Petition for Writ of Certiorari — Cablevision Systems Corp. v. Federal Communications Commission

Supsame Court, US.

FILED

No. 09-__) g -9 9 1 IAN 27 2010

OFFICE OF THE CLERK

IN THE *anItam K. Suter. Clerk

Supreme Court of the Gnited States

CABLEVISION SYSTEMS CORPORATION,

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

JEFFREY A. LAMKEN HENK BRANDS

MOLOLAMKEN LLP Counsel of Record

600 New Hampshire PAUL, WEISS, RIFKIND,

Avenue, NW WHARTON & GARRISON LLP

Washington, D.C. 20037 2001 K Street, NW

(202) 556-2000 Washington, D.C. 20006

(202) 223-7300

Counsel for Petitioner

(Additional Counsel Listed on Inside Cover)

Se ee

HOWARD J. SYMONS

TARA M. CORVO

MINTZ, LEVIN, COHN,

FERRIS, GLOVSKY AND POPEO, P.C.

701 Pennsylvania Ave., NW

Washington, D.C. 20004

(202) 434-7300

QUESTIONS PRESENTED

Section 614 of the Communications Act, 47 U.S.C.

§ 534, compels cable systems to carry the program-

ming of broadcast television stations — even if doing

so is contrary to their editorial judgment and dis-

places programming that their customers prefer.

This Court nonetheless upheld that statute (often

called the “must carry” statute) against a facial

First Amendment challenge in Turner Broadcasting

System, Inc. v. FCC, 512 U.S. 622 (1994) (“Turner

I’), and Turner Broadcasting System, Inc. v. FCC,

520 U.S. 180 (1997) (“Turner II”). The Court held

that, for purposes of a facial challenge, the statute

was sufficiently tailored to the congressional objec-

tive of ensuring the continued availability of over-

the-air broadcast signals for viewing by households

not subscribing to cable. That conclusion crucially

relied on several important findings about the in-

dustry, including that cable operators possessed

market power. The questions presented in this case

are:

i. Whether the imposition of must-carry obliga-

tions is consistent with the Constitution now that

the facts undergirding the Turner decisions have

evaporated with the emergence of vibrant competi-

tion and other dramatic market and technological

changes.

2. Whether a cable operator may constitutionally

be compelled to carry the programming of a broad-

cast station when, in addition to the industry

changes noted above, the station lacks an over-the-

air audience in the area in which the station is seek-

ing carriage, the broadcast station’s traditional over-

the-air market is well outside of that area, the sta-

Qi)

tion does not need cable carriage to remain viable,

the cable operator has declined carriage for legiti-

mate editorial reasons, the cable operator is subject

to unusually robust competition, and the carriage

mandate is based in part on the content of the sta-

tion’s programming.

3. Whether the order of the Federal Communica-

tions Commission in this case can be sustained

where it ruled (without meaningful explanation)

that compelled carriage is consistent with the statu-

tory requirement that carriage be ordered only

where it “better effectuate[s] the [statute’s] pur-

poses” and promotes “the value of localism.” 47

U.S.C. § 534(h)(1)(C).

(ii)

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

In the court of appeals, Cablevision Systems Cor-

poration was the only petitioner. The respondents

were the Federal Communications Commission and

the United States of America. WRNN License Co.,

LLC, was an intervenor in support of respondents.

The National Association of Broadcasters was an

amicus curiae in support of respondents.

Cablevision Systems Corporation is a publicly

traded company. It has no parent corporation.

T. Rowe Price Group, Inc., owns 10% or more of Ca-

blevision Systems Corporation’s Class A common

stock.

(11)

TABLE OF CONTENTS

Page:

QUESTIONS PRESENTED........... i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATE-

Renta Pa eee aera a re ili

TABLE OF CONTENTS ............. iv

TABLE OF AUTHORITIES........... vii

jigs 8 84 hy yo | a rr re 1

OPINION AND ORDERS BELOW...... 3

Pe yy S| rer 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED......... 3

2. ERE ee Cr 3

I. Statutory and Regulatory Back-

er os ete ey ek ee we 3

A. The Must-Carry Statute........ 3

B. The Turner Challenge ......... 6

II. Proceedings ii Tide Cee... es 9

A. The FCC’s Decisions........... 9

B. The Decision of the Court of Ap-

ee a ee 12

REASONS FOR GRANTING THE PETI-

MN ad 9-5 a awe a ee ee 15

(iv)

IT.

ITT.

THIS COURT SHOULD DECIDE

WHETHER THE CONSTITUTION

PERMITS MUST-CARRY OBLIGA-

TIONS TO BE IMPOSED UNDER

CURRENT CONDITIONS.........

A. Turner’s Factual Underpinnings

Have Evaporated.............

B. Whether Imposition of Must-

Carry Obligations Remains Con-

sistent with the Constitution

Should Be Decided Now. .......

THIS COURT SHOULD DECIDE

WHETHER, CONSISTENT WITH

THE CONSTITUTION, CABLEVI-

SION’S LONG ISLAND CABLE

SYSTEMS MAY BE COMPELLED

pyeoe 4s @) |. |. Rr

A. Compelled Carriage of WRNN

Here Cannot Be Predicated on

Turner’s Rationale............

B. The FCC Order Under Review

Should Be Subject to Strict Scru-

ere er rane eh a de ea 8: 8

THIS COURT SHOULD DECIDE

WHETHER COMPELLED CAR-

RIAGE OF WRNN IS CONSISTENT

WITH THE MUST-CARRY STAT-

are ices Gia i rr

(v)

16

17

22

25

29

32

34

APPENDICES

A.

B.

C.

Opinion of the Court of Appeals .. .

Memorandum Opinion and Order

of the FCC’s Media Bureau.......

Memorandum Opinion and Order

ee ses ce oe ee ee

Order of the Court of Appeals

granting petitioner’s motion for a

stay of the mandate............

Order of the Court of Appeals deny-

ing petitioner’s petition for rehear-

ing and rehearingen banc .......

Statutory provisions............

(vi)

la

27a

47a

69a

70a

72a

TABLE OF AUTHORITIES

CASES

A-R Cable Servs. — Me., Inc. v. FCC,

Civ. No. 95-134, 1995 WL 283861 (D.

Me. May 10, 1995)...............

Cablevision Systems Corp. v. FCC, 570

F.3d S3 (2d Cir. 2008)... ccc eees

Citizens United v. FEC, No. 08-205, ship

op. (U.S. Jan. 21, 2010) ...........

Comcast Corp. v. FCC, 579 F.3d 1 (D.C.

CS i 5 ke oe a ae a ee

Conkright v. Frommert, 129 S. Ct. 1861

er a ae ek kaise

Cutter v. Wilkinson, 544 U.S, 709

a a ae ere

Hill v. Colorado, 530 U.S. 703 (2000) ....

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982) ....

Lorillard Tobacco Co. v. Reilly, 533 U.S.

rey eae ae aa es hs eo

Midwest Video Corp. v. FCC, 571 F.2d

1025 (8th Cir. 1978), affd, 440 U.S.

EE ares ate a ee ib nna:

Minneapolis Star & Tribune Co. v. Min-

nesota Comm’r of Revenue, 460 U.S.

I rare aes re ee

Sabri v. United States, 541 U.S. 600

EE ar cle era ett at a a

Page:

15

24

30

16

Turner Broad. Sys., Inc. v. FCC, 512 U.S.

ee Cs gest tees passim

Turner Broad. Sys., Inc. v. FCC, 520 U.S.

1G Cec ecco passim

Turner Broad. Sys., Inc. v. FCC, 819

F. Supp. 32 (D.D.C, 1993). ......... 6, 24

United States v. Carolene Prods. Co., 304

UD. ROR Ge as bins cece cece 2, 23

Washington State Grange v. Washington

State Republican Party, 128 S. Ct.

Be ee 16

STATUTES AND RULES

5 U.S.C. Se ee kb ee eee ee 34

28 U.B.C, SR aie ee cee cee ee 3

28 U.S.C. Bm ee ec cc ct tte we 12

47 UBS, Bae es cece ee. 24

47 UG .GL, Be en cc 1,3

47 UBM. Bere ec ces 3, 5

47 U.B.C, GE ww ec cet tcc eee 5, 21

47 U.B.C. De ee eee ccs 5, 21

47 U.B Al, Be ies cc eee ees 10

47 U.S.C. § 534(AMIMA).............. 3,5

47 U.S.C. § 5384(hM1MC)... 2... 2 ee. passim

47 U.S.C. § 534(h) 1 (CMI)... 2 10, 32

47 U.S.C. § 5384(h)(1M(O)GI). .. 2 29, 32

47 UBC ie ss ccc eee 3

OT UBD. GMD occ cc vec c ev evees ”

ee ee fo ere

47 UB... ORAL) occ cesavvverees

Cable Television Consumer Protection

and Competition Act of 1992, Pub. L.

No. 102-385, 106 Stat. 1460, § 2(a)(2) .

Cable Television Consumer Protection

and Competition Act of 1992, Pub. L.

No. 102-385, 106 Stat. 1460,

- | re on rr

Cable Television Consumer Protection

and Competition Act of 1992, Pub. L.

No. 102-385, 106 Stat. 1460,

ee oe ae ee ee a

Cable Television Consumer Protection

and Competition Act of 1992, Pub. L.

No. 102-385, 106 Stat. 1460,

2. es ree

Cable Television Consumer Protection

and Competition Act of 1992, Pub. L.

No. 102-385, 106 Stat. 1460,

Se. os a cakes eee eee as

Cable Television Consumer Protection

and Competition Act of 1992, Pub. L.

No. 102-385, 106 Stat. 1460,

ee... ee ee eee

ADMINISTRATIVE DECISIONS

Broadcast Localism, Report on Broad-

cast Localism and Notice of Proposed

(ix)

Rulemaking, 23 FCC Red 1324

RR CRA aaa at ey nr gr een 33

Cable Horizontal and Vertical Ownership

Limits, Fourth Report & Order and

Further Notice of Proposed Rulemak-

ing, 23 FCC Red 2134 (2008), vacated

on other grounds, Comcast Corp. v.

FCC, 579 F.3d 1(D.C. Cir. 2009) .... 5, 21

Carriage of the Transmissions of Digital

Television Broad. Stations, Notice of

Proposed Rulemaking, 13 FCC Red

SE oo, os a ae ee ws 19

Harron Cablevision of Mass. d/b/a Har-

ron Commce’ns Corp., Memorandum

Opinion and Order, 18 FCC Red

aa arm Ch yas 30.

Implementation of Section 4(g) of the Ca-

ble Television Consumer Prot. and

Competition Act of 1992: Home

Shopping Station Issues, Report and

Order, 8 FCC Red 5321 (1993) ...... 10

Mid-State Television, Inc., Memorandum

Opinion and Order, 16 FCC Red 5525

ects o atrarere ce eee tae ee 30

(x)

Petition of Cablevision Sys. Corp.,

Memorandum Opinion and Order, 11

FCC Red 6453 (CSB 1996), affd,

Market Modifications and the New

York Area of Dominant Influence,

Memorandum Opinion and Order, 12

FCC Red 12262 (1997), affd, WLNY-

TV, Inc. v. FCC, 163 F.3d 137 (2d

RN free oy gates Bin ia 11

Petition of WRNN License Company,

LLC, 22 FCC Red 21054 (2007)... ... passim

WRNN License Company, LLC, 21 FCC

Red 5952 (MB 2006).............. passim

WRNN.-TV Assocs., 19 FCC Red 12343

I oi ns ys 5 0 oak ok a es 25

Tennessee Broad. Partners, Memoran-

dum Opinion and Order, 23 FCC Red

I ggg aerate yr ars a pa erat é 30

MISCELLANEOUS

John Eggerton, Broadcasters Defend

Spectrum From Reclamation Propos-

als, Multichannel News (Oct. 26,

a ace eae ae ra ea alee oe 20

Nielsen Wire, The Switch from Analog to

Digital TV (Nov. 2, 2009).......... 20

R. Matthew Warner, Reassessing Turner

and Litigating the Must-Carry Law

Beyond a Facial Challenge, 60 Fed.

Comm. L.J. 369 (2008) ............ 19

(xi)

Stuart Minor Benjamin, Roasting the Pig

To Burn Down the House: A Modest

Proposal, 7 J. on Telecomms. & High

ROGH. £5. DO GIOUS) 2 ce wees 20

Sup. Ct. R.10(c)................00-. 29

INTRODUCTION

Enacted in 1992, the “must carry” statute, 47

U.S.C. § 534, requires operators of cable television

systems to carry and transmit the programming of

local television broadcast stations. The statute re-

quires them to do so even when such carriage over-

rides cable operators’ editorial judgment and dis-

places programming their customers prefer. This

Court nonetheless upheld the must-carry statute

against a facial First Amendment attack (albeit by

the slimmest of margins) in Turner Broadcasting

System, Inc. v. FCC, 512 U.S. 622 (1994) (“Turner

I’), and Turner Broadcasting System, Inc. v. FCC,

520 U.S. 180 (1997) (“Turner II”).

Since then, however, the factual underpinnings of

those decisions have evaporated. Most importantly,

the monopolistic nature of the cable industry that

was key to this Court’s Turner decisions has been

replaced by vibrant competition. In Turner I, the

Court ruled that “[t}he must-carry provisions... are

justified by ... the bottleneck monopoly power exer-

cised by cable operators and the dangers this power

poses to the viability of broadcast television.”

Turner I, 512 U.S. at 661. But, as the D.C. Circuit

recently determined, cable operators today “no

longer have the bottleneck power over programming

that concerned the Congress in 1992.” Comcast

Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009).

Despite that change and a host of other important

market and technological developments that gut

Turner’s rationale, the FCC (with the Second Cir-

cuit’s approval) not only enforced the must-carry

statute here, but expanded its application to a new

context that cannot be reconciled with Turner’s ana-

2

lysis. In particular, the FCC forced Cablevision to

carry the signal of WRNN, a distant home-shopping

station with no over-the-air viewership, on its Long

Island cable systems. The FCC did so despite Ca-

blevision’s determination, in the exercise of its edi-

torial discretion, that the programming of WRNN

was not of interest to Cablevision’s audience and

that carrying the station would require Cablevision

to displace programming that Cablevision’s custom-

ers prefer over WRNN’s programming.

Neither the must-carry statute nor its application

to these circumstances can be sustained. “[T]he con-

stitutionality of a statute predicated upon the exis-

tence of a particular state of facts may be challenged

by showing ... that those facts have ceased to ex-

ist.” United States v. Carolene Prods. Co., 304 U.S.

144, 153 (1938); see also Cutter v. Wilkinson, 544

U.S. 709, 726 (2005) (decision of this Court uphold-

ing a statute against a facial challenge does not con-

stitute precedent barring later “as-applied chal-

lenges”). The factual foundations for the govern-

mental override of editorial judgment contemplated

by the must-carry regime have disappeared. And

those foundations never could have supported the

application here in any event.

The time has therefore come for this Court to re-

visit this area to determine whether the must-carry

regime continues to be consistent with the Constitu-

tion. The continuing validity of that intrusion on

constitutionally protected interests and the permis-

sibility of expanding its application to new contexts

present precisely the kind of important constitu-

tional issues that should constitute the core of this

Court’s docket. For these and additional reasons

stated below, review should be granted.

3

OPINION AND ORDERS BELOW

The opinion of the court of appeals (Pet. App. 1la-

26a) is reported at 570 F.3d 83. The FCC’s order

(Pet. App. 47a-68a) is reported at 22 FCC Rcd

21054. The order of the FCC’s Media Bureau (Pet.

App. 27a-46a) is reported at 21 FCC Red 5952.

JURISDICTION

The court of appeals entered, its judgment on

June 22, 2009. Pet. App. la. The court of appeals

denied a petition for rehearing and rehearing en

banc on October 29, 2009. Pet. App. 70a. This

Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Con-

stitution provides in relevant part: “Congress shall

make no law ... abridging the freedom of speech, or

of the press....” The Fifth Amendment to the

United States Constitution provides in relevant

part: “[Nlor shall private property be taken for pub-

lic use, without just compensation.” Portions of

relevant provisions of the Communications Act of

1934, 47 U.S.C. §$§ 534, 535, are reprinted at Pet.

App. 72a-96a.

STATEMENT

I. Statutory and Regulatory Background.

A. The Must-Carry Statute.

Enacted in 1992, the must-carry statute, 47

U.S.C. § 534, requires cable systems to retransmit

the signals of all “local” commercial television

broadcast stations. Id. § 534(a), (h)(1)(A); see also

4

47 U.S.C. § 535(a), (1) (creating an analogous car-

riage regime with respect to noncommercial educa-

tional stations). It requires a cable operator to do so

even when, in its editorial discretion, it would

choose not to carry the station, and even when car-

rying the broadcast station means that the cable op-

erator must drop or reposition a non-broadcast ser-

vice that it believes is of more interest to its sub-

scribers.

Congress enacted the must-carry statute out of

concern that cable posed a threat to broadcast tele-

vision, and thus to the availability of video signals

for households that do not subscribe to cable. “A

primary objective and benefit of our Nation’s system

of regulation of television broadcasting is the local

origination of programming,” Congress declared.

Cable Television Consumer Protection and Competi-

tion Act of 1992 (“1992 Cable Act”), Pub. L. No. 102-

385, 106 Stat. 1460, § 2(a)(10). In “the absence of a

requirement that [cable] systems carry local broad-

cast signals,” it concluded, the “economic viability of

free local broadcast television and its ability to

originate quality local programming will be seri-

ously jeopardized.” Jd. § 2(a)(16).

Congress’s concern rested on an intricate chain of

reasoning. Congress believed that cable operators

had an economic incentive to exclude broadcast sta-

tions from their channel line-up, lest they compete

for local advertising. See id. § 2(a)(15). Ordinarily,

competitive forces should prevent cable operators

from acting on that incentive: a cable operator that

drops a local television station with popular pro-

gramming would lose customers to other providers.

