Federal Communications Commission DA 17-1057
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Word Network Operating Company d/b/a
The Word Network
v.
Comcast Corporation and Comcast Cable 
Communications, LLC
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)
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MB Docket No. 17-166
File No. CSR-8938-P
MEMORANDUM OPINION AND ORDER
Adopted:  October 27, 2017 Released: October 27, 2017
By the Chief, Media Bureau:
I. INTRODUCTION
1. By this Memorandum Opinion and Order, we dismiss to the extent indicated herein the 
above-captioned complaint filed by Word Network Operating Company d/b/a The Word Network (TWN)
against Comcast Corporation and Comcast Cable Communications, LLC (collectively, Comcast).
1
  In its 
complaint, TWN, an independently owned and operated religious programming network, alleges that 
Comcast, a vertically-integrated multichannel video programming distributor (MVPD), discriminated 
against TWN on the basis of affiliation or non-affiliation in the selection, terms, and conditions of 
carriage in violation of the non-discrimination condition set forth in the Commission’s order approving 
Comcast’s acquisition of NBCUniversal by reducing distribution of TWN without a valid business 
justification.
2
  In addition, TWN alleges that Comcast demanded exclusive digital rights to TWN (i.e., 
rights to distribute TWN’s programming content online) in violation of the Comcast-NCBU Order’s non-
discrimination condition.
3
  TWN also alleges that Comcast violated Section 616(a)(1) of the 
                                                          
1
Complaint of Word Network Operating Company d/b/a The Word Network against Comcast Corporation and 
Comcast Cable Communications, LLC, MB Docket No. 17-166, File No. CSR-8938-P (filed June 8, 2017) 
(Complaint).
2
Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for Consent to Assign 
Licenses and Transfer Control of Licensees, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4287, para. 121, 
4358, Appx. A, Sec. III(1) (non-discrimination condition) (2011) (Comcast-NBCU Order).
3
Id. at 4287, para. 121, 4358, Appx. A, Sec. III(1) (non-discrimination condition).  TWN also alleges that Comcast 
demanded exclusive digital rights to TWN’s programming in violation of the Comcast-NCBU Order’s exclusivity 
and unfair practices conditions.  Id. at 4361, Appx. A, Sec. IV(B)(3) (exclusivity condition); id. at 4363, Appx. A, 
Sec. IV(G)(1)(a) (unfair practices condition).  Alleged violations of these conditions are not subject to the deadline 
for issuance of a prima facie determination under the program carriage rules.  See 47 CFR § 76.1302(g) (“Within 
sixty (60) calendar days after the complainant's reply to the defendant's answer is filed (or the date on which the 
reply would be due if none is filed), the Chief, Media Bureau shall release a decision determining whether the 
complainant has established a prima facie case of a violation of §76.1301.”).  We will address these allegations in a 
separate decision.
Federal Communications Commission DA 17-1057
2
Communications Act of 1934, as amended, (Act), and Section 76.1301(a) of the Commission’s rules, by 
refusing to negotiate with TWN unless TWN granted Comcast exclusive digital rights to TWN’s 
programming.
4
2. After reviewing the complaint, we find that TWN has failed to put forth sufficient evidence to 
establish a prima facie case that Comcast discriminated against it in violation of the non-discrimination 
condition by reducing distribution of TWN or by demanding exclusive digital rights to TWN’s
programming.
5
  We also find that TWN has failed to establish a prima facie case that Comcast violated 
the financial interest provision of Section 616(a)(1) of the Act and Section 76.1301(a) of the 
Commission’s rules by refusing to negotiate with TWN unless TWN granted Comcast exclusive digital 
rights to TWN’s programming.  
II. BACKGROUND
3. Section 616(a) of the Act directs the Commission to establish rules governing program 
carriage agreements and related practices between cable operators or other MVPDs and “video 
programming vendors” that, among other things:
prevent [an MVPD] from requiring a financial interest in a program service as a condition 
for carriage on one or more of such operator’s systems;
6
and
prevent [an 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.
7
In implementing these statutory provisions, the Commission adopted Section 76.1301(a) and (c) of its 
rules, which closely track the language of Section 616(a)(1) and (a)(3).
8
  The Commission has established
specific procedures for the review of program carriage complaints.
9
  Those rules, among other things, 
describe the evidence a complainant must provide in its complaint to establish a prima facie case of a 
violation of the program carriage rules.
10
  
4. When the Commission approved Comcast’s acquisition of NBCU, it imposed conditions 
concerning carriage of unaffiliated video programming.  Among other such conditions, the Comcast-
NBCU Order barred Comcast from discriminating against video programming vendors on the basis of 
                                                          
4
47 U.S.C. § 536(a)(1); 47 CFR § 76.1301(a).
5
For purposes of this Order, we assume that Comcast demanded exclusive digital rights to TWN’s programming.  
We do not, however, resolve the issue of whether Comcast in fact made such a demand.
6
47 U.S.C. § 536(a)(1).
7
Id. § 536(a)(3).
8
47 CFR § 76.1301(a) (“No cable operator or other multichannel video programming distributor shall require a 
financial interest in any program service as a condition for carriage on one or more of such operator’s/provider’s 
systems.”); id. § 76.1301(c) (“No multichannel video programming distributor shall engage in conduct the effect of 
which is to unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly by 
discriminating in video programming distribution on the basis of affiliation or nonaffiliation of vendors in the 
selection, terms, or conditions for carriage of video programming provided by such vendors.”). 
9
Id. § 76.1302.  
10
Id. § 76.1302(d).
Federal Communications Commission DA 17-1057
3
affiliation or non-affiliation in the selection, price, terms or conditions of carriage.
11
Under this condition, 
a vendor need not prove that it was unreasonably restrained from competing, as it must under Section 616 
of the Act and the program carriage rules.
12
  
5. Launched in February 2000, TWN is an independently owned and operated cable 
programming network, unaffiliated with any MVPD, that provides original African-American oriented 
ministry programming.
13
Comcast began distributing TWN on certain Comcast systems in 2000 pursuant 
to an agreement executed on September 8, 2000.
14
This agreement, which [REDACTED].
15
TWN does 
not charge Comcast a per-subscriber fee for distribution and provides its signal to Comcast free of 
charge.
16
TWN is also distributed by DIRECTV, AT&T, Spectrum/Charter, Verizon, Cox, Cablevision, 
CenturyLink, Suddenlink, and other MVPDs.
17
TWN has also made its programming available through its 
website since August 2013.
18
  TWN asserts that it has a strong online presence, with over 70,000 unique 
website hits per month, nearly a million followers on Facebook, 75,000 followers on Instagram, 41,700 
followers on Twitter, and 12,400 followers on YouTube.
19
6. Comcast is the nation’s largest cable operator with more than 22 million video 
subscribers and serves customers in 40 states and Washington, D.C..
20
  Comcast is also a vertically 
integrated content provider, owning the NBC and Telemundo broadcast networks, various national cable 
networks, and regional sports and news networks.
21
7. TWN and Comcast provide distinctly different versions of the events giving rise to 
TWN’s complaint.  TWN states that on November 11, 2016, Jennifer Gaiski, Senior Vice President,
Content Acquisition, Comcast Cable Communications, notified TWN by letter of Comcast’s intent to 
                                                          
