Federal Communications Commission DA 08-2441
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
TCR Sports Broadcasting Holding, L.L.P.
d/b/a Mid-Atlantic Sports Network
v.
Time Warner Cable Inc.
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)
)
)
)
)
)
)
ORDER ON REVIEW
Adopted:  October 30, 2008 Released:  October 30, 2008
By the Chief, Media Bureau:
TABLE OF CONTENTS
Heading Paragraph #
I. INTRODUCTION.....................................................................................................................1
II. BACKGROUND.......................................................................................................................2
III. DISCUSSION..........................................................................................................................19
A. De Novo Review Standard.................................................................................................20
B. Program Carriage Discrimination......................................................................................21
1. Legal Framework.........................................................................................................21
2. Finding of Discrimination Against MASN on the Basis of Affiliation.......................26
3. Finding that Discrimination Unreasonably Restrained the Ability of MASN to 
Compete Fairly ............................................................................................................30
4. Failure of TWC to Rebut MASN’s Prima Facie Case................................................32
C. Fair Market Value..............................................................................................................42
D. First Amendment Claims...................................................................................................49
E. Jurisdictional Claims .........................................................................................................50
F. Damages ............................................................................................................................54
IV. ORDERING CLAUSES..........................................................................................................55
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I. INTRODUCTION
1. The Bureau has before it a Petition for Review 1 filed by Time Warner Cable Inc. 
(“TWC”) seeking de novo review of a decision issued by an independent arbitrator pursuant to a 
condition in the Adelphia Order.2 The Petition is an outgrowth of a longstanding carriage 
dispute between TWC and TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports 
Network (“MASN”), an unaffiliated regional sports network (“RSN”).  MASN filed an 
Opposition to TWC’s Petition,3 to which TWC replied.4 For the reasons set forth below, we 
deny TWC’s Petition, and conclude – consistent with the arbitration decision under review --
that:  (i) TWC discriminated unlawfully against MASN by refusing MASN carriage in North 
Carolina on an analog tier, and that such discrimination unreasonably restrained the ability of 
MASN to compete fairly; and (ii) MASN’s final offer more closely approximates the fair market 
value of the programming carriage rights at issue than the final offer presented by TWC.
II. BACKGROUND
2. In the Adelphia Order, the Commission approved the acquisition by TWC of 
cable systems owned by Adelphia Communications Corporation, subject to certain conditions.5  
In approving the transaction, the Commission found, among other things, that “the programming 
provided by regional sports networks is unique because it is particularly desirable and cannot be 
duplicated” and that “as a result of the transactions, the sports rights with a regional interest 
become more valuable to the Applicants.”6 Accordingly, the Commission concluded that “post-
transaction Time Warner . . . will have an increased incentive to deny carriage to rival 
unaffiliated RSNs with the intent of forcing the RSNs out of business or discouraging potential 
rivals from entering the market, thereby allowing . . . Time Warner to obtain the valuable 
programming for its affiliated RSNs.”7 To address this concern, the Commission imposed a 
condition in the Adelphia Order that required TWC to engage in commercial arbitration with any 
RSN that was unable to reach a carriage agreement with TWC, upon election by the RSN.8 This 
  
1 In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, v. Time 
Warner Cable Inc., Respondent, Petition for Review (filed July 2, 2008) (“Petition” or “Petition for Review”).
2 Applications for Consent to the Assignment and/or Transfer of Control of Licenses, Adelphia Communications 
Corporation, Assignors to Time Warner Cable Inc., et al., Memorandum Opinion and Order, MB Docket No. 05-
192, 21 FCC Rcd 8203, 8287, ¶¶ 189-90, Appendix B (2006) (“Adelphia Order”).  
3 In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, v. Time 
Warner Cable Inc., Respondent, Opposition to Petition for Review (filed July 17, 2008) (“MASN Opposition” or 
“Opposition”).
4 In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, v. Time 
Warner Cable Inc., Respondent, Reply (filed July 28, 2008) (“TWC Reply” or “Reply”).
5 Adelphia Order, 21 FCC Rcd at 8207, ¶ 5.
6 Id. at 8287, ¶ 189.
7 Id.
8 Id. at 8287-8288, ¶¶ 189-191.  Although the Commission has since suspended the RSN condition, it did so only 
with respect to disputes in which the arbitration condition had not yet been invoked.  Because MASN filed its 
arbitration demand prior to suspension of the RSN condition, the condition continues to apply to the instant dispute.  
See In the Matter of Comcast Corp., Petition for Declaratory Ruling that The America Channel is not a Regional 
Sports Network, Order, 22 FCC Rcd 17938, ¶ 24 n.66 (2007) (“TAC Order”).   
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condition was intended principally to address concerns regarding TWC’s potential incentive and 
ability to deny carriage on its cable systems to unaffiliated RSNs, and to provide such RSNs with 
an expeditious alternative to the Commission’s program carriage complaint procedures.
3. The Adelphia Order prescribed specific procedures for pursuing the arbitration 
remedy applicable to disputes concerning RSN programming.  To invoke the remedy, an 
aggrieved RSN unaffiliated with any MVPD that has been denied carriage by TWC must submit its 
carriage claim to arbitration within 30 days after the denial of carriage, or within ten business days after 
release of the Adelphia Order, whichever is later.9 The arbitrator must render a decision within 45 days 
of such request for arbitration.10  A party aggrieved by the arbitrator’s award may file with the 
Commission, within 30 days, a petition seeking de novo review of the award.11 The Commission must 
issue its findings and conclusions not more than 60 days after receipt of a petition for review, and may 
extend this review period for an additional 60 days.12 In reviewing the award, the Commission must 
examine the same evidence presented to the arbitrator, and choose the final offer of the party that more 
closely approximates the fair market value of the programming carriage rights at issue.13  
4. Pursuant to the RSN condition, on June 5, 2007, MASN filed with the American 
Arbitration Association (“AAA”) a request for commercial arbitration of a dispute with TWC 
concerning carriage of MASN on TWC’s cable systems in North Carolina.14 Among other 
things, MASN asserted that TWC had engaged in unlawful discrimination by denying it carriage 
on an analog tier, a tier that MASN claimed was more widely subscribed to than the digital tier 
on which TWC suggested it might consider carrying MASN.15 On the basis of evidence and 
arguments presented by the parties, the AAA-appointed arbitrator, on January 7, 2008, issued an 
Interim Award that found for MASN on the discrimination issue, and ordered the parties to 
proceed to a second phase of the arbitration to determine which of the parties’ final offers more 
closely reflected the fair market value of the carriage rights at issue.16 On February 21, 2008, the 
AAA removed the arbitrator from the proceeding in response to a motion to disqualify filed by 
  
9 Adelphia Order, 21 FCC Rcd at 8287-8288, ¶ 190.
10 Id.
11 Id. at 8339, Appendix B, § B.4.a.
12 Id. at 8287-8288, ¶¶ 189-190.  Pursuant to the Adelphia Order, the Bureau, on August 26, 2008, extended for an 
additional 60 days the deadline for Commission action on TWC’s Petition.  In the Matter of TCR Sports 
Broadcasting Holding, L.L.P. d/b/a Mid-Atlantic Sports Network v. Time Warner Cable Inc., Order, DA 08-1986 
(M.B. rel. August 26, 2008) (“Extension Order”).  Although the Extension Order stated that the Commission must 
act on TWC's Petition by October 28, 2008, we note that the actual deadline for disposition is October 30, 2008, 
which is 120 days from July 2, 2008, the date that TWC filed its Petition.
13 Adelphia Order, 21 FCC Rcd at 8339, Appendix B, § B.4.c.
14 In the Matter of the Arbitration between TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports 
Network, Claimant, and Time Warner Cable, Inc., Respondent, Arbitration Demand and Statement of Claim (filed 
June 5, 2007) (“MASN Arbitration Demand”).
15 Id. at 2.
16 In the Matter of the Arbitration between TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports 
Network, Claimant, and Time Warner Cable Inc., Respondent, AAA Case No. 71 472 E 00697 07, Interim Award,  
January 7, 2008 (“Interim Award”).
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TWC.17 Shortly thereafter, the AAA appointed a second arbitrator.18 After conducting a joint 
hearing that addressed the discrimination and fair market value issues, the arbitrator issued a 
Decision and Award on June 2, 2008, which found in favor of MASN on both issues.19 The 
arbitrator awarded MASN carriage on TWC’s North Carolina systems in accordance with terms 
and conditions proposed by MASN in the “baseball style” arbitration.20 TWC filed the instant 
Petition for Review urging the Commission to set aside the arbitrator’s Decision and Award.  For 
the purpose of our de novo review, we discuss in greater detail below the history of the dispute 
and the factual underpinnings of the arbitrator’s ruling.  
5. The Parties.  TWC is a multiple system operator (“MSO”) of cable television 
systems in several states nationwide, including North Carolina, where TWC serves 
approximately [REDACTED] video subscribers.21 All of TWC’s customers subscribe to the 
“basic” tier, which includes broadcast stations and public access services, and roughly 
[REDACTED] of its customers subscribe to the “cable programming services tier” (“CPST”), 
which includes services such as the Discovery Channel and A&E.22 The basic tier and CPST are 
“analog” tiers, in that TWC transmits them to subscribers in parts of the electromagnetic 
spectrum dedicated to analog transmission.23 As TWC has upgraded its cable systems to allow 
for digital transmission, TWC has used its digital spectrum to provide a “digital basic tier,” 
which includes a multitude of additional video programming services.24 In North Carolina, 
approximately [REDACTED] of TWC’s customers subscribe to the digital basic tier.25  
6. Among other programming interests, TWC is affiliated with News 14, a regional 
service that provides local news and weather programming, and that telecast the games of the 
  
17 See Letter from Christopher Cole, Case Manager, American Arbitration Association, to Evan Leo, Esq., Kellogg 
Huber, Hansen, Todd, Evans & Figel, P.L.L.C., and Jay Cohen, Esq., Paul, Weiss, Rifkind, Wharton & Garrison, 
Case No. 71 472 E 00697 07, February 21, 2008.
18 See Letter from Christopher Cole, Case Manager, American Arbitration Association, to Evan Leo, Esq., Kellogg 
Huber, Hansen, Todd, Evans & Figel, P.L.L.C., and Jay Cohen, Esq., Paul, Weiss, Rifkind, Wharton & Garrison, 
Case No. 71 472 E 00697 07, March 10, 2008.
19 In the Matter of Arbitration between TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports 
Network, Claimant, and Time Warner Cable Inc., Respondent, Case No. 71 472 E 00697 07, Decision and Award, 
June 2, 2008 (“Decision and Award” or “Award”).  Because the arbitrator reached the same conclusion as the 
Interim Award on the issue of discrimination, the arbitrator declined to vacate the Interim Award, and instead 
offered the reasoning in his Decision and Award as a “supplemental analysis.”  Id. at 16.  Nevertheless, in light of 
the AAA’s decision to remove the initial arbitrator, we limit the scope of our de novo review to the June 2, 2008 
Decision and Award.  
20 See id. at 22. 
21 In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, and 
Time Warner Cable Inc., Respondent, No. 12 494 00326 07, Time Warner Cable’s Answering Statement, filed July 
2, 2007, at 3 (“TWC Answering Statement”).
22 Id. at 4.
23 Id.
24 Id. According to TWC, digital transmission allows up to twelve video programming services to be compressed 
into a channel that, when using analog transmission, can accommodate only a single service.  Id.
25 Id. at 5.
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Charlotte Bobcats of the National Basketball Association (“NBA”) during the period of TWC’s 
negotiations with MASN.26 In addition, at the time MASN requested carriage on TWC systems, 
TWC was also affiliated with Turner South, an RSN that held the distribution rights for several 
professional sports teams, including the Atlanta Thrashers of the National Hockey League 
(“NHL”), the Atlanta Hawks NBA team, and the Atlanta Braves of Major League Baseball 
(“MLB”).27  
7. MASN is an RSN that owns the rights to produce and exhibit nearly all of the 
games of two MLB franchises – the Baltimore Orioles and the Washington Nationals.28 The 
network was established in 1996 by the Baltimore Orioles as a holding company for the Orioles’ 
television production and exhibition rights.29 In 2005, when MLB transferred the former 
Montreal Expos to Washington, D.C. to become the Washington Nationals, the Orioles executed 
a settlement agreement with MLB whereby the Orioles agreed to share their entire television 
viewing territory with the Nationals.30 Consequently, MASN is now held jointly by the owners 
of the Orioles and Nationals, and maintains the rights to produce and exhibit the games of both 
teams.  
8. In 2005 and 2006, MASN televised roughly 300 Nationals games, and, in 2007, 
began to televise all of the Orioles games.31 During the 2007 MLB season, MASN broadcast 321 
live regular season games of the Orioles and Nationals.32 Since its launch, MASN has sought 
carriage on the networks of MVPDs throughout its television territory, which stretches from 
Pennsylvania to North Carolina.33 MASN’s footprint is co-extensive with the shared television 
territories of the Orioles and Nationals, as designated by MLB.34 That territory includes 
designated market areas (“DMAs”) within the states of Maryland, Virginia, Delaware, and 
Washington, D.C., as well as parts of Pennsylvania, West Virginia, and North Carolina.35  
  