But Congress concluded that cable operators gener-

ally faced no multichannel competition and were

5

therefore free to act on the incentive without having

to fear losing subscribers. See id. § 2(a)(2). Con-

gress further determined that television viewers

generally stop watching off-air television after sub-

scribing to cable. See id. § 2(a)(17). Dropped sta-

tions, Congress believed, would therefore lose part

of their audience, possibly bankrupting them. See

id. § 2(a)(16). The end result, Congress feared,

would be that consumers unable to afford cable

would be left with fewer over-the-air stations to

watch. See id. § 2(a)(12).

To address this concern, Congress enacted a stat-

ute to entitle stations to guaranteed cable carriage

in their entire “market.” 47 U.S.C. § 534(a),

(h)(1)(A). Under FCC rules implementing that stat-

ute, markets comprise metropolitan areas and their

surroundings. See Pet. App. 3a. For example, the

New York City market at issue in this case stretches

from the Catskills to near Atlantic City, and from

the Poconos to Montauk. See id.

Local broadcast stations are entitled not merely

to carriage in the entire geographic market, but to

carriage on their over-the-air channel and on the

cable system’s service tier that reaches each of the

system’s subscribers. See 47 U.S.C. § 534(b)(6)-(7).

Thus, broadcasters are automatically entitled to

carriage on the most desirable part of the cable

channel line-up — the part on which programmers

prefer to be carried.

| See Cable Horizontal and Vertical Ownership Limits,

Fourth Report & Order and Further Notice of Proposed Rule-

making, 23 FCC Red 2134, 458 (2008), vacated on other

grounds, Comcast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009).

6

B. The Turner Challenge.

In the immediate wake of the statute’s enact-

ment, cable operators and programmers brought a

facial First Amendment challenge. The district

court, however, granted summary judgment against

them: it held that the must-carry statute did not

trigger strict scrutiny, and that the statute could

survive intermediate scrutiny. See Turner Broad.

Sys., Inc. v. FCC, 819 F. Supp. 32 (D.D.C. 1993)

(three-judge court).?

On review, a five-Justice majority of this Court

agreed that Congress’s rationale did not trigger

strict scrutiny. According to the majority opinion,

the must-carry statute “impose[d] burdens and con-

fer{red] benefits without reference to the content of

speech.” Turner I, 512 U.S. at 643. “Congress’ over-

riding objective in enacting must-carry,” the Court

stated, was not to favor programming of a particular

subject matter, viewpoint, or format, but rather to

preserve access to free television programming for

the 40 percent of Americans without cable.” Jd. at

646.

In rejecting calis for strict scrutiny, the Court

deemed it crucial that, at that point in time, cable

operators lacked competition from other providers of

2 The Turner plaintiffs brought their facial challenge in a

three-judge district court pursuant to a provision making that

forum available in a “civil action challenging the constitution-

ality of [the must-carry statute].” 47 U.S.C. § 555(c)(1). By

contrast, Cablevision has invoked the Constitution as a de-

fense in an FCC enforcement proceeding and has appealed

pursuant to the Hobbs Act, which provides the exclusive

mechanism for obtaining review of an FCC order. See A-R Ca-

ble Servs. — Me., Inc. v. FCC, Civ. No. 95-134, 1995 WL

283861, at *5 (D. Me. May 10, 1995).

7

multichannel video service. For example, the Court

held that cable operators could not benefit from the

principle that laws singling out particular speakers

trigger strict scrutiny. According to the Court, must

carry was “justified by ... the bottleneck monopoly

power exercised by cable operators and the dangers

this power poses to the viability of broadcast televi-

sion.” Jd. at 661. Similarly, the Court held that, al-

though laws compelling speech typically receive

strict scrutiny, that principle did not trigger strict

scrutiny of the must-carry statute. That was so, the

Court stated, because “the cable network gives the

cable operator bottleneck, or gatekeeper, control

over most (if not all) of the television programming

that is channeled into the subscriber’s home.” Id. at

656.

The Court did, however, subject the must-carry

statute to intermediate scrutiny. See id. at 662.

Thus, the Court held, must carry’s defenders were

required to show that the statute “furthers an im-

portant or substantial governmental interest,” and

that must carry’s burden on speech is “no greater

than is essential to the furtherance of that interest.”

Id. (internal quotation marks omitted).

Applying that standard, the Court held that it

was not enough for must carry’s defenders to show

that must carry promotes abstract goals, such as

“the widespread dissemination of information from a

multiplicity of sources.” Jd. Rather, the Court re-

quired a concrete showing that “recited harms are

real, not merely conjectural, and that the regulation

will in fact alleviate these harms in a direct and ma-

terial way.” Id. at 664. That meant that must

carry’ defenders had to prove that; without must

carry, “significant numbers of broadcast stations

8

will be refused carriage on cable systems,” and

“broadcast stations denied carriage will either dete-

riorate to a substantial degree or fail altogether.”

Id. at 666. Finding that the record evidence did not

support such a finding, the five-Justice majority

held that the district court had erred by entering

summary judgment. See id. at 668.

Four Justices (Justice O’Connor, joined by Jus-

tices Scalia, Thomas, and Ginsburg) dissented.

They would have invalidated the statute outright.

In her dissenting opinion (joined by the three other

dissenters), Justice O’Connor stated that must

carry’s preferential treatment of broadcasters was

content-based: it reflected a _ strict-scrutiny-

triggering preference for the kind of speech engaged

in by broadcast stations over that engaged in by

non-broadcast video services. See id, at 675-82.

Moreover, the dissenting Justices concluded, must

carry was so overbroad that it would fail even in-

termediate scrutiny: it required carriage even in the

many instances in which a carriage refusal was not

“motivated by anticompetitive impulses” and would

not “lead to the broadcaster going out of business.”

Id. at 682. Justice Ginsburg likewise filed a dissent-

ing opinion stating that must carry triggered strict

scrutiny and could not survive intermediate scru-

tiny. See id. at 685-86.

Following a remand in which the record was am-

plified, the Court again reviewed the statute. This

time, it upheld the statute by a 5-4 vote, with no

opinion garnering the full approval of a majority of

Justices. A four-Justice plurality concluded that the

record now supported the conclusions that “cable

operators had considerable and growing market

power,” Turner IJ, 520 U'S. at 197; that they had an

9

incentive to use that power to favor cable-

programming services that they owned or on which

they could sell advertising, id. at 198, 200; and that

stations denied carriage would “deteriorate to a sub-

stantial degree or fail altogether,” id. at 208 (inter-

nal quotation marks omitted).

In a separate concurrence that supplied the fifth

vote, Justice Breyer similarly concluded that the

evidence showed that “a cable system ... at present

(perhaps less in the future ) typically faces little com-

petition, [and] that it therefore constitutes a kind of

bottleneck that controls the range of viewer choice.”

Id. at 227-28 (emphasis added). Justice Breyer con-

cluded that, “without the statute, cable systems

would likely carry significantly fewer over-the-air

stations, that station revenues would therefore de-

cline, and that the quality of over-the-air program-

ming on such stations would almost inevitably suf-

fer.” Id. at 228 (citations omitted).

Again, four Justices dissented. Justice O’Connor,

in a dissenting opinion joined by Justices Scalia,

Thomas, and Ginsburg, explained that the remand

record showed that only marginal stations were at

risk. See id. at 233. Arguments that these stations’

programming content deserved protection, the dis-

senters explained, fortified the conclusion that the

must-carry scheme was content-based. See id. at

233-35. In addition, Justice O’Connor urged, the

majority’s intermediate-scrutiny analysis reached

the wrong result. See id. at 235-57.

II. Proceedings in This Case.

A. The FCC’s Decisions.

WRNN is a television station licensed to King-

10

ston, New York, which lies at the very northern tip

of the giant New York City television market.

WRNN broadcasts mostly home-shopping program-

ming. See Pet. App. 17a.5 Traditionally, WRNN’s

broadcast signal reached only Kingston and its sur-

roundings. After must carry’s enactment, WRNN

nonetheless sought carriage far beyond that area.

As part of that effort, WRNN sought cable carriage

on Cablevision’s systems on Long Island — even

though television viewers could not receive WRNN’s

over-the-air signal there, and even though cable sys-

tems had never carried it there.

Exercising its editorial discretion, Cablevision de-

termined that carrying WRNN — a station that is

licensed to a community as much as 195 miles away

from the systems on which the station demanded

carriage, see Pet. App. 66a n.11, and that broadcasts

mostly home-shopping programming — would not

improve the mix of speech on its cable systems serv-

ing Long Island. In the wake of must carry’s en-

actment, therefore, Cablevision asked the FCC to

“remove” Long Island from WRNN’s market, invok-

ing a provision empowering the FCC to “exclude

communities from” a station’s market “to better ef-

fectuate the purposes of” the must-carry statute. 47

U.S.C. § 534(h)\(1)(C i).

3 The must-carry statute instructed the FCC to consider

whether must-carry rights should be accorded to home-

shopping stations — indeed, it instructed the FCC to consider

whether home-shopping stations should be allowed to hold

broadcast licenses in the first place. See 47 U.S.C. § 534(g).

The FCC answered both questions in the affirmative. See Jm-

plementation of Section 4(g) of the Cable Television Consumer

Prot. and Competition Act of 1992: Home Shopping Station Is-

sues, Report and Order, 8 FCC Red 5321, 44 22-23, 39 (1993).

il

Relying in part on WRNN’s inability to cast an

over-the-air signal over Long Island, the FCC

granted Cablevision’s request. See Petition of Ca-

blevision Sys. Corp., Memorandum Opinion and Or-

der, 11 FCC Red 6453 (CSB 1996), aff’d, Market

Modifications and the New York Area of Dominant

Influence, Memorandum Opinion and Order, 12

FCC Red 12262 (1997), affd, WLNY-TV, Inc. v.

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

In an apparent attempt to gain must-carry rights

after all, however, a few years later WRNN moved

its antenna some 50 miles to the south, extending

the reach of its over-the-air signal. See Pet. App. Ya,

38a 9 11. It also added a small amount of pro-

gramming that it said was of interest to Long Is-

landers. See id. at 38a { 11; see also id. at 41la-43a

q¥ 14. It then returned to the FCC, asking the

agency to reconsider its prior order.

The FCC granted the request, returning Long Is-

land to WRNN’s market. In support of this conclu-

sion, the FCC’s Media Bureau relied heavily on a

single fact: that WRNN now cast a signal over Long

Island. See id. at 48a-44a J] 16. On review, how-

ever, the full FCC added reliance on an additional

fact: that “WRNN submitted a substantial record

that details programming that focuses on Long Is-

land,” which, according to the FCC, “serve[d} to add

more support to” WRNN’s case. /d. at 52a Jj 4.

Although the full Commission at least acknowl-

edged Cablevision’s constitutional arguments (the

Bureau had not), it rejected them summarily. For

example, the Commission stated briefly its belief

that carriage of WRNN would “help to ensure that

the ... station ... remains a viable option for view-

12

ers who rely on free, over-the-air television service

in Nassau and Suffolk counties.” Jd. at 55a. The

Commission did not point to specific facts support-

ing its conclusion despite its burden of proving facts

that would sustain its order against Cablevision’s

constitutional challenge.

Two of the FCC’s five members dissented. The

dissenters expressed concern that, instead of help-

ing localism, compelling Cablevision to carry WRNN

would hurt it. Cable carriage of WRNN on Long Is-

land, they explained, would give WRNN an incen-

tive to serve Long Island instead of Kingston, its

community of license. As the dissenters put it:

“There is a point at which the concept of a ‘local

market’ reaches the breaking point and expanding it

further will actually damage the localism interests

we are trying to serve. For the sake of the people of

Kingston, we hope we have not reached that point

here.” Jd. 68a. Unwilling to accept that risk, the

dissenters would have denied WRNN’s market-

modification request.

B. The Decision of the Court of Appeals.

Cablevision filed a petition for review of the

FCC’s order in the United States Court of Appeals

for the Second Circuit, invoking 28 U.S.C. § 2341, et

seq. The court of appeals denied the petition for re-

view. See Pet. App. la-26a.

The panel rejected Cablevision’s contention that

the FCC’s reliance on WRNN’s Long Island-targeted

content triggered strict First Amendment scrutiny.

See id. at 21a-23a. The court cited three reasons:

(1) there was no proof “that the restoration of the

Long Island communities to WRNN’s market ...

was based on some illicit content-based motive”;

13

(2)“WRNN’s local programming was an inconse-

quential factor in the FCC’s ultimate decision”; and

(3) under the must-carry statute, WRNN had been

presumptively entitled to carriage on Long Island.

Id. at 23a. The FCC “considered the amount of local

programming provided by WRNN,” the court stated,

“only ... in assessing the continued need to restrict

a presumptive market defined solely by geography.”

Id.

The court then held that the FCC’s order could

withstand intermediate scrutiny. See id. at 23a-

24a. The court of appeals stated that the FCC’s or-

der “advances important governmental interests un-

related to the suppression of free speech and does

not burden substantially more speech than neces-

sary to further these interests.” Jd. at 23a (internal

quotation marks omitted). The court of appeals

added that “(tlhe burden imposed by the order —

the loss of control over one channel — is no greater

than necessary to further the government’s interest

in preserving a single broadcast channel it found

serves the local community.” Jd. at 23a-24a.

The court of appeals also rejected Cablevision’s

arguments under the Takings Clause of the Fifth

Amendment. As noted above, the must-carry stat-

ute requires cable operators to carry local stations

on a tier that reaches all subscribers. That means

that cable companies may not carry local stations on

channels that reach, for example, only a subset of

digital subscribers. Cablevision therefore argued

that compelled carriage of WRNN involves the ap-

propriation of the electronic equivalent of a beach-

front lot: a 6 MHz channel on the most widely dis-

tributed cable tier. And, Cablevision argued that

there is no reason to treat valuable electronic prop-

14

erty differently than any other form of property.

But the court of appeals disagreed, seeing no per se

taking. See id. 24a-26a.

Finally, the court of appeals rejected Cablevi-

sion’s argument that the FCC had misinterpreted

the must-carry statute and failed to justify its deci-

sion under it. Under the must-carry statute, the

FCC may modify a station’s market only if doing so

“better effectuate[s] the purposes of” the must-carry

statute and promotes “the value of localism.” 47

U.S.C. § 534(h)(1)(C). Cablevision argued that the

FCC had failed to explain how compelling its Long

Island systems to carry WRNN was consistent with

either the value of localism (when carriage outside

WRNN’s traditional service area would only under-

mine the station’s incentive to serve its community

of license) or the statutory purpose (when Con-

gress’s intent had been to protect broadcast stations

from unfair treatment in their traditional markets

— not to expand their geographic reach). But the

court of appeals ruled that the FCC had permissibly

found that WRNN could serve both Kingston and

Long Island, and that the must-carry statute was

not offended by carriage outside a station’s tradi-

tional service area. See Pet. App. 17a-19a.

Cablevision asked the court of appeals to stay its

mandate pending the filing and disposition of a peti-

tion for a writ of certiorari, thereby extending a stay

pending appeal that the court of appeals had

granted earlier. Cablevision showed that compelled

carriage of WRNN on the most widely distributed

tier would mean dropping or moving C-SPAN (a

popular government-affairs service) in some systems

and Syfy (a popular entertainment service) in oth-

ers. Apparently concluding that there was a rea-

15

sonable probability that this Court would grant Ca-

blevision’s petition, the court of appeals granted the

motion. Jd. at 69a; see id. at 26a; see also Conkright

v. Frommert, 129 S. Ct. 1861, 1861-62 (2009) (Gins-

burg, J., in chambers) (stay of mandate appropriate

only where there is “a reasonable probability that

four Justices will consider the issue sufficiently

meritorious to grant certiorari”) (internal quotation

marks omitted).

REASONS FOR GRANTING THE PETITION

“At the heart of the First Amendment lies the

principle that each person should decide for himself

or herself the ideas and beliefs deserving of expres-

sion, consideration, and adherence.” Turner I, 512

U.S. at 641. This Court’s decisions in Turner none-

theless sanctioned a significant medium-specific de-

viation from that principle. Relying (among other

things) on cable companies’ putative position as mo-

nopolists, the Court upheld a statute that compelled

those companies to carry programming they did not

want to carry (thereby displacing programming they

do want to carry). Since Turner, however, the cable

industry has experienced transformative market

and technological changes, including the emergence

of vibrant competition. Cable companies simply no

longer have the “bottleneck” control that was critical

to this Court’s rationale in Turner. In the wake of

these changes, compelled carriage pursuant to the

must-carry statute is no longer compatible with the

Constitution. Moreover, compelled carriage of

WRNN by Cablevision’s Long Island systems cannot

be justified under Turner’s rationale quite apart

from these changes. And such carriage violates not

only the Constitution but also the must-carry stat-

ute itself. For all these reasons, and because of the

16

fundamental nature of the First Amendment free-

doms at stake, this Court should grant the petition.

I. THIS COURT SHOULD DECIDE WHETHER

THE CONSTITUTION PERMITS MUST-

CARRY OBLIGATIONS TO BE IMPOSED

UNDER CURRENT CONDITIONS.

This case offers the Court an opportunity to de-

cide whether must-carry obligations may still be

imposed consistent with the Constitution ‘despite

sweeping industry changes since the 1990s. That

issue has broad significance for virtually every cable

system and broadcast station in the country — and,

thus, for each of the Nation’s more than 100 million

television households. The question has a deep im-

pact on perhaps the most fundamental of constitu-

tional rights, the right to speak, as well as the

equally fundamental right not to speak. And it pro-

foundly affects the rights of viewers and listeners to

receive their programming of choice. This case also

crisply and squarely presents the question in the

preferred context of an “as applied” challenge.‘

4 See, e.g., Washington State Grange v. Washington State

Republican Party, 128 S. Ct. 1184, 1191 (2008) (“Facial chal-

lenges are disfavored ... .”); Sabri v. United States, 541 U.S.

600, 608-09 (2004) (“[F]acial challenges are best when infre-

quent. Although passing on the validity of a law wholesale

may be efficient in the abstract, any gain is often offset by los-

ing the lessons taught by the particular, to which common law

method normally looks.”) (citations omitted). At the same

time, the as-applied nature of Cablevision’s challenge would

not prevent the Court from addressing the constitutionality of

the must-carry statute as applied even to cable operators other

than Cablevision. See, e.g., Citizens United v. FEC, No. 08-

205, slip op. at 12-20 (U.S. Jan. 21, 2010).

