REDACTED VERSION
Before the
Federal Communications Commission
Washington, D.C. 20554
FCC 16D-1
In the Matter of
Game Show Network, LLC,
Complainant,
v.
Cablevision Systems Corp.
Defendant.

)
)
)
)
)
)
)
)
)

MB Docket No. 12-122
File No. CSR-8529-P

Issued: November 22, 2016

Released: November 23, 2016

INITIAL DECISION OF
CHIEF ADMINISTRATIVE LAW JUDGE RICHARD L. SIPPEL
Appearances
Stephen A. Weiswasser, Esq., Paul W. Schmidt, Esq., Elizabeth H. Canter, Esq., Laura Flahive Wu, Esq.,
Stephen Kiehl, Esq., C. William Phillips, Esq., and Jonathan M. Sperling, Esq., on behalf of Game Show
Network, LLC; Jay Cohen, Esq., Andrew G. Gordon, Esq., Gary R. Carney, Esq., George W. Kroup, Esq.,
Tara M. Corvo, Esq., and Robert G. Kidwell, Esq., on behalf of Cablevision Systems Corporation; and
Pamela S. Kane, Esq., and William Knowles-Kellett, Esq., on behalf of the Enforcement Bureau.
TABLE OF CONTENTS
Heading

Paragraph #

I.  PRELIMINARY STATEMENT ............................................................................................................ 1 
II.  FINDINGS OF FACT .......................................................................................................................... 10 
A.  Description of Parties and Background ......................................................................................... 10 
1.  Game Show Network .............................................................................................................. 10 
2.  Cablevision Systems Corporation ........................................................................................... 13 
B.  Cablevision’s Carriage of GSN ..................................................................................................... 21 
C.  Cablevision Retiered GSN on the Basis of Non-Affiliation .......................................................... 25 
1.  The Retiering Conduct ............................................................................................................ 25 
a.  Background ....................................................................................................................... 25 
b.  Targeting GSN .................................................................................................................. 27 
c.  Cablevision’s 2011 Programming Budget ........................................................................ 31 
d.  The Retiering Decision ..................................................................................................... 35 
e.  The Retiering’s Erroneous Justification............................................................................ 40 
f.  Effects of the Retiering Decision on Cablevision ............................................................. 45 
(i)  Subscriber Outrage ..................................................................................................... 45 
(ii)  Fallout of the Retiering Decision ............................................................................... 46 
(iii) Renaming the Tier ...................................................................................................... 49 
2.  GSN Was Similarly Situated to WE tv and Wedding Central ................................................ 50 

 Federal Communications Commission

FCC 16D-1

a. Women’s Networks .......................................................................................................... 51
b. Target Programming ......................................................................................................... 59
(i) GSN Target Programming.......................................................................................... 60
(ii) WE tv and Wedding Central Target Programming .................................................... 63
c. Target Audience ................................................................................................................ 65
d. Actual Audience ............................................................................................................... 69
e. Advertising........................................................................................................................ 71
(i) Target Demographic ................................................................................................... 73
(ii) Target Advertisers ...................................................................................................... 76
3. Business Reasons for Retiering Are Pretextual ....................................................................... 78
4. Motive To Discriminate .......................................................................................................... 84
D. Cablevision’s Discriminatory Conduct Unreasonably Restrained GSN’s Ability To
Compete Fairly .............................................................................................................................. 87
1. Loss of License Fee Revenue .................................................................................................. 88
2. Loss of Advertising Revenue .................................................................................................. 90
3. Unfair Placement on Premium Sports Tier ............................................................................. 91
4. Anticompetitive Effect ............................................................................................................ 92
III. CONCLUSIONS OF LAW .................................................................................................................. 94
A. Statutory and Regulatory Background ........................................................................................... 94
B. Proven Discrimination on the Basis of Non-Affiliation ................................................................ 99
1. Direct Evidence of Discrimination ........................................................................................ 100
a. GSN Was Retiered on the Basis of Non-Affiliation ....................................................... 101
b. The “Must-Have” Programming Disconnect .................................................................. 102
c. Cablevision Lacked a Legitimate Business Reason ........................................................ 105
d. Cablevision’s Dealings with Affiliated Networks .......................................................... 108
e. DIRECTV-Wedding Central Gambit ............................................................................. 109
2. Circumstantial Evidence of Discrimination .......................................................................... 110
C. GSN Has Proven that Cablevision’s Discriminatory Conduct Unreasonably Restrained Its
Ability to Compete Fairly ............................................................................................................ 115
D. Remedy ........................................................................................................................................ 117
IV. ULTIMATE CONCLUSIONS AND DECISION ............................................................................. 121
V. ORDER .............................................................................................................................................. 124
I.

PRELIMINARY STATEMENT

1.
On October 12, 2011, Game Show Network, LLC (GSN) filed with the Media Bureau a
program carriage complaint against Cablevision Systems Corporation (Cablevision)1 alleging that
Cablevision, a cable operator and multichannel video programming distributor (MVPD), 2 discriminated
against GSN, a video programming vendor,3 in violation of section 616 of the Communications Act of
1934, as amended (Act),4 and section 76.1301(c) of the Commission’s rules.5
1

Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Program Carriage Complaint
(filed Oct. 12, 2011).
An MVPD is “an entity engaged in the business of making available for purchase, by subscribers or customers,
multiple channels of video programming . . . includ[ing] . . . but not limited to, a cable operator, . . .” 47 CFR
§ 76.1000(e).
2

A “video programming vendor” is “a person engaged in the production, creation, or wholesale distribution of video
programming for sale.” 47 U.S.C. § 536(b).
3

4

47 U.S.C. § 536(a)(3).

2

 Federal Communications Commission

FCC 16D-1

2.
In its complaint, GSN principally contends that on the basis of affiliation and nonaffiliation, Cablevision moved GSN from a broadly penetrated expanded basic tier to a narrowly
penetrated premium sports tier that required Cablevision subscribers to pay an additional fee for
continued access to GSN, and such move had the effect of unreasonably restraining GSN’s ability to
compete fairly.6 As a remedy, GSN requested that the Media Bureau order Cablevision to restore GSN to
the expanded basic tier and that the Media Bureau impose on Cablevision the maximum permissible
monetary forfeiture.7 GSN also requested that the Media Bureau require Cablevision, which carries GSN
at-will,8 to negotiate in good faith and enter into a new carriage agreement with GSN; and that such new
agreement provide that GSN will be carried on a tier no less distributed than the most broadly penetrated
tier on which Cablevision carries WE tv, an affiliated network,9 and at a license rate10 that is no less than
the greater of the rate Cablevision currently pays WE tv, or the rate Cablevision paid GSN prior to
February 1, 2011, the effective date of Cablevision’s retiering conduct.11
3.
On May 9, 2012, the Media Bureau released its Hearing Designation Order and Notice of
Opportunity for Hearing for Forfeiture (HDO), in which it found that the “existing record, including
Cablevision’s Answer, makes clear that there are significant and material questions of fact warranting
resolution at hearing.”12 The Media Bureau designated the following issues for hearing before an
Administrative Law Judge (Presiding Judge): (a) whether Cablevision has engaged in conduct the effect
of which is to unreasonably restrain the ability of GSN to compete fairly by discriminating in video
programming distribution on the basis of the complainant’s affiliation or non-affiliation in the selection,
terms, or conditions for carriage of video programming provided by GSN, in violation of section
616(a)(3) of the Act and/or section 76.1301(c) of the Commission’s rules; and (b) in light of the evidence
adduced pursuant to the foregoing issue, whether Cablevision should be required to carry GSN on its
cable systems on a specific tier or to a specific number or percentage of Cablevision subscribers and, if
so, the price, terms, and conditions thereof; and/or whether Cablevision should be required to implement
such other carriage-related remedial measures as are deemed appropriate.13
4.
The Media Bureau did not designate for hearing the following issues: (a) whether GSN
has put forth evidence in its complaint sufficient to warrant designation of this matter for hearing; and (b)
whether GSN’s complaint was filed in accordance with the program carriage statute of limitations.14 In

(Continued from previous page)
5
47 CFR § 76.1301(c).
6

See Complaint at 2-3, paras. 2, 5.

7

Id. at 31-32, para. 64.

8

Cablevision formerly carried GSN pursuant to a carriage agreement that expired on {{
carried GSN at-will since then. Infra paras. 21-24.

}}, and has

A network is “affiliated” with an MVPD if either entity holds an interest in the other, or if a third party holds an
interest in both entities, that is an “attributable interest” as defined by section 616 of the Act and its implementing
regulations. See Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Joint Glossary at
1 (filed Sept. 11, 2015) (copy attached).
9

10

The license rate, also referred to as the license fee, is typically expressed as an amount of money per subscriber
per month, and is the amount of money Cablevision pays to GSN for the right to distribute the network on its cable
systems. See Joint Glossary at 3.
11

Complaint at 32, para. 65.

12

Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Hearing Designation Order and
Notice of Opportunity for Hearing for Forfeiture, 27 FCC Rcd 5113, 5121, para. 11 (MB May 9, 2012).
13

Id. at 5136-37, para. 39.

14

Id. at 5114 n.5.

3

 Federal Communications Commission

FCC 16D-1

the HDO, the Media Bureau resolved those issues in GSN’s favor15 noting that insofar as Cablevision
seeks Commission review of the Media Bureau’s conclusions, such review, if any, “shall be deferred until
exceptions to the Initial Decision in this proceeding are filed.”16 The Presiding Judge has no interest in
the aforesaid procedural questions resolved prior to designation and declines Cablevision’s invitation that
he address the statute of limitations issue.17 Accordingly, the Media Bureau’s conclusion shall be
deferred as indicated above.
5.
Otherwise, the Media Bureau directed that the Presiding Judge “develop a full and
complete record” and “conduct a de novo examination of all relevant evidence” in issuing an Initial
Decision on each of the outstanding factual and legal issues.18 In addition, pursuant to Section 503(b) of
the Act,19 the Presiding Judge should determine “whether an Order of Forfeiture shall be issued against
Cablevision.”20
6.
Following discovery, a hearing was scheduled to commence on April 2, 2013.
Thereafter, at the joint request of GSN and Cablevision, the hearing was postponed until July 16, 2013,21
and subsequently was “held in indefinite abeyance” 22 while the parties considered further discovery in
light of the 2013 decision of the United States Court of Appeals for the District of Columbia Circuit in
Tennis Channel.23 Consistent with joint status reports, abeyance ended and discovery reopened in May
2014.24 Following the completion of such supplemental discovery and the submission of direct written
testimony, proposed exhibits, and trial briefs, a trial-type hearing was held in the courtroom of the Office
of Administrative Law Judges at Commission headquarters.
7.
Such hearing was conducted by the Presiding Judge from July 7, 2015 through July 20,
2015.25 Five witnesses testified on behalf of GSN.26 Seven witnesses testified on behalf of Cablevision.27
See id. at 5119, para. 9 (“we conclude that GSN has established a prima facie case of program carriage
discrimination pursuant to Section 616(a)(3) of the Act and Section 76.1301(c) of the Commission’s Rules”); id. at
5122, para. 12 (“we conclude that the complaint was timely filed pursuant to Section 76.1302(f)(3) of the
Commission’s Rules”).
15

16

Id. at 5114 n.5, citing 47 CFR § 1.115(e)(3); see also id. at 5122 n.71 and at 5135 n.193.

17

See Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Cablevision Systems
Corporation’s Post-Trial Brief (Cablevision Br.) at 24-25 and n.84 (filed Sept. 30, 2015).
18

HDO, 27 FCC Rcd at 5136, para. 38. The Media Bureau also directed that all reasonable efforts be made to issue
the Initial Decision on an expedited basis. Ibid.
19

47 U.S.C. § 503(b).

20

HDO, 27 FCC Rcd at 5137-38, para. 44.

21

Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Order, FCC 13M-7 (ALJ
Mar. 26, 2013).
22

Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Order, FCC 13M-12 (ALJ June
25, 2013).
Tennis Channel, Inc. v. Comcast Cable Commc’ns, L.L.C., MB Docket No. 10-204, Initial Decision of Chief
Administrative Law Judge Richard L. Sippel, 26 FCC Rcd 17160 (2011), aff’d in part, vacated in part,
Memorandum Opinion and Order, 27 FCC Rcd 8508 (2012), rev’d sub nom. Comcast Cable Commc’ns, LLC v.
FCC, 717 F.3d 982 (D.C. Cir. 2013), cert. denied, 134 S. Ct. 1287 (2014) (Tennis Channel).
23

24

See Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Order, FCC 14M-13
(ALJ Apr. 17, 2014).
25

See Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Order, FCC 15M-16
(ALJ Apr. 28, 2015).
26

GSN presented the testimony of three fact witnesses: David Goldhill, President and Chief Executive Officer of
GSN; Dale Hopkins, Executive Vice President of Distribution for GSN; and John Zaccario, Executive Vice
(continued….)

4

 Federal Communications Commission

FCC 16D-1

Each testifying witness was cross-examined. Approximately 1000 documentary exhibits were received
into evidence.28
8.
After the hearing, GSN and Cablevision each filed: (1) Proposed Findings of Fact and
Conclusions of Law; (2) Proposed Reply Findings of Fact and Conclusions of Law; and (3) Post-Trial
Briefs. The Enforcement Bureau, which participated in the hearing as a party representing the public
interest, filed Comments opposing the Complaint.
9.
Upon joint request, GSN and Cablevision were permitted to present oral argument on
October 30, 2015, which was conducted and recorded in the Commission Meeting Room.
II.

FINDINGS OF FACT
A.

Description of Parties and Background
1.

Game Show Network

10.
GSN is a national “female-targeted”29 general entertainment30 cable network31 that
launched32 on December 1, 1994 as “Game Show Network.” In 2004, it rebranded itself as “GSN.”33 At
(Continued from previous page)
President, Advertising Sales, for GSN. In addition, GSN presented two expert witnesses: Hal Singer, Ph.D.,
Principal at Economists Incorporated and Senior Fellow at Progressive Policy Institute; and Timothy Brooks, an
independent media consultant and media researcher.
27

Cablevision presented the testimony of three fact witnesses: Thomas Montemagno, Executive Vice President of
Programming for Cablevision; Elizabeth Dorée, Senior Vice President, Programming Strategy & Acquisitions for
WE tv; and Robert Broussard, President of AMC Networks Distribution. In addition, Cablevision presented four
expert witnesses: Jonathan Orszag, Senior Managing Director of Compass Lexecon, LLC; Michael Egan, Principal
of Renaissance Media Partners, LLC; Lawrence Blasius, Principal, Blasius Media & Marketing; and Hal Poret,
Senior Vice President, ORC International.
28

In this Initial Decision, documents produced and/or moved into evidence by: GSN are referenced as GSN Exh.;
Cablevision are referenced as CV Exh.; and both GSN and Cablevision are referenced as Joint Exh.
29

GSN Exh. 300—Revised Direct Testimony of Timothy Brooks (Brooks Expert Testimony) at 15 (Brooks testified
that “[i]t is well understood in the business that there are female-targeted networks, male-targeted networks, and
general audience networks” and “GSN falls clearly within the definition of what constitutes a female-targeted
network.”). See also Tr. at 1326:10-11 (Brooks testified that while the television viewing audience on the whole
generally skews female—i.e., “[o]verall television viewing is roughly 52 percent female to 48 percent [male],
sometimes 51 to 49 [percent], that degree of difference”); id. at 1326:15-25 (Brooks further testified that femaletargeted networks have a significantly greater female-to-male skew than the general skew; for example, Brooks
testified that a cable network that skews 70 percent female to 30 percent male is “[d]efinitely” a female-targeted
network.).
30

In this Initial Decision, the phrase “general entertainment” refers to entertainment programming that is not sports.

31

Separate from its cable television network, GSN is also an online games company. See Tr. at 185:6-10 (Goldhill
testified that “GSN is a company that is in two businesses: the television business, through GSN, the network . . .
[a]nd in the online games business, which we operate as a separate company that offers games through all online
platforms.”).
32

Launching occurs when an MVPD commences carriage of a particular video programming network.

33

GSN Exh. 297—Supplemental Direct Testimony of David Goldhill (Goldhill Testimony) at 2. A purpose of the
rebranding was to accommodate the introduction of reality shows into GSN’s lineup. GSN Exh. 301—
Supplemental Direct Testimony of Hal J. Singer, Ph.D. (Singer Expert Testimony) at 3. See also Goldhill
Testimony at 2 (Goldhill testified that the network “began referring to its service as ‘GSN’ rather than ‘Game Show
Network’ in order to present itself as a general interest network that appeals to women.”); Tr. at 256:19-20 (Goldhill
testified that “GSN, like other networks, moved from its original name to a different name to capture a broader
audience.”). Compare Joint Exh. 5—Deposition of Kelly Goode (Goode Testimony) at 145-46 (Goode, who at the
(continued….)

5

 Federal Communications Commission

FCC 16D-1

the time of Cablevision’s retiering conduct – the November 2010 time-frame34 – GSN was distributed to
approximately 73.5 million subscribers nationwide,35 including to approximately {{ }} million
Cablevision subscribers36 in the New York Designated Market Area (DMA).37 On February 1, 2011, the
effective date of the retiering,38 GSN’s distribution dropped to approximately {{
}} or 96
percent fewer Cablevision subscribers.39
11.
At the time of GSN’s retiering, GSN was co-owned by Sony Pictures Entertainment, Inc.
and DIRECTV, a satellite operator and MVPD.40 Sony and DIRECTV controlled GSN through a
management committee on which Derek Chang, DIRECTV’s former Executive President of Content,
Strategy and Development, served at the time of retiering.41
12.
David Goldhill, who testified at the hearing, has been President and Chief Executive
Officer (CEO) of GSN since joining the network in 2007.42 GSN executives who reported directly to
Goldhill include Dale Hopkins, Executive Vice President of Distribution,43 and John Zaccario, Executive
Vice President, Advertising Sales,44 both of whom also testified at the hearing. The record also includes
(Continued from previous page)
time was GSN’s Senior Vice President of Programming, testified that in July 2011, GSN considered rebranding the
network in an effort to change the “perception among younger viewers” that game shows are programming for older
female viewers).
In this Initial Decision, the phrase “at the time of retiering” (and similar) generally refers to the period between
Cablevision’s decision in November 2010 to retier GSN, and February 1, 2011, the effective date of that decision.
See Tr. at 1517:10-15 (Montemagno testified that Cablevision made the decision to retier GSN “in the November
2010 time frame when we were looking at our 2011 budgets.”).
34

35

CV Exh. 256 at 5; see also Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122,
Cablevision Systems Corporation’s Proposed Findings of Fact and Conclusions of Law (filed Sept. 11, 2015)
(Cablevision’s Findings and Conclusions) at 8 (“As of February 1, 2011—the date Cablevision implemented its
retiering decision—GSN was a fully penetrated network with approximately 73.5 million subscribers nationwide.”).

GSN Exh. 93 at 1; CV Exh. 147 (at the time of retiering, GSN was distributed to “{{
expanded basic tier subscribers).
36

}}” Cablevision

37

A DMA is a geographical designation of a media market created by Nielsen Media Research. See Joint Glossary
at 2. New York and Los Angeles are the two largest DMAs, and rotating as the largest and second-largest DMA in
the nation. See Joint Exh. 3—Deposition of James Dolan (Dolan Testimony) at 10-11. At the time of retiering,
Cablevision had approximately 3 million subscribers in the New York DMA alone. Id. at 7-8.
38

E.g., Tr. at 1525:9-11 (Montemagno testified that Cablevision began distributing GSN on the premium sports tier
on “February 1, 2011”).
39

See GSN Exh. 93 at 1; CV Exh. 147 (Montemagno handwritten note that as a result of the retiering, GSN would
be distributed to “{{
}}” Cablevision premium sports tier subscribers rather than being distributed to the
approximately {{
}} Cablevision subscribers on the expanded basic tier).
40

See Goldhill Testimony at 2.

41

Joint Exh. 2—Deposition of Derek Chang (Chang Testimony) at 11, 14-16 (Chang began his employment with
DIRECTV in 2006 as Senior Vice President of Strategy; he became Executive Vice President of Content, Strategy
and Development in 2007, and held that position until January 4, 2013, the date his employment with DIRECTV
ended; Chang was no longer employed by DIRECTV at the time of his deposition on January 15, 2013).

42

Goldhill Testimony at 2; Tr. at 173:13-19.

43

GSN Exh. 303—Supplemental Direct Testimony of Dale Hopkins (Hopkins Testimony) at 1 (Hopkins began her
employment with GSN in 2009 as Chief Marketing Officer; she became the Executive Vice President of
Distribution in March 2011, which is the position she held at the time of the hearing).
44

GSN Exh. 298—Supplemental Direct Testimony of John Zaccario at 1 (Zaccario began his employment with
GSN in 2008 as Senior Vice President, Advertising Sales; his position subsequently was changed to Executive Vice
President, Advertising Sales, which is the position he held at the time of the hearing); see also Tr. at 717:16-22
(continued….)

6

 Federal Communications Commission

FCC 16D-1

the deposition transcripts of two former GSN executives who reported directly to Goldhill; they are
Dennis Gillespie, who held the position of Senior Vice President of Distribution until February 2011,45
and Kelly Goode, who was the Senior Vice President of Programming until September 2011.46
2.

Cablevision Systems Corporation

13.
Cablevision is a Delaware corporation that was organized in 1997.47 At the time of the
retiering conduct that is the subject of the Complaint, Cablevision was a vertically integrated MVPD that
was owned and controlled by the Dolan family, with James Dolan serving as CEO.48 Through its whollyowned subsidiary CSC Holdings LLC, Cablevision operated cable systems with approximately 3.3
million subscribers, of which approximately 3 million were in the New York DMA, and about 300,000
were in western states.49 At the time of GSN’s retiering, based on number of subscribers, Cablevision
was the largest MVPD in the New York DMA and the fifth largest MVPD in the nation.50 Through its
wholly-owned subsidiary, Rainbow Media Holdings LLC (Rainbow), Cablevision owned and operated
several cable programming networks, including AMC, IFC, Sundance, WE tv, and Wedding Central.51
14.
During this time, Thomas Rutledge, Chief Operating Officer (COO) of Cablevision,
oversaw both the cable distribution (CSC/Cablevision) and cable programming (Rainbow) subsidiaries,52
and figuratively was referred to as “Dad,” which reflected his role as sole arbiter of the subsidiaries’
disputes.53 John Bickham was President of Cable and Communications, and he reported directly to
(Continued from previous page)
(Zaccario testified that his responsibilities for overseeing “all advertising activities for the television network” have
been the same since he joined GSN in January 2008).
Joint Exh. 4—Deposition of Dennis K. Gillespie (Gillespie Testimony) at 5-8 (Gillespie was GSN’s Senior Vice
President of Distribution from February 2007 until his health-related retirement in February 2011; he subsequently
worked as a consultant for GSN until December 2011; in January 2012, Gillespie began employment as Senior Vice
President of Distribution for Outside Television, which was the position he held at the time of his deposition on
December 11, 2012).
45

46

Goode Testimony at 12 (Goode joined GSN in October 2008 as Senior Vice President of Programming and held
that position until September 2011, when she became a producer for GSN, which was the position she held at the
time of her deposition on January 17, 2013).
47

GSN Exh. 133 at 4 (Cablevision Securities and Exchange Commission Form 10-K for the fiscal year ended
December 31, 2010).
See Dolan Testimony at 6; Tr. at 1538:22-1539:5. See also GSN Exh. 397 (Cablevision organizational chart “as
of 2010/2011”).
48

49

Dolan Testimony at 7-8. The remaining approximately 300 thousand Cablevision subscribers were located in
Montana, Wyoming, Colorado, and Utah, and are attributed to its acquisition of Bresnan Broadband Holdings, LLC.
See GSN Exh. 133 at 5; Complaint at 2 n.2 (“In December 2010, Cablevision acquired Bresnan Communications,
thereby obtaining approximately 300,000 subscribers . . .”). See also Joint Glossary at 1 (describing Cablevision’s
acquisition and disposition of Bresnan).
50

See Dolan Testimony at 6-9; see also GSN Exh. 232 (a chart listing the largest MVPDs, in descending order, as
Comcast, Time-Warner, Cox, Charter, and Cablevision).
51

Tr. at 1535:19-1536:3; id. at 1916:7-9; Dolan Testimony at 13. In July 2011, Rainbow was spun-off from
Cablevision into AMC Networks Inc., an independent company that also was owned and controlled by the Dolan
family. See Tr. at 1538:16-18; CV Exh. 337—Direct Testimony of Thomas Montemagno (Montemagno Testimony)
at 23 n.4; Dolan Testimony at 16. See also Joint Glossary at 4; Singer Expert Testimony at 2 n.1.
52

Tr. at 1537:13-1538:6; Joint Exh. 1—Deposition of John Bickham (Bickham Testimony) at 160 (Bickham
testified that “Rainbow and Cablevision . . . were sister companies.”).
See id. at 151; GSN Exh. 33 (8/6/09 internal Cablevision email in which Cablevision’s distribution side
complained that its counterpart programming side “go[es] crying to dad!”—i.e., Thomas Rutledge).
53

7

 Federal Communications Commission

FCC 16D-1

Rutledge.54 Mac Budill, Executive Vice President of Programming reported to Bickham.55 Thomas
Montemagno, who testified at the hearing, was Cablevision’s Senior Vice President of Programming
Acquisition and he reported directly to Budill.56 Bickham’s counterpart on Cablevision’s programming
side was Josh Sapan, President and CEO of Rainbow.57 Sapan reported directly to Rutledge, and Ed
Carroll, Rainbow’s COO, reported directly to Sapan.58 Robert Broussard, who testified at the hearing,
was Rainbow’s President of Distribution,59 and he reported directly to Carroll.60
15.
WE tv is a national female-targeted cable network that launched in 1997 as “Romance
Classics,” a movie network, and relaunched in 2001 as “WE: Women’s Entertainment,” a general
entertainment network.61 In 2006, the network rebranded itself as “WE tv.”62 At the time of GSN’s
retiering, WE tv was distributed to approximately 77 million subscribers nationwide,63 including the
approximately {{ }} million Cablevision subscribers in the New York DMA.64 Kimberly Martin was
President and General Manager of WE tv. 65 She reported directly to Carroll.66 Elizabeth Dorée, who

Bickham Testimony at 8 (Bickham was Cablevision’s President of Cable and Communications from May 2004
until November 2011; since May 2012, Bickham has been COO of Charter Communications, which was the position
he held at the time of his deposition on February 8, 2013). Prior and subsequent to his employment with
Cablevision, Bickham worked with and directly reported to Rutledge, who from 1995 to 2004, worked for TimeWarner Cable. Id. at 9-10. In 2011, Bickham and Rutledge left Cablevision {{
}} after the
retiering. See Dolan Testimony at 212 (Dolan testified that Rutledge and Bickham left Cablevision {{
}}). Once employed at Charter, Bickham continued to
report directly to Rutledge, who became Charter’s CEO. Bickham Testimony at 8.
54

55

See Bickham Testimony at 11-12, 35.

56
Tr. at 1537:1-3; Montemagno Testimony at 1-2; see also Bickham Testimony at 12-13. Post-retiering of GSN,
Cablevision reorganized its executive structure with Montemagno replacing both Rutledge and Bickham as
Executive Vice President of Programming for Cablevision, which was the position he held at the time of the hearing.
See Montemagno Testimony at 1-2; Tr. at 1494:5-9 (Montemagno testified that he currently held “the top position”
for Cablevision’s distribution side). See also infra note 530.
57
See Joint Exh. 7—Deposition of Josh Sapan (Sapan Testimony) at 8-9, 11-12 (Sapan was President and CEO of
Rainbow from early 2000 until July 2011, when Rainbow was spun-off from Cablevision as AMC Networks, an
independent company that is controlled by the Dolan family. Sapan has been President and CEO of AMC Networks
since the spin-off, which was the position he held at the time of his deposition on March 2, 2015.).
58

Id. at 20.

59

CV Exh. 339—Direct Testimony of Robert Broussard (Broussard Testimony) at 1 (Broussard has been President
of Distribution for Rainbow/AMC Networks since 2006, which was the position he held at the time of the hearing).
60

See GSN Exh. 397.

61

See Joint Exh. 6—Deposition of Kimberly Martin (Martin Testimony) at 35-36.

See id. at 36 (the purpose of the rebranding was “to attract younger viewers, to have a more contemporary appeal
and WE tv has a more hip, younger vibe than Women’s Entertainment”). See also Dolan Testimony at 54
(describing the evolution of the network from Romance Classics to WE tv).
62

Singer Expert Testimony at 16 (Singer testified that “[i]n 2011, Nielsen estimated that WE tv had 76.8 million
subscribers nationwide.”). See also Cablevision’s Findings and Conclusions at 9-10 (“At the time of the retiering,
WE tv was a fully-penetrated network with approximately 77 million subscribers, and it has approximately 79
million subscribers today.”).
63

64

See CV Exh. 147 (showing that the expanded basic tier was distributed to {{

65

}} subscribers).

Martin Testimony at 9-12 (Martin has been General Manager of WE tv since 2007; in 2010, the title of President
was added, which was the position she held at the time of her deposition on January 15, 2013.).
66

See id. at 15.

8

 Federal Communications Commission

FCC 16D-1

testified at the hearing, was WE tv’s Senior Vice President for Scheduling & Acquisitions. 67 She
reported directly to Martin.68
16.
Martin was also the President and General Manager of Wedding Central,69 a femaletargeted general entertainment network that Cablevision launched in August 2009, and shut down on June
30, 2011.70 At the height of its existence, Wedding Central was distributed to a total of approximately 4
million subscribers nationwide: approximately 2.4 million Cablevision subscribers; approximately 1
million Time-Warner subscribers; and approximately 600 thousand MediaCom subscribers.71 During its
brief existence, Wedding Central was not distributed by any other MVPD. 72
17.
As relevant here, at the time of retiering, Cablevision offered its subscribers two broadly
penetrated tiers of programming73—Broadcast Basic and iO Family Cable, also known as Expanded
Basic.74 Cablevision also offered two narrowly penetrated tiers—iO Silver and iO Gold. The basic tier,
which generally consisted of the broadcast networks, was received by 100 percent of Cablevision’s 3
million subscribers.75 The expanded basic tier, which included 56 networks76 in addition to those on the
basic tier, was received by approximately {{ }} percent or {{
}} Cablevision subscribers.77
The Silver tier included all of the networks distributed as the expanded basic tier plus additional
networks, including premium movie networks, and was received by approximately {{ }} percent of

67

CV Exh. 338—Direct Testimony of Elizabeth Dorée (Dorée Testimony) at 1-2 (Dorée joined WE tv in 2001 as
Vice President of Program Planning; in 2006, she became Vice President of Acquisitions and Promotional Strategy;
in July 2009, she became Senior Vice President, Scheduling and Acquisitions; and, in 2014, she became Senior Vice
President, Programming Strategy & Acquisitions, which was the position she held at the time of the hearing); see
also Tr. 1695:20-1696:22.
68

See GSN Exh. 397.

69

Martin Testimony at 17.

Martin Testimony at 18 (Martin served as President and General Manager of Wedding Central “[f]rom the date of
launch until the date it was shut down.”). Similarly, Dorée “had the same responsibilities for Wedding Central that
[she] had for WE tv.” Dorée Testimony at 15. At the time of the spin-off of Rainbow, Cablevision also made the
decision “to close Wedding Central down because it was not profitable at that time.” Martin Testimony at 20.
70

71

Martin Testimony at 85-86. Broussard testified that at its launch in August 2009, Wedding Central was
distributed to 2.2 million Cablevision subscribers. Tr. at 2021:14-19.
72

Tr. at 1944:5-7, 2022:1-23.

A tier is a package of programming networks on an MVPD’s system that the MVPD sells to its subscribers as a
unit. See Joint Glossary at 5. A network’s “penetration” is a percentage reflecting the proportion of a particular
MVPD’s subscribers that receive a particular network. Id. at 3. See also Bickham Testimony at 36 (Bickham
testified that, of Cablevision’s tiers, broadcast basic had the greatest penetration or “largest number of subscribers
followed by, in descending order, expanded basic, Silver, and Gold tiers, and “the sports tier . . . ha[d] the least
penetration.”).
73

74

See Joint Glossary at 5.

