385, 106 Stat. 1460, § 2(a)(10) (“A primary
objective and benefit of our Nation’s system of regulation of television
broadcasting is the local origination of programming. There is a substantial
governmental interest in ensuring its continuation.”).

-7-
 The FCC began regulating the new cable medium in the 1960s, mostly to

limit its impact on the more established broadcast medium. Among other things,

the FCC imposed so-called “must carry” regulations, under which cable systems

were required to carry local broadcast signals. In the 1980s, however, those

regulations were struck down by the United States Court of Appeals for the D.C.

Circuit. That court held that the FCC had not done enough to show that must-carry

rules were necessary, thereby violating both the Administrative Procedure Act and

cable operators’ rights under the First Amendment.11

2. The Must-Carry Statute.

In 1992, Congress enacted a statutory must-carry requirement. Mindful of

the fate that had befallen the FCC’s earlier must-carry regulations, Congress made

statutory findings that were unusually explicit and detailed. Must-carry, these

findings explained, was necessary to salvage localism. As Congress found: “[a]

primary objective and benefit of our Nation’s system of regulation of television

broadcasting is the local origination of programming,” and, in “the absence of a

requirement that [cable] systems carry local broadcast signals,” the “economic

11
See Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985);
Century Communications Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987).

-8-
viability of free local broadcast television and its ability to originate quality local

programming will be seriously jeopardized.”12

In particular, Congress expressed concern that cable might drive

broadcasters out of business by denying carriage for anticompetitive reasons.

Congress reasoned that cable operators had an economic incentive to drop

broadcast stations competing for local advertising,13 that cable operators generally

faced no multichannel competition and were therefore free to act on this incentive

without having to fear losing cable subscribers,14 that television viewers generally

stop watching off-air television after subscribing to cable,15 that dropped stations

12
1992 Cable Act, § 2(a)(10), (16).
13
See id. § 2(a)(15) (“A cable television system which carries the signal of a
local television broadcaster is assisting the broadcaster to increase its viewership,
and thereby attract additional advertising revenues that otherwise might be earned
by the cable system operator. As a result, there is an economic incentive for cable
systems to terminate the retransmission of the broadcast signal, refuse to carry new
signals, or reposition a broadcast signal to a disadvantageous channel position.”).
14
See id. § 2(a)(2) (“[M]ost cable television subscribers have no opportunity
to select between competing cable systems. Without the presence of another
multichannel video programming distributor, a cable system faces no local
competition. The result is undue market power for the cable operator as compared
to that of consumers and video programmers.”).
15
See id. § 2(a)(17) (“Most subscribers to cable television systems do not or
cannot maintain antennas to receive broadcast television services, do not have
input selector switches to convert from a cable to antenna reception system, or
cannot otherwise receive broadcast television services.”).

-9-
would therefore lose part of their audience, possibly bankrupting them as a result,16

and that consumers unable to afford cable would therefore be left with fewer

stations to watch off-air.17

Ultimately, the Supreme Court — by a 5-4 vote — upheld the must-carry

provisions against a facial First Amendment challenge. The Court unanimously

ruled that cable operators are presumptively entitled to the same First Amendment

protection available to newspapers.18 The Court was likewise unanimous in

recognizing that must-carry imposes an onerous burden on cable operators’

speech.19 But, over a vigorous dissent, a bare majority held that Congress had

16
See id. § 2(a)(16) (“As a result of the economic incentive that cable
systems have to delete, reposition, or not carry local broadcast signals, . . . the
economic viability of free local broadcast television and its ability to originate
quality local programming will be seriously jeopardized.”).
17
See id. § 2(a)(12) (“There is a substantial governmental interest in
promoting the continued availability of such free television programming,
especially for viewers who are unable to afford other means of receiving
programming.”).
18
See Turner I, 512 U.S. at 639 (cable must be judged by “settled principles
of our First Amendment jurisprudence”); id. at 675-76 (O’Connor, J., concurring in
part and dissenting in part) (“As the Court explains in Parts I, II-A, and II-B of its
opinion, which I join, cable programmers and operators stand in the same position
under the First Amendment as do the more traditional media.”).
19
Id. at 637 (must-carry rules “reduce the number of channels over which
cable operators exercise unfettered control”).

- 10 -
enacted the must-carry statute for a content-neutral reason — namely, “to preserve

access to free television programming for the 40 percent of Americans without

cable.”20 Thus, the majority held, the statute was subject not to “strict” First

Amendment scrutiny (under which a measure must be shown to be narrowly

tailored to a compelling governmental objective) but to “intermediate” scrutiny

(under which a measure need only be shown to substantially further an important

objective).21

Even applying intermediate scrutiny, however, the Court could not

immediately approve the statute. The majority determined that Congress’s

rationale — “protecting noncable households from loss of regular television

broadcasting service due to competition from cable systems”22 — was sufficiently

“important in the abstract.”23 The Court remanded, however, for further factual

development on the question whether the harms that Congress had recited were

20
See id. at 646; see also id. at 652.
21
See id. at 661-62.
22
Id. at 663 (internal quotation marks omitted).
23
Id. at 664 (plurality).

- 11 -
“real, not merely conjectural.”24 Only after a remand, the Court (again by a 5-4

vote) held that Congress’s finding to that effect was entitled to deference.25

3. The Statute’s Market-Modification Mechanism.

The must-carry statute requires cable systems to retransmit the signals of

“local commercial television stations.”26 The statute defines as “local” a station

that is “licensed . . . to [a] community . . . that . . . is within the same television

market as the cable system.”27 The Act further provides that a station’s “market

shall be determined . . . using . . . commercial publications which delineate

television markets based on viewing patterns.”28

24
Id.
25
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (“Turner II”).
26
47 U.S.C. § 534(a).
27
Id. § 534(h)(1)(A) (emphasis added).
28
Id. § 534(h)(1)(C)(i). The statute as enacted in 1992 provided: “a
broadcasting station’s market shall be determined in the manner provided in
section 73.3555(d)(3)(i) of title 47, Code of Federal Regulations, as in effect on
May 1, 1991,” words that in 1996 were amended to read “a broadcasting station’s
market shall be determined by the Commission by regulation or order using, where
available, commercial publications which delineate television markets based on
viewing patterns.” The amendment was necessary because Arbitron withdrew
from the TV ratings business and therefore stopped updating the ADIs used in the
referenced FCC regulation. See Definition of Markets for Purposes of the Cable
Television Mandatory Television Broadcast Signal Carriage Rules, Report and
Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 6201, ¶ 12
(1996).

- 12 -
 Until the mid-1990s, the FCC delineated television markets on the basis of

commercial publications of a media research organization called Arbitron, which

carved the country up into “Areas of Dominant Influence” or “ADIs.” Currently,

the FCC uses publications of Nielsen Media Research, which uses similar units but

calls them “designated market areas” or “DMAs.”29 In either company’s

methodology, “each county . . . is allocated to a discrete market based on which

home-market stations receive a preponderance of total viewing hours in the

county.”30 For example, Ulster County is assigned to the New York City DMA

rather than the adjoining Albany DMA, presumably because residents of Ulster

County watch New York City stations more heavily than Albany stations.

Congress recognized, however, that ADIs and DMAs might sometimes give

a station must-carry rights in a community in which it is not truly “local”: as the

House Report put it, a cable system might be “so far removed from the station that

29
47 C.F.R. § 76.55(e).
30
Definition of Markets for Purposes of the Cable Television Broadcast
Signal Carriage Rules, Order on Reconsideration and Second Report and Order, 14
FCC Rcd 8366, ¶ 6 (1999); see id. ¶ 11 (“Conceptually, [Arbitron’s and Nielsen’s]
market designations — ADIs and DMAs — are the same. They both use audience
survey information from cable and noncable households to determine the
assignment of counties to local television markets based on the market whose
stations receive the largest share of viewing in the county.”).

- 13 -
it cannot be deemed part of the station’s market.”31 Congress therefore empowered

the FCC to change a station’s market: “following a written request, the

Commission may, with respect to a particular television broadcast station, . . .

exclude communities from such station’s television market to better effectuate the

purposes of this section.”32

Congress provided specific instructions on how the FCC should go about

that task:

In considering requests [for market modification], the Commission shall

afford particular attention to the value of localism by taking into account
such factors as —
(I) whether the station, or other stations located in the same area, have
been historically carried on the cable system or systems within [the
cable system’s] community;
(II) whether the television station provides coverage or other local service
to such community;
(III) whether any other television station that is eligible to be carried by a
cable system in such community in fulfillment of the requirements of
this section provides news coverage of issues of concern to such
community or provides carriage or coverage of sporting and other
events of interest to the community; and

31
H.R. Rep. No. 102-628, at 97 (1992).
32
47 U.S.C. § 534(h)(1)(C)(i).

- 14 -
 (IV) evidence of viewing patterns in cable and noncable households within
the areas served by the cable system or systems in such community.33

4. WRNN’s First Attempt at Carriage on Long Island.

Because the Commission has traditionally assigned television-station

licenses in part based on population,34 most commercial television stations have

their community of license in or near a DMA’s metropolitan center or “hub.”35

But, in most larger DMAs, the Commission has licensed a few stations to

communities in the market’s “spokes.”36 For example, of the 23 stations assigned

to the New York City DMA, 14 are assigned to New York City and its immediate

environs, but nine have their community of license in outlying areas.37

33
Id. § 534(h)(1)(C)(ii).
34
See Amendment of Section 3.606 of the Commission’s Rules and
Regulations, 41 FCC 148, ¶ 68 (1952).
35
See generally 47 C.F.R. § 73.606(b).
36
See, e.g., Amendment of Section 73.606(b), 11 FCC Rcd 12229, ¶ 5
(1996); see generally Amendment of Section 3.606 of the Commission’s Rules and
Regulations, 41 FCC 148, ¶ 79 (1952).
37
See R.R. Bowker LLC, Broadcasting & Cable Yearbook 2006, at B-186
(2005).