17

A. Turner’s Factual Underpinnings Have

Evaporated.

As explained above, this Court in Turner rejected

a facial First Amendment challenge to must carry

by the narrowest of margins. In a pair of 5-4 deci-

sions, the Court held that must-carry did not trigger

strict scrutiny and could survive intermediate scru-

tiny. It so held on the basis of a specific and narrow

rationale: (1) that cable operators had an incentive

not to carry broadcasters; (2) that cable operators

faced no competition and were therefore free to act

on the incentive; (3) that stations not carried would

lose audience and go dark; and (4) that noncable

households would therefore be left with fewer over-

the-air viewing options. The Court recognized that

it was the Government’s burden to prove that the

rationale was factually supported.5 And the Court

ultimately (albeit narrowly) held that the Govern-

ment had carried its burden of proof to sustain the

statute against a facial challenge. See Turner II,

520 U.S. at 196-224.

In the years since the must-carry statute’s 1992

enactment, however, the facts on the ground have

changed beyond recognition. Under current circum-

stances, the FCC can no longer make the required

showing — which explains why the FCC did not

even attempt to make such a showing in this case.

5 See Turner I, 512 U.S. at 664 (“When the Government

defends a regulation on speech as a means to redress past

harms or prevent anticipated harms, it must do more than

simply posit the existence of the disease sought to be cured. It

must demonstrate that the recited harms are real, not merely

conjectural, and that the regulation will in fact alleviate these

harms in a direct and material way.”) (internal quotation

marks and citations omitted).

18

In particular, the FCC can no longer show that cable

operators possess bottleneck power: Cablevision

demonstrated before the FCC that cable operators

now face vibrant competition. See C.A. App. 325.6

As the D.C. Circuit recently noted, “satellite tele-

vision companies, which were bit players in the

early ‘90s, now serve one-third of all subscribers.”

Comcast Corp. v. FCC, 579 F.3d 1, 3 (D.C. Cir.

2009); see also Pet. App. 39a. In light of the new in-

dustry paradigm, the D.C. Circuit (while addressing

another set of cable regulations) determined that

“[clable operators ...no longer have the bottleneck

power over programming that concerned the Con-

gress in 1992.” Comcast, 579 F.3d at 8. The D.C.

Circuit concluded that, “[clonsidering the market-

place as it is today and the many significant

changes that have occurred since 1992, the FCC has

not identified a sufficient basis for imposing upon

cable operators the ‘special obligations,’ Turner J,

512 U.S. at 641, represented by the {rules at issue

there].” Comcast, 579 F.3d at 8.

Those statements stand in sharp contrast to this

Court’s statement in Turner I that “(t]he must-carry

provisions ... are justified by ... the bottleneck

monopoly power exercised by cable operators... .”

512 U.S. at 661. Similarly, they stand in sharp con-

trast to Justice Breyer’s fifth-vote-supplying concur-

rence, which found dispositive that “a cable system

. at present (perhaps less in the future) typically

faces little competition, [and] that it therefore con-

stitutes a kind of bottleneck.” Turner IJ, 520 U.S. at

227-28 (emphasis added).

6 “C.A. App. __” citations are to the court of appeals ap-

pendix.

19

The future of which Justice Breyer spoke then is

now here. Today, cable systems face extensive com-

petition and no longer constitute any kind of bottle-

neck. Accordingly, Turner’s rationale can no longer

justify an intrusion on constitutional rights, under

intermediate scrutiny or any other standard. Be-

cause no alternate rationale has ever been sug-

gested, must carry cannot be sustained.’

In addition to the advent of competition, three

other important industry changes have fatally un-

dermined Turner’s rationale. First, Turner rested

on the predicate that, once consumers subscribe to

cable, they lose access to over-the-air signals be-

cause, at the time, available “A/B switches” used for

toggling between cable and antenna inputs did not

work well. See Turner I, 512 U.S. at 633; Turner II,

520 U.S. at 219-21. By contrast, today’s A/B

switches are “built into television receivers and can

be easily controlled from a TV remote control de-

vice.” Carriage of the Transmissions of Digital Tele-

vision Broad. Stations, Notice of Proposed Rulemak-

ing, 13 FCC Red 15092, J 16 (1998) (footnote omit-

ted). Because viewers today can easily access over-

the-air programming even though they subscribe to

cable, the FCC cannot establish that broadcast sta-

tions need to be carried on cable to reach cable sub-

scribers.

Second, the percentage of Americans who rely on

7 See R. Matthew Warner, Reassessing Turner and Liti-

gating the Must-Carry Law Beyond a Facial Challenge, 60 Fed.

Comm. L.J. 359, 378 (2008) (“For those communities in which

cable operators experience healthy competition, must-carry

rules would not achieve Congress’s objectives and, thus, as ap-

plied in those particular areas, the must-carry law should be

considered unconstitutional.”).

20

over-the-air television has plummeted. Jurner held

that compelled cable carriage was needed “to pre-

serve access to free television programming for the

40 percent of Americans without cable.” Turner I,

512 U.S. at 646. But, by the time WRNN filed its

petition, the subset of U.S. households relying on

over-the-air television had plummeted to 14 percent.

See C.A. App. 329. Since then, the number has

dwindled even further: the June 2009 transition to

digital broadcasting caused large numbers of Ameri-

cans to give up on over-the-air reception.2 As the

number of Americans relying on over-the-air televi-

sion has decreased, so too has the weight of the gov-

ernmental interest in preserving the viewing op-

tions of those Americans at the expense of free

speech.

8 See Nielsen Wire, The Switch from Analog to Digital TV

(Nov. 2, 2009), avatlable at http://blog.nielsen.com/nielsenwire/

media_entertainment/the-switch-from-analog-to-digital-tv/ (in

the wake of the transition, about a quarter of previously

“broadcast only” homes signed up for cable or DBS). Indeed,

the over-the-air audience is now sc small that some have ar-

gued that the FCC should terminate over-the-air broadcasting

and recapture its valuable spectrum. See John Eggerton,

Broadcasters Defend Spectrum From Reclamation Proposals,

Multichannel News (Oct. 26, 2009), available at

http://Awww.multichannel.com/article/366507-Broad casters

_Defend_Spectrum_From_Reclamation_Proposals.php?rssid=2

0076&q=broadcast+television+FCC; see also Stuart Minor

Benjamin, Roasting the Pig To Burn Down the House: A Mod-

est Proposal, 7 J. on Telecomms. & High Tech. L. 95, 98 (2009)

(“Simply stated, the costs of subsidizing cable or satellite ser-

vice for the 14% of households that do not subscribe to cable or

satellite but want television service would be a small fraction

of the value of broadcast frequencies, as reflected in the value

of those frequencies at auction once they could be used for any

service.”).

21

Finally, cable operators in the 1990s offered only

one or two tiers of so-called “analog” service. But

cable operators today provide additional “digital”

tiers. Because the analog tiers were filled up long

ago, new non-broadcast services are nowadays

added to the digital tiers, which have fewer sub-

scribers. See Cable Horizontal and Vertical Owner-

ship Limits, Fourth Report & Order, 23 FCC Red

2134, 7 58 (2008), vacated on other grounds, Com-

cast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009). Yet,

under the must-carry statute, broadcast stations

like WRNN can commandeer a channel on the most

widely distributed — and thus most desirable —

tier. See 47 U.S.C. § 534(b)(7). Thus, in today’s

video marketplace, the must-carry statute goes well

beyond placing broadcast stations on equal footing

with non-broadcast services — it grants broadcast

stations special privileges.

Indeed, WRNN’s business model seems to be built

on that fact. In the absence of must carry, the

home-shopping station might still be able to secure

substantial cable carriage in the New York City

market, but it would likely be carried on a digital

channel higher on the cable dial and on a less pene-

trated tier. By claiming must-carry rights, WRNN

can occupy a favored spot on the dial alongside the

most widely watched cable services. See 47 U.S.C.

§ 534(b)(6)-(7). The Constitution simply cannot jus-

tify that result. Must carry was enacted and upheld

on the theory that it would protect access to over-

the-air broadcast signals — not that it would give

broadcasters preferential treatment so that they can

capture channel surfers and earn rich home-

shopping profits.

22

B. Whether Imposition of Must-Carry Obli-

gations Remains Consistent with the

Constitution Should Be Decided Now.

“Cable programmers and cable operators engage

in and transmit speech, and they are entitled to the

protection of the speech and press provisions of the

First Amendment.” Turner J, 512 U.S. at 636. And

“({aJt the heart of the First Amendment lies the prin-

ciple that each person should decide for himself or

herself the ideas and beliefs deserving of expression,

consideration, and adherence.” Jd. at 641. To this

principle, the Turner holdings recognized a broad

and unusual exception — one that compels un-

wanted speech in a large and important sector of the

communications media.

But that exception was never cast in stone — it

was predicated on the special market circumstances

that existed at the time. As this Court noted just

last week, media-specific First Amendment rules

“might soon prove to be irrelevant or outdated by

technologies that are in rapid flux.” Citizens United

v. FEC, No. 08-205, slip op. at 9 (U.S. Jan. 21, 2010)

(citing Turner I, 512 U.S. at 639). That is precisely

what happened here: the circumstances underpin-

ning Turner’s rationale have now ceased to exist.

Thus, the time has come for the restraint on speech

to be removed as well.

Despite the transforming market and technologi-

cal changes that have occurred since the 1990s, and

despite the D.C. Circuit’s Comcast decision, the

court of appeals in this case held that this Court’s

Turner decisions required it to affirm the FCC’s car-

riage order. See Pet. App. 19a-24a. But Turner re-

jected a facial attack on the statute. See Turner I,

23

512 U.S. at 671 (Stevens, J., concurring in part and

concurring in the judgment). A precedent upholding

a statute against a facial attack never bars an as-

applied challenge, particularly when facts essential

to that precedent’s holding have changed. See

United States v. Carolene Prods. Co., 304 U.S. 144,

153 (1938) (“[T]he constitutionality of a statute

predicated upon the existence of a particular state of

facts may be challenged by showing ... that those

facts have ceased to exist.”); Cutter v. Wilkinson, 544

U.S. 709, 725 (2005) (decision of this Court uphold-

ing a statute against a facial challenge does not con-

stitute precedent barring later “as-applied chal-

lenges”).

The court of appeals’ reluctance, however, is not

surprising. Both the FCC and WRNN argued before

the court of appeals that any other conclusion would

in effect overrule Turner, and that only this Court

has authority to do so.? Because other courts of ap-

peals will likely display similar reluctance, a conflict

of authority is unlikely to develop.

Granting review in this case has an additional

advantage: it will allow the Court to decide whether

must carry is consistent not only with the First

Amendment, but also with the Takings Clause of

the Fifth Amendment. The must-carry statute does

not merely appropriate cable operators’ valuable

9 See FCC C.A. Br. 46 (“Much as Cablevision would like to

wish the Turner decisions away, . . . this Court has no power to

overrule or depart from controlling Supreme Court prece-

dent.”); WRNN C.A. Br. 55 (“the Long Island Order is within

the heartland of Turner, and this Court is not at liberty to de-

part from binding Supreme Court precedent unless and until

the Court reinterprets that precedent”) (internal quotation

marks and brackets omitted).

24

channels;!° it appropriates channels on the most

widely distributed cable tier — the electronic

equivalent of a beach-front lot. There is no reason

to treat valuable electronic property differently than

any other property.'! Yet this Court has to date not

had an opportunity to address whether the full and

complete appropriation of the basic property unit in

cable television, the individual television channel,

effects a per se taking: the issue was not presented

to this Court in Turner. By contrast, Cablevision

has carefully preserved the issue throughout the in-

stant litigation. See Pet. App. 24a-26a, 55a-58a

19 8-9. Thus, the Court can address the issue here.

For this reason, too, review should be granted.

II. THIS COURT SHOULD DECIDE WHETH-

ER, CONSISTENT WITH THE CONSTITU-

TION, CABLEVISION’S LONG ISLAND CA-

BLE SYSTEMS MAY BE COMPELLED TO

CARRY WRNN.

The Court should also decide whether Cablevi-

sion’s Long Island systems can be compelled to carry

WRNN. Even apart from the industry-wide changes

10 The statute itself recognizes that cable channels consti-

tute valuable property. See 47 U.S.C. § 532 (providing that a

non-broadcast service that a cable system does not wish to

carry voluntarily may still secure access to a cable channel] if it

pays for the privilege).

11 See Midwest Video Corp. v. FCC, 571 F.2d 1025, 1058

(8th Cir. 1978) (“a requirement that facilities be ... dedicated

without compensation . .. would be a deprivation forbidden by

the Fifth Amendment”), affd, 440 U.S. 689 (1979); Turner

Broad. Sys., Inc. v. FCC, 819 F. Supp. 32, 67 n.10 (D.D.C.

1993) (Williams, J., dissenting) (“The creation of an entitle-

ment in some parties to use the facilities of another, gratis,

would seem on its face to implicate Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982)... .”).

25

described above, T'urner’s rationale cannot justify

compelled carriage of WRNN here. Indeed, because

of the decision below, First Amendment values have

suffered across the board. Cablevision is not merely

being forced to carry programming against its

judgment. It must replace valuable cable program-

ming (including the public-affairs programming

provided by C-SPAN) with home-shopping pro-

gramming that consumers desire to watch to a much

lesser extent. This issue, moreover, helps place all

facts of the case before the Court, providing concrete

factual context, illustrating the breadth of must

carry’s application, and avoiding possible questions

about the scope of the other questions presented.

A. Compelled Carriage of WRNN Here Can-

not Be Predicated on Turner’s Rationale.

In addition to changes in the industry generally,

there are five reasons why Turner’s rationale cannot

be invoked to require Cablevision’s Long Island sys-

tems to carry WRNN.

First, Turner rests fundamentally on the notion

that must carry is necessary to safeguard the view-

ing choices of over-the-air viewers; absent carriage

on cable, Turner suggested, over-the-air stations

serving non-cable subscribers might have insuffi-

cient viewers to survive. But WRNN itself has

trumpeted that it has no over-the-air audience: in

asking the FCC for permission to make technical

changes to its over-the-air signal, WRNN has stated

that “the impact on the public will be imperceptible

since, according to Nielsen Media Research, there

[is] no reportable over-the-air viewing for the station

....” WRNN-TYV Assocs., 19 FCC Red 12343, 12344

(MB 2004); see also Pet. App. 45a 9 18 (noting

26

WRNN’s “lack of audience share”). There is no im-

portant governmental interest in saving a broadcast

signal for an over-the-air audience that does not ex-

ist. See Turner II, 520 U.S. at 233, 244 (O’Connor,

J., dissenting).

Second, and relatedly, Turner rested on the no-

tion that broadcasters should be restored to the au-

dience that they would have had in a world without

cable.!2 Turner did not rest on the notion that

broadcasters should be made better off than they

would have been without cable.!5 Here, Cablevision

does not provide service to WRNN’s traditional

broadcast market in upstate New York; it thus does

not compete for viewers. Consequently, compelled

12 See Turner I, 512 U.S. at 659 (“Congress granted must-

carry privileges to broadcast stations on the belief that the

broadcast television industry is in economic peril due to the

physical characteristics of cable transmission and the economic

incentives facing the cable industry.”); id. at 663 (“protecting

noncable households from loss of regular television broadcast-

ing service due to competition from cable systems is an impor-

tant federal interest”) (internal quotation marks omitted);

Turner IT, 520 U.S. at 193 (“In short, Congress enacted must-

carry to preserve the existing structure of the Nation’s broad-

cast television medium while permitting the concomitant ex-

pansion and development of cable television.”) (internal quota-

tion marks omitted); Turner [/, 520 U.S. at 226 (Breyer, J.,

concurring) (describing the rationale as being “to prevent... a

decline ... of programming choice for an ever-shrinking non-

cable subscribing segment of the public”) (emphasis added).

13 See Turner II, 520 U.S. at 222 (“[A] system of subsidies

would serve a very different purpose than must-carry. Must-

carry is intended not to guarantee the financial health of all

broadcasters, but to ensure a base number of broadcasters

survive to provide service to noncable households.”); id. at 246

(O’Connor, J., dissenting) (“the must-carry provisions have

never been justified as a means of enhancing broadcast televi-

sion”) (emphasis in original).

27

carriage here would not give Long Island viewers

access to a broadcast station on which they have

traditionally relied, or give WRNN access to viewers

its traditional over-the-air signals were capable of

reaching. It would instead extend WRNN’s reach by

giving cable subscribers access to an unknown

home-shopping station that merely seeks the prom-

ise of must-carry riches.

Third, Turner’s rationale cannot justify compelled

carriage where, as here, there is no evidence that

the station seeking carriage will decline absent car-

riage. Turner proposed that “broadcast stations de-

nied carriage will either deteriorate to a substantial

degree or fail altogether.” Turner I, 512 U.S. at 666

(plurality); see id. at 667; Turner IZ, 520 U.S. at 195,

208. The record here shows that WRNN (a station

whose low-cost home-shopping programming is al-

ready carried to millions of cable homes) has been

on the air for more than a quarter of a century, see

Pet. App. 34a, and has prospered without carriage

on Long Island — so much so that it was able to

fund expensive changes to its transmitter without

any guarantee of a must-carry pay-off. To defend

must carry against a facial challenge, it may have

been enough for the FCC to show that, without must

carry, hardship would befall some stations. But see

Turner I, 512 U.S. at.682 (O’Connor, J., dissenting).

In the face of an as-applied challenge, however,

there must be a showing that hardship will befall

the particular station at issue.

Fourth, Turner’s rationale does not apply where,

as here, there is no evidence that the cable operator

has declined to carry a station with a view to stifling

competition. Turner posited that must carry was

needed to protect stations from cable operators who

28

might refuse to carry them for an anticompetitive

reason, namely to protect themselves from competi-

tion for local advertising. There is no record evi-

dence that Cablevision acted on any such motive

here. To the contrary, Cablevision declined to carry

the home-shopping station because few subscribers

are interested in watching it. To defend must carry

against a facial challenge, it may have been enough

for the FCC to show that anticompetitive motives

drove some carriage decisions. But see Turner I, 512

U.S. at 682 (O’Connor, J., dissenting). In the face of

an as-applied challenge, however, the Government

must prove that anticompetitive motives drove the

specific carriage judgment that the Government

seeks to override.