75
See GSN Exh. 133 at 8 (Cablevision’s basic tier “generally includes local over-the-air broadcast stations such as .
. . ABC, NBC, CBS, FOX . . . and public, educational or governmental channels.”).
76

See infra para. 19.

See CV Exh. 99 at 1; see also GSN Exh. 133 at 8 (Cablevision’s expanded basic tier “includes, among other
programming, news, information, entertainment, and sports channels such as CNN, AMC, CNBC, Discovery, ESPN
and the Disney Channel.”); Tr. at 1927:18-23 (Broussard testified that the “[e]xpanded basic [tier] might best be
described as the second-most highly-penetrated level of service. It’s essentially received by all [Cablevision]
subscribers other than subscribers that only receive local broadcast channels, government-related networks,
informational networks like C-SPAN . . . it is the first sort of robust package of [top] cable networks.”).
77

9

 Federal Communications Commission

FCC 16D-1

Cablevision subscribers.78 The Gold tier included every network distributed on the Silver tier plus
additional premium networks, and was received by approximately {{ }} percent of Cablevision
subscribers.79
18.
Subscribers to Cablevision’s expanded basic tier (or a higher tier80) also could subscribe
to the iO Sports Pak tier, an a la carte package of premium sports networks, for an additional fee of $6.95
per month.81 Dolan testified that the Sports Pak tier consisted entirely of “male-oriented programming”
that Cablevision packaged together “so that we don’t burden the entire subscriber base with the expense
of programming that only a few want to see.”82 Clearly, GSN’s programming and viewers do not fit in a
tier of Dolan’s description. At the time of retiering, approximately 3 percent of Cablevision’s subscribers
also subscribed to the Sports Pak tier.83
19.
Cablevision distributed 56 networks on the expanded basic tier at the time of retiering. In
addition to its affiliated general entertainment networks (AMC, Fuse, and WE tv84), its affiliated sports
networks (MSG, MSG Plus, and MSG Varsity85), and its affiliated news network (News 1286),
Cablevision distributed the following non-affiliated networks on the expanded basic tier: A&E Network;
ABC Family; Animal Planet; BET; Bravo; Cartoon Network; CNBC; CNN; Comedy Central; Daystar;
Discovery Channel; Disney Channel; E!; ESPN; ESPN2; Eternal Word Television Network; Food
78

See CV Exh. 99 at 1 (as of January 2010, Cablevision had {{
}} Silver tier subscribers); Tr. at 1669:4
(Montemagno testified that the Silver tier had premium movie networks “HBO and Showtime in it”).
79

See CV Exh. 99 at 1 (as of January 2010, Cablevision had {{

}} Gold tier subscribers).

80

Broussard testified that Cablevision distributed its affiliated networks IFC and Sundance on its digital basic tier,
which was “the next most highly concentrated package” and “had a penetration . . . in the neighborhood of {{ }}
percent.” Tr. at 1929:20-22. In light of this uncontested testimony from Broussard which was based on his personal
knowledge, the Presiding Judge finds that GSN expert Singer’s conflicting statement that Cablevision “carried IFC
and Sundance on its ‘iO Silver’ tier (reaching {{
}} of subscribers),” Singer’s testimony, Singer Expert
Testimony at 2, is incorrect. At the time of retiering, Cablevision also distributed its affiliated network, Wedding
Central, on the digital basic tier. Tr. at 2024:20-21 (Broussard testified that “[d]igital basic is the package that . . .
Cablevision carried Wedding Central on.”). See also Singer Expert Testimony at 2 (Singer testified that Cablevision
distributed Wedding Central on its “‘iO Package’ tier (reaching {{
}} of subscribers).”).
81
See Joint Glossary at 5; Singer Expert Testimony at 2-3. Three days after GSN’s retiering, the Sports Pak tier was
renamed the Sports and Entertainment Pak tier on February 4, 2011. See infra para. 49.

Dolan Testimony at 150. See also Brooks Expert Testimony at 72 (Brooks testified that except for GSN, “[a]ll of
the other networks on the tier are sports and/or male oriented.”); Montemagno Testimony at 22 (Montemagno
testified that the Sports Pak tier was “a group of largely sports channels available to all Cablevision subscribers at a
modest extra monthly fee” [of $6.95]).
82

See CV Exh. 147 (12/3/10 handwritten note by Montemagno that Cablevision currently had “{{
}}” Sports
Pak subscribers and “{{
}}” expanded basic tier subscribers). See also GSN Exh. 93 at 1 (12/5/10
memorandum from Gillespie to Chang advising that moving GSN from expanded basic to the Sports Pak tier
reduced Cablevision’s carriage of GSN by 97 percent).
83

84

See Dolan Testimony at 160-61.

85

See id. at 64; Singer Expert Testimony at 15. See also Tr. at 1615:25-1617:3 (Montemagno testified that until
2010 Cablevision also owned the Madison Square Garden Company—a separate company owned and controlled by
the Dolan family—which, in addition to MSG networks, among other things, owned professional basketball team
New York Knicks, and professional hockey team New York Rangers); id. at 1620:3-15 (Montemagno testified that
MSG and MSG Plus are both owned and operated by the Madison Square Garden Company, which in turn is
controlled by the Dolan family); Bickham Testimony at 160-61 (Bickham testified that “Cablevision Systems
Corporation owned a cable company, a programming company, [and] Madison Square Garden, which also owned
teams and other things.”).
86

GSN Exh. 133 at 16.

10

 Federal Communications Commission

FCC 16D-1

Network; Fox News Channel; FX Network; Galavision; GSN; HD Theater; Headline News; HGTV;
History; Lifetime; MSNBC; MTV; MTV2; Nickelodeon; Oxygen; SoapNet; Speed; Spike TV; SportsNet
New York; Syfy; TBS; Telecare; TLC87; TNT; Travel Channel; truTV; Turner Classic Movies; TV Land;
Universal HD; USA Network; VH1; The Weather Channel; and Yes Network.88
20.
At the time of GSN’s retiering, Cablevision distributed none of its affiliated networks on
its least penetrated tier,89 the Sports Pak.90 At the time of retiering, Cablevision also distributed no
general entertainment network on the Sports Pak tier but distributed only sports and sports-related
networks on that tier, including: Big Ten Network; CBS College Sports; ESPN Classic; ESPNU; Fight
Now; FOX College Sports Atlantic; FOX College Sports Central; FOX College Sports Pacific; FOX
Soccer Plus; Fuel; The Golf Channel; GOL TV; Mav TV; MLB Network; NBA TV; Neo Cricket; NHL
Network; Outdoor Channel; Sportsman Channel; Tennis Channel; TVG Network; and Versus.91 At
hearing, GSN remained the only general entertainment network that Cablevision has ever distributed on
its premium sports tier.92
B.

Cablevision’s Carriage of GSN

21.
Cablevision began distributing GSN pursuant to a written carriage agreement that was
effective June 1, 1997 through May 31, 2002, and which provided for a license fee of: {{
}} JuneDecember 1997; {{
}} for 1998; {{
}} for 1999; {{
}} for 2000; {{
}} for 2001; and
{{
}} for January-May 2002.93 In March 2002, Cablevision exercised its option to renew the
carriage agreement for an “
}}.”94 The renewed agreement
provided for a per subscriber license fee of: {{
}} June-December 2002; {{
}} for 2003; and
{{
}} January-May 2004.95 In October 2002, the renewed carriage agreement was extended through

87

In the record, TLC is also referred to as The Learning Channel and as Learning Channel.

88

CV Exh. 154 at 5. See also CV Exh. 117 at 6-7 (identifying 52 networks—all of those listed above minus
Daystar, Galavision, HD Theater, Telecare, and Universal, but including Trinity/WTBY—as forming the expanded
basic tier during the period February-June 2010).
89

At the time of the retiering, the Sports Pak tier had approximately {{
}} subscribers; in comparison,
the Gold tier had approximately {{
}} subscribers and the Silver tier had approximately {{
}}
subscribers. See supra notes 78-79 and 83.
Singer testified that “none of the networks carried on Cablevision’s ‘iO Sports & Entertainment Pak’ tier between
October 2010 and September 2011 was affiliated with (or owned by) Cablevision.” Singer Expert Testimony at 15
(emphasis in original); see also GSN Exh. 452 (Singer’s chart showing that during the period October 2010 through
September 2011, none of the networks distributed on its premium sports tier was affiliated with Cablevision).

90

91

See Singer Expert Testimony at 14; see also GSN Exh. 382, Tr. at 1609:12-1614:19 (Montemagno testified about
the networks Cablevision distributed as the premium sports tier at the time of the hearing).
92

See Tr. at 1609:12-19 (at the time of the hearing, Montemagno testified that, except for GSN, the current make-up
of the Sports Pak tier is “primarily sports, true sports channels” with a handful of “lifestyle networks” and
“outdoorsy channels”); id. at 1614:16-19 (Montemagno also confirmed that GSN is the only network on the Sports
Pak tier that is an entertainment network and is not a sports or sports-related lifestyle or outdoor network).
Subsequent to GSN’s retiering, Cablevision launched two non-affiliated networks—one a female-targeted network
(OWN) and the other, a sports network (NFL Redzone). See infra notes 155 and 242.
93

CV Exh. 4 at 2-3; see also Tr. at 1495:12-14 (Montemagno testified that Cablevision first entered into a carriage
agreement with GSN in 1997).
94

CV Exh. 4 at 11.

95

Id. at 3.

11

 Federal Communications Commission

FCC 16D-1

}}.96

{{

22.
At its expiration {{
}}, the parties began to negotiate a new agreement. While
negotiating, Cablevision continued to carry GSN on the expanded basic tier at the {{
}} per
97
subscriber license fee, and GSN agreed to such terms of carriage. In its negotiating, GSN sought to gain
from Cablevision a higher license fee98—a license fee that GSN insisted was in line with the license fees
GSN was receiving from similarly sized MVPDs.99 In exchange for paying a higher license fee,
Cablevision countered by seeking from GSN a new Most Favored Nation (MFN) clause {{
}}.101 Finally,
}}.100 Cablevision also rejected GSN’s counteroffer of {{
Cablevision countered by informing GSN that Cablevision “would be willing to compromise on rates, as
long as GSN would provide [Cablevision] with {{
}} MFN we were seeking.”102
23.

The parties’ negotiations ultimately reached an impasse because of Cablevision’s

96

Id. at 12. See also Montemagno Testimony at 6; Tr. at 1500:4-8 (Montemagno testified that when the 1997
carriage agreement expired, Cablevision “extended it in 2002 . . . until {{
}}”).
See Montemagno Testimony at 21 (Montemagno testified that “[i]n the absence of a contract, it is [Cablevision’s]
view that an MVPD may place a programming network on any tier it sees fit, and a programming network implicitly
agrees to that placement with the continued authorization of its signal.”).
97

98

See CV Exh. 19 at 1 (6/15/05 internal Cablevision chart comparing its carriage proposal as of May 13, 2005 to
GSN’s carriage proposal as of June 10, 2005 which shows that GSN sought a license fee of {{
}} for 2005 that
{{
}} 2011, when the license fee {{
}}).
99

See Gillespie Testimony at 45 (Gillespie testified that although Cablevision was paying GSN {{
}}”); GSN Exh. 93 at 1 (Gillespie advised Chang that “{{

}}). See also ibid. (in GSN’s view, the {{
}} per {{
}}
subscribers that Cablevision had been paying since expiration of the carriage agreement on {{
}},
was “{{
}}”); id. at 2 (Gillespie also advised Chang that “[o]ur goal
prior to learning of [Cablevision’s] planned adverse repositioning of GSN was to seek opportunities to bring
Cablevision’s rates in-line with similar size distributors in the {{
}}/sub range while keeping our broad
distribution . . .”).
100

An MFN clause is a provision in a carriage agreement that grants a distributor the right to be offered any more
favorable rates, terms, and/or conditions of carriage that the vendor subsequently offers or grants to another
distributor. See Joint Glossary at 3; Dolan Testimony at 70 (Dolan testified that “in many cases networks have
clauses in their contracts called MFNs, and that’s most favored nations, and so the network could say that we can’t
give you the rate you want because then we’d have to lower everybody else’s rate.”). Montemagno testified that a
{{
}} MFN “{{
}}.” Tr. at 1503:14-20. See also Montemagno Testimony
at 7; Tr. at 1502:4-7 (Montemagno testified that Cablevision was “{{
}}.”).
101

See Montemagno Testimony at 7 (Montemagno testified that “GSN offered Cablevision {{
}}” which “was not acceptable to Cablevision”); see also CV Exh. 19 at 2.

Montemagno Testimony at 9; see also Montemagno Testimony at 8 (Montemagno testified that “Cablevision
made a counter offer to GSN {{
}}. Cablevision’s offer also included {{
}} MFN; . . . GSN rejected this offer.”); CV Exh. 33 (11/6/07 email from Montemagno to Gillespie
which attached a carriage proposal that provided {{
}} license fee of {{
}}, and in which Montemagno stated that “[i]f this were all backed by the MFN
in the attached, it’s something we might do”).
102

12

 Federal Communications Commission

FCC 16D-1

insistence on the inclusion of {{
}} MFN clause. GSN was unwilling to include such a
provision in a new carriage agreement103 notwithstanding GSN’s calculation that it would lose
approximately {{
}} in annual license fee revenue if Cablevision were to drop GSN but
“{{
}}.”104
24.
On February 11, 2009, two years before GSN’s retiering, Montemagno, as Cablevision’s
negotiator for the carriage agreement, advised Gillespie, his counterpart at GSN, that GSN should not
pursue further a new agreement that did not include {{
}} MFN or one that sought a
license rate higher than the {{
}} that Cablevision was paying because, by doing so, GSN ran the
risk of being dropped by Cablevision rather than being carried at the terms existing in the ongoing at-will
carriage arrangement.105 That advice from Montemagno apparently extinguished any further negotiations
on a new agreement.106 For {{
}}, Cablevision carried GSN on the expanded basic tier at
the {{
}} license rate. As of the date of the hearing in July 2015, Cablevision had carried GSN atwill at the {{
}} license rate for {{
}}, and continues to do so.107

See Montemagno Testimony at 8 (Montemagno testified that “[a]lthough we had a number of additional meetings
throughout {{
}},” Cablevision and GSN “remained unable to agree on
terms for a new carriage agreement.”); Gillespie Testimony at 48 (Gillespie testified that the principal thing that
Cablevision was seeking in a new carriage agreement that was not included in the expired contract was “an MFN”
but GSN was “[u]nwilling to give an MFN {{
}}.”). See also CV Exh. 40 at 1-2 (2/27/08
Montemagno handwritten meeting notes that Gillespie “[s]aid they need to reset rates since we have been paying
way to[o] low” and that Gillespie also “said he needs to get to an{{
}} & will [do] MFN {{
}}” but that Rutledge “said no way, we expect to pay no more” and that Rutledge also “said he doesn’t
know if working together in other areas would fix MFN”).
103

104

GSN Exh. 93 at 1; see also Gillespie Testimony at 109-11 (Gillespie believed that GSN would have fared better
financially by deauthorizing Cablevision than by accepting the inclusion of {{
}} MFN in a new
GSN-Cablevision carriage agreement).
See CV Exh. 54 (2/11/09 Montemagno handwritten notes that he told Gillespie it was “best to continue to coast at
the current {{
}}[and] remain ‘under the radar’ – if he forces me to take back a proposal w/rate increases
prospectively, our executives then will likely question the value of continuing to carry it,” and that Gillespie “agreed
with me for the time being”); Gillespie Testimony at 48-49 (Gillespie testified that he “felt that [GSN’s] carriage
was threatened if we were to . . . bring forth a proposal for carriage at higher rates” but “so long as we didn’t raise
our rate, we had an understanding that carriage would continue where it was at the rate of {{
}}”). See also
Montemagno Testimony at 14 (Montemagno testified that he “knew that if I had to justify the current cost to Mr.
Rutledge—let alone the increase in fees that GSN was seeking—he was likely to discontinue carriage of the
service.”); Tr. at 1507:10-13 (Montemagno testified that he told Gillespie “that if he were to press for increases in
programming fees, that [Cablevision] executive staff would likely really take a hard look at what we were paying in
the relationship[] [a]nd whether it was worth continuing.”); id. at 1629:15-16 (Montemagno testified that he “said if
[GSN] pushed for an increase in the rate then [Cablevision] might make a decision not to carry [GSN] anywhere”);
GSN Exh. 93 at 1 (Gillespie informed Chang that “Cablevision’s negotiating stance over the past {{
}} has
been an insistence on {{
}} MFN {{
}}. Tom Montemagno has
advised that attempts to negotiate a deal at rates without these assurances would put GSN’s carriage at risk.”).
105

106

Tr. at 1507:23-25 (Montemagno testified that GSN did not make any carriage proposals to Cablevision after
February 2009); Montemagno Testimony at 14 (Montemagno testified that “[a]t a February 11, 2009 meeting, I told
Mr. Gillespie, that considering the economic climate and Cablevision’s continuing goal of keeping programming
costs contained, seeking higher fees would potentially highlight GSN as a target for removal form the channel lineup
. . . When I explained these circumstances to Mr. Gillespie, he dropped his request for higher fees.”). See also GSN
Exh. 93 at 1 (Gillespie advised Chang that GSN’s “last rate conversations [with Cablevision] took place in late
2009.”).
107

See Montemagno Testimony at 29 (Montemagno testified that when Cablevision made the retiering decision in
2010, GSN “had been out of contract for {{
}}.”).

13

 Federal Communications Commission

C.

FCC 16D-1

Cablevision Retiered GSN on the Basis of Non-Affiliation
1.

The Retiering Conduct
a.

Background

25.
In 2010, Cablevision faced increasing economic pressures on its programming budget.108
At hearing, Montemagno testified that 2010 was “a transformational time in the industry” because
“[b]roadcasters were now asking for significant [retransmission consent] fees that [Cablevision] never
paid before” and “sports fees . . . were going up dramatically” as well.109 For Cablevision, programming
offered by broadcast stations and sports networks was “must-have” and “commercially critical” for its
cable systems.110 Also during this period, Montemagno testified that “programming networks ha[d]
become increasingly concentrated in large media conglomerates” such that programming vendors would
“‘bundle’ their [network] services to require distributors to purchase them all, rather than choosing, and
negotiating for, the services they believe have the most value for their customers.”111
26.
Despite such economic pressures, Cablevision’s net earnings for the second quarter of
2010 grew 5.8% to $1.02 billion compared to the prior year, and for the third quarter of 2010 grew 5.6%
to $1.808 billion compared to the prior year.112 In 2010, Cablevision was typically “striving to perform
financially well . . . and that includes trying to generate more revenue as well as cut expenses.”113

See Dolan Testimony at 96 (Dolan testified that in 2010, “even through now, there has been a great deal of
pressure on programming rates, particularly from the networks as they began to become more aggressive with their
retransmission consent demands”). Cf. Chang Testimony at 97 (Chang testified that in 2010 “[t]he general trend in
the industry was that programming costs were rising at a relatively high rate.”). See also Gillespie Testimony at
124-25 (Gillespie testified that although GSN was generally “concerned” with the trend’s impact on MVPDs’
programming budgets, the trend was unrelated to the reasons—i.e., “our ratings and our license fees”—that
Cablevision had given to GSN for its retiering decision.).
108

109

Tr. at 1508:14-1509:4.

See Bickham Testimony at 31 (Bickham testified that “[s]ome programming is more important than other
programming from the standpoint of [ac]quiring and holding on to customers . . . And sports in general is the kind of
programming that will cause subscribers to leave you if you don’t have it.”); Montemagno Testimony at 11
(Montemagno testified that “the lion’s share of [Cablevision’s] subscribers expect to find the major broadcast
networks on our system”); id. at 18 (Montemagno described “‘must have’ networks” as “certain sports
programming”). See also id. at 10 (Montemagno testified that “[p]rogrammers, especially those with a great deal of
leverage, such as the broadcast stations and networks with sports programming, were aggressively raising their rates
during the 2009-10 period and thereafter, which limit[ed] Cablevision’s budget for other, less crucial
programming.”).
110

Montemagno Testimony at 10-11; see also Tr. at 1509:8-13 (Montemagno testified that “[b]efore [2010] I would
have individual agreements with . . . each network. And now, ESPN, VIACOM, Turner, NBC, Fox, they all were
doing . . . what I’m going to call a portfolio deal. Where you had to carry -- you had to do one agreement for
everything. And they leveraged that by asking for significant rate increases.”). During this period, Montemagno
testified that Cablevision’s programming budget also was impacted by “intense competition from MVPDs
overbuilding our systems.” Montemagno Testimony at 10; see also Tr. at 1510:4-10 (Montemagno testified that
Cablevision experienced “significant competition from . . . satellite providers . . . [and] Verizon overbuilt our
operation by more th[a]n 50 percent. And they were very, very aggressive in their pricing. That put lots of pressure
on us that we basically had to match pricing.”).
111

112

See Dolan Testimony at 98, 101.

Dolan Testimony at 97. See also id. at 96 (Dolan testified that during 2010, Cablevision was “trying to trim our
programming budget as well as all of our budgets . . .”).
113

14

 Federal Communications Commission

b.

FCC 16D-1

Targeting GSN

27.
On July 15, 2010, during a Cablevision finance meeting, Bickham instructed his
subordinates “to give consideration to potentially dropping Game Show Network.”114 Bickham testified
that there was no specific pressure coming from his superiors—Dolan and Rutledge—to scale back
programming costs or reduce the 2011 programming budget.115 Nor was a specific amount of cost
savings given as the reason for his instruction.116 Rather, Bickham singled out GSN for elimination from
other out-of-contract networks117 because he determined that GSN did not provide “must-have
programming”118 but offered only “[r]eruns of old programming.”119
28.
On July 22, 2010, Montemagno sent Bickham a memorandum (Montemagno
Memorandum) that summarized the “collective input from both Programming and Product Mgt. [teams]”
regarding the “relevant background, facts, and considerations for evaluating [Cablevision’s] carriage
situation with the Game Show Network and how we feel about the possibility of removing it from our
lineups.”120 The Montemagno Memorandum noted that Cablevision carried GSN on the expanded basic
tier to approximately {{
}} subscribers, and that since expiration of the carriage agreement in
{{
}} at the license rate of {{
}}, Cablevision had “continued to pay (and accrue)
{{
}} despite various attempts by GSN to engage in renewal discussions at escalating rates.”121 In
the Memorandum, Montemagno pointed out to Bickham that Cablevision was “forecasted to pay [GSN]
{{
}} in 2010 (i.e., {{
}} per month).”122 Montemagno further noted that, as of July 2010, it
had “been well over a year since GSN has made any attempts at concluding a renewal (i.e., we told them
that they should be happy to be carried at the current payment rate and if they put forth an ask, they will

114

CV Exh. 117 at 3. See also Tr. at 1511:3-5 (Montemagno testified that during the July 2010 meeting, Bickham
“told me that he’d like to consider dropping Game Show Network. And he asked me to prepare a recommendation
to support his decision.”). Montemagno also testified that CV Exh. 119 “is the document that I prepared in response
to Mr. Bickham’s question to me. And it contains what I viewed as the relevant information and considerations that
should go into that decision, whether to continue to carry or to drop the Game Show Network.” Id. at 1511:12-17.

115

Bickham Testimony at 40 (Bickham testified that there had been no direction from Dolan or Rutledge that
programming costs needed to be scaled back).
Bickham testified that while dropping GSN would “reduce [Cablevision’s] overall cost and improve cash flow of
the business,” he specifically targeted GSN because in GSN’s “case there was no contract so it was a fairly easy
network to look at” for elimination from Cablevision’s lineup. Id. at 38. See also id. at 95 (Bickham testified that
because “Game Show was out of contract,” Cablevision “had the rights to eliminate it or retier it.”). Bickham
further testified that there was no significance to saving {{
}} by dropping GSN “other than that was
what was possible.” Id. at 45.
116

Bickham testified the Cablevision routinely and “constantly look[ed] at programming that was marginal from a
must-have standpoint and evaluat[ed] the cost of the programming as to whether or not it was worth it,” but it was
“not possible generally [for Cablevision] to drop or network or to reposition a network that [was] in contract unless
[Cablevision] ha[d] drop rights or repositioning rights.” Id. at 32, 38. See also Montemagno Testimony at 21
(Montemagno testified that “[w]hen we consider repositioning programming networks to save costs, we only look at
networks that are out of contract, or networks that have agreements that grant us carriage flexibility.”).
117

Bickham Testimony at 32 (Bickham testified that he viewed GSN’s programming as “marginal” and not as
“must-have programming”).
118

119

Id. at 57.

120

CV Exh. 119 at 1; see also Tr. at 1511:12-17.

121

CV Exh. 119 at 3.

122

Ibid.

15

 Federal Communications Commission

FCC 16D-1

immediately be put in the spotlight and risk continued carriage).”123
29.
The Montemagno Memorandum described GSN’s “[k]ey [p]rogramming” as a
“[c]ombination of older game show reruns, more contemporary game show reruns, and original game
shows with play along capability for prizes via computer,” noting that according to GSN, “a few thousand
Cablevision customers regularly participate as registered play along viewers.”124 Statistically, based on
set-top box (STB) data125 for the period February through June 2010, according to the Memorandum,
GSN “[r]anked #132 among all [517126] net[work]s we carry.”127 This placed GSN’s performance “in the
proximity of networks like Headline News, MSG Varsity, Soap Net and some of the international
networks and in the very bottom among iO Family networks.”128 “However,” the Memorandum noted
Ibid. See also Gillespie Testimony at 46-47 (Gillespie testified that Montemagno told him that “if [GSN] raised a
deal that . . . contemplated higher rates that . . . it would cause a problem because [Montemagno] would have to take
it to senior management. And therefore [GSN’s] carriage might be in jeopardy.”).
123

CV Exh. 119 at 3. In the Memorandum, Montemagno identified as “[o]lder shows”—Hollywood Squares, Match
Game, Family Feud, Password, and $100,000 Pyramid; as “[c]ontemporary reruns”—Deal or No Deal, Who Wants
to be a Millionaire, Jeopardy, and Wheel of Fortune; and as “[o]riginals/[r]emakes”—Late Nite Liars, Newlywed
Game, Baggage, Catch 21, Lingo, GSN Live, and High Stakes Poker. Ibid.
124

STB data is data that is collected digitally by MVPDs from their subscribers’ set-top cable boxes. See Joint
Glossary at 4; Tr. at 2143:10-17 (Broussard testified that “if you’re a paid television subscriber, you unfortunately
have to have certain equipment in your house, and the main piece of equipment is a set-top box . . . so at any given
time a paid television operator can determine what box is tuned to what channel. And so when they aggregate all
that information, they can tell you at any given time, there were X number of households that are tuned to channel 5,
for example.”). In making carriage decisions, Cablevision favors STB data over Nielsen data. See Dolan Testimony
at 78 (Dolan testified that he “put more weight on the box data than I do on the Nielsen data” and “[n]ot that much”
weight on Nielsen data); Montemagno Testimony at 18-19 (Montemagno testified that “[u]nlike Nielsen data, the
set-top box viewership data reflect what is actually happening in the households of [Cablevision’s] subscribers. I use
set-top viewership data when I am in negotiations with programming networks, and when I am making
recommendations about carriage and placement to senior management.”); Tr. at 1675:6-9 (Montemagno also
testified that Nielsen ratings are “not something that I factor very heavily in carriage decisions and negotiations.”);
id. at 1679:14-18 (Montemagno further testified that, in determining the value to Cablevision of carrying a network,
“one of the things we look at . . . is the set top box data.”). See also Tr. at 1204:3-10 (Brooks testified that Nielsen
data is the industry standard for the “[m]easurement of TV audiences” in the United States).
125

126

See GSN Exh. 68 at 5, 9 (7/21/10 internal Cablevision email attaching a spreadsheet that shows that GSN was
ranked 132nd among 517 networks distributed by Cablevision; a ranking that placed GSN among the top 25 percent
of networks distributed by Cablevision). But see id. at 11, 23 (showing that GSN ranked 70th among 547 networks
distributed by Cablevision; a ranking that placed GSN among the top 13 percent of networks distributed by
Cablevision). See also Tr. at 1571:20-1579:3 (Montemagno testified regarding the two different STB data rankings
and he confirmed that both were available to him when he prepared the GSN carriage assessment memorandum).
The Presiding Judge finds that there is no meaningful difference in these two GSN rankings—i.e., being ranked 70th
or 132nd out of more than 500 networks. Each of these GSN rankings by Cablevision is significant because each
ranking shows that, at the time of retiering, GSN programming was highly regarded compared with all network
programming distributed by Cablevision.
127

CV Exh. 119 at 3.

Ibid. See also Montemagno Testimony at 19** (Montemagno testified that “GSN ranked 132nd of all networks
that Cablevision carries (and 48th out of 51 networks on the expanded basic tier, excluding those networks that were
available on a part-time basis, HD-only networks, and networks that were not available in every system within our
footprint), or roughly on par with minimally viewed foreign language networks.”). ** Although Montemagno
testified that GSN ranked 48th out of 51 networks, the document on which he relied—CV Exh. 117—shows that
GSN ranked 49th out of 52 networks; the Presiding Judge finds that these rankings are equivalent but adopts the one
set forth in CV Exh. 117.** In addition, out of the 52 networks Cablevision then distributed on the expanded basic
tier, Headline News ranked 47th (and 112th among all 517 networks distributed by Cablevision), MSG Varsity
ranked 48th (and 113th), MSG ranked 50th (and 141st), SoapNet ranked 51st (and 169th), and Speed ranked 52nd (and
180th). CV Exh. 117 at 6-7. Except for Speed, which fell just short in its ranking, each network that Cablevision
(continued….)
128

16

 Federal Communications Commission

FCC 16D-1

that, based on the number of viewing hours, GSN’s performance was “more in line with the bottom 40%
of iO Family networks, suggesting that the few viewers that watch appear to watch it with regularity.”129
30.
The Montemagno Memorandum concluded that “the removal of GSN from our systems
will result in minimal customer outcry and we can easily withstand the activity.”130 But the Memorandum
also noted that the GSN carriage assessment team was “somewhat concerned” that Sony, GSN’s coowner, might {{
}}.”131 Montemagno warned Bickham that “[t]hey could very well insist {{
}} that we sign a new GSN deal at higher rates, retroactive
payments, guaranteed carriage, etc.”132 The Memorandum went on to advise that “[i]f everyone is
comfortable taking on the risks associated with {{
}}, then we are prepared to pursue
deletion [of GSN] if Mgt. desires to do so.”133 Alternatively, Cablevision’s product management team
proposed that, rather than drop GSN, consideration be given to “retention of GSN” but repositioning the
network on the Silver tier.134 That alternate plan would result in savings of approximately {{
}}, a substantial portion of the {{
}} annualized GSN license fees that Cablevision
would gain by dropping GSN.135 In July 2010, Cablevision decided to neither drop nor retier GSN.136
c.

Cablevision’s 2011 Programming Budget

31.
In 2011, Cablevision’s programming budget was approximately {{
}}.137
The 2011 budget reflected a 6.4 percent increase of {{
}} in programming costs above
(Continued from previous page)
distributed on the expanded basic tier during the period February-June 2010, including GSN, ranked among the top
third of all networks distributed by Cablevision.
129
CV Exh. 119 at 3; see also Montemagno Testimony at 19 (Montemagno testified that he had “also noted that
there was a small group of viewers that watched GSN with regularity, such that the overall viewership data were not
as grim as the household count” suggested).

CV Exh. 119 at 3 (Cablevision also was “not too concerned about our lack of carriage [of GSN] while our
competitors continue to offer it.”).

130

131

Ibid.

132

Ibid. (boldface and underline in original). The Montemagno Memorandum noted that “{{

}}.” Ibid. But Montemagno concluded in his memorandum that if Cablevision {{
}}, “{{
}}.” Ibid. In addition, the Montemagno Memorandum advised Bickham that if Cablevision had a
future “{{
}}, lack of GSN carriage could also complicate these
efforts.” Id. at 4.
133

Ibid.

134

See ibid.