- 15 -
 WRNN is a “spoke” station: since 1985, it has been licensed to Kingston,

New York.38 Kingston is located at the very northern tip of the vast New York

City DMA — the most populous DMA in the Nation. The upstate New York

region in which Kingston is located has few economic, social, and cultural ties

with the rest of the DMA.39 Thus, traditionally, WRNN pursued an audience only

in the area immediately surrounding Kingston. Indeed, Nielsen initially assigned

WRNN to the Albany DMA, believing that the station was of more interest to

viewers there than to viewers in the New York City DMA.40 In addition, before

must-carry, WRNN had never been carried on cable systems outside Kingston’s

surroundings.41

38
See Market Modifications and the New York Area of Dominant Influence,
Memorandum Opinion and Order, 12 FCC Rcd 12262, Order ¶ 2 n.2 (1997)
(“1997 Order”).
39
See WRNN License Company, LLC for Modification of the Television
Market for WRNN-DT, Kingston, New York, CSR 6956-A, Opposition of
Cablevision Systems Corporation, at 29-32 (filed FCC Feb. 13, 2006) (“Opp.”) (A
300-A 303) (shopping and labor patterns confirm that the two spokes are distinct);
id. at 17-22 (A 288-A 293) (state and federal agencies recognize that Long Island
is not part of the same economic market as upstate New York).
40
See 1997 Order ¶ 66.
41
See Petition of Time Warner New York City Cable Group, Memorandum
Opinion and Order, 11 FCC Rcd 6528, ¶ 24 (1996).

- 16 -
 In 1993, however, WRNN was acquired by new owners, who changed

WRNN’s format to home-shopping and began aggressively pursuing carriage

rights throughout the New York metro area, including Long Island. Apparently,

WRNN’s new owners were hoping to parlay an inexpensive Kingston broadcast

station into a valuable channel on cable systems in New York City and other parts

of the DMA. Because those areas are vastly more populous than Kingston’s

traditional service area, they hold out the promise of vastly greater advertising

revenues. Presumably, WRNN’s new owners calculated that, if cable-enhanced

reception and favorable channel placement would drive even a small fraction of

New York City eyeballs to WRNN, the station would become vastly more

profitable than it had been when serving only upstate New York.

At first, however, WRNN’s cynical business plan failed to pay dividends. In

the wake of the must-carry statute’s enactment in 1992, the FCC’s Cable Services

Bureau conducted a comprehensive proceeding addressing the carriage rights of

numerous spoke stations in the vast New York market. That proceeding

culminated in a 1996 order in which the Bureau modified WRNN’s market to

- 17 -
exclude Long Island and much of the rest of the New York City DMA.42 The

Bureau concluded that WRNN scored poorly under all four statutory factors, and

noted that WRNN’s transmitter failed even to cast over Long Island a so-called

“Grade B” quality over-the-air signal (the signal strength that the FCC generally

uses to determine a station’s over-the-air reach).43

The next year, the full FCC agreed that carriage of WRNN on Long Island

would not promote localism.44 Among other things, the FCC stated: “Grade B

contour coverage, in the absence of other determinative market facts (i.e. where the

four statutory factors by themselves define the market, where there is no clear

proof that the contour fails to reflect actual coverage, or where there is a terrain

obstacle such as a mountain range or a significant body of water), is an efficient

tool to adjust market boundaries because it is a sound indicator of the economic

reach of a particular television station’s signal.”45

42
See Petition of Cablevision, Memorandum Opinion and Order, 11 FCC
Rcd 6453 (CSB 1996) (“1996 Order”).
43
See id. ¶¶ 65-68.
44
1997 Order.
45
See id. ¶ 17.

- 18 -
 This Court affirmed.46 The Court interpreted the must-carry statute as

requiring the FCC to use its modification power so as to “ensure the continuation

of the local origination of programming.”47 And, in limiting WRNN’s market, the

Court held, the FCC “did not misinterpret the 1992 Cable Act or deny petitioners

any rights granted them in that statute.”48 As the Court explained:

[N]ot only does the New York ADI span four states, but the counties within
this area are not contained in one contiguous land mass. Rather, they are
separated by several bodies of water, including the Hudson River and Long
Island Sound. New York City acts as a natural boundary because its
complicated and congested traffic patterns make it difficult for residents at
one end of the ADI to access communities at the other end. The ADI
therefore has an obvious tendency to break itself up into smaller divisions
reflecting localized regions. New York City serves as the “hub,” with its
stations’ programming and advertising being of widespread interest across
the ADI. Outlying communities are the “spokes,” with their stations
generally showing programming and advertising of interest only to viewers
in relatively close proximity to that community.49

5. WRNN’s Second Attempt at Carriage on Long Island.

In the wake of this Court’s decision, WRNN became a digital-only broadcast

station. Although all analog broadcast stations must relinquish their analog

46
See WLNY-TV, Inc. v. FCC, 163 F.3d 137 (2d Cir. 1998).
47
Id. at 143.
48
Id. at 139.
49
Id. at 144.

- 19 -
broadcast spectrum in 2009, WRNN did so five years ahead of the deadline50 —

something television stations have generally done to obtain compensation from

wireless telephone companies.51 Since then, WRNN has been viewable over-the-

air only by the minuscule group of consumers that use a digital tuner and antenna.

WRNN also moved its main studio to Manhattan. And, no doubt mindful that the

Bureau had denied it carriage on Long Island because of its Grade B contour,

WRNN moved its antenna to Newburgh, 50 miles to the south.

Pointing to these new facts, WRNN asked the FCC to re-include Long Island

in its market. In a 2006 order, the Bureau determined that, in most regards,

WRNN’s case was no stronger than before.52 As the Bureau noted, WRNN had

shown no historical carriage on Long Island,53 the record was “not impressive

relative to WRNN’s programming targeted to the Nassau Communities,”54 there is

“an abundance of far closer New York City and Long Island stations programming

50
See WRNN-TV Assocs., 19 FCC Rcd 12343 (MB 2004).
51
See Service Rules for the 746-764 MHz Bands, and Revisions to Part 27 of
the Commission’s Rules, Notice of Proposed Rulemaking, 14 FCC Rcd 11006, ¶ 99
(1999).
52
2006 Order.
53
See id. ¶ 12.
54
Id. ¶ 16.

- 20 -
to the cable communities,”55 and “Long Island viewership patterns of WRNN-DT”

do not meet the “‘moderate level of viewership’ threshold.”56 Thus, the Bureau

stated, “were we to apply the other three statutory factors without considering

WRNN’s signal coverage, WRNN would have little if any carriage rights

anywhere within its New York Market.”57

Noting, however, that WRNN cast a Grade B signal over the communities,

the Bureau ruled that carriage should nonetheless be granted. According to the

Bureau, “in instances where the other three factors would not add significantly to

the analysis of a station’s market, Grade B coverage becomes a very relevant factor

in determining whether to modify a particular station’s market.”58

After Cablevision sought review, the full FCC affirmed by a three-to-two

vote.59 The majority largely adopted the Bureau’s reasoning, stating simply: “We

55
Id. ¶ 17 (internal quotation marks omitted).
56
Id. ¶ 18.
57
Id. ¶ 10.
58
Id.; see id. ¶ 14 (“Grade B coverage is an efficient tool to adjust market
boundaries because it is a sound indicator of the economic reach of a particular
television station’s signal.”) (internal quotation marks omitted); id. ¶ 16 (“More
impressive, however, is the evidence that WRNN-DT places a Grade B signal
contour over all of Nassau County.”).
59
2007 Order.