Finally, Turner’s rationale simply ceases to func-

tion where a cable operator is subject to competition.

See supra, pp. 17-19. Turner’s fundamental premise

— the reason it found must carry necessary — was

that cable operators had market power that enabled

them to drop popular broadcast stations without

having to fear losing subscribers. But that reason-

ing no longer holds: all cable systems in the United

States are now subject to competition from two sat-

ellite operators that have garnered about one third

of all subscribers. See supra, p.18. Cablevision’s

systems on Long Island are subject to particularly

vibrant competition: as the order under review itself

observes, Cablevision’s Long Island systems also

face robust competition from Verizon’s fiber-optic

cable television service. See Pet. App. 52a 7 4n.15.

Under these circumstances, compelling Cablevi-

sion’s Long Island systems to carry WRNN cannot

be justified on the basis of Turner. Even apart from

the impossibility of reconciling this application of

29

must carry with Turner itself, see Sup. Ct. R. 10(c),

this application of must carry proves precisely why

this Court’s immediate intervention is necessary.

Must carry is no longer being used merely as a

shield to prevent potentially anticompetitive deci-

sions from shutting out over-the-air stations that

might fail as a result. It has now become a sword

that stations with no over-the-air viewership can in-

voke to override legitimate editorial choices and ex-

pand their geographic scope at the expense of valu-

able educational programming that viewers prefer

to watch. This is something the First Amendment

cannot tolerate.

B. The FCC Order Under Review Should Be

Subject to Strict Scrutiny.

In Turner, this Court recognized that must-carry

orders can avoid strict scrutiny only if they “confer

must-carry rights on ... broadcasters ... irrespec-

tive of the content of their programming.” Turner J,

512 U.S. at 647. This case squarely implicates an

aspect of the must-carry statute that is directly con-

trary to that admonition.

The must-carry statute’s market-modification

provision states that, in evaluating market-

modification requests, the FCC should “afford par-

ticular attention to the value of localism” — i.e., to

whether a station provides “news coverage of issues

of concern to [a] community or provides carriage or

coverage of sporting and other events of interest to

the community.” 47 U.S.C. § 534(h)(1)(C)Gi). In

Turner I, this Court recognized that this provision

“appears to single out ... broadcasters for special

benefits on the basis of content.” 512 U.S. at 644

n.6. The Court, however, had no occasion to rule on

30

the issue on a facial challenge. See id.

In this case, by contrast, the FCC expressly relied

on this aspect of the statute and cited the content of

WRNN’s programming as a factor militating in fa-

vor of compelled carriage. See Pet. App. 51la-52a

{ 4.14 Yet the court of appeals held that such con-

sideration of content did not trigger strict scrutiny.

See Pet. App. 22a-23a. Each of the three reasons

listed by the court of appeals is insupportable.

First, the court of appeals erred in suggesting

that consideration of content triggers strict scrutiny

only when there is an “illicit content-based motive.”

Pet. App. 23a. This Court has consistently held that

“illicit legislative intent is not the sine qua non of a

violation of the First Amendment.” Minneapolis

Star & Tribune Co. v. Minnesota Comm’r of Reve-

nue, 460 U.S. 575, 592 (1983); see also Turner IT, 520

U.S. at 257 (O’Connor, J., dissenting) (“Whether a

provision is viewpoint neutral is irrelevant to the

question whether it is also content neutral.”). Thus,

the Second Circuit’s contrary ruling flies in the face

of this Court’s unambiguous precedent.

Second, the court of appeals erroneously sug-

gested that strict scrutiny is not triggered if consid-

erations of content are given only “inconsequential”

weight. Pet. App. 23a. The court of appeals cited no

authority for that proposition, and this Court has re-

14 That was hardly unusual — the FCC does so routinely.

See, e.g., Tennessee Broad. Partners, Memorandum Opinion

and Order, 23 FCC Red 3928, 97 61-75 (2008); Harron Cable-

vision of Mass. d/b/a Harron Commce’ns Corp., Memorandum

Opinion and Order, 18 FCC Red 16856, J 4 (2003); Mid-State

Television, Inc., Memorandum Opinion and Order, 16 FCC Red

5525, 7 15 (2001).

31

jected the use of de minimis exceptions in the First

Amendment area. See Lorillard Tobacco Co. v.

Reilly, 5383 U.S. 525, 567 (2001) (“There is no de

minimis exception for a speech restriction that lacks

sufficient tailoring or justification.”); see also Turner

I, 512 U.S. at 679 (O’Connor, J., dissenting) (“[Wle

have never held that the presence of a permissible

justification lessens the impropriety of relying in

part on an impermissible justification. In fact, we

have often struck down statutes as being impermis-

sibly content based even though their primary pur-

pose was indubitably content neutral.”); id. at 686

(Ginsburg, J., dissenting) (“an intertwined or even

discrete content-neutral justification does not ren-

der speculative, or reduce to har aless surplus, Con-

gress’ evident plan to advance local programming”).

Finally, the Second Circuit erred in suggesting

that the FCC may consider content in returning

WRNN to its statutory “presumptive” market — ap-

parently on the theory that Congress fixed the de-

fault market without regard to content. Pet. App.

22a. It may be that, if the FCC had not limited

WRNN’s market previously, the FCC would not

have had an opportunity to restore WRNN to the

statutory default and to rely on WRNN’s content in

the process. But the FCC did limit WRNN’s market,

it did restore that market, and, in doing so, it did

rely on content. If, in restoring WRNN’s default

market, the FCC had relied on WRNN’s political

viewpoint, its order undoubtedly would have been

impermissibly content-based. It is hard to see how

this is any different: “[rjegulation of the subject

matter of messages, though not as obnexious as

viewpoint-based regulation, is also an objectionable

form of content-based regulation.” Hill v. Colorado,

32

530 U.S. 703, 723 (2000).

In sum, this Court in Turner left open whether

strict scrutiny is triggered by the market-

modification provision’s instruction that the FCC

consider a station’s programming content. That is-

sue is important. And although Turner had no occa-

sion to rule on the issue, the Court strongly sug-

gested that the answer is “yes.” The court of ap-

peals nonetheless resolved the issue the other way.

None of its three purported distinctions is compati-

ble with this Court’s precedent. Review of this as-

pect of the court of appeals’ decision is therefore ap-

propriate as well.

I. THIS COURT SHOULD DECIDE WHETH-

ER COMPELLED CARRIAGE OF WRNN IS

CONSISTENT WITH THE MUST-CARRY

STATUTE.

The Court should also decide whether compelled

carriage in this case is consistent with the must-

carry statute. The issue is not merely important. It

also is closely related to the fundamental constitu-

tional dispute at the core of this case and places be-

fore the Court that dispute’s full context.

As noted above, the order under review altered

WRNN’s must-carry market pursuant to 47 U.S.C.

§ 534(h)(1)(C). That provision states that the FCC

may modify stations’ markets “to better effectuate

the purposes of this section.” Id. § 534(h)(1)(C)G). It

further states that the FCC must “afford particular

attention to the value of localism.” Id.

§ 534(h)(1)(C) Gi.

Compelled carriage of WRNN by Cablevision’s

systems on Long Island will do nothing to further

33

the value of localism. Localism calls for the needs of

Long Islanders to be served by Long Island stations

— not by stations from upstate New York. Con-

versely, localism is not furthered by giving a King-

ston station an incentive to neglect its Kingston au-

dience and to cater to a seemingly more appealing

audience on Long Island.16

More generally, the purpose of the must-carry

statute was to restore broadcasters to the audience

that they would have had in a world without cable

— not to make broadcasters better off than they

would have been without cable. See supra, p.26.

Thus, requiring carriage of WRNN many of miles

away from its traditional over-the-air service aree

15 See, e.g., Broadcast Localism, Report on Broadcast Lo-

calism and Notice of Proposed Rulemaking, 23 FCC Red 1324,

45 (2008) (“the Commission has .ong recognized that every

community of appreciable size has a presumptive need for its

own transmission service”) (internal quotation marks omitted).

16 See Pet. App. 68a (Joint Statement of Commissioners

Copps and Adelstein, dissenting) (“There is a point at which

the concept of a ‘local market’ reaches the breaking point and

expanding it further will actually damage the localism inter-

ests we are trying to serve.”). Indeed, the FCC previously rec-

ognized precisely that in defending against WRNN’s attack on

the agency’s prior market-modification order. See Brief of Re-

spondents-Appellees at 29-30, WLNY-TV, Inc. v. FCC, No. 97-

4243 (2d Cir. Jan. 22, 1998) (“[I]f a station licensed to upstate

New York were carried on cable systems serving .. . more

densely populated Nassau County, it would have an incentive

to provide programming targeted at the more profitable Long

Island communities at the expense of the community the sta-

tion has been licensed to serve. That would defeat the very lo-

calism that must carry is intended to promote as well as the

congressional policy that television stations be licensed to

various communities throughout the country and not just in

the most populous areas.”).

34

does not “better effectuate the purposes of” the

must-carry statute.

Despite these serious statutory concerns, the FCC

held that Cablevision must carry WRNN. It did so

without even addressing whether compelled car-

riage “better effectuate[s] the purposes of this sec-

tion” and promotes “the value of localism.” The FCC

thereby violated both the must-carry statute, 47

U.S.C. § 534(h)(1)(C), and the Administrative Pro-

cedure Act, 5 U.S.C. § 706(2)(A).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JEFFREY A. LAMKEN HENK BRANDS

MoOLOLAMKEN LLP Counsel of Record

600 New Hampshire PAUL, WEISS, RIFKIND,

Avenue, NW WHARTON & GARRISON LLF

Washington, D.C. 20037 2001 K Street, NW

(202) 556-2000 Washington, D.C. 20006

Howarp J. SYMONS (202) 223-7300

TARA M. CORVO

MINTZ, LEVIN, COHN,

FERRIS, GLOVSKY AND

POPEO, P.C.

701 Pennsylvania Ave., NW

Washington, D.C. 20004

(202) 434-7300

Counsel for Petitioner

January 27, 2010

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2007

(Argued: April 7, 2008 Decided: June 22, 2009)

Docket No. 07-5553-ag

CABLEVISION SYSTEMS CORPORATION,

Petitioner,

— V.

FEDERAL COMMUNICATIONS COMMISSION,

UNITED STATES OF AMERICA,

Respondents,

WRNN LICENSE COMPANY, LLC,

Intervenor Respondents,

Before: WALKER, CABRANES, and RAGGI,

Circutt Judges.

Petition for review of an order of the Federal

Communications Commission directing petitioner

Cablevision to carry the signal of television station

WRNN pursuant to 47 U.S.C. § 534 (a)-(b) &

(h)(1)(c). Cablevision argues that the Commission’s

decision contravenes the text and purpose of the

statute, and that the statute, as applied, violated

Cablevision’s First and Fifth Amendment rights.

PETITION DENIED.

HENK BRANDS (Allan J. Arffa and J. Adam

Skaggs, on the brief), Paul, Weiss, Rifkind, Wharton

& Garrison LLP, Washington, D.C., and Howard J.

2a

Symons and Tara M. Corvo (on the brief), Mintz,

Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Wash-

ington, D.C., for Petitioner.

JACOB M. LEWIS (Matthew B. Berry, Joseph R.

Palmore, and Nicholas A. Degani, Federal Commu-

nications Commission, and Thomas O. Barnett,

John J. O’Connell, Jr., Catherine G. O’Sullivan, and

Robert J. Wiggers, U.S. Department of Justice, on

the brief), Federal Communications Commission,

Washington, D.C., for Respondent.

ANDREW G. MCBRIDE (Todd M. Stansbury and

William S. Consovoy, on the brief), Wiley Rein LLP,

Washington, D.C., for Intervenor.

Jane E. Mago, Marsha J. MacBride, and Erin L.

Dozier (on the brief), National Association of Broad-

casters, Washington, D.C., for Amicus Curiae Na-

tional Association of Broadcasters.

John M. Walker, Jr., Circuit Judge:

The must-carry provisions of the Cable Television

Consumer Protection and Competition Act (“1992

Cable Act” or “Cable Act”) require cable operators to

transmit, over their cable systems, the signals of

certain broadcast stations operating in the same

market. The statute also gives the Federal Com-

munications Commission (“FCC” or “the Commis-

sion”) authority to modify a given broadcast sta-

tion’s market, thus potentially changing the uni-

verse of cable operators required to carry that sta-

tion. In this case, Cablevision, a cable systems op-

erator, petitions for review of the FCC’s decision to

include certain Long Island communities in the

market of WRNN, a station broadcasting from up-

state New York, and the resulting order directing

3a

Cablevision to carry WRNN on its Long Island cable

systems. Because we find no constitutional or legal

error in the FCC’s decision, we DENY the petition.

BACKGROUND

I. The 1992 Cable Act and Its Must-Carry Pro-

visions

The must-carry provisions of the 1992 Cable Act

require “cable operators,” such as Cablevision, to

carry the signals of a number of “local commercial

television stations.” 47 U.S.C. § 534(a). The statute

caps the number of such stations that a cable opera-

tor must carry at “up to one-third of the aggregate

number of usable activated channels” on that opera-

tor’s system. Id. § 534(b)(1)(B). For our purposes, a

“local commercial television station” is a broadcast

station (i.e., a station that transmits its signal over

the airwaves) that, “with respect to a particular ca-

ble system, is within the same television market as

the cable system.” Id. § 534(h)(1)(A).

A broadcast station’s market “shall be determined

by the Commission by regulation or order using,

where available, commercial publications which de-

lineate television markets based on viewing pat-

terns.” Id. § 534(h)(1)(C)Xi). Currently, the Com-

mission relies on the commercial publications of

Nielsen Media Research that divide the nation into

a series of coterminous geographic “Designated

Market Areas” (“DMAs”) based on viewership pat-

terns. 47 C.F.R. § 76.55(eX2). For example, the

New York City DMA contains not only the five bor-

oughs of the city, but also neighboring areas of Long

Island, Connecticut, New Jersey, and upstate New

York, as well as limited areas of Pennsylvania, be-

4a

cause people in those areas, in the aggregate, watch

the same television channels.

The upshot of the must-carry provisions is that,

in general, each cable operator is required to carry

the signal of every broadcast station in its DMA, un-

til it has dedicated “one-third of the aggregate num-

ber of usable activated channels” on its system to

such channels. 47 U.S.C. § 534(b)(1)(B); see also id.

§ 534(a)-(b), (h)(1)(C). Both Cablevision and WRNN

are located within the New York City DMA, and

Cablevision currently has fewer than one-third of its

channels dedicated to must-carry stations.

The only relevant exception to this must-carry

rule occurs under the statute’s market modification

provision. Pursuant to this provision, the FCC may,

on written request, add certain communities to, or

exclude certain communities from, a given broadcast

station’s market “to better effectuate the purposes”

of the statute. § 534(h\1\C)(i). If a given commu-

nity is excluded from a station’s market, cable op-

erators in that community are no longer required to

carry that station. If a given community is added,

cable operators in that community must commence

carriage of that station’s signal unless they already

devote one-third of their channels to local broadcast

stations. See id.

In considering market modification requests, the

statute instructs the FCC to

afford particular attention to the value of localism

by taking into account such factors as —

(I) whether the station, or other stations located

in the same area, have been historically carried

on the cable system or systems within such com-

5a

munity; [the “historical carriage factor”]

(II) whether the television station provides cover-

age or other local service to such community; [the

“local service factor”]

(III) whether any other television station that is

eligible to be carried by a cable system in such

community in fulfillment of the requirements of

this section provides news coverage of issues of

concern to such community or provides carriage

or coverage of sporting and other events of inter-

est to the community; [the “other stations factor”]

and

(IV) evidence of viewing patterns in cable and

noncable households within the areas served by

the cable system or systems in such community

[the “viewing patterns factor”).

47 U.S.C. § 534(h)(1)(C\iiXD)-(IV). The FCC’s inter-

pretation and application of this provision lies at the

heart of this dispute.

Il. The Turner Litigation

Shortly after the passage of the 1992 Cable Act,

several cable operators mounted a First Amendment

challenge to the legislation by claiming that the

statute, on its face, impermissibly burdened the

rights both of cable programmers, who produce tele-

vision shows exclusively for cable distribution (e.g.,

HBO, TNT), and of cable operators, who actually

transmit the programming to consumers via coaxial

cable (e.g., Cablevision). In Turner Broadcasting

System, Inc. v. FCC (“Turner I”), 512 U.S. 622

(1994), the Supreme Court he!d that the statute’s

requirements were content neutral, and therefore

subject to intermediate scrutiny. The Court’s major-

6a

ity opinion announced that, at least in the abstract,

the statute served three “important,” interrelated

interests articulated by Congress in the statute’s

findings: “(1) preserving the benefits of free, over-

the-air local broadcast television, (2) promoting the

widespread dissemination of information from a

multiplicity of sources, and (3) promoting fair com-

petition in the market for television programming.”

Id. at 662. The majority, however, concluded that

“deficienclies]” in the record prevented it from de-

termining whether the statute was sufficiently tai-

lored to further those interests without substan-

tially burdening protected speech and remanded for

further proceedings. Jd. at 667-68.

Significantly, the majority noted that the district

court had not addressed whether the language of

the market modification provision, with its refer-

ences to “the value of localism” and to stations

“provid[ing] news coverage of issues of concern to

such community,” altered the content-neutrality of

the statute. /d. at 643 n.6 (quoting 47 U.S.C.

§ 534(h)(1)(C)Gi)). The Court did not address this

point. Jd. In a dissent joined by three other jus-

tices, Justice O’Connor, relying in part on the lan-

guage of the market modification provision, wrote

that the must-carry regulation was content-based,

and thus subject to strict scrutiny, such that it could

only be justified by a compelling governmental in-

terest and would have to be narrowly tailored to

achieve its intended purpose. /d. at 680.