26 Id. at 25-26; see also MASN Arbitration Demand at 12-16.
27 In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, v. Time 
Warner Cable Inc., Respondent, Nos. 12 494 E 000326 07, 71 472 E 00697 07, Claimant’s Proposed Findings of 
Fact, May 2, 2008, at 8 (“MASN Proposed Findings of Fact”).  
28 In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, v. Time 
Warner Cable Inc., Respondent, Case No. 12 494 E 000326 07, Claimant’s Pre-Hearing Arbitration Brief, 
November 9, 2007, at 4 (“MASN Pre-Hearing Brief”).  
29 Id. at 5.
30 Id.
31 Id at 4.  From 1996 to 2006, MASN licensed the production and exhibition rights to certain Orioles games to 
another RSN, Home Team Sports, which was later acquired by Comcast and re-named Comcast Sports Net Mid-
Atlantic.  When MASN’s agreement with Home Team Sports expired following the 2006 MLB season, MASN 
decided that it would produce and exhibit itself all of the Orioles games.  Thus, while MASN has televised the 
Nationals games since the franchise’s inception in 2005, it has televised the Orioles games only since 2007.  Id. at 5.
32 Id.
33 Id. at 4.
34 Id., n.4.
35 Id. A DMA is a local television market area designated by Nielsen Media Research.  There are 210 DMAs in the 
United States.  See www.nielsenmedia.com.
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9. In North Carolina, the Orioles and Nationals have exclusive television rights in 
the eastern part of the state, which includes the Raleigh-Durham, Greenville-New Bern-
Washington, Myrtle Beach-Florence, Wilmington, and Norfolk-Portsmouth-Newport News 
DMAs.36 In the central part of the state, which includes the Charlotte and Greensboro-High 
Point-Winston Salem DMAs, the Orioles and Nationals share television rights with the Atlanta 
Braves and Cincinnati Reds.37 Thus, the Orioles and Nationals are “home teams” in the eastern 
part of North Carolina, and comprise two of the four “home teams” in the central region.38  
Nevertheless, the distance between the teams’ home cities and their North Carolina territory 
renders North Carolina part of their “extended inner market,” as compared with their “inner 
market” territories of Baltimore, Maryland, and Washington, D.C.39
10. The Program Carriage Dispute. MASN first sought carriage on TWC’s North 
Carolina cable systems in March 2005, when it approached TWC regarding carriage on a basic 
or expanded basic service tier.40 Shortly after TWC announced its intent to acquire the North 
Carolina cable systems of Adelphia Cable in April 2005, negotiations between the parties 
lapsed.41 After the Commission approved the Adelphia transaction in July 2006, TWC indicated 
that it would resume carriage negotiations with MASN.42 Negotiations proceeded until January 
2007, when TWC informed MASN that it had no interest in launching the service on its North 
Carolina cable systems.43 Despite repeated requests for carriage from MASN, TWC responded 
with neither a formal denial nor an alternative carriage proposal.44 Consequently, in April 2007, 
MASN informed TWC that it intended to treat TWC’s refusal to provide a carriage offer as a 
formal denial of carriage for the purpose of triggering the Adelphia Order’s arbitration remedy.45  
TWC, responding shortly thereafter, stated that it was willing to negotiate for carriage of MASN 
  
36 Declaration of Mark C. Wyche, June 1, 2007, at ¶¶ 5-6 (“Wyche Declaration”).  Within its exclusive television 
territory, an MLB team may insist that only its games be televised on programming services such as MASN.  
Petition for Review at 12.  Thus, if a cable operator were to carry a sports programming service that televised games 
of another MLB team within that territory, the MLB team with exclusive rights to that area could demand that such 
games be blacked out.  Id.
37 Id. Western North Carolina, which includes the Asheville DMA, is exclusive to the Braves and Reds.  In the 
Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, v. Time Warner 
Cable Inc., Respondent, Nos. 12 494 E 000326 07, 71 472 E 00697 07, Time Warner Cable’s Proposed Findings of 
Fact, May 2, 2008, at 6 (“TWC Proposed Findings of Fact”).
38 MASN Pre-Hearing Brief at 4.
39 Wyche Declaration at ¶¶ 5-6.
40 MASN Arbitration Demand at 10.
41 Id.
42 Id.
43 Id. at 11.
44 Id.
45 Id.
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on a digital tier, but indicated that “there may be opportunity for further negotiation.”46 In a 
letter to TWC dated May 4, 2007, MASN informed TWC of its intention to defer arbitration 
pending a final meeting between the parties on May 7, 2007 in order to “clarify TWC’s 
intentions with respect to carriage.”47 In a response on May 16, 2007, TWC put forth several 
reasons for its decision declining to carry MASN on a basic or expanded basic programming 
tier.48 On June 5, 2007, MASN filed its formal demand for arbitration with the AAA, thereby 
invoking the Adelphia Order’s arbitration remedy.49
11. The Arbitrator’s Decision and Award. Based on an extensive record that included 
live testimony, discovery by the parties, and multiple written submissions, the arbitrator, on June 
2, 2008, rendered a Decision and Award in favor of MASN, which is the basis for the TWC 
petition currently before the Bureau.  In the Decision and Award, the arbitrator identified two 
principal issues for resolution:  (i) whether TWC had engaged in unlawful discrimination by 
refusing MASN carriage on an analog tier;50 and (ii) which of the parties’ final offers more 
closely approximated the fair market value of the programming carriage rights at issue.51 After 
defining the legal standard applicable to the dispute, the arbitrator found, with regard to the first 
issue, that TWC had discriminated against MASN on the basis of affiliation, contrary to the 
Commission’s program carriage rules and the Adelphia Order, and that such discrimination 
unreasonably restrained the ability of MASN to compete fairly.  On the second issue, the 
arbitrator concluded that MASN’s final offer more accurately reflected the fair market value of 
the rights to carry MASN in its North Carolina television territory.  
12. Petition for Review.  In general, TWC argues that the Commission should set 
aside the Decision and Award on the basis that its denial of carriage on an analog tier was an 
unbiased exercise of editorial discretion and a legitimate business decision based upon a cost-
benefit analysis.52 MASN argues that the Commission should affirm the Decision and Award on 
the basis that TWC’s denial of carriage on an analog tier in North Carolina is discriminatory in 
violation of Section 616 of the Communications Act of 1934, as amended (“the Act”), the 
Commission’s program carriage rules, and the Adelphia Order.53  
  
46 See Letter from Henk Brands, Counsel for TWC, Paul, Weiss, Rifkind, Wharton and Garrison, L.L.P., to David C. 
Frederick, Counsel for MASN, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C, April 26, 2007, MASN 
Arbitration Demand, Exhibit J (“TWC April 26 Letter”).
47 Letter from David C. Frederick, Counsel for MASN, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C, to 
Henk Brands, Counsel for TWC, Paul, Weiss, Rifkind, Wharton and Garrison, L.L.P., May 4, 2007, MASN 
Arbitration Demand, Exhibit K (“MASN May 4 Letter”).
48 MASN Arbitration Demand at 12.
49 See id., Exhibit A.
50 Decision and Award at 2-3.
51 Id. at 3. 
52 Petition for Review at 33-52; see also TWC Answering Statement at 2.
53 MASN Opposition at 48-71.
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13. TWC contends that de novo review mandates that the Commission accord no 
deference to the decisions of the arbitrators in this proceeding.54 MASN argues that the 
extensive factual findings by the arbitrators – including credibility determinations -- are entitled 
to respect even with a de novo standard of review.55
14. TWC maintains that the relevant inquiry under the program carriage statute and 
rules is not whether an MVPD’s carriage decision was reasonable or consistent with market 
practices, but whether the decision was made “on the basis of” affiliation -- i.e., it was motivated 
by considerations of affiliation.56 To make such a showing, TWC claims that a program carriage 
complainant must provide evidence of intentional discrimination.57 In this regard, TWC claims, 
MASN can point to no such evidence.58 MASN contends that a program carriage complainant 
has an initial burden to establish a prima facie case by showing that it is a video programming 
vendor that is similarly situated to an affiliated video programming vendor; the defendant 
multichannel video programming distributor (“MVPD”) treats the complainant differently than 
affiliated programming vendors; and the discrimination restrains the ability of the complainant to 
compete fairly.59 MASN claims that once the complainant meets this burden, the burden shifts to 
the defendant MVPD to demonstrate a legitimate, non-discriminatory reason for the disparate 
treatment.60 MASN states that the Commission uses this burden-shifting framework in resolving 
program access cases and in other cases involving economic discrimination.61 As applied here, 
MASN claims that it has met its initial burden but that TWC has failed to meet its burden of 
demonstrating a legitimate, non-discriminatory reason for the disparate treatment.62
15. TWC contends that its decision was motivated by a variety of factors unrelated to 
MASN’s affiliation status, including the lack of vacant analog channel capacity, MASN’s lack of 
strong appeal to North Carolina subscribers, and the high cost of MASN’s programming.63  
Among other things, MASN asserts that, because TWC carried its affiliated RSN, News 14, on 
an analog tier in North Carolina, TWC’s refusal to accord MASN similar treatment constitutes 
unlawful discrimination.64 TWC contends, contrary to MASN’s claims, that MASN and News 
14 are not similarly situated, because the latter is a local news and weather service that is 
  
54 TWC Reply at 6-8.
55 MASN Opposition at 27-28.
56 Petition for Review at 33-39; see also TWC Answering Statement at 2-3.
57 Petition for Review at 34-35; TWC Reply at 17.  To support its claims, TWC relies on court precedent interpreting 
statutes, such as employment discrimination laws, that prohibit discrimination “on the basis of” a prohibited 
consideration.  Petition for Review at 34, citing 47 U.S.C. § 536(a)(3).
58 Id. at 33-39.
59 MASN Opposition at 30.  
60 Id.
61 Id. at 33.
62 Id. at 48-65.
63 Petition for Review at 40-52.
64 MASN Opposition at 48-71; see also MASN Arbitration Demand at 1-2.
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attractive to a North Carolina audience, whereas the former is not.65 MASN contends that 
TWC’s carriage denial is an attempt to protect TWC’s own RSN and other affiliated content, 
and, by virtue of TWC’s continuing vertical integration into North Carolina’s market for regional 
sports, part of a broader strategy to solidify TWC’s dominance in the MVPD market.66 Thus, 
MASN asserts, TWC’s purportedly legitimate business reasons for refusing to carry MASN are 
illusory and merely a pretext for discrimination.67  
16. TWC claims that, in order to demonstrate that its carriage decision “unreasonably 
restrain[ed] the ability of [MASN] to compete fairly,” MASN must demonstrate that “without 
carriage, [it] cannot compete at all, i.e., would exit the industry, operate at a loss, or suffer some 
similar major disadvantage.”68 TWC asserts that its refusal to carry MASN on an analog tier 
does not hamper MASN’s ability to compete fairly because MASN recovers most of its costs in 
“core” markets, such as Washington, DC and Baltimore, rather than outlying markets such as 
North Carolina.69 According to MASN, carriage on a basic or expanded basic tier is essential for 
it to establish a presence in North Carolina, because TWC is, by far, the largest MVPD in the 
state.70
17. With respect to the fair market value for carriage of MASN, TWC generally 
argues that its final offer more closely reflects the fair market value, as evidenced by the decision 
of other North Carolina cable operators to deny carriage to MASN, MASN’s poor ratings, and 
MASN’s high cost relative to more popular programming services.71 MASN asserts that its final 
offer more closely reflects the fair market value because it mirrors the carriage agreement 
between MASN and four of the five largest MVPDs in North Carolina, as well as agreements 
that TWC has executed with other RSNs in markets similar to North Carolina.72  
18. Finally, TWC claims that a decision requiring TWC to carry MASN would 
violate the First Amendment.73 In addition, TWC puts forth a number jurisdictional claims, 
arguing that:  (i) the Adelphia Order arbitration condition does not apply because there has been 
no “denial of carriage”;74 (ii) MASN’s claims are time-barred;75 (iii) the Adelphia Order
  