- 21 -
have reviewed the record in this proceeding, which need[s] not be restated in

detail, and we find that the Bureau correctly modified WRNN-DT’s market.”60

The majority disagreed with the Bureau in only two respects — both of which,

according to the majority, only “serve[d] to add more support to the conclusions

underlying the Bureau’s decision.”61

In particular, the FCC believed that “the Bureau erred in its analysis of

WRNN-DT’s programming by finding that WRNN’s record evidence did not

support a finding of significant programming targeted to communities in Long

Island.”62 Said the FCC: “WRNN submitted a substantial record that details

programming that focuses on Long Island, particularly communities in Nassau

County and communities in Suffolk County that border Nassau County.”63 In a

footnote, the FCC simply cited the submission in which WRNN had so argued.64

The FCC also stated that the justification for carriage “has strengthened

since the [Bureau order], as WRNN-DT is now carried on competitive cable

60
Id. ¶ 4.
61
Id.
62
Id. (footnote omitted).
63
Id.
64
Id. ¶ 4 n.14 (“See WRNN Petition at Exhibit 4.”).

- 22 -
systems in Nassau and Suffolk Counties.”65 According to the FCC, “Verizon

carries WRNN-DT on its systems in Massapequa Park, Oyster Bay and

Hempstead, New York. . . . This overlapping carriage provides support for

WRNN-DT with respect to the historic carriage factor.”66

Although not known to be hostile to must-carry, Commissioners Copps and

Adelstein dissented. Insofar as the majority discerned carriage-favoring facts other

than Grade B contour, the dissenters disagreed. In the dissenters’ view, Verizon’s

initiation of carriage “sometime during the past fifteen months” did not constitute

“historical” carriage.67 Moreover, the dissenters believed that program coverage

cannot be shown simply by “cit[ing] to an exhibit filed by WRNN without any

explanation how the Bureau ‘erred’ or any attempt to address the contradictory

evidence.”68 Insofar as the majority adopted the Bureau’s reasoning that Grade B

coverage is enough by itself, the dissenters disagreed as well:

[A]s the Bureau noted, the Commission found in the [1997 Order] that
Grade B coverage “is an efficient tool to adjust market boundaries because it
is a sound indicator of the economic reach of a particular station’s signal.”
But the Bureau, and now the majority, fails to cite the immediately

65
Id.
66
Id. ¶ 4 n.15.
67
Id. Dissent at 1.
68
Id. Dissent at 1, 3.

- 23 -
 preceding language: that Grade B coverage is a sound indicator of a station’s
economic reach “in the absence of other determinative market facts” such as
“where there is a terrain obstacle such as a mountain range or a significant
body of water.”69

As the dissenters pointed out, the Commission relied on such contrary indication in

1997 when denying WRNN carriage on Long Island. And, the dissenters

explained:

All that has changed is that WRNN now operates from a transmitter site well
south of its old transmitter site (hence the improved signal strength over
Long Island) and moved its main studio from Kingston, its community of
license, to New York City. But that does not transform WRNN from a
Kingston “spoke” station into a New York City “hub” station. WRNN is
licensed to serve the residents of Kingston, not New York City or the New
York region. The question from a localism perspective is whether the cable
communities are in the same “local market” as the station’s community of
license. A station’s Grade B contour is often a good proxy for that
determination. Here, given the unique geography of the New York market
and the distances involved, we believe it is not.70

The dissenters finally noted that expanded carriage does not necessarily

promote localism:

There is a point at which the concept of a “local market” reaches the

breaking point and expanding it further will actually damage the localism
interests we are trying to serve. For the sake of the people of Kingston, we
hope we have not reached that point here.71

69
Id. Dissent at 1-2.
70
Id. Dissent at 2-3 (footnotes omitted).
71
Id. Dissent at 3.

- 24 -
 6. Judicial Review.

Cablevision then filed a petition for review in this Court and meanwhile

asked the FCC to stay its ruling pending judicial review. As Cablevision

demonstrated, absence of a stay would inflict four different kinds of irreparable

injury: (1) Cablevision would have to overhaul its channel line-up, which

subscribers find annoying and confusing, (2) some programming that subscribers

like to watch would have to be dropped, only to be replaced by WRNN, a home-

shopping station; (3) in making the line-up changes, Cablevision would incur

significant out-of-pocket expenses; and (4) Cablevision would incur First

Amendment injury, which is always irreparable.

When the FCC did not rule on the petition (as it still has not done to date),

Cablevision filed a stay motion in this Court, pointing to the same irreparable

harms. At oral argument on Cablevision’s motion, the Court asked several

questions about the part of the FCC’s order stating that Cablevision’s carriage duty

does not go into effect until “60 days from the date on which WRNN provides

[certain] equipment,”72 something that had not yet happened as of the date of the

oral argument. In particular, the Court inquired whether harm to both parties could

72
2007 Order ¶ 2.

- 25 -
be avoided by expediting the appeal.73 Later that day, the Court entered an order

containing an expedited briefing schedule, calling for oral argument on the merits

about one month later.

Although the apparent intent of the Court’s order was that expedition would

safeguard Cablevision from injury pending review, WRNN the very next day sent

Cablevision a letter stating that it had sent the equipment and that “Cablevision

must commence carriage of WRNN-DT no later than March 16, 2008.” WRNN’s

letter noted that, to begin carriage on that date, Cablevision might even earlier have

to take certain costly and irreversible steps, such as providing notification to

subscribers and installing equipment at the premises of about 19,000 subscribers.

According to WRNN, “[i]n order to comply with the FCC’s order, Cablevision

must take any preliminary actions necessary to carry WRNN.”74

73
See, e.g., Audio Tape: Cablevision v. FCC, No. 07-5553, Oral Argument
(Jan. 15, 2008) (2nd. Cir.) (“So if we did nothing, to follow up on Judge Kearse’s
inquiry, and we simply expedited this appeal, and if, assume for the argument, we
decided at least in summary form one way or another within 60 days, there would
never have been a need for a stay.”).
74
In light of WRNN’s actions, Cablevision respectfully requests that the
Court announce its decision in this case as soon as convenient after oral argument.
Cf. Audio Tape: Cablevision v. FCC, No. 07-5553, Oral Argument (Jan. 15, 2008)
(2nd. Cir.) (“if . . . we decided at least in summary form one way or another within
60 days”).

- 26 -
 Summary of Argument

I. The FCC committed numerous errors in analyzing WRNN’s supposed

service to Long Island. First, in connection with Long Island-targeted

programming, the FCC substituted its judgment for that of the Bureau without

providing any explanation. Although the FCC cited an analysis submitted by

WRNN, it never explained why the Bureau erred in crediting Cablevision’s

contrary analysis. That is because no convincing explanation exists.

Second, although the FCC relied on carriage by Verizon, that provider

initiated carriage only a few months ago. The statute asks whether a station has

been “historically carried” — not whether it has been carried recently.

Third, the FCC apparently believed that WRNN should be carried

throughout its Grade B contour. That belief runs counter to the 1997 order in

which the agency recognized that spoke stations in the New York City DMA are

entitled to less than their Grade B contour insofar as the Manhattan skyline, the

Hudson River, and Long Island Sound separate “spokes” into distinct sub-markets.

Fourth, the FCC erred in refusing to place weight on the statutory factor

asking “whether any other television station” provides service to Long Island. The

- 27 -
FCC’s refusal flies in the face of not only the statutory text but also the “value of

localism”: importation of distant stations undercuts true local stations.

Finally, the FCC erred in refusing to place weight on the statutory factor

inquiring into “viewing patterns in cable and noncable households within the areas

served by the cable system.” Lack of viewership is directly relevant to localism. It

is no answer to say that stations like WRNN have only a small audience: the

agency can still determine the audience’s relative distribution.

II. More fundamentally, the FCC misapprehended the meaning of

“localism.” Localism calls for local stations addressing the needs of their

community of license — not distant stations addressing the needs of communities

that are distant from (but more populous and thus more lucrative than) their

community of license. The FCC failed to inquire whether carriage might harm

viewers in WRNN’s community of license — by providing WRNN with an

incentive to pursue viewers (and thus advertising dollars) in distant but more

populous areas.

The FCC further overlooked that, where a station manipulates its signal and

programming in a bid for additional cable carriage, rewarding such gamesmanship

goes well beyond the statutory purpose of returning broadcasters to their “natural

- 28 -
market.” In enacting must-carry, Congress intended to restore broadcasters to the

audience they would have had in a world without cable — not to make

broadcasters better off than that. Rewarding gamesmanship like WRNN’s is also

harmful to localism and contrary to prior FCC precedent.

III. Compelled carriage of WRNN on Long Island violates the First

Amendment. Although the Supreme Court in the Turner litigation upheld the

must-carry statute against a facial challenge, it did so by holding that the statute’s

rationale — that cable should be prevented from harming the existing system of

localism by depriving broadcasters of their audience — justified the statute in the

face of intermediate scrutiny. In defending against Cablevision’s as-applied

challenge, the FCC cannot rely on that reasoning.

First, the FCC proposes to grant WRNN carriage rights because of the Long

Island-targeted content of its programming. That means that the FCC’s order is

content-based and subject to strict scrutiny, which it cannot withstand.

Second, the Supreme Court approved of must-carry as a measure to

guarantee broadcasters the audience they would have had in a world without cable

— not a measure granting them access to a new and expanded audience, as WRNN

seeks.

- 29 -
 Third, the Turner rationale contemplated the preservation of broadcast

signals for the benefit of over-the-air viewers. WRNN’s over-the-air audience is

de minimis.