In 1997, with a more fully developed record before

it, the Supreme Court held that “the must-carry

provisions further important governmental inter-

ests” and that the provisions did not violate the

Ta

First Amendment because they did “not burden sub-

stantially more speech than necessary to further

those interests.” Turner Broad. Sys., Inc. v. FCC

(“Turner II*), 520 U.S. 180, 185 (1997). None of the

opinions in Turner IT specifically mentioned or cited

the market modification provision.

Ill. Market Modification Decisions in the New

York City DMA

In 1996, Cablevision petitioned the FCC to ex-

clude a number of communities from the markets of

several local broadcast stations, including WRNN, a

station licensed in Kingston, New York that trans-

mitted its signal from Overlook Mountain in Wood-

stock, New York. The FCC’s Cable Services Bureau

(the “Bureau”) granted Cablevision’s request in part

and denied it in part, excluding communities in

Long Island’s Nassau and Suffolk counties from

WRNN’s market, but declining to exclude communi-

ties elsewhere, such as New York’s Westchester

County and Connecticut’s Fairfield County.

Cablevision Sys. Corp. (“1996 CSB Order“), 11

F.C.C.R. 6453 (1996). In making both decisions, the

Bureau noted that, in the New York DMA, reliance

on the four enumerated factors alone would not al-

low it to “take into account the particular difficulties

faced by these stations in light of the purposes of the

carriage rule.” Jd. at 6475 450. Accordingly, the

Bureau also considered the station’s “Grade B con-

tour,” t.e., the area within which viewers can receive

its broadcast signal over the air, and the “geography

and terrain” separating the target communities

from the broadcasting station. Jd. at 6480-81 7 67.

In 1997, the FCC affirmed the Bureau’s decision,

noting that

8a

Grade B contour coverage, in the absence of other

determinative -market facts (i.e. where the four

statutory factors by themselves define the mar-

ket, where there is no clear proof that the contour

fails to reflect actual coverage, or where there is a

terrain obstacle such as a mountain range or a

significant body of water) is an efficient tool to ad-

just market boundaries because it is a sound in-

dicator of the economic reach of a particular tele-

vision station’s signal.

Market Modifications and the New York Area of

Dominant Influence (“1997 FCC Order“),) 12

F.C.C.R. 12262, 12271 J 17 (1997) (footnote omit-

ted).

When WRNW and several other stations peti-

tioned for review, this court endorsed the agency’s

reliance on Grade B contour in particular and fac-

tors not enumerated in the statute in general. We

approved of the view that “the four factors [enumer-

ated in the statute] are not exclusive,” and we held

that “[t]he FCC and the Cable Services Bureau, ex-

perts in the area of regulation of the television in-

dustry, carefully and properly analyzed the particu-

lar facts of the various petitions under the four fac-

tors listed in the statute and under non-statutory

factors.” WLNY-TV, Inc. v. FCC, 163 F.3d 137, 141-

42 (2d Cir. 1998).

IV. The Current Proceedings

Subsequent to the outcome of the 1996-98 pro-

ceedings, WRNN moved its transmitter to Beacon

1 “Area of dominant influence” (“ADI”) is the pre-2001

equivalent of the term “Designated Market Area” (“DMA”).

9a

Mountain, New York, some 50 miles closer to Man-

hattan, and commenced digital-only broadcast op-

erations. In 2005, it petitioned the FCC to add back

some of the communities in the New York City DMA

in its market so that Time Warner Cable, which

served the relevant communities, would have to

carry WRNN on its system. Relying primarily on

Grade B contour and local programming, the FCC’s

Media Bureau (the successor to the Cable Services

Bureau) granted WRNN’s request. WRNWN License

Co., 20 F.C.C.R. 7904, 7911 {J 15, 16 (2005). Time

Warner Cable did not appeal the decision to the full

Commission.

In 2006, relevant to the present review, WRNN

petitioned for re-inclusion of several communities,

this time served by Cablevision, in Long Island’s

Nassau and Suffolk Counties. The Bureau denied

the request as to a number of the Suffolk County

communities based on WRNN’s failure to comply

with “standardized evidentiary requirements.”

WRNN License Co. (“2006 Bureau Order“), 21

F.C.C.R. 5952, 5956 J 9 (2006). WRNN does not

seek review of the Bureau’s decision as to these

communities. As to the remaining Nassau and Suf-

folk communities, which we will refer to as the

“Long Island communities,” the Bureau noted that

the enumerated market modification factors did not

offer strong support for WRNN’s position. The par-

ties vigorously disputed the amount of Long Island-

specific programming WRNN offered, and the Bu-

reau ultimately concluded that the local service fac-

tor weighed against carriage. As to the historical

carriage factor, the Bureau found it insignificant

that both cable systems in neighboring communities

and digital broadcast satellite operators in the Long

10a

Island communities carried WRNN. It also accorded

little weight to the fact that Verizon was scheduled

to begin carrying WRNN on its FiOS system, which

delivers television programming to subscribers over

fiber optic phone lines, thus competing directly with

cable television service. Nonetheless, the Bureau

granted WRNN’s request to include the remaining

Long Island communities, noting that Commission

precedent “instructs us to give little weight to the

level of viewership [that] station{s] like WRNN

achieve” and to treat Grade B contour as a “very

relevant factor” when “the other [enumerated] fac-

tors would not add significantly to the analysis of a

station’s market.” Jd. at 5957 7 10. In the Bureau’s

view, Grade B contour weighed decisively in

WRNN’s favor.

On appeal, the FCC affirmed the Bureau’s order.

WRNN License Co. (“2007 FCC Order“), 22 F.C.C.R.

21054 (2007). It disagreed with the Bureau’s analy-

sis of the local service and historical carriage fac-_

tors, finding that those factors lent additional sup-

port to the Bureau’s decision to include the Long Is-

land communities in WRNN’s market. Jd. at 21056

J 4 & n. 15. The FCC also rejected Cablevision’s

claims that the Bureau’s application of the market

modification provision violated the First Amend-

ment and the takings clause of the Fifth Amend-

ment. Id. at 21057-59 ¥{ 7-10. Cablevision filed a

timely petition for review in this court.

DISCUSSION

In general, we will overturn an agency decision

“only if it was ‘arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law.”

Cellular Phone Taskforce v. FCC, 205 F.3d 82, 89

lla

(2d Cir. 2000) (quoting 5 U.S.C. § 706(2)(A)). “An

agency’s factual findings must be supported by sub-

stantial evidence,” which means “such relevant evi-

dence as a reasonable mind might accept as ade-

quate to support a conclusion.” Jd. Gnternal quota-

tion marks omitted). We review an agency’s disposi-

tion of constitutional issues de novo. See Rural Tel.

Coal. v. FCC, 838 F.2d 1307, 1313 (D.C. Cir. 1988).

In its petition for review, Cablevision argues that

the FCC’s order improperly analyzed the statutory

factors, that its decision contravened the “purpose”

of the must-carry statute, and that requiring Cable-

vision to carry WRNN violates the First and Fifth

Amendments. We address each of these arguments

in turn.

I. The FCC’s Analysis of the Section

534(h)(1)(C) Factors

A. The Local Service Factor

Cablevision claims that the FCC failed to ade-

quately explain its finding that WRNN provided sig-

nificant programming targeted to the Long Island

communities. By insisting, however, that “at a

minimum, the FCC was required to explain” why

Cablevision’s arguments and evidence to the con-

trary were “unpersuasive,” Cablevision Br. at 35,

Cablevision overstates an agency’s duty to account

for its actions.

An administrative agency has a duty to explain

its ultimate action. See Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48

(1983) (“[T]he agency must examine the relevant

data and articulate a satisfactory explanation for its

action.”). However, it need not explain each and

12a

every step leading to this decision; it is enough “if

the agency’s path may reasonably be discerned.” Id.

(internal quotation marks omitted). Here, the rea-

son for the FCC’s decision to affirm the Media Bu-

reau’s order is perfectly clear: it agreed with the

reasoning of the Bureau in most respects and dis-

agreed in certain others, but only in ways that

strengthened the validity of the Bureau’s decision.

In such circumstances, we will not require the FCC

to sift through each piece of evidence offered by a

party and explain why it is more or less compelling

than the counter-evidence put forth by an opponent.

The fact that we review agency fact-finding for

“substantial evidence” supports our conclusion that

the FCC’s explanation was adequate. To determine

whether substantial evidence supports a finding, we

need ask only whether “a reasonable mind might

accept [it] as adequate” support. Cellular Phone

Taskforce, 205 F.3d at 89 (internal quotation marks

omitted). Here, the agency found WRNN’s evidence

that it had significant Long Island-targeted pro-

gramming to be more persuasive than Cablevision’s

evidence to the contrary. We need not know the

agency’s precise rationale in order to conclude that

it was reasonable for the agency to so find. While

such an explanation might have aided our reason-

ableness inquiry, it is not indispensable.

Both sides offered evidence regarding WRNN’s

programming content. According to Cablevision, its

evidence showed that WRNN broadcast less than an

hour of programming covering “Long Island issues”

in a “representative week.” Cablevision Br. at 33.

WRNN pointed to evidence that it had aired over

4000 Long Island-related items between June and

13a

November 2005. It would be reasonable for the

agency to resolve this conflicting evidence in favor of

WRNN and to conclude (as it obviously did) that

Cablevision failed to include some programming

that should properly be considered as local to Long

Island, or that its sample week was not actually

representative. Thus, substantial evidence supports

the FCC’s finding on this factor.

We note that the Bureau, on its initial considera-

tion of this petition, made a contrary finding as to

this factor. This fact, however, does not alter our

assessment of the FCC’s ultimate determination.

“An agency conclusion may be supported by sub-

stantial evidence even though a plausible alterna-

tive interpretation of the evidence would support a

contrary view.” Robinson v. Natl Transp. Safety

Bd., 28 F.3d 210, 215 (D.C. Cir. 1994) (internal quo-

tation marks omitted). On questions of fact, our

task on review is not to “displace [the agency’s final]

choice between two fairly conflicting views.” Uni-

versal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

B. The Historical Carriage Factor

After’ the Bureau issued its 2006 Order, but be-

fore the FCC affirmed it, Verizon began carrying

WRNN on its FiOS system to areas of Nassau and

Suffolk Counties. 2007 FCC Order, 22 F.C.C.R. at

21056 J 4 & n.15. The FCC concluded that this

“overlapping carriage provides support for WRNN-

DT with respect to the historic carriage factor.” Id.

at J 4n.15. In a single paragraph in its brief, Ca-

blevision argues that this analysis is “contrary to

clear statutory language” because “[c]arriage initi-

ated in the past few months does not constitute his-

torical carriage.” Cablevision Br. at 36-37.

l4a

Cablevision, however, fails to supply a contrary,

“correct” definition of “historically carried,” and does

not discuss whether we should defer to the Bureau’s

interpretation of the term, in accordance with Chev-

ron U.S.A., Inc. v. Natural Resources Defense Coun-

cil, Inc., 467 U.S. 837 (1984), as we did with the

must-carry statute generally in WLNY-TYV, Inc. v.

FCC, 168 F.3d at 142. Even if Cablevision could

demonstrate error in the sense that the Verizon car-

riage was not “historical,” they have failed to show

why such error would warrant vacatur given that

(1) Cablevision does not contest the propriety of con-

sidering Verizon’s carriage as an unenumerated,

non-statutory factor, and (2) the Bureau decided to

order carriage despite its belief that WRNN had not

been “historically carried” in the relevant communi-

ties. Accordingly, we decline to vacate the FCC’s

order based on this asserted error in the FCC’s

analysis of the historical carriage factor.

C. Grade B Contour

In its 1997 FCC Order involving Cablevision and

WRNN, the Commission stated that “Grade B con-

tour coverage, in the absence of other determinative

market facts (i.e.[,] ... a terrain obstacle such as a

mountain range or a significant body of water), is an

efficient tool to adjust market boundaries.” 1997

FCC Order, 12 F.C.C.R. at 12271 J 17. Cablevision

contends that the Hudson River, the Long Island

Sound, and the “skyline of New York City” consti-

tute such terrain obstacles, and it was therefore in-

consistent with the 1997 FCC Order for the FCC

and the Bureau to weigh Grade B contour in

WRNN’s favor here. Cablevision Br. at 38. The

1997 FCC Order itself torcefully rejects this reason-

15a

ing, because it explicitly endorses the use of Grade B

contour as proof of market in the New York City

DMA-the same context in which Cablevision now

contends that relying on Grade B contour is inap-

propriate. Because the 1997 FCC Order establishes,

rather than refutes, the relevance of Grade B con-

tour in market modifications within the New York

City DMA, the FCC’s decision here is consistent

with its precedent.

D. The Other Stations and Viewing Patterns

Factors

Cablevision also alleges error in the FCC’s treat-

ment of the two remaining statutory factors. In the

instant order, the FCC stated that Congress did not

intend “the ‘coverage by other qualified stations’ fac-

tor to bar a request for extending a station’s market

when other stations could be shown to serve the

communities at issue.” 2007 FCC Order, 22

F.C.C.R. at 21055-56 J 4.

In essence, then, the FCC decided to give the fac-

tor significant weight when a lack of coverage by

other stations favored including a community in a

station’s market, but to discount its importance

when the existence of coverage arguably cut against

inclusion. Cablevision argues that this decision “is

directly contrary to... the statutory text.” Cablevi-

sion Br. at 40. This argument is unavailing. The

text of the statute directs the agency to consider a

number of factors, and it is clear from the opinion

that both the FCC and the Bureau did consider this

factor. Upon doing so, the FCC saw no reason to

depart from its normal policy, which is to discount

the “other stations’ coverage” factor when it tends to

cut against inclusion. Unsurprisingly, Cablevision

16a

cites no decision of this court vacating a decision be-

cause we disagree with an agency’s weighing of a

statutory factor. The law is to the contrary. In in-

terpreting another provision of the 1992 Cable Act

that directs the FCC to undertake a factoral analy-

sis, the D.C. Circuit concluded that giving little or

no weight to a statutory factor, as long as the factor

is expressly considered, does not violate the statute:

[T]he statute by its terms merely requires the

Commission to consider the... factors.... That

means only that it must reach an express and

considered conclusion about the bearing of a fac-

tor, but is not required to give any specific weight

to it. Therefore, when the Commission, after ex-

pressly considering the potential role of the ...

factor, ultimately concluded that it should not be

given any weight, it did not violate the statute.

Time Warner Entm’t Co. v. FCC, 56 F.3d 151, 175

(D.C, Cir. 1995) (internal quotation marks and cita-

tions omitted). This sound reasoning is equally ap-

plicable here.

Cablevision also argues that the FCC improperly

weighed the evidence with respect to the viewership

patterns factor. This argument fails for the same

reasons.

II. The FCC’s Consideration of the Purposes of

the Must-Carry Statute

The market modification provision of the must-

carry statute provides that the FCC may add or re-

move communities from a local broadcast station’s

market “to better effectuate the purposes of this sec-

tion.” 47 U.S.C. § 534(h)(1)(C)G). Cablevision ar-

gues that the FCC’s inclusion of the Long Island

17a

communities in WRNN’s market contravened the

purposes of must-carry in two ways. First, expand-

ing WRNN’s market in fact frustrates the goal of

“localism” by necessarily decreasing programming

relevant to the community WRNN has traditionally

served (the Kingston community). And second, re-

warding WRNN’s actions with broader must-carry

rights encourages gamesmanship which frustrates

the purpose of must-carry, which is to preserve, but

not expand, a broadcast station’s market. We reject

the first argument because it incorrectly presumes

that WRNN cannot increase Long Island-targeted

programming without decreasing Kingston-targeted

programming. We reject the second because it rests

on a conception of the statute’s purpose that is

overly narrow, unsupported by precedent, and con-

trary to the language of the statute.

According to Cablevision, the FCC’s decision de-

feats the purposes of the must-carry statute because

“{aJny targeting of other spokes [i.e., communities

that are remote from ‘a DMA’s metropolitan center’]

necessarily comes at the expense of the station’s

community of license.” Cablevision Br. at 43. This

argument rests on the false premise that WRNN’s

programming consists entirely of either Kingston-

specific programming or Long Island-specific pro-

gramming. As Cablevision reminds us elsewhere,

however, a great deal of WRNN’s content is “home-

shopping” programming that targets neither King-

ston nor Long Island specifically. See Cablevision

Br. at 33 (claiming that 78% of WRNN program-

ming in a representative week “consisted of home

shopping and infomercials”). It is entirely possible,

and Cablevision does not suggest otherwise, that

WRNN could increase its Long Island-targeted pro-

18a

gramming by decreasing its home-shopping pro-

gramming, leaving its Kingston-targeted program-

ming unaffected. And to the extent that a Kingston

viewer might prefer certain home-shopping pro-

gramming to programming concerning Long Island,

we do not see how frustrating that preference un-

dermines localism.

Essentially, Cablevision’s claim is that, as a mat-

ter of law, a cable company in a community that is

outside a “DMA’s metropolitan center,” such as Long

Island, should not be required to carry a station

based in a different community that is also remote

from the center, such as Kingston: in Cablevision’s

parlance, a “spoke” cable company should not be re-

quired to carry a station based in a different spoke.

Congress, however, did not share that view, and, as

the FCC points out, the default rule is that WRNN

must be carried by cable operators throughout the

New York City DMA. See 47 U.S.C. § 534(a)-(b),

(h)(1)(C).

Cablevision also contends that the FCC’s decision

rewards “gamesmanship” because WRNN moved its

transmitter and changed its programming simply to

obtain must-carry privileges in other communities.

Cablevision Br. at 46. In other words, they suggest

that the FCC cannot award WRNN a regulatory

benefit if WRNN has changed its conduct in an at-

tempt to receive that benefit. This rule, applied uni-

versally, would run counter to a central premise of

the regulatory scheme that a regulated entity will

change its conduct in socially desirable ways to

achieve a regulatory benefit. Accordingly, we reject

it.