11
Comcast-NBCU Order, 26 FCC Rcd at 4287, para. 121, 4358, Appx. A, Sec. III(1).
12
Id. at 4287, para. 121.  See 47 CFR § 76.1302(d)(3)(iii)(A).
13
Complaint at 8-9.  TWN states that it is the largest African-American religious network in the world, reaching 
millions of viewers, including elderly and disabled viewers who are unable to leave their homes to attend services in 
person.  Complaint at 9, 25.
14
Complaint at 8-9; Comcast Answer (Answer) at 6.  
15
Answer at 6.
16
Complaint at 26.  TWN indicates that it charges ministers hourly fees to air their programming on its network.  Id.
at 27-28.  We note that the definition of a “video programming vendor” eligible to file a program carriage complaint 
and to avail itself of the Comcast-NBCU Order non-discrimination condition is “a person engaged in the production, 
creation, or wholesale distribution of video programming for sale.”  47 U.S.C. § 536(b) (emphasis added).  See 47 
CFR § 76.1300(e); Comcast-NBCU Order, 26 FCC Rcd at 4358, Appx. A, Sec. I (Definitions).  TWN makes its 
programming available for free.  Because Comcast admits in its Answer that TWN is a “video programming 
vendor,” Answer at 39, we need not and do not reach the issue here of whether an entity that makes its programming 
available for free qualifies as a “video programming vendor” under the Act, our rules, and the Comcast-NBCU
Order conditions.  See Liberman Broadcasting, Inc. and LBI Media, Inc. v. Comcast Corporation and Comcast 
Cable Communications, LLC, Memorandum Opinion and Order, 31 FCC Rcd 9551, 9556-57, para. 12 (MB 2016) 
(Liberman v. Comcast), recon. pending.
17
Complaint at 9.
18
Id. at 10.
19
Id. at 25.
20
Id. at 11; Answer at 39.
21
Complaint at 11; Answer at 39.
Federal Communications Commission DA 17-1057
4
eliminate distribution of TWN on 456 Comcast systems, reducing TWN’s distribution on Comcast from 
approximately 12 million to 5 million subscribers.
22
  The eliminated markets included key African 
American markets for TWN, such as Washington, D.C., Philadelphia, and Baltimore, as well as other
major metropolitan areas such as Pittsburgh, Houston, Salt Lake City, San Francisco/Oakland, Denver, 
Boston, and Minneapolis/St. Paul.
23
  TWN asserts that Ms. Gaiski’s letter did not provide any explanation 
for Comcast’s decision to reduce distribution of TWN and came without any prior warning of Comcast’s 
decision.
24
  TWN states that it was subsequently informed by Comcast that TWN would be replaced on 
these systems by the Impact Network (Impact), which also features African-American ministry 
programming.
25
8. TWN asserts that following receipt of the November 11, 2016 letter, Kevin Adell, 
President and CEO of TWN, contacted Ms. Gaiski to find out why Comcast had reduced carriage of 
TWN and explore a solution.
26
  TWN maintains that instead of offering any tangible explanation for the 
reduction in distribution, Ms. Gaiski told Mr. Adell that Comcast was reducing distribution of TWN 
“Because we are Comcast, and we can.”
27
9. TWN states that on November 22, 2016, Mr. Adell and John Mattiello, TWN’s Director 
of Marketing and Affiliate Relations, met with Ms. Gaiski and her team at Comcast’s Philadelphia 
headquarters.
28
  According to TWN, when pressed for an explanation for Comcast’s decision to reduce 
distribution of TWN, Ms. Gaiski said that TWN did not perform as well as it should, but would not 
explain how Comcast measured its performance or the specific markets where TWN supposedly did not 
adequately perform.
29
  Additionally, Mr. Adell asserts that Ms. Gaiski demanded exclusive control over 
TWN’s digital rights at this meeting.
30
  Adell states that he rejected this request, explaining that TWN 
streams its content through TWN’s website and does not license its digital rights to any distributors.
31
  
Mr. Adell maintains that Comcast then informed TWN that its policy is to not carry a video programming 
vendor unless the vendor grants Comcast its digital rights.
32
  Mr. Adell states that he reiterated that TWN
would not part with its exclusive worldwide rights, as TWN uses them as part of its business model, and 
Comcast subsequently refused to negotiate any further.
33
  
10. TWN further states that after learning that Comcast intended to reduce distribution of 
TWN, Bishop Charles Ellis III, one of the more popular preachers featured on TWN, attempted to contact 
                                                          
22
Complaint at 13 and Exh. 9; Answer at 9.  
23
Complaint at 13 and Exh. 9.
24
Complaint at 14 and Exh. 9.
25
Complaint at 13; Declaration of Kevin Adell, President and Chief Executive Officer, The Word Network (Adell 
Decl.), at para. 16.
26
Adell Decl. at para. 25.
27
Complaint at 1-2; Adell Decl. at 25.
28
Complaint at 14; Adell Decl. at para. 26.  
29
Complaint at 15; Adell Decl. at para. 29.
30
Complaint at 15; Adell Decl. at para. 32.
31
Complaint at 15; Adell Decl. at para. 32.
32
Complaint at 15; Adell Decl. at para. 35.
33
Complaint at 16; Adell Decl. at para. 35.
Federal Communications Commission DA 17-1057
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Ms. Gaiski, but Ms. Gaiski never responded to him.
34
  Instead, TWN says, Antonio Williams, a director in 
Comcast’s government affairs department, returned his call.
35
  TWN asserts that when asked why 
Comcast was replacing TWN with the Impact Network on 456 of its systems, Mr. Williams responded 
that TWN had not been a good partner for Comcast, that TWN’s programming was mediocre, and that 
Mr. Adell had not visited Comcast’s headquarters.
36
  Mr. Williams also stated that Comcast believed 
replacing TWN with Impact on these systems would give the African American community more
options.
37
  TWN notes that a second call, which included Mr. Williams, Bishop Ellis, Reverend Jesse 
Jackson, Sr., and Bishop Paul Morton, occurred “prior to Christmas” 2016.
38
  During this call, the 
ministers explained to Mr. Williams the harm to African American ministers that would result if Comcast 
reduced its distribution of TWN and Mr. Williams agreed to relay their concerns to his superiors at 
Comcast.
39
  However, TWN states that none of the ministers ever heard back from Mr. Williams or 
Comcast.
40
11. Comcast provides a different version of events.  Comcast asserts that in 2016, its Content 
Acquisition team, led by Ms. Gaiski, began a review of the religious networks carried on its systems, all 
of which are unaffiliated with Comcast, with a focus on their appeal among African American viewers.
41
  
The review included an examination of the networks, their program offerings, the level of consumer 
interest for their programming in particular regions, and the networks’ level of engagement with Comcast 
and the local communities where they are carried.
42
  In September and October 2016, Comcast reviewed 
the results of an audience survey of viewer preferences among African-American pay-TV subscribers that 
was conducted between June 21 and July 13, 2016.
43
  The survey showed that Comcast carries multiple 
religious networks that are popular among African American viewers and that other religious networks 
had greater reach and higher intensity viewership among African American viewers than TWN.
44
  
Comcast’s Content Acquisition team subsequently conducted additional research and analysis of 
programming available on the various religious networks.
45
  Comcast states that this research showed that 
TWN’s programming substantially overlapped with many of the other religious networks carried by 
Comcast, including Impact,
46
and that there would be adequate substitutes for TWN viewers if TWN were 
                                                          
