FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,191
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TWC argues, moreover, that a waiver of the local television ownership rule in this case violates the public
interest as it would result in additional market concentration, and, in particular, TWC opposes waivers
that would result in a shift in the balance of power in the retransmission consent process.'
In their oppositions, both LIN and ACME contend that TWC is rehashing arguments that it has raised in
our current retransmission consent proceeding and that these arguments have no place in an adjudicatory
proceeding.'0 LIN argues that TWC has mischaracterized the facts of the retransmission consent
negotiation process and that its predictions about future negotiations and future competitive harm are
speculative. LIN also argues that WCWF(DT) has a statutory right to elect retransmission consent during
the election cycle. Both LIN and ACME contend that there is no legal basis to impose the conditions that
TWC seeks, arguing that these conditions have no foundation in our rules. LIN further notes that TWC
does not propose any corresponding conditions that would be imposed on MVPDs.
Discussion. The Commission applies a two-step analysis to a petition to deny under the public interest
standard. The Commission must first determine whether the petition contains specific allegations of fact
sufficient to show that granting the application would be prima facie inconsistent with the public
interest." The first step "is much like that performed by a trial judge considering a motion for directed
verdict: if all the supporting facts alleged in the [petition] were true, could a reasonable factfinder
conclude that the ultimate fact in dispute had been established."'2 If the petition meets this first step, the
Commission must determine whether "on the basis of the application, the pleadings filed, or other matters
which [the Commission] may officially notice," the petitioner has raised a substantial and material
question of fact as to whether the application would serve the public interest.'3
With respect to TWC's requested conditions regarding the retransmission consent process, TWC has not
argued that any supposedly increased bargaining position that it contends would be gained by the
combined stations violates our rules. As discussed above, TWC filed a petition for rulemakinq in which it
raised these same arguments and we have recently issued our Retransmission Consent NPRM. To the
extent that TWC argues that we should never grant any waivers that would permit the combination of two
9As part of a Transition Plan submitted with the application, LIN and ACME have entered into a Joint Sales
Agreement ("JSA"), Local Marketing Agreement ("LMA"), and Shared Services Agreement ("SSA'). The
Transition Plan also permits LIN to act as ACME's agent for retransmission consent purposes. TWC argues that
permitting stations to jointly negotiate retransmission consent agreements, while at the same time being parties to
such cooperative agreements as JSAs, LMAs, or SSAs, violates the public interest. The cooperative agreements
contained in the Transition Plan will terminate upon consummation. Therefore. we do not need to address here the
appropriateness of combining such agreements with joint negotiation rights for retransmission consent in this
o On March 3, 201 1, the Commission released In the Matter of .4menendment of the Commission's Rules Related to
Retransmission Consent, Notice of Proposed Rulemaking, MB Docket 10-71, FCC 11-31 (March 3, 2011)
("Retransmission Consent NPRM"'). TWC's Retransmission Consent Petition was an earlier filing in that
" 47 U.S.C. 309(d)(1); Astroline Communications Co., Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988)
2 Gencom. Inc. v. FCC, 832 F.2d 171, 181 (D.C. Cir. 1987) ("Gencom").
" Astroline, 857 F.2d at 1561; 47 U.S.C. 309(e).
'4 See fn. 10.
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/363/: accessed July 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.