Fourth, the Turner rationale depended on the notion that cable operators

were unconstrained by competition. Today on Long Island, Cablevision is subject

to vibrant competition from two DBS operators and a telephone company.

Fifth, the Turner rationale predicted that cable operators might deny stations

carriage for anticompetitive reasons: to replace them with video-programming

services on which they could sell advertising. Here, the record is devoid of any

evidence to that effect.

Finally, the Turner rationale predicted that, without carriage, stations would

deteriorate to a substantial degree or fail altogether. There is no evidence that,

without carriage on Long Island, this fate will befall WRNN.

Compelled carriage of WRNN on Long Island would also effect a taking. A

6 MHz channel on cable is the electronic equivalent of a beach-front lot. There is

no reason to treat electronic property differently from other property. If the order

under review stands, WRNN will be allowed to occupy Cablevision’s property and

to deny Cablevision all use.

- 30 -
 Constitutional concerns provide further support for Cablevision’s other

arguments. If possible, a statute must be interpreted to avoid not only actual

unconstitutionality but also grave constitutional doubts. Moreover, where an

agency’s reading generates significant constitutional doubt, that reading is not

entitled to Chevron deference.

Argument

I. THE FCC ERRED IN ANALYZING WRNN’S SUPPOSED SERVICE

TO LONG ISLAND.

The must-carry statute provides that, in considering market-modification

requests, the FCC must “afford particular attention to the value of localism”75

which, as explained above, is the principle that television viewers should have

access to television stations from their own communities.76 Although the statute

goes on to list four factors that the FCC must consider, each of those factors is

subordinate to the statute’s overarching instruction to heed “the value of

75
47 U.S.C. § 534(h)(1)(C)(ii).
76
See supra, p.7.

- 31 -
localism.”77 As this Court accordingly concluded in WLNY, market-modification

decisions must promote localism.78

In the order under review, the FCC asked only one question: whether

expanding WRNN’s market to include Long Island would bring additional

broadcast service to Long Islanders. We will explain below in Part II that this was

the wrong question to ask: localism means that local stations broadcast

programming of interest to local communities — not that distant stations broadcast

programming of interest to distant communities. But, even in answering the

question whether expanding WRNN’s market to include Long Island would bring

additional broadcast service to Long Islanders, the FCC committed numerous

fundamental errors.

A. The FCC’s Overruling of the Bureau’s Findings About Long-

Island-Targeted Programming Is Unexplained and
Unexplainable.

Before the Bureau, Cablevision submitted an analysis that carefully

examined a representative week of WRNN’s programming schedule.79 That study

77
See 47 U.S.C. § 534(h)(1)(C)(ii) (FCC “shall afford particular attention to
the value of localism by taking into account such factors as . . . .”).
78
See WLNY, 163 F.3d at 143 (market modification must “ensure the
continuation of the local origination of programming”); see also 2007 Order
Dissent at 1 (“Localism is our lodestar in cable market modification cases.”).

- 32 -
showed that, of the 168 hours of WRNN’s broadcast week, over 131 hours —

more than 78% — consisted of home shopping and infomercials.80 Another 6

hours and 42 minutes consisted of spot commercials.81 Of the remaining time, 4.2

hours consisted of national news and events, leaving only 8.1 hours — 4.8% of

WRNN’s total broadcast week — for local coverage.82 Of those 8.1 hours, 6.25

hours covered the tri-state region generally and about one hour covered the Hudson

Valley.83 Less than one hour covered Long Island issues.84

Cablevision further demonstrated that the two television shows that WRNN

claimed provide Long Island-specific news devoted only 28.9 minutes per week

and 1.5 minutes per week, respectively, to coverage of Long Island issues.85 Other

shows that WRNN portrayed as containing Long Island-targeted programming

79
See Opp. Exh. 7 (A 487- A 655).
80
Opp. at 33 (A 304). Cablevision’s analysis demonstrated that none of this
programming was specifically targeted toward Long Island. See id. at 37 (A 308).
81
Id. at 33 n.121 (A 304).
82
Id. at 33-34 (A 304- A 305).
83
Id. at 34 (A 305).
84
Id.
85
Id. at 35 (A 306).

- 33 -
contained even less Long Island-specific programming.86 WRNN broadcast no

Long Island-specific programming on weekends, and none of WRNN’s

advertisements involved Long Island businesses or were targeted specifically at

Long Island customers.87

Moreover, Cablevision showed that, for the 2003-2005 period, WRNN filed

“Quarterly Issues Reports” (which stations must file with the FCC to list

“programs that have provided the station’s most significant treatment of

community issues during the preceding three month period”88) that did not contain

a single Long Island-specific news report until the third quarter of 2005, just as

WRNN geared up to file its market-modification petition.89 Even then, WRNN’s

local coverage of Long Island consisted of only three news stories.90 In the fourth

quarter of 2005, at around the time WRNN filed its petition, WRNN listed 14 Long

86
Id. at 35-36 (A 306- A 307).
87
Id. at 36-37 (A 307- A 308).
88
47 C.F.R. § 73.3526(e)(11).
89
Opp. at 37-38 (A 308- A 309).
90
Id. at 38 (A 309).

- 34 -
Island-specific stories, for a total of 17 stories in the three-year period, all of which

were aired in the weeks immediately surrounding the filing of WRNN’s Petition.91

In light of Cablevision’s showing, it was not enough for the FCC simply to

state that WRNN provided “significant programming targeted to communities in

Long Island.”92 At a minimum, the FCC was required to explain why

Cablevision’s analysis was unpersuasive93 — a burden that was particularly heavy

because the FCC substituted its judgment for that of the Bureau.94 The FCC failed

91
Id.
92
2007 Order ¶ 4.
93
See, e.g., Mistick PBT v. Chao, 440 F.3d 503, 512 (D.C. Cir. 2006) (“An
agency’s failure to respond meaningfully to the evidence renders its decisions
arbitrary and capricious. Unless an agency answers objections that on their face
appear legitimate, its decision can hardly be said to be reasoned.”) (internal
quotation marks omitted).
94
See, e.g., Traction Wholesale Center Co., Inc. v. NLRB, 216 F.3d 92, 101-
02 (D.C. Cir. 2000) (“Of course, the Board is free to substitute its judgment for the
ALJ’s, but when the Board reverses an ALJ it must make clear the basis of its
disagreement. Because the Board has failed to explain, in either its decision or its
brief, why it disagreed with the ALJ that the insurance policy made rescission
inappropriate, we grant the petition for review with respect to this issue and
remand to the Board.”) (internal quotation marks and citation omitted); NLRB v.
Aces Mechanical Corp., 837 F.2d 570, 574 (2d Cir. 1988) (“It is a fundamental
principle of administrative law that the Board must furnish reasons for its decision.
When applied to this case, the principle requires that the Board refer to specific
facts inconsistent with the ALJ’s finding. The Board’s decision leaves ambiguous
why the ALJ’s determination was rejected.”) (citation omitted).

- 35 -
to shoulder that burden: its only explanation consisted of a bare citation to

WRNN’s programming analysis.95

That citation showed only that the Bureau’s conclusion ran counter to

WRNN’s arguments — it did nothing to explain why WRNN’s arguments were

more persuasive than Cablevision’s or why the Bureau’s factual findings were

wrong. The absence of an explanation is not surprising: based on the paltry

evidence that WRNN submitted to the Bureau, no sustainable explanation could be

given. As Cablevision’s submissions showed, WRNN’s Long Island-targeted

programming was de minimis. Thus, the FCC’s order also fails for lack of

substantial evidence.96

B. The FCC’s Interpretation of the “Historical Carriage” Factor

Flies in the Face of Unambiguous Statutory Text.

Although the FCC discerned “historical carriage” on Long Island, that

determination is contrary to clear statutory language. The majority relied on

carriage by a single provider, Verizon, that began carrying WRNN on Long Island

95
2007 Order ¶ 4 n.14.
96
See, e.g., Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir. 2007) (agency’s
factual findings may be upheld only when they are “supported by substantial
evidence”).

- 36 -
only after the Bureau issued its order.97 The statute asks whether WRNN has been

“historically” carried in the communities under consideration98 — a limitation that

goes hand-in-glove with the statute’s intent to preserve and restore (not expand)

broadcasters’ audiences.99 Carriage initiated in the past few months does not

constitute historical carriage. As the dissenters correctly pointed out, “[t]he

majority reads the word ‘historically’ out of the statute.”100

C. The FCC’s Reliance on Signal Coverage Is Directly Contrary to

Governing FCC Precedent.

The FCC has traditionally attached significance to Grade B coverage as “one

indication of [a station’s] natural market.”101 But Grade B coverage is not such an

indication where, as here, it results from a recent move of the station’s antenna,102

where the station is seeking to have its market expanded to include communities

with few economic, social, and cultural ties to its community of license,103 where

97
2007 Order ¶ 4 n.15.
98
47 U.S.C. § 534(h)(1)(C)(ii)(I) (emphasis added).
99
See infra, Part II-B.
100
2007 Order, Dissent at 1.
101
1997 Order ¶ 14.
102
See generally infra, pp. 54-55.
103
See Opp. at 17-22, 29-32 (A 288- A 293, A 300- A 303).