65 Petition for Review at 47-52; see also TWC Answering Statement at 2.
66 MASN Arbitration Demand at 19; MASN Pre-Hearing Brief at 13-14.
67 MASN Pre-Hearing Brief at 30-46.
68 Petition for Review at 63.
69 Id. at 62-66; see also In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports 
Network, Claimant, v. Time Warner Cable Inc., Respondent, Case No. 12 494 E 000326 07, Time Warner Cable’s 
Pre-Hearing Brief, at 54-55 (“TWC Pre-Hearing Brief”).
70 MASN Opposition at 71-78; see also MASN Arbitration Demand at 9.
71 Petition for Review at 66-71.
72 MASN Opposition at 78-94; see also MASN Arbitration Demand at 19.
73 Petition for Review at 72-77; see also TWC Pre-Hearing Brief at 55-59.
74 Petition for Review at 77-81; see also TWC Pre-Hearing Brief at 60-63.
75 Petition for Review at 81-85; see also TWC Pre-Hearing Brief at 63-67.
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arbitration condition does not apply because MASN is not an RSN in North Carolina;76 and (iv) 
the Commission is not authorized to require mandatory arbitration.77
III. DISCUSSION
19. Based upon our de novo review of the evidence and arguments in the arbitration 
proceeding, we conclude that:  (i) TWC violated the program carriage statute and rules by 
discriminating against MASN on the basis of affiliation, and that such discrimination 
unreasonably restrained the ability of MASN to compete fairly; and (ii) MASN’s final offer more 
closely approximates the fair market value of the programming carriage rights at issue than the final 
offer presented by TWC.  We conclude that these rulings are amply supported by the arbitration 
record, which establishes a preponderance of evidence in favor of MASN.  Below, we discuss 
the standard of review governing petitions for review filed pursuant to the RSN condition in the 
Adelphia Order.  We then analyze the record evidence to determine whether TWC discriminated 
unlawfully against MASN.  Next, we address which of the final offers presented more closely 
approximates the fair market value of the programming carriage rights at issue.  Finally, we address First 
Amendment and jurisdictional claims put forth by TWC. 
A. De Novo Review Standard  
20. As noted above, to constrain TWC’s ability to unlawfully refuse carriage to 
unaffiliated RSNs, the Adelphia Order established a remedy based on commercial arbitration.78  
Appendix B of the Adelphia Order provides, in relevant part, that “[a] party aggrieved by the 
arbitrator’s award may file with the Commission a petition seeking de novo review of the 
award.”79 Pursuant to this condition, the Commission may not hold another evidentiary hearing 
or allow the parties to adduce new evidence.  Rather, the Adelphia Order provides that “[i]n 
reviewing the award, the Commission will examine the same evidence that was presented to the 
arbitrator and will choose the final offer of the party that most closely approximates the fair 
market value of the programming carriage rights at issue.”80 Although the Commission thus is 
compelled to review the award, including the arbitrator’s ruling on both the discrimination and 
fair market value issues, the Commission may depart from the arbitrator’s findings based on its 
de novo review of the existing evidentiary record.  
B. Program Carriage Discrimination
1. Legal Framework
21. Based upon our review of the record, we agree with the arbitrator’s conclusion 
that TWC discriminated against MASN within the meaning of the Adelphia Order and the 
Commission’s program carriage requirements.  In considering this issue, the arbitrator addressed 
the threshold question of what legal framework should apply to disputes brought pursuant to the 
RSN arbitration condition.  The arbitrator determined that it should adjudicate such disputes by 
  
76 Petition for Review at 86-92; see also TWC Pre-Hearing Brief at 67-70.
77 Petition for Review at 92-93.
78 Adelphia Order, 21 FCC Rcd at 8287-8288, ¶¶ 189-191.
79 Id. at 8339, Appendix B, § B.4.a.
80 Id., Appendix B, § B.4.c.
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reference to the Commission’s program access and program carriage decisions.81 The arbitrator 
specifically concluded that, pursuant to those decisions, “the claimant must establish a prima 
facie case of discrimination as defined by the applicable statute, at which point the burden shifts 
to the respondent to justify treatment of [the] non-affiliated programmer.”82  
22. The arbitrator correctly concluded that the Commission’s program carriage 
scheme provides the relevant legal framework for disputes arising under the RSN condition.  As 
noted above, the arbitration remedy established in the Adelphia Order was intended, among 
other things, to provide an alternative to the Commission’s program carriage complaint 
procedures.83 Thus, our analysis of the instant dispute must be guided by the framework set forth 
in Section 616 of the Act, and the Commission’s implementing rules and decisions.  Pursuant to 
Section 616, the Commission must “establish regulations governing program carriage 
agreements and related practices between cable operators or other multichannel video 
programming distributors and video programming vendors.”84 The statute was intended, among 
other things, to prohibit multichannel video programming distributors from discriminating 
against video programming vendors based on their affiliation or non-affiliation, and thus 
required the Commission to adopt regulations that:
contain provisions designed to prevent a [MVPD] from engaging in conduct the effect of 
which is to unreasonably restrain the ability of an unaffiliated video programming vendor 
to compete fairly by discriminating in video programming distribution on the basis of 
affiliation or nonaffiliation of vendors in the selection, terms, or conditions for carriage of 
video programming provided by such vendors.85  
23. In light of our finding above, we reject TWC’s assertion that the applicable 
standard for assessing discrimination under Section 616 is derived from “the body of law that has 
arisen under Title VII [of the Civil Rights Act of 1964]’s prohibition on racial discrimination, the 
[Age Discrimination in Employment Act of 1967]’s prohibition on age discrimination, and other 
similar statutes,” because “[t]hat body of law addresses discrimination in ‘normal business 
practices’ such as hiring and firing employees.”86 As the arbitrator noted, the vague reference in 
the legislative history of the 1992 Cable Act to “discrimination in normal business practices” is 
not persuasive evidence of Congress’ intent to apply employment law standards to program 
carriage disputes, an area wholly unrelated to economic-based discrimination like that at issue in 
  
81 Decision and Award at 6-7.
82 Id. at 7.
83 Adelphia Order, 21 FCC Rcd at 8287-8288, ¶¶ 189-191.
84 47 U.S.C. § 536.
85 47 U.S.C. § 536(a)(3); see 47 C.F.R. § 76.1301(c) (implementing discrimination provision).
86 Decision and Award at 7, citing In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic 
Sports Network, Claimant, v. Time Warner Cable Inc., Respondent, Nos. 12 494 E 000326 07, 71 472 E 00697 07, 
Time Warner Cable’s Stage 1 Opening Brief, May 8, 2008, at 4 (“TWC Stage 1 Opening Brief”).
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this case.87 This is particularly true where, as here, the Communications Act and the 
Commission’s rules set forth specific criteria for identifying program carriage discrimination.88
24. We reject TWC’s assertion that the arbitrator’s legal standard effectively imposes 
common carrier obligations on MVPDs insofar as it would require MVPDs to “treat all comers 
equally.”89 In contrast to Title II of the Act, which imposes on common carriers an obligation to 
provide service upon reasonable request, the carriage obligations imposed by Section 616 attach 
only where a vertically-integrated MVPD is carrying an affiliated programming network.90 In 
such cases, the MVPD is not precluded from treating unaffiliated programmers disparately from 
affiliates, so long as it can demonstrate that such treatment did not result from the programmer’s 
status as an unaffiliated entity.91 We thus find, contrary to TWC’s assertion, that Congress’ 
intent to distinguish discrimination in the program carriage and common carrier contexts92 is 
entirely consistent with the legal standard applicable to program carriage disputes such as that 
presented here.
25. We further find that the burden of establishing a prima facie showing is not as 
onerous as TWC suggests.93 As we noted in the Adelphia Order, vertically-integrated MVPDs 
have a strong incentive to force unaffiliated RSNs out of business, or to discourage potential 
rivals from entering the market, thereby allowing such MVPDs to obtain valuable programming 
for affiliated RSNs.94 Given this incentive, we find it unlikely, as TWC suggests, that direct 
evidence of affiliation-based discrimination would exist and thus be accessible to complainants.  
In addition, because MVPDs have superior access to information justifying their carriage 
decisions, we conclude that it would be unreasonable to require a complainant to provide direct 
evidence that its affiliation status had a determinative influence on the denial of its carriage 
  
87 Decision and Award at 7, citing H.R. Rep. No. 628, 102nd Cong., 2nd Sess., at 110 (1992).
88 See 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c) (prohibiting discrimination “on the basis of affiliation or 
nonaffiliation of vendors in the selection, terms or conditions for carriage”).
89 Petition for Review at 55.
90 See 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c).
91 See MASN Opposition at 40.
92 See Petition for Review at 55, citing H.R. Rep. No. 628, 102nd Cong., 2nd Sess., at 110 (1992) (“The Committee 
intends that the term ‘discrimination’ is to be distinguished from how that term is used in connection with actions by 
common carriers subject to Title II of the Communications Act”).
93 See Petition for Review at 34-35.  In particular, TWC asserts that:
[Section 616 and the program carriage rules] strike only at carriage decisions that are made ‘one 
the basis of’ affiliation – i.e., that are motivated by considerations of affiliation.  Thus, a cable 
operator discriminates on the basis of affiliation if, in making a decision not to carry a particular 
video-programming service, the cable operator places weight on the service’s affiliation status.  
Courts have consistently interpreted [similar statutes] to require intentional discrimination, i.e., 
that the prohibited factor played a role in the decision making process and had a determinative 
influence on the outcome. 
Id.
94 Adelphia Order, 21 FCC Rcd at 8287, ¶ 189.
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request.95 We find that interpreting Section 616 of the Act to impose a more exacting burden on 
the complainant, as TWC maintains, not only would be at odds with the statute’s underlying 
purpose, but would foreclose legitimate complaints regarding prohibited conduct by vertically-
integrated cable operators.  For these reasons, we reject TWC’s assertion that MASN was 
required to meet a higher evidentiary burden.
2. Finding of Discrimination Against MASN on the Basis of Affiliation
26. In applying the program carriage framework and reviewing the record evidence, 
we conclude that TWC discriminated against MASN on the basis of affiliation in violation of the 
Adelphia Order and the Commission’s program carriage provisions.  As an initial matter, we find 
that MASN established a prima facie showing of unlawful discrimination on the basis of 
affiliation.96 The Commission’s Program Carriage Second Report and Order implementing 
Section 616 of the Act offers guidance on the specific elements needed for a complainant to 
satisfy its evidentiary burden:  
A complainant alleging a violation of Section 616(a)(3) [involving 
discrimination] must demonstrate that the effect of the conduct that prompts the 
complaint is to unreasonably restrain the ability of the complainant to compete 
fairly. . . .  [T]he complaint must identify the relevant Commission regulation 
allegedly violated, and must describe with specificity the behavior constituting the 
alleged violation.  The complainant must establish that it is a video programming 
vendor, as defined in Section [76.1300(e)] of the Commission’s rules, and that the 
defendant is a multichannel distributor as defined in Section [76.1300(d)].  For 
complaints alleging discriminatory treatment that favors “affiliated” programming 
vendors, the complainant must provide evidence that the defendant has an 
attributable interest in the allegedly favored programming vendor, as set forth in 
[Section 76.1300(b)].  The complaint must be supported by documentary evidence 
of the alleged violation, or by an affidavit (signed by an authorized representative 
or agent of the complaining programming vendor) setting forth the basis for the 
complainant’s allegations.97
27. Our review of the record satisfies us that MASN has established a prima facie 
case of discrimination.  First, the record supports MASN’s contention that it is a “Regional 
Sports Network” as that term is defined in the Adelphia Order:
any non-broadcast programming service that (1) provides live or same-day 
distribution within a limited geographic region of sporting events of a sports team 
  
95 See MASN Opposition at 33.  
96 Decision and Award at 11-13.
97 In the Matter of Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and 
Competition Act of 1992, Development of Competition and Diversity in Video Programming Distribution and 
Carriage, 9 FCC Rcd at 2642, 2648 ¶ 14, 2654 ¶ 29 (1993) (“Program Carriage Second Report and Order”).  These 
evidentiary requirements are reflected in the Commission’s procedural rules governing program carriage complaints.  
For example, such rules require that the complainant identify the aggrieved programmer, provide evidence that the 
MVPD meets the relevant attribution standards, and demonstrate that the conduct complained of unreasonably 
restrained the complainant’s ability to compete fairly.  See 47 C.F.R. §§ 76.1302(c)(1)-(c)(3).
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that is a member of Major League Baseball, the National Basketball Association, 
the National Football League, the National Hockey League, NASCAR, NCAA 
Division I Football, NCAA Division I Basketball and (2) in any year, carries a 
minimum of either 100 hours of programming that meets the criteria of 
subheading 1, or 10% of the regular season games of at least one sports team that 
meets the criteria of subheading 1.98
Because MASN carries virtually all of the regular season games of the Baltimore Orioles and 
Washington Nationals, and provides “live distribution” of the requisite sporting events in a 
limited geographic region, MASN satisfies both parts of the above definition.99 Our analysis is 
consistent with the Commission’s findings in the Adelphia Order, wherein the Commission 
stated: 
[f]or RSNs, the relevant unit of analysis encompasses the area where particular 
highly valued sports programming is available to consumers.  Sports 
programming generally is available only to consumers located within the 
authorized viewing zone for a team’s programming. . . .  Because individual 
DMAs usually are entirely encompassed within the authorized viewing zone for a 
team’s games and contain those fans that value its programming most highly, we 
find it reasonable to define the relevant geographic market for the analysis of 
harms concerning access to RSNs as any DMA that is home to a sports team.100  
Thus, we agree with the arbitrator’s finding that MASN constitutes an RSN.101  
28. We disagree with Time’s Warner’s assertion that an entity does not constitute an 
RSN under the Adelphia Order in areas, such as North Carolina, that are remote from the city in 
which the RSN’s team plays, because the competitive concerns identified in the Order are not 
implicated, i.e., TWC would not be able to drive MASN out of business by denying carriage in 
North Carolina.102 First, TWC’s narrow reading of the relevant geographic market finds no 
support in the text of the Adelphia Order.103 In addition, the Orioles and Nationals have been 
  