Ibid. (noting concern that under the alternate proposal “GSN could still de-authorize.” The Memorandum also
noted that based on STB data for the week of July 12-18, 2010, “12% of iO Family subscribers tuned into GSN,
13% of iO Silver subs, and 16% of iO Gold” subscribers. Id. at 3. See also Montemagno Testimony at 20
(Montemagno testified that “at the suggestion of the product management team, I raised the possibility of re-tiering
GSN to iO Silver or Gold, rather than dropping it altogether, noting that such a move would save as much as {{
}} of the {{
}} in savings sought by Mr. Bickham.”).
135

See ibid. (Montemagno testified that “Mr. Bickham took my memorandum under consideration but made no
decision at that time.”); Tr. at 1667:23-1668:12 (Montemagno testified that although he had “raised the possibility in
my July memo to Mr. Bickham” of moving GSN to the Silver tier, “we did not pursue that.”).
136

137

CV Exh. 136 at 2.

17

 Federal Communications Commission

FCC 16D-1

2010.138 Approximately 70 percent of the programming budget increase was due to contractual license
rate increases (unrelated to GSN) and growth in the number of Cablevision subscribers on which license
fees would be calculated.139
32.
Cablevision’s 2011 programming budget related to GSN “[a]ssumed no increase to the
current payment rate” of “{{
}},” which licensing payments to GSN amounted to approximately
one-quarter of 1 percent of the total budget.140 The 2011 budget also assumed that GSN’s carriage would
remain on the expanded basic tier.141 But there also was an alternative proposal of either dropping GSN,
resulting in savings of “{{
}},” or moving GSN to the Silver or Gold tiers, resulting in savings of
“{{
}}.”142 The 2011 programming budget reflected the same cost figures,143 made the same
assumptions, and included the same alternative proposal for {{
}}.144 {{
}}
is a non-affiliated documentary network that Cablevision also distributed on the expanded basic tier.145
33.
On November 8, 2010, Rutledge, Bickham, Budill, and Montemagno met to discuss
Cablevision’s 2011 programming budget.146 With an approximately {{
}} projected increase
in its programming costs, Cablevision was looking for ways to trim its 2011 programming budget. 147
During the meeting, Rutledge suggested with respect to four non-affiliated networks distributed on the
}},
expanded basic tier that had expired or expiring carriage agreements—specifically, GSN, {{
{{
}}, and {{
}}148—(1) “mov[ing] them to the sports tier,”149 (2) {{
138

Ibid.; Tr. at 1657:5-17.

139

CV Exh. 136 at 2 (contractual license rate increases accounted for 57.9% and growth in Cablevision subscribers
accounted for 11.9% of the increase in Cablevision’s 2011 programming budget).
140
Id. at 4. See also Bickham Testimony at 94 (Bickham testified that GSN constituted “.26” percent of
Cablevision’s 2011 programming budget).
141

See CV Exh. 136 at 8.

142

Ibid.

143

Ibid. (for {{
}}, the 2011 programming budget assumed no increase in the 2010 effective rate of
}}, which accounted for 0.26% (or {{
}}) of the total 2011 budget).

{{

Ibid. See also Montemagno Testimony at 22 (Montemagno testified that “[t]he potential savings associated with
removing both GSN and {{
}}—about {{
if either programming network were dropped
or {{
}} if either programming network were repositioned to iO Silver or Gold—are reflected in the
2011 Programming Budget dated November 8, 2010, a copy of which is CV Exh. 136.”).
144

145

See CV Exh. 816—Tim Brooks and Earle Marsh, The Complete Directory to Prime Time Network and Cable TV
Shows 1946-Present (9th ed. 2007) (Cable Directory) at 1421. At hearing, Brooks testified that the Cable Directory
is “an encyclopedia of all series that have run on any of the major networks, either cable or broadcast since their
inception in the evening hours.” Tr. at 1136:18-1137:1. Cablevision moved the Cable Directory into evidence and
received confirmation from Brooks that in the television industry, the Cable Directory is widely acknowledged as a
leading resource of its type. Tr. at 1175:9-1176:4.
Jim Nuzzo, Cablevision’s “executive vice president of financial planning” also attended the meeting. Tr. at
1519:14-22; see also Montemagno Testimony at 22 (Montemagno testified that “[o]n November 8, 2010, Mr.
Rutledge, Mr. Bickham, Mr. Nuzzo, Mr. Budill, and I met to review the 2011 Programming Budget.”); CV Exh. 136
at 22 (11/8/10 Montemagno handwritten meeting notes listing “Tom R, John B, Jim Nuzzo, Mac & I” as attendees).
146

Tr. at 1517:10-25 (Montemagno testified that during the November 2010 meeting, “we talked about for 2011 the
anticipated programming cost increases . . . [a]nd we talked about what actions, what channels might we change our
distribution arrangement with to save money.”); Montemagno Testimony at 20 (Montemagno testified that “as a part
of our annual program budgeting process, the programming department undertook its ordinary course evaluation of
programming cost savings opportunities on Cablevision’s channel lineups”).
147

148

GSN’s carriage agreement expired on {{
}}; {{
}}’s agreement expired on {{
}}; and {{
}}’s and {{
}}’s respective agreement was due to expire on {{
}}. CV Exh. 99 at 6, 8; see also CV Exh. 136 at 4. Montemagno testified that when Cablevision “consider[s]
(continued….)

18

 Federal Communications Commission FCC 16D-l

(3) moving them to the Silver tier.
or 4 ?oppmg 1em. retiermg pro osa 111a an con51 ered at the November 8. 2010 meeting
was to move all foru? networks?GSN. and }?as a wit to the
Sports Pak tier.?1 Conversely. at the Novem er 8. 2010 get meetmg. there was no

consideration given to moving GSN or any other network separately or individually to the Sports Pak
tier.152

 

 

34. In the 2011 programming budget. Cablevision identi?ed and as
being among the ?30 most expensive services account[ing] for 81% of total progranmling costs.?153 At
the November 8. 2010 meeting. ablevision decided not to take an of the proposed cost-savings actions
against }}.154 ablevision also did not act against but continued at-will carriage of

on the expanded basic tier at the existing license rate of .155 With respect to

 

(Continued ?om previous page)
repositioning programming networks to save costs. we only look at networks that are out of contract. or networks
that have agreements that grant us carriage ?exibility.? Montemagno Testimony at 21. Cablevision's af?liated
networks?AMC. IFC. and Sundance?also had carriage agreements that were due to ex ire 011 

. CV Exh. 136 at 4. The 2011 programming budget re?ected license fees of for AMC.

for IFC. and for Sundance. Ibid. The 2011 budget also re?ected license
fees of in 2010 and in 2011 for WE tv: and a license fee of for Wedding Central in
both years1519:4-10 (Montemagio testi?ed that during the November 8. 2010 progranmiing budget meeting.

Rutledge suggested that GSN and . . . move . . . to a

sports tier").

15? See CV Exh. 136 at 22: Tr. at 168425-22. See also Tr. at 165725-21 (Montemagno con?rmed that it was the
increase in programming costs in the 2011 programming budget that Cablevision was ?trying to
manage against" by ?looking at and GSN and whether cuts could be made??): Bickham
Testimony at 94-95 (Bickham testi 1e ttat ns ocus during the November 2010 meeting was on the ?increase
budgeted year over year . . . as opposed to . . . the t[otal] cost of progranmiing.? and that Cablevision?s effort to trim
?3 percent of that [increase]? was ?not an insigni?cant mmtber?): Dolan Testimony at 217-19 (Dolan testi?ed that

?it?s very dif?cult to cut budgets." and so the Cablevision saved by retiering GSN was
?certainly a material amount of money? cut from ablevision?s 2011 programming budget. which exceeded 



15? Tr. at 1662: 1-19 (Montemagno testi?ed that at the November 8. 2010 progranmiing budget meeting. the
discussion was about whether to move ?[a]ll of those four? networks?{ i - 
GSN. and a Sports Tier? and not about whether to move any one tiem).

153 Ibid. See also Bickham Testimony at 67 (Bickham testi?ed that prior to the November 8. 2010 budget meeting.
he could not ?recall any? instance where Cablevision had considered moving GSN to the Sports Pak tier). During

and subsequent to the November 8. 2010 meeting. Bickham testi?ed that ablevision did not consider dropping or
retiering WE tv or any other Rainbow network as a cost-savings measm?e. Id. at 104.

153 CV Exh. at 136 at 10. In addition. the combination of Cablevision?s af?liated sports networks. MSG and MSG
Plus. with a license fee of was listed fn?st among the ?30 most expensive services? in the 2011
progranmiing budget. Ibid. See a so Tr. at 1619: 13-1620:6 (Montemagno testi?ed that Cablevision was scheduled
to pay the most money in 2011 to MSG and MSG Plus as ?combined?).

15? The 2011 progranmiing budget re?ected a license fee of for CV Exh. 136 at 10.
Montemagno testi?ed that at the November 8. 2010 meeting. Ca evision ?discussed and decided? not to act against
which because and so

Ca evision . Tr. at 166324-14.

The outcome of the November 8. 2010 meeting was that would not be retiered but would remain on the
expanded basic tier. Id. at 16635. See also CV Exh1663:15-19 (Montemagno testi?ed that was 
and so Cablevision was At 1e Novem er 8. 2010
meeting. Montemagno also testi?ed lat. Wit 1 respect to tie a 1 late Ram ow networks. it was agreed that in the

(continued. . . .)

     

 

l9

Federal Communications Commission

FCC 16D-1

GSN and {{
}}, Cablevision stood to achieve “potential savings” of approximately “{{
}}” by dropping “either programming network . . . or {{
}} if either programming
network were repositioned to iO Silver or Gold.”156 At the November 8, 2010 meeting, Cablevision
decided “to drop” {{
}} but not GSN.157
d.

The Retiering Decision

35.
By November 23, 2010, with respect to GSN and {{
}}, Cablevision was
implementing the carriage decisions it had made after the November 8, 2010 programming budget
meeting.158 Cablevision decided that “plans should be prepared based on Cablevision no longer carrying
{{
}} upon expiration of our current agreement on {{
}}.”159 {{
}} was scheduled to meet with Cablevision on November 29, 2010, and “the formal approval to
proceed with the plan” to drop {{
}} would “be given” following the scheduled meeting.160
Cablevision subsequently reversed its decision to drop {{
}}, entered into a new carriage
agreement with {{
}} at {{
}} licensing cost, and continued to carry
{{
}} on the expanded basic tier.161

(Continued from previous page)
renewal of their expiring carriage agreements, the license rates would “{{
}}.” See CV Exh. 136 at 22; Tr. at 1684:25-1685:2. In addition,
Montemagno testified that Cablevision also decided at the meeting that it was “not interested now” in distributing
the Oprah Winfrey Network (OWN). CV Exh. 136 at 22. Yet shortly thereafter Cablevision launched OWN. See
Montemagno Testimony at 23 (Montemagno testified that Cablevision decided “in December 2010, to launch
another unaffiliated women’s network, OWN (the Oprah Winfrey Network).”).
156

Montemagno Testimony at 22.

157

Tr. at 1520:3-4. Montemagno testified that Cablevision did not make the same decision for GSN as it had made
for {{
}} but decided instead to retier GSN. Id. at 1519:23-1520:4.
CV Exh. 141 at 3 (11/23/10 internal Cablevision email regarding “the latest on {{
]}} and GSN”).
The Presiding Judge rejects as erroneous Montemagno’s conflicting hearing testimony—which Montemagno
himself contradicts—that “Cablevision made its decision to retier GSN” from the expanded basic tier to the
premium sports tier in “July 2010.” Tr. at 1508:1-6. The record unequivocally shows that the retiering decision was
made in November 2010. See Tr. at 1518:21-1519:25 (Montemagno testified that the decision to retier GSN from
the expanded basic tier to the premium sports tier was an outcome of the November 8, 2010 meeting regarding the
Cablevision’s 2011 programming budget); id. at 1653:15-18 (Montemagno confirmed that when making the
November 2010 retiering decision, Cablevision revisited GSN’s July 2010 performance); id. at 1654:10-1655:4
(Montemagno similarly confirmed that in November 2010, Cablevision took another look at GSN and from there
made the retiering decision); id. at 1654:13-1656:3 (Montemagno also confirmed that the information reflected in
CV Exh. 154, which is dated December 16, 2010, is the information that Cablevision relied on in making the
retiering decision). See also Montemagno Testimony at 20 (Montemagno testified that “{{
}}” to drop or
retier GSN); cf. Bickham Testimony at 205 (Bickham’s testimony reflects that the GSN carriage decisions made in
July 2010 and November 2010 were distinct).
158

159

CV Exh. 141 at 3.

160
Ibid. See also Tr. at 1521:16-19 (Montemagno testified that after {{
}} was notified of
Cablevision’s decision to drop the network upon expiration of their carriage agreement, {{
}} “did
not want us to pursue it,” and instead “asked to come in, meet with us, and negotiate a solution.”).
161

Cablevision subsequently decided to continue broad distribution of {{
}} because {{
}} “cut their [license] fee by {{
}}.” Id. at 1521:23-25. See also Montemagno Testimony at 22
(Montemagno testified that “[s]ubsequent to the November 8 meeting, we decided to drop the {{
}}
altogether” but once “{{
}} agreed to {{
}} . . . we were able to conclude a
new carriage agreement.”); CV Exh. 121E at 1 (12/6/10 memorandum to Bickham from Budill that references the
(continued….)

20

 Federal Communications Commission

FCC 16D-1

36.
By November 23, 2010, Cablevision had also decided that “plans should be prepared
based on Cablevision repositioning GSN to the Sports Pak tier effective [February 1, 2011].” 162 In
contrast to the reversal of its decision to drop {{
}}, Cablevision’s decision to move GSN
from the expanded basic tier to the Sports Pak tier was “a go.”163 Cablevision planned to notify GSN of
the retiering decision on December 6, 2010, the same date that Cablevision anticipated that the
unannounced billing message about the retiering would reach Cablevision subscribers.164
37.
The preponderance of record evidence shows that the decision to move GSN from the
expanded basic tier to the Sports Pak tier was made by Bickham, and approved by Rutledge.165 In July
2010, Bickham had previously considered but decided against dropping or retiering GSN on the Silver
tier when it had been pointed out to him that GSN ranked 49th out of 52 networks on the expanded basic
tier and that GSN subscribers were loyal viewers166—a subscriber attribute that was highly valued by
Cablevision.167 Also, in July 2010, of the seven affiliated networks Cablevision distributed on the
expanded basic tier, GSN outranked MSG, Cablevision’s affiliated sports network.168 When the retiering
decision was made in November 2010, GSN ranked 45th out of 56 networks on the expanded basic tier,
and outranked MSG, MSG Plus and MSG Varsity, the three affiliated sports networks that Cablevision

(Continued from previous page)
“{{
}}”).

}}” of a carriage agreement with {{

162

CV Exh. 141 at 3. See also Tr. at 1525:9-11.

163

CV Exh. 141 at 3.

}} “{{

164

Ibid. Cablevision informed GSN of the retiering decision on Friday, December 3, instead of on Monday,
December 6, 2010, as planned. See CV Exh. 146 (12/3/10 email in which Montemagno stated that he had “informed
GSN of our intentions” and GSN was “likely going to call me on Monday” once the retiering decision has “been
socialized there.”).
CV Exh. 121E (12/6/10 memorandum to Bickham from Budill in which Budill reports that “[p]ursuant to a
meeting with COO [Rutledge] and President [Bickham], CSC intends to reposition GSN to Sports Pak in early
2011”). See Tr. at 1558:18-24 (Montemagno testified that the “ultimate decision” to retier GSN to the premium
sports tier was not made by him but was made by Bickham). Cf. Sapan Testimony at 211 (Sapan testified that “Tom
Rutledge’s job ultimately [was] overseeing John Bickham overseeing Mac Budill overseeing Tom Montemagno”).
See also Bickham Testimony at 69-70 (Bickham identified Rutledge as the final decisionmaker but also testified that
he and Rutledge were the only two people who were involved in making the final decision to move GSN to the
premium sports tier); Dolan Testimony at 76 (Dolan testified that the decision to retier GSN “would have been made
by Mr. Budill, Mr. Bickham and Mr. Rutledge” and that he played no role in making the decision). Cf. Bickham
Testimony at 61 (Bickham testified that he did not know whether he had shared the July 2010 GSN carriage
assessment with Rutledge but he was emphatic that he would not have shared such information with Dolan).
165

166

See supra para. 29.

167

See Dolan Testimony at 112-14 (Dolan testified that it is more valuable to Cablevision to have fewer subscribers
watching a network frequently than it is to have many subscribers watching a network infrequently); id. at 114
(Dolan also testified that the number of times subscribers return to a network “means they’ve gone to the program,
they see the programming, they like the program, they go back and watch it again”); id. at 115 (Dolan further
testified that by repeatedly returning to a network, the subscribers “are clearly saying to saying to you [the cable
distributor] that, . . . they enjoy the programming.”). Cf. Brooks Expert Testimony at 43 (Brooks testified that
“[l]oyalty is a proxy for satisfied customers. It is often why subscribers subscribe in the first place—to be able to
watch the channels they passionately like.”). See also ibid. (Brooks’s expert analysis found that “GSN households
are certainly loyal, spending more than twice as many hours tuning to GSN as WE tv households spent tuning to WE
tv during the sample week provided by Cablevision.”).
168

MSG was ranked 50th out of the 52 networks Cablevision distributed as the expanded basic tier in July 2010. CV
Exh. 117 at 7.

21

 Federal Communications Commission

FCC 16D-1

distributed on the expanded basic tier.169 There is no evidence that Cablevision gave any consideration to
retiering any affiliated sports networks to the Sports Pak tier.
38.
In contrast to the cost-savings proposal Rutledge had made at the November 8, 2010
budget meeting, Bickham decided to move only GSN, which he knew to be a general entertainment
network, to a Sports Pak tier that Bickham described as “a collection of sports programming, pure sports
programming” with “one or more networks that were outdoor related – hunting, fishing, that type of
thing,” and Bickham believed that the networks Cablevision distributed on the premium sports tier tended
to attract “male” viewers.170 In targeting GSN, Bickham apparently gave no consideration to whether
GSN’s programming tended to attract male or female viewers.171 Bickham also testified that he gave no
consideration to how broadly other MVPDs distributed GSN.172 Nor apparently did Bickham consider
how GSN’s retiering would impact Cablevision’s affiliated networks in general, or WE tv and Wedding
Central in particular.173
39.
GSN’s availability to retier derived from the assessment made in July 2010 as being a
non-affiliated network that was out-of-contract.174 In making the decision in November 2010 to move
GSN from the expanded basic tier to the Sports Pak tier, Bickham “considered [1] the fact that [GSN’s
programming] was old reruns that appealed to a niche audience, [2] the fact that it was not must-have
television, and [3] that [Cablevision] could essentially reduce the carriage [reach] of [GSN] without
having a negative impact on the business.”175 Bickham testified that moving GSN to the premium sports
tier was better than dropping GSN (as he had proposed that Cablevision do in July 2010) because
retiering GSN “saved almost the entire amount of carriage fees” being paid to GSN without “completely

169

See CV Exh. 154 at 5 (out of 56 networks on the expanded basic tier, based on STB data, GSN ranked 45th,
SoapNet ranked 46th, MSG ranked 47th, MSG Plus ranked 48th, Speed ranked 49th, MSG Varsity ranked 50th, HD
Theater ranked 51st, Universal HD ranked 52nd, Eternal Word Television Network ranked 53rd, Galavision ranked
54th, Daystar ranked 55th, and Telecare ranked 56th); see also Tr. at 1655:2-20 (Montemagno testified that the
information that Cablevision examined in November 2010 in connection with the retiering decision showed that of
the 56 networks distributed on the expanded basic tier, GSN ranked 45th based on set-top box data and 41st based on
Nielsen data).
170

Bickham Testimony at 68-69.

171

See id. at 57.

172

Id. at 73.

Bickham Testimony at 204-06; see also Montemagno Testimony at 34 (Montemagno testified that “decisions
concerning carriage agreements with programming networks are made by Cablevision’s” programming side, and
“[d]ecisions about network development, on the other hand, were made by . . . Rainbow”); ibid. (Montemagno
further testified that “Cablevision’s decision to remove GSN from the expanded basic tier following its distribution
team’s evaluation of programming cost-savings opportunities had absolutely nothing to [do] with a decision reached
by the independently operating Rainbow . . .”).
173

See Bickham Testimony at 38 (Bickham testified that because “there was no contract,” GSN was a “fairly easy
network to look at”).
174

Id. at 73. Bickham testified that a niche audience is “a small audience,” and in GSN’s case, he “assumed it was
old.” Id. at 73-74. Bickham also testified that must-have television is “the kind of programming that if you lose it,
people will call and disconnect because you don’t have it. It’s no more complicated than that.” Id. at 75. In
addition, Bickham testified that at the time he made the decision to retier GSN in November 2010, he was not aware
that GSN aired original programming. Id. at 107-08. The Presiding Judge notes, however, that the record
unequivocally shows that the undisputed fact of GSN’s original programming was brought to Bickham’s attention
no later than July 2010. See CV Exh. 119 at 3 (7/22/10 memorandum to Bickham from Montemagno that states that
GSN’s “[k]ey [p]rogramming” includes “original game shows”); see also Bickham Testimony at 49-61 (Bickham
testified regarding the contents of CV Exh. 119).
175

22

 Federal Communications Commission

FCC 16D-1

tak[ing] the programming away” from Cablevision subscribers.176 Thus, Bickham decided to move GSN
to the Sports Pak tier because, in his words, “[i]f someone had to have the Game Show Network, they
could subscribe to that tier of service and see the network.”177 This appears to be a recognition by
Bickham of the fact that demand for GSN was so great and GSN subscribers so loyal that they would pay
more without complaining to keep the programming. It also left a trove of viewers for WE tv to solicit.
Here Bickham saw GSN as the unaffiliated target opportunity to make and save money without having
any concern for viewers’ recourse.178
e.

The Retiering’s Erroneous Justification

40.
On December 3, 2010, Montemagno notified Gillespie of the decision to move GSN from
the expanded basic tier to the Sports Pak tier, effective February 1, 2011.179 Montemagno also advised
Gillespie that GSN’s “fees and ratings performance” led to the retiering decision,180 and Montemagno
told Gillespie that the retiering decision was “final.”181 Gillespie still persevered by asking Montemagno
“if [Cablevision] had a price” for reversing the decision and continuing GSN’s carriage on the expanded
basic tier.182 Montemagno’s response was “not really.”183 In addition, Montemagno advised Gillespie
176

Id. at 70. See also Montemagno Testimony at 23 (Montemagno testified that retiering GSN on the Sports Pak
tier allowed Cablevision to realize nearly all of the amount Cablevision would have saved by dropping GSN in July
2010 as Bickham had sought); Tr. at 1658:22-25 (Montemagno testified that Cablevision moved GSN to the Sports
Pak tier because “[i]t was the only tier that we had with low penetration that would enable [Cablevision] to save the
majority of the {{
}} we set out to save.”).
Bickham Testimony at 70. Dolan testified that he was told that the retiering decision was made because “GSN
wanted a significant rate increase.” Dolan Testimony at 177. Dolan further testified that Cablevision’s distribution
“group found that the product . . . didn’t warrant the rate increase” but “the fact that they were willing to put [GSN]
on a tier” informed Dolan “that they thought there was some level of . . . customer interest in the channel but not
enough to warrant . . . the carriage that GSN was looking for.” Ibid.
177

178

Regardless of tier, it cost Cablevision {{
}} per subscriber to distribute GSN programming. By retiering
GSN to the Sports Pak tier, Cablevision reduces its monthly licensing fees for GSN programming from
{{
}} to approximately {{
}} (see CV Exh. 119 at 3 and CV Exh. 147), and also gains an additional
$6.95 monthly fee from each GSN viewer who then must subscribe to the Sports Pak tier for continued access to
GSN programming.
179
Tr. at 1524:5-10; CV Exh. 146 at 1; Montemagno Testimony at 24 (Montemagno testified that on “December 3,
2010, I called Dennis Gillespie, GSN’s senior distribution executive, to inform him of [Cablevision’s] decision to
reposition GSN.”). See also GSN Exh. 93 at 1; GSN Exh. 99.
180

GSN Exh. 93 at 1.

Montemagno Testimony at 24-25 (Montemagno testified that Gillespie “asked me to reconsider our decision,
saying that GSN had new ideas for reinvigorating its image, but I told him the decision was final.”); CV Exh. 150
(12/04/10 email from Budill to Rutledge in which Budill reported that Montemagno “called Dennis Gillespie late
yesterday to inform him of” the retiering decision, and Gillespie had “asked if there was anything [GSN] could do . .
. .we told him that this was about cost reduction in the face of other troubling trends in the business and . . . . no . . .
.there wasn’t really anything they can do” (ellipses in original)); Tr. at 217:17-24 (Goldhill testified that Cablevision
“explicitly said [the retiering decision] was non-negotiable”); GSN Exh. 99 (12/3/10 email from Goldhill to
DIRECTV and Sony executives in which he reported that “Cablevision just informed us they will be dropping GSN
to a poorly-distributed tier on February 1 . . . and that they have no interest in negotiating.”). See also GSN Exh.
127 (2/5/11 internal Cablevision emails in which Montemagno stated that although Dolan, Rutledge, and he were
scheduled to meet with GSN and {{
}}, Montemagno was “hoping no reversal” of the retiering decision was “in
the cards,” and also stated that he was confident that Rutledge “would hold firm for sure” against reversal of the
retiering decision); Dolan Testimony at 173-80 (Dolan testified that he was willing to engage with GSN and
{{
}} in an effort to find a mutually satisfactory resolution of the retiering decision “but not at the expense of
undermining Mr. Rutledge” because the retiering decision was Rutledge’s call and even if Dolan “thought Mr.
Rutledge’s thinking wasn’t exactly my thinking, I would support him . . .”).
181

182

CV Exh. 146 at 1.

23

 Federal Communications Commission

FCC 16D-1

that Cablevision was “looking to save hard [dollars],” and he also noted that he was “not even sure if free
[carriage of GSN] would change our minds.”184
41.
Following Montemagno’s advice to Gillespie, Goldhill informed GSN’s management
committee of Cablevision’s definitive retiering decision, which came to GSN “without warning,”185 and
}}
which would “[i]mmediately”186 “result[] in the loss of almost all of [GSN’s] {{
[Cablevision] subscribers,” as well as annual losses of “{{
}}” in license fee revenue and “{{
}}” in advertising revenue.187 Goldhill solicited assistance from GSN’s management committee,
which included DIRECTV and {{
}}, to convince Cablevision to reverse its “nonnegotiable” retiering decision.188 In an effort to maintain carriage of GSN on the expanded basic tier,
DIRECTV’s Derek Chang made contact with Rutledge,189 and {{
}} contacted Dolan.190 Neither effort was successful.191
(Continued from previous page)
183
Ibid.
Ibid. Montemagno also noted that during the call, Gillespie “totally got the connection to the retrans
dynamic/trend and how it is going to drive more decisions like this” and that Montemagno had “made headway with
that argument.” Ibid. But see Gillespie Testimony at 62, 124, 151 (Gillespie testified that even though he believed
Montemagno to be “a good . . . stand-up guy,” Cablevision’s retiering decision “made [no] sense” to him; Gillespie
also testified that Montemagno had told him that the retiering decision was based on Cablevision’s determination
that, in view of GSN’s “ratings and our license fees,” “the cost was too much for the service”; and Gillespie further
testified that GSN’s “ratings were probably at or above several networks that [Cablevision] carried either on a
family package or on their digital package”). See also CV Exh. 150 (12/4/10 internal Cablevision email in which
Budill reported to Rutledge (carbon-copying Bickham and Montemagno) that Montemagno had “called Dennis
Gillespie late yesterday to inform him of” Cablevision’s decision to retier GSN to the premium sports tier; Gillespie
had “asked if there was anything [GSN] could do” to change the retiering decision; and Cablevision had responded
that the retiering decision “was about cost reduction in the face of other troubling trends in the business and . . . no .
. . .there wasn’t really anything they can do”) (ellipses in original).
184

185

Tr. at 218:10-24. See also CV Exh. 146 (when Montemagno notified Gillespie of the retiering decision, Gillespie
was “[o]bviously very disappointed and would have liked more notice”); Gillespie Testimony at 146-47 (Gillespie
testified that although the possibility that Cablevision could drop GSN because GSN was out-of-contract
occasionally had come up in GSN management meetings and discussions with Goldhill, Gillespie was “shocked” by
the retiering decision because it “was an extraordinary step”); Tr. at 217:17-19 (Goldhill testified that he had “never
heard of another established cable network being dropped or retiered, except at the end of a fairly long and often
disputatious negotiation.”). Compare Martin Testimony at 197, 201 (Martin testified that “[e]very distributor
expresses concern about price about every network” and “[a]s a course of business, distributors threaten drops all the
time”).
186

Tr. at 219:4-8.

See GSN Exh. 99. Dolan testified that license fee revenue and advertising revenue are “the major revenue
sources” for a cable network, and that such revenue is significantly impacted by how broadly the network is
distributed on a cable system. Dolan Testimony at 58, 59-60.
187

Tr. at 217:22-24, 220:2-12 (Goldhill testified that even though Cablevision had “explicitly said it was nonnegotiable,” the notification to the management committee of the retiering decision “led to . . ., can any of you talk
to anyone there [at Cablevision] and find out why this happened”); see also GSN Exh. 99.
188

189

Chang Testimony at 108-09. See also Tr. at 1630:11-15 (Montemagno testified that after he notified GSN in
December 2010 of the retiering decision, he “was made aware” that Chang had contacted Cablevision to discuss
what could be done about that decision).
Dolan Testimony at 76; id. at 166 (Dolan testified that “Mr. {{
}} called me … [and] [w]e discussed the
Game Show Network and if there was a way for the company to change its position.”); see also id. at 79-80 (Dolan
also testified that the retiering decision “was not my decision” but “was Mr. Rutledge’s decision, Mr. Bickham’s
decision and Mr. Budill’s decision” and that he was not “aware of it at all until . . . I heard from {{
}}”). Although Dolan had no involvement in Cablevision’s decision to retier GSN, Dolan testified
(continued….)

190

24

 Federal Communications Commission FCC 16D-l

 

42. A?er GSN received the December 3. 2010 retiering decision. Cablevision. through
Rainbow.192 proposed reversing the retiering decision in exchange for lalmch of
Cablevision?s af?liated network Wedding Central.193 After considering Cablevision?s proposal. 011
January 31. 2011. DIRECTV rejected it.194 011 the next day. Cablevision began distributing GSN on the
Sports Pak. its premium sports tier.195

43. GSN and 
expanded basic tier. 
Cablevision would pay a cense ee 0

then r0 osed that. in exchan for restoring carriage on the
Under that to osal.

   
   
 

 

(Continued from revious page)
that he told that he ?would see what I could maybe some more creative ways for the
companies to relate to each other so that . . . they could both be satis?ed." Id. at 168: see also id. at 174 (Dolan also
testi?ed that he ?told Mr. when I ?rst spoke to him. these are not discussions that I would normally get
involved 

191 See GSN Exh. 102 (12/1 7/ 10 email from Goldhill to Chang in which Goldhill stated that ?spoke
with jimmy dolan and apparently cablevision has an ask for and 12/20/10 email in which Chang replied
that Cablevision ?asked for something also?).

?92 GSN Exh. 99 (when Chang reached out to Rutledge. he was referred to Sapan. who had ?some Rainbow ideas?
for reversing the retiering decision): Chang Testimony at 119 (Chang testi?ed that Rutledge told him to "[t]alk to
Josh [Sapan]. which I then See also Broussard Testimony at 8 (Broussard testi?ed that ?Mr. Sapan told me
that Derek Chang . . . had reached out to Mr. Rutledge in connection with the decision by Cablevision to re-tier
GSN. Mr. Sapan told me that Mr. Chang asked Cablevision if there was any deal that could be done between the
companies that would change Cablevision?s decision to re-position GSN. Mr. Sapan further told me that Mr.
Rutledge had directed Mr. Chang to contact us at Rainbow to discuss possibilities?).