- 37 -
the station has no over-the-air following,104 and where a good-quality signal cannot

even be drawn off-air.105

Indeed, the FCC’s past precedent states quite clearly that carriage must be

limited to an area smaller than the station’s Grade B contour “where there is a

terrain obstacle such as a mountain range or a significant body of water.”106 As the

Bureau acknowledged, Nassau County is separated from upstate New York by

both a mountain range (the skyline of New York City) and two significant bodies

of water (the Hudson River and Long Island Sound).107 Such geographic features

serve to separate Long Island and upstate New York into distinct economic,

cultural, and social communities. Indeed, the FCC itself a decade ago refused to

order carriage of WRNN on Long Island precisely because of “the importance of

geographic features such as expansive waterways like the Hudson River and the

104
See generally infra, Part III.
105
See 2007 Order ¶ 2 (recognizing that, “to receive a good quality signal at
Cablevision's principal head-end,” it is “necessary” to rely on “specialized
equipment”).
106
See 1997 Order ¶ 17 (emphasis added).
107
See 2006 Order ¶ 9 (“the Station is separated from [Cablevision’s]
Suffolk County Communities by the significant barriers that the Long Island Sound
and New York City present”). Although the quoted statement by its terms
addressed only Suffolk County, the same thing is true of Nassau County.

- 38 -
Long Island Sound and the interposition of Manhattan in the epicenter of the

market with its extremely congested infrastructure, that act to remove communities

from one another.”108

At a minimum, then, the FCC was required to explain why Grade B contour-

wide carriage was appropriate despite these geographic features and the economic

and cultural barriers that they create.109 “In changing course, an agency must

provide a reasoned analysis indicating that prior policies and standards are being

deliberately changed, not casually ignored.”110 Here, that reasoned analysis is

simply lacking.

D. The FCC’s Refusal To Consider Local Programming Provided by

Other Stations Is Contrary to Plain Statutory Text.

Section 614(h)(1)(C)(ii)(III) requires the FCC to consider “whether any

other television station . . . provides news coverage of issues of concern to [the

108
1997 Order ¶ 12; see also 1996 Order ¶ 50.
109
See, e.g., New York State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d
98, 107-08 (2d Cir. 1996) (“When an administrative agency addresses a question in
an inconsistent manner, departing from a position it has previously taken, it must
make a clear statement of its new rule and articulate its reasons for making the
change in order for an appellate court to conduct intelligible judicial review.”).
110
Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 470 (2d Cir. 2007)
(internal quotation marks omitted).

- 39 -
cable] community or provides carriage or coverage of sporting and other events of

interest to the community.”111 But, as the agency explained in the order under

review, the FCC assigns weight to this factor only where it militates in favor of

carriage (i.e., where there are no stations serving the “target” area), not where the

factor militates against carriage (i.e., where — as here — there are such

stations).112

That policy is directly contrary to both the statutory text (which requires the

FCC to take this factor into account in all, not just some, cases), and the governing

“value of localism.” Where there are stations serving the target area, an additional

station will not appreciably add to the amount of programming catering to local

viewers. More troublingly, carriage of a distant station may undercut local

stations, which will face additional competition for viewers and advertisers and

may therefore find it more difficult to invest in coverage from a perspective that is

truly local.

111
47 U.S.C. § 534(h)(1)(C)(ii)(III).
112
See 2007 Order ¶ 4; 2006 Order ¶ 17.

- 40 -
 E. The FCC Refusal To Consider Viewing Patterns Is Contrary to
Plain Statutory Text.

Section 614(h)(1)(C)(ii)(IV) requires the FCC to take into account “evidence

of viewing patterns in cable and noncable households within the areas served by

the cable system.”113 The FCC has long interpreted this factor, too, in a “heads you

lose, tails I win” manner. Under FCC precedent, actual viewership is counted in

favor of carriage. In the case of “specialty stations” (which include home-

shopping stations), however, the FCC refuses to consider absence of viewership as

weighing against carriage.114

That policy is again directly contrary to the statute’s text and purpose. Lack

of viewership suggests that a station is of limited interest to inhabitants of the cable

community, a fact that is directly relevant to the “value of localism.” And it is no

answer to say that home-shopping stations often have low viewership even near

their transmitter. Must-carry was intended to prevent the proliferation of home-

shopping stations — not to give them special benefits.115

113
47 U.S.C. § 534(h)(1)(C)(ii)(IV).
114
See 2007 Order ¶ 4; 2006 Order ¶ 18.
115
See Turner II, 520 U.S. at 234 (O’Connor, J., dissenting) (“Must-carry is
thus justified as a way of . . . preventing an independent station from adopting a
home-shopping format.”).

- 41 -
 Besides, if the FCC believes that even niche stations with small viewership

have a right to compelled carriage, it can and should determine at least where that

small viewership is located. Even if a station serves only a niche audience, that

audience’s geographic location can still be identified. For example, in this case,

the evidence showed that, to the extent WRNN has any audience at all, it is located

in areas other than Long Island.116 By refusing to consider that fact on the theory

that WRNN’s overall audience is small, the FCC threw out the baby with the

bathwater.

II. THE FCC IGNORED THE STATUTORY INSTRUCTION THAT

MARKET MODIFICATION SHOULD “BETTER EFFECTUATE
THE PURPOSES OF” MUST-CARRY.

In addition to the many errors that the FCC committed in analyzing

WRNN’s service to Long Island, the agency committed error of an even more

fundamental kind: it misapprehended the statute’s very purpose.

A. The FCC Fundamentally Misapprehended the Governing “Value

of Localism.”

Judging from the order, broader carriage of a spoke station always promotes

localism, so long as the station provides some programming targeted toward the

communities in which carriage is sought. But localism calls for local stations

116
See Opp. at 45 (A 316).

- 42 -
addressing the needs of their community of license — not distant stations

addressing the needs of communities that are distant from (but more populous and

thus more lucrative than) their community of license. Thus, the FCC’s view rests

on a fundamentally mistaken conception of localism.

The FCC further completely ignored localism costs in the Kingston spoke.

Carriage of spoke stations in the hub or in other spokes provides them with an

incentive to pursue viewers (and thus advertising dollars) in populous areas

removed from their community of license.117 Any targeting of other spokes

necessarily comes at the expense of the station’s community of license. Thus,

spoke stations should not be given carriage outside their own spoke.

WRNN is the paradigmatic spoke station: its community of license is at the

very rim of the vast New York City DMA, in an area (upstate New York) that is

117
See 2007 Order, Dissent at 3 (“There is a point at which the concept of a
‘local market’ reaches the breaking point and expanding it further will actually
damage the localism interests we are trying to serve.”); WRNN License Co., 20
FCC Rcd 7904, ¶ 17 n.63 (MB 2005) (“we are concerned that placement of the
main studio in New York, as well as moving the Station’s antenna might threaten
the quality of service to WRNN-DT’s community of license”); WLNY-TV, Inc. v.
FCC, No. 97-4243, Brief for Respondents at 13 (filed 2d Cir. Jan. 22, 1998)
(“FCC’s WLNY Br.”) (“Local viewers will benefit from the stations’ concentration
on local concerns, rather than those attractive to a distant, but more lucrative
area.”).

- 43 -
economically, socially, culturally, and otherwise distinct from the hub (New York

City) and from other spokes (such as Long Island). Thus, carriage of WRNN on

Long Island will diminish Kingston-targeted programming. Localism costs to

Kingston are particularly severe where, as here, an upstate spoke station is seeking

carriage not only on Long Island but also throughout the rest of the New York City

DMA and even outside of it.118 Indeed, the record shows that this concern is far

from imaginary.119

The FCC acknowledged the concern ten years ago, when it defended its

1997 Order in this Court. As the FCC then stated: “[I]f a station licensed to

upstate New York were carried on cable systems serving, for example, more

densely populated Nassau County, it would have an incentive to provide

programming targeted at the more profitable Long Island communities at the

expense of the community the station has been licensed to serve. That would

118
See Opp. at 34 (A 305) (“WRNN has on other occasions assured the
Commission that it is providing local coverage to locations as far north as Warren
County, New York, and Burlington, Vermont, as far south as Hamilton and
Elizabeth, New Jersey, and as far east as Bridgeport, Connecticut”) (footnotes
omitted).
119
See id. at 38 n.147 (A 309) (“WRNN has received numerous complaints
regarding its lack of local programming, even in its own community of license”);
Opp. Exh. 10 (collecting complaints).

- 44 -
defeat the very localism that must carry is intended to promote as well as the

congressional policy that television stations be licensed to various communities

throughout the country and not just in the most populous areas.”120

Despite this acknowledgment ten years ago, and despite the concerns

expressed by the two dissenters, the FCC now fails even to consider this aspect of

the question before it: the order under review addresses only possible benefits on

Long Island, and is silent about localism costs in upstate New York. In sum, the

FCC considered only one side of a two-sided coin. “Normally, an agency rule

would be arbitrary and capricious if the agency has . . . entirely failed to consider

an important aspect of the problem.”121

B. The FCC’s Policy of Rewarding Must-Carry Gamesmanship Is

Directly Contrary to the Statute’s Purposes.