19a

Cablevision also argues that any decision that in-

creases a station’s market is contrary to the purpose

of the statute, because the purpose is “to return

broadcasters to their ‘natural market,” Cablevision

Br. at 47; thus, any FCC action which augments a

broadcaster’s market contravenes this purpose. The

purpose of the statute, however, is not to “preserve”

a group of broadcast stations, or a particular concep-

tion of a station’s market, but, inter alia, to “pre-

servle] the benefits of free, over-the-air television,”

and “promotle] the widespread dissemination of in-

formation from a multiplicity of sources.” Turner I,

512 U.S. at 662. We do not think that these pur-

poses are served only by granting broadcasters the

minimum must-carry coverage necessary for sur-

vival; or that these purposes are frustrated by ac-

tions which result in a station’s greater prosperity.

Accordingly, we conclude that the FCC did not vio-

late the statutory admonition that market modifica-

tions should be made “to better effectuate the pur-

poses of this section.” 47 U.S.C. § 534(h)\(i)(C)(i).

The remainder of Cablevision’s arguments on this

point fail to persuade us otherwise.

Ill. Cablevision’s First Amendment Challenge

Cablevision argues that “compelled carriage of

WRNN on Long Island violates the First Amend-

ment on an as-applied basis.” Cablevision Br. at 51.

We think that the Turner cases do not foreclose the

possibility of a successful as-applied First Amend-

ment challenge to the 1992 Cable Act’s market

modification provisions. In this case, however, Ca-

blevision has failed to demonstrate that the FCC

applied the market modification provision unconsti-

tutionally.

20a

As a threshold matter, a party alleging violation

of its First Amendment rights must show that the

challenged government action actually regulates

protected speech. Thus, in Turner I, the Court

found it necessary to establish, as an “initial prem-

ise,” that “[clable programmers and cable operators

engage in and transmit speech,” and that “the must-

carry rules,” in general, “regulate cable speech.” 512

U.S. at 636. Similarly, Cablevision here must ar-

ticulate how the FCC’s order “interferes with [its]

speech rights.” Time Warner Entm’t Co., 240 F.3d

at 1129.

This threshold requirement serves two interre-

jated functions. Identifying the “burden” imposed

by government action enables a court to undertake

heightened scrutiny analysis: without understand-

ing how a regulation burdens speech, a court cannot

decide whether that burden is “no greater than is

essential” to further the goals of the regulation in

question. See United States v. O’Brien, 391 U.S.

367, 377 (1968). And the failure to identify the bur-

den has an even more fundamental consequence:

without a plausible allegation that the offensive

conduct interferes with First Amendment rights or,

put differently, that the interaction between gov-

ernment and citizen “bring[s] into play the First

Amendment,” id. at 376, a reviewing court has nei-

ther a reason nor the ability to subject the conduct

of the governmental actor to heightened scrutiny.

The Turner I and Turner II Courts considered the

First Amendment implications of the “must-carry

provisions” taken as a whole, as distinguished from

the market modification provisions at issue here,

21a

and found that they posed two potential burdens on

speech rights:

First, the [must-carry] provisions restrain cable

operators’ editorial discretion in creating pro-

gramming packages by reducing the number of

cable channels over which they exercise unfet-

tered control. Second, the rules render it more

difficult for cable programmers to compete for

carriage on the limited channels remaining.

Turner II, 520 U.S. at 214 (citation, alterations, and

internal quotation marks omitted); accord Turner I,

512 US. at 637.

Cablevision raises a similar, but not identical,

First Amendment challenge to that raised in Turner

I and Turner If. Cablevision presents an as-applied

First Amendment challenge to the FCC’s order

modifying the market of WRNN, pursuant to the

provision of the must-carry statute on market de-

terminations, 47 U.S.C. § 534(h)(1)(C)Gi). The chal-

lenged order threatens the First Amendment inter-

est of Cablevision in a similar manner to that de-

scribed in Turner I and Turner II. The order re-

duces the number of channels over which Cablevi-

sion exercises editorial control by forcing it to carry

WRNN, see Turner I, 520 U.S. at 213, ani it also

makes it more difficult for the cable programming

arm of Cablevision to compete for carriage on the

remaining channels, td.

In order to apply the appropriate level of scru-

tiny, we must first determine whether the order is

content based or content neutral. Turner J, 512 U.S.

at 642. In Turner I, the Court concluded that the

burdens imposed on cable operators as well as the

benefits conferred on broadcast channels were con-

22a

tent neutral. See id. at 643-44 (“Although the provi-

sions interfere with cable operators’ editorial discre-

tion by compelling them to offer carriage to a certain

minimum number of broadcast stations, the extent

of the interference does not depend upon the content

of the cable operators’ programming. The rules im-

pose obligations upon all operators, save those with

fewer than 300 subscribers, regardless of the pro-

grams or stations they now offer or have offered in

the past.”); id. at 645 (noting that the selection of

broadcast channels that must be carried on the ca-

ble systems was “also unrelated to content”).

The Turner I Court explicitly rejected the argu-

ment that “the must-carry regulations are content

based because Congress’ purpose in enacting them

was to promote speech of a favored content.” Jd. at

646. Indeed, as the Court noted, when a cable sys-

tem is required to “make room for a broadcast sta-

tion, nothing would stop a cable operator from dis-

placing a cable station that provides all local- or

education-oriented programming with a broadcaster

that provides very little.” Jd. at 648. However,

separate from the must-carry provisions’ general re-

quirements, the Turner I Court expressly declined

to decide whether a market modification order moti-

vated by a concern for localism would be content

based or content neutral. See id. at 644 n.6. The

Court suggested that such an order might confer

“special benefits on the basis of content.” Jd.

However, we think the order before us now is con-

tent neutral. WRNN’s presumptive DMA would

have included Nassau and Suffolk counties. It was

Cablevision that first invoked the market modifica-

tion provision to exclude these counties from

23a

WRNN’s market. It succeeded based on the FCC’s

concern, in part, that WRNN lacked a Grade B con-

tour reaching Long Island. When WRNN, after ex-

panding its Grade B contour, returned to the FCC

seeking restoration of its presumptive DMA, Cable-

vision argued that the station had failed to demon-

strate that the various factors outlined in the mar-

ket modification provision, including the local pro-

gramming factor, weighed in WRNN’s favor. The

Bureau and the FCC reached different conclusions

on this factor, yet both agreed that the totality of

circumstances no longer justified excluding Long Is-

land communities from WRNN’s presumptive DMA.

The FCC considered the amount of local program-

ming provided by WRNN only in this context, v.e., in

assessing the continued need to restrict a presump-

tive market defined solely by geography. Moreover,

WRNN’s local programming was an inconsequential

factor in the FCC’s ultimate decision. Additionally,

Cablevision has not alleged, much less proven, that

the restoration of the Long Island communities to

WRNN’s market under these circumstances was

based on some illicit content-based motive. See id.

at 652. We conclude, therefore, that the order is

content neutral and deserving of intermediate scru-

tiny.

We have no trouble in concluding that the order

“advances important governmental interests unre-

lated to the suppression of free speech and does not

burden substantially more speech than necessary to

further these interests.” Turner II, 520 U.S. at 189

(citing O’Brien, 391 U.S. at 377). The burden im-

posed by the order — the loss of control over one

channel — is no greater than necessary to further

the government’s interest in preserving a single

24a

broadcast channel it found serves the local commu-

nity.

In sum, we conclude that the application of the

market modification provision in this case does not

violate the First Amendment. While we cannot rule

out the possibility that the FCC’s order might inter-

fere with speech rights in other ways, Cablevision

has presented neither factual support nor even a

theory of any such additional infringement.

IV. Cablevision’s Fifth Amendment Challenge

Finally, Cablevision asserts that by ordering it to

carry WRNN, the FCC effected a per se taking un-

der Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 426 (1982). The sine qua non of the

takings analysis in Loretto, however, is “permanent

physical occupation.” Jd. (emphasis added). This

per se takings rule is “very narrow,” id. at 441, and

its touchstone is “required acquiescence” to the oc-

cupation of the property by an uninvited stranger or

an “interloper with a government license.” FCC uv.

Fla. Power Corp., 480 U.S. 245, 252-53 (1987); see

also Buffalo Teachers Fed’n v. Tobe, 464 F.3d 362,

374 (2d Cir. 2006) (“Physical takings (or physical in-

vasion or appropriation cases) occur when the gov-

ernment physically takes possession of an interest

in property for some public purpose.”). Our own test

for whether a regulation constitutes a permanent

physical occupation, set forth in Southview Associ-

ates, Ltd. v. Bongartz, 980 F.2d 84 (2d Cir. 1992),

looks to (1) the permanency of the invasion, and

(2) whether the invasion is an “absolute, exclusive

physical occupation.” Id. at 94-95. In turn, we must

examine the nature of the interference with “the

bundle of rights that constitute ownership,” id. at

25a

95, such as the right to possess and exclude, the

right to control the use of the property, and the right

to sell the property.

The initial determination — whether the invasion

is physical — is primarily factual. Cf. John R. Sand

& Gravel Co. v. United States, 457 F.3d 1345, 1357

(Fed. Cir. 2006) (“[T]he determination of whether

government occupancy is ‘permanent’ is highly fact-

specific.”). The fact finder must determine, in the

first instance, whether any physical assets are in-

volved. See, e.g., Qwest Corp. v. United States, 48

Fed. Cl. 672, 689 (2001) (“In determining whether

plaintiffs property has been subject to a physical

taking, our initial inquiry must focus on the nature

of the property at issue. What are the physical as-

sets involved?”). The FCC found that the transmis-

‘sion of WRNN over the Cablevision system did not

require installation of any equipment at Cablevi-

sion’s facilities. “Rather, a programming stream is

transmitted in bits of data over cable bandwidth

through electrons or photons at the speed of light.”

2007 FCC Order, 22 F.C.C.R. at 21058 J 8. It fur-

ther found that Cablevision “retains complete con-

trol over its property.” Jd. We see no reason to dis-

turb these findings or the conclusion that the

transmission of WRNN’s signal does not involve a

physical occupation of Cablevision’s equipment or

property. And Cablevision effectively conceded that

this physicality is absent here when it argued in its

repiy brief that “[t]he result [under Loretto | should

be no different when the occupation is not of a

physical pipeline but of an electronic one.” Cablevi-

sion Reply Br. at 25.

26a

The amorphous nature of the alleged “taking”

suggests that the takings claim here fits more com-

fortably within the Supreme Court’s “regulatory

taking” analytical framework. See Penn Cent.

Trans. Co. v. City of New York, 438 U.S. 104 (1978).

In order to establish a regulatory taking, Cablevi-

sion was required to show that the regulation had

an economic impact that interfered with “distinct

investment-backed expectations.” Jd. at 124. Ca-

blevision has presented no such evidence despite its

“heavy burden” on this issue, Tobe, 464 F.3d at 375,

and any regulatory taking theory must therefore

fail.

CONCLUSION

Because we find no abuse of discretion or consti-

tutional violation in the FCC’s decision to include

the relevant Long Island communities in WRNN’s

market for must-carry purposes, we DENY the peti-

tion for review. In accordance with our order of

March 14, 2008, the stay of the FCC order pending

judicial review is vacated, and the applicable dead-

line for Cablevision’s compliance is one week from

the issuance of the mandate in this case.

27a

APPENDIX B

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

WRNN License Company, LLC

Petition for Modification of Television Market of

Television Station WRNN-DT, Kingston, New York

CSR 6956-A

MEMORANDUM OPINION AND ORDER

Adopted: May 23, 2006

Released: May 25, 2006

By the Deputy Chief, Policy Division, Media Bureau:

I, INTRODUCTION

1. WRNN License Company, LLC (“WRNN”), li-

censee of television station WRNN-DT, Kingston,

New York (“WRNN-DT” or the “Station”), filed the

above captioned petition for special relief, seeking to

modify the Station’s market to include all cable

communities located in Nassau and Suffolk Coun-

ties that are served by Cablevision Systems Corpo-

ration’s (“Cablevision”) cable systems in which the

Station is not carried (the “Communities”). Cablevi-

sion filed an opposition to the petition and WRNN

filed a reply. Cablevision filed a surreply, and

WRNN filed a response. For the reasons stated be-

low, we grant the petition in part and deny the peti-

tion in part.

28a

Il. BACKGROUND

2. Pursuant to Section 614 of the Communica-

tions Act and implementing rules adopted by the

Commission in Implementation of the Cable Televi-

sion Consumer Protection and Competition Act of

1992, Broadcast Signal Carriage Issues (“Must

Carry Order”),| commercial television broadcast sta-

tions are entitled to assert mandatory carriage

rights on cable systems located within the station’s

market. A station’s market for this purpose is its

designated market area (“DMA”), as defined by

Nielsen Media Research.2, A DMA is a geographic

market designation that defines each television

market exclusive of others, based on measured view-

ing patterns. Each county in the United States is

assigned to a market based on the home-market sta-

tions that receive a preponderance of total viewing

hours in the county. For purposes of this calcula-

tion, both over-the-air and cable television viewing

1 8 FCC Red 2965, 2976-2977 (1993).

2 Section 614(h)(1)(C) of the Communications Act, as

amended, provides that a station’s market shall be determined

by the Commission by regulation or order using, where avail-

able, commercial publications which delineate television mar-

kets based on viewing patterns. See 47 U.S.C. § 534(h)(1X(C).

Section 76.55(e) of the Commission’s rules requires that a

commercial broadcast television station’s market be defined by

Nielsen Media Research’s DMAs. 47 C.F.R. § 76.55(e); Defini-

tion of Markets for Purposes of the Cable Television Broadcast

Signal Carriage Riles, 14 FCC Red 8366 (1999)(“Modification

Final Report and Order”).

29a

are included.?

3. Under the Act, however, the Commission is

also directed to consider changes in market areas.

Section 614(h)(1)(C) provides that the Commission

may:

with respect to a particular television broadcast

station, include additional communities within its

television market or exclude communities from

such station’s television market to better effectu-

ate the purposes of this section.4

4. In considering such requests, the 1992 Cable

Act provides that:

the Commission shall afford particular attention

to the value of localism by taking into account

such factors as —

(1) whether the station, or other stations lo-

cated in the same area, has been historically car-

ried on the cable system or systems within such

community;

(II) whether the television station provides cov-

erage or other local service to such community;

(III) whether any other television station that is

eligible to be carried by a cable system in such

community in fulfillment of the requirements of

this section provides news coverage of issues of

concern to such community or provides carriage

3 For a more complete description of how counties are allo-

cated, see Nielsen Media Research’s Nielsen Station Index:

Methodology Techniques and Data Interpretation.

4 47US.C. § 534(h)(1)(C).

30a

or coverage of sporting and other events of inter-

est to the community; and

(IV) evidence of viewing patterms in cable and

non-cable households within the areas served by

the cable system or systems in such community.5

5. The legislative history of the provision states

that:

where the presumption in favor of [DMA] car-

riage would result in cable subscribers losing ac-

cess to local stations because they are outside the

[DMA] in which a local cable system operates, the

FCC may make an adjustment to include or ex-

clude particular communities from a television

station’s market consistent with Congress’ objec-

tive to ensure that television stations be carried

in the area in which they serve and which form

their economic market.

* BS * *

[This subsection] establishes certain criteria that

the Commission shall consider in acting on re-

quests to modify the geographic area in which

stations have signal carriage rights. These fac-

tors are not intended to be exclusive, but may be

used to demonstrate that a community is part of

a particular station’s market.®

6. In the Modification Final Report and Order,

the Commission, in an effort to promote administra-

tive efficiency, adopted a standardized evidence ap-

5 Must Carry Order, 8 FCC Red at 2976 (1993).

6 H.R. Rep. 102-628, 102d Cong., 2d Sess 97 (1992).

3la

proach for modification petitions that requires the

following evidence be submitted:

(1) A map or maps illustrating the relevant

community locations and geographic features,

station transmitter sites, cable system headend

locations, terrain features that would affect sta-

tion reception, mileage between the community

and the television station transmitter site, trans-

portation routes and any other evidence contrib-

uting to the scope of the market.

(2) Grade B contour maps delineating the sta-

tion’s technical service area and showing the loca-

tion of the cable system headends and communi-

ties in relation to the service areas.

Note: Service area maps using Longley-Rice (ver-

sion 1.2.2) propagation curves may also be in-

cluded to support a technical service exhibit.7

(3) Available data on shopping and labor pat-

terns in the local market.

(4) Television station programming information

derived from station logs or the local edition of

the television guides.

* The Longley-Rice model provides a more accurate repre-

sentation of a station’s technical coverage area because it takes

into account such factors 4s mountains and valleys that are

not specifically reflected in a traditional Grade B contour

analysis. In situations involving mountainous terrain or other

unusual geographical features, Longley-Rice propagation stud-

ies can aid in determining whether or not a television station

actually provides local service to a community under factor two

of the market modification test.

32a

(5) Cable system channel line-up cards or other

exhibits establishing historic carriage, such as

television guide listings.

(6) Published audience data for the relevant

station showing its average all day audience (i.e.,

the reported audience averaged over Sunday-

Saturday, 7 a.m., or an equivalent time period)

for both cable and noncable households or other

specific audience indicia, such as station advertis-

ing and sales data or viewer contribution re-

cords.8

Petitions for special relief to modify television mar-

kets that do not include the above evidence shal] be

dismissed without prejudice and may be re-filed at a

later date with the appropriate filing fee. The Mar-

ket Modification Final Report and Order provides

that parties may continue to submit whatever addi-

tional evidence they deem appropriate and rele-

vant.9

7. In Carriage of Digital Television Broadcast

Signals, the Commission concluded that under Sec-

tion 614(a) of the Act, a digital-only television sta-

tion has mandatory carriage rights, and amended

the rules accordingly.!° The Commission has estab-

8 47 C.F.R. § 76.59'b).

® Market Modification Final Report and Order, 14 FCC

Red at 8389.