?93 Chang Testimony at 130 (regarding effort to persuade Cablevision to reverse the retiering decision.
Chang testi?ed that ?by the end. . . . whether it was with Mr. Sapan or Mr. Broussard. . . . the only thing that was of
interest from a Rainbow standpoint was for to do some sort of launch of Wedding Central?). See also
Tr. at 1949:4-10 (Broussard testi?ed that agreement to launch Wedding Central ?might have cast a
favorable light on discussions that Cablevision was having with Game Show Network").

194 The Presiding Judge found conflicting evidence in the record showing that GSN-DIRECTV made the Wedding
Central carriage proposal to Cablevision in an effort to persuade Cablevision to reverse its retiering decision. See
Martin Testimony at 80. 114-16 (Martin testi?ed that Broussard told her that Chang had called Rutledge and
proposed distribution of Wedding Central by DIRECTV): Sapan Testimony at 234 (Sapan testi?ed that he had no
recollection whether he or Chang was the ?rst to propose launch of Wedding Central as the quid pro
quo for reversing the GSN retiering decision). Based on the greater weight of evidence. the Presiding Judge ?nds
that Cablevision-Rainbow made the Wedding Central carriage proposal to GSN-DIRECTV. See Chang Testimony
at 119 (Chang testi?ed that ?at some point Josh [Sapan] or Josh and Bob [Broussard] brought up Wedding Central
as kind of the key to it all"): id. at 129 (Chang also testi?ed that Sapan was the ?rst to propose ?deals aromid
Wedding Central in exchange for putting GSN back up to where it had been?): GSN Exh. 98 (12/10/10 email in
which Montemagno informed Budill that Rutledge had ?tasked Broussard to come up with a list of asks for Direct
TV that would be worth our keeping GSN status quo?); GSN Exh. 101 (12/ 18/ 10 email in which Broussard
informed Carroll and Sapan that he ?spoke with Derek [Chang] and made the proposal we discussed." and in
response. Chang ?said W[edding] C[entral] would be dif?cult but agreed to consider over the weekend?): Broussard
Testimony at 8 (Broussard testi?ed that ?there were numerous business issues being discussed between DIREC TV
and Rainbow. including securing carriage of Wedding Central on GSN Exh. 111 (Bickham advised
that Sapan had said that ?he wants to get to carry Weddings?). However. as discussed in?'a paragraph
109. while of interest. this fact is not material to a resolution of this case.

?95 Chang Testimony at 130 (Chang testi?ed that ?Vve ?nally decided ?om a DirecTV standpoint that" launching
Wedding Central in exchange for maintaining Cablevision?s carriage of GSN on the expanded basic tier ?wasn?t a
trade we were willing to make. so as a result. we said no ultimately. and they did what they 

?96 Tr. at 153021-13.

25

Federal Communications Commission

FCC 16D-1

}},197 which was {{
}} than the {{
}}
license rate Cablevision was paying to GSN, and was {{
}} of the license fee GSN
sought in {{
}}, when the parties tabled negotiations for a new carriage agreement.198 The GSN{{
}} proposal would have saved Cablevision {{
}} annually.199
44.
By the time the GSN-{{
}} proposal was made, Cablevision was already distributing
GSN on the premium sports tier,200 and, as Montemagno testified, Cablevision had “already put in our
[2011 programming budget] plan that we were saving {{
}}.”201
Consequently, “[a]ny added expense” in restoring GSN’s broad carriage “would have been added
expense” that Cablevision “didn’t budget” or “plan for.”202 Cablevision rejected the GSN-{{
}}
203
proposal, and emphatically told GSN “that it would not accept any carriage proposal that required
Cablevision to pay anything at all for GSN.”204 Montemagno similarly testified that Cablevision made a
counterproposal that “the license fee {{
}}.”205 GSN rejected Cablevision’s counterproposal out of hand as a “non-starter.”206 GSN “did not
view” the counterproposal “as an indication of a willingness to negotiate”207 or as having been made in
197

Ibid. (GSN and {{

}} “{{

See CV Exh. 40 at 1 (GSN informed Cablevision that it needed “to get to” a license fee of {{
}}). This
license fee was equal to the license fee Cablevision paid to WE tv at the time of GSN’s retiering. See CV Exh. 136
at 12 (Cablevision paid WE tv a license fee of {{
}} for 2010). See also Tr. at 1644:20-1646:12 (Montemagno
testified that Cablevision and WE tv entered into a new carriage agreement in March 2011 which provided a license
fee of {{
}} for 2011 and {{
}} for 2012).
198

199

Bickham Testimony at 134.

Tr. at 1531:21-1532:3 (Montemagno testified that Cablevision “already had made the change, and we didn’t want
to reverse it, put the customer through that change, [and] have the public perception out there when we were having
these public disputes.”).
200

201

Tr. at 1532:4-5.

202

Id. at 1532:5-6.

203

Id. at 1530:21-23.

204

Goldhill Testimony at 10. In response to the GSN-{{
}} proposal for restoring distribution of GSN on the
expanded basic tier, Montemagno testified that he “told GSN . . . that [Cablevision] had made the change, and we
weren’t interested in changing it unless [GSN] was a free – it was directionally a free service.”). Tr. at 1530:21-23.
Montemagno also testified that he used the terms {{
}} to mean
that Cablevision was looking for a license rate from GSN that was “{{
}}.” Tr. at
1678:4-8.
205

Id. at 1531:1-3.

Goldhill Testimony at 10 (Goldhill testified that Cablevision’s “position remained a non-starter in part, as Mr.
Montemagno would have understood, {{
}}”); see also Tr. at 544:910 (Goldhill also testified that GSN viewed Cablevision’s counterproposal “as a non-proposal, since no cable
network in our industry could ever accept such a proposal.”). Goldhill further testified that if GSN were to accept
Cablevision’s counterproposal—i.e., “{{
then GSN “{{
}}” because “{{
}}.” Id. at 544:2-8. Compare Dolan Testimony at 70 (Dolan
testified that networks with MFNs tell distributors “that we can’t give you the rate you want because then we’d have
to lower everybody else’s rate.”).
206

207

{{

Tr. at 544:9-11. Goldhill testified that Cablevision’s counterproposal was not a logical outgrowth of the GSN}} proposal, which “{{
}},”
(continued….)

26

 Federal Communications Commission

FCC 16D-1

good faith.208
f.

Effects of the Retiering Decision on Cablevision
(i)

Subscriber Outrage

45.
On February 1, 2011, the effective date of GSN’s retiering, Cablevision was deluged with
more than 11,000 calls from subscribers expressing outrage that Cablevision chose to distribute GSN on
the Sports Pak tier.209 By the next day, Cablevision had received a total of nearly 20,000 of such calls.210
Montemagno had anticipated that Cablevision would receive many (but not that many) complaint calls
because he thought that GSN had an “older audience with higher propensity to call and complain.”211 He
then testified that he “was surprised at the level” of complaints which “came in higher than I expected.”212
The unprecedented volume of calls received complaining of GSN’s retiering was nearly three times
greater than Cablevision’s “highest amount of calls coded . . . in one day.”213 In contrast to GSN’s
retiering, the highest number of complaint calls received in a single day by Cablevision occurred “in late
2010 . . . after F[OX] pulled its programming causing Cablevision customers to miss multiple new
episodes of FOX network programming, several weeks of the NFL season, the entire National League
[Baseball] Championship Series, and two games of the [Major League Baseball] World Series.”214 In
comparison to the FOX fiasco where the volume of complaint calls “was pretty flat,” the historically high
volume of GSN complaint calls precipitously declined.215 Within 10 days of the retiering, the daily

(Continued from previous page)
because the counterproposal would have resulted in GSN “{{
}},” and so
accepting it “would have essentially put [GSN] out of business.” Tr. at 544:22-545:2. But see Tr. at 1634:10-18,
1636:1-13 (Montemagno testified that because “{{
}},” he did
not believe that Cablevision’s counterproposal “would cause an impact” on GSN’s MFNs with other distributors).
See Tr. at 545:10-14 (Goldhill testified that Cablevision’s counterproposal was “a non-proposal proposal, because
there is no cable network that can stay in business, without exception” if such a proposal were accepted). See also
Complaint at 44 (Declaration of David Goldhill, para. 19); GSN Exh. 111 (Bickham informed Rutledge that
Cablevision received “a letter last night [January 31, 2011] from the [GSN] GC . . . which was to make the claim
that we have refused for {{
}} to respond to their written carriage proposals . . . and a more recent refusal to
meet and engage in ‘good faith negotiations’ to extend the agreement”).
208

GSN Exh. 116 (2/2/11 Cablevision email regarding “GSN Call Volume” that reported that “[y]esterday we coded
11,362 calls received regarding the Game Show Network”).
209

See GSN Exh. 127 (2/5/11 internal Cablevision email to Montemagno which declared that “[a]lmost 20[,000]
calls over two days is a lot of outrage”). For Cablevision, a high level of complaint calls from subscribers would be
10,000 or more in single day, while a low level of complaints would be 1,000 in a single day. See Dolan Testimony
at 128.
210

211

GSN Exh. 118.

212

Tr. at 1622:2-13.

GSN Exh. 116 (2/2/11 forwarded email to Bickham that stated “[t]o put this call volume in perspective, during
the programming dispute with FOX the highest amount of calls coded related to that dispute in one day was 4,368”).
213

Montemagno Testimony at 11; see Tr. at 1623:4-1624:21; GSN Exh. 118 (2/2/11 email which stated that “G[SN]
caused more calls in a single day than fox did”). Montemagno also testified that Cablevision “very aggressively”
notified its subscribers of the Fox dispute which was “specifically intended to suppress people from calling us”
because if Cablevision had not done so, “we would have gotten a lot more phone calls and questions[] [a]nd it costs
us money to take . . . all those calls.” Tr. at 1625:4-20. In contrast, Cablevision did not take such measures with
respect to notifying subscribers of GSN’s retiering because Cablevision “didn’t want the issue to be highly visible to
customers that were not aware of the change.” GSN Exh. 116.
214

See GSN Exh. 129 (as of February 7, 2011—the sixth day of GSN’s retiering—Cablevision had “received 24,865
calls in reference to the tier change”).

215

27

 Federal Communications Commission

FCC 16D-1

volume of calls had dropped to 655 calls.216 But by then, Cablevision had received a total of 27,367 calls
complaining of GSN’s retiering to the premium sports tier.217
(ii)

Fallout of the Retiering Decision

46.
In addition to complaint telephone calls, Cablevision received email messages expressing
anger,218 outrage,219 and fury220 that GSN had been moved from the expanded basic tier to the premium
sports tier. Some emails accused Cablevision of “gouging”221 its subscribers by requiring them to pay an
additional $6.95 for GSN when they had “already paid for it in [their] current package.”222 A Cablevision
subscriber pointed out that some GSN viewers are elderly,223 and another complained that, in moving
GSN from expanded basic to the Sports Pak tier, Cablevision was “really just trying to get more money
from a sector of your customers who can’t afford it.”224 And subscribers of all demographics225
universally complained that it made no sense for Cablevision to include GSN in a sports package. One
such Cablevision subscriber complained that “[m]ost people who watch GSN could care less about a
sports package.”226 Another observed that “GSN and Sports have no connection.”227 Without any doubt,
216

GSN Exh. 132.

Ibid. See also Tr. at 1626:17 (Montemagno testified that the complaint calls regarding GSN’s retiering “only
lasted about a week”).
217

GSN Exh. 113 (2/1/11 email to Dolan from a Cablevision expanded basic tier subscriber who was “really angry”
that Cablevision “put the GSN into the Sports Package”).
218

GSN Exh. 117 (2/2/11 email to Charles Schueler*, Bickham, and Dolan from “AN EXTREMELY
DISSATISFIED CUSTOMER!” who stated that she was “TOTALLY shocked and OUTRAGED with Cablevision
taking GSN away and adding it to an IO Sports package”) (capitalization in original). [*Schueler is identified in the
record as the head of public relations for Cablevision. See Bickham Testimony at 124.]
219

220

GSN Exh. 115 (2/2/11 email to Schueler, Bickham, and Dolan from a Cablevision expanded basic tier subscriber
who said that she was “furious that the Game Show Network [was] taken off and put with the sports package!”).
GSN Exh. 126 (2/4/11 email to Dolan from Cablevision subscriber who questioned “[w]hy do I now have to pay
for the Game Show Network” and “[i]sn’t your company profitable enough without gouging customers?”). See also
GSN 117 (Cablevision accused of taking away GSN, “a popular channel, that we already paid for,” solely for the
purpose of requiring GSN’s viewers to “pay extra . . . just to get GSN back”). Compare Bickham Testimony at 70
(Bickham testified that he “fundamentally” made the decision to move GSN to the premium sports tier because “[i]f
someone had to have the Game Show Network, they could subscribe to that tier of service and see the network.”).
221

GSN Exh. 117; see ibid. (“It’s all about money for Cablevision. You must see how many people watch GSN and
figure make a new stupid package, throw the GSN into it (even though it has nothing to do with SPORTS) and make
another $6.95 a month.”); GSN Exh. 119 (2/3/11 email to Dolan from Cablevision subscriber who complained that it
was “horrible” that Cablevision was “looking to collect more money from your customers for channels which were
originally included in your basic family package.”).
222

GSN Exh. 113; see also GSN Exh. 115 (“I am a 76-year-old widow and I really enjoyed the game show network.
My other elderly bingo friends also enjoyed it and we often discussed the shows when we get together. There’s not
too much for the older person to do for entertainment and now [Cablevision] took away the one thing we enjoyed.”).
Compare Montemagno Testimony at 27 (Montemagno testified that it was his understanding that “retirees . . . make
up a significant portion of GSN viewers”); GSN Exh. 118 (2/2/11 email in which Montemagno stated that GSN has
an “older audience”).
223

224

GSN Exh. 113.

Demographics, or demos, refers to the “component parts of a network’s audience, based on various
characteristics such as age, gender, income, or education level.” Joint Glossary at 2.
225

GSN Exh. 126; see GSN Exh. 117 (“[W]hat could possibl[y] be the connection between a game show network
and this sports package? Except NOTHING!”) (capitalization in original); ibid. (“I LOVE the GSN and am an avid
watcher. I HATE sports! Hate them! I will not pay $6.95 just to get GSN back because I already paid for it in my
current package. I have NO use for any sports channels and surely none of those.”) (capitalization in original); GSN
(continued….)
226

28

 Federal Communications Commission

FCC 16D-1

it was the cold economics of the retier favoring Cablevision, with no consideration of the gender or
preference of subscribers or the genre of programming, that drove Cablevision’s retiering decision.
47.
Bickham was so affected by the subscriber outrage that he authorized a six-month
subscription to the premium sports tier free of charge to “any sub[scriber] that calls and complains or
threatens to disconnect from this point [February 4, 2011] forward.”228 But Bickham was “not
comfortable” extending the subsidy to the “19,000 customers that have already called” to complain of
GSN’s retiering.229 He then said that he would give further consideration to doing so.230 Later, Bickham
said that “he was open to the idea if it was not found to be too difficult to do.”231 Cablevision personnel
“found i[t] was not to[o] difficult” to extend the subsidy to the “20k or so” Cablevision subscribers who
had “already called in to complain.”232 So the promotion was authorized for all complaining GSN
subscribers.233 Reliable and substantial evidence shows that Cablevision provided the retier promotion to
approximately 24,000 subscribers overall.234
(Continued from previous page)
113 (the “elderly people” who watch GSN “have no interests in Sports”); GSN Exh. 115 (“I certainly have no
interest in sports . . . nor do my female friends.”); ibid. (“I don’t understand the reason [Cablevision] would put
game show network with sports package” because “[t]hey have nothing to do with each other”); GSN Exh. 119
(“Removing GSN from you[r] family package” is an example of how Cablevision “consistently robs” its
subscribers, “[a]nd to include it in your sports package . . . . . [t]he moron who thought that [GSN] belongs in the
sports package should be fired!”) (ellipsis in original).
GSN Exh. 117; see also Tr. at 1612:19 (Montemagno testified that “GSN is not sports.”); id. at 1658:19-25
(Montemagno further testified that GSN was not moved to the Sports Pak tier because it was a sports network but
because the premium sports tier “was the only tier that we had with low penetration that would enable us to save the
majority of the [$]{{
}} we set out to save.”); id. at 1659:3-5 (in contrast, Montemagno testified that
Cablevision’s entertainment tier with the lowest penetration—i.e., the Gold tier—was “at least {{
}} percent
penetrated, [and] so we wouldn’t have saved most of the fees if we put [GSN] in that tier.”).
227

228

GSN Exh. 124. See also CV Exh. 334—Direct Testimony of Jonathan Orszag (Orszag Expert Testimony) at 163
n.278 (Cablevision’s expert witness testified that “[f]ree upgrades and other promotions are part of the arsenal of
tools that MVPDs employ in persuading subscribers not to switch to other MVPDs.”).
229

GSN Exh. 124.

230

Ibid.

231

GSN Exh. 125.

232

Ibid.

233

Ibid.

234

CV Exh. 316 (showing that the premium sports tier gained {{
}} subscribers in February 2011); Orszag
Expert Testimony at 125 (analysis of STB data showed that “GSN’s retiering added about {{
}} S[ports] &
E[ntertainment] tier subscribers”); Tr. at 2570:12-14 (Orszag testified that {{
}} Cablevision subscribers also
subscribed to the premium sports tier “directly because GSN was now available on the sports tier”). The Presiding
Judge notes that the cited record evidence outweighs conflicting evidence in the record—which also was not
contested—that Cablevision provided the Sports Pak promotion to the approximately 7,700 subscribers who
complained of GSN’s retiering after the promotion was authorized by Bickham on February 4, 2011. See Tr. at
1626:14-20 (Montemagno testified that the premium sports tier promotion was only “given to a certain subset of
customers,” which he also testified numbered 7,700 GSN viewers); Montemagno Testimony at 27-28 (Montemagno
testified that “we offered customers who called to lodge a complaint about the re-tiering between February and
November 2011 a complimentary service credit for the Sports & Entertainment Pak. Of the nearly three million
Cablevision subscribers that had GSN on expanded basic prior to the re-tiering, a small number—approximately
7,700 over the course of nearly a year—took advantage of the offer.”).** See also GSN Exh 182 (undated
document that listed “7,695” as the number of “[o]riginal adds in 2011” to the premium sports tier); Singer Expert
Testimony at 53 n.153 (Singer testified that “[t]o an economist, it is relevant that some 7,700 complaining customers
were selected by Cablevision to receive a subsidy while roughly 19,300 were not.”); Orszag Expert Testimony at
169 (Orszag testified that “[a]ccording to Cablevision data, about 7,700 . . . subscribers received the S&E Tier free
(continued….)

29

 Federal Communications Commission

FCC 16D-1

48.
In settling this battle of the experts, it is found by the preponderance of record evidence
that Cablevision initially lost approximately 2,300 subscribers as a result of GSN’s retiering.235 Once the
promotion expired, Cablevision lost approximately 3,200 additional subscribers, for a total of 5,500
subscribers; and approximately {{
}} of subscribers who stayed with Cablevision post-GSN’s
retiering, discontinued their subscription to the premium sports tier.236 The preponderance of the evidence
also proves that Cablevision netted approximately {{
}} new subscribers to the premium sports tier
237
due to GSN’s retiering.
(iii)

Renaming the Tier

49.
On February 4, 2011, three days after retiering GSN, Bickham changed the name of the
premium sports tier from “Sports Pak” to “Sports and Entertainment Pak” because, with the addition of
GSN to the tier, Bickham believed that the addition of “entertainment” “more adequately reflected the
content of the tier.”238 Cablevision’s marketing personnel balked. They thought that justifying the
renamed tier would be a “challenge” since GSN was “the only channel that does not surround sports.”239
Cablevision’s public relations staff urged that Cablevision “need[ed] to get some more ‘entertainment’
(Continued from previous page)
of charge.”). [**The Presiding Judge rejects, as inconsistent with contemporaneous and credible documentary
evidence (i.e., GSN Exh. 124—Bickham authorized “for the next 2 weeks” the extension of the premium sports tier
promotion to “any sub[scriber] that calls and complains or threatens to disconnect”) and Montemagno’s own hearing
testimony (i.e., Tr. at 1531:25-1532:4, 1626:17—Montemagno testified that the “the customer calls [had] stopped”
by the time GSN sought reversal of the retiering decision, and that the complaint calls regarding GSN’s retiering
“only lasted about a week”), the portion of Montemagno’s written testimony that asserts that Cablevision offered the
premium sports tier promotion “over the course of nearly year” and to “customers who called . . . between February
and November 2011.”]
Singer Expert Testimony at 49 (Singer testified that “[w]ith respect to churn, the data suggest that roughly 1,000
to 2,300 customers left Cablevision due to GSN’s tiering despite Cablevision’s subsidy.”). But see Orszag Expert
Testimony at 168 (Orszag testified that his “own analysis finds no evidence of any subscriber losses for Cablevision
from GSN’s retiering.”). By its own count, Cablevision lost approximately 3,200 subscribers as a result of GSN’s
retiering once the premium sports tier promotion ended (see infra note 236); the Presiding Judge does not find
credible and rejects Orszag’s unconvincing assertion that Cablevision suffered no immediate or post-promotion
“subscriber losses” as a result of GSN’s retiering.
235

236

Tr. at 1626:14-1627:4 (with respect to 7,700 of Cablevision subscribers who had received the premium sports tier
promotion, Montemagno testified that Cablevision lost approximately 3,200 of them but 4,500 of them remained
Cablevision subscribers; and, of those who remained with Cablevision, {{
}} of them became paying
subscribers to the Sports Pak tier).
237

CV Exh. 316, Tr. at 1626:14-1627:4 (calculated by taking the approximately 24,000 subscribers who ultimately
received the Sports Pak promotion minus the approximately 3,200 who left Cablevision altogether and the
approximately {{
}} who stayed with Cablevision but discontinued their subscription to the premium sports tier
once the promotion ended).
238
Bickham Testimony at 125. See also GSN Exh. 125 (2/4/11 Cablevision email that stated “[a]s a separate note
on GSN, John B[ickham] wants the name of this tier to be changed from the Sports Tier to the Sports &
Entertainment Tier. Thus it will be so.”); GSN Exh. 127 (2/5/11 email in which Montemagno stated that he was told
that “Bickham insisted on” renaming the tier). Bickham also testified that changing the name of the tier involved “a
lot of steps, but it’s not a lot of work.” Bickham Testimony at 113. Bickham further testified that he did not find it
necessary to change the name of the premium sports tier until GSN’s inclusion on the tier, despite his conflicting
testimony that he “thought the tier was broader than sports before Game Show Network was added to it.” Id. at 118.
See also id. at 115, 121 (Bickham testified that “[t]hat the programming on the tier was broader than sports”
because, in addition to GSN, the tier included “MATV and what I would call outdoor life sort of lifestyle channels”
like Outdoor Channel, which was described as featuring “quality programming designed for sportsmen of all skill
levels”).
239

GSN Exh. 122. See also Tr. at 1612:12 (Montemagno testified that “GSN is not sports”).

30

 Federal Communications Commission

FCC 16D-1

into that thing, pronto, to validate the shift” of GSN’s programming to a sports tier.240 At the time of the
hearing in 2015, GSN still was the only general entertainment network that Cablevision distributed on its
premium sports tier.241 By March 2012, Cablevision had expanded the Gold tier—its premium
entertainment tier—by adding all networks, including GSN, that Cablevision also distributed separately
as the premium sports tier.242
2.

GSN Was Similarly Situated to WE tv and Wedding Central

50.
The preponderance of record evidence further proves that GSN, WE tv, and the
discontinued Wedding Central (when it existed) were and are similarly situated networks.243 Before the
retiering that is the subject of the GSN’s program carriage complaint, Cablevision distributed all three
networks on broadly penetrated tiers. In fact, Cablevision distributed GSN and WE tv on the same
expanded basic tier.244 Also, at the time of retiering, each of these networks offered similar advertisersupported entertainment programming that was targeted to the same adult female audience, and each of
the three had an audience that was predominantly adult female. It is therefore found that for all practical
purposes, GSN and WE tv are competing for the same advertisers.
a.

Women’s Networks

51.
The preponderance of record evidence proves that GSN, WE tv, and Wedding Central are
properly described as “women’s networks.” GSN expert Brooks persuasively testified that a women’s
network is “a network that appeals primarily to women.”245 Brooks also opined that while the overall
television viewing audience skews female—meaning that 51-52 percent of television viewers as a whole
are female and 48-49 percent are male246—networks that skew more heavily female are commonly
described as “women’s networks”247 and those that skew more heavily male as “men’s networks.”248
240

GSN Exh. 127.

241

Tr. at 1614:16-19 (Montemagno testified that as of July 15, 2015, GSN remained the only entertainment network
that Cablevision distributed on its premium sports tier).
CV Exh. 316 at 1 (on March 27, 2012, Cablevision launched a new “Optimum Gold” tier which “includes [the]
Sports Pak”); see also Montemagno Testimony at 28 n.5. In August 2012, Cablevision launched the sports network
NFL Redzone on the premium sports tier. CV Exh. 316 at 1.
242

The Presiding Judge finds that the “look and feel” comparative analysis conducted by Cablevision’s expert
Michael Egan of GSN’s and WE tv’s website is not sufficiently reliable since at hearing Egan stated that he was
“not sure” if he had conducted an apples-to-apples rather than an apples-to-oranges analysis of the two websites.
See Tr. at 2334:2-17.
243

244

Cablevision distributed GSN and WE tv on an expanded basic tier that was accessible to {{ }} percent of its
subscribers, and distributed Wedding Central on a digital basic tier that was accessible to {{ }} percent of its
subscribers. See supra paras. 15-17, and note 80.
245

Tr. at 1161:20-22. See also id. Tr. at 1326:10-25 (Brooks testified that a network that skews 52 percent female to
48 percent male is not a women’s network but networks like GSN that skew in the range of 70 percent female to 30
percent male, are women’s networks).
Id. at 1326:10-11 (Brooks testified that “[o]verall television viewing is roughly 52 percent female to 48 percent
[male], sometimes 51 to 49, that degree of difference.”).
246

247
See id. at 1161:20-22 (Brooks testified that “‘a woman’s network’ . . . mean[s] a network that appeals primarily
to women”). Throughout the record, Bravo, E!, Lifetime, OWN, Oxygen, SoapNet, Style, and TLC, among other
networks, are described as women’s networks. See, e.g., id. at 1350:18-25; Brooks Expert Testimony at 8-9.
248
ESPN, with an audience that skews heavily male is universally described in the record as a men’s network. See,
e.g., Tr. at 1229:9-10 (Brooks testified that ESPN’s audience is 75 percent male and 25 percent female); Tr. at
269:12-13 (Goldhill testified that “ESPN obviously is in the male business.”). Cable networks Spike TV and Versus
are also identified as men’s networks. See id. at 1313:12-18; see also CV Exh. 816 at 1284 (noting that in 2003 the
new owners of the cable network then-known as TNN announced that they were “renaming the network Spike TV,
(continued….)

31

 Federal Communications Commission

FCC 16D-1

Brooks testified unequivocally that a network with an audience that is 70 percent female is “[d]efinitely”
a women’s network.249 Brooks testified that at the time of GSN’s retiering “approximately 70 percent of
[GSN’s] audience was a female audience,”250 a fact that was not contested. Brooks similarly testified that
as between female-targeted, male-targeted, and general audience-targeted networks, “GSN falls clearly
within the definition of what constitutes a female-targeted network.”251
52.
At hearing, Cablevision recognized that GSN is a female-skewing network but
challenged the fact that GSN is also properly described as a women’s network.252 Cablevision pointed to
GSN’s and WE tv’s respective listings in the Cable Directory to support its contention that GSN is not a
women’s network.253 In the Cable Directory, WE tv (like Oxygen254) is specifically described as a
women’s network.255 In fact, as Cablevision emphasized, WE tv is described as a women’s network twice
in its Cable Directory listing.256 In contrast, GSN is not described specifically as a women’s network in
the Cable Directory,257 a meaningless omission as explained in paragraph 53 below.
53.
The Presiding Judge finds that a mere omission of the words “women’s network” from
GSN’s listing in the Cable Directory is of no significance when the preponderance of record evidence
proves that GSN—like WE tv and Wedding Central—is in fact a women’s network. Brooks, co-author of
the Cable Directory, confirmed on cross-examination that the Cable Directory is an authoritative industry
reference tool for “what kinds of programming and what specific programs” run on cable networks.258
But it is “not an encyclopedia for what skews are or what their audiences necessarily are.”259 Brooks also
testified that he was “not uniform” in his description of women’s networks, and in fact, he did not
describe such networks that way “in many . . . write ups.”260 For example, contrary to Cablevision’s

(Continued from previous page)
and turning it into a men’s channel with testosterone-driven movies such as Bladerunner and The Terminator and
male-oriented series offering raunchy humor, sexual innuendo, muscle cars and action”).
249

Tr. at 1326:22-25.

Id. at 1140:19-20; see also GSN 312 (at the time of retiering, GSN’s audience was 69% female, and WE tv’s
audience was 78% female). Brooks also testified that, at the time of GSN’s retiering, he assumed that Wedding
Central’s audience also skewed heavily female because all of Wedding Central’s programming had run previously
on WE tv, and so he had “looked at what kind of audience those same programs got when they were on WE tv, and
they all got very strong female audiences when they had previously run there.” Tr. at 1141:9-14. Post-retiering,
GSN’s and WE tv’s audience continued to skew heavily female; in fact, post-retiering, GSN’s audience skewed
slightly more heavily female while WE tv’s audience skewed less heavily female. See GSN 312 (by 2014, GSN’s
audience was 71% female and WE tv’s audience was 70% female).
250

251

Brooks Expert Testimony at 15.

At hearing, GSN fact witness Hopkins agreed with Cablevision that all women’s networks skew female but not
all female-skewing networks are women’s networks. She also testified that GSN is “both” a network that skews
female and a women’s network. Tr. at 700:24-701:7.
252

253

There is no listing for Wedding Central in the Cable Directory.

CV Exh. 816 at 1041-42. Cablevision also noted that, in the Cable Directory, Oxygen’s programming was
described as “female-appropriate” (id. at 1041). Tr. at 1179:5-22.
254

255

CV Exh. 816 at 1477.

256

Tr. at 1182:2-24.

257

See CV Exh. 816 at 515-16; Tr. at 1184:14-1188:2.

258

Tr. at 1185:13-16.

259

Ibid.

260

Tr. at 1185:13-1186:2.

32

 Federal Communications Commission

FCC 16D-1

assertion at hearing,261 the Presiding Judge notes that in the Cable Directory, while Lifetime is described
as the “longtime . . . leader” among women’s networks in Oxygen’s listing, Lifetime is not described as a
women’s network in its own listing.262 Instead, Lifetime is described as a network that “offers
programming of special interest to women . . . from daytime service and game shows to sitcoms, dramas,
and movies.”263 And similar to GSN’s listing, the Cable Directory listings for Bravo, E!, and SoapNet—
three networks whose status as women’s networks is undisputed by the record—are not specifically
described as women’s networks, nor are they described as networks offering programming of special
interest to women.264
54.
Cablevision argued that GSN is not properly described as a women’s network because, at
the time of retiering, GSN aired poker programming during prime-time two nights per week, which was
programming that appealed to a male audience, specifically men in the 25-54 age demographic.265
Goldhill distinguished this poker programming as “essentially an infomercial,”266 which is not traditional
programming. Goldhill also pointed out that “off-shore gambling sites paid [GSN] . . . to produce [poker
programming]. . . on which they, in some cases, were the exclusive advertisers.”267 Goldhill particularly
noted that poker programming “was profitable”268 and was “the only original programming that [GSN
had] ever made money on.”269 But because poker programming “was inconsistent with the brand we were
trying to build,” Goldhill testified that GSN relegated it to the 9pm-to-midnight timeslot on Saturday and
Sunday, which were “GSN’s weakest nights.”270 Goldhill explained that GSN aired “all of the new
Tr. at 1181:5-6 (Cablevision incorrectly asserted that Lifetime is specifically described “as a women’s network”
in the Cable Directory).
261

262

CV Exh. 816 at 1041.

263

CV Exh. 816 at 794 (emphases added); see also Tr. at 1180:13-14.

