FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,200
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the expiration of an existing agreement and, in the absence of a future retransmission consent agreement,
would require the stations to submit to a Commission-supervised dispute resolution process.
In their respective opposition pleadings, ACME, WBDT Television, and LIN assert that TWC
merely repeats arguments that it has raised in the Retransmission Consent Proceeding and that this
adjudicatory proceeding is the wrong venue in which to address them. According to ACME and WBDT
Television, TWC fails to show that the agreements at hand violate any provision of the Communications
Act of 1934, as amended, any Commission rule, or precedent with respect to cooperative arrangements
between in-market broadcasters. 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. All contend that there is no legal authority or policy basis for the
Commission to impose the conditions that TWC seeks, while LIN further notes that TWC has negotiated
on behalf of Bright House Networks in markets where both have cable systems, yet it does not propose
any corresponding conditions that would be imposed on MVPDs. In reply, TWC reiterates that it seeks
only to address the transaction-specific harms that flow from the proposed assignment.
Discussion. The Commission applies a two-step analysis to a petition to deny under the public
interest standard. First, it must 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.7
This 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.' If the petition meets this first step, the Commission then
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.9
TWC argues that permitting LIN to act as WBDT Television's agent in retransmission consent
negotiations for the station will skew the balance of power in that process such that LIN could thereby
gain bargaining leverage and enable WBDT to garner higher carriage fees as a result. We find this
argument regarding the potential harmful effects of joint negotiation, decried in the context of a specific
adjudicatory proceeding, to be speculative. The assertion that, if the application is granted, the station
might threaten to withdraw its signal during negotiations is, likewise, speculative. Equally unavailing is
the contention that the proposed assignment actually threatens concrete and imminent harms because
WBDT has announced its intention to elect retransmission consent in the next cycle, whereas it previously
has elected uncompensated must-carry status. The station has the right under our rules to elect
retransmission consent, whether or not it requests LIN to negotiate on its behalf. Indeed, TWC makes no
effort, beyond its generalized arguments, to demonstrate that the proposed assignment and related
cooperative agreements violate our rules and precedent.
Thus, despite its claims to the contrary, it is apparent that TWC's real concern is its desire for
reformation of the must-carry and retransmission consent process. The proper way to seek a reform of the
S47 U.S.C. 309(d)(1); Astroline Communications Co., Ltd Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988)
8 Gencom, hlc. v. FCC, 832 F.2d 171, 181 (D.C. Cir. 1987) ("Genconm").
9 Astroline, 857 F.2d at 1561:47 U.S.C. 309(e).
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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/m1/372/: accessed July 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.