\0 See Carriage of Digital Television Broadcast Signals, 16

FCC Red 2598, 2606 (2001)“D7TV Must Carry Report and Or-

der”); 47 C.F.R. § 76.64(f)(4). The Commission concluded that

for purposes of supporting the conversion to digital signals and

facilitating the return of the analog spectrum, a television sta-

tion may demand that one of its high definition digital

33a

lished a framework for analyzing market modifica-

tions for digital television stations.'! The Commis-

sion stated that Nielsen’s market designations, pub-

lications, and assignments for the analog television

market should continue to be binding on broadcast

stations transitioning to digital television broadcast-

ing. The presumption is that the market of the sta-

tion’s digital signal is coterminous with the station's

market area for its analog signal during the transi-

tion period.!2 The Commission also found that the

statutory factors in Section 614(h), the current proc-

ess for requesting market modifications, and the evi-

dence needed to support such petitions, will be ap-

plicable to digital television modification petitions

during the transition period when television sta-

tions broadcast both an analog signal and a digital

signal.!5 The Commission recognized that the tech-

nical coverage area of a digital television signal may

not exactly replicate the technical coverage area of

the analog television signal. Therefore, in deciding

DTV market modification cases, the Commission

(“HDTV”) or standard definition digital (“SDTV”) television

signals be carried on the cable system for delivery to subscrib-

ers in either a digital or an analog format. DTV Must Carry

Report and Order, 16 FCC Red at 2630.

‘1! See DTV Must Carry Report and Order, 16 FCC Red at

2635-36.

12 We note that in adopting technical rules for the digital

transmission of broadcast signals, the Commission attempted

to insure that a station’s digital over-the-air coverage arca

would replicate as closely as possible its current over-the-air

analog coverage area. See Sixth DTV Report and Order, 12

FCC Red 14588, 14605 (1997).

18 See DTV Must Carry Report and Order, 16 FCC Red at

2636.

34a

stated that it would take into consideration changes

in signal strength and technical coverage because of

new digital television channel assignments and

power limits. It concluded that all other matters

concerning the modification process for digital tele-

vision signals will be decided on a case-by-case ba-

sis.!4

8. In 1985, WRNN inaugurated service on analog

Channel 62 from a transmitter located on Overlook

Mountain in Woodstock, New York and the station’s

main studios in Kingston, New York. In 1996, by a

Cable Services Bureau Order, the Communities at

issue in this Petition were deleted from WRNN’s

analog television market for purposes of must

carry.5 On review of the Bureau Order, the Com-

mission concluded that WRNN failed to satisfy any

statutory criteria applicable to market modification

proceedings.'6 The Commission found that WRNN

had no history of cable carriage on Cablevision’s sys-

tems serving the Communities, that WRNN did not

provide local service to the Communities, and that

WRNN did not place either a Grade A or Grade B

contour over the Communities.'? In addition, the

Commission concluded that WRNN is geographi-

4 Id.

15 See Petition of Cablevision Systems Corporation for

Modification of the ADI of Television Broadcast Stations

WTBY, WRNN, WMBC.-TV, and WHAI-TV, 11 FCC Red 6453

(1996) (WRNN Modification Decision), aff'd WLNY-TV, Inc. v.

FCC, 163 F.3d 137 (2d Cir, 1998) (*WLNY-T'V, Inc.”).

16 Market Modifications and the N.Y. Area of Dominant In-

fluence, 12 FCC Red 12262 (1997) (“NY ADI Order”).

17 Jd. at 12266-67; see WRNN Modification Decision, 11

FCC Red at 6480-648 1.

35a

cally distant from the Communities with Woodstock,

New York, where the station’s transmitter site was

located, an average of 104.75 miles away.18 The NY

ADI Order also found that several television sta-

tions licensed to New York City and adjacent com-

munities had a closer economic nexus, cast a City

Grade signal over the Communities, and provided

more focused local programming than WRNN.!®

The Commission also determined that WRNN had

no audience in the counties in which the cable sys-

tems were located.2°

9. Cablevision serves the communities at issue

with essentially three large cable systems serving

Nassau County; Suffolk County; and Shelter Island,

Riverhead, and East Hampton (the “Shelter Isiand

System”) which are also located in Suffolk County,

New York. We will first address WRNN’s market

modification- request relating to the communities

served by Cablevision’s Suffolk, County; and Shelter

Island cable systems. As noted earlier, in the Modi-

fication Final Report and Order, the Commission

adopted standardized evidentiary requirements cov-

ering DMA modification petitions. WRNN’s petition

fails to include information required by the Modi/fi-

cation Final Report and Order with respect to the

communities served by Cablevision’s Suffolk County

and Shelter Island cable systems, and accordingly

18 NY ADI Order, 12 FCC Red at 12266-67; see WRNN

Modification Decision 11 FCC Red at 6480.

19 NY ADI Order, 12 FCC Red at 12266-67; see WRNN

Modification Decision 11 FCC Red at 6480.

20 NY ADI Order, 12 FCC Red at 12266-67; see WRNN

Modification Decision 11 FCC Red at 6480.

acai aii

36a

WRNN’s petition with regard to these systems will

be dismissed. In this instance, we note that

WRNN’s petition fails to include information regard-

ing the first and second evidentiary provisions of the

Modification Final Report Order. These provisions

require petitioners, such as WRNN, to include maps

illustrating the relevant community locations.

While WRNN provided a map showing WRNN-DT’s

predicted 41 dBu signal contour, it did not provide a

map clearly illustrating the relevant cable commu-

nities and their distances from the WRNN transmit-

ter site.21_ While 41 dBu coverage in the Nassau

County Communities is apparent, we cannot make a

reasoned analysis with respect to the isolated com-

munities served by Cablevision in Suffolk County

including Cablevision’s Shelter Island system with-

out a map indicating coverage in each specific

Community.?2 Consequently, we will dismiss

WRNN’s petition with regard to the communities

served from Cablevision’s Suffolk County; and Shel-

ter Island cable systems. In doing so, we also note

that it is evident that WRNN is geographically dis-

tant from the Communities in Suffolk County, and

that the Station is separated from those Suffolk

County Communities by the significant barriers

that the Long Island Sound and New York City pre-

sent.23 In addition, we note that WRNN’s signal lev-

els covering these isolated communities appear to be

21 47 C.F.R. §76.59(b).

22 See WRNN Petition at Exhibit 2.

23 Indeed, the driving distance between Islip, New York,

one of the closest Suffolk County Communities and Kingston,

New York, WRNN-DT’s community of license, is over 143

miles. Cablevision Opposition at Exhibit 3.

37a

weaker, as well as, more dispersed over this area of

Long Island.

10. As noted above, and contrary to the situation

regarding the communities served by Cablevision’s

systems located in Suffolk County, it is apparent

that WRNN’s 41dBu signal covers all of Nassau

County. Consequently the information relating to

maps and other geographic information becomes

less important in our analysis of WRNN’s petition

as it relates to the Nassau Communities. Therefore,

we will address the arguments raised by the parties

with respect to the communities served by Cablevi-

sion’s Nassau County cable system. However, be-

fore we address the specific arguments raised by the

parties, we note that the Commission in the NY ADJ

Order addressed a very similar factual pattern to

that presented by WRNN’s Petition.24 There, the

Commission recognized that stations, like WRNN,

that offer specialty programming generally have low

viewership levels, and for that reason the Commis-

sion instructs us to give little weight to the level of

viewership station’s like WRNN achieve.”5 Also the

Commission’s decision in the NY ADI Order recog-

nized that in instances where the other three factors

would not add significantly to the analysis of a sta-

tion’s market, Grade B coverage becomes a very

relevant factor in determining whether to modify a

particular station’s market.” In this instance, were

we to apply the other three statutory factors without

considering WRRN’s signal coverage, WRNN would

24 NY ADI Order, 12 FCC Red at 12271.

25 Id.

26 Id.

38a

have little if any carriage rights anywhere within its

New York Market. Consequently, we will address

WRNN’s petition with the Commission’s guidance in

mind.

11. WRNN asserts that since the WRNN Modifi-

cation Order, it has modified its operations and pro-

gram services and currently provides a unique local

service to the Communities located in Nassau

County from its digital-only television facilities.’

WRNN argues that it is geographically proximate to

the Nassau Communities because its new digital

transmitter site is located on Beacon Mountain,

New York, which is significantly closer to the Nas-

sau Communities that its old analog antenna site”®

WRNN emphasizes that the change in circum-

stances that led the Commission to modify WRNN-

DT’s market to include cable systems in New York

City, also warrant the addition of the Nassau Com-

munities to WRNN-DT’s market.29? Cablevision re-

sponds that the Nassau Communities are signifi-

cantly distant from WRNN-DT’s transmitter,®° and

that WRNN-DT’s signal is weak in the Communi-

ties.31. Further, Cablevision argues and that the

27 WRNN Petition at 10-11.

28 Jd. at 12-13, Exhibit 7, citing Busse Broadcasting Corp.,

11 FCC Red 6408, 6416, 6422-25 (1996), Jasas Corp., 14 FCC

Red 6968, 6972 (1999).

29 Id. at 4-5, citing WRNN License Company, LLC, Petition

for Modification of the Television Market of WRNN-DT, King-

ston, New York, 20 FCC Red 7904 (MB 2005) (*“WRNN NYC

Modification Decision”).

30 Cablevision Opposition at 11-23.

31 Jd. at 23-24.

39a

changes in circumstances that the Commission

found relevant in the WRNN NYC Modification De-

cision are not relevant to the Communities, espe-

cially given the geographic barriers that separate

the Communities from WRNN-DT’s community of

license and the dearth of WRNN-DT programming

that is relevant to residents of the Nassau Commu-

nities.32 WRNN’s market modification arguments

and Cablevision’s responsive arguments are set

forth in detail below.

Historic Carriage. WRNN-DT is a single channel

digital-only television station operating on DTV

Channel 48.22 WRNN asserts that cable systems in

areas adjacent to the Communities have historically

carried the Station.34 Additionally, WRNWN states

that digital broadcast satellite (DBS) operators

DirecTV and EchoStar make the station available to

a significant number of residents in the Nassau

Communities via local-into-local service,*5 and that

Verizon plans to carry the Station on its competitive

systems in the Nassau Communities. Cablevision

counters that neither WRNN-DT nor WTBY, an-

other Kingston-area broadcast staticn, has history

of carriage on cable systems in the Nassau Commu-

nities. Cablevision argues that only one of the 78

Communities abuts a community where WRNN-DT

(or its analog predecessor) has historically been car-

ried, and that all of the Communities are in a differ-

32 Td. at 50-52.

33: WRNN Petition at 1.

34 Id. at 8-9.

35 Td.

36 WRNN Response at 2.

40a

ent county than the adjacent communities.37 Fur-

ther, Cablevision asserts that DBS operators are

statutorily required to carry all broadcast stations

in a DMA if the DBS operator carries any broadcast

station in that DMA and the markets may not be

modified. Therefore, DBS carriage is not reliable

evidence of historic carriage.*9

12. We find that WRNN-DT (and its analog

predecessor) has not been historically carried on the

cable systems that serve the Nassau Communities.

The Commission has, however, held that carriage on

systems that serve “communities adjacent to and

near the Communities at issue is indicative of inter-

est in the programming of” the station,4° and WRNN

presents evidence of carriage on cable systems that

are adjacent or sufficiently near to those Communi-

ties that reside in Nassau County.*1

13. Local Service. WRNN asserts that it essen-

tially provides a 48 dBu City grade signal to all of

Nassau County Communities.*2 It states that the

current coverage of the Nassau County Communi-

ties is the result of facilities modifications that

WRNN has undertaken pursuant to Commission

37 Cablevision Opposition at 10.

38 Cablevision Surreply at 9, citing 47 C.F.R. § 76.66(b).

39 Cablevision Surreply at 9.

40 Petition of Paxson Communications Corporation for

Modification of Television Market of Station WPXD(TV). Ann

Arbor, Michigan, 13 FCC Red 17869, 17874 (1998).

41 See WRNN Petition at 8-9, Exhibit 5.

42 Jd. at 10-11.

4la

approval.*® According to WRNN, the Nassau Com-

munities are geographically proximate to WRNN-

DT, and that the Communities are even closer to

WRNN-DT’s main studio in Manhattan.44 WRNN

argues that the distances between the Nassau

Communities and the Station are well within the

range that the Commission has approved for adding

communities to a station’s must carry market, or in

refusing to delete communities from a station’s

market.** Cablevision notes that the Nassau Com-

munities and the Station are separated by the Long

Island Sound, and asserts that the driving distance

from the closest Community to WRNN-DT’s com-

munity of license is 111 miles.*¢

14. Each party has filed extensive engineering

reports that support their respective coverage

claims.47 On balance, we conclude that WRNN’s re-

port demonstrating that it provides a 41 dBu signal,

the functional equivalent of a Grade B signal con-

tour, over all of Nassau County to be accurate and

consistent with good engineering practices.4® As the

Commission has previously held, Grade B coverage

“is an efficient tool to adjust market boundaries be-

cause it is a sound indicator of the economic reach of

43 Id.

44 Id. at 12-14.

45 Id. at 13.

46 Cablevision Opposition at Exhibit 3.

47 See id. at Exhibit 6; WRNN Reply at Exhibits A, B and

©; Cablevision Surreply at 3-7; WRNN Response at 4-5.

48 Review of the Commission’s Rules and Policies Affecting

the Conversion to Digital Television, 16 FCC Red 5945, 5957

(2001).

A2a

a particular television station’s signal.”49 With re-

gard to programming, WRNN asserts that it airs

more than fourteen hours per week of daily, regu-

larly scheduled, local news and public affairs pro-

gramming of specific relevance to the Communities,

including “RNN Metro” and “Richard French

Live.”51 WRNN points out that “Richard French

Live” covers national and global issues as well, but

in a manner that is of particular interest to the

Communities.52 In addition, WRNN asserts that the

Station provides a wide range of other news and in-

formation programming targeted to the Communi-

ties, including “News on the Hour” in which Station

reporters provide local weather, news, financial re-

ports and traffic reports covering the Communi-

ties,°°> averaging over 650 Long Island specific re-

ports every month.54 WRNN also states that it pro-

vides entertainment calendar updates listing on-

going and one-time events throughout the New York

City area and in the Communities,®5 and that it

originates and airs numerous sporting events and

sports scores of high schools and colleges located

throughout the Communities.°6 WRNN offers let-

ters from several local political leaders in support of

carriage of WRNN-DT on cable systems in the

49. NY ADI Order, 12 FCC Red at 12271.

51 WRNN Petition at 15-23.

62 Jd. at 20.

53 Jd. at 25-26, Exhibits 18-20.

54 WRNN Reply at 13.

55 WRNN Petition at 27-28.

56 Jd. at 26-27.

43a

Communities, asserting that WRNN-DT serves the

local needs of the Communities.57

15. Cablevision counters that WRNN-DT does

not air fourteen hours of local news and public af-

fairs programming that is specifically relevant to

the Communities.5® According to Cablevision, less

than one hour of WRNN-DT’s weekly programming

is dedicated to covering Long Island issues.59 Ca-

blevision also argues that many of WRNN-DT’s

Long Island specific reports are short in duration

(often part of a headline scroll), and that most news

stories that WRNN-DT airs are national, regional

and global in scope.®®

16. We disagree with WRNN’s assertion that

WRNN-DT airs fourteen hours of programming that

is of specific relevance to the Communities every

week. The programming analysis that WRNN sub-

mitted does not indicate that much of WRNN-DT’s

programming concerning Long Island focuses on

those Communities in Nassau County.®! Further,

WRNN-DT’s situation is consistent with the “hub

and spoke” model described by the Second Circuit in

WLNY-TV, Inc,®* in which the outlying “spoke”

57 See id. at Exhibits 9-17.

58 Cablevision Opposition at 33.

59 Jd. at 34-35.

60 Jd. at 10-11.

61 See WRNN Petition at Exhibit 4.

63 See WLNY-TV, Inc., 163 F.3d at 144. Indeed, WLNY-TV,

Inc. dealt with this same issue before WRNN-DT upgraded its

system, upholding the Commission’s decision to remove Long

Island communities from WRNN’s market.

44a

communities in Nassau County and New York’s

Hudson Valley are connected by the “hub” of New

York City. The “spoke” market programming gen-

erally is not of interest to other “spoke” communi-

ties. The record in this proceeding is not impressive

relative to WRNN’s programming targeted to the

Nassau Communities. Nevertheless, the record

does indicate that WRNN airs at least some pro-

gramming aimed at the Nassau Communities. More

impressive, however, is the evidence that WRNN-

DT places a Grade B signal contour over all of Nas-

sau County. Indeed, WRNN-DT places a City Grade

signal contour over a substantial] portion of Nassau

County.®4 Based on the Commission’s guidance in

the NY ADI Order,® we find that, in this instance,

the local coverage and service factor weighs in favor

of modifying of WRNN-DT’s market with respect to

Cablevision’s Communities within Nassau County.

17. Coverage by Other Qualified Stations.

We believe that Congress did not intend this factor

to bar a request, but rather intended to enhance a

station’s claim where it could be shown that other

stations do not serve the communities at issue.®® As

we stated in the WRNN Modification Decision, how-

ever, the Communities have, “an abundance of far

64 A 48 dBu signal contour is the functional equivalent of a

City Grade signal contour. See Review of the Commission’s

Rules and Policies Affecting the Conversion to Digital Televi-

sion, 16 FCC Red 5945, 5957 (2001).

65 See supra nn. 24-26 and accompanying text (discussing

the NY ADI Order).

66 See, e.g., WRNN NYC Modification Decision, 20 FCC

Red at 7911, Lenfest Broadcasting, LLC, 19 FCC Red 8970,

8980 (2004).

45a

closer New York City and Long Island stations pro-

gramming to the cable communities.”°’ Therefore,

we assign no weight to this factor.

18. Viewership Patterns. WRNN submits evi-

dence that WRNN-DT’s cume rating in the Commu-

nities is a 5.9, argues that “[l]ast year, Long Island

residents placed hundreds of [home shopping] or-

ders with WRNN,” and offers that since the begin-

ning of 2004, WRNN has received 1,800 phone calls

from the Communities.** We do not believe that

Long Island viewership patterns of WRNN-DT meet

our “moderate level of viewership” threshold.69 We

note, however, that in cases of stations with home

shopping formats, which are specialty stations, we

do not weigh heavily a lack of audience share.’°

Therefore, while WRNN-DT may have limited audi-

ence appeal, this factor is not outcome determina-

tive on its own.

19. Conclusion. In view of the foregoing, we

find that grant of WRNN’s petition with respect to

those communities served by Cablevision’s Nassau

County cable system is in the public interest.7!