See CV Exh. 816 at 179, 402, 1267; see also Tr. at 1353:19-23 (regarding the omission of “women’s network”
from the Cable Directory listings for GSN, Bravo, E!, and SoapNet, Brooks testified that “[i]t was not our rule to
include that information routinely in the write-ups”). The Cable Directory is similarly inconsistent in describing
men’s networks. For instance, although Spike TV is described as a men’s network (see supra note 248), ESPN is
not described as such; nor is any mention made that its programming is of special interest to men (or to any
particular audience). See CV Exh. 816 at 405. And as pointed out during Brooks’s redirect testimony, the Cable
Directory was published in 2007. Tr. at 1354:13-14. The Presiding Judge also notes that this was the same year that
Goldhill joined GSN, and it was under his stewardship that GSN began experiencing “very substantial growth” in its
female audience. Id. at 198:4-8. Cf. Martin Testimony at 120-28 (Martin testified that, during a presentation she
made in November 2008, she stated that WE tv was then “the fastest-growing network” in female viewers “followed
by Bravo . . . Oxygen . . . Lifetime Movie Network . . . Game Show Network.”); Hopkins Testimony at 1 (Hopkins
testified that “in early 2009” she was hired by Goldhill “to help [GSN] market itself to its existing female viewership
and to help attract new female viewers to our programming.”).
264

265

See generally Tr. at 262:3-277:5.

266

Id. at 262:13-14.

267

Id. at 263:5-10.

268

Id. at 274:1-4.

Id. at 262:21-22; see also id. at 663:18-22 (Hopkins similarly testified that the “economic reality” was that GSN
aired poker “at a time when poker was hot” and “if poker’s not hot, it’s not airing anymore”).
269

Id. at 265:15-22. Zaccario similarly testified the GSN “always” aired poker programming on Saturday and
Sunday nights, which were the “least important nights of the week for us.” Id. at 786:11-18. Zaccario explained that
“Saturday is typically a throw away” and on “Sunday night there’s so much competition everywhere else, we sort of
try to hit where they ain’t.” Id. at 786:17-20. For example, during the time that GSN was airing poker, Zaccario
testified that because “Desperate Housewives was killing it on ABC[;] [i]t wouldn’t make sense to put our original
programming targeting women up against Desperate Housewives[,] [s]o, that’s why we felt it was a safe place to put
poker.” Id. at 786:20-24; see also id. at 787:2-3 (Zaccario further testified that the competition for women viewers
was especially fierce on Sunday nights “[w]hich is why we put poker there.”).
270

33

 Federal Communications Commission

FCC 16D-1

original programming . . . in prime time, Monday to Friday,” and had reasoned that the “male audiences
that love poker . . . would find it on whatever night we put it on, so we put it on our least competitive two
nights.”271 GSN’s head of programming similarly testified that poker programming, which was entirely
paid for by advertisers, was isolated on GSN’s programming schedule “because the viewership for poker
had nothing to do with the rest of the brand.”272 In addition, Brooks testified that it was not remarkable
that a women’s network like GSN would air a discrete block of poker programming because he had “seen
other cases where networks have non-typical programming for . . . financial reasons.”273 Goldhill further
testified that, no later than September 2011, GSN was only airing poker programming on its “absolute
weakest night, Saturday night,” and soon after, cancelled poker programming altogether.274 In conclusion,
Goldhill testified that at the time of retiering—which is when GSN “had the maximum amount of poker
programming on the air”—GSN was “a 68 percent female network.”275 And “[s]o even when we had the
most poker programming we had, it’s [sic] impact on our overall skew was very small.”276 The Presiding
Judge notes that GSN’s airing of a limited amount of paid poker programming on weekend nights
provides very little weight in proving GSN is anything but a women’s network. Surely the evidence of
the poker “infomercial” programming is vastly outweighed by a preponderance of record evidence which
establishes that GSN is deservedly described as a women’s network.
55.
The record reflects that GSN and WE tv used comparable language to describe their
respective network as a women’s network. For example, WE tv President Martin testified that WE tv is a
women’s network because “the majority of our viewership is female, our appeal, marketing materials is
female, [and] the majority of our advertisers buy female demos.”277 GSN executive Hopkins similarly
testified that GSN is a “women’s network” because its “mission every day is to program and market to
women.”278 GSN President Goldhill confirmed that “GSN’s target audience is women primarily 25 to 54,
secondarily 18-49, and tertiarily, all ages.”279 In the face of this testimony, Cablevision argues that
GSN—in contrast to WE tv (and presumably Wedding Central)—neither specifically targeted women nor
marketed its network as such.280
56.
The linchpin of Cablevision’s argument is the testimony of “GSN’s former distribution
chief, Mr. Gillespie”281 concerning a presentation that GSN made in 2009—two years prior to the
retiering and not to Cablevision but to Comcast282—in which GSN told Comcast that “GSN is the only
TV network devoted exclusively to games,”283 and advised Comcast that “[g]ame [s]hows deliver the
271

Id. at 265:18-266:10.

272

Goode Testimony at 33.

273

Tr. at 1349:14-15; cf. Tr. at 1202:7-8 (Brooks testified that although Lifetime did not air poker programming,
“[i]t did [air] non-women shows on occasion”). See also Brooks Expert Testimony at 30 n.60 (Brooks testified that
Lifetime is “the oldest of the women’s networks”).
274

Tr. at 277:8-25.

275

Id. at 272:8-11.

276

Ibid.

277

Martin Testimony at 37.

Tr. at 701:3-7; see also Goode Testimony at 76 (Goode testified that “everything on GSN . . . had to have what I
thought was female appeal”).
278

279

Tr. at 186:24-25.

280

See Cablevision Br. at 12-13.

281

Id. at 12.

282

CV Exh. 50.

283

Id. at 2 (underlining in original); Gillespie Testimony at 72.

34

 Federal Communications Commission

FCC 16D-1

largest audience for broadcast networks, and offer family-friendly programming with wide audience
appeal.”284 In the presentation, GSN emphasized its “unique position” in the “typical cable line-up by
genre,” as GSN positioned itself exclusively under “games” and in between “general entertainment”
which among other networks, included Bravo and TLC,285 and “women’s ent[ertainment],” under which
GSN included only WE tv, Lifetime, Oxygen, and SoapNet.286
57.
Cablevision’s argument rests on Gillespie’s testimony that GSN generally “marketed” the
network to cable distributors “as a broad-based, family oriented service that appealed to an adult
audience.”287 Gillespie further testified that, in his view, broad-based service “means it is a television
network that appeals to all different demographics . . . . [m]en and women and of all ages.”288 Based on
this testimony, Cablevision argues that Gillespie “conceded that GSN never specifically targeted women,
much less those in the key 25 to 54 demographic sought by WE tv” and “forthrightly acknowledged that
GSN had no such target audience.”289 The Presiding Judge does not find that Gillespie made any such
admission. However, the Presiding Judge does agree that when marketing its service to cable distributors,
GSN “consistently emphasized its wide appeal to a broad-based, family audience.” 290 Conversely, GSN
did not market itself to cable distributors as a women’s network. GSN’s sales pitch, however, is not
probative or convincing in determining whether at the time of retiering, GSN was a women’s network, or
whether GSN, WE tv, and Wedding Central were or were not similarly situated networks.291 The
inducement of broad-based-family-adult programming that GSN made to cable distributors makes sense
because the strongest factor that a distributor cares about is the number of “eyeballs” watching the
network regardless of gender.
58.

Finally, the portion of Gillespie’s “candid” testimony on which Cablevision relies in

CV Exh. 50 at 4. In addition, the presentation emphasized that “GSN is Home to the Best Game Shows
Delivering a loyal Broad-based Audience.” Ibid.
284

Bravo and TLC are among the networks that are indisputably described as women’s networks in the record. See
supra para. 53.
285

286

CV Exh. 50 at 3 (capitalization omitted); see also Gillespie Testimony at 73-74.

287

Gillespie Testimony at 72-73.

288

Id. at 73.

Cablevision Br. at 12 (citing Cablevision’s Findings and Conclusions at 60-62, 132-33, and Game Show Network,
LLC v. Cablevision Systems Corp., MB Docket No. 12-122, Cablevision Systems Corporation’s Reply Findings of
Fact and Conclusions of Law (filed Sept. 30, 2015) at 18-19).
289

Id. at 12; see also Gillespie Testimony at 74-75 (Gillespie testified that GSN consistently “made presentations
that the programming on GSN appealed to women” but GSN did not specifically market the network to cable
distributors as a women’s entertainment network). In opposing the Complaint, the Enforcement Bureau parrots
Cablevision’s argument. See Game Show Network, LLC v. Cablevision Systems Corp., MB Docket No. 12-122,
Enforcement Bureau’s Comments (filed Oct. 15, 2015) at 10.
290

The Commission’s rules provide that proof of network similarity in a program carriage discrimination dispute
must be “based on a combination of factors, such as genre, ratings, license fee, target audience, target advertisers,
target programming, and other factors.” 47 CFR § 76.1302(d)(3)(iii)(B)(2)(i). The Presiding Judge notes that
“marketing” is not one of the factors enumerated by the Commission. In addition, because the nature of marketing
is to distinguish one entity from another, examination of that factor in this dispute was not useful in determining
whether GSN and WE tv are similarly situated networks. See Tr. at 414:11-16, 418:2-10 (Goldhill testified that
“GSN, like all networks, attempts to differentiate itself,” and is “always trying to differentiate [it]self in any
discussion with a customer, whether an affiliate, an advertiser or a viewer” because “[n]obody says, hey, we’re one
of eight networks that shows the same thing.”); id. at 418:21-25 (Goldhill persuasively explained that GSN’s “goal
in any sort of presentation with a customer is to stand out, is to look like a different, greater, better value . . . [w]e
are never in the box with other networks.”). Compare Martin Testimony at 63-64 (Martin testified that Wedding
Central differentiated itself from other women’s networks “for [cable] distributors, for viewers and for advertisers.”
291

35

 Federal Communications Commission

FCC 16D-1

making its argument on genre, or any inconsistent statement in his testimony regarding GSN’s target
programming and target audience, is vastly outweighed by the credible testimony of GSN fact witnesses
Goldhill, Hopkins, and Goode, and expert witness Brooks. These witnesses testified that at the time of
retiering, GSN was properly described as a women’s network. Also, regardless of how GSN marketed its
service to Comcast in 2009 or to cable distributors in general, Gillespie testified that he personally
informed Cablevision (via Montemagno) that GSN’s target audience “was comprised . . . mostly of
females” and that the network “was delivering females more than male.”292 Moreover, Gillespie admitted
that he was “not an expert on programming” and thus had no basis on which to determine that any
particular GSN show “appealed to women or men.”293 To clarify his position, Gillespie identified GSN’s
“Senior Vice President of programming . . . Kelly Goode” as the person knowledgeable about the target
audience for GSN’s programming.294 And Goode unequivocally testified that “family-friendly” is a
category or subcategory of women’s network programming. It is not programming targeted to men and
women to watch together295 as Cablevision unconvincingly attempts to argue.296
b.

Target Programming

59.
Cablevision expert Michael Egan testified that particular television shows “are not genre”
but they “fall within a genre.”297 Egan further testified that a cable network’s “defining target
programming” is “where they most purely communicate their target programming and their target
audience.”298 GSN expert Brooks similarly testified that “the target audience of a network is best defined
by the demographic orientation of the programming it purchases and airs, and the audience that is
attracted to that programming.”299 He also testified that “GSN, WE tv, and Wedding Central are each
strongly women-oriented networks.”300 Brooks further testified that “[g]ame shows, wedding shows,
dating shows, and family dynamic shows all appeal primarily to women.”301

292

Gillespie Testimony at 25. Gillespie also testified that he consistently informed cable distributors that GSN
“serve[d] women’s audience.” Id. at 27.
293

Id. at 28.

294

Id. at 29-30.

Goode Testimony at 83 (Goode testified that family-friendly programming is women’s programming “that a
woman could watch without making a child in the room completely embarrassed.”). See also Tr. at 313:6-10
(Goldhill testified that GSN’s “programming is family friendly, which means Mom can watch with kids” and that
“[f]amily friendly does not mean Dad; it means Mom and kids”).
295

296

See Cablevision Br. at 12-13. Cablevision also contends that even if GSN targets and appeals to women, GSN
still cannot be properly described as a women’s network that is similar to WE tv (and presumably Wedding Central).
As Cablevision expert Orszag testified, just because History Channel and ESPN “both have a high share of male
viewership” does not “imply that the viewers consider watching the History Channel to be a close substitute to
watching ESPN.” Orszag Expert Testimony at 75; see also Tr. at 2532:5-2533:23 (Orszag made a similar
comparison between Showtime’s Homeland and Comedy Central’s Daily Show with Jon Stewart, and testified that
his analysis was not based on programming “genre” but concerned only “how people are actually watching TV”). In
contrast to History Channel and ESPN, two networks that are not in the same network genre, the preponderance of
record evidence, which for the most part is undisputed (see infra paras. 59-68), shows that at the time of retiering,
GSN, WE tv, and Wedding Central were each women’s networks offering similar target programming and targeting
the same adult female audience.
297

Tr. at 2291:19-20.

298

Tr. at 2290:3-7.

299

Brooks Expert Testimony at 51.

300

Ibid.

301

Ibid.

36

 Federal Communications Commission

(i)

FCC 16D-1

GSN Target Programming

60.
Egan testified that GSN’s defining target programming “is their game show
programming.”302 Game shows, like soap operas, are by their very nature the type of programming that
generally is targeted to an adult female audience.303 Brooks testified that “GSN’s performance with
women is consistent with the widespread understanding in the industry that game shows are generally
targeted at women.”304 Brooks also testified that game shows are generally synonymous with womenoriented programming in much the same way that sports programming is generally deemed to be targeting
men.305
61.
Brooks testified that GSN “occasionally [aired] shows that aren’t game shows at all” but
“everything [else] is sort of under the huge umbrella of game show.”306 Goode testified that The
Newlywed Game, one of GSN’s marquee shows, was not so much a game show as it was “a relationship
comedy . . . using [a game show] studio format.”307 Goode also testified that another marquee show—
Baggage—was not a game show at all.308 According to Goode, shows like Baggage instead fall “in their
own category” of “relationship shows,” which she testified is “shorthand for shows about love, dating,
marriage, that sort of thing.”309 Brooks similarly testified that the target programming “featured on GSN
302

Tr. at 2290:3-7.

303

Under vigorous cross-examination, Brooks unequivocally confirmed that game shows currently and historically
attract an adult female audience. Tr. at 1262:18-1270:3; see also id. at 1261:9-12 (Brooks testified that “[g]ame
shows tend to attract both younger and older viewers” while “other types of women’s programming doesn’t” and so
he was not surprised that “in addition to the younger [female demographic] categories [GSN] would get older ones
too.”); id. at 1269:9-16 (Brooks testified that his analysis addressed whether game shows “appeal to women or are
they gender balanced,” and he determined that game shows are “not gender balanced” but “skew toward women”).
Brooks Expert Testimony at 53. Brooks further testified that “[t]he notion that game shows cater primarily to
women is also noted in [industry] literature.” Id. at 54 and n.123 (citing Edd Applegate, Journalism in the United
States: Concepts and Issues (2011), Anne Cooper-Chenn, Games in the Global Village: A 50-Nation Study of
Entertainment Television (1994) (Games in the Global Village), and Morris B. Holbrook, Daytime Television Game
Shows and the Celebration of Merchandise: The Price is Right (1993)).
304

“Games Shows (mind sports) function for female viewers in much the same way that TV athletic contests
function for males.” Brooks Expert Testimony at 54 n.123 (quoting Games in the Global Village at 18).
305

Tr. at 1200:14-20; see Brooks Expert Testimony at 4-5 (Brooks testified that GSN’s “programming consists
primarily of competition-based shows of various types, along with other reality-based programs, that, . . ., appeal to
an audience that is predominantly female.”); Tr. at 1191:17-19 (Brooks testified that by looking at GSN’s
programming schedules during the time of retiering, he “determined that most of the programs were competition
based game shows . . . of one kind or another.”); see also Cablevision Br. at 10 (at the time of retiering, “GSN’s
programming schedule [was] dominated by game and competition shows, including poker”). However, as discussed
supra para. 54, the poker programming that Cablevision references did not dominate GSN’s programming schedule
but in fact was isolated because poker was inconsistent with GSN’s target programming. Cf. Tr. at 1842:3-1849:17
(Dorée testified that WE tv discontinued airing 20/20, 48 Hours, and 60 Minutes because news programming was
inconsistent with WE tv’s brand); Martin Testimony at 134 (Martin testified that WE tv’s brand is that “it’s a
women’s network”).
306

307

Goode Testimony at 50.

308

Goode Testimony at 100. Goode also testified that other GSN original shows—e.g., 1 vs. 100, Carnie, and Love
Triangle—were not game shows. Id. at 101. Concerning 1 vs. 100, Goode testified that GSN “was very specific in
terms of how we cast the show and the host . . . to make the comedy and entertainment elements, first and foremost,”
and so GSN brought in “Carrie Ann Inaba,” “this great female host that women loved from ‘Dancing with the
Stars,” and also “thought very carefully about the kinds of people in the 100,” and so purposefully included in the
cast “[i]nteresting women . . . a nun . . . schoolteachers . . . [and] cute guys that would appeal to women.” Id. at 100,
105.
309

Id. at 101.

37

 Federal Communications Commission

FCC 16D-1

fall[s] into four broad categories that are well recognized in the industry”: (1) relationship games (e.g.,
Baggage, The Newlywed Game, Love Triangle, and Family Feud); (2) celebrity games (e.g., Match Game
and $25,000 Pyramid); (3) big money games (e.g., Deal or No Deal and 1 vs. 100); and (4) quiz games
(Card Sharks, Lingo, and Chain Reaction).310
62.
The game show and game show-like programming that aired on GSN at the time of
retiering falls under the programming genre that is modernly referred to as reality competition, which is a
subcategory of reality programming.311 Egan testified, however, that GSN’s target programming is not
reality competition programming. In contrast to the type of show that falls under the reality/reality
competition programming genre, Egan testified that the “essential” characteristic of a game show “is that
it is a contest (a ‘game’) with winners and losers (and prizes),” and he testified that the “defining
attributes” of a game show are: (1) a scripted show, (2) a host or master of ceremonies, (3) simple and
highly formalized production techniques, (4) repeated use of a single set in one location, and (5) a vocal
studio audience.312 It is noted that Egan’s defining attributes of a game show would apply equally to
televised programming that is not commonly referred to as a game show like, for example, the Miss
America Pageant and the Scripps National Spelling Bee. In addition, all or most of these defining
attributes also apply equally to Survivor, American Idol, and The Voice – which are the shows that Egan
testified fall under the reality competition programming genre.313 Egan also testified that America’s
Funniest Home Videos, another show falling under the reality competition programming genre, “sounds
to me like a game show.”314 Egan’s overarching assertion that game show programming is distinct and
mutually exclusive of reality competition programming is rejected as not credible and contradicted by the
preponderance of substantial record evidence.315
(ii)

WE tv and Wedding Central Target Programming

63.
Egan testified that WE tv’s “defining target programming is their reality programming”
as represented by Bridezillas, a marquee show that aired on WE tv at the time of retiering.316 WE tv
President Martin similarly testified that WE tv’s target programming was “reality programming.”317
Wedding Central’s target programming “primarily featured wedding-themed programming” that had

310

Brooks Expert Testimony at 5.

311

See generally Brooks Expert Testimony at 56-58; cf. CV Exh. 332—Direct Testimony of Michael Egan (Egan
Expert Testimony) at 76-77 (Egan testified that “the birth of the Reality genre” occurred “in 1973” and “that 2000
was the kick-off of its offspring, which years later became known as the Reality-Competition sub-genre” (italics
omitted)).
312

Egan Expert Testimony at 22-24 (emphasis in original); see also Tr. at 2322:5-10 (Egan testified that a game
show is “most fundamentally . . . a competition going on with prizes awarded to winners”).
313

Egan Expert Testimony at 26 n.26.

314

Tr. at 2376:22. Cf. Martin Testimony at 61 (Martin testified that Dancing with the Stars, Amazing Race, and
Deal or No Deal—shows which aired on GSN at the time of retiering or shortly thereafter, see supra para. 61;
Brooks Expert Testimony at 5, 57; Egan Expert Testimony at 80, 127—“are all competition shows . . . [c]ompetition
reality”).
See Egan Expert Testimony at 21 (Egan testified that the “Reality and Game Show genres . . . are readily
recognizable as distinct and standalone genres”). But see Brooks Expert Testimony at 55-56 (Brooks testified that
“almost all genres overlap with other genres . . . some long-established genres such as ‘situation comedy’ and
‘sports’ are relatively well defined, however ‘reality’ is a recently invented label that has been applied to, and
overlaps with a multitude of programming types . . . includ[ing] . . . game shows”).
315

Tr. at 2289:17-2290:6; see also Egan Expert Testimony at 6 (Egan testified that WE tv’s target programming is
“family and romantic relationship-themed Reality shows”).
316

317

See Martin Testimony at 51.

38

 Federal Communications Commission

FCC 16D-1

previously aired on WE tv.318 The similarity of target programming between GSN and WE tv (and
Wedding Central) is further proven by the fact that couples featured on WE tv’s marquee show
Bridezillas were also featured as such on GSN’s marquee show The Newlywed Game.319 In addition, prior
to the retiering, WE tv even aired its own original game show, Most Popular,320 and before it was
shuttered in 2011, Wedding Central announced that it would begin airing The Newlywed Game.321
64.
Cablevision contends that GSN and WE tv (and presumably Wedding Central) are not
similar women’s networks because GSN “does not air the same type of women-oriented programming as
does WE tv.”322 But it is not necessary to the finding of similarity that the networks air the same type of
women-oriented programming. For instance, Martin testified that even though WE tv’s programming
never included a soap opera, SoapNet was nevertheless a similar women’s network because SoapNet
“delivered women, [in] large numbers.”323 Moreover, in Tennis Channel, the Presiding Judge found that a
cable network that aired sports programming dedicated to tennis was similar to a cable network that aired
sports programming dedicated to golf, as well as similar to a cable network that aired a variety of sports
programming324—findings that were later adopted by the Commission and left undisturbed by the D.C.
Circuit.325 In light of the proven fact that GSN, WE tv, and Wedding Central each aired women-oriented
Dorée Testimony at 15; see also Martin Testimony at 55 (Martin testified that 100 percent of Wedding Central’s
programming related to weddings).
318

Tr. at 592:7-13 (Hopkins testified that “Bridezillas was a show on WE tv that actually was about women getting
married and the crazy things that happen on the way to their biggest day . . . [a]nd so . . . we took the couples from
Bridezilla [sic] and actually put them on the Newlywed Game”).
319

See Dorée Testimony at 14 (Dorée testified that “during the 2009 to early 2011 time period, WE tv aired only one
game show, Most Popular”); GSN Exh. 25 (6/29/09 press release announcing the premiere of WE tv’s “new original
game show, Most Popular” and that “WE tv viewers will get a sneak peek of the series with a special bridal episode
. . . featuring recent and soon-to-be brides as well as several brides who appeared in the current sixth season of WE
tv’s hit signature series, Bridezillas”); see also Tr. at 1360:11-20 (Brooks testified that he watched Most Popular
when it aired on WE tv, and it was typical of the programming that aired on GSN).
320

321

GSN Exh. 76 at 8; see also Tr. at 1359:17-23 (Brooks testified that Wedding Central planned to air a version of
The Newlywed Game that had previously aired on GSN).
322

Cablevision Br. at 11. See also CV Exh. 233—Direct Testimony of Hal Poret (Cablevision expert Poret surveyed
viewers to determine the degree to which they considered paired networks—for example, HBO and Cinemax, MTV
and VH1, GSN and MTV, GSN and WE tv, Lifetime and Oxygen, and Oxygen and WE tv—offer comparable types
of programming; it is not remarkable or material that viewers generally did not view GSN, which primarily and
uniquely offers game show programming, as offering the same type of women-oriented programming as WE tv).
323

Martin Testimony at 50-51. Cf. Tr. at 1253:5-7 (Brooks testified advertisers are concerned only with how many
viewers of the sought-after demographics are delivered by the network and not with who else is watching the
programming “because the rest is all bonus”).
324

Tennis Channel, 26 FCC Rcd at 17170-85, paras. 24-52.

325

27 FCC Rcd 8527-33, paras. 51-67; see 717 F.3d at 985. Beyond the finding of similarity between non-affiliated
and affiliated networks, Tennis Channel is of limited applicability in this case. In Tennis Channel, a non-affiliated
network complained that a cable distributor discriminated on the basis of affiliation/non-affiliation by declining, on
the basis of cost, the non-affiliated network’s proposal for the same broad carriage that the cable distributor afforded
to its similarly situated affiliated networks. See 717 F.3d 984-85. In contrast to this case, there was no direct
evidence of discrimination in Tennis Channel. Nor did the non-affiliated network “invoke[] the concept that an
otherwise valid business consideration is here merely pretextual cover for some deeper discriminatory purpose.” Id.
at 987. The court thus determined that to prove discrimination based on circumstantial evidence, the non-affiliated
network was required to show that the additional fees that the cable distributor would have been incurred from the
proposed broad carriage would have been offset by benefits that would have accrued to the cable distributor. For
example, the court opined that the non-affiliated network could have shown that the cable distributor would have
gained subscribers by distributing it broadly (or conversely, that the cable distributor would have lost subscribers in
the absence of affording the non-affiliated network broad carriage); or could have shown that “the incremental
(continued….)

39

 Federal Communications Commission

FCC 16D-1

programming at the time of the retiering, it is not material that GSN’s women-oriented programming
primarily consisted of game shows contrary to WE tv’s and Wedding Central’s programming which did
not.
c.

Target Audience

65.
The preponderance of substantial and undisputed record evidence clearly and
convincingly proves that GSN targeted the same women viewers that were targeted by WE tv and
Wedding Central. GSN President Goldhill testified unequivocally that the target audience for GSN’s
target programming was primarily women 25-54, next women 18-49, and then women of any age.326 WE
tv and Wedding Central President Martin testified unequivocally that the target audience for WE tv’s
target programming also was women 25-54, and similarly women 18-49 were the target audience for
Wedding Central.327
66.
As head of GSN programming, Goode testified that her fundamental task was “to appeal
to an audience that was watching different genres out there: docusoaps; other forms of competition,
reality shows; lifestyle shows like food, home decor, fashion; love and relationship shows” but were “out
there watching these shows in other places” and “serve them by showing them relatable things about their
lives: getting married, dating, decorating their house, dealing with their kids, all of those sorts of
things.”328 The overwhelming weight of substantial record evidence leaves no doubt that GSN was
targeting the same women viewers who were being targeted by WE tv and Wedding Central. For
example, WE tv described its target audience—i.e., “The WE tv Woman”—in part, as “women who shop
at J.C. Penney’s, Macy’s, Target and Walmart, not Nordstrom’s unless they have a special discount
coupon . . . [who] are proud to watch shows like ‘American Idol’ and ‘Dancing with the Stars’.”329 It is
(Continued from previous page)
losses” from distributing the non-affiliated network broadly “would be the same as or less than the incremental
losses” the cable distributor was incurring from distributing its similarly situated affiliated networks broadly. Id. at
986. This case is also factually and legally distinguishable from Tennis Channel. For instance, as noted by the
court, the non-affiliated network in Tennis Channel was not being distributed on the same tier as the similarly
situated affiliated networks. Id. at 987 (“If accompanied by evidence that (assuming Golf and Versus had been on
the sports tier at the time of Tennis’s proposal in 2009) a shift of them to broader coverage would have yielded
incremental revenue equivalent to what Tennis demanded in 2009, the comparative data might have done the job.”).
In this case, however, Cablevision distributed GSN as broadly as it distributed seven of its affiliated networks, and
more broadly than it distributed three other affiliated networks. Supra para. 19 and note 80. But purportedly to save
programming costs, Cablevision shifted GSN—and only GSN—from its second most broadly penetrated tier to the
premium sports tier, Cablevision’s most narrowly penetrated tier, and a tier on which Cablevision only distributed
non-affiliated networks. See supra paras. 18-20. Moreover, Cablevision does not dispute that it would have saved
significantly more by retiering one of its affiliated networks, including WE tv. See infra para. 107; Tr. at 2653:112654:20 (Cablevision expert Orszag testified that Cablevision, which paid WE tv a license fee of {{
}} at that
time, would have saved more by retiering WE tv than Cablevision saved by retiering GSN, for which it paid a
license fee of {{
}}). Cablevision instead disputes that GSN and WE tv are similarly situated networks, and
therefore that it was permissible for Cablevision to discriminate on the basis of non-affiliation in moving GSN from
the expanded basic tier to the premium sports tier. Tr. at 112:23-25 (under section 616 Act, “if the networks are not
similarly situated, [Cablevision] can discriminate”); see also infra para. 114.
326
Supra para. 55. Cf. Tr. at 718:4-11 (Zaccario testified that because GSN’s “original programming [was] aimed at
women 25 to 54,” as head of advertising for GSN, his “mandate” was that GSN’s “[advertising] sales strategy align
with our programming strategy to reach women 25 to 54”).

Martin Testimony at 52, 54 (Martin testified that WE tv’s “target audience is a 35-year-old-woman” and that “the
sweet spot for the Wedding Central viewer was a [younger] woman who was between 25 and 35”); see also Tr. at
1764:15-17 (Dorée testified that the target audience for WE tv was women 25-54).
327

328

Goode Testimony at 32.

Martin Testimony at 147-48 (internal quotation marks omitted). Brooks testified that “[t]he statistics for game
shows and quiz shows in particular are that they appeal to middle class and down kinds of viewers”—these
(continued….)
329

40

 Federal Communications Commission

FCC 16D-1

noted that Dancing with the Stars never aired on WE tv (or Wedding Central) but did air on GSN,330 and
that American Idol is a game show.331
67.
Cablevision’s own expert analysis shows that “Cablevision subscribers who lost access to
GSN after the retiering” increased their viewership of WE tv and Wedding Central.332 GSN’s expert
analysis similarly shows that, like the majority of other women’s networks that Cablevision continued to
distribute on the expanded basic tier, “WE tv saw healthy gains” in viewership as a result of GSN’s
retiering to the premium sports tier.333 Cablevision’s affiliated network thus benefitted from GSN’s
retiering.
68.
In addition, Cablevision’s expert analysis of the “GSN Retiering Viewership Effect”
showed that of the women’s networks included in a pool of 87 broadcast and cable networks, only
SoapNet’s viewership increased more than WE tv’s.334 And Cablevision’s expert switching analysis
similarly showed that out of these 87 networks, “when somebody’s watching GSN” they switch to 21
other networks more often than they switch to WE tv,335 and that WE tv viewers switched to 32 other
channels more often than switching to GSN.336 The analysis shows that WE tv viewers primarily
switched to Bravo and AMC, followed by Lifetime.337 In addition to women’s networks Bravo and
(Continued from previous page)
“socioeconomic groups . . . are very interested in game shows because it’s a way of sharing the good fortune of
someone else in getting dates or winning money, something like that.” Tr. at 1268:8-18.
330

See supra note 314.

331

See supra para. 62.