Even assuming that spoke stations should ever be carried outside of their

own spoke, they certainly should not be where, as here, the FCC previously

determined that the station’s natural market is limited to its own spoke, and the

120
FCC’s WLNY Br. at 29-30 (emphasis added).
121
Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983).

- 45 -
station seeks carriage on the basis of measures later undertaken solely with a view

to obtaining must-carry rights.

WRNN has conceded — indeed, trumpeted — that, after the FCC

determined that WRNN’s natural market was limited to the upstate New York

spoke, WRNN manipulated its signal and programming for no reason other than to

acquire must-carry rights. For example, in the context of Cablevision’s stay

motion, WRNN argued that it had invested in new Long Island-directed

transmission equipment and programming with a view to obtaining cable carriage

on Long Island, and that denial of carriage would result in “stranded . . .

investment.”122 An “investment” is, of course, something that one parts with “in

order to gain profitable returns.”123

Yet, according to the FCC, the signal and programming of a station engaged

in such must-carry gamesmanship throw precisely the same weight on the scale as

122
See Opposition of WRNN License Co., LLC to Motion for Stay of
Cablevision, Cablevision Sys. Corp. v. FCC, No. 07-5553 (filed 2d Cir. Jan. 11,
2008), at 18 (arguing that WRNN will be harmed if a stay will “deprive WRNN of
the benefits of . . . substantial investments” in a new antenna and Long Island-
targeted programming); Audio Tape: Cablevision v. FCC, No. 07-5553, Oral
Argument (Jan. 15, 2008) (2nd. Cir.) (“we would have stranded all our investment
in that Long Island programming”).
123
Random House Webster’s Unabridged Dictionary 1004 (2001).

- 46 -
the signal and programming of a station that has been broadcasting in the same

way for decades.124 That reading is directly at odds with the primary purpose of

must-carry — a purpose that the statute itself directs the FCC to observe.125 As

illustrated by the statute’s focus on “historica[l]” carriage,126 the purpose of the

must-carry statute was to return broadcasters to their “natural market.”127 Congress

intended to restore broadcasters to the audience they would have had in a world

without cable.128 Congress did not intend to make broadcasters better off than they

124
See FCC Opposition to Emergency Motion for Stay, Cablevision Sys.
Corp. v. FCC, No. 07-5553 (filed 2d Cir. Jan. 10, 2008), at 13 (spoke station may
qualify for carriage in the hub and other spokes if it “modifie[s] its operations to
serve, through programming as well as signal coverage, the [other] communities at
issue”).
125
See 47 U.S.C. § 534(h)(1)(C)(i) (FCC must use modification power “to
better effectuate the purposes of this section”).
126
Id. § 534(h)(1)(C)(ii)(I).
127
1997 Order ¶ 14.
128
See Turner I, 512 U.S. at 659 (“Congress granted must-carry privileges to
broadcast stations on the belief that the broadcast television industry is in
economic peril due to the physical characteristics of cable transmission and the
economic incentives facing the cable industry.”); id. at 663 (“protecting noncable
households from loss of regular television broadcasting service due to competition
from cable systems is an important federal interest”) (internal quotation marks
omitted); Turner II, 520 U.S. at 193 (“In short, Congress enacted must-carry to
preserve the existing structure of the Nation’s broadcast television medium while
permitting the concomitant expansion and development of cable television.”)
(internal quotation marks omitted).

- 47 -
would have been without cable.129 Again, the FCC itself so recognized in the brief

that it filed in this Court ten years ago.130

The FCC’s policy of rewarding gamesmanship will also do great harm to the

statutory purpose of promoting localism. As shown above in Part I, even a small

129
See, e.g., Turner II, 520 U.S. at 222 (“[A] system of subsidies would
serve a very different purpose than must-carry. Must-carry is intended not to
guarantee the financial health of all broadcasters, but to ensure a base number of
broadcasters survive to provide service to noncable households.”); id. at 246
(O’Connor, dissenting) (“the must carry provisions have never been justified as a
means of enhancing broadcast television”) (emphasis in original).
130
See FCC’s WLNY Br. at 12 (“Must carry was enacted to preserve the
historical viewership of broadcast television stations in a cable-dominated
world.”); id. at 3 (“Congress determined to restore stations’ assurance of being able
to reach former over-the-air viewers.”); id. (“Congress intended to put stations
back in the same position they were in before cable”); id. at 13 (“Must carry was
intended to restore broadcast stations to the position they were in before the advent
of cable dominance; that is, to replicate over-the-air signal availability.”); id. at 17
(“The Commission has fulfilled the purposes of the must carry regime by ensuring
that petitioners will be able to reach each viewer they could have reached before
cable became the principal video distribution medium.”); id. at 27 (“Must carry
was implemented to help restore broadcast stations in a cable-dominated world to
the position they were in before cable became the ‘dominant nationwide video
medium.’”); id. (“Congress was, in other words, attempting to replicate by cable
carriage stations’ over-the-air and pre-cable-domination signal availability. . . . The
actions under review fulfill that goal exactly. Every viewer who watched or could
have watched each of the three stations at issue before cable dominance will be
able to watch them on their cable system: the stations have been restored to
precisely the same position they were in pre-cable.”); id. at 30 (“There is no
indication that Congress intended . . . to dramatically enhance the scope of a
station’s reach far beyond where its signal would otherwise have carried it.”)
(internal quotation marks omitted).

- 48 -
amount of programming and an over-the-air signal appears to suffice under the

FCC’s policy. Programming is malleable: a station can easily change it. A

station’s over-the-air signal is no less protean: under FCC rules, broadcast stations

are permitted to move their transmitter anywhere they like, so long as they cast a

City Grade contour over their community of license.131 Because a City Grade

contour can be over a hundred miles in diameter, broadcasters are free to move

their antenna from their city of license (e.g., Kingston) to a remote location (e.g.,

Newburgh), thereby casting an over-the-air signal over an area that is even more

remote (e.g., Long Island).132 In sum, the FCC’s policy encourages any spoke

station to become a hub station, defeating the very localism Congress sought to

promote.

Finally, the FCC’s policy of rewarding gamesmanship is squarely at odds

with the agency’s own prior pronouncements. In the 1997 Order in which it

limited WRNN’s market, the FCC recognized that the purpose of market

modifications is to return stations to their “natural market,”133 and accordingly

explained the significance of programming as follows: “Programming is

131
See 47 C.F.R. § 73.625(a)(1).
132
See Opp. Exh. 5.
133
1997 Order ¶ 14.

- 49 -
considered in the context of Section 614(h) proceedings only insofar as it serves to

demonstrate the scope [of] a station’s existing market and service area, not as a

quid pro quo that guarantees carriage or as an obligation that must be met to obtain

carriage.”134 As the FCC thus recognized, programming should be considered to

delineate what the station’s market was or would have been in a world without

cable — not the market that the station seeks precisely because of cable. The FCC

is not at liberty simply to ignore its prior pronouncements.

III. THE FCC ERRED BY COMPELLING CARRIAGE IN VIOLATION

OF CABLEVISION’S CONSTITUTIONAL RIGHTS.

A. Compelled Carriage of WRNN on Long Island Cannot Withstand

a First Amendment Challenge.

In the Turner litigation, the Supreme Court upheld the must-carry statute

against a facial challenge.135 A facial challenge is “the most difficult challenge to

134
Id. ¶ 16; see also Definition of Markets for Purposes of the Cable
Television Broadcast Signal Carriage Rules, Order on Reconsideration and Second
Report and Order, 14 FCC Rcd 8366, ¶ 59 (1999) (same); FCC’s WLNY Br. at 47
(“[M]ust carry was meant to ensure that broadcast stations did not lose access to
what had been their markets before the advent of cable television. Thus, the
programming inquiry is a way to measure what a station’s market historically had
been. The Commission found that brand new or future programming targeted
towards a particular community does not demonstrate that the new community is
within the market that must carry was intended to protect.”) (footnote omitted).
135
See Turner I, 512 U.S. at 671, 673.

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mount successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid.”136 The Turner Court

therefore did not, and could not, hold that must-carry obligations would be

constitutional in all circumstances. Thus, nothing in Turner bars this Court from

holding that compelled carriage of WRNN on Long Island violates the First

Amendment on an as-applied basis.137

Congress enacted the must-carry statute based on a specific rationale: that

cable operators should be prevented from harming the existing system of localism

by depriving broadcasters of their audience.138 That was also the theory on which

the Supreme Court upheld the statute against facial attack: by the narrowest of

margins, the Court held that the rationale was not content-based and therefore did

not trigger strict scrutiny, and that the rationale was sufficiently weighty to justify

136
United States v. Salerno, 481 U.S. 739, 745 (1987).
137
See Field Day, LLC v. County of Suffolk, 463 F.3d 167, 184 (2d Cir.
2006) (“a finding of facial constitutionality does not foreclose ‘as-applied’
challenges.”).
138
See supra, pp. 9-10.