67 WRNN Modification Decision, 11 FCC Red at 6481.

68 WRNN Petition at 29-31.

69 In KSBW License, Inc., the station at issue had a 22

cume, more than three times WRNN-DT’s reported cume.

KSBW License, Inc., 11 FCC Red 2368, 2371 (1996).

70 Avenue Cable Service, Inc. 11 FCC Red 4803, 4812

(1996).

71 WRNN’s petition is granted with respect to all of the

communities served by Cablevision’s system with the identifier

PSID 003146. See WRNN Petition at Exhibit 1 (List of Com-

munities). We note that ten of the Communities served by

46a

ill. ORDERING CLAUSES

20. Accordingly, IT IS ORDERED, pursuant to

Section 614(h) of the Communications Act of 1934,

as amended,?7? and Section 76.59 of the Commis-

sion’s rules’? that the captioned petition for special

relief (CSR-6956-A), filed by WRNN License Com-

pany, LLC IS GRANTED JIN PART and IS DE-

NIED IN PART to the extent indicated herein.

21. These actions are taken pursuant to authority

delegated by Section 0.283 of the Commission’s

rules.74

FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Deputy Chief, Policy Division, Media Bureau

PSID 003146 reside in Suffolk County. We include these

communities in the modification of WRNN-DT’s market be-

cause they are an integrated part of Cablevision’s Nassau

County system, and are in close proximity to Cablevision’s

Nassau County cable system.

72 47 U.S.C. § 534(h).

73 47 C.F.R. § 76.59.

™ 47C.F.R. § 0.283.

47a

APPENDIX C

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Petition of WRNN License Company, LLC

For Modification of Television Market For Televi-

sion Station WRNN-DT, Kingston, New York

Application for Review

CSR-6956-A

WRNN License Company, LLC

v.

Cablevision Systems Corporation

Request for Mandatory Carriage of Television

Station WRNN-DT, Kingston, New York

CSR-7053-M

MEMORANDUM OPINION AND ORDER

Adopted: August 24, 2007

Released: November 29, 2007

By the Commission: Commissioners Copps and

Adelstein dissenting and issuing a joint statement.

I. INTRODUCTION

1. Cablevision Systems Corporation (“Cablevi-

sion”) has filed an application for review, pursuant

to Section 1.115 of the Commission’s rules (the

48a

“Rules”),! of the Memorandum Opinion and Order in

WRNN License Company, LLC.2 In that Order, the

Media Bureau (the “Bureau”), pursuant to Section

614(h)(1)(C) of the Communications Act of 1934, as

amended (the “Act”),® granted in part the petition of

WRNN License Company, LLC (““WRNN”) for modi-

fication of television station WRNN-DT’s market to

include cable communities located in Nassau and

Suffolk Counties, New York (the “Communities”).

WRNN filed an opposition to Cablevision’s applica-

tion, and Cablevision filed a reply to the opposition.

Based on our review of the record in this proceeding,

we deny Cablevision’s application for review.

2. WRNN also filed a must-carry complaint

against Cablevision for carriage of WRNN-DT on

cable systems serving the Communities. Cablevi-

sion filed an opposition to which WRNN replied.

WRNN also made a supplemental filing to which

Cablevision replied. In light of the similar facts,

parties, and issues presented in these proceedings,

| 47 C.F.R. § 1.115.

2 WRNN License Company, LLC Petition for Modification

of Television Market of Television Station WRNN-DT, King-

ston, New York, Memorandum Opinion and Order, 21 FCC Red

5952 (MB 2006) (““WRNN-DT Modification Order”).

3 47 U.S.C. § 534(hx1KC). Section 76.55(e) of the Rules re-

quires that a commercial broadcast television station’s markct

be defined by Nielsen Media Research’s Designated Market

Areas, or “DMAs”. See Definition of Markets for Purposes of

the Cable Television Broadcast Signal Carriage Rules, Order

on Reconsideration and Second Report and Order, 14 FCC Red

8366 (1999); 47 C.F.R. § 76.55(e).

~~ a ee — SS ontne oP NT hal tne ARRAN IA Tce

49a

we consolidate them for purposes of this action.4

Based on our review of the record in these proceed-

ing, we order Cablevision to commence carriage of

WRNN-DT within 60 days from the date on which

WRNN provides the necessary specialized equip-

ment to receive a good quality signal at Cablevi-

sion’s principal headend.®

II. DISCUSSION

3. In the WRNN-DT Modification Order, the Bu-

reau applied the four factors set forth in Section

614(h)(1)(C)§ and concluded that all of the communi-

4 See MCI Teiecommunications Corp. v. Pac. Northwest

Bell Tel. Co., Memorandum Opinion and Order, 5 FCC Red

216, 218 n.25 (1990) (“Due to the similarity of the issues and

arguments raised by the parties, the complaints have been

consolidated for disposition”); Aerco Broadcasting Corporation

And R y F Broadcasting Inc. v, DIRECTV, Inc., DIRECTV

Latin America, LLC, And Echostar Satellite, LLC, Memorari-

dum Opinion and Order, 21 FCC Red 5853 (MB 2006).

5 See Implementation of the Cable Television Consumer

Protection and Competition Act of 1992: Broadcast Signal Car-

riage Issues, Report and Order, 8 FCC Red 2965, 2991 (1993)

(“Must Carry Order”); Maranotha Broadcasting Company, Inc.,

Licensee of WFMZ-TYV, Allentown, Pennsylvania v. Harron

Communications Corp., Memorandum Opinion and Order, 11

FCC Red 10409, 10414 (CSB 1996).

§ The four statutory factors are: “(I) whether the station, or

other stations located in the same area, have been historically

carried on the cable system or systems within such commu-

nity; (Il) whether the television station provides coverage or

other local service to such community; (III) whether any other

television station that is eligible to be carried by a cable sys-

tem in such community in fulfillment of the requirements of

this section provides news coverage of issues of concern to such

community or provides carriage or coverage of sporting and

50a

ties in Nassau County and certain communities in

Suffolk County should be considered part of WRNN-

DT’s local market.? Cablevision’s application seeks

review of the WRNN-DT Modification Order on the

grounds that the Order is based on erroneous find-

ings as to material questions of fact, does not con-

sider Cablevision’s constitutional arguments, and

conflicts with the Act and Commission precedent.®

Cablevision contends that the Bureau erred in its

application of each statutory factor, and gave over-

whelming weight to WRNN-DT’s signal coverage.?

WRNN opposed the application, arguing that the

Bureau applied the four statutory factors properly

and followed applicable Commission precedent.

4. Section 614(h)(1)(C) of the Act requires the

Commission to include or exclude particular com-

munities from a television station’s market to en-

sure that a television station is carried in the areas

it serves and in its economic market.'!® We have re-

other events of interest to the community; and (IV) evidence of

viewing patterns in cable and non-cable households within the

areas served by the cable system or systems in such commu-

nity.” 47 U.S.C. § 534(h)(1)(C)Gi).

7 WRNN-DT Modification Order, 21 FCC Red at 5957-

5961. The Bureau declined WRNN-DT’s request to modify its

market to include 24 separate cable commuzuities in Suffolk

County. See id. at 5961 n.71.

8 See Application for Review at 1-2.

9 Td.

10 See H.R. REP. No. 102-628, at 97 (1992); Review of the

Commission’s Regulations Governing Television Broadcasting,

Report and Order, 14 FCC Rcd 12903, 12926 (MMB 1999)

(“DMAs are a better measure of actual television viewing pat-

terns, and thus serve as a good measure of the economic mar-

5la

viewed the record in this proceeding, which need not

be restated in detail, and we find that the Bureau

correctly modified WRNN-DT’s market. As the

Commission has stated on numerous occasions, we

do not believe that Congress intended the “coverage

by other qualified stations” factor to bar a request

for extending a station’s market when other stations

could be shown to serve the communities at issue.

Rather, we continue to believe this criterion was in-

tended to enhance a station’s claim where it could

be shown that other stations do not serve the com-

munities at issue.!! We also agree with the Bu-

reau’s conclusion that in the case of specialty sta-

tions, the viewership factor should not be afforded

significant weight.!12 We note, however, that the

Bureau erred in its analysis of WRNN-DT’s pro-

gramming by finding that WRNN’s record evidence

did not support a finding of significant programming

ketplace in which broadcasters, program suppliers and adver-

tisers buy and sell their services and products”); see also Peti-

tion of Frederick Cablevision, Inc. and C/R TV Cable, Inc.,

Memorandum Opinion and Order, 20 FCC Red 753, 754 (MB

2005).

11 WRNN-DT Modification Order, 21 FCC Red at 5960, cit-

ing WRNN License Company, LLC, Petition for Modificatien of

the Television Market of WRNN-DT, Kingston, New York,

Memorandum Opinion and Order, 20 FCC Red 7904, 7911 (MB

2005). See also Lenfest Broadcasting, LLC, Memorandum

Opinion and Order, 19 FCC Red 8970, 8980 (MB 2004), Great

Trails Broadcasting Corp., Memorandum Opinion and Order,

10 FCC Red 8629, 8633-34 (CSB 1995), Paxson San Jose Li-

cense, Inc., Memorandum Opinion and Order, 12 FCC Red

17520, 17526 (CSB 1997).

12 WRNN-DT Modification Order, 21 FCC Red at 5960 (cit-

ing Avenue Cable Service, Inc., 11 FCC Red 4803, 4812 (1996)).

52a

targeted to communities in Long Island.13 WRNN

submitted a substantial record that details pro-

gramming that focuses on Long Island, particularly

communities in Nassau County and communities in

Suffolk County that border Nassau County.!4 Cor-

rection of this error, however, serves to add more

support to the conclusions underlying the Bureau’s

decision to modify WRNN-DT’s market. Addition-

ally, the justification for modifying WRNN-DT’s

market has strengthened since the WRNN-DT

Modification Order, as WRNN-DT is now carried on

competitive cable systems in Nassau and Suffolk

Counties.15

5. Cablevision asserts that the Bureau’s decision

to modify WRNN-DT’s market to include certain ca-

ble communities in Suffolk County conflicts with the

statute and with Commission precedent. While the

Bureau should have clarified that its analysis of the

statutory factors applied equally to the Suffolk

County communities served by Cablevision’s Wood-

bury and Islip systems, we believe that carriage in

those Suffolk County communities is in accordance

with the Act and Commission precedent. The record

demonstrates that WRNN-DT’s signal strength in

13 See WRNN-DT Modification Order, 21 FCC Red at 5959-

4 See WRNN Petition at Exhibit 4.

15 See Opposition to Application for Review at 7, 15. Veri-

zon carries WRNN-DT on its systems in Massapequa Park,

Oyster Bay and Hempstead, New York. /d. at 7. This over-

lapping carriage provides support for WRNN-DT with respect

to the historic carriage factor. See 47 U.S.C.

§ 534(h)\(1)(C)(i)(D.

53a

those specific communities,!6 the local programming

that WRNN-DT directs toward those specific com-

munities,!7 and WRNN-DT’s carriage on overlap-

ping and adjacent systems in those specific commu-

nities!® all support modification of WRNN-DT’s local

market to include those specific communities. We

also note that those specific communities are served

by the same physical system that serves cable com-

munities in Nassau County. As a result, grant of

WRNN’s petition with respect to those ten commu-

nities served by Cablevision’s Woodbury and Islip

systems was proper.!9 Therefore, we find no conflict

between the WRNN-DT Modification Order and the

Act or Commission precedent.

16 See WRNN Petition at Exhibit 2

17 See id. at Exhibit 4.

18 See WRNN Reply to Opposition at 6, Opposition to Ap-

plication for Review at 7, 15.

19 Cablevision and WRNN agree that the Act and Commis-

sion precedent dictate that requests to modify a station’s mar-

ket shall be reviewed on a community-by-community basis.

See Application for Review at 24 (citing 47 U.S.C.

§ 534(h)(1)(C)(i)); Opposition to Application for Review at 16,

(citing Young Broadcasting of Lansing, Inc.; Petition for Modi-

fication of the Television Market of Television Station WLNS-

TV, Lansing, Michigan, Memorandum Opinion and Order, 18

FCC Red 24889, 24891 (MB 2003) (citing Must Carry Order, 8

FCC Red at 2977, n.139)). Based on our review of the record

and the factors listed in Section 614(h)(1)(c) of the Act, the ten

communities in Suffolk County are distinguishable from the

other cable communities in Suffolk County (e.g., WRNN-DT

provided record evidence of significant programming targeted

to those communities and those communities fall within

WRNN-DT’s coverage contour).

54a

6. Cablevision argues that the WRNN-DT Modi-

fication Order results in unconstitutional infringe-

ment of Cablevision’s free speech rights under the

First Amendment of the Constitution, as well as an

unconstitutional taking of Cablevision’s property

under the Fifth Amendment of the Constitution.2°

While Cablevision argues that the Commission “has

previously recognized that it has discretion to decide

constitutional claims,”2! we note at the outset that

the United States Supreme Court has upheld the

constitutionality of Section 614 of the Act.22

7. Turning to the specifics of Cablevision’s con-

tentions, we first address Cablevision’s argument

that mandatory carriage of WRNN-DT constitutes

an as-applied First Amendment violation. To the

contrary, we find that Supreme Court precedent

supports carriage of WRNN-DT’s signal. In the con-

text here — concerning a challenge to a content-

neutral regulation — the intermediate scrutiny

standard applies.?* Under that framework, the Su-

preme Court has sustained Section 614 of the Act’s

mandatory carriage requirements against facial

challenge, finding that the obligations further three

20 Application for Review at 16-22.

21 Jd. at 22 (citing WXTV License Partnership, G.P. Petition

for Special Relief Concerning Carriage of Television Station

WXTV, Paterson, New Jersey on Channel 41 on Certain Cable-

vision Cable Systems in the New York Television Market, Order

on Reconsideration, 15 FCC Red 3308, 3317-3319 (2000)).

22 Turner Broadcasting System v. FCC, 520 U.S. 180 (1997)

(“Turner IT”).

23 U.S. CONST. amend. I; Turner Broadcasting System v.

FCC, 512 U.S. 623, 661-662 (1994) (“Turner I”) (citing United

States v. O’Brien, 391 U.S. 367, 376-377 (1968)).

55a

important governmental interests unrelated to the

suppression of free expression and that the statuto-

rily imposed burden is no greater than necessary to

further those interests.24 Even assuming a party

may mount an as-applied First Amendment chal-

lenge to the carriage of an individual station in the

face of this Supreme Court precedent, we find, ap-

plying that precedent to the facts at issue in this

case, that Cablevision’s carriage of WRNN-DT fur-

thers at least two of the three interests identified by

the Court. In particular, we find that carriage will

help to ensure that the digital-only station (1) re-

mains a viable option for viewers who rely on free,

over-the-air television service in Nassau and Suffolk

counties, and (2) continues to number among the

multiplicity of information sources available to

viewers in those counties. Moreover, compelled car-

riage of WRNN-DT does not burden substantially

more speech than necessary because the obligation

is no more extensive than is necessary to further the

government interests identified above and is not

more extensive than that occasioned by Cablevi-

sion’s carriage of any other television broadcast sta-

tion pursuant to section 614.25

8. Second, we do not find that Cablevision has

demonstrated that mandatory carriage of WRNN-

DT would constitute a Fifth Amendment taking un-

24 Turner I, 512 U.S. at 647, 655; Turner I, 520 U.S. at

209, 224 (1997) (finding that requirements serve to preserve

the benefits of free, over-the-air broadcast television; promote

widespread dissemination of information from a multiplicity of

sources; and promote fair competition in the market for televi-

sion programming).

2 Turner I], 520 U.S. at 215-216.

56a

der either the “per se” or “regulatory” takings analy-

ses.26 To qualify as a per se taking, the challenged

government action must authorize a permanent

physical occupation of property or result in the loss

of all economically viable use of property.27 Per se

takings are defined without regard to the public in-

terest they may serve,?8 the size of the occupation,??

or the economic impact on the property owner.®°

Contrary to Cablevision’s argument, we do not be-

lieve that a per se takings analysis applies here.

The Supreme Court has advised that a per se taking

is “relatively rare and easily identified,”?! and this is

26 The “takings” clause of the Fifth Amendment provides

that no private property: “shall ... be taken for public use,

without just compensation.” U.S. CONST. amend. V. For dis-

cussion of the two current strains of takings analyses, “per se”

or “regulatory,” see generally Yee v. City of Escondido, 503 U.S.

51.9, 522-23 (1992)(“Yee”).

27 Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 4385 (1982) (“Loretto”); Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1014-1019 (1992) (“Lucas”).

28 Loretto, supra n. 27, 458 U.S. at 426 (“We conclude that

a permanent physical occupation authorized by government is

a taking without regard to the public interests that it may

serve”).

29 Id. at 436-37 (“[Clonstitutional protection for the rights

of private property cannot be made to depend on the size of the

area permanently occupied.”).

80 Jd. at 434 (“[Olur cases uniformly have found a taking to

the extent of the occupation, without regard to whether the

action achieves an important public benefit or has only mini-

mal economic impact on the owner.”).

31 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 324 (2002) (“Tahoe-Sterra Pres. Council,

Inc.”).

57a

neither. Mandatory carriage regulation effectuates

no permanent physical occupation of a cable opera-

tor’s property, such as installation of the physical

equipment at issue in Loretto v. Teleprompter Man-

hattan CATV Corp.®2 Rather, a programming

stream is transmitted in bits of data over cable

bandwidth through electrons or photons at the

speed of light while the cable operator retains com-

plete control over its physical property (e.g.,

headend equipment). Moreover, because carriage of

a single station represents only a small fraction of

available bandwidth, Cablevision has not shown a

loss of all economically viable use of its property.*%

Courts have rejected application of permanent

physical occupation to the technological realm,** and

we believe these decisions to be consistent with the

Supreme Court’s admonition that a permanent

physical occupation of property is easily identifiable

and “presents relatively few problen.s of proof.”55

9. As for its alternative takings claim, Cablevi-

sion presents virtually no substantive argument

that requiring carriage of WRNN-DT would consti-

tute a regulatory taking. A regulatory taking

analysis is conducted under the multi-factor inquiry

set forth in Penn Central Transportation Co. v. City

32 Loretto, supra n. 27.

43 Cf. Luc

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