See Cablevision Br. at 12 (consistent with its expert Orszag’s conclusion, Cablevision does not dispute that WE
tv and Wedding Central enjoyed increased viewership due to displaced GSN expanded basic viewers; Cablevision
contends instead that the resulting increase in viewership was not “meaningful[]”). See also Tr. at 2526:6-2528:1
(Orszag testified that “the Cablevision subscribers who previously subscribed or . . . no longer could view GSN
because they no longer had access to the sports tier” amounted to “a roughly 1.4 seconds increase in [WE tv]
viewership due to the retiering of GSN” but the “1.4 seconds is so small” that “there would be no incentive or no
economic benefit to WE from the retiering of GSN”).
332

Brooks Expert Testimony at 30. Brooks also testified that, with the exception of Bravo, none of the women’s
networks experienced on a national basis “the gains in female audience experienced by GSN’s competitors
following the retiering of GSN on Cablevision systems”). Id. at 32. Brooks further testified that “when GSN was
removed by Cablevision from general distribution on its New York area systems, the ratings of five out of six
female-oriented competitors went up in New York, and that increase in ratings cannot be explained by national
trends.” Id. at 33. At hearing, Brooks testified that during the same post-retiering ratings period, GSN’s ratings in
the lucrative New York DMA dropped 80-88 percent and WE tv’s ratings increased 21-43 percent; WE tv’s ratings
did not increase nationally. See Tr. at 1364:12-1366:5.
333

Orszag Expert Testimony at 34. Of 87 broadcast and cable networks examined, Orszag testified that “the viewers
who lost access to GSN watched 6.7 seconds per day more of CNN,” which was the network that experienced the
greatest increase in viewership as a result of GSN’s retiering. Tr. at 2527:3-7. Of the women’s networks included
in the pool, SoapNet experienced the greatest increase (which ranked 8 out of 87), followed by WE tv (which ranked
16 out of 87) and Wedding Central (which ranked 32 out of 87). Orszag Expert Testimony at 34. The other
women’s networks that experienced an increase in viewership as a result of GSN’s retiering were Lifetime (which
ranked 38 out of 87), Oxygen (which ranked 48 out of 87), and Style (which ranked 50 out of 87). Ibid. Women’s
networks Bravo and E! did not experience an increase in viewership as a result of GSN’s retiering. Ibid.
334

335

Tr. at 2534:22-2535:1. The switching analysis shows that GSN viewers primarily switched to ABC, followed by
CBS, and then to SoapNet. In addition to women’s network SoapNet, GSN viewers switched to Oxygen and
Lifetime more often than they switched to WE tv; but GSN viewers switched to Bravo, E! and Wedding Central less
often than they switched to WE tv. Orszag Expert Testimony at 47.
336

Tr. at 2534:6-10.

337

Orszag Expert Testimony at 40.

41

 Federal Communications Commission

FCC 16D-1

Lifetime, WE tv viewers switched to E! and SoapNet more often than they switched to GSN.338 But WE
tv viewers switched to Oxygen and Wedding Central less often than they switched to GSN.339 This fact in
particular—i.e., that WE tv viewers switched to GSN significantly more often than they switched to
Wedding Central—demonstrates the substantial commonality among the three networks’ target audience
because WE tv and Wedding Central had virtually identical programming that indisputably targeted the
same audience.340
d.

Actual Audience

69.
Cablevision recognizes that GSN and WE tv “both skew more heavily to women viewers
than men,” yet Cablevision rejects that the networks are similar because “GSN and WE tv attract very
different audiences.”341 But the preponderance of substantial and undisputed evidence proves that each
network targeted the same audience. Still, Cablevision argues that “the evidence shows . . . that GSN has
both an older and more male [actual] audience than WE tv.”342 The evidence of the composition of
GSN’s actual audience, however, is vastly outweighed by the proven fact that GSN targets the same
female adult audience targeted by WE tv and Wedding Central; and as discussed above (see paragraphs
59-64), the target programming of each network is women-oriented programming. Compare WealthTV343
where the Commission upheld the Presiding Judge’s finding that non-affiliated WealthTV and affiliated
MOJO were not similarly situated networks because they “neither aired the same type of programming,
nor targeted the same audience.”344 In denying review of the Commission’s order, the court rejected
WealthTV’s argument that the record evidence relied on in the administrative proceeding was “describing
WealthTV’s actual audience” but was “misconstrued by the FCC as describing its target audience.”345
70.
For it is a network’s target audience, not its actual audience, that drives advertising and
programming decisions.346 GSN’s expert Brooks opined that an advertiser “targets and focuses on the
demographics that the advertiser wants to reach, not the ones that the advertiser doesn’t want to reach”
because any viewer the advertiser reaches outside of the target demographic “is essentially free

338

Ibid.

339

Ibid.

See ibid.; Dorée Testimony at 15 (Dorée testified that Wedding Central’s target programming primarily consisted
of wedding-themed shows that had previously aired on WE tv). Cf. Brooks Expert Testimony at 19 (Brooks
testified that Cablevision’s expert analysis showed that “Wedding Central is next to the bottom of networks tuned to
by WE tv viewing households, far below GSN, even though Wedding Central’s programming was virtually identical
to that on WE tv.”).
340

341

Cablevision Br. at 4.

342

Id. at 14. But see Tr. at 1256:15-18 (Brooks testified that the fact that GSN has older viewers in its actual
audience is not “relevant and important”).
343

Herring Broad. Inc. d/b/a WealthTV v. Time Warner Cable, Inc., Recommended Decision of Chief
Administrative Law Judge Richard L. Sippel, 24 FCC Rcd 12967 (ALJ 2009), aff’d, 26 FCC Rcd 8971 (2011), aff’d
sub nom. Herring Broad. Inc., v. FCC, 515 Fed. Appx. 655 (9th Cir. 2013) (WealthTV).
24 FCC Rcd at 12976, para. 20; 26 FCC Rcd at 8980, para. 26 (the Commission concluded that “substantial
record evidence supports the ALJ’s conclusion that WealthTV and MOJO did not target similar audiences”).
344

345

515 Fed. Appx. at 657 (emphasis added).

See Tr. at 550:3-6 (Goldhill testified that among women’s networks “the competition is about advertising dollars,
which means producing the demos that advertisers buy, in our case women 25 to 54,” and so GSN’s “focus really is
on 25 to 54 delivery”). See also id. at 839:21-840:3 (Zaccario testified that there is a correlation between
programming and advertising because if the programming attracted “women 25 to 54 to the network . . . the better
we did on selling [advertising] against women 25 to 54” which in turn “would validate the effort that they [would]
have made to bring those women to the network”).
346

42

 Federal Communications Commission

FCC 16D-1

audience.”347 Brooks also testified that the fact that GSN has older viewers in its actual audience is not
“relevant and important in terms of its ad sales.”348 Brooks further testified that “programming people”
are similarly unconcerned “[i]f there’s lots of older viewers” because their focus is “to deliver a particular
target . . . [a]nd it doesn’t matter what else they deliver.”349 As head of GSN programming, Goode
similarly testified that the objective of target programming was not to “drive down” the composition of
GSN’s actual audience “but to appeal to women 18 to 49, 25 to 54, to go for that core viewer that we
needed to appeal to” and “serv[e] that audience with relatable programming.”350 Goode further testified
that although GSN’s programming was “intended to appeal to a certain set more than other groups,” GSN
did not “want to alienate another group” but was “looking to entice first and foremost one group” with its
target programming.351 Regarding WE tv’s marketing strategies, Martin similarly testified that despite
being a women’s network, WE tv never used the term “women” in the network’s tagline so as not to
alienate men because men accounted for 20 percent of WE tv’s actual audience.352 In any event, as
Brooks’s expert analysis of GSN and WE tv’s shared viewing audience353 demonstrated, at the time of the
retiering, approximately one-third of the viewers “who watched either GSN or WE tv watched both,” and
in fact, “WE tv ranked first among all cable networks in terms of shared audience with GSN.”354
e.

Advertising

71.
Brooks testified that “[w]hile no network is viewed 100% by a female or male audience,
ad buyers nonetheless view networks as female- or male-targeted and buy advertising on that basis.”355
Brooks credibly testified that the top four advertising demographic “categories for women’s networks are
women 25-54, persons 25-54, women 18-49 and persons 18-49.”356

347

Id. at 1346:5-11.

348

Tr. at 1256:15-18.

Id. at 1370:17-22. Brooks further testified that if a programmer is targeting women 25-54, for example, “what
they’re focused on is increasing the number under women 25 to 54” demographic category, and are “not concerned
with what goes on in other demographics” because “[w]hat they really want is the largest number possible in the
demographic they’re aiming for.” Id. at 1371:9-23. Cf. GSN Exh. 310 (7/8/09 internal WE tv email that expresses
“concern” that ratings for Bridezillas in target audience categories of “W18-34, 18-49, and W25-54 are all down”
but appreciation that the ratings for “MEN are up 117% among 35-49s, double among 50+, and more importantly[,
up] 56% among M18-49”) (capitalization in original).
349

350

Goode Testimony at 21.

351

Id. at 22.

352

Martin Testimony at 135-37.

Brooks explained that “[s]hared viewing is the percent of combined audience of two networks that watches both.”
Brooks Expert Testimony at 19.
353

Id. at 18-19. Brooks also convincingly explained why Cablevision expert Orszag’s all-viewing analysis was less
probative than his shared-viewing analysis. Id. at 19, 47-48.
354

Brooks Expert Testimony at 15; cf. Tr. at 1229:9-14 (Brooks testified that even though 25 percent of ESPN’s
viewers are female and “does sell female demographics . . . the predominant [ad] sales are men for ESPN”).
355

356

Brooks Expert Testimony at 15-16; see also Tr. at 840:20-841:3 (GSN advertising head Zaccario testified that the
advertising target demographic category of women 25-54 is critical “for GSN and other networks that are producing
programming and targeting women 25 to 54” but this category “wouldn’t be as important for ESPN”). Cf. GSN
Exh. 310 (7/8/09 internal WE tv email noting that an increase in number of male viewers of WE tv’s marquee show
Bridezillas “does help Ad Sales, which is not just selling women but, more than ever, ADULTS 18-49s as well”);
see also Tr. at 1764:5-17 (Dorée confirmed that even though its programming was targeted to women, WE tv
tracked ratings for men and adults and sold advertising based on person and/or adult demographics). The Presiding
Judge rejects as erroneous, and contradicted by substantial undisputed evidence, Martin’s conflicting testimony that
(continued….)

43

 Federal Communications Commission

FCC 16D-1

72.
Regarding target programming, GSN and WE tv sold two types of advertising: direct
response and general rate.357 Goldhill testified that both direct response advertising and general rate
advertising are “sold based on audience composition”—the difference being that the network guarantees
delivery of the target demographic with general rate advertising but does not with direct response
advertising.358 Goodhill testified that in GSN’s case, “when we sell direct response, our advertisers still
want to know the demographics of our audience, we’re just not guaranteeing it.”359 Goodhill further
testified that “our direct response, like all our advertising, is sold to advertisers who want a 65 to 70
percent female network.”360 Zaccario testified that at the time of retiering, the percentage split between
GSN’s general rate advertising and direct response advertising was “[r]oughly {{
}}.”361 Zaccario
also testified that during the period 2008-12, the demographic category women 25-54 accounted for the
largest portion of GSN’s general rate advertising.362 Zaccario further testified that the demographic
category “women 25 to 54 is the most important [to GSN] because that is where we write the
overwhelming majority of our [advertising] business.”363
(i)

Target Demographic

73.
The target demographic for advertising sales is determined by the advertiser, not the
network. Goldhill testified that “[t]here are advertisers who buy only women,” “[t]here are advertisers
who prefer to buy adults or persons,” and “[w]e will sell to both.”364 Goldhill also testified that “[i]f an
advertiser walks in and says, ‘[w]e want you to price adults,’ we will do so,” but “[t]here are some [GSN]
shows which are so overwhelmingly female that we cannot do that because the number is the same as the
female number.”365 And Goldhill testified that, because women accounted for “65 to 70 percent” of
GSN’s audience, regardless of whether GSN was selling direct response advertising or general rate
advertising “[m]any of the advertisers who b[ought] adults” were nevertheless “trying to get primarily
women.”366
74.
Brooks testified that advertisers generally are not concerned with the composition of a
network’s actual audience but focus on the demographic they are interested in reaching. So, for example,
what advertisers want to know from a network is “how many women 18 to 49 can you deliver, and how
much are you charging for them.”367 And a network’s delivery of viewers beyond the target demographic
(Continued from previous page)
WE tv did not sell advertising based on people or adult demographics but only sold advertising based on “women
18-49 [and] women 25-54.” Martin Testimony at 37-38; see also id. at 160-61.
357

The record contains insufficient evidence to make any findings of fact regarding Wedding Central advertising.

358

Tr. at 261:7-23; see also id. at 811:7-11 (Zaccario testified that direct response advertising is sold based on a
target demographic that advertisers “track internally” even though delivery of the target is not guaranteed by the
network).
359

Id. at 261:9-11.

360

Id. at 261:13-15.

361

Id. at 810:16.

Id. at 812:13-22 (Zaccario also testified that guaranteed delivery of women 25-54 accounted for “[t]hirty-one
percent” of GSN’s general rate advertising).
362

363

Id. at 840:22-23.

364

Id. at 288:7-9.

365

Id. at 288:17-20.

366

Id. at 288:13-15.

Id. at 1228:19-23. Cf. Martin Testimony at 228 (from the perspective of WE tv’s advertising sales, Martin
testified that the “most important thing is the amount of viewership that we have” because “[a]dvertisers . . . are
really looking for eyeballs”).
367

44

 Federal Communications Commission

FCC 16D-1

“is all bonus” for the advertiser.368 Brooks finally testified that if in addition to “the target demographic”
the advertiser “gets other viewers, such as 55-plus viewers they’re not paying for, that is essentially
bonus, free bonus audience that they are getting.”369
75.
Brooks’s expert testimony showed that “persons and women 18 to 49 and 25 to 54
accounted for about two thirds of the demographic ad sales of GSN . . . the other third were other
demographics . . . like 35 to 64, 18 plus, . . . demos that are sometimes bought by advertisers at lower
degrees.”370 Zaccario testified that at the time of retiering, women 25-54 alone accounted for nearly 40
percent of GSN’s upfront advertising sales.371 Zaccario also testified that the second largest portion of
GSN’s upfront advertising sales was women 18-49, and that the combined demographic category of
women 18-54 accounted for “over 55 percent” of GSN’s upfront advertising sales at the time of
retiering.372 During that time, GSN did not sell any upfront advertising in the demographic category
women 55 and above but only sold “a very small percentage” of advertising based on persons 55 and
above; Zaccario testified that “had there been [advertisers] in the marketplace looking to . . . buy women
55-plus, we would have sold it.”373 However, Zaccario assured that GSN never sold any advertising for
its target programming that was based on any target demographic category of men.374
(ii)

Target Advertisers

76.
GSN expert Singer showed that “between July 2010 and July 2011, 90 percent of WE
tv’s top 40 advertising accounts . . . also advertise on GSN,” and “that 93 percent of GSN’s top 40
advertising accounts . . . also advertise on WE tv.”375 His testimony on the advertising universe for each
network also showed an overwhelming similarity in advertising between GSN and WE tv.376 Singer
concluded that “74 percent of all of WE’s advertising accounts . . . also advertise on GSN” and “82
percent of all of GSN’s advertising accounts . . . also advertise on WE tv.”377
Tr. at 1253:5-7. Brooks further testified the existence of “many older viewers” in its actual audience is not
“relevant and important in terms of [GSN’s] ad sales.” Id. at 1256:15-18. Brooks also testified that “[w]hereas
some other types of women’s programming doesn’t[, g]ame shows tend to attract both younger and older viewers,”
and so he was not surprised that “in addition to the younger categories,” GSN’s programming also appealed to the
“older ones too.” Id. at 1261:9-12.
368

Id. at 1333:7-11. Brooks further testified that “what is important in [advertising] sales is, did you deliver the
needed number of people within the demographic” because “that is all the advertiser pays for.” Id. at 1333:12-14.
See also Tr. at 554:2-6 (Goldhill testified that GSN would get “no credit” if it were to “over-deliver” the target
demographic; for example, “if I sold you 100,000 women 25 to 54, and we delivered 110,000 women, you don’t pay
me any more.”).
369

370

Tr. at 1208:15-22.

371

Id. at 731:11-16 (at the time of retiering, Zaccario testified that the demographic category women 25-54
accounted for “[t]hirty-nine-and-a-half percent” of GSN’s upfront advertising sales”). Zaccario explained that
upfront advertising refers to the “auction-type marketplace when . . . advertisers buy advertising in advance of the
next year.” Id. at 728:23-25. Zaccario also testified that historically the demographic category women 25-54 has
been the largest portion of GSN’s upfront advertising sales. See id. at 726:18-24.
372

Id. at 731:19-732:2.

373

Id. at 776:4-777:1.

374

Id. at 819:21-24 (Zaccario testified that any advertising that GSN sold based on a target demographic of men was
related to the limited amount of poker programming that GSN aired at the time of the retiering).
375

Singer Expert Testimony at 33-34.

376

No evidence was presented to show similarities or disparities in target advertising of programming on the sports
tier, but it most likely would not show the similarity shown between GSN and WE tv on the expanded basic tier
where GSN once was competing head-to-head with Cablevision’s affiliated network for advertising accounts.
377

Singer Expert Testimony at 33-34 (emphasis in original).

45

 Federal Communications Commission

FCC 16D-1

77.
An advertising analysis conducted by Cablevision’s expert Lawrence Blasius established
that the two networks are virtually identical. According to Blasius, two of each network’s top three
advertisers are the same; in descending order (based on advertising revenue), GSN’s top three advertisers
are {{
}} and WE tv’s top three advertisers are {{
}}.378 The sole unshared advertiser in each network’s top three is
similarly ranked—i.e., {{
}} is GSN’s eleventh largest advertiser, and {{
}} is
379
WE tv’s twelfth largest advertiser.
3.

Business Reasons for Retiering Are Pretextual

78.
Cablevision contends that it executed the retiering decision on perceived higher
programming costs. Its move of GSN to the premium sports tier was believed justified based on a “saved
{{
}} in annual license fees by retiering GSN.”380 Cablevision even contends that its retiering
conduct “added another {{
}} subscribers to the Sports & Entertainment tier”381—a tier which
immediately before retiering only had approximately {{
}} subscribers.382 Ironically, Cablevision
also asserts that it retiered GSN to the premium sports tier because Bickham had concluded that “GSN
was a poor performer on Cablevision” and thought “GSN did not appeal to most Cablevision
subscribers.” 383 In sum, Cablevision claims without any reservation that because it “saved {{
}}
in license fees, earned substantial revenues from new Sports & Entertainment tier subscribers, and saw no
meaningful increase in customer churn, the weight of the evidence supports the conclusion that
Cablevision made a profitable decision.”384 True perhaps, but Cablevision omits the damage done to GSN
by its retiering strategy, which must be examined.
79.
Integrated cable distributors profiting from discriminatory conduct lies at the heart of the
anti-discriminatory scheme of Congress and the Commission. If discriminating against non-affiliated
networks were not commercially beneficial to integrated cable distributors, then section 616 of the Act
and section 76.1301(c) of the Commission’s rules would be useless and unnecessary.385 And it is duly
noted that section 616 of the Act and section 76.1301(c) of the Commission’s rules also protect legitimate
business practices common to a competitive marketplace against unfounded claims of discrimination.386
Here, however, the preponderance of evidence shows that there was nothing common or competitive
about Cablevision’s discriminatory retiering. Goldhill testified that he “never heard of another
established cable network being dropped or retiered” as it occurred when Cablevision moved GSN from
378

CV Exh. 228—Direct Testimony of Lawrence Blasius at 28.

379

Ibid.

380

Cablevision Br. at 18.

381

Id. at 20.

382

Supra note 83.

383

Cablevision Br. at 19.

384

Id. at 20.

385

See infra para. 96.

386
See infra para. 97. It is indisputable that Cablevision had the right to drop out-of-contract GSN from its lineup
altogether so long as Cablevision exercised that discretion in a manner that did not discriminate on the basis of
GSN’s non-affiliation with Cablevision. Cablevision thus argues that its retiering decision was merely the outcome
of its evaluation of the “pros and cons of continued GSN carriage.” Cablevision Br. at 18. In addition,
Cablevision’s retiering conduct left GSN better off (at least in terms of distribution) than GSN would have been if
Cablevision had dropped GSN from its lineup. But the mere existence of non-discriminatory business reasons for
dropping GSN, or even for retiering GSN to the premium sports tier, does not absolve Cablevision for
discriminating against GSN on the basis of its non-affiliation with Cablevision, particularly where, as here, such
discriminatory conduct unreasonably restrained GSN’s ability to compete fairly.

46

 Federal Communications Commission

FCC 16D-1

expanded basic to a premium sports tier.387 No witness’ testimony nor any documentary evidence
disputes or is inconsistent with or contradicts Goldhill’s testimony. The uncommonness of the
unprecedented GSN retiering is magnified by Cablevision’s rejection of its own cost-savings proposal
that would have retiered four non-affiliated networks (including GSN) as a unit from the expanded basic
tier to the premium sports tier.388 When Bickham (approved by Rutledge) retiered GSN, Cablevision’s
own personnel cried foul and urged that they needed “to get some more ‘entertainment’ into that thing,
pronto to validate” GSN’s retiering.389 But, as discussed in paragraph 85 below, Cablevision made no
such expansion of the premium sports tier.
80.
Additionally and diametrically contrary to Cablevision’s assertion that GSN was retiered
because it was a weak and unpopular network, the preponderance of evidence proves beyond any
equivocation that GSN was a uniquely popular network that was highly valued by and attracted the
loyalty of Cablevision subscribers.390 The evidence also convinces that contrary to Cablevision’s
assertion, GSN was not retiered to premium sports to save programming costs. Cost savings was a
fortunate effect but not the reason for GSN’s retiering. For as the preponderance of evidence proves,
although there was a significant increase in subscribership to the premium sports tier as a result of GSN’s
retiering, this too was a serendipitous effect of and certainly not the main motive for Cablevision’s
retiering of GSN.391
81.
Rather, the weight of the evidence clearly shows that Bickham first targeted GSN for
elimination from Cablevision’s lineup for reasons unrelated to cost savings. Then Bickham instructed
Montemagno to come up with necessary business reasons to support his intention.392 But after
Montemagno pointed out the negatives that would result from dropping GSN, Bickham took no
alternative action against GSN, even rejecting a retiering of GSN that would have yielded the majority of
the programming savings sought by Cablevision.393
82.
When Bickham decided to retier GSN, he did so not to save programming costs. It was
because he believed erroneously that GSN could be retiered “without having a negative impact on the
business.”394 On top of that, Bickham was quite confident that Cablevision could squeeze additional
revenue from loyal GSN viewers who would be willing to pay a premium to continue their access to
GSN’s programming.395 Cablevision however told CEO Dolan a different story in informing him of the
387

Tr. at 217:17-19. Cf. Martin Testimony at 197-201 (Martin testified that in the normal course of business
“[e]very distributor expresses concern about price about every network” such that “price is part of the negotiation”
in which “distributors threaten drops all the time” but not retiering; the sole instance she recalled where WE tv was
dropped to a lower penetrated tier “as a part of negotiation,” the retiering was reversed after a few months).
388

See supra para. 33.

389

GSN Exh. 127.

390

Supra para. 29. At the time of retiering, out of the 56 networks that Cablevision distributed on the expanded
basic tier based on STB data, GSN ranked 45th and, of the affiliated networks, AMC ranked 8th, WE tv ranked 16th,
News 12 ranked 35th, FUSE ranked 43rd, MSG ranked 47th, MSG Plus ranked 48th, and MSG Varsity ranked 50th;
and based on Nielsen data, GSN ranked 41st, AMC ranked 29th, WE tv ranked 38th, FUSE ranked 66th, MSG ranked
54th, MSG Plus ranked 63rd, and News 12 and MSG Varsity had no rank. CV Exh. 154 at 5; see also supra para. 37
and note 169.
391

See supra paras. 47-48

See supra para. 27 and note 114 (Montemagno testified that Bickham “asked me to prepare a recommendation to
support his decision” to drop GSN.).
392

See supra para. 30 (Cablevision’s annual savings would have been approximately {{
}} for dropping
GSN, and approximately {{
}} under the alternate proposal to retier GSN to the Silver tier).

393

394

Supra para. 39.

395

Ibid.

47

 Federal Communications Commission

FCC 16D-1

reason for GSN’s retiering. Dolan testified that the retiering decision was made because GSN was
demanding a higher license fee.396 But as the evidence clearly shows, no such demand had been made by
GSN. Two years prior to the retiering, Cablevision made clear that GSN (which was out of contract)
should be “happy” with the {{
}} license fee that Cablevision was paying and would continue to pay
for the right to distribute GSN on its expanded basic tier.397
83.
Undisputed evidence also proves that Cablevision’s one-sided retiering decision from a
superior bargaining position was “final” and non-negotiable even before it was communicated to GSN
since Cablevision had already determined that it would not change its decision even if it could have
distributed GSN broadly for “{{
}},”398 as Cablevision distributed broadly its own affiliated
“{{
}}” networks.399 Clearly GSN’s low, longstanding static license fee was a given, particularly with
an expired contract, and had nothing to do with the retiering decision.400 However, the retiering of GSN
reduced distribution of GSN’s programming dramatically from {{
}} to approximately
{{
}} subscribers. 401 In sum, Cablevision thereby unilaterally converted GSN to the essentially
“free service” that Cablevision proposed as the only option for restoring GSN to broad carriage on its
cable system.402
4.

Motive To Discriminate

84.
Cablevision asserts that it “had no motive to discriminate against GSN because WE tv
neither viewed GSN as a competitor nor included it as a part of its competitive set.”403 To bolster its
assertion, Cablevision notes that at the time of retiering it “agreed to launch OWN, a women’s network
396
Supra note 177 (Dolan testified that he was told that the retiering decision was made because “GSN wanted a
significant rate increase”).
397

See supra para. 28.

398

Supra para. 40.

399
Cablevision distributed affiliated networks MSG Varsity and Wedding Central on broadly penetrated tiers. See
supra para. 19 and note 80 (Cablevision distributed MSG Varsity on the expanded basic tier, which was {{ }}
percent penetrated, and distributed Wedding Central on the digital basic tier, which was {{ }} percent penetrated).
400

See supra para. 24. At the same time it retiered GSN, Cablevision entered into a new carriage agreement with
WE tv at a significantly higher license rate than the {{
}} rate that Cablevision had been paying and continues
to pay distribute GSN’s programming to its subscribers. See GSN Exh. 202 at Exhibit A (the Cablevision-WE tv
carriage agreement effective January 1, 2011, provides that the monthly per subscriber license fee will be:
{{
}} in 2011; {{
}} in 2012; {{
}} in 2013; {{
}} in 2014; and {{
}} in 2015).
See infra note 412 (by retiering GSN, Cablevision slashed the annual cost of distributing GSN’s programming
from {{
}} to less than {{
}}).

401

402

See supra para. 44 (Montemagno testified that he advised GSN that Cablevision had no interest in changing the
retiering decision “unless [GSN] was a free – it was directionally a free service”). There is no evidence in the record
that would support finding that Cablevision’s post-retiering carriage proposal to GSN was reasonable, or even
sincere. See supra note 181. For example, although Montemagno testified that “i]t is not uncommon for
programming networks to agree to free deals, especially when they are first launched and building support from
advertisers,” Montemagno Testimony at 33, Cablevision itself describes GSN as “a fully-distributed, established
national network.” Cablevision Br. at 23. In addition, there is no evidence in the record that even suggests that a
network as highly valued by Cablevision subscribers as GSN—which Cablevision’s own evidence proves—would
agree to a “free” deal that “would have essentially put [GSN] out of business.” Supra note 207. Even in reversing its
decision to drop {{
}}, Cablevision entered into a new carriage agreement that maintained {{
}} carriage on the expanded basic tier at a reduced—but not a “free”—license rate. See supra para. 35.
The preponderance of evidence however does not prove that Cablevision’s “free” carriage proposal was made in bad
faith as GSN contends. See supra note 207 (on cross-examination, Montemagno provided credible testimony for his
erroneous belief that Cablevision’s carriage proposal was reasonable).
403

Cablevision Br. at 18.

48

 Federal Communications Commission

FCC 16D-1

that WE tv did consider a competitive threat.”404 But this fact is not relevant. When viewed as a whole,
the record suggests that Cablevision simply swapped carriage of one non-affiliated women’s network for
another because Cablevision only agreed to launch OWN after it decided to retier GSN to the premium
sports tier.405 Moreover, there is no evidence in the record that Cablevision launched OWN on the
expanded basic tier to be in direct competition with WE tv as had been the case with GSN.
85.
There also is no evidence in the record that supports Montemagno’s claim that GSN was
retiered because “Cablevision was considering expanding the Sports Pak to include additional
entertainment and lifestyle channels.”406 Record evidence proves instead that Cablevision never expanded
its premium sports tier by adding any entertainment network to that tier except for GSN.407 Thus, any
consideration Cablevision may have given to the creation of “other subject matter oriented tiers” had
nothing to do with its decision to retier GSN to the premium sports tier.408
86.
Based on the preponderance of evidence, the Presiding Judge finds that none of the
otherwise possible business reasons that Cablevision has offered (discussed in paragraphs 78-83) changes
the fact that Cablevision discriminated against GSN on the basis of GSN’s non-affiliation with
Cablevision. Those so-called business reasons serve only as pretextual cover for engaging in
discriminatory conduct, or for attempting to cover it up after the fact. In light of the foregoing finding of
intentional discrimination, the Presiding Judge need not reach the alternate question of whether
Cablevision experienced a net benefit (or a net loss) as a result of retiering GSN from the expanded basic
tier to the premium sports tier.409
D.

Cablevision’s Discriminatory Conduct Unreasonably Restrained GSN’s Ability To
Compete Fairly

87.
At hearing, Zaccario testified that as an advertising-supported cable network, there are
“two ways GSN makes money: through advertising sales and distribution sales.”410 The preponderance
of evidence proves that Cablevision’s discriminatory retiering conduct significantly and negatively
impacted GSN’s advertising and license fee revenue and unreasonably restrained GSN’s ability to
compete fairly against other female-targeted networks, including similarly-situated WE tv.411

Ibid.; Montemagno Testimony at 23 (Montemagno testified that Cablevision made the “decision in December
2010, to launch another unaffiliated women’s network, OWN (the Oprah Winfrey Network).”). See also Brooks
Expert Testimony at 9 (OWN “has focused primarily on documentary programming emphasizing self-improvement
and spirituality for women”).
404

405

See supra note 155.

406

Montemagno Testimony at 23.

407

See supra para. 20. Instead of moving any other entertainment network to the premium sports tier, the record
shows that Cablevision expanded the Gold tier, its premium entertainment tier, by including the networks
Cablevision distributed separately as the premium sports tier. See CV Exh. 316 at 1; supra para. 49 and note 242.
The record also shows that after GSN’s retiering, Cablevision launched additional sports networks including NFL
Redzone on the premium sports tier. See CV Exh. 316 at 1.
408

See Montemagno Testimony at 23.

409
See Tennis Channel, 717 F.3d at 987 (there is reliable proof that “an otherwise valid business consideration is . . .
merely pretextual cover for some deeper discriminatory purpose”). See also Game Show Network, LLC v.
Cablevision Systems Corp., MB Docket No. 12-122, Post-Trial Brief of Game Show Network, LLC (filed Sept. 30,
2015) (GSN Br.) at 20-22; Cablevision Br. at 20-22.
410

Tr. at 733:19-21.

411

As supported by the preponderance of uncontested evidence, the Presiding Judge finds that, as of time of hearing
in 2015, GSN already had lost {{
}} in license fee and advertising revenue as a direct result of
Cablevision’s discriminatory retiering conduct. See GSN Br. at 23.

49

 Federal Communications Commission

1.

FCC 16D-1

Loss of License Fee Revenue

88.
Cablevision paid, and GSN accepted, {{
}} per subscriber per month to distribute
GSN’s programming on its cable systems regardless of tier. There is no dispute that GSN suffered a net
loss in annual license fee revenue of approximately {{
}} as a direct result of Cablevision
retiering it from the expanded basic tier with {{
}} subscribers to the premium sports tier with
roughly {{
}} subscribers.412
89.
Also, at the time of retiering, GSN’s programming was distributed to 73.5 million
subscribers nationwide. The loss of {{
}} expanded basic tier subscribers represents a loss to
GSN of 96 percent of Cablevision subscribers and nearly 4 percent of all subscribers that would have had
access to GSN’s programming in the absence of Cablevision’s discriminatory retiering conduct.
2.