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the statute under intermediate scrutiny. As shown below, the reasoning on which

the Supreme Court relied in the Turner cases cannot justify carriage here.139

First, and most fundamentally, unlike the Turner rationale, which granted

carriage without examining a station’s programming content, the order under

review is quite explicit in saying that WRNN is granted carriage rights because of

the supposedly Long Island-targeted nature of its programming.140 As such, the

order rests on a rationale that is openly content-based, thereby triggering strict

scrutiny.141 In the Turner litigation, the Supreme Court side-stepped the question

whether the consideration of programming content in the context of market-

modification proceedings subjected the entire statute to strict scrutiny, finding that

the parties had not raised that question.142 Strict scrutiny cannot be side-stepped

here. And no credible argument can be made that the order under review can

139
No alternative rationale to justify carriage in this case has ever been
suggested. Given that must-carry even when justified under the Turner rationale
survived by only the narrowest margin, it is not plausible that any alternative
rationale could support carriage here.
140
See 2007 Order ¶ 4.
141
See Turner I, 512 U.S. at 642.
142
See id. at 643 n.6 (“the District Court did not address this provision”); id.
at 676-77 (O’Connor, J., dissenting) (arguing that Section 614(h)(1)(C)(ii)’s
concern with “localism” indicates that the statute’s “preference for broadcasters
over cable programmers is justified with reference to content”).

- 52 -
withstand strict scrutiny: plainly, it is not narrowly tailored to a compelling

interest.

Second, even if only intermediate scrutiny applied, the Turner rationale

would not work on the facts presented. The Turner rationale contemplated the

protection of noncable households from “loss of regular television broadcasting

service due to competition from cable systems.”143 Thus, the Supreme Court

approved a measure that guaranteed broadcasters the audience they would have

had in a world without cable — not a measure granting them access to a new and

expanded audience.

If Congress had enacted a broader measure (requiring cable systems to carry,

say, broadcast stations from all over the country), the Supreme Court could not

have approved it. To be sure, the broader measure would have helped preserve

broadcasting: it would have given broadcasters access to a larger audience. But the

measure would also have constituted a naked preference for one kind of speaker

(broadcasters) over others (cable operators and cable programmers). Such a

preference would have triggered strict scrutiny under the settled principle that

143
See Turner I, 512 U.S. at 663.

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government may not “restrict the speech of some elements of our society in order

to enhance the relative voice of others.”144

That principle did not doom the must-carry statute as enacted only because

the Supreme Court concluded that Congress had sought to accomplish a goal that

was not “concerned with the communicative impact of the regulated speech”145 —

namely to protect broadcasters from cable-inflicted peril.146 That theory is

unavailable insofar as carriage is compelled outside of a station’s natural market

(i.e., the market it would have in a world without cable). Thus, any measure that

grants carriage to a station outside of its natural market triggers strict scrutiny.

Third, the Turner rationale contemplated the preservation of broadcast

signals for the benefit of over-the-air viewers.147 But, even when WRNN was still

broadcasting in analog format, WRNN lacked any over-the-air audience — not

only on Long Island, but even in Kingston.148 Since then, WRNN has apparently

144
Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).
145
Turner I, 512 U.S. at 658.
146
Id. at 659.
147
See, e.g., id. at 663 (“protecting noncable households from loss of regular
television broadcasting service due to competition from cable systems is an
important federal interest”) (internal quotation marks omitted).
148
See WRNN-TV Assocs., 19 FCC Rcd 12343, 12344 (MB 2004) (“WRNN-
TV Limited acknowledges that early return of its NTSC channel will result in loss

- 54 -
sold off its analog over-the-air spectrum. There are virtually no consumers that

have off-air antennas and digital equipment necessary to receive digital signals.149

At best, then, WRNN’s over-the-air audience is de minimis.

Granting preferential cable-carriage rights to WRNN therefore cannot be

grounded in the Turner rationale. If WRNN has no over-the-air viewers, seeking

to protect them cannot be a governmental objective that qualifies as rational, let

alone as important. As the D.C. Circuit put it in connection with a station that

likewise lacked an over-the-air audience: “[T]he rule is completely adrift from its

economic rationale. The affected cable system could not possibly have been

injuring the benefitted broadcaster by fragmenting its audience.”150

Fourth, the Turner rationale vitally depended on the notion that cable

operators were able to deny broadcasters carriage for anticompetitive reasons —

of an over-the-air analog service, but contends that the impact on the public will be
imperceptive since, according to Nielsen Media Research, there was no reportable
over-the-air viewing for the station for the month of April 2004.”).
149
See, e.g., Media Bureau Staff Report Concerning Over-the-Air Broadcast
Television Viewers, MB Docket No. 04-210, 2005 WL 473322, at *1 n.4 (MB rel.
Feb. 28, 2005).
150
Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1461 n.54 (D.C. Cir.
1985).

- 55 -
supposedly because cable operators were unconstrained by competition.151 The

apparent thinking was that, at the time, cable operators could drop even popular

broadcast signals without having to worry about subscriber losses: because there

was no competition, consumers had no other place to go.

Real-world market conditions on Long Island today could not be more

different.152 There are two providers of Direct Broadcast Service (DBS), DirecTV

and Dish Network, which provide a multichannel package that is similar to the

151
See Turner I, 512 U.S. at 649 (“Congress designed the must-carry
provisions . . . to prevent cable operators from exploiting their economic power to
the detriment of broadcasters, and thereby to ensure that all Americans, especially
those unable to subscribe to cable, have access to free television programming”);
id. at 661 (“The must-carry provisions . . . are justified by special characteristics of
the cable medium: the bottleneck monopoly power exercised by cable operators
and the dangers this power poses to the viability of broadcast television.”); id. at
669-70 (Stevens, J, concurring in part and concurring in the judgment) (“The must-
carry provisions are amply justified by special characteristics of the cable medium,
namely, the bottleneck monopoly power exercised by cable operators and the
dangers this power poses to the viability of broadcast television. Cable operators’
control of essential facilities provides a basis for intrusive regulation that would be
inappropriate and perhaps impermissible for other communicative media.”)
(internal quotation marks and brackets omitted); Turner II, 520 U.S. at 197 (“cable
operators possess a local monopoly over cable households”); id. at 227 (Breyer, J.,
concurring in part) (“a cable system . . . at present (perhaps less in the future)
typically faces little competition”).
152
See Opp. at 54 (A 325); FCC Adopts 13th Annual Report to Congress on
Video Competition and Notice of Inquiry for the 14th Annual Report, News
Release, at 3 (Nov. 27, 2007), available at
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-278454A1.pdf.

- 56 -
package provided by cable operators like Cablevision. In just over a decade,

DBS’s market share has grown from zero to about 30%.153 In addition, telephone

companies have begun providing multichannel video service,154 including, as the

order under review itself observes, on Long Island.155 Verizon is investing billions

of dollars in its video service,156 and analysts have observed that, of all cable

operators, Cablevision is most squarely caught in Verizon’s cross-hairs.157 In sum,

153
See FCC Adopts 13th Annual Report to Congress on Video Competition
and Notice of Inquiry for the 14th Annual Report, News Release, at 3 (Nov. 27,
2007), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-
278454A1.pdf (“DBS subscribers comprise the second largest group of MVPD
households, representing 29 percent of total MVPD subscribers as of June 2006.”).
154
See Verizon Communications Inc., Press Release, Verizon Reports
Continued Success in 3Q 2007, Oct. 29, 2007, available at
http://investor.verizon.com/news/view.aspx?NewsID=863 (reporting that, as of the
end of the third quarter of 2007, Verizon had approximately 717,000 subscribers to
its FiOS TV service (an increase of approximately 600,000 over the past 12
months), and its fiber-to-the-home FiOS network passed 8.5 million premises).
155
See 2007 Order ¶ 4 n.15 (“Verizon carries WRNN-DT on its systems in
Massapequa Park, Oyster Bay and Hempstead, New York.”).
156
See, e.g., Verizon Communications, Inc., News Release, Verizon
Provides New Financial and Operational Details on Its Fiber Network as
Deployment Gains Momentum, Sept. 27, 2006, available at
http://newscenter.verizon.com/press-releases/verizon/2006/verizon-provides-
new.html (reporting that Verizon “expects to invest $18.0 billion in net capital
from 2004 through 2010 in deploying [FiOS]”).
157
See, e.g., Peter Grant & Dionne Searcey, Verizon’s FiOS Challenges
Cable’s Clout, Wall St. J., Oct. 24, 2007, A12 (“Cablevision clearly is in the front

- 57 -
Long Island in 2008 shows a competitive landscape that was unimaginable at the

time of Turner. It is therefore not plausible to suppose that Cablevision could

profitably act on anticompetitive incentives.158

Fifth, there is no evidence whatsoever that Cablevision has declined to carry

WRNN with a view to stifling competition.159 Cablevision declines to carry the

home-shopping station because it has no audience: people are not interested in

watching it. By any measure, Cablevision can make better use of the cable

spectrum that would be required to carry WRNN. It is worth noting that, when

Congress enacted the must-carry statute, it specifically carved out home-shopping

stations, leaving it to the FCC to decide whether those stations should have must-

carry rights — or, indeed, broadcast licenses at all.160 Although the FCC in 1993

lines of the FiOS battle. Already 25% of the homes it serves are exposed to FiOS
service compared with about 4% for Comcast and Time Warner Cable Inc.”).
158
See, e.g., Time Warner Entm’t Co. v. FCC, 240 F.3d 1126, 1134 (D.C.
Cir. 2001) (“in [justifying another set of rules based on the assumption that cable
operators had market power] the Commission will have to take account of the
impact of DBS on that market power”).
159
See Opp. at 62 n.231 (A 333).
160
47 U.S.C. § 534(g)(1).