34
Complaint at 16; Declaration of Bishop Charles H. Ellis III (Ellis Decl.) at para. 20.
35
Complaint at 16; Ellis Decl. at para. 21.
36
Complaint at 16; Ellis Decl. at para. 22
37
Complaint at 16-7; Ellis Decl. at para. 22.
38
Complaint at 17; Ellis Decl. at para. 24.
39
Complaint at 17-8; Ellis Decl. at para. 25.
40
Complaint at 18; Ellis Decl. at para. 25.
41
Answer at 6-7.  Comcast explains that due to intense competition from other MVPDs and online video services, it 
continuously evaluates the programming lineup for its subscribers within the constraints of each system’s bandwidth 
and strives to select programming that keeps them loyal customers.  Gaiski Decl. at para. 8.
42
Answer at 7.
43
Id.
44
Id.
45
Id.
46
Id.  Comcast notes that at the time of this analysis, Impact was carried to approximately [REDACTED] million 
subscribers in the Heartland Region within Comcast's Central Division.  Id.
Federal Communications Commission DA 17-1057
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no longer available on Comcast systems in certain markets.
47
  Comcast states that the research further 
showed that Impact offers a broader selection of programming, spanning a greater variety of program 
genres, than TWN, which almost exclusively airs ministry-focused programming.
48
  Other factors 
weighing in favor of increasing distribution of Impact, Comcast says, were the fact that, unlike TWN, 
Impact is an African American owned and operated network, adding to the diversity of independent 
programming carried by Comcast, and the fact that Impact has sponsored concerts and religious events in 
local communities that enhance Comcast’s carriage of Impact in those communities.
49
  Comcast asserts 
that based on all of these factors, and after consultation with executives in the regions where it carried 
TWN, the Content Acquisition team decided to increase carriage of Impact by adding it to systems in 
Comcast’s Northeast, Central, and West Divisions and reduce carriage of TWN by removing it from 
systems in Comcast’s Northeast and West Divisions.
50
  As a result of these changes, Impact’s carriage on 
Comcast’s systems increased from approximately [REDACTED] million subscribers to approximately 
[REDACTED] million subscribers, while TWN’s carriage decreased from approximately [REDACTED]
million subscribers to approximately [REDACTED] million subscribers.
51
12. Comcast acknowledges that on November 11, 2016, Ms. Gaiski sent a letter, via fax, to Mr. 
Adell informing TWN of its decision to remove TWN from Comcast systems in the Northeast and West 
Divisions.
52
  Comcast states that on November 14, 2016, Ms. Gaiski and Justin Smith, Senior Vice 
President, Content Acquisitions, Comcast, spoke with Mr. Adell by phone and explained the reasons for 
Comcast’s decision to reduce distribution of TWN.
53
  On November 22, 2016, Ms. Gaiski and her team 
met with Mr. Adell and Mr. Mattiello at Comcast’s Philadelphia headquarters and again explained the 
reasons for its decision to reduce TWN’s carriage, including providing additional content and variety to 
its customers consistent with different systems’ needs, as well as bandwidth constraints.
54
  Comcast states 
that Ms. Gaiski agreed to consider TWN’s request to maintain carriage on certain of the systems at issue 
and indicated that TWN was free to contact those systems as well.
55
  Comcast, in three sworn 
declarations, denies that Ms. Gaiski ever told TWN that the reason for the reduction in distribution of 
TWN was “[b]ecause we are Comcast, and we can.”
56
  Comcast also denies that Ms. Gaiski demanded or 
                                                          
47
Id.  Comcast states that its research showed that at least 25 of the ministers that appear on TWN also appear on 
other networks carried by Comcast and many of these ministers are also available on local religious broadcast 
stations that Comcast carries in nearly every market.  Gaiski Decl. at 11.  
48
Answer at 7.
49
Id. at 8.
50
Id.  Comcast states that the Central Division, which includes TWN’s home market in Detroit and had the 
necessary bandwidth, chose to continue to carry TWN.  Id.; Gaiski Decl. at para. 15.
51
Answer at 8.
52
Id. at 9; Gaiski Decl. at para. 16.  See also Complaint at Exh. 9.
53
Gaiski Decl. at para. 17; Declaration of Justin Smith, Senior Vice President, Content Acquisition, Comcast Cable 
Communications (Smith Decl.), at para. 5.
54
Answer at 9; Gaiski Decl. at para. 20.  In addition to Ms. Gaiski, the meeting attendees for Comcast were Justin 
Smith, Sarah Gitchell (Senior Vice President, Deputy General Counsel and Chief Counsel, Content Acquisitions), 
Keesha Boyd (Executive Director, Multicultural Services), Bret Perkins (Vice President, External and Governmental 
Affairs), Antonio Williams (Director of Governmental and External Affairs), and Javier Garcia (Senior Vice 
President and General Manager, Multicultural Services).  Gaiski Decl. at para. 18.
55
Answer at 9; Gaiski Decl. at para. 22; Declaration of Keesha Boyd, Executive Director, Multicultural Services 
(Boyd Decl.), at para. 6; Smith Decl. at 5.
56
Answer at 9; Gaiski Decl. at para. 23; Smith Decl. at para. 7; Boyd Decl. at para. 9.
Federal Communications Commission DA 17-1057
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sought any digital rights, let alone exclusive rights, to TWN’s programming.
57
  Comcast asserts that it 
would not have made sense to seek or demand such rights as Comcast was interested in reducing 
distribution of TWN, not obtaining additional distribution rights.
58
  
13. Comcast states that, following the November 22 meeting, the Content Acquisition team 
began the process of identifying markets where it was willing to consider continued distribution of TWN, 
if supported by feedback from the local systems.
59
  On November 30, 2016, Ms. Gaiski and Mr. Smith 
participated in a phone call with Mr. Adell and Mr. Mattiello.
60
  During this call, Mr. Adell informed 
Comcast that the broadcast television station that he owns, WADL, Detroit, Michigan, would not renew 
its deal with NBCUniversal to carry certain NBCUniversal programming, that he was running ads against 
Comcast on his Detroit radio station, WFDF, and that he was planning a protest outside of Comcast’s 
headquarters in Philadelphia for December 2, 2016.
61
  Ms. Gaiski and Mr. Smith reiterated that Comcast 
was continuing internal discussions and reaching out to local systems regarding whether to maintain 
carriage of TWN in additional markets, but had not yet come to any final determination.
62
  Comcast 
asserts that TWN subsequently launched a public relations campaign that encouraged its viewers to 
complain directly to Ms. Gaiski and Mr. Smith and organized protests outside of Comcast’s headquarters 
in December 2016 and January 2017.
63
Additionally, Comcast asserts that in early January 2017, TWN 
published a letter on its website that purported to be from Reverend Al Sharpton accusing Comcast of 
violating its Memorandum of Understanding with African American leadership organizations submitted 
in the Comcast-NBCU merger proceeding.
64
  Comcast states that on January 11, 2017, Reverend Sharpton 
sent Mr. Adell a letter advising that Mr. Adell had “misinformed” him regarding the facts and had 
“altered [the] letter without [his] consent.”
65
  Reverend Sharpton’s letter further stated that Comcast had 
not made any changes that violated the MOU or undermined its commitment to the African American 
community and directed Mr. Adell to cease such misrepresentation.
66
  