98 Adelphia Order, 21 FCC Rcd at 8336, Appendix B, § A.
99 MASN Opposition at 107.  
100 Adelphia Order, 21 FCC Rcd at 8259, ¶ 126.
101 As an RSN, MASN also constitutes a “video programming vendor” as defined in Section 76.1300(e) of the 
Commission’s rules.  See 47 C.F.R. § 76.1300(e); TAC Order, 22 FCC Rcd at 17944-17945, ¶¶ 18-23 (“[W]e see no 
need to draw a distinction between a ‘video programming vendor’ under the Commission’s program carriage rules 
and a person who provides a ‘video programming service’ as that term is used in the Adelphia Order’s definition of 
an RSN.”).
102 Petition for Review at 87.
103 See Adelphia Order, 21 FCC Rcd at 8258-8262, ¶¶ 122-129 (discussing the relevant geographic market for 
potential harms deriving from access to regional programming).
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designated by MLB as “home teams” in most of North Carolina.104 Finally, we note that while 
the Commission, in the Adelphia Order, expressed concern that TWC could force unaffiliated 
RSNs out of business, it was equally concerned with the possibility that a carriage denial might 
“discourag[e] potential rivals from entering the market, thereby allowing . . . Time Warner to 
obtain the valuable programming for its affiliated RSNs.”105 Thus, we find TWC’s RSN 
definition to be too narrowly defined and inconsistent with the competitive concerns identified in 
the Adelphia Order.106
29. The record also reflects that, during the period that MASN sought carriage, TWC 
owned News 14,107 an RSN that broadcast a significant number of the games of the Charlotte 
NBA franchise, the Bobcats, in North Carolina.108 MASN’s programming was at least as popular 
as the sports programming distributed by News 14, and thus comparable in terms of demand.109  
Yet, TWC carried its affiliated RSN on an analog tier but refused to carry comparably popular 
unaffiliated programming at all.  Indeed, TWC has carried all of its affiliated RSNs nationwide, 
including News 14 and Turner South, on basic or expanded basic tiers.110 By placing News 14 
  
104 MASN Pre-Hearing Brief at 4.  As noted above, in defining the relevant geographic market for purposes of 
analyzing potential harms deriving from access to regional programming, the Commission stated in the Adelphia 
Order that the relevant unit of analysis is the area where particular highly valued sports programming is available to 
consumers, and encompassed the authorized viewing zone for a team’s programming, which is typically established 
by teams or leagues.  Adelphia Order, 21 FCC Rcd at 8259, ¶ 125 and n.422.
105 Id. at 8287, ¶ 189.  Because we find that MASN is an RSN under the Adelphia Order, we reject TWC’s assertion 
that the Decision and Award constituted an improper exercise of the arbitrator’s jurisdiction under the Adelphia 
Order.  See Petition for Review at 86-92.
106 We further find that the issue of “remoteness” is more appropriately considered in evaluating an MVPD’s 
proffered justification for refusing to carry an unaffiliated RSN.
107 TWC held an “attributable interest” in News 14 during the period that MASN sought carriage on TWC’s 
systems.  The existence of an attributable interest in an allegedly favored RSN is sufficient to establish an 
“affiliation” for purposes of making a prima facie showing.  Program Carriage Second Report and Order, 9 FCC 
Rcd at 2654, ¶ 29 (“For complaints alleging discriminatory treatment that favors ‘affiliated’ programming vendors, 
the complainant must provide evidence that the defendant has an attributable interest in the allegedly favored 
programming vendor, as set forth in Section 76.1300. . . .”)  Thus, we reject TWC’s suggestion that the Adelphia 
Order and the Commission’s program carriage rules dictate a more subjective comparison of the affiliated and 
unaffiliated RSNs at issue in a program carriage dispute.  See, e.g., Petition for Review at 3, 22, 53.
108 TWC Proposed Findings of Fact at 12; Declaration of Carol Hevey, July 2, 2007, at ¶¶ 29-30.  News 14 televised 
50 Bobcats games, or approximately 150 hours of programming, which equates to more than ten percent of the 
team’s regular season games.  See In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic 
Sports Network, Claimant, vs. Time Warner Cable Inc., Respondent, Transcript of December 17, 2007 Hearing, at 
32:9-20 (Mr. Frederick).  Thus, News 14 constituted an RSN during the relevant time period.
109 Supplemental Declaration of Mark C. Wyche, November 9, 2007, at ¶¶ 3-5 (“Wyche Supplemental 
Declaration”).  MASN presented evidence that Nielsen ratings for games of the Baltimore Orioles during the 2006 
MLB season were higher than games for the Charlotte Bobcats during the 2005-2006 NBA season.  Id.  
110 Wyche Declaration at ¶ 20.  As noted above, at the time MASN requested carriage, TWC was also affiliated with 
Turner South, an RSN that held the distribution rights for several professional sports teams, including the Atlanta 
Thrashers NHL team, the Atlanta Hawks NBA team, and the Atlanta Braves MLB team, which TWC carried on an 
analog tier in North Carolina.  MASN Proposed Findings of Fact at 8.  Although TWC is no longer affiliated with 
Turner South and has sold its rights to distribute the Bobcats games, this does not render moot or discredit MASN’s 
discrimination claim.  We find that TWC, as a vertically-integrated MVPD, continues to have an incentive and 
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on an analog tier, TWC delivered Bobcats games to all of its subscribers in North Carolina’s 
three largest markets, including Greensboro-High Point-Winston Salem, Charlotte, and Raleigh-
Durham.111 Thus, TWC made available its affiliated RSN to approximately 85 percent of its 
North Carolina subscribers in MASN’s territory.112 Based on this evidence, we conclude that 
TWC treated MASN differently from its affiliates.113
3. Finding that Discrimination Unreasonably Restrained the Ability of 
MASN to Compete Fairly
30. We further find that TWC’s conduct in denying MASN carriage on an analog tier 
“unreasonably restrain[ed] the ability of an unaffiliated video programming vendor to compete 
fairly”114 within the meaning of the Commission’s program carriage provisions and the Adelphia 
Order.  As a threshold matter, we disagree with TWC that Section 616 requires a showing that 
“without carriage, [a complainant] cannot compete at all, i.e., would exit the industry, operate at 
a loss, or suffer some similar major disadvantage.”115 Neither the text of Section 616, nor its 
legislative history, support such a restrictive interpretation.  To the contrary, the language of 
Section 616 is broadly directed at conduct that has the “effect of . . . restrain[ing] . . . the ability 
of a programm[er] . . .  to compete fairly.”116 In addition, the legislative history indicates 
Congress’ general concern about the incentive and ability of vertically-integrated MVPDs, like 
TWC, to favor their affiliated programming services by, among other things, bestowing on them 
“more desirable channel position[s]” than other programmers.117 Thus, while a programmer’s 
    
ability to acquire the programming rights of unaffiliated RSNs, like MASN, for future distribution through other 
outlets.  See Adelphia Order, 21 FCC Rcd at 8287, ¶ 189.   In addition, the sale of Turner South and the Bobcats 
rights is not relevant to the issue of whether TWC engaged in unlawful discrimination during the period of its 
negotiations with MASN.  Our conclusion is consistent with the Commission’s finding in other contexts that steps 
taken by a licensee following a violation do not eliminate the licensee’s responsibility for the period during which 
the violation occurred.  SBC Communications, Inc., Order of Forfeiture, 16 FCC Rcd 5535, 5542, ¶ 18; see also 
Coleman Enters., Inc. d/b/a Local Long Distance, Inc., Order of Forfeiture, 15 FCC Rcd 24385, 24388, ¶ 8 (2000); 
America’s Tele-Network Corp., Order of Forfeiture, 16 FCC Rcd 22350, 22355, ¶ 15 (2001).
111 MASN Pre-Hearing Brief at 19.
112 Id.
113 Decision and Award at 12.
114 47 U.S.C. § 536(a)(3); see also 47 C.F.R. § 76.1301(c).  In particular, Section 616 of the Act directs the 
Commission to establish regulations governing program carriage agreements between cable operators and video 
programming vendors that: 
contain provisions designed to prevent a multichannel video programming distributor from 
engaging in conduct the effect of which is to unreasonably restrain the ability of an unaffiliated 
video programming vendor to compete fairly by discriminating in video programming distribution 
on the basis of affiliation or nonaffiliation of vendors in the selection, terms, or conditions of 
carriage of video programming provided by such vendors.
47 U.S.C. § 536(a)(3).
115 Petition for Review at 63.
116 47 U.S.C. § 536(a)(3).
117 S. Rep. No. 102-92 at 25 (1992), reprinted in 1992 U.S.C.C.A.N. 1133, 1158.
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exit from the market or loss of significant revenue might be the most straightforward evidence of 
its inability to “compete fairly,” we believe that both the language and policy underlying Section 
616 compel a more expansive interpretation.  
31. In accordance with this interpretation, we conclude that the evidence and 
testimony produced by MASN in the arbitration support a finding that TWC’s conduct restrained 
MASN’s ability to compete fairly for viewers, advertisers, and sports programming rights.118  
MASN put forth evidence that virtually all RSNs that are comparable to MASN in terms of 
programming content and audience size are carried on a basic or expanded basic tier.119 In 
addition, as MASN points out, regional sports programming is among the most expensive 
programming in the industry, and RSNs must recover the costs of such programming through 
per-subscriber fees and the sale of advertising.120 Because RSNs, unlike national networks, are 
regional in nature, they require access to the maximum number of subscribers within their 
footprints, including the RSN’s extended inner markets, in order to compete effectively.121  
MASN’s inability to obtain analog carriage in North Carolina from TWC – the most widely 
penetrated MVPD in the state -- forecloses access to approximately [REDACTED] subscribers, 
thus hampering MASN’s ability to compete with other RSNs in North Carolina, a state within 
MASN’s “home territory.”  First, we find that MASN’s foreclosure from the North Carolina 
market by TWC restrains MASN’s ability to compete with more widely distributed RSNs for 
advertising revenues.  As MASN asserts, broad penetration is important to advertising revenues 
because RSNs “need to get the eyeballs to sell advertising.”122 In addition, MASN’s inability to 
obtain analog carriage on TWC systems in North Carolina hampers its ability to compete for 
sports programming rights, especially those involving North Carolina teams.  Indeed, MASN’s 
failure to win the distribution rights to the Carolina Hurricanes resulting from TWC’s denial of 
broad carriage in North Carolina is persuasive evidence that TWC’s conduct unreasonably 
restrained MASN’s ability to compete fairly.123 We thus conclude that TWC’s conduct in 
  