- 58 -
ruled that home-shopping stations should have must-carry rights, it recently

initiated a proceeding to reconsider that conclusion.161

Finally, the Turner rationale posited that “broadcast stations denied carriage

will either deteriorate to a substantial degree or fail altogether.”162 The record is

entirely devoid of any evidence that, without carriage on Long Island, this fate will

befall WRNN. To the contrary, WRNN has been on the air for more than 22 years

and has prospered even without carriage on Long Island — so much so that it was

able to fund expensive changes to its signal and programming without any

guarantee of broader carriage. To defend must-carry against a facial challenge, it

may have been enough for the FCC to show that, without must-carry, financial

hardship would have been suffered by many television stations.163 In the face of an

161
Commission Seeks To Update the Record for a Petition for
Reconsideration Regarding Home Shopping Stations, Public Notice, 22 FCC Rcd
8550 (2007).
162
Turner I, 512 U.S. at 666 (plurality).
163
But see Turner I, 512 U.S. at 682 (O’Connor, J., dissenting) (“If Congress
wants to protect those stations that are in danger of going out of business, or bar
cable operators from preferring programmers in which the operators have an
ownership stake, it may do that. But it may not, in the course of advancing these
interests, restrict cable operators and programmers in circumstances where neither
of these interests is threatened.”).

- 59 -
as-applied challenge, more is needed: there must be a showing that financial

hardship will befall the particular station seeking carriage rights.164

B. Compelled Carriage of WRNN on Long Island Cannot Withstand

a Fifth Amendment Challenge.

In its order, the Commission rejected Cablevision’s “per se” takings claim

on the theory that must-carry “effectuates no permanent physical occupation of a

cable operator’s property, such as installation of the physical equipment at issue in

Loretto v. Teleprompter Manhattan CATV Corp.”165 Rather, the Commission said,

“a programming stream is transmitted in bits of data over cable bandwidth through

electrons or photons at the speed of light while the cable operator retains complete

control over its physical property (e.g., headend equipment).”166

164
As explained in the text, compelled carriage of WRNN on Long Island
violates Cablevision’s First Amendment rights regardless of whether, if a facial
challenge were brought today, the Supreme Court would reach the same
conclusion as it did in the Turner litigation. Given the dramatic changes in
circumstances that have occurred in the wake of the Turner litigation, however, it
is not plausible that the Supreme Court would reach the same conclusion again.
See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938) (“the
constitutionality of a statute predicated upon the existence of a particular state of
facts may be challenged by showing to the court that those facts have ceased to
exist”).
165
2007 Order ¶ 8 (footnotes omitted).
166
Id. (footnotes omitted).

- 60 -
 But compelled carriage of WRNN involves the electronic equivalent of a

beach-front lot: a 6 MHz channel on an analog cable tier. There is no reason to

treat valuable electronic property differently than other property.167 If the order

under review stands, WRNN will be entitled to occupy Cablevision’s Channel 48

entirely, denying Cablevision any and all rights to the channel’s possession and

use. When WRNN occupies Channel 48, a taking occurs, and compensation will

fall due.

C. Constitutional Concerns Can and Must Be Avoided.

Although compelled carriage of WRNN on Long Island violates the

Constitution, this Court need not so hold. It is well established that any “statute

must be construed, if fairly possible, so as to avoid not only the conclusion that it is

167
See Midwest Video Corp. v. FCC, 571 F.2d 1025, 1058 (8th Cir. 1978)
(“a requirement that facilities be built and dedicated without compensation . . .
would be a deprivation forbidden by the Fifth Amendment”), aff’d, 440 U.S. 689
(1979); Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32, 67 n.10 (D.D.C. 1993)
(Williams, J., dissenting) (“The creation of an entitlement in some parties to use
the facilities of another, gratis, would seem on its face to implicate Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), where the Court
struck down a statute entitling cable companies to place equipment in an owner's
building so that tenants could receive cable television.”), vacated on other
grounds, 512 U.S. 622 (1994); see also United States v. Morris, 928 F.2d 504, 511
(2d Cir. 1991) (characterizing computer “hacking” as a form of trespass).

- 61 -
unconstitutional but also grave doubts upon that score.”168 It is further well

established that, where an agency’s reading would generate significant

constitutional doubt, that reading is not entitled to Chevron deference.169 Thus, the

Court can and should avoid constitutional questions: it should hold that, by

interpreting the statute to permit it to compel carriage of WRNN on Long Island,

the FCC misread the statute, for the reasons set forth above in Parts I and II.

* * *

In sum, because the FCC violated the statute, failed to explain its order, and

failed to avoid constitutional concerns, the order under review should be set

aside.170 Because the FCC cannot lawfully require WRNN to be carried on Long

168
Rust v. Sullivan, 500 U.S. 173, 191 (1991) (internal quotation marks
omitted); see also United States v. Gonzalez, 420 F.3d 111, 124 (2d Cir. 2005).
169
See, e.g., Clearing House Assoc. v. Cuomo, 510 F.3d 105, 113 (2d Cir.
2007) (“‘[W]here an administrative interpretation of a statute invokes the outer
limits of Congress’ power, we expect a clear indication that Congress intended that
result.’ That broader principle is rooted in the doctrine of constitutional avoidance,
which the Supreme Court has recognized may, in some instances, trump the
deference typically afforded to an agency’s interpretation of the statute it
administers.”); Blake v. Carbone, 489 F.3d 88, 100 (2d Cir. 2007) (“Courts
interpret statutes to avoid constitutional infirmities . . . . We therefore reject the
government’s request for deference.”).
170
See 5 U.S.C. § 706(2).

- 62 -
Island, and because interim carriage would be disruptive,171 the order should be

vacated.172

171
See generally Cablevision’s Emergency Motion for a Stay, Cablevision
Sys. Corp. v. FCC, No. 07-5553 (filed 2d Cir., Jan. 10, 2008), at 17-19.
172
See, e.g., Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1048 (D.C.
Cir. 2002) (“The decision whether to vacate depends on the seriousness of the
order’s deficiencies (and thus the extent of doubt whether the agency chose
correctly) and the disruptive consequences of an interim change that may itself be
changed.”) (internal quotation marks omitted).

- 63 -
 Conclusion

The order under review should be vacated.

Respectfully submitted,

__________________________
HENK BRANDS
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1615 L Street, N.W., Suite 1300
Washington, DC 20036-5694
(202) 223-7300
HOWARD J. SYMONS
TARA M. CORVO ALLAN J. ARFFA
MINTZ, LEVIN, COHN, FERRIS, J. ADAM SKAGGS
GLOVSKY AND POPEO, P.C. PAUL, WEISS, RIFKIND,
701 Pennsylvania Avenue, N.W., Suite WHARTON & GARRISON LLP
900 1285 Avenue of the Americas
Washington, D.C. 20004 New York, New York 10019
(202) 434-7300 (212) 373-3000

February 8, 2008 Counsel for Cablevision Systems Corp.

- 64 -
 CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) and (C), the

undersigned certifies that this brief complies with the type-volume limitation.

Exclusive of the portions exempted by Federal Rule of Appellate Procedure

32(a)(7)(B)(iii), this brief contains 13,770 words. This certificate was prepared in

reliance on the word-count function of the word-processing system (Microsoft

Word 2003) used to prepare this brief.

The undersigned further certifies that the PDF version of this brief has been

scanned for viruses and that no virus has been detected.

_________________________
Henk Brands
 CERTIFICATE OF SERVICE

I hereby certify that, on this 8th day of February 2008, I caused two copies

of the foregoing Brief for Petitioner to be served by first-class mail upon the

following parties:

Jacob M. Lewis Andrew G. McBride

Office of General Counsel Todd M. Stansbury
Federal Communications William S. Consovoy
Commission Wiley Rein & Fielding LLP
445 12th Street, S.W., 8th Floor 1776 K Street NW
Washington, D.C. 20554 Washington, DC 20006

Nancy Caroline Garrison

Catherine G. O’Sullivan
U.S. Department of Justice
Antitrust Division
Appellate Section
950 Pennsylvania Avenue, NW
Room 3224
Washington, DC 20530-0001

_________________________
Anthony Portelli

-2-
Special Appendix