14. Comcast states that “[g]iven the non-productive and hostile nature of Word’s conduct” and 
“the lack of any contrary feedback from the local systems,” it proceeded with its planned reduction in 
carriage for TWN.
67
  On January 12, 2017, Comcast discontinued carriage of TWN on the 456 systems 
                                                          
57
Answer at 9; Gaiski Decl. at para. 24; Smith Decl. at para. 6; Boyd Decl. at para. 8.
58
Gaiski Decl. at para. 24
59
Answer at 9.
60
Id. at 10; Gaiski Decl. at para. 27; Smith Decl. at para. 8.
61
Answer at 10; Gaiski Decl. at para. 27; Smith Decl. at para. 8.
62
Answer at 10; Gaiski Decl. at para. 28; Smith Decl. at para. 8.
63
Answer at 10; Gaiski Decl. at para. 29.
64
Answer at 11; Gaiski Decl. at para. 30.  See Comcast-NBCU Order, 26 FCC Rcd at 4492, App. G, Memorandum 
of Understanding Between Comcast Corporation, NBC Universal and the African American Leadership 
Organizations (MOU). The stated purpose of the MOU is “to enhance the policies and programs by which African 
Americans may realize greater participation in the five focus areas [(corporate governance, employment/workforce 
recruitment and retention, procurement, programming, and philanthropy and community investment)] and identify 
and pursue actions by which the National African American Leadership Organizations can support the growth of 
Comcast and NBCU's business within the African American consumer market.”  Id. at 4493.
65
Answer at 11; Gaiski Decl. at para. 30.  
66
Answer at 11; Gaiski Decl. at para. 30.
67
Answer at 11.
Federal Communications Commission DA 17-1057
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listed in Ms. Gaiski’s November 11 letter and replaced TWN on those systems with the Impact 
Network.
68
  Comcast states that following the reduction in TWN’s carriage, it received fewer than 50 
complaints from the approximately [REDACTED] million customers who were now receiving Impact 
instead of TWN.
69
  
15. On February 6, 2017, Mr. Adell provided written notice to Comcast of TWN’s intent to 
file a complaint pursuant to Section 76.1302(b) of the Commission’s rules.
70
  Comcast responded to this 
notice on February 16, 2017.
71
  On May 19, 2017, TWN provided a supplemental notice to Comcast of 
TWN’s intent to file a complaint.
72
  Comcast responded to this notice on May 26, 2017.
73
  On June 8, 
2017, TWN filed a complaint against Comcast with the Commission alleging violations of the Comcast-
NBCU Order’s non-discrimination, exclusivity, and unfair practices conditions, Section 616(a)(1) of the 
Act, and Section 76.1301(a) of the Commission’s rules.
III. DISCUSSION
A. Applicability of Prima Facie Showing Requirement to Complaints Brought Under 
the Comcast-NBCU Order Non-Discrimination Condition 
16. When filing a program carriage complaint, the complainant carries the burden of proof to 
establish a prima facie case that the defendant MVPD has engaged in unlawful behavior.
74
  The 
Commission has specified the evidence a program carriage complainant must provide in its complaint to 
establish a prima facie case.
75
  A Media Bureau finding that the complainant has established a prima facie
case means that the complainant has provided sufficient evidence in its complaint to allow the case to 
proceed to a ruling on the merits.
76
  In contrast, if the Bureau finds that the complainant has not 
established a prima facie case, the Bureau will dismiss the complaint.
77
17. We reject TWN’s assertion that, unlike a non-discrimination complaint brought under the 
                                                          
68
Complaint at 18; Answer at 8.
69
Answer at 11; Gaiski Decl. at para. 31.
70
Complaint at 8 and Exh. 5; Answer at 12.  See 47 CFR § 76.1302(b) (“Any aggrieved video programming vendor 
or multichannel video programming distributor intending to file a complaint under this section must first notify the 
potential defendant multichannel video programming distributor that it intends to file a complaint with the 
Commission based on actions alleged to violate one or more of the provisions contained in §76.1301 of this part. 
The notice must be sufficiently detailed so that its recipient(s) can determine the specific nature of the potential 
complaint. The potential complainant must allow a minimum of ten (10) days for the potential defendant(s) to 
respond before filing a complaint with the Commission.”).
71
Complaint at 8 and Exh. 6; Answer at 12.
72
Complaint at 8 and Exh. 7; Answer at 12.
73
Complaint at 8 and Exh. 8; Answer at 12.
74
Implementation of Sections 12 and 19 of the Cable Television Consumer Protection and Competition Act of 1992, 
Development of Competition and Diversity in Video Programming Distribution and Carriage, Second Report and 
Order, 9 FCC Rcd 2642, 2654, para. 29 (1993) (1993 Program Carriage Order).  See 47 CFR § 76.1302(d).
75
47 CFR § 76.1302(d).
76
Id. § 76.1302(g)(3).  The Bureau can make a decision on the merits based on the complaint, answer, and reply 
without discovery or after discovery, or it can refer the matter to an administrative law judge for a hearing.  
Id. § 76.1302(i).  
77
Id. § 76.1302(g)(4).
Federal Communications Commission DA 17-1057
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program carriage rules, a complaint brought by a video programming vendor under the non-
discrimination condition in the Comcast-NBCU Order does not need to make a prima facie case to the 
Media Bureau.
78
  TWN acknowledges that the non-discrimination condition in the Comcast-NBCU Order 
specifically applies the program carriage complaint procedures set forth in Section 76.1302 of the 
Commission’s rules to discrimination complaints brought under that condition.
79
  TWN asserts, however, 
that Section 76.1302(d) – which specifies the evidence that a complaint must contain “[i]n order to 
establish a prima facie case of a violation of § 76.1301” – requires that a prima facie case be made only 
for complaints of a violation of the prohibited practices in Section 76.1301, not for discrimination 
complaints brought under the Comcast-NBCU Order.
80
  TWN argues that since it is not bringing a 
complaint alleging a violation of Section 76.1301 but rather for violation of the non-discrimination 
condition, it is not required to make a prima facie showing that Comcast violated the non-discrimination 
condition.
81
We disagree.  The fact that the prima facie case requirement makes reference to a violation 
of 76.1301 does not render it inapplicable to complaints brought under the Comcast-NBCU Order’s non-
discrimination condition.  TWN’s proffered interpretation would contravene the text of the condition and 
frustrate the Commission’s intent regarding its scope.  
18. The Comcast-NBCU Order states explicitly that for purposes of enforcing the non-
discrimination condition, a programming vendor “may submit a dispute to the Commission in accordance 
with the program carriage complaint procedures, 47 C.F.R. § 76.1302.”
82
  The prima facie case 
requirement is one of the complaint procedures listed in Section 76.1302,
83
and it is an integral part of 
these procedures.
84
  As Comcast points out, the Commission has emphasized the importance of the prima 
facie showing to guard against frivolous complaints and promote the efficient use of Commission 
resources.
85
  In the 2011 Program Carriage Order, the Commission stated that “we believe that retaining 
this [prima facie] requirement is important to dispose properly of frivolous complaints and to ensure that 
only legitimate complaints proceed to further evidentiary proceedings.”
86
  We know of no reason why the 
                                                          