118 See Decision and Award at 13 (“With respect to the requirement that MASN demonstrate that the effect of 
TWC’s discrimination is to unreasonably restrain MASN’s ability to compete fairly, MASN demonstrates that it 
must compete with TWC affiliates for advertising dollars directed at sports fans, for sports broadcasting rights, and 
for the viewership of North Carolina sports fans.”).
119 Wyche Declaration at ¶ 14.
120 Id; see also Transcript of May 20, 2008 Hearing, 220:8-22 (Mr. Wyche) (RSN rights fees for professional sports 
programming are “some of the highest in the . . . country on any network,” and thus RSNs “need a huge subscriber 
base and need to be penetrated throughout their home territory.”).
121 MASN Opposition at 71, n.243.
122 Transcript of May 20, 2008 Hearing, 221:1-2 (Mr. Wyche).
123 MASN Opposition at 72-73, citing Transcript of May 20, 2008 Hearing, 270:14-271:9 (Mr. Cuddihy) (“When 
you go into places like the offices of the Carolina Hurricanes . . . basically, it’s well, thanks for visiting us, we 
appreciate your interest, are you carried on [TWC].  If you’re not carried on [TWC] in North Carolina, they don’t 
want to talk to you about giving you their rights. . . .  [The Carolina Hurricanes] were happy to hear from us.  They 
welcomed our conversation and our ideas.  But . . . at the end of the conversation, if you’re not carried by [TWC], 
you have very little chance.”).  While TWC asserts that MASN’s claims lack merit because the relevant comparison 
for the purpose of assessing competitive harm is analog versus digital carriage, rather than analog versus no carriage, 
we note that it was not until the parties’ carriage dispute reached arbitration that TWC, for the first time, put forth a 
firm offer of digital basic carriage.  MASN Opposition at 74-75.  Even if TWC had put forth such an offer prior to 
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carrying affiliated RSNs on an analog tier, while denying MASN carriage on such a tier, 
amounted to a prima facie case of discrimination.124  
4. Failure of TWC to Rebut MASN’s Prima Facie Case
32. Consistent with the Decision and Award, we conclude that TWC has failed to 
provide evidence sufficient to rebut MASN’s prima facie case.  In defense of its claims, TWC 
argues that its denial of analog carriage was a reasonable exercise of editorial discretion and 
business judgment and, therefore, it did not discriminate “on the basis of affiliation” as barred by 
Section 616 of the Act.  TWC asserts that it conducted a cost-benefit analysis and determined 
that the benefits of adding MASN to an analog tier in North Carolina would not outweigh the 
substantial costs.125 TWC principally points to MASN’s poor ratings in North Carolina, low 
demand for MASN’s programming among state residents, MASN’s high cost, and MASN’s 
rejection by other North Carolina cable systems.126 Although TWC has produced some evidence 
    
arbitration, we, nevertheless, find that TWC’s carriage of MASN on a digital basic tier would have restrained 
MASN’s ability to compete fairly for the reasons discussed above.  
124 Decision and Award at 11-13.  
125 Petition for Review at 37-40.
126 Id. at 23-25, 38-39, 41-47.
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to buttress its claim,127 we agree with the arbitrator that this evidence, when weighed against 
MASN’s evidentiary showing, fails to overcome MASN’s prima facie case.128  
33. First, we find unpersuasive TWC’s assertion that MASN’s ratings in North 
Carolina were so poor as to justify its denial of analog carriage.  The record reflects that, during 
the 2006 MLB season, Orioles’ games achieved average ratings of [REDACTED] in the 
Charlotte and Greensboro/High Point/Winston Salem DMAs, respectively.129 The Orioles 
garnered those ratings despite the fact that:  (i) both of those DMAs are located in central North 
Carolina and thus are more distant from Baltimore and Washington D.C. than DMAs in the 
eastern region; (ii) the Orioles share viewing territory with the Atlanta Braves and Cincinnati 
  
127 In support of its defense, TWC advanced evidence that principally included testimonials by TWC executives 
involved in developing a response to MASN’s carriage request.  See, e.g., Declaration of Carol Hevey, Executive 
Vice President of Operations, Time Warner Cable, July 2, 2007; Supplemental Declaration of Carol Hevey, 
November 29, 2007; Third Declaration of Carol Hevey, May 7, 2008; Declaration of Mickey Carter, formerly 
Senior Director, Programming, Time Warner Cable, November 29, 2007.  We note that the only pre-litigation 
documentary evidence that TWC offered attesting to its deliberation of MASN’s request was e-mail correspondence 
by a TWC executive seeking to confirm his “gut” instinct that North Carolina “can’t have many Orioles fans.”  See
e-mail Correspondence between Tom Smith, Time Warner Senior Marketing Executive, and Mickey Carter, 
formerly Senior Director, Programming, Time Warner Cable, September 5, 2006, Appendix of Exhibits 
Accompanying Time Warner Cable’s Pre-Hearing Brief, November 30, 2007, § J.1.  Although TWC notes that 
neither the Adelphia Order nor our program carriage rules require that defendants document their decisions, Petition 
for Review at 21, the dearth of evidence confirming TWC’s good-faith investigation into the potential demand for 
MASN programming in North Carolina calls into question whether TWC accorded any serious consideration to 
MASN’s proposal.  Given MASN’s history of litigating program carriage disputes, MASN’s early expression of its 
intent to invoke arbitration in the event of a carriage denial, and the parties’ multiple meetings and discussions over 
a two-year period, the lack of more substantial documentation lends credence to MASN’s claim that TWC’s efforts 
in responding to its carriage request were, at best, perfunctory, or, at worst, a pretext for discrimination.  In this 
regard, we note that the TWC executive charged with assessing and responding to carriage requests in the Carolinas 
region put forth testimony that, while she was generally aware of the Adelphia Order’s RSN condition, she “wasn’t 
familiar with the details or the potential implications that [the Adelphia Order] might have.”  Transcript of May 20, 
2008 Hearing, 255-256 (Ms. Hevey).  Although it is unclear whether such testimony was intended to show a lack of 
discriminatory intent or otherwise, we find that TWC’s failure to educate its employees about the company’s 
specific regulatory obligations is a serious dereliction of TWC’s responsibilities under the program carriage 
provisions and the Adelphia Order.  TWC’s failure is particularly egregious in view of the fact that TWC agreed to 
the RSN condition as part of the Commission’s approval of the Adelphia transaction.  Adelphia Order, 21 FCC Rcd 
at 8287, ¶ 189 (“[T]o prevent [anticompetitive conduct], we adopt a . . . condition requiring . . . [TWC] to engage in 
commercial arbitration with any unaffiliated RSN that is unable to reach a carriage agreement with [TWC], should 
the RSN elect to use the arbitration remedy.”).
128 See Decision and Award at 13-16.
129 See Wyche Supplemental Declaration at ¶ 5.  Nielsen ratings are expressed in terms of the percentage of TV 
households that watch a given channel at a particular time in a certain geographic area.  Declaration of Joanne 
Wayne, June 29, 2007, at ¶ 3.  Thus, for example, a Nielsen rating for a particular television program of “5.3” 
indicates that 5.3 percent of the households that owns one or more television sets watched the program.  Id. For the 
purpose of its showing on the issue of ratings, TWC evaluated MASN’s ratings in the two most heavily populated 
North Carolina DMAs during different parts of the day:  prime time weekday (Monday to Friday, 7 p.m. to 10 p.m.), 
late night weekday (Monday to Friday, 10 p.m. to 1 a.m.), weekend afternoon (Saturday/Sunday, 1 p.m. to 4 p.m.), 
weekend late afternoon (Saturday/Sunday, 4 p.m. to 7 p.m.), and Saturday late night (10 p.m. to 1 a.m.).  
Supplemental Declaration of Joanne Wayne, November 30, 2007, at ¶ 2.  TWC’s ratings assessment reflects 
MASN’s “highest average” ratings, which expresses the day part in which MASN received the highest ratings.  Id.  
This assessment reflects ratings for MASN’s entire programming schedule, including Orioles programming.  Id.
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Reds in the central region – MLB teams that are popular in the state; and (iii) the RSNs that 
previously owned carriage rights to the Orioles in North Carolina put forth few promotional 
efforts.130 Indeed, as noted above, the 2006 ratings for Orioles’ games in the Charlotte DMA 
surpassed ratings for the Bobcats in the same market during the 2005-2006 season (but TWC 
nonetheless put its affiliated RSN carrying the Bobcats games on the analog tier).131 While we 
note that the parties dispute the method by which MASN’s popularity should be gauged, and we 
agree with the arbitrator that there are difficulties comparing programming that is unique and 
subject to variables that cannot be readily measured or predicted, such as team performance and 
local preference,132 the above ratings evidence, when viewed in conjunction with TWC’s carriage 
on an analog tier of less highly rated affiliated programming, and TWC’s apparent failure to 
apply similar ratings standards to other RSNs, leads us to find unconvincing TWC’s claim that 
MASN’s ratings were so “abysmal” as to warrant its relegation to a digital tier.133 We note that 
both Section 616 of the Act and the Commission’s rules bar an MVPD from discriminating in 
video programming distribution on the basis of affiliation or nonaffiliation “in the selection, 
terms, or conditions for carriage. . . .”134 These program carriage provisions thus prohibited 
TWC from applying to unaffiliated programming services more stringent standards, including 
ratings standards, than those it applied to affiliates.  
34. We also find unconvincing TWC’s evidence purporting to show a low demand for 
MASN’s programming among North Carolina residents.  Although disputed by the parties, the 
Orioles appear to have a longstanding fan base in North Carolina, as reflected by the fact that 
Orioles games have been broadcast in North Carolina for nearly two decades prior to the 2007 
MLB season, when MASN began to produce and exhibit the games.135 In addition, as noted 
above, TWC’s carriage on an analog tier of Bobcats games – programming that yielded lower 
ratings than Orioles’ games during 2006 – calls into question TWC’s contention that the 
purported low demand for MASN figured prominently in its carriage decision.  Moreover, 
contrary to TWC’s assertions, we find that the decision of MLB to designate the Orioles and 
Nationals as “hometown” teams in a large portion of North Carolina suggests the existence of 
current or potential fan interest in the state.136 In terms of geographic distance, the Orioles are 
roughly equidistant to North Carolina as the Braves and Reds, and the Washington Nationals are 
even closer.137 The proximity of the Nationals to North Carolina, and their status as a relatively 
  
130 See Declaration of James Cuddihy, June 4, 2007, at ¶¶ 4, 9 (“Cuddihy Declaration”).
131 See Decision and Award at 13, citing Wyche Supplemental Declaration at ¶¶ 3-5.
132 Decision and Award at 14.
133 Petition for Review at 24.  
134 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c) (emphasis added).  
135 Wyche Declaration at ¶ 7; Cuddihy Declaration at ¶ 4.  The Orioles constituted “core programming” for two of 
the three RSNs that telecast Orioles games in North Carolina between 1985 and 2006.  Amended Second 
Supplemental Declaration of James Cuddihy, November 9, 2007, at ¶ 11 (“Cuddihy Amended Second Supplemental 
Declaration”).
136 Cuddihy Declaration at ¶¶ 4-5.  Since at least 1981, MLB has determined that most of North Carolina should be 
the television territory of the Orioles.  Id.  
137 MASN Pre-Hearing Brief at 6; see also Cuddihy Declaration at ¶¶ 5-6.
Federal Communications Commission DA 08-2441
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new franchise, suggest a much greater potential for MASN’s popularity than that posited by 
TWC.138 We also find, contrary to TWC’s contention, that the decision by four of the five largest 
MVPDs (other than TWC) in North Carolina to carry MASN on a widely available tier suggests 
the existence of actual or potential demand for MASN,139 which telecasts not only Orioles and 
Nationals games, but also other sports programming of potential interest to North Carolina 
residents.140 Indeed, over [REDACTED] of non-TWC pay television subscribers in the state 
receive MASN on a widely available tier.141 Moreover, we note that Fox has expressed an 
interest in carrying Orioles and Nationals games on its two RSNs in North Carolina in the event 
that MASN’s launch in the state did not succeed.142 TWC’s claim regarding the absence of 
actual and potential demand for MASN in North Carolina is further belied by the complaints that 
MASN produced in the arbitration proceeding filed by North Carolina residents about TWC’s 
denial of analog carriage to MASN.143 Because TWC subscribers throughout North Carolina 
lack regular access on analog cable to the games of any American League team (including games 
against popular American League teams such as the New York Yankees and Boston Red Sox)144
and TWC subscribers in the eastern part of North Carolina do not have regular access on analog 
  