Loss of Advertising Revenue

90.
As a result of Cablevision’s discriminatory retiering conduct, GSN experienced a decline
in the sought-after New York DMA of 60 percent in household viewership, as well as a decline of 80-90
percent decline in targeted female viewership.413 Zaccario testified that GSN lost a minimum of “{{
}}” annually in advertising revenue as a direct result of Cablevision’s discriminatory retiering
}} in
conduct.414 Zaccario further testified that at the time of retiering, GSN lost approximately {{
advertising revenue for each of the {{
}} expanded tier subscribers who had lost access to
GSN’s programming.415 Since the retiering, GSN’s annual advertising loss has increased to {{
}}
per each of those subscribers.416 Zaccario testified that the advertising revenue loss resulting directly from
Cablevision’s discriminatory retiering conduct was currently valued at {{
}} annually.417 The
loss of advertising revenue that is directly attributable to Cablevision’s discriminatory retiering conduct
represents an annual loss of 3 percent of GSN’s total advertising revenue.418
412

See supra paras. 17-18. By retiering GSN from the expanded basic tier to the premium sports tier, Cablevision
initially slashed the annual license fee to distribute GSN’s programming from approximately {{
}} to
less than {{
}}. CV Exh. 147 (showing annual license fees in December 2010 of “{{
}}”
and “{{
}}” for GSN carriage on the expanded basic tier and the premium sports tier, respectively).
See Brooks Expert Testimony at 73-74 (Brooks also testified that WE tv and other women’s networks
experienced gains in viewership as a result of Cablevision’s discriminatory retiering of GSN).
413

Tr. at 842:16-24. See also GSN Exh. 99 (upon receiving notice of Cablevision’s retiering decision, Goldhill
calculated that GSN would lose “approximately {{
}} a year” just in licensing fees and advertising
revenue); supra para. 41.
414

Tr. at 740:7-8 (Zaccario testified that at the time of GSN’s retiering “each subscriber was worth about {{
per year.”).
415

416

Id. at 740:12-18; see also id. at 843:3-7.

417

Id. at 843:9-10.

}} . . .

Id. at 740:21-24; see also id. at 842:14-844:13 (Zaccario testified that at the time of retiering, GSN’s annual
advertising revenue totaled {{
}} and its annual loss was valued at {{
}}; at the time of the
hearing, GSN’s annual advertising revenue totaled {{
}} and its annual loss was valued at {{
}}). GSN argues that it was also harmed because Cablevision’s discriminatory retiering conduct occurred in
the New York DMA, which is the epicenter of national advertising sales. See GSN Br. at 24 (beyond its quantifiable
revenue losses, “GSN has also suffered . . . from the unique nature of the Cablevision market, which is home to a
large number of top advertising agencies and media buyers”); see also Brooks Expert Testimony at 74-75; cf. Martin
Testimony at 301-04. Although the preponderance of evidence proves the unique importance of carriage in the New
York DMA with respect to national advertising sales (a proposition that Cablevision does not dispute), the Presiding
Judge is not persuaded that this fact itself is evidence of harm within the purview of section 616 of the Act and
section 76.1301(c) of the Commission’s rules. See Sapan Testimony at 202 (Sapan testified that although it is
generally accepted in the industry that a network may increase its advertising revenue through broad distribution in
the New York DMA, this proposition assumes that ad buyers “are only watching the good stuff” but they could just
(continued….)
418

50

 Federal Communications Commission

3.

FCC 16D-1

Unfair Placement on Premium Sports Tier

91.
GSN expert Brooks testified that “[e]xtra-cost tiers” like Cablevision’s premium sport
tier “are considered the ‘Siberia’ of cable.”419 Moreover, it is crucially “important to the long-term
distribution strategies of most networks” to be “perceived as a ‘basic network’ (versus a ‘ tiered’
network)” because “networks that are viewed as ‘tiered’ rather than ‘basic’ are not favored by
advertisers.”420 Brooks’s testimony makes sense since advertisers want to reach as many viewers as
possible in order to successfully market their products. No Cablevision witness—fact or expert—
disputed Brooks’s testimony. In fact, WE tv President Martin testified that as an ad-supported network,
WE tv’s commercial success was dependent on how broadly it was distributed by MVPDs because
“[m]ore distribution” leads to “more ad revenue.”421 Martin also testified that a decline in viewership
alone will cause a drop “[i]n ad sales.”422 Because MVPDs do not operate in isolation, it is also important
to an ad-supported network how it is collectively distributed. Martin testified that an adverse or positive
carriage decision by even one MVPD can have a domino effect on the carriage decisions of other
distributors.423
4.

Anticompetitive Effect

92.
GSN lost substantial advertising revenue in the reduction of its distribution by 96 percent
among Cablevision subscribers, and 4 percent nationwide. In this way, the discriminatory retiering of
GSN to the premium sports tier effectively “eliminate[d] the opportunity for [the] network to benefit from
casual viewers (or ‘surfers’).”424 To have access to subscribers “who happen upon the network or who
tune to it for a special event or premiere” is fundamentally important to GSN and other ad-supported
networks.425 This permits gaining viewership that the network “can then attempt to convert them to more
regular viewership by that programming and/or by promotional advertisements for other shows.”426
93.
Cablevision’s discriminatory retiering to male-oriented viewing made it “almost
impossible” for GSN to attract new viewers among Cablevision subscribers.427 The premium sports tier
has been and is a collection of premium male-targeted networks offering men-oriented programming that
consists exclusively of sports and sports-like programming.428 In stark contrast, GSN is, and at the time
of retiering was, a basic female-targeted general entertainment network offering women-oriented
programming, primarily of game show and game show-like programming.429 As the undisputed evidence
(Continued from previous page)
as easily “be watching things that cause them to think quite poorly” of a network). In any event, the Presiding Judge
finds that GSN had no obligation to mitigate this purported harm by purchasing subscriptions to the premium sports
tier for affected Cablevision subscribers—i.e., ad buyers who lost access to GSN’s programming as a result of the
retiering—as was suggested by Cablevision at hearing. See Tr. at 756:7-757:5.
419

Brooks Expert Testimony at 71.

420

Id. at 72.

Martin Testimony at 230. Martin also testified that the “most important thing” for an ad-supported network “is
the amount of viewership” because “[a]dvertisers don’t look at levels of carriage, tiers, things like that, they are
really [only] looking for eyeballs.” Id. at 228.
421

422

Id. at 218.

423

Id. at 215-20.

424

Brooks Expert Testimony at 72.

425

Ibid.

426

Ibid.

427

Ibid.

428

See supra paras. 18, 20.

429

See supra paras. 10, 51, 59-62.

51

 Federal Communications Commission

FCC 16D-1

makes clear, GSN has nothing in common with the networks that Cablevision distributes on the premium
sports tier.430 Consequently, Cablevision premium sports tier subscribers almost exclusively “will be
males looking for additional sports programming” and not the women to whom GSN’s programming is
targeted for new viewers and new business opportunities, and on which GSN’s advertising sales are
based.431
III.

CONCLUSIONS OF LAW
A.

Statutory and Regulatory Background

94.
Section 616 of the Act, supplemented by the Cable Television Consumer Protection and
Competition Act of 1992 (1992 Cable Act),432 directs the Commission to promulgate regulations which
“prevent a multichannel video programming distributor from engaging in conduct the effect of which is to
unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly by
discriminating in video programming distribution on the basis of affiliation or nonaffiliation of vendors in
the selection, terms, or conditions for carriage of video programming provided by such vendors.” 433
95.
The Commission adopted section 76.1301(c) of its rules, which closely tracks the
operative language of section 616 of the Act, that: “[n]o multichannel video programming distributor
shall engage in conduct the effect of which is to unreasonably restrain the ability of an unaffiliated video
programming vendor to compete fairly by discriminating in video programming distribution on the basis
of affiliation or non-affiliation of vendors in the selection, terms, or conditions of video programming
provided by such vendors.”434
96.
In 1992, Congress foresaw and was concerned that “vertically integrated cable operators
have the incentive and ability to favor affiliated programmers over unaffiliated programmers with respect
to granting carriage on their systems.”435 Congress specifically found that cable operators in certain
instances could abuse their market power to the detriment of unaffiliated programmers. 436 Clearly,
Section 616 of the Act and section 76.1301(c) of the Commission’s rules were promulgated to safeguard
programming vendors against discrimination that arises from their non-affiliation with cable operators.
Thus, the disparate relationship of video programmer GSN to cable distributor Cablevision is a concern of
Congress.
97.
Congress also wanted to ensure that its legislation barring discrimination did not have an
unintended consequence of “restraining the amount of multichannel programming available by precluding
legitimate business practices common to a competitive marketplace.”437 Indeed, one principle advanced
430

See supra paras. 45-49. As Montemagno confirmed at hearing, GSN is the only network on the premium sports
tier that is only entertainment and not sports. Tr. at 1614:16-19.
431

See Brooks Expert Testimony at 72-73.

432

Pub. L. No. 102-385, 106 Stat. 1460 (1992).

433

47 U.S.C. § 536(a)(3).

434

47 CFR § 76.1301(c). Cablevision is a multichannel video programming distributor as defined by section 602 of
the Act, 47 U.S.C. § 522(13), and section 76.1300(d) of the Commission’s rules, 47 CFR § 76.1300(d). GSN is a
video programming vendor as defined by section 616 of the Act, 47 U.S.C. § 536(b), and section 76.1300(e) of the
Commission’s rules, 47 CFR § 76.1300(e).
435

Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act of
1992—Development of Competition and Diversity in Video Programming Distribution and Carriage, Second Report
and Order, 9 FCC Rcd 2642, 2643 para. 2 (1993) (Second Report), recon. granted in part, 9 FCC Rcd 4415 (1994)
(Second Report Reconsideration). See also S. Rep. No. 102-92 at 25 (Senate Report).
436

Senate Report at 24.

437

Second Report, 9 FCC Rcd at 2643, para. 1. See id. at 2648, para. 15 (internal quotation marks omitted).

52

 Federal Communications Commission

FCC 16D-1

by the 1992 Cable Act, of which section 616 is a part, is to “rely on the marketplace, to the maximum
extent feasible, to achieve greater availability of the relevant programming,” a legislative objective that
the Commission took into account in adopting section 76.1301(c) of its rules.438 In this way, Sections 616
of the Act and 76.1301(c) of the Commission’s rules “strike a balance that not only proscribe[s] the
behavior prohibited by the specific language of the statute, but also preserve[s] the ability of affected
parties to engage in legitimate negotiations.”439 Such a negotiation occurred here. GSN had an expired
carriage agreement for an extended time but, to GSN’s detriment, Cablevision would not realistically
negotiate a new one.
98.
To prevail here, GSN, as an unaffiliated video programming vendor, must prove by a
preponderance of evidence two discrete elements in order to establish that Cablevision, as a video
programming distributor, violated sections 616 of the Act and 76.1301(c) of the Commission’s rules. So
GSN is required to prove that Cablevision discriminated against it on the basis of affiliation or nonaffiliation, and also prove that the effect of such discrimination unreasonably restrained GSN’s ability to
compete fairly.440
B.

Proven Discrimination on the Basis of Non-Affiliation

99.
In order to prove discrimination on the basis of non-affiliation as proscribed by section
616 of the Act and section 76.1301(c) of the Commission’s rules, GSN must show that its non-affiliation
with Cablevision “actually played a role in the process and had a determinative influence on the
outcome.”441 GSN can make that showing by (1) direct evidence such as statements showing a
discriminatory intent, or (2) circumstantial evidence such as showing “uneven treatment of similarly
situated entities.”442 Based on the preponderance of evidence, the Presiding Judge concludes that GSN
has met its burden of proving discrimination by direct evidence and by circumstantial evidence.
1.

Direct Evidence of Discrimination

100.
GSN presented “two lines of direct evidence” to show that Cablevision discriminated on
the basis of non-affiliation: (1) Cablevision’s admissions and other proof as to how Cablevision treats
GSN and its affiliated networks differently in the terms and conditions of carriage; and (2) GSN’s proof
that Cablevision later conditioned reasonable carriage for GSN on its ability to extract value from one of
GSN’s parent companies for Cablevision’s affiliated network.443 The Presiding Judge concludes that
GSN proved discrimination under “admissions and proof” but not under “uneven treatment” presented in
its second line of direct evidence.444

438

Id. at 2648, para. 15, quoting 1992 Cable Act, § 2(b)(2) (internal quotation marks and footnote omitted). See
Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act of 1992—
Development of Competition and Diversity in Video Programming Distribution and Carriage, First Report and
Order, 8 FCC Rcd 3359, 3402, para. 145 (1993).
439

Second Report Reconsideration, 9 FCC Rcd at 4416, para. 7. See Second Report, 9 FCC Rcd at 2648-49,
para. 15.
440

47 U.S.C. § 536(a)(3); 47 CFR § 76.1301(c).

441

WealthTV, 24 FCC Rcd 12967 at 12997-98, para. 63 (internal brackets omitted) (quoting Hazan Paper Co. v.
Biggins, 507 U.S. 604, 610 (1993)).
442

See id. at 12998, para. 63 (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-100 (2003)).

443

GSN Br. at 4.

The Presiding Judge also concludes that Cablevision’s admissions—for example, that there was nothing GSN
could do to reverse the retiering decision (supra paras. 40, 83)—are statements showing a discriminatory intent. See
WealthTV, 24 FCC Rcd at 12998, para. 63.
444

53

 Federal Communications Commission

a.

FCC 16D-1

GSN Was Retiered on the Basis of Non-Affiliation

101.
GSN has proven through direct evidence that the retiering of GSN from the expanded
basic tier to the premium sports tier was based on GSN’s non-affiliation with Cablevision. It is found that
Cablevision, without any valid business reason, tagged GSN for retiering because GSN had an expired
carriage agreement with Cablevision and Cablevision refused to negotiate a new contract.445 GSN proved
that Cablevision, in its retiering decision, considered retiering only non-affiliated networks having expired
or expiring contracts. Yet no consideration was given by Cablevision to retiering any of its affiliated
networks, including those that also had expired or expiring carriage agreements.446 In its explanation,
Cablevision claimed to be powerless to retier any of its affiliated networks—with or without expiring
carriage agreements.447 Such an assertion is not credible because it is contradicted by substantial
evidence. It was evident that Thomas Rutledge, Cablevision’s Chief Operating Officer, was the final
arbiter of disputes or differences between Cablevision’s programming side and its distribution side.448
Contemporaneous documentary evidence proves by a preponderance that contractual negotiations
between Cablevision’s programming and distribution sides were not conducted at arms-length but at the
direction and under the control of Rutledge.449
b.

The “Must-Have” Programming Disconnect

102.
Cablevision erroneously claimed to have retiered GSN because GSN did not offer “musthave” programming.450 For Cablevision, “must-have programming” is programming that would cause
subscribers to “call and disconnect” if they lost access to it.451 Cablevision represents that such
programming is limited to programming found on broadcast and sports networks.452 GSN’s programming
did not meet Cablevision’s concept of “must-have” programming. Yet a historically high number of
Cablevision subscribers called to complain of GSN’s retiering.453 Incredibly but actually, more than 5000
Cablevision subscribers disconnected their cable service upon losing access to GSN by Cablevision’s
retiering.454 Contrariwise, Cablevision did not even consider retiering any of its seven affiliated networks
distributed on the expanded basic tier. As with GSN, most of those networks, according to Cablevision’s
own assessment, did not offer must-have programming. It is again noted that neither AMC, Fuse, News
445

Supra para. 24,28.

446

Supra notes 148, 152 and 155.

447

See Tr. at 1677:8-1678:1 (Montemagno testified that the contracts that Cablevision entered into with its affiliated
networks did not allow Cablevision to retier them to the premium sports tier.).
448

Supra para. 14; see also infra para. 108 (with respect to its affiliated networks, Rutledge also had absolute
authority to waive contractual provisions like MFN clauses).
449

See CV Exh. 121E at 1 (regarding the renewal of expiring contracts for affiliated Rainbow networks AMC, IFC,
and Sundance, Cablevision’s programming side reported that it had “[h]ad [a] conversation with Rainbow upon
receiving initial direction from COO” and that “Rainbow indicated that they wanted to also check with COO for
direction as well”); see also CV Exh. 315 (3/9/11 email from Broussard to Sapan regarding a modification of
licensing rates for AMC and WE tv in which Broussard states that Rainbow “would need to raise with Rutledge”
and, with respect to a different Cablevision-Rainbow carriage matter, Broussard stated that Cablevision “agreed to
continue discussing but indicated they are not prepared to lock it down today without being directed to do so”—
presumably by Rutledge).
450

Supra para. 39.

451

Supra note 175.

452

Supra para. 25.

453

Supra paras. 45.

454

Supra paras. 45-48.

54

 Federal Communications Commission

FCC 16D-1

12, nor WE tv is a broadcast network and do not offer sports programming.455 Nor did Cablevision
consider retiering any affiliated sports network—MSG, MSG Plus, and MSG Varsity—each network
went outranked by GSN on the expanded basic tier.456 And there is no evidence that any of the seven
affiliated networks distributed on the expanded basic tier had near the loyal viewership of Cablevision’s
subscribers that GSN did.457
103.
Dismissing the favorability that viewers had for GSN, Cablevision represents that GSN
was not retiered on the basis of non-affiliation but because “GSN was ‘a very weak network’” that could
be retiered without losing subscribers,458 a proposition that is flatly contradicted by substantial evidence.
Cablevision’s own evidence—its set-top box data—proves that GSN was as popular a network as any
network distributed on the expanded basic tier.459 This evidence also proves that GSN was more popular
among expanded basic tier subscribers at the time of the retiering460 than it had been in July 2010, when
Cablevision discussed and rejected the idea of dropping GSN.461 Finally, GSN has proven that
Cablevision lost subscribers to its detriment as a result of its retiering of GSN to the premium sports tier.
104.
Cablevision represented that GSN presented inferior programming. Yet
counterintuitively, Cablevision contends that GSN had “added another {{
}} subscribers to the
Sports & Entertainment tier on which GSN was now carried, resulting in {{
}} of
dollars in additional profits [for Cablevision] due to the retiering.”462 Programming expert Brooks
testified that cable distributors “assert that they want to put a popular channel on a tier in order to drive
viewers to that tier.”463 Brooks also testified that retiering a popular channel “only works if the popular
channel so placed is appropriate to the tier.”464 For example, he posited that “placing ESPN in the ‘Sports
& Entertainment Pak’ might drive subscribership to the tier,” but retiering “GSN amid channels with
which it has nothing in common will not accomplish that goal.”465 So the decision of Cablevision was not
to retier GSN for the purpose of increasing subscribership to its premium sports tier. Cablevision retiered
because GSN was erroneously thought to be “a very weak network.”466 Cablevision realized “additional
profits” from subscribers who “had to have Game Show Network” programming and paid an additional
}}
$6.95 per month to retain access to GSN programming.467 Cablevision added approximately {{
disgruntled GSN expanded basic tier viewers to the premium sports tier (which had approximately
See supra paras. 15, 19; see also CV Exh. 816 at 54, 512 (the Cable Directory describes AMC as a “cable movie
network” and Fuse as a “contemporary music cable network”) (capitalization omitted).
455

456

Supra para. 37.

457

Ibid.

458

Cablevision Br. at 19 (quoting Bickham Testimony at 60).

459

See supra note 128 (Cablevision only distributed highly ranking networks on the expanded basic tier).

460

Supra paras. 29, 37 (in July 2010, GSN ranked 49th out of 52 networks that Cablevision distributed on the
expanded basic tier; in November 2010, GSN ranked 45th out of 56 networks that Cablevision then distributed on the
expanded basic tier).

461

Supra para. 29; see also supra para. 30 (as an alternative to dropping GSN, Cablevision also considered and
decided against retiering GSN to the Silver tier).
462

Cablevision Br. at 20.

463

Brooks Expert Testimony at 73 n.165.

464

Ibid.

465

Ibid.

466

Cablevision Br. at 19 (quoting Bickham Testimony at 60). Bickham had substantially miscalculated the worth of
GSN, and Bickham failed to later correct his error. See supra paras. 45-49.
467

Supra para. 39 (quoting Bickham Testimony at 70).

55

 Federal Communications Commission

FCC 16D-1

{{
}} subscribers468) by providing them with a six-month free subscription. Once the promotion
ended, approximately {{
}} GSN viewers became paid subscribers to the premium sports tier.469
Clearly, GSN possessed the quality of “must-have television” that Cablevision set for distribution on the
expanded basic tier.470 Yet while ignoring its policy, with the retiering, both Cablevision and GSN
experienced a measured net loss of approximately 5,000 viewers, and possibly more. Also, to its
detriment, Cablevision lost the valued goodwill of multiple viewers, some of whom had to be virtually
“bribed” to remain paying viewers, at least for six months.
c.

Cablevision Lacked a Legitimate Business Reason

105.
GSN met its burden of proof by showing that Cablevision did not retier GSN, the out-ofcontract, unaffiliated network for “legitimate business reasons.”471 Cablevision asserts that the
overarching reason for its decision to retier GSN to the premium sports tier was to trim only one-quarter
of 1 percent or {{
}} from its programming budget472 that exceeded {{
}}.473 The
evidence presented by both parties clearly shows that while Cablevision distributed more than 500
networks,474 only 30 networks, including affiliates MSG, MSG Plus, and News 12,475 accounted for a
formidable 81 percent of Cablevision’s troublesome 2011 programming costs.476 In contrast, carriage of
GSN on the expanded basic tier accounted for only one-quarter of 1 percent of the 2011 programming
budget.477 In explanation, Cablevision asserted that in 2011, it “faced substantial cost pressures from
retransmission consent fees, skyrocketing rights fees for important sports programming, and
programming network bundling practices.”478 But these are costs having nothing to do with the continued
carriage of GSN on the expanded basic tier. Nor did these costs account for most of an {{
}}
increase in programming costs that Cablevision was “trying to manage” in finalizing a trimmed down
budget.479 The record shows that these increased programming costs were due to Cablevision’s non-GSN
contractual obligations and increased in operating costs attributable to the total number of Cablevision’s
subscribers.480
106.
Cablevision also asserted that retiering GSN to the premium sports tier was the only
fiscal option that “would enable [Cablevision] to save the majority of the {{
}}” it sought to
trim from its 2011 programming budget.481 Yet Cablevision’s own evidence proved this assertion to be
468

Supra para. 18.

469

Supra paras. 47-48.

470

Supra para. 39 (quoting Bickham Testimony at 75); see also note 175.

471

See Cablevision Br. at 17-22.

472

Supra paras. 33-35, 39.

473

CV Exh. 136 at 2.

474

Supra para. 29.

475

CV Exh. 136 at 10 (for 2011, Cablevision budgeted to pay affiliates MSG and MSG Plus approximately
{{
}}, and News 12 approximately {{
}}, for expanded basic tier distribution). Carriage
of MSG and MSG Plus on the expanded basic tier accounted for the largest share of Cablevision’s 2011
programming budget. Supra note 153.
476

CV Exh. 136 at 10; see also supra para. 34.

477

See supra para. 32; see also CV Exh. 136 at 4.

478

Cablevision Br. at 18; see also supra para. 25.

479

Supra note 150 (quoting Tr. at 1657:5-21) (Montemagno redirect examination testimony)).

480

Supra para. 31.

481

Tr. at 1658:22-25; see also supra para. 39.

56

 Federal Communications Commission

FCC 16D-1

unequivocally not true. In fact, Cablevision would have saved the majority of the amount it sought to
trim from its 2011 budget by retiering GSN (or {{
}}) to the Silver tier.482 It also is an
established fact that Cablevision’s initial idea to drop {{
}} would have trimmed the full
amount of savings sought.483 Instead, Cablevision accepted {{
}} the amount of possible savings and
continued to carry {{
}} on the expanded basic tier.484 And even if Cablevision had not
accepted {{
}} of the possible savings from dropping {{
}}, Cablevision would have
saved most of the {{
}} it set out to save by accepting GSN’s offer as an out-of-contract
programmer to reduce its annual license fee by {{
}}.485 In terms of its “bottom line,” a
reduction in annual license fees offered by GSN, plus the reduction in annual license fees of {{
}}, would have yielded annual savings of approximately {{
}}. That amount was
significantly more than what Cablevision would have saved by retiering either non-affiliated network to
the Silver tier, another option that Cablevision had also once considered in its efforts to reduce the 2011
budget.486
107.
In addition, record evidence proves that unlawful discrimination on the basis of nonaffiliation and not any cost savings was the actual reason that Cablevision unjustifiably retiered GSN
from the expanded basic tier to the premium sports tier. In contrast to the reversal of dropping {{
}}, Cablevision’s decision to retier GSN was never reconsidered; rather it was “final.” Not even
“free” carriage of GSN could have persuaded Cablevision to reverse the GSN retiering decision.487 Cost
savings could not have been Cablevision’s true motive. Record evidence establishes that, with two
exceptions, Cablevision would have saved substantially more by retiering just one affiliated network from
the expanded basic tier to the premium sports tier.488 To illustrate, Cablevision would have saved: (1)
nearly the same amount by retiering Fuse; (2) substantially more by retiering AMC, News 12, or WE tv;
and (3) exponentially more by retiering MSG and MSG Plus.489 The conclusion that Cablevision would
have saved substantially more by retiering WE tv was confirmed at hearing by Cablevision’s own expert,

482

While the expanded basic tier had {{
subscribers. Supra para. 17. So with nearly {{
Cablevision would have saved approximately {{
the Silver tier. Supra paras. 32, 34.

}} subscribers, the Silver tier had less than {{
}}
}} fewer subscribers than the expanded basic tier,
}} by retiering either GSN or {{
}} to

483

See supra para. 32-34. Bickham testified that there was no significance to saving {{
}} in
programming costs. But this was the annual savings that was possible if Cablevision were to drop GSN or as
Cablevision later considered, {{
}}. See supra paras. 27, 32 and note 116.
484

Supra para. 35.

485

Supra para. 43.

486

Supra para. 32. Cablevision also asserted that it may have considered reversing its retiering decision if GSN had
made the “kind of proposal” that {{
}} made to retain its carriage on the expanded basic tier. See Tr.
at 1533:2-6. Montemagno testified that Cablevision reversed its decision to drop {{
}} because
Cablevision had not yet implemented the decision when it agreed instead to maintain carriage of {{
}} on the expanded basic tier but at a reduced license rate. Tr. at 1531:21-1532:25. Cablevision also had
not yet implemented the retiering decision by the time that GSN sought its reversal, which left open a window for
negotiation in which Cablevision was not willing to participate. Supra paras. 41.

487

Supra para. 40.

488

See supra note 148.

489

In comparison to the {{
}} Cablevision budgeted for distribution of GSN (and {{
}}) on the
expanded basic tier in 2011, Cablevision budgeted the following license rates for carriage of its affiliated networks
on the expanded basic tier: {{
}} for AMC; {{
}} for Fuse; {{
}} for MSG and MSG Plus;
{{
}} for News 12; and {{
}} for WE tv. CV Exh. 136 at 10, 12. Cablevision {{
}} license
fee to distribute MSG Varsity on the expanded basic tier. See CV Exh. 99 at 6.

57

 Federal Communications Commission FCC l6D?l

 

Jonathan Orszag.49? The inescapable conclusion is that if Cablevision?s intention was only to save costs
and not to discriminate 011 the basis of non-af?liation. Cablevision would have retiered an af?liated
network to the premium sports tier.491

(1. Cablevision?s Dealings with Af?liated Networks

108. ?rst line of direct evidence shows that Cablevision engaged in discriminat01y
conduct by favoring its af?liated networks over evidence proves that: (1)
Cablevision distributors lacked the discretion to ?Walk away? from af?liated networks as they could and
did with non-af?liated networks.?3 (2) ablevision distributed af?liated networks more broadly than
other cable distn'butors. and after the retie1ing.Cablevision nairowly distributed GSN (as well as other
non-af?liated netwo1ks494) despite b1 oad distn'bution of GSN by othe1 cable distribut01s. 495 and (3)

Cablevision routinel . . . to af?liated netwo1ks 
. But

none 0 ev1 ence proves at mt t1ree scenarios. Ca ev151on v10 ate section 616 of the Act and
section 76.1301(c) of the Commission?s rules. Beyond Cablevision?s discriminatory retiering conduct.497
GSN failed to prove that any of the other Cablevision conduct had unreasonably restrained ability
to compete fairly. To illustrate. GSN proved that Cablevision ?gave away? considerably more money to
its af?liated networks than Cablevision sought to trim from its 2011 programming budget by dropping or
retiering non-af?liated networks.498 But GSN has not shown 110w such in-house ?giveaways? restrained

    

 

 

 

49? Tr. at 2653:11-2654220 (Orszag testi?ed that it cost Cablevision signi?cantly more to distribute WE tv 011 the

expanded basic tier than to distribute GSN. and that ablevision would have saved signi?cantly more by retiering

WE tv to the premium sports than it saved by retiering GSN). This evidence also shows that ablevision would

have saved signi?cantly more by retiering WE tv than it would have saved by dropping either GSN or 
cost-savings measure that Cablevision also considered but rejected. See supra paras. 34-35.

491 The Presiding Judge also concludes that record evidence proves that the decision to retier GSN from the
expanded basic tier to the premium sports tier was not a negotiation tactic that Cablevision employed in an effort to
get GSN to lower its license rate. It is undisputed that Cablevision carried GSN at-will and at the existing license
rate for the retiering decision. Supra para. 22. It is also undisputed that. at the time of
retiering. Cablevision and GSN were not in the dunes of contract renewal negotiations which were suspended two
years before Cablevision retiered GSN to the premium sports tier. Supra para. 24. Moreover. there is nothing in the
record showing that during the form ears of negotiations that preceded the suspension. ablevision wanted GSN to
lower the existing license rate of To the contraiy. the preponderance of evidence shows that the pa?ies?
negotiations reached an impasse because GSN was seeking a higher license rate while ablevision would not
consider any increase to the existing rate that was unaccompanied by See
supra para. 23. In addition. by the time Cablevision and GSN suspended their negotiations. Cablevision had agreed
in principle to pay the existing license rate of Supra para. 22-24. The Presiding Judge also notes that in
a record containing more than 1000 documents. the parties have directed his attention to a single doc1u11e11t?GSN
Exh. 127?that makes mention of any desire of Cablevision to get GSN to lower the existing license rate of
This document. dated February 5. 2011. is an email exchange in which a Cablevision staffer responds to
Montemagno that ?[r]eversal? of the retiering decision would not be ?terrible.? particularly if GSN were to ?cut [its]
rate.? GSN Exh. 127.

492 See GSN Br. at 4-10.
493 Id. at 5.
494 See supra para6-8.

49? Id. at 8-10: see also Tr. at 16012-20 23 (Montemagno testi?ed that ablex 1sion 


497 See supra paras. 101-07.

498 Among other facts. GSN proved that in 2010. the same year that Cablevision sought to consider trimming its
2011 programming budget by as a result of dropping either GSN or or by
continued. . . .)

58

Federal Communications Commission

FCC 16D-1

GSN’s ability to compete.499
e.