78
Complaint at 19.  
79
Id.  See Comcast-NBCU Order, 26 FCC Rcd at 4359, Appx. A, Sec. III(4) (“For purposes of enforcing the 
Conditions of this Section III, any Video Programming Vendor may submit a dispute to the Commission in 
accordance with the Commission’s program carriage complaint procedures, 47 C.F.R. § 76.1302.”).
80
Complaint at 19-20; Reply at 12.  See 47 CFR 76.1302(d).
81
Reply at 12-13.
82
See supra note 79.
83
47 CFR 76.1302(d).  
84
Indeed, we note that the 2011 Program Carriage Order referred to the prima facie case requirement in Section 
76.1302(d) as a “procedure.”  Revision of the Commission’s Program Carriage Rules, Second Report and Order in 
MB Docket No. 07-42 and Notice of Proposed Rulemaking in MB Docket No. 11-131, 26 FCC Rcd 11494, 11495-
96, para. 2 (2011) (“we take initial steps to improve our procedures for addressing program carriage complaints by:  
Codifying in our rules what a program carriage complainant must demonstrate in its complaint to establish a prima 
facie case”) (2011 Program Carriage Order), rev. granted in part and denied in part, Time Warner Cable Inc. v. 
FCC, 729 F.3d 137 (2013); id. at 11501, para. 8.
85
Answer at 14.  
86
2011 Program Carriage Order, 26 FCC Rcd at 11502, para. 10.  See also id. at 11519, para. 33 (“In addition, we 
note that the number of cable-affiliated networks recently increased significantly after the merger of Comcast and 
NBC Universal, thereby highlighting the continued need for an effective program carriage complaint regime.  The 
Commission noted that that transaction would ‘result in an entity with increased ability and incentive to harm 
competition in video programming by engaging in foreclosure strategies or other discriminatory actions against 
(continued….)
Federal Communications Commission DA 17-1057
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same concerns about frivolous complaints should not apply to disputes brought under the non-
discrimination condition, for which the Commission specifically incorporated the “procedures” in Section 
76.1302.  
19. Moreover, TWN points to nothing in the Comcast-NBCU Order that evinces an intent by the 
Commission to relieve video programming vendors bringing a complaint under the non-discrimination 
condition from complying with the prima facie case requirement.  Had the Commission intended to make 
such a significant departure from the program carriage complaint procedures when extending these 
procedures to complaints brought under the non-discrimination condition, we believe it would have done 
so in clear and unmistakable language, as it did with another evidentiary requirement.  Specifically, in the 
Comcast-NBCU Order, the Commission made it easier for programming vendors to establish a program 
carriage discrimination violation by expressly providing that “[a] vendor proceeding under this condition 
will not need to also prove that it was unreasonably restrained from competing, as it would under our 
program carriage rules.”
87
  Indeed, the requirement to prove that the conduct alleged has the effect of 
unreasonably restraining the ability of an unaffiliated video programming vendor to compete fairly is one 
of the elements of the prima facie case requirement.
88
  If the Commission had intended to exempt 
complaints brought under the non-discrimination condition from complying with the prima facie case 
requirement in its entirety, there would have been no need to single out the unreasonable restraint element
of the prima facie case requirement.  Instead, the Commission would have simply stated that complaints 
brought under the non-discrimination condition need not comply with the prima facie case requirement.   
20. Furthermore, there are other provisions in Section 76.1302 that make reference to a violation 
of Section 76.1301.  The general pleading requirements and the pre-filing notice requirement in Section 
76.1302, like the prima facie case requirement, both contain language referencing violations of Section 
76.1301.
89
  TWN concedes that these other procedural requirements apply to complaints brought under 
the non-discrimination condition, asserting that “[w]hat the Commission did not do was set up new 
procedures for filing complaints, instead using the existing process for general pleading requirements, 
pre-filing notification, complaint contents, answers, replies, time limits for filing and responses, remedies 
for violations, and petitions for temporary standstill.”
90
  TWN, however, cites nothing in the Comcast-
NBCU Order that would support the notion that the Commission intended to extend the general pleading 
requirements and the pre-filing notice requirement – both of which make reference to violations of 
Section 76.1301 – but not the prima facie case requirement to complaints brought under the non-
(Continued from previous page)                                                                  
unaffiliated video programming networks.’  The Commission specifically relied upon the program carriage 
complaint process to address these concerns.”) (citations omitted).  
87
Comcast-NBCU Order, 26 FCC Rcd at 4287, para. 121.  
88
47 CFR § 76.1302(d)(3)(iii)(A) (providing that in order to establish a prima facie case of a discrimination 
violation, the complaint must contain “[e]vidence that the conduct alleged has the effect of unreasonably restraining 
the ability of an unaffiliated video programming vendor to compete fairly.”).
89
Id. § 76.1302(a) (“Any video programming vendor or multichannel video programming distributor aggrieved by 
conduct that it believes constitute a violation of the regulations set forth in this subpart may commence an 
adjudicatory proceeding at the Commission to obtain enforcement of the rules through the filing of a complaint. The 
complaint shall be filed and responded to in accordance with the procedures specified in §76.7 of this part with the 
following additions or changes:”) (emphasis added); id. § 76.1302(b) (“Any aggrieved video programming vendor 
or multichannel video programming distributor intending to file a complaint under this section must first notify the 
potential defendant multichannel video programming distributor that it intends to file a complaint with the 
Commission based on actions alleged to violate one or more of the provisions contained in §76.1301 of this 
part….”) (emphasis added).
90
Reply at 15 (emphasis in original).
Federal Communications Commission DA 17-1057
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discrimination condition.  We agree with Comcast that TWN may not pick and choose the program 
carriage procedural rules that apply to it.
91
  
21. The Bureau recently confirmed that the prima facie case requirement applies to 
discrimination complaints brought under the Comcast-NBCU Order’s non-discrimination condition.
92
  
The Bureau observed that in order to establish a prima facie case of a program carriage violation, the 
complaint must contain, among other things, evidence that the complainant is a “video programming 
vendor,” as defined in Section 76.1300(e) of the Commission’s rules.
93
  TWN maintains that Liberman v. 
Comcast merely states what the Comcast-NBCU Order already makes clear—that “complaints under the 
non-discrimination condition may use the Commission’s program carriage complaint procedures.”
94
To 
the extent that TWN is suggesting that compliance with the procedural requirements in Section 76.1302 is 
permissive rather than mandatory, we find nothing in the Comcast-NBCU Order that supports this 
position.  To the contrary, as the Bureau found in Liberman v. Comcast, “the Comcast-NBCU Order
directs aggrieved video programming vendors to bring alleged violations of the program carriage 
conditions to the Commission pursuant to the program carriage complaint process established under 
section 616.”
95
22. Rather than satisfying the prima facie case requirement, TWN asserts that it “is required to 
show only that Comcast’s decision to slash TWN’s carriage would not have occurred but for its non-
affiliation with Comcast.”
96
  In support of this argument, TWN cites the Commission’s statement in the 
Comcast-NBCU Order that “[i]f program carriage disputes arise based on this non-discrimination 
condition, it will be sufficient for the aggrieved vendor to show that it was discriminated against on the 
basis of its affiliation or non-affiliation.”
97
  TWN’s argument takes the Commission’s statement out of its 
proper context.  In the following sentence, the Commission stated that “[a] vendor proceeding under this 
condition will not need to also prove that it was unreasonably restrained from competing, as it would 
under our program carriage rules.”
98
  Thus, reading this language together, it is clear that the Commission 
                                                          