138 It is noteworthy that, prior to the expansion of the NFL and the establishment of the Carolina Panthers franchise, 
the Washington Redskins franchise was the “home team” for all of North Carolina.  Cuddihy Declaration at ¶ 7.
139 The one exception is Suddenlink.  TWC Pre-Hearing Brief at 40.  MASN presented evidence that Suddenlink 
was in the process of selling some of its systems and was reluctant to take on additional carriage obligations when it 
denied MASN carriage.  Supplemental Declaration of David Gluck, May 17, 2008, at ¶ 5 (“Gluck Supplemental 
Declaration”).  Although TWC attempts to discredit Charter and Mediacom’s carriage of MASN on an analog tier 
by asserting that those MVPDs carry MASN only in the northeastern corner of North Carolina, a vacation 
destination popular among residents of Baltimore and Washington, DC, Petition for Review at 41, some of those 
systems are not situated on the coast, but rather, offer service further inland.  Transcript of May 21, 2008 Hearing, 
541:11-18 (Arbitrator Margolis and Mr. Brands).  Indeed, approximately 98% of all Charter subscribers that receive 
MASN are not geographically close to Baltimore or Washington, DC.  Wyche Supplemental Declaration at ¶ 23.  
Similarly, Mediacom’s systems outside North Carolina are located in Delaware’s Sussex County, which is roughly 
as close in proximity to Philadelphia as to Baltimore, and where the Orioles and Nationals must share viewing rights 
with the Philadelphia Phillies.  Id. ¶ 24.   
140 Such programming includes Hooters Pro Cup Series stock car racing; basketball, lacrosse, baseball, softball and 
wrestling events of local NCAA Division I teams such as UNC-Charlotte, UNC-Wilmington, UNC-Greensboro, 
UNC-Chapel Hill, North Carolina State, Winston Salem State University, and Duke University; and football and 
basketball coaches’ programs for North Carolina State University and East Carolina University.  Cuddihy 
Declaration at ¶ 10.  
141 Third Supplemental Declaration of Mark C. Wyche, May 8, 2008, at ¶ 14 (“Wyche Third Supplemental 
Declaration”).  Although TWC argues that subscribers interested in Orioles and Nationals games can switch to a 
DBS operator to obtain MASN, Petition for Review at 56-57, the fact that a competing MVPD may offer the 
programming at issue does not lessen or preempt a cable operator’s program carriage obligations.
142 Wyche Declaration at ¶ 7.
143 These complaints were filed by various North Carolina residents, including state and local officials, North 
Carolina’s minor league baseball teams, MASN affiliates (including local colleges and universities advocating 
broader distribution of local athletics), and consumers who have filed complaints with the North Carolina Attorney 
General.  See MASN Pre-Hearing Brief, Exhibits 16-27.
144 North Carolina’s other two “hometown” MLB teams, the Atlanta Braves and Cincinnati Reds, are in the National 
League.  See www.mlb.com.
Federal Communications Commission DA 08-2441
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cable to the home market games of any MLB franchise,145 we disagree with TWC that the 
prospects for MASN’s success in North Carolina are so low as to justify its denial of carriage on 
an analog tier.     
35. Moreover, even if we were to credit TWC’s claim that the Orioles and Nationals 
currently generate low interest among North Carolinians, we agree with MASN that demand for 
programming, particularly sports programming, depends on the ability of fans “to follow a team 
closely day in and day out . . ., to follow a season’s highs and lows, and to develop an 
identification with the team’s star players.”146 Thus, while a team’s fan base in a particular state 
might be relatively weak, this is not necessarily indicative of the team’s future popularity or 
appeal in that state.  Rather, we believe the level of fan interest in a sports team is tied to a host 
of factors, including the accessibility of the team’s events to its target market, and that carriage 
on an analog tier with a wide audience is likely to strengthen viewers’ interest in the team’s 
programming.  We agree with MASN that it is unreasonable for TWC to foreclose broad carriage 
of MASN – and the opportunity to grow its fan base – and then rely on a lack of fan interest as a 
basis for its conduct.  As MASN points out, such circular reasoning would almost always justify 
an MVPD’s decision to deny carriage to new sports programming networks.147
36. Finally, we reject TWC’s claim that both the out-of-pocket and opportunity costs 
of placing MASN on an analog tier in North Carolina are so significant as to justify TWC’s
denial of carriage. 148 First, as we discuss in greater detail infra, the fee that MASN proposes to 
charge in North Carolina is objectively reasonable relative to fees that TWC has agreed to pay 
for RSN programming in other markets nationwide, including extended inner markets.149 In 
addition, as MASN points out, TWC’s net out-of-pocket cost estimates appear overstated 
because they fail to account for TWC’s ability to recoup a portion of those costs from the sale of 
advertising spots, and TWC’s ability to offset those costs from the advertising launch support 
that TWC would receive under the terms of MASN’s proposed contract.150 With regard to 
TWC’s claim that analog carriage of MASN would impose a substantial opportunity cost by 
foreclosing TWC’s ability to carry other services of greater interest to North Carolinians, such as 
three High Definition (“HD”) services,151 TWC has put forth no evidence purporting to quantify 
such cost or to demonstrate that the net revenue derived from carriage of MASN would be less 
than the opportunity cost imposed by TWC’s inability to offer more desirable programming 
services, including HD services.
  
145 This area encompasses the Greenville-New Bern-Washington, Myrtle Beach-Florence, Norfolk-Portsmouth-
Newport News, Raleigh-Durham (Fayetteville), and Wilmington DMAs.  See Wyche Supplemental Declaration at 
¶¶ 13-16.
146 MASN Pre-Hearing Brief at 34; see Wyche Supplemental Declaration at ¶ 25.
147 MASN Pre-Hearing Brief at 46.
148 See Petition for Review at 38-39.
149 See Section III.C infra (discussing the fair market value of the rights to carry MASN).
150 MASN Opposition at 63.
151 According to TWC, one 6 MHz channel can accommodate only one Standard Definition (“SD”) service when 
analog transmission is used, but can accommodate 16 SD services and up to three HD services when digital 
transmission is used.  Petition for Review at 9.
Federal Communications Commission DA 08-2441
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37. Our review of the record persuades us that TWC also had an economic incentive 
to thwart MASN’s widespread availability in North Carolina.  During the period that MASN 
sought carriage, TWC and MASN competed head-to-head for sports programming rights in 
North Carolina.  The record reflects that, on several occasions in 2007, TWC competed with 
MASN for – and won – the rights to twelve collegiate basketball games involving various North 
Carolina colleges and universities.152 In addition, TWC’s affiliation with the Atlanta Braves 
franchise and Turner South, an RSN that broadcast a significant number of Braves games in 
North Carolina at the time MASN first requested carriage, gave TWC an incentive to foreclose 
the broad availability of MASN in the state.153 That MASN and News 14 both had expressed an 
interest in carrying games of the relatively new NFL franchise, the Carolina Panthers, is further 
evidence that the two RSNs were direct competitors in the North Carolina sports programming 
market.154  
38. We also find that TWC’s financial interest in two premium MLB channels that 
the company plans to offer in North Carolina also provided it with an incentive to discriminate 
against MASN.  In 2007, iN DEMAND, a consortium that includes TWC and two other major 
cable operators, executed an agreement with MLB to carry MLB’s Extra Innings, a premium 
sports package that offers a broad range of out-of-market MLB games.155 In exchange, each of 
iN DEMAND’s cable partners, including TWC, has agreed to carry the MLB Channel on an 
analog tier when the network launches in 2009.156 We conclude that TWC’s iN DEMAND deal 
provides a substantial incentive for TWC to limit MASN’s reach within North Carolina.  TWC 
subscribers might be less likely to watch the MLB Channel, and less willing to pay for MLB’s 
Extra Innings package, if they can view all of the games played by the Orioles and Nationals –
MLB “home teams” in North Carolina -- on MASN.  In addition, the availability on MASN of 
MLB games that feature popular out-of-market teams such as the Boston Red Sox and the New 
York Yankees might lessen the value of the MLB Channel and the Extra Innings package for 
subscribers interested in MLB programming.
39. These incentives for discrimination, and TWC’s ability, by virtue of its status as a 
vertically-integrated MVPD, to engage in anticompetitive conduct, are precisely the concerns 
that formed the basis for the arbitration condition and the Commission’s program carriage rules.  
In the Adelphia Order, the Commission found that:
  
152 Cuddihy Supplemental Declaration at ¶¶ 3-13.
153 MASN Pre-Hearing Brief at 25.
154 Cuddihy Declaration at ¶ 11; MASN Opposition at 72-73, citing Transcript of May 20, 2008 Hearing, 270:14-22 
(Mr. Cuddihy).  
155 Wyche Declaration at ¶¶ 23-24.
156 MASN Pre-Hearing Brief at 25.
Federal Communications Commission DA 08-2441
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[w]ith respect to regional sports programming . . . the transactions will increase the 
incentive and ability of  . . .  Time Warner to deny carriage to RSNs that are not 
affiliated with them. . . .  [T]he programming provided by RSNs is unique because it 
is particularly desirable and cannot be duplicated.  Moreover, as a result of the 
transaction, the sports rights with a regional interest become more valuable to [Time 
Warner].  Accordingly, post-transaction Time Warner . . . will have an increased 
incentive to deny carriage to rival unaffiliated RSNs with the intent of forcing the 
RSNs out of business,. . . . thereby allowing . . . Time Warner to obtain the valuable 
programming for its affiliated RSNs. . . .157
40. Indeed, the history behind TWC’s acquisition of the Charlotte Bobcats rights 
reveals that TWC understands the adverse impact that digital, rather than analog, carriage can 
have on an RSN.  In 2004, the Bobcats, then a newly-formed NBA team, created its own RSN 
called Carolinas Sports and Entertainment Television (“C-SET”).158 Although TWC agreed to 
carry C-SET, it denied C-SET access to its analog programming tiers, and instead relegated the 
channel to its digital tier.159 C-SET was forced to cease operations within one year.160 Shortly 
thereafter, TWC acquired the Bobcats rights, and placed the Bobcats programming on its analog 
tier channel, News 14.161
41. For the foregoing reasons, based on our de novo review of the record, we 
conclude that TWC engaged in discriminatory conduct which had the effect of restraining 
MASN’s ability to compete fairly in violation of the Adelphia Order and the Commission’s 
program carriage rules.  When viewed against MASN’s evidentiary showing, the scant 
documentary evidence memorializing TWC’s good-faith consideration of MASN’s carriage 
request, combined with TWC’s economic incentive to prevent MASN’s widespread availability 
in North Carolina, weigh in favor of a finding that TWC favored its own affiliates.162 Based on a 
preponderance of evidence, therefore, we find that TWC discriminated unlawfully against 
MASN in violation of Section 616 of the Act and the Commission’s program carriage rules.
C. Fair Market Value  
42. Based upon our review of the record, we conclude that MASN’s carriage offer 
“more closely approximates the fair market value of the carriage rights at issue than the final 
  
157 Adelphia Order, 21 FCC Rcd at 8287, ¶ 189.
158 Wyche Declaration at ¶ 19.
159 Id.
160 Id.
161 Id. The record reflects that, unlike most cable programming networks, which are delivered via satellite, News 14 
is delivered on terrestrial facilities.  Thus, MASN asserts that TWC sought to capitalize on a “loophole” in Section 
628(c) of the Act that allowed TWC to refuse access to News 14 by competing MVPDs.  MASN Arbitration 
Demand at 15.  
162 Because our finding of discrimination is based upon our de novo review of the record as a whole, we need not 
address TWC’s policy arguments advocating for a finding that the burden of proving a program carriage violation 
remains at all times with the claimant.  See TWC Reply at 17-21.  
Federal Communications Commission DA 08-2441
25
offer made by [TWC].”163 In the arbitration proceeding, MASN and TWC submitted final offers 
that proposed the same per subscriber rates, but provided for carriage on different tiers of 
service.  MASN proposed carriage on a tier with [REDACTED]; TWC offered digital basic 
carriage at the same license fee and escalation rate.164 Despite these identical rates, TWC’s offer 
presents a fundamentally different value proposition for MASN because it proposes carriage on 
TWC’s less widely penetrated digital tier.165
43. MASN puts forth several reasons in support of its assertion that its final offer 
more closely reflects fair market value.  First, MASN points to the willingness of other large 
MVPDs in North Carolina to carry MASN on the same terms as MASN’s final offer, including 
carriage on a widely penetrated tier.166 In addition, MASN asserts that its offer compares 
favorably to the terms on which TWC carries the vast majority of RSNs within its footprint, 
including other RSNs in North Carolina, as determined using a per-subscriber-per-major-pro-
event (“PSPPE”) metric.167 Finally, MASN contends that the fair market value of its 
programming as carried on an analog tier is substantially higher than the rate proposed in its final 
offer, as demonstrated by a regression analysis that compares MASN’s proposed subscriber rate 
to the rates of RSNs carried by TWC throughout its national footprint.168
  
163 Decision and Award at 22; see also Adelphia Order, 21 FCC Rcd at 8339, Appendix B.4.c. (“In reviewing the 
award, the Commission will examine the same evidence that was presented to the arbitrator and will choose the final 
offer of the party that most closely approximates the fair market value of the programming carriage rights at issue”).
164 See In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, v. 
Time Warner Cable Inc., Respondent, Case Nos. 12 494 E 000326 07, 71 472 E 00697 07, Time Warner Cable’s 
Stage 2 Opening Brief, May 9, 2008, Attachment B (“TWC Stage 2 Opening Brief”).
165 The percentage of TWC’s North Carolina customers that subscribe to TWC’s digital tier in the three DMAs for 
which TWC provided data ranges from approximately [REDACTED].  Wyche Third Supplemental Declaration at ¶ 
12.
166 These MVPDs include two satellite providers, DirecTV and EchoStar, and two cable providers, Charter Cable 
and Mediacom Cable.  Together, these MVPDs represent more than [REDACTED] non-TWC subscribers to paid 
television service in North Carolina.  In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic 
Sports Network, Claimant, v. Time Warner Cable Inc., Respondent, Case Nos. 12 494 E 000326 07, 71 472 E 00697 
07, Claimant’s Pre-Hearing Arbitration Brief – Phase II, May 9, 2008, at 13 (“MASN Phase II Pre-Hearing Brief”); 
Wyche Supplemental Declaration at ¶ 12.
167 In order to determine the value of programming offered by RSNs across the industry, industry experts (including 
those engaged in negotiating RSN affiliation agreements) often employ normalized metrics that account for 
variations in the precise mix of programming offered by RSNs.  Wyche Third Supplemental Declaration at ¶ 17.  
Although disputed by TWC, TWC Stage 2 Opening Brief at 21-22, MASN asserts that one such measure, the PSPPE 
metric, is accepted and considered objective.  Wyche Third Supplemental Declaration at ¶ 17.  The PSPPE measure 
is calculated by dividing the RSN’s annual per-subscriber license fee by the total number of live major professional 
sporting events that the RSN televises each year.  MASN claims that the PSPPE is an objective measure that has 
several advantages:  (i) it is readily calculated from the RSN affiliate contracts and other materials produced by 
TWC in the arbitration proceeding; (ii) it is based upon the actual terms of carriage contracts negotiated between 
TWC and the various RSNs at issue, and thus derived from actual arms-length agreements; (iii) it is comparable 
across RSNs, whose events are typically drawn from one of three major professional sports leagues, including MLB, 
the NBA and the NHL; and (iv) it accounts for variation in the per-subscriber fees that apply across different regions 
or zones within an RSN’s geographic programming area.  Id. at ¶¶ 18-21.
168 MASN Phase II Pre-Hearing Brief at 19-20.  Regression analysis controls for the effects of certain variables, 
including the demographic characteristics of a particular zone or market area specified in TWC’s RSN affiliation 
(Continued on next page)
Federal Communications Commission DA 08-2441
26
44. TWC likewise asserts that its final offer more accurately reflects the fair market 
value of MASN’s programming.  TWC claims that, in recent years, new services have rarely 
debuted on analog tiers.169 Thus, the company asserts, the subscriber and advertising revenue 
derived from carrying a service on an analog tier must outweigh “by a substantial margin” the 
direct and opportunity costs (including license fees and TWC’s inability to reclaim analog 
spectrum) in order to justify carriage.170 Employing this cost-benefit analysis, TWC argues that 
the substantial costs of carrying MASN on an analog tier far outweigh the purported benefits, 
given the low demand for MASN’s programming in North Carolina, and MASN’s “abysmal” 
ratings in the state.171 TWC claims that its estimate of MASN’s value is confirmed by: (i) the 
decision of other North Carolina cable operators who either have declined to carry MASN’s 
programming, or have selected to distribute MASN only in certain areas close to the Baltimore-
Washington area; (ii) [REDACTED]; (iii) MASN’s high cost per ratings point; and (iv) 
MASN’s high cost relative to more popular cable programming services.172  
45. TWC disputes MASN’s claim that it requires analog carriage to remain 
competitive, arguing that “any revenue that MASN earns from carriage in North Carolina would 
be a pure windfall on top of its already high profits.”173 In addition, TWC states that the 
acceptance of MASN’s terms by DBS operators is inapposite because:  (i) DBS operators have 
many subscribers in Washington, DC and Baltimore where MASN is valuable programming and, 
in order to obtain the right to carry MASN in those areas, MASN likely required DBS operators 
to carry it throughout MASN’s territory, including North Carolina;174 (ii) once DBS operators put 
MASN on their satellites, the service is automatically available in North Carolina;175 and (iii) 
once the DBS operators agreed to carry MASN in North Carolina, they were indifferent about 
the allocation of value between these markets, so long as the overall rate remained the same.176  
Finally, TWC rejects MASN’s PSPPE measure on the basis that it fails to take into account “a 
crucial factor determining a programming service’s value to a cable operator:  whether the 
service is attractive to viewers.”177
46. Based upon our review of the record, we agree with the arbitrator’s conclusion 
that MASN’s final offer more closely approximates the fair market value of the carriage rights at 
issue than TWC’s final offer.  Although an arbitrator, in assessing the parties’ respective offers, 
    
agreements, the distance between home stadiums and those particular zones or market areas, and team performance.  
Id.
169 TWC Stage 2 Opening Brief at 3-6.
170 Id. at 8.
171 Id. at 8-12.
172 Id. at 12-16.
173 Id. at 16-18.
174 Declaration of Joe King, June 19, 2007, at ¶ 15 (“King Declaration”); TWC Stage 2 Opening Brief at 18-20.
175 TWC Stage 2 Opening Brief at 18-20.
176 Id.
177 Id. at 20-22.
Federal Communications Commission DA 08-2441
27
has broad discretion under the Adelphia Order to consider “any relevant evidence,”178 we find 
that the best and most persuasive evidence of fair market value is the objective price that RSN 
programming yields in the marketplace,179 and TWC concedes as much.180 In this regard, MASN 
has offered ample evidence and empirical analyses, including its PSPPE calculations and 
regression analyses, to demonstrate that the fee it proposes to charge in North Carolina is 
reasonable and less than the average fee that TWC has agreed to for carriage of RSN 
programming in North Carolina and in various markets nationwide, including extended inner 
market areas.181 By contrast, TWC’s fair market value showing focused largely on MASN’s 
  
178 Such evidence includes, but is not limited to:  
[1] current or previous contracts between MVPDs and RSNs in which . . . Time Warner [does] not 
have an interest as well as offers made in such negotiations (which may provide evidence of either 
a floor or a ceiling of fair market value);
[2] evidence of the relative value of such programming compared to the Covered RSN 
programming at issue (e.g., advertising rates, ratings);
[3]  contracts between MVPDs and RSNs on whose behalf . . . Time Warner [has] negotiated, 
made before . . . Time Warner acquired control of the systems swapped and acquired in the 
Adelphia transactions;
[4] offers made in such negotiations;
[5] internal studies or discussions of the imputed value of Covered RSN programming in bundled 
agreements;
[6] other evidence (including internal discussions) of the value of Covered RSN programming;
[7] changes in the value of programming agreements for RSNs in which Time Warner . . . [does] 
not have an attributable interest; [and]
[8] changes in the value or costs of the Covered RSN’s programming, or in other prices relevant to 
the relative value of the Covered RSN programming (e.g., advertising rates).
Adelphia Order, 21 FCC Rcd at 8339, Appendix B.4.c. (footnotes omitted).  Appendix B is worded to resolve 
program access disputes, but the procedures apply to program carriage complaints, as well.  TAC Order, 22 FCC 
Rcd at 17948, n.9.  Thus, the criteria set forth in Appendix B.4.c. are useful in assessing the fair market value of 
program carriage rights such as those at issue here.
179 See In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Claimant, v. 
Time Warner Cable Inc., Respondent, Case Nos. 12 494 E 000326 07, 71 472 E 00697 07, Claimant’s Phase II 
Reply Brief, May 17, 2008, at 1 (“MASN Phase II Reply Brief”).
180 Petition for Review at 67-68 (“[T]he best measure of fair market value is what the marketplace is actually willing 
to pay.”).
181 MASN Phase II Pre-Hearing Brief at 12-20.  Indeed, the record reflects that TWC pays [REDACTED].  MASN 
Phase II Reply Brief at 10.  The PSPPE rate in MASN’s final offer [REDACTED] is significantly lower than the 
average PSPPE rate [REDACTED] that TWC has agreed to pay for carriage (on an analog tier) of RSN 
programming in other extended markets throughout its nationwide footprint.  Indeed, no RSN among the 17 sampled 
in MASN’s PSPPE analysis had a lower “farthest market” PSPPE rate than that proposed by MASN in its final 
offer.  Wyche Third Supplemental Declaration at ¶¶ 25-26.  Similarly, for RSN programming in North Carolina, 
TWC has agreed to pay a substantially higher per-subscriber rate [REDACTED] for analog carriage of each of the 
games of the Atlanta Braves and the Cincinnati Reds, which are played more than 300 miles from TWC’s 
Greensboro cable systems.  Id. at ¶¶ 28-33; Fourth Supplemental Declaration of Mark Wyche, May 17, 2008, at ¶ 10 
(“Wyche Fourth Supplemental Declaration”).  In addition, the PSPPE rate proposed by MASN is less than all of the 
PSPPE rates that TWC paid for the rights to telecast Bobcats games on News 14 during the 2007-2008 NBA season.  
(Continued on next page)
Federal Communications Commission DA 08-2441
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value to TWC itself, taking into account the alleged lack of demand for MASN’s programming 
and MASN’s purported low ratings, rather than the RSN’s estimated value in the sports 
programming market.182 While such evidence may be relevant to a determination of fair market 
value, we find that the more objective evidence proffered by MASN militates in favor of a 
finding that MASN’s final offer more closely approximates the fair market value of the right to 
carry MASN.  In so doing, we agree with the arbitrator’s assessment of MASN’s economics 
experts as “qualified and credible,”183 in contrast to TWC’s economics expert, who, the arbitrator 
stated, merely “reiterate[ed] . . . the arguments advanced by TWC’s counsel in their briefs,” and 
was “lacking in credibility.”184
47. Contrary to TWC’s assertions, we find that the carriage decisions of four of the 
largest MVPDs operating in North Carolina -- that serve the overwhelming majority of non-
TWC subscribers to paid television service in North Carolina -- are an appropriate reference 
point for assessing fair market value. We reject TWC’s assertion that MASN’s carriage on a 
widely available tier by DirecTV and Echostar bear no significance because DBS operators 
possess different economic motivations from cable operators that are derived from differences in 
cost structure and technology.  MASN presented testimony that the actions of these carriers --
two of TWC’s most direct competitors in North Carolina185 -- offer a more appropriate meter for 
gauging programming demand than those of smaller cable operators because they provide 
service throughout the state, rather than to scattered pockets of subscribers like the smaller cable 
operators that TWC cites.186 In addition, TWC itself has acknowledged that DBS carriers face 
similar bandwidth constraints as cable operators that limit the number of channels they can 
broadcast.187 The record further reflects, contrary to TWC’s suggestion, that DirecTV engaged in 
intense negotiations with MASN over price in all of MASN’s contractual zones, including North 
Carolina, and subsequently devoted all of the launch support resources provided for in its 
carriage agreement to a promotional campaign targeted exclusively to North Carolina 
    
Wyche Third Supplemental Declaration at ¶¶ 32-33.  Thus, we find that MASN’s proposed rate is reasonable 
because it is less than rates that TWC has agreed to pay for carriage of RSNs that telecast fewer live regular season 
sporting events than MASN in extended inner markets like North Carolina.
182 TWC Stage 2 Opening Brief at 3-12.  Although TWC accords significant weight to MASN’s low ratings in the 
state, TWC has offered no evidence in this proceeding to demonstrate that it routinely examines ratings information 
when considering carriage requests, and its affiliation agreements are devoid of any terms or conditions relating to 
ratings.  To the contrary, TWC’s affiliation agreements provide for [REDACTED].  Wyche Fourth Supplemental 
Declaration at ¶ 6, which contradicts TWC’s claim that the PSPPE measure offered by MASN “is an extraordinarily 
poor measure of an RSN’s value.”  In the Matter of TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic 
Sports Network, Claimant, v. Time Warner Cable Inc., Respondent, Case Nos. 12 494 E 000326 07, 71 472 E 00697 
07, Time Warner Cable’s Stage 1 and Stage 2 Reply Briefs, May 17, 2008, at 4 (“TWC Reply Brief”).
183 Decision and Award at 18.
184 Id. at 20 n.14.
185 See Transcript of May 20, 2008 Hearing, 351:12-17 (Mr. Kelly).
186 Transcript of May 20, 2008 Hearing, 298:6-19 (Dr. Singer).
187 Transcript of May 21, 2008 Hearing, 431:2-9 (Mr. Conway).
Federal Communications Commission DA 08-2441
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residents.188 For the reasons discussed supra, we likewise reject TWC’s assertion that the 
decisions of Charter and Mediacom to carry MASN on the same terms as those proposed in its 
final offer are inapposite.189
48. Finally, we reject as unfounded TWC’s assertions that:  (i) [REDACTED] 
evidences that MASN’s final offer is above fair market value;190 and (ii) MASN is costly as 
compared with more popular programming services. [REDACTED] With regard to TWC’s 
assertion regarding MASN’s high cost relative to other programming services, we find that the 
per-subscriber rate charged for non-RSN programming provides no relevant benchmark for 
valuing RSN programming such as that offered by MASN.191 Based on a preponderance of 
evidence, therefore, we agree with the arbitrator that MASN’s showing on the issue of fair 
market value is more compelling than that presented by TWC.
D. First Amendment Claims
49. We reject TWC’s assertion that any decision requiring an MVPD to carry a 
particular programming network is violative of the First Amendment.192 As an initial matter, we 
note that TWC, as part of the Commission’s grant of its applications in the Adelphia transaction, 
voluntarily assented to a condition that it knew might result in mandatory carriage.  
Consequently, TWC is now foreclosed from challenging the very conditions that were 
prerequisite to that grant.  In addition, we reject TWC’s argument that a mandatory carriage 
requirement is subject to strict scrutiny under the First Amendment.193 We note that Section 
616(a)(5) of the Act, the Second Report and Order, and our program carriage rules already 
contemplate mandatory carriage of a complainant’s programming as a possible remedy in a 
program carriage complaint proceeding.194 In Time Warner v. FCC, the United States Court of 
Appeals for the District of Columbia Circuit found that the leased access provisions of the 1992 
Cable Act were not content-based because they did not favor speech on the basis of the ideas 
contained therein, but rather on the basis of affiliation with a cable operator.195 We find that the 
same conclusion applies with regard to program carriage requirements, which, similar to the 
leased access requirements, regulate speech based on affiliation with an MVPD.196 The Court in 
  
188 Gluck Supplemental Declaration at ¶ 8; Wyche Fourth Supplemental Declaration at ¶ 11; MASN Opposition at 
61; Cuddihy Second Supplemental Declaration at ¶ 3.
189  See supra ¶ 34 n.139.
190 Petition for Review at 68. [REDACTED] See Declaration of Andrew Rosenberg, April 29, 2008, ¶ 6. 
[REDACTED] Petition for Review at 68.
191 Id. at 93-94.
192 Petition for Review at 72-77.
193 Id.  
194 See 47 U.S.C. § 536(a)(5); 47 C.F.R. § 76.1302(g)(1); Program Carriage Second Report and Order, 9 FCC Rcd 
at 2653, ¶ 26.
195 See Time Warner Entertainment Co., L.P. v. FCC, 93 F.3d 957, 969 (1996). 
196 For similar reasons, we reject TWC’s claim that strict scrutiny applies because our decision requires a content-
based analysis comparing content carried by an MVPD to content not carried by the MVPD.  See Petition for 
Review at 75-77.  Our decision does not favor speech on the basis of the ideas contained therein, but on the basis of 
affiliation with an MVPD.  Thus, our decision is not content-based.  See Time Warner, 93 F.3d at 969.  
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Time Warner held that the provisions of the Cable Act that regulate speech based on affiliation 
with a cable operator are subject to intermediate scrutiny and are constitutional if the 
government’s interest is important or substantial, and the means chosen to promote that interest 
do not burden substantially more speech than necessary to achieve the aim.197 In this regard, the 
Time Warner Court found that there is a substantial government interest in promoting diversity 
and competition in the video programming marketplace.198 The program carriage rules similarly 
promote diversity in video programming by promoting fair treatment of unaffiliated 
programmers by providing these programmers with an avenue to seek redress of anticompetitive 
carriage practices of MVPDs.  Moreover, because MVPDs have an incentive to protect their 
affiliated networks from competition with unaffiliated networks for viewers, advertisers, and 
programming rights, the program carriage rules promote competition in the video programming 
market by promoting fair treatment of unaffiliated programmers.  We find that the substantial 
government interest in promoting diversity and competition in the video programming 
marketplace remains today.  As the Commission concluded in the 2007 Program Access Order, 
competition and diversity in the video programming market have not yet reached the level which 
Congress intended in passing the 1992 Cable Act.199 We also conclude that the statutory and 
regulatory requirement for nondiscriminatory carriage is no broader than necessary because the 
Commission will only order carriage where the complaining programmer proves that an MVPD 
has discriminated against it on the basis of its nonaffiliation with the MVPD and that such 
discrimination has restrained its ability to compete fairly with affiliated programmers.  Thus, the 
carriage requirement will burden no more speech than necessary to vindicate the government’s 
goal of protecting diversity and competition.     
E. Jurisdictional Claims  
50. We disagree with TWC’s assertion that the Commission should vacate the 
Decision and Award on the basis that the carriage dispute was not subject to the Adelphia 
Order’s arbitration condition in the first instance. In particular, we reject TWC’s claim that its 
refusal to offer MASN carriage on an analog tier did not constitute a “denial of carriage” for the 
purpose of triggering the Adelphia Order’s RSN condition.  To buttress its claim, TWC points to 
language in the Adelphia Order purporting to show that an arbitration remedy is available only in 
cases where an RSN “has been denied carriage.”200 We reject TWC’s interpretation as overly 
restrictive and fundamentally at odds with the text of the Order, which makes available the 
remedy to “any unaffiliated RSN that is unable to reach a carriage agreement” with TWC, as 
well as the Order’s underlying policy to provide unaffiliated RSNs an alternative path to the 
Commission’s program carriage complaint procedures.  Given the Commission’s finding that 
post-transaction TWC would have an increased incentive and ability to engage in anticompetitive 
  
197 See Time Warner, 93 F.3d at 969.
198 See id.
199 See Implementation of the Cable Television Consumer Protection and Competition Act of 1992 – Development of 
Competition and Diversity in Video Programming Distribution: Section 628(c)(5) of the Communications Act: 
Sunset of Exclusive Contract Prohibition, MB Docket No. 07-29, Report and Order, 22 FCC Rcd at 17810 ¶ 29, 
17837 ¶ 65 (2007) (“2007 Program Access Order”), appeal pending sub nom. Cablevision Systems Corp. et al. v. 
FCC, No. 07-1425 et al. (D.C. Cir.).
200 Petition for Review at 78 (citing Adelphia Order, 21 FCC Rcd 8287-8288, ¶ 190).
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conduct to the detriment of rival RSNs, we find it unreasonable to construe the condition as 
TWC suggests, as it would impose a more exacting threshold for seeking redress than the 
Commission’s complaint process itself.  Under TWC’s interpretation, TWC could foreclose 
arbitration as a potential remedy simply by putting forth a patently unreasonable carriage offer, 
so long as such offer did not rise to the level of an outright denial.  As a policy matter, such a 
narrow interpretation would render the condition virtually meaningless. 
51. We also reject TWC’s assertion that, even if the carriage dispute was properly 
subject to arbitration, MASN’s claim was foreclosed as untimely.  TWC claims that, although 
the Adelphia Order requires an aggrieved RSN to submit its carriage claim to arbitration within 
30 days after a carriage denial, MASN filed its claim eleven days late.201 TWC asserts that, after 
attempting to negotiate carriage for approximately two years, MASN, on April 24, 2007, sent a 
letter to TWC stating that it intended to “[treat] Time Warner’s actions as a denial of carriage 
under applicable statutes and FCC rules,” and thereby triggered the Adelphia Order’s 30-day 
filing deadline as of that date.202 However, in its response to MASN on April 26, 2007, TWC 
questioned MASN’s “premise . . . [that] negotiations had reached an impasse or end,” and stated 
that “there may be opportunity for further negotiation.”203 Although TWC argues that its April 
26 offer to continue negotiations was limited to “carriage . . . on a digital tier,”204 and thus made 
clear that TWC’s decision regarding analog carriage remained unchanged,205 we find that the 
April 26 letter was sufficiently ambiguous as to justify MASN’s deferral of its arbitration 
demand and to find that the relevant denial of carriage did not occur on April 24, 2007.  Our 
view that TWC’s April 26 letter was ambiguous is confirmed by MASN’s subsequent letter of 
May 4, 2007, in which MASN stated to TWC:  “We trust that [our meeting scheduled for May 7] 
will clarify Time Warner’s intentions with respect to carriage, so that we can initiate arbitration 
should that become necessary.”206 MASN states that “[i]t became evident at the May 7 meeting 
that TWC would not budge and that its final position was that it would not carry MASN under 
any circumstances on TWC’s basic tiers.” 207  For the purpose of assessing the timeliness of 
MASN’s arbitration demand, therefore, we find that TWC’s denial of carriage occurred on May 
7, 2007, the date that TWC's final position with respect to analog carriage was made clear to 
MASN.  Because MASN filed its arbitration demand on June 5, 2007, we find that MASN’s 
arbitration demand was timely filed in accordance with the requirements of the Adelphia Order.
  
201 Id. at 83.
202 See Letter from David C. Frederick, Counsel for MASN, Kellogg, Huber, Hansen, Todd, Evans & Figel, 
P.L.L.C, to Henk Brands, Counsel for TWC, Paul, Weiss, Rifkind, Wharton and Garrison, L.L.P., April 24, 2007, 
MASN Arbitration Demand, Exhibit I.  TWC thus contends that, because the 30-day filing deadline commenced on 
April 24, 2007, MASN had until May 25, 2007, to file its demand for arbitration.  Petition for Review at 83.  Yet, 
TWC claims, MASN filed its arbitration demand eleven days late, on June 5, 2007.  Id.
203 See TWC April 26 Letter.
204 Id.
205 Petition for Review at 83.
206 See MASN May 4 Letter.  
207  MASN Opposition at 106.
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52. We dismiss TWC’s assertion that the Commission’s imposition of mandatory 
arbitration violates the Alternative Dispute Resolution Act (“ADRA”), the Communications Act 
of 1934, as amended, and the Commission’s own rules and policies.208 As the Commission has 
previously found, the structure of the ADRA, the usage of the term “arbitration” in other 
provisions of the ADRA to refer to “binding arbitration,” and the statute’s legislative history, 
indicate that Congress intended the term “arbitration” in Section 573(a)(3) of the ADRA209 to 
refer only to binding arbitration.  The ADRA’s prohibition thus does not apply where, as here, 
the arbitration is non-binding, i.e. either party may seek de novo review of the arbitration 
decision.210 In any event, TWC, having accepted the conditional grant of its applications in the 
Adelphia transaction, cannot now challenge the very conditions that were prerequisite to that 
grant.211 Finally, TWC concedes that, if the Commission applies true de novo review, it has “no 
objection to the Commission’s pretermitting the argument” regarding the applicability of the 
ADRA.212 Because we have applied de novo review, TWC’s claims regarding the ADRA are 
moot.
53. We also reject TWC’s claim that the arbitration condition violates the Act because 
nothing in the Act empowers the Commission to subcontract its program carriage responsibilities 
to a third party.213 Under subdelegation principles, agencies may refer matters outside of the 
agency for fact-finding and the issuance of preliminary decisions, provided the decisions remain 
subject to final agency review.214 Providing for de novo review of an arbitration award by the 
Commission satisfies this requirement.215 Moreover, as with its claims regarding the ADRA, 
TWC, having accepted a conditional grant, cannot challenge the very conditions that were 
prerequisite to that grant.216  
F. Damages
54. In its Opposition to TWC’s Petition, MASN requests that the Commission 
institute a separate proceeding to determine damages and other relief to make MASN whole from 
  
208 Petition for Review at 92-93.
209 5 U.S.C. § 575(a)(3) (“[A]n agency may not require any person to consent to arbitration as a condition of 
entering into a contract or obtaining a benefit.”).  
210 See TAC Order, 22 FCC Rcd at 17948, n.13.    
211 See id. at 17948, n.13 (citing Central Television v. FCC, 834 F.2d 186, 190 (D.C. Cir. 1987)).
212 TWC Reply at 75.    
213 Petition for Review at 93; TWC Reply at 76.  
214 See United States Telecom Ass'n v. FCC, 359 F.3d 554, 565-68 (D.C. Cir. 2004), cert. denied, 543 U.S. 925 
(2004).  
215 See National Park & Conservation Ass’n v. Stanton, 54 F. Supp. 2d 7, 18-19 (D.D.C. 1999) (rejecting as 
unlawful a procedure by which the agency “completely shift[ed] its responsibility” to an outside council and 
“retain[ed] virtually no final authority over the action -- or inaction -- of the Council”).
216 See TAC Order, 22 FCC Rcd at 17948, n.13 (citing Central Television, Inc. v. FCC, 834 F.2d 186, 190 (D.C. Cir. 
1987)).  
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TWC’s conduct.217 Because neither the Adelphia Order nor our program carriage rules expressly 
provide for the award of damages, we decline to institute a separate proceeding on damages.
IV. ORDERING CLAUSES
55. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 4(j) of the 
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), the Petition for Review
filed by Time Warner Cable pursuant to the terms of the Adelphia Order, IS DENIED.  TWC IS 
ORDERED to commence carriage of MASN on an analog tier in its North Carolina cable 
systems in accordance with the Term Sheet submitted by MASN in its Final Offer, within thirty 
(30) days of the release date of this Order. 
56. This action is taken pursuant to authority delegated by Section 0.283 of the 
Commission’s rules, 47 C.F.R. § 0.283.
FEDERAL COMMUNICATIONS COMMISSION
Monica Shah Desai
Chief, Media Bureau
  
217 MASN Opposition at 115-116.