DIRECTV-Wedding Central Gambit

109.
GSN also has failed to prove that Cablevision engaged in discriminatory conduct by its
second line of direct evidence concerning an apparent DIRECTV-Wedding Central quid pro quo carriage
proposal.500 Recall that DIRECTV is part owner of GSN and has representation on GSN’s board of
directors. GSN asserts that “[c]onditioning the terms of carriage for an unaffiliated network on securing
value for an affiliated network is a plain violation of Section 616” of the Act, and presumably section
76.1301(c) of the Commission’s rules.501 But the discriminatory conduct that is actionable in this case is
not a refusal by Cablevision to distribute GSN on the expanded basic tier because DIRECTV had declined
to launch Wedding Central. And there is no evidence in the record—and certainly not a preponderance of
evidence—which proves that Cablevision retiered GSN for the purpose of securing DIRECTV’s carriage
of Wedding Central. To the contrary, the preponderance of evidence shows that the DIRECTV-Wedding
Central carriage proposal came about after Cablevision’s distribution side made the decision to retier
GSN. The retiering decision was made without considering how it would impact Cablevision’s
programming side.502 And DIRECTV contacted Rutledge, the person in charge of Cablevision and
Rainbow, who then referred DIRECTV to Rainbow to see if a path existed for reversing the decision to

(Continued from previous page)
{{
}} as result of retiering either network to the Silver tier (supra paras. 32, 34), Cablevision waived
{{
}} due {{
}} in their carriage
agreements. See GSN Exh. 398 at 2; Tr. at 1597:18-1598:24 (Montemagno testified that the value {{
}}
with its affiliated networks was between {{
}} and {{
}} in 2010, and between {{
}} and {{
}} in 2009). Year after year, Rutledge {{
}}. GSN Exh. 398 at 2 (stating that “{{
COO on MFN awards due CSC}} for 2005, 2006, 2007, 2008 and 2009 {{
}});
see also Tr. at 2007:13-2009:7 (Broussard testified that Rutledge “{{
}}”
and so there was “{{
}}); Tr. at 1593:15-1601:10 (Montemagno testified that
{{
}} waived the {{
}} due from {{
}} in each year from 2005 through 2010). Cf.
Sapan Testimony at 151-53 (Sapan testified that Rainbow paid a management fee to Cablevision of {{
}} which amounted to {{
}} and effectively canceled the {{
}}).
Under its first line of direct evidence, GSN also argues that “Cablevision granted WE tv channel placement so
favorable that WE tv [performed] far better in the Cablevision market than it did in other [cable distributors’]
markets.” GSN Br. at 7. While the record contains substantial testimonial and documentary evidence showing how
channel placement (and the related concept of neighborhooding) impacted WE tv and Wedding Central, GSN has
not shown that Cablevision unreasonably restrained GSN’s ability to compete fairly by engaging in such conduct.
See, e.g., Tr. at 1961:22-1978:20 (Broussard testified about the benefits to WE tv and Wedding Central of securing
favorable channel placements); GSN Exh. 311 (7/26/11 internal Rainbow email in which Martin expressed alarm
that “WE tv is seeing ratings declines in every single day part on every series” and she questioned whether “it [was]
possible that one of our major distributors has repositioned WE tv to a less attractive channel position”).
499

500

See GSN Br. at 10-13; see also supra para. 42.

501

GSN Br. at 10.

502

See supra para. 37-39; see also Bickham Testimony at 205-06 (Bickham testified that the decision to retier GSN
had nothing to do with Wedding Central or WE tv); Montemagno Testimony at 34-35 (Montemagno testified that he
is “the lead or co-lead negotiator for Cablevision in its carriage agreements, and ha[s] been since the mid-1990s,”
and as a general matter, he “negotiate[s] with a single network or a suite of networks on Cablevision’s behalf,
without any regard to carriage for Cablevision’s affiliated network[s].”); id. at 35 (Montemagno further testified that
“Cablevision never gave any consideration at all to WE tv or Wedding Central in the course of evaluating and
ultimately re-tiering GSN” to the premium sports tier.).

59

 Federal Communications Commission

FCC 16D-1

retier GSN.503 Rather than proving that Cablevision engaged in discriminatory conduct, the DIRECTVWedding Central quid pro quo carriage proposal appears to be the kind of arms-length carriage
negotiations that are permitted under section 616 of the Act and section 76.1301(c) of the Commission’s
rules.504
2.

Circumstantial Evidence of Discrimination

110.
To meet its burden of proving discrimination by circumstantial evidence, GSN need not
show that it is identical in any respect to Cablevision’s affiliated networks, WE tv and Wedding
Central.505 But GSN has shown that it is substantially similar to WE tv and Wedding Central. So
Cablevision’s discriminatory intent can be inferred from its disparate treatment of GSN.506 GSN has met
its burden.
111.
The preponderance of evidence proves that GSN, WE tv, and Wedding Central are
women’s networks507 that offered similar target programming to the same target audience.508 The
evidence also shows that GSN and WE tv primarily sold advertising based on the same target
demographics, and in large part, to the same targeted advertisers.509 Based on such substantial and
undisputed evidence, the Presiding Judge concludes that at the time of retiering GSN, WE tv, and
Wedding Central were similarly situated networks.
112.
As between GSN and Wedding Central, it may have made sense that Cablevision would
choose GSN for retiering simply because it did not cost Cablevision anything to distribute Wedding
Central broadly. An examination of the record as a whole however reveals no such economic reason for
Tr. at 1631:9-1632:15 (Montemagno testified that DIRECTV’s Derek Chang contacted Rutledge about
overturning the retiering GSN, and Rutledge referred him to Rainbow); see also supra para. 42. GSN argues that
“before implementing its announced [retieiring] decision, Cablevision conditioned GSN’s carriage at its existing
level on DIRECTV agreeing to launch Wedding Central.” GSN Br. at 12 (emphasis added). GSN’s argument is not
supported by the preponderance of record evidence and appears to be based on speculation. For instance, Goldhill
testified that Cablevision’s post-retiering negotiation stance “clearly suggested to me that Cablevision had no
interest in a solution that did not include a trade of carriage involving Wedding Central,” and that “Cablevision’s
desire to advantage its affiliated networks, including to obtain a carriage commitment for Wedding Central from
DIRECTV, is the only explanation for its tiering decision that is consistent with its conduct towards GSN.” Goldhill
Testimony at 10. Yet Goldhill unequivocally testified, which is supported by contemporaneous documentary
evidence, that when DIRECTV executive Chang reached out to Rutledge in an effort to reverse the announced
retiering decision, Rutledge informed Chang that he was unaware of DIRECTV’s ownership of GSN. Tr. at 241:11242:16; see also GSN Exh. 99 (12/14/10 email from Chang to Goldhill and Sony executives in which he states that
he “[s]poke to Rutledge yesterday” and Rutledge said that the decision to retier GSN “wasn’t intentional to piss off
D[IREC]TV or Sony as he wasn’t aware of ownership.”). So it simply does not follow that Cablevision made the
decision to retier GSN with the intent of extracting carriage of Wedding Central by DIRECTV.
503

504

See supra para. 97. See also Martin Testimony at 260-63 and Sapan Testimony at 210-16 (Martin and Sapan
each testified regarding a quid pro quo carriage proposal between Cablevision and Comcast); Montemagno
Testimony at 34 (Montemagno testified that although it is not “a common occurrence for Cablevision,” in his
experience “it is true that vertically integrated MVPDs do, on occasion, make deals involving carriage of affiliated
networks.”).
505

See Eaton v. Indiana Dept. of Corrections, 657 F.3d 551 (7th Cir. 2011). Cf. Amrhein v. Health Care Service
Corp., 546 F.3d 854, 860 (7th Cir. 2008). See also Cordi-Allen v. Conlon, 494 F.3d 245, 255 (1st Cir. 2007) (“the
‘similarly situated’ requirement . . . properly understood, does not demand identicality.”).
506

See WealthTV, 26 FCC Rcd at 8978-79, para. 22.

507

See supra paras. 51-58.

508

See supra paras. 59-68 (GSN, WE tv, and Wedding Central offered women-oriented programming that was
targeted to women 25-54 and women 18-49).
509

See supra paras. 71-77 (two of each network’s top three advertisers were the same).

60

 Federal Communications Commission

FCC 16D-1

choosing to retier GSN instead of WE tv. The only conclusion that can be drawn from the record as a
whole is that if Cablevision’s intent had not been to discriminate against GSN on the basis of its nonaffiliation with Cablevision, then logic dictates that Cablevision probably would have retiered the
similarly situated WE tv.510 GSN has proven by a preponderance of evidence that Cablevision
discriminated against GSN in favor of WE tv, on the basis of non-affiliation, in retiering GSN to the
premium sports tier.
113.
GSN even has proven that WE tv benefitted as a direct result of Cablevision’s
discriminatory retiering conduct. However, GSN has not proven that Cablevision discriminated against
GSN with the intent of favoring WE tv.511 But because GSN already has proven that Cablevision
discriminated against GSN on the basis of GSN’s non-affiliation with Cablevision, there is no
requirement that GSN also prove that Cablevision discriminated on the basis of WE tv’s affiliation with
Cablevision.
114.
Cablevision’s bald contention that “if the networks are not similarly situated, we can
discriminate,” is absolutely wrong.512 Sections 616 of the Act and 76.1301(c) of the Commission’s rules
prohibit Cablevision from discriminating in video programming distribution on the basis of affiliation or
non-affiliation networks, period.513 Neither section 616 of the Act nor section 76.1301(c) of the
Commission’s rules permits Cablevision to discriminate—in the selection, terms, or conditions of
carriage on the basis of affiliation or non-affiliation—if Cablevision could prove that the affiliated and
non-affiliated networks are not similarly situated.514 However such discrimination is actionable only if, as
occurred here, it unreasonably restrains the ability of the non-affiliated network to compete fairly. As is
demonstrated throughout this Initial Decision, the unjustified loss of expanded basic tier distribution on
Cablevision’s systems rendered fair competition unattainable for GSN.
C.

GSN Has Proven that Cablevision’s Discriminatory Conduct Unreasonably
Restrained Its Ability to Compete Fairly

115.
The consequences of Cablevision’s unilateral retiering of GSN were substantially
harmful. As a direct result of Cablevision’s discriminatory retiering conduct, GSN lost access to 96
percent fewer Cablevision subscribers, a significant portion of whom highly valued GSN’s
programming.515 As a direct result of Cablevision’s discriminatory retiering conduct, GSN lost access to
4 percent of its total subscribers.516 As a direct result of Cablevision’s discriminatory retiering conduct,
GSN was deprived of approximately {{
}} in annual licensing revenue.517 As a direct result of
Cablevision’s discriminatory conduct, GSN lost approximately {{
}} in annual advertising
revenue, which represents an annual loss of 3 percent of GSN’s total advertising revenue.518 In addition,
See supra para. 107 (Cablevision’s own expert confirmed that Cablevision would have saved significantly more
in programming costs by retiering WE tv than it achieved from retiering GSN).

510

See supra para. 67 (both GSN and Cablevision expert analyses showed that WE tv’s viewership increased as a
direct result of GSN’s retiering).
511

512

Tr. at 112:23-25.

513

See 47 U.S.C. § 536(a)(3); 47 CFR § 76.1301(c). On its face, neither section 616 of the Act nor section
76.1301(c) of the Commission’s rules permits Cablevision to discriminate against a non-affiliated network, or in
favor of an affiliated network, in the selection, terms, or conditions of carriage, so long as its affiliated network(s) is
not similarly situated to the complaining non-affiliated network.
514

See Tennis Channel, 717 F.3d at 985.

515

See supra paras. 37, 88.

516

See supra para. 89.

517

Supra para. 88.

518

See supra para. 90.

61

 Federal Communications Commission

FCC 16D-1

Cablevision’s discriminatory retiering conduct unfairly and unreasonably restrained GSN’s ability to
compete for viewers in the highly reputed New York DMA, which in turn, unreasonably impaired GSN’s
ability to compete for advertisers.519 Based on the preponderance of substantial and undisputed evidence,
the Presiding Judge concludes that Cablevision’s discriminatory retiering conduct unreasonably and
wrongfully restrained GSN’s ability to compete fairly.
116.
Cablevision argues however that because it “has less than 3% of subscribers in the
national video programming market in which GSN competes,” it is “incapable” of restraining GSN’s
ability to compete fairly.520 Cablevision’s argument is unsupported, erroneous and rejected. As discussed
in paragraph 78 above, Cablevision attempted to justify its discriminatory retiering conduct by pointing
out that its retiering of GSN allowed it to save one-quarter of 1 percent of its {{
}} programming
budget, or more significantly, approximately 3 percent of the {{
}} increase in programming
costs it was facing.521 Yet Cablevision disingenuously argues that GSN was not sufficiently harmed by its
discriminatory retiering conduct even though GSN lost: (1) 4 percent of its total subscribers; (2) 3 percent
of its total annual advertising revenue; and, (3) nearly all of its annual license fee revenue from
Cablevision. Each of these quantifiable losses alone unreasonably restrains GSN’s ability to compete
fairly. Moreover, the unlawful retiering of GSN to an ill-fitting, inappropriate and costlier tier equally
unreasonably restrained GSN’s ability to compete fairly.522 So not only is Cablevision in a more powerful
position to discriminate, the preponderance of record evidence proves that Cablevision’s discriminatory
retiering conduct unreasonably restrained GSN’s ability to compete fairly.
D.

Remedy

117.
In light of the evidence received at hearing, the HDO instructs the Presiding Judge “to
determine whether Cablevision should be required to carry GSN on its cable systems on a specific tier or
to a specific number or percentage of Cablevision subscribers and, if so, the price, terms, and conditions
thereof.”523 The HDO further instructs the Presiding Judge to determine whether Cablevision should be
required to implement such other carriage-related remedial measures as are deemed appropriate.”524
118.
On two occasions, Cablevision considered but rejected a legitimate business option to
unilaterally drop its carriage of GSN.525 As the conclusions of law determined that Cablevision
discriminated against GSN as a non-affiliated network with the effect of unreasonably restraining GSN’s
ability to compete fairly, the related issues presented are on which tier and under what terms Cablevision
must carry GSN; not whether Cablevision must carry GSN at all.526 Because Cablevision has decided to
519

See supra paras. 91-93.

520

Cablevision Br. at 23.

Supra paras. 31-32. See also Bichkam Testimony at 94 (Bickham testified that in Cablevision’s 2011
programming budget continued distribution of GSN on the expanded basic tier represented “three percent . . . [of
the] increase budgeted year over year” and thus was significant “as opposed to [GSN] as a percentage of the t[otal]
cost of programming.”); Dolan Testimony at 217 (Dolan testified that trimming {{
}} from Cablevision’s
{{
}} 2011 programming budget was “certainly a material amount of money”).
521

522

See supra paras. 91-93.

523

27 FCC Rcd at 5136-37, para. 39.

524

Ibid.

525

See supra paras. 30, 34.

Cablevision argues that “GSN’s complaint should also be dismissed for the independent reason that the remedy it
seeks is barred by the First Amendment.” Cablevision Br. at 24 n.82. The Presiding Judge is without authority to
rule on Cablevision’s constitutional argument. See Califano v. Sanders, 430 U.S. 99, 109 (1977) (“Constitutional
questions obviously are unsuited to resolution in administrative hearing procedures . . . .”. See also Petruska v.
Gannon Univ., 462 F.3d 294, 308 (3d Cir. 2006) (“[A]s a general rule, an administrative agency is not competent to
(continued….)
526

62

 Federal Communications Commission

FCC 16D-1

continue to carry GSN, section 616 of the Act and section 73.1301(c) of the Commission’s rules require
Cablevision to carry GSN in a non-discriminatory manner which will allow GSN to compete fairly.
Cablevision’s act of retiering that moved GSN to a premium sports tier violates section 616 of the Act
and section 73.1301(c) of the Commission’s rules because (1) the retiering of GSN on the premium sports
tier was based solely on GSN’s non-affiliation, and (2) the retiering of GSN on the premium sports tier
unreasonably restrains GSN’s ability to compete fairly. Therefore, Cablevision is ordered to cease
engaging in its unlawful discriminatory conduct and restore its carriage of GSN to the expanded basic
tier. Cablevision also must continue paying GSN the existing license rate of {{
}}.
119.
GSN also requests that Cablevision be required to enter into a new carriage agreement
with GSN, and that such agreement provide that Cablevision (1) distribute GSN as broadly as it
distributes WE tv, and (2) pay GSN the same license rate that it pays to WE tv.527 GSN’s request is
denied. Such remedy is not appropriate because it is Cablevision’s carriage of GSN on the premium
sports tier that has been adjudged unlawful, not its carriage of GSN on an at-will basis. In fact,
Cablevision carried GSN at-will for {{
}} prior to the retiering conduct that is the subject of
GSN’s Complaint. This record as a whole does not support requiring Cablevision to enter into a new
carriage agreement. In order to remedy its unlawful retiering, Cablevision must carry GSN on the
expanded basic tier (or the current or future tier that has 90 percent or more penetration) and at the
existing license rate of {{
}}, until such time as the parties enter into a new carriage agreement or for
a period of five years, whichever occurs first.528
120.
The HDO also calls on the Presiding Judge to determine “whether an Order for Forfeiture
shall be issued against Cablevision.”529 Cablevision is subject to a forfeiture penalty of $37,000 for each
day of a continuing violation like its discriminatory retiering conduct, but not to “exceed a total of
$400,000.”530 Based on the “nature, circumstances, extent, and gravity of the violations and, with respect
(Continued from previous page)
determine constitutional issues.”); Spiegel, Inc. v. FTC, 540 F.2d 287, 294 (7th Cir. 1976) (“Generally, federal
administrative agencies are without power or expertise to pass upon the constitutionality of administrative . . .
action.”). But see Meredith Corp. v. FCC, 809 F.2d 863, 874 (D.C. Cir. 1987) (the court remanded a constitutional
argument to the Commission to analyze and decide). In addition, under the HDO, this case is limited to whether
Cablevision has engaged in discriminatory conduct with the effect of unreasonably restraining GSN’s ability to
compete fairly as proscribed by section 616 of the Act and section 76.1301(c) of the Commission’s rules, and if so,
the remedy that should be prescribed to address Cablevision’s unlawful conduct. 27 FCC Rcd 5136-37, para. 39.
527

Complaint at 32, para. 65. At hearing, Montemagno testified that Cablevision currently pays WE tv a license fee
of {{
}}, and will pay WE tv {{
}} per subscriber per month in 2017. Tr. at 1646:19-24.
Although the parties’ previous negotiations for a new carriage agreement reached an impasse in 2009 due to
Cablevision’s insistence on the inclusion of {{
}} MFN clause (see supra para. 22-24), the
Presiding Judge notes that in 2011, Cablevision entered into a new carriage agreement with WE tv that {{
}} but in which Cablevision agreed to pay license rates that were {{
}} to the
license rates in its previous contracts with {{
}} which, at least between 2005 through 2010, had {{
}}. Tr. at 1649:15-1650:8 (Montemagno testified that around February 2011, Cablevision entered into a
new carriage agreement with {{
}} at the “{{
}}” it had paid under the prior agreement
which included an {{
}}). The Presiding Judge also notes that Cablevision’s own witness testified that
“
}}” and that the {{
}} was {{
}} carriage
agreement even though Cablevision had never {{
}}. See
Martin Testimony at 253, Tr. at 1649:15-1650:8; see also supra note 498.
528

529

27 FCC Rcd at 5137-38, para. 44. Section 503(b)(1)(B) of the Act and section 1.80(a)(2) of the Commission’s
rules authorize the assessment of a forfeiture where, as has occurred in this case, a person is found to have “willfully
or repeatedly failed to comply” with a provision of the Act or the Commission’s rules. 47 U.S.C. § 503(b)(1)(B); 47
CFR § 1.80(a)(2).
530

47 CFR § 1.80(b)(1). GSN recommends that the Presiding Judge order Cablevision to pay a forfeiture in the
amount of $400,000, the maximum penalty allowed. GSN Br. at 25; see also Game Show Network, LLC v.
(continued….)

63

 Federal Communications Commission

FCC 16D-1

to the violator, . . . , ability to pay, and such other matters as justice may require,”531 the Presiding Judge
concludes that imposition of the maximum forfeiture of $400,000 is warranted in this case. By retiering
GSN in 2011 to its premium sports tier, Cablevision “willfully or repeatedly failed to comply” with
section 616 of the Act and section 76.1301(c) of the Commission’s rules because Cablevision retiered
GSN on the basis of non-affiliation. Such discriminatory conduct continues to the present day and
unreasonably restrains GSN’s ability to compete fairly. In fact, Cablevision has unreasonably restrained
GSN’s ability to compete fairly since 2011, a period that is more than five years and still running.
Cablevision has presented no argument or specific facts or circumstances to demonstrate that a lesser
monetary forfeiture would be appropriate in this case.532 Cablevision clearly is able to pay the maximum
monetary forfeiture of $400,000, a small portion of the approximately {{
}} Cablevision has
reaped thus far from its discriminatory conduct in violation of section 616 of the Act and section
76.1301(c) of the Commission’s rules.533 Under these circumstances, assessment of the maximum
forfeiture against Cablevision manifestly is appropriate and is in the public interest.
IV.

ULTIMATE CONCLUSIONS AND DECISION

121.
Based on the foregoing findings of facts and conclusions of law, it is held that GSN has
satisfied its burden of proving by a preponderance of evidence that Cablevision engaged in discrimination
in the selection, terms, or conditions of carriage on the basis of GSN’s non-affiliation with Cablevision.
122.
Based on the foregoing findings of fact and conclusions of law, it is further held that
GSN has satisfied its burden of proving by a preponderance of evidence that Cablevision unreasonably
restrained GSN’s ability to compete fairly.
123.
Accordingly, in light of the ultimate conclusions and holdings reached above, IT IS
DECIDED AND ADJUDICATED that Cablevision is continuously in violation of section 616(a) of the
Act and section 76.1301(c) of the Commission’s rules.
V.

ORDER

124.
IT IS ORDERED that pursuant to section 503 of the Communications Act of 1934, as
amended, Cablevision is ORDERED TO PAY TO THE UNITED STATES GOVERNMENT A
(Continued from previous page)
Cablevision Systems Corp., Proposed Findings of Fact and Conclusions of Law of Game Show Network, LLC (filed
Sept. 11, 2015) at 73.
531

See 47 U.S.C. § 503(b)(2)(E); 47 CFR § 1.80(b)(8).

The Presiding Judge notes that shortly after GSN’s unlawful retiering, Rutledge and Bichkam left Cablevision.
Supra notes 54 and 56. In relation to their departures, Dolan testified that Cablevision “{{
532

}}.” Dolan
Testimony at 211-12. Montemagno replaced both Bickham and Rutledge, and he reported directly to Dolan. Id. at
212. Dolan further testified that with Montemagno in charge “{{
}}.” Ibid. But after GSN was unlawfully retiered to
the premium sports tier at behest of Bickham and Rutledge in 2011, as Montemagno testified, there was nothing that
prevented Cablevision from returning GSN to the expanded basic tier in 2012, 2013, 2014, or 2015—Cablevision
simply chose to continue to carry GSN in a discriminatory manner. See Tr. at 1580:8-1581:13. See also id. at
1584:13-1585:18 (Montemagno testified that at the time of retiering, Cablevision’s net income (or profit) was $575
million and that Cablevision’s “current” profit was $813 million).
See supra note 412 (by unlawfully retiering GSN, Cablevision reduced its annual cost to distribute GSN’s
programming from {{
}} to less than {{
}}, or by {{
}} over 5 years). Four hundred
thousand dollars is the statutory maximum for such misconduct, as federal communications laws do not allow for
punitive forfeitures.

533

64

 Federal Communications Commission

FCC 16D-1

MONETARY FORFEITURE in the amount of $400,000.
125.
IT IS FURTHER ORDERED that Cablevision is prohibited from discriminating against
GSN in the terms and condition of its video programming distribution.
126.
IT IS FINALLY ORDERED that Cablevision must proceed as soon as practicable with
remediation as determined and forfeiture payment as required by paragraphs 118 through 120 above.534

FEDERAL COMMUNICATIONS COMMISSION

Richard L. Sippel*
Chief Administrative Law Judge

534

This Initial Decision shall become effective and this proceeding shall be terminated 50 days after its release if
exceptions are not filed within 30 days thereafter, unless the Commission elects to review the case on its own
motion. 47 CFR § 1.276.

*Pamela L. Smith, Esq., on loan from the Office of General Counsel, has provided advice, analysis, and multiple
drafts in crafting this Initial Decision.

65

  SHOW NETWORK, LLC V. CABLEVISION SYSTEMS CORPORATION
MB DOCKET NO. 12-122. FILE NO. CSR-8529-P

JOINT GLOSSARY

 

Term

De?nition

 

Ad Avails (or Advertising
Availabilities)

Advertising units dining the of a network
(usually 2-3 minutes per hour) that are made available for an
MVPD to sell pru'suant to the af?liation agreement between
the parties. The network reserves the remaining advertising
time for itself to sell to advertisers.

 

ADU (or Audience
De?ciency Unit)

Units of commercial advertising inventory made available to
advertisers as ful?lhnent for the inventory the advertisers
piu?chased that ran in programs that wider-delivered on
contracted audience demographic ratings.

 

Affiliated

A network is ?af?liated? with an MVPD if either entity holds
an interest in the other, or if a third party holds an interest in
both entities, that is an ?attributable interest? as defmed by
Section 616 of the Act of 1934, as amended,
and its implementing regulations.

 

Affiliation Agreement

A contract used to license a programming network to an
MVPD for distribution to the retail subscribers.

 

AMC Networks, Inc.

A publicly-traded company that owns and operates several
national programming networks, including AMC, WE tv, IFC,
and Srmdance Channel, as well as international programming
networks. AMC Networks Inc. was incorporated on March 9,
2011 as an indirect, wholly-owned subsidiary of ablevision.
It subsequently acquired 100% of the limited liability company
interests in Rainbow Media Holdings, LLC. AMC Networks,
Inc. became a public company on J1me 30, 2011.

 

Bresnan Broadband
Holdings, LLC

A cable distributor serving subscribers in Montana, Wyoming,
Colorado, and Utah that was acquired by ablevision in
December 2010. ablevision operated Bresnan Broadband
Holdings using the ?Optimum? brand name rmtil July 1, 2013,
when ablevision sold its Bresnan Broadband Holdings
operations to Charter ommrmications, another MVPD.

 

Broadcast Basic

See Tier.

 

A measm'e of the commercials watched both live and for three
days of DVR and Video-on-demand playback and the metric

 

 

 

C3 Data rmder which much of primetime advertising is bought and
sold.
Cablevision See Cablevision Svslems Corp.

 

 

Cablevision Systems Corp.

CAB
Carriage Agreement
Consumer Price Index
(“CPI”)
Coverage Area
Coverage Area Rating
CPM
Demographics
DBS
Direct Response Advertising
DMA
Expanded Basic
Family Cable
Forced Tuning
Game Show Network
(“GSN”)
General Rate Advertising
HH
iO Sports Pak

The defendant in this proceeding. Through its subsidiary, CSC
Holdings, LLC, Cablevision operates a number of cable
systems in and around the New York metropolitan area.
Cablevision had an ownership interest in national and
international programming networks through its wholly-owned
subsidiary Rainbow Media Holdings, LLC, until AMC
Networks Inc. acquired those interests and became an
independent public company on June 30, 2011. Cablevision is
a “multichannel video programming distributor” as defined in
Section 76.1300(d) of the Commission’s rules.
The Cable Advertising Bureau, a trade organization
established to provide promotional, sales, and advisory
services to the cable industry. In May 2015, the CAB changed
its name to the Video Advertising Bureau.
See Affiliation Agreement.
Some carriage agreements provide for license fees to increase
by the CPI, which is typically less than 3% a year.
When used in connection with a programming network, the
number of homes that receive the programming network.
The estimate of the size of the audience relative to the total
number of homes or people that can receive this programming
network.
The cost of advertising per thousand potential customers
reached by a given broadcast advertisement.
The component parts of a network’s audience, based on
various characteristics such as age, gender, income, or
education level.
Direct Broadcast Satellite. Examples of DBS operators include
DIRECTV and DISH Network (also known as EchoStar).
Advertising that is sold by a network but does not include
guaranteed delivery of a certain demographic.
Designated Market Area; a geographical designation of a
media market created by Nielsen Media Research.
See Tier.
See Tier.
Setting a “default” tune for digital cable set-top boxes, which
will determine which programming network appears when a
cable box is switched on.
A cable television network launched in 1994 and, since at least
November 2009, jointly owned by DIRECTV and Sony
Pictures Television. Game Show Network is the complainant
in this case.
Advertising that is sold by a network and includes guaranteed
delivery of a certain demographic.
Household.
See Tier.
-2-

 iO Sports & Entertainment
Pak
L3 Data

License Fee

MRI

MFN

MSO

MVPD

Nielsen Local Market Rating

Nielsen National Rating
Nielsen Station Index
(“NSI”)
Nielsen Television Index
(“NTI”)
Penetration

See Tier.
Nielsen data measuring live viewing of a television program
plus three days of DVR or video-on-demand playback
viewing.
The fee that an entity pays for the right to distribute
programming. In the context of a relationship between a
network and an MVPD, the license fee is typically expressed
as an amount of money per subscriber per month. These are
also sometimes referred to as “affiliate fees” or “carriage fees.”
Mediamark Research and Intelligence, a company that
conducts an annual “Survey of the American Consumer”
measuring media usage, demographics, and consumer
behavior.
Abbreviation for “Most Favored Nations.” A provision in
affiliation agreements granting a distributor the right to be
offered any more favorable rates, terms, and/or conditions
subsequently offered or granted by a programming network to
another distributor.
Multiple System Operator; a cable operator that operates
multiple cable systems.
Multichannel Video Programming Distributor; a distributor
that delivers more than one channel of video programming to
subscribers, as defined in 47 C.F.R. 76.1300(d). There are
various types of MVPDs, including MSOs and other cable
operators; DBS operators; and telephone company (telco)
video providers.
Total market rating published by Nielsen for a specific local
market, as defined by Nielsen. There are two separate Nielsen
systems that produce this local market data: the Nielsen
Television Index (“NTI”) and the Nielsen Station Index
(“NSI”).
Total market rating or coverage area rating published by
Nielsen for the Nielsen national market.
Market data collected and published by Nielsen to provide
local ratings. It is a component of the Nielsen Local Market
Rating.
Market data collected and published by Nielsen to provide
local ratings in certain large markets. It is a component of the
Nielsen Local Market Rating.
A network’s “penetration” is a percentage reflecting the
proportion of a particular MVPD’s video subscribers that
receive a particular network.

-3-

 People Meter

Programming Network
Rainbow Media Holdings,
LLC
Rate Card
Reach
Retransmission Consent Fee
Scatter Advertising
Set-Top Box Data
Service Description
Subscriber (also known as a
“Sub”)
Telco

An electronic device used by Nielsen Media Research to
measure nationwide audiences. The device is attached to a TV
set to measure tuning status (set on/off, channel, time, and
duration of tuning) as well as demographic data. Household
members and their guests push buttons to identify themselves.
A type of “video programming vendor,” as defined in 47
C.F.R. 76.1300(e).
Formerly a wholly-owned subsidiary of Cablevision that, until
it was acquired by AMC Networks, Inc., owned and operated
several national programming networks, including AMC, WE
tv, IFC, Sundance Channel, and Wedding Central, as well as
international programming networks.
The set of license fee rates offered by a programmer to an
MVPD.
The number of individuals or households that watch a network
at least once during a given time period. Also referred to as
“Cumulative Audience.”
A fee paid by an MVPD to a broadcast network for permission
to retransmit the network’s signal to the MVPD’s customers.
Advertising sold outside of the upfront period with a
guaranteed specific demographic.
Data collected digitally by MVPDs from subscribers’ set-top
cable boxes.
A contractual term in an affiliation agreement defining the type
of content the network will provide to the MVPD in return for
payment of a license fee.
A customer of an MVPD.
Telephone Company. Refers to telephone companies, such as
Verizon and AT&T, that provide multichannel video service
and that, therefore, are MVPDs.

-4-

 A package of programming networks on an MVPD’s system
that are sold as a unit.
As of February 2011, Cablevision’s tiers included, among
others:
•

Broadcast Basic: The most broadly penetrated tier of
programming, available to all of Cablevision’s
customers, which consists generally of broadcast
networks.

•

iO Family Cable a/k/a Expanded Basic: The secondmost highly-penetrated level of service received by
Cablevision’s subscribers.

•

iO Sports & Entertainment Pak: A tier of additional
programming networks available to Cablevision
subscribers at an additional price. Prior to February
2011, the tier was named “iO Sports Pak.”

Tier

Upfront Advertising

Viewers Per Viewing
Household (“VPVH”)

WE tv

Wedding Central

The buying of national, demographic-guaranteed television
advertising time for a full broadcast year (generally September
through August) via one negotiation. Upfront buying usually
requires representation throughout all four quarters; allows
cancellation options in the last six months of a buy and
generally allows audience guarantees to advertisers.
Estimated number of viewers, usually classified by age and
sex, comprising the audience within those households viewing
a given station or program or using television during a
particular time period.
A cable television network launched in 1997 as “Romance
Classics” and later rebranded as “WE: Women’s
Entertainment” and then “WE tv.” It is operated by AMC
Networks, Inc. (formerly by Rainbow Media Holdings) and is
an affiliate of Cablevision.
A cable television network launched in August 2009 featuring
wedding-related programming. It was operated by Rainbow
Media Holdings and was an affiliate of Cablevision until it was
shut down in June 2011.

-5-