91
Answer at 15.  
92
In Liberman v. Comcast, the Bureau dismissed a program carriage complaint brought by Liberman Broadcasting, 
Inc. and LBI Media, Inc. (LBI), a television broadcast station licensee, alleging that Comcast had discriminated 
against LBI in the selection, terms, and conditions of carriage of LBI’s Spanish language programming network, 
Estrella TV, on the basis of affiliation in violation of Section 616 of the Act, the program carriage rules, and the 
non-discrimination condition in the Comcast-NBCU Order.  Liberman v. Comcast, 31 FCC Rcd 9551, para. 1.
93
Id. at 9556, para. 9.
94
Reply at 13.  
95
Liberman v. Comcast, 31 FCC Rcd at 9561, para. 21 (emphasis added); id. at 9553, para. 5 (“When the 
Commission approved Comcast’s acquisition of NBCU, it imposed certain conditions on Comcast’s carriage of 
unaffiliated video programming.  Specifically, the Commission barred Comcast from discriminating against ‘video 
programming vendors’ based on affiliation, and it incorporated the same definition of ‘video programming vendor’ 
that appears in the Act and in the Commission’s program carriage rules.  The Commission directed claimants to 
bring claims for a violation of this condition pursuant to the program carriage complaint procedures.”) (emphasis 
added).  
96
Reply at 11.  According to TWN, it makes this showing by demonstrating first that it leads Impact in their 
programming genre, as evidenced by the fact that it commands higher fees from ministers for airtime and features 
more popular ministers, and second that Comcast treats its “poorly performing, affiliated networks” better than 
TWN.  Id. at 12.
97
Id. at 5 (citing Comcast-NBCU Order, 26 FCC Rcd at 4287, para. 121).
98
Comcast-NBCU Order, 26 FCC Rcd at 4287, para. 121.
Federal Communications Commission DA 17-1057
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was simply making it easier for programming vendors to establish non-discrimination violations by 
Comcast by eliminating the unreasonable restraint element of the prima facie case requirement.
99
  
Nothing in the Comcast-NBCU Order suggests that the Commission intended to exempt a complainant 
from providing either direct or circumstantial evidence that the defendant MVPD discriminated on the 
basis of affiliation or non-affiliation.
100
  
23. We conclude that the Commission intended to apply the prima facie case requirement – apart
from the unreasonable restraint element of this requirement expressly excluded in the Comcast-NBCU 
Order – to complaints brought under the non-discrimination condition.  We thus reject TWN’s assertion 
that it is not required to establish a prima facie case that Comcast violated the non-discrimination 
condition.  Below, we consider whether TWN made a prima facie showing to support its allegations that 
Comcast violated the nondiscrimination condition.  
B. Alleged Violations of Non-Discrimination Condition
1. Allegation that Comcast Discriminated Against TWN by Reducing 
Distribution of TWN
24. We conclude that TWN has failed to make a prima facie showing that Comcast discriminated 
against it on the basis of affiliation or non-affiliation in violation of the Comcast-NCBU Order’s non-
discrimination condition.
101
In order to establish a prima facie case of discrimination, a complaint must 
contain, among other evidence, either direct or circumstantial evidence that the defendant MVPD 
discriminated on the basis of affiliation or non-affiliation.
102
  We conclude that TWN has not established a 
prima facie case of discrimination because it has failed to show through direct evidence or circumstantial 
evidence that Comcast discriminated against it on the basis of affiliation or non-affiliation.
25. TWN fails to provide direct evidence to support its allegation that Comcast discriminated 
against it on the basis of affiliation or non-affiliation by reducing distribution of TWN.  Direct evidence 
of discrimination consists of either documentary evidence or testimonial evidence supported by an 
affidavit from a representative of the complainant.
103
TWN suggests that “the evidence presented in the 
declaration of TWN CEO Kevin Adell could satisfy a finding of ‘direct evidence’ as it presents ‘an 
affidavit from a representative of the programming vendor involved in the relevant carriage negotiations 
detailing the facts supporting a claim that a representative of the defendant MVPD informed the vendor 
that the MVPD took an adverse carriage action because the vendor is not affiliated with the MVPD.’”
104
  
The evidence TWN points to includes Mr. Adell’s statement that “Comcast has been inflexible and 
unwilling to work to resolve this dispute,” and that “[i]ts behavior demonstrates that it is not making an 
                                                          
99
47 CFR § 76.1302(d)(3)(iii)(A).
100
See supra para. 19.
101
Complaint at 3, 22-39.  “[T]he Media Bureau’s determination of whether a complainant has established a prima 
facie case is based on a review of the complaint (including any attachments) only.”  2011 Program Carriage Order, 
26 FCC Rcd at 11506, para. 17.
102
2011 Program Carriage Order, 26 FCC Rcd at 11503-04, paras. 13-14.  As noted above, a programming vendor 
bringing a complaint under the non-discrimination condition need not provide evidence that it was unreasonably 
restrained from competing in order to establish a prima facie case, as it does under the Act and the program carriage 
rules.  Comcast-NBCU Order, 26 FCC Rcd at 4287, para. 121.  See 47 U.S.C. § 536(a)(3); 47 CFR
§ 76.1302(d)(3)(iii)(A).
103
47 CFR § 76.1302(d)(B)(1).  See 2011 Program Carriage Order, 26 FCC Rcd at 11503, para. 12.
104
Reply at 16, n.47 (quoting 2011 Program Carriage Order, 26 FCC Rcd at 11504, para. 13).  
Federal Communications Commission DA 17-1057
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informed, logical business decision.”
105
26. We disagree with TWN that these statements constitute direct evidence of discrimination on 
the basis of affiliation or non-affiliation.  In GSN v. Cablevision, the Commission made clear that direct 
evidence is evidence that states directly – without further inference or presumption – that a carriage 
decision was based on affiliation or non-affiliation.
106
  The Commission in GSN v. Cablevision explained 
that “direct evidence that a carriage decision was ‘based on’ affiliation or non-affiliation would be a 
statement, email, or other admission from an MVPD stating on its face that a carriage action was taken 
because a video programming vendor was or was not affiliated with the MVPD.”
107
  Nowhere in his 
declaration does Mr. Adell state that Comcast admitted that it reduced distribution of TWN because TWN 
is not affiliated with Comcast.  Rather, Mr. Adell appears to infer Comcast’s motivation in reducing 
distribution of TWN.
108
  The evidence here does not on its face establish that Comcast reduced 
distribution of TWN because TWN is unaffiliated with Comcast.  Accordingly, we conclude that TWN 
has failed to make a prima facie case through direct evidence that Comcast discriminated against it on the 
basis of affiliation or non-affiliation by reducing distribution of TWN.
27. We also conclude that TWN fails to make a prima facie case through circumstantial evidence 
that Comcast discriminated against it on the basis of affiliation or non-affiliation by reducing distribution 
of TWN.  Circumstantial evidence of discrimination consists of (i) evidence that the complainant provides 
video programming that is similarly situated to video programming provided by a video programming 
vendor affiliated with the defendant MPVD, based on a combination of factors, such as genre, ratings, 
license fee, target audience, target advertisers, target programming, and other factors; and (ii) evidence 
that the defendant MVPD has treated the video programming provided by the complainant differently 
than the similarly situated, affiliated video programming with respect to the selection, terms, or conditions 
for carriage.
109
  TWN fails to provide evidence that the programming it provides is similarly situated to 
video programming provided by a vendor affiliated with Comcast.  TWN compares its network with 
Impact, but Impact is an independent network and is not affiliated with Comcast.
110
  Since Impact is not 
affiliated with Comcast, TWN cannot establish circumstantial evidence of discrimination by 
                                                          
105
In support of its suggestion that Mr. Adell’s declaration could satisfy a finding of direct evidence, TWN cites 
paragraph 25 of the declaration.  Reply at 16, n.47.  Paragraph 25 states:
Comcast has been inflexible and unwilling to work to resolve this dispute.  The reduction in 
carriage was an unexpected development in our relationship, and Comcast has refused to provide 
any good-faith reason why it reduced TWN’s carriage.  Its behavior demonstrates that it is not 
making an informed, logical business decision.  I repeatedly tried to contact Jennifer Gaiski, 
Senior Vice President of Content Acquisition for Comcast Cable, to understand why Comcast had 
reduced our carriage and to try to explore a solution.  Instead of offering any tangible explanation 
for the reduction in distribution, Ms. Gaiski told me that Comcast was reducing our distribution 
‘Because we are Comcast, and we can.’
Complaint, Ex. 1 at para. 25.  
106
Game Show Network, LLC v. Cablevision Systems Corp., Memorandum Opinion and Order, 32 FCC Rcd 6160, 
6169, para. 27 (2017) (GSN v. Cablevision), pet. for review pending sub nom. Game Show Network, LLC v. FCC, 
No. 17-1203 (D.C. Cir. filed Sept. 11, 2017).
107
Id. at para. 34.
108
See supra note 105.
109
47 CFR § 76.1302(d)(B)(2).  See 2011 Program Carriage Order, 26 FCC Rcd at 11505-06, para. 14.
110
Answer at 13 n.52.
Federal Communications Commission DA 17-1057
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demonstrating that its programming is substantially similar to programming provided by Impact.
111
  
28. TWN also argues that Comcast treats its affiliated networks better than TWN.
112
  TWN 
asserts that Comcast reduced distribution of TWN, which does not charge Comcast any per-subscriber fee
for carriage and is “the most popular network in its genre,” while at the same time, it increased 
distribution and per-subscriber fees of Comcast-affiliated networks, such as NBC Universo and Syfy, that 
failed to perform and were not ratings leaders in their respective genres.
113
  In addition, TWN asserts that 
all Comcast-affiliated networks for which data is available, including E!, the USA Network, Bravo, Syfy,
the Oxygen Network, and NBC Universo, were distributed more broadly than TWN and that Comcast 
distributes its affiliated networks NBC Universo and the Oxygen Network more broadly than other major 
MVPDs.
114
  TWN, however, does not offer evidence that any of these Comcast-affiliated networks 
provide programming that is similarly situated with programming provided by TWN.
115
To the contrary, 
TWN concedes in its reply that it “does not compare its content to the content of a similarly situated 
network owned by Comcast.”
116
  We conclude, therefore, that TWN has failed to make a prima facie case 
through circumstantial evidence that Comcast discriminated against it on the basis of affiliation or non-
affiliation by reducing distribution of TWN.
2. Allegation that Comcast Discriminated Against TWN by Demanding 
Exclusive Digital Rights to TWN’s Programming
29. We further conclude that TWN fails to make a prima facie showing that Comcast 
discriminated against it on the basis of affiliation or non-affiliation by demanding exclusive digital rights 
to TWN’s programming.
117
TWN asserts that the non-discrimination condition in the Comcast-NBCU 
Order means that Comcast cannot require a programmer to become affiliated as a condition of carriage.
118
  
The Comcast-NBCU Order adopted the non-discrimination condition to address concerns that the vertical 
integration of Comcast’s distribution network with NBCU's programming assets would increase 
Comcast’s ability and incentive to reduce competition from rival video programming networks by 
discriminating against or foreclosing unaffiliated programming.
119
  A demand that an unaffiliated 
programmer become “affiliated” as a condition of carriage would be tantamount to a refusal to carry or 
                                                          
111
See supra note 109.
112
Complaint at 32-34.
113
Id.
114
Id. at 35-38.
115
In its February 26, 2017 pre-filing notice to Comcast, TWN asserted that at least one Comcast-affiliated network, 
the Oxygen Network, is similarly situated to TWN, arguing that these networks compete for viewers and offer 
competing content.  Complaint, Ex. 5 at 2.  For example, TWN stated that the Oxygen Network aired the “Preachers 
of LA” and “Preachers of Detroit” franchises that chronicle the lives of African American bishops and pastors in 
Los Angeles and Detroit.  Id.  In its February 16, 2017 response to TWN, Comcast asserted that the fact that the 
Oxygen Network focuses on “young, multicultural women” as its target audience and features shows such as “Bad 
Girls Club,” “Tattoos after Dark,” and “Celebrities Under Cover” is dispositive refutation of any similarity with 
TWN’s Christian ministry focus, notwithstanding an overlap in one featured program or pastor.  Id., Ex. 6 at 2-3.  In 
its complaint, TWN does not assert or provide evidence that it programming is similarly situated to the 
programming aired by the Oxygen Network.   
116
Reply at 29.
117
Complaint at 39-40; Reply at 25-26.  
118
Complaint at 39 (citing Comcast-NBCU Order, 26 FCC Rcd at 4282, para. 110, 4287, para. 121).  
119
Comcast-NBCU Order, 26 FCC Rcd at 4282, para. 110.
Federal Communications Commission DA 17-1057
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foreclosure of an unaffiliated programmer and would constitute discrimination on the basis of affiliation 
or non-affiliation.  TWN avers that during the November 22, 2016 meeting, Comcast refused to negotiate 
with TWN for the reversal of its decision to reduce TWN’s distribution unless TWN granted Comcast 
exclusive digital rights.
120
  According to TWN, the exclusive digital rights Comcast demanded, if granted, 
would create an affiliation between Comcast and TWN and such demand constitutes unlawful 
discrimination against TWN on the basis of non-affiliation.
121
  TWN maintains that the exclusive digital 
rights are at least [REDACTED], which TWN asserts would substantially exceed the Commission’s 
threshold for attributable interest of an affiliate.
122
30. We conclude that the grant of exclusive digital rights would not create an “affiliation”
between Comcast and TWN for purposes of the non-discrimination condition.  The Comcast-NBCU 
Order does not expressly define what constitutes an “affiliation” for purposes of the non-discrimination 
condition.  Nevertheless, given the Commission’s explicit direction that complaints brought under the 
non-discrimination condition use the program carriage complaint procedures specified in the 
Commission’s rules,
123
we conclude that it is reasonable and appropriate to use the definition of 
“affiliated” set forth in the program carriage rules.  Under this definition, “entities are affiliated if either 
entity has an attributable interest in the other or if a third party has an attributable interest in both 
entities.”
124
  Digital rights are not “attributable interests” under any of these criteria, which limit 
cognizable or attributable interests to certain specified common ownership or management interests.
125
  
Therefore, we find that the grant of digital rights would not create an “affiliation” between Comcast and 
TWN and any demand for such rights would not constitute discrimination against TWN on the basis of 
non-affiliation.  
31. We are not persuaded by TWN’s argument that we should reject the definition of “affiliated” 
set forth in the program carriage rules because the Comcast-NBCU Order explicitly incorporated the same 
definition of “attributable interest” as that found in the program carriage rules, but did not explicitly 
incorporate the definition of “affiliated” or otherwise indicate that “affiliated” entities require common 
ownership or management in the context of the non-discrimination condition.
126
  The definition of 
“Attributable Interest” in the conditions adopted in the Comcast-NBCU Order is expressly limited to 
instances where this capitalized term appears in the conditions.
127
  The capitalized term “Attributable 
                                                          
120
Complaint at 39-40; Adell Decl. at para. 32. 
121
Complaint at 40; Reply at 26.
122
Complaint at 40; Adell Decl. at para. 32; Expert Report of Harold W. Furchtgott-Roth at para. 30.  
123
Comcast-NBCU Order, 26 FCC Rcd at 4359, App. A, Sec. III(4) (“For purposes of enforcing the Conditions of 
this Section III, any Video Programming Vendor may submit a dispute to the Commission in accordance with the 
Commission's program carriage complaint procedures, 47 C.F.R. § 76.1302.”).
124
47 CFR § 76.1300(a). The program carriage rules provide that “attributable interest” shall be defined by 
reference to the criteria set forth in Notes 1 through 5 to Section 76.501, except as otherwise noted in Section 
76.1300(b).  Id. § 76.1300(b).  See id. § 76.501 Notes 1 through 5.
125
Id. § 76.501 Notes 1 through 5. 
126
Reply at 25-26.
127
Comcast-NBCU Order, 26 FCC Rcd at 4355, Appx. A, Sec. I (Definitions) (“For purposes of the conditions set 
forth in Sections I-XX below (‘Conditions’), capitalized terms shall have the meanings set forth below.”).  Under the 
Definitions in the Comcast-NBCU Order’s conditions, “‘Attributable Interest’ means a cognizable interest in an 
entity as defined pursuant to 47 C.F.R. §76.1000(b).”  Id.  Section 76.1000(b) provides that for purposes of the 
program access rules, cognizable and attributable interests shall be defined by reference to the criteria set forth in 
(continued….)
Federal Communications Commission DA 17-1057
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Interest” appears only twice in the conditions – in the unfair practices condition and in footnote one to the 
conditions.
128
  While the definition of “Attributable Interest” in the conditions is the same definition used 
in the program carriage rules,
129
the Commission did not explicitly apply this definition to the non-
discrimination condition.  Therefore, the Commission’s decision to include this definition in the 
conditions for the limited purposes noted above, but not to include the program carriage rules’ definition 
of “affiliated,” cannot be reasonably read to reflect an intent to use a different definition of “affiliated” for 
purposes of the non-discrimination condition than that used for purposes of the program carriage rules.  
To suggest otherwise strains credulity.  The Commission has never treated digital rights as attributable 
interests that would create an affiliation between an MVPD and a programmer.  Given the amount of 
digital rights that are assigned throughout the MVPD marketplace today, TWN’s interpretation would 
make affiliation between programmers and MVPDs nearly ubiquitous.  If the Commission had intended 
such a radical departure from the definitions used in the program carriage rules, we believe it would have 
done so explicitly and explained the basis for its decision.  We also read the Commission’s use of the 
term “affiliated” in the Comcast-NBCU Order condition in light of the Act’s definition of “affiliate,” 
which refers to “common ownership or control” of two entities, and defines “own” as “to own an equity 
interest (or the equivalent thereof) of more than 10 percent.”
130
  
32. As discussed above, even if Comcast demanded exclusive digital rights from TWN, we 
conclude that the grant of digital rights to TWN’s programming would not create an “affiliation” between 
Comcast and TWN and any demand for such rights would not constitute discrimination against TWN on 
the basis of non-affiliation under the non-discrimination condition.  Accordingly, we find that TWN 
cannot establish a prima facie case of discrimination and we dismiss TWN’s complaint as to this 
allegation.
C. Alleged Violation of Financial Interest Provision of Program Carriage Rules
33. We conclude that TWN has failed to establish a prima facie case that Comcast violated the 
financial interest provision of Section 616(a)(1) of the Act and Section 76.1301(a) of the Commission’s 
rules, which prohibits an MVPD from requiring a financial interest in a program service as a condition for 
carriage.
131
  In a complaint alleging a violation of the financial interest provision, the complaint must 
include “documentary evidence or testimonial evidence (supported by an affidavit from a representative 
of the complainant) that supports the claim that the defendant required a financial interest in any program 
service as a condition for carriage on one or more of such defendant’s systems.”
132
  TWN alleges that 
Comcast demanded a “financial interest” in TWN when it allegedly demanded, during the November 22, 
(Continued from previous page)                                                                  
Notes 1 through 5 to Section 76.501, except as otherwise noted in Section 76.1000(b).  47 CFR § 76.1000(b).  This 
is the same definition used for “attributable interest” in the program carriage rules.  47 CFR § 76.1300(b). 
128
Comcast-NBCU Order, 26 FCC Rcd at 4363, Appx. A, Sec. IV(G)(1)(b) (“Neither Comcast nor C-NBCU shall 
unduly or improperly influence the decision of any vendor in which it has an Attributable Interest to sell, or unduly 
or improperly influence such vendor’s prices, terms and conditions for the sale of Video Programming to any 
unaffiliated MVPD or OVD for online distribution to subscribers or consumers.”); id. at 4356, Appx. A, Sec. I 
(Definitions), n.1 (footnote to definition of “C-NBCU Programmer”) (“Comcast and NBCU are prohibited from 
acquiring an Attributable Interest in any provider of Video Programming unless that provider is obliged to abide by 
the conditions set forth in this Appendix.”).
129
See supra note 127.
130
47 U.S.C. § 153(2).
131
47 U.S.C. § 536(a)(1); 47 CFR § 76.1301(a).
132
47 CFR § 76.1302(d)(3)(i).
Federal Communications Commission DA 17-1057
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2016 meeting, that TWN grant Comcast exclusive digital rights to TWN.
133
  TWN asserts that this 
demand would have created an attributable interest, as the value of TWN’s digital rights is at least 
[REDACTED], which substantially exceeds the Commission’s threshold for attributable interest of an 
affiliate.
134
  TWN maintains that Mr. Adell’s declaration establishes a prima facie case that Comcast 
demanded financial rights as a precondition for carriage.
135
  Based on his more than 25 years of 
experience in the programming industry, TWN avers, Mr. Adell “recognized that Comcast’s attempt to 
gain TWN’s digital rights was an implicit threat that Comcast would slash distribution of TWN unless 
TWN gave Comcast a financial interest in his company.”
136
34. TWN does not allege in its complaint that Comcast demanded an ownership or equity interest
in its digital rights.  Even assuming for purposes of this Order that Comcast demanded an exclusive 
license in TWN’s digital rights,
137
such a demand does not constitute a demand for a “financial interest” 
within the meaning of Section 616(a)(1) of the Act and Section 76.1301(a) of the Commission’s rules.  
While neither the Act nor the Commission’s rules expressly define the term “financial interest,” the 
legislative history of Section 616 makes clear that Congress was concerned about cable operators using 
their market power to require programmers to give cable operators an ownership or equity interest as a 
condition of carriage.  The Senate Report noted that “the major cable companies increasingly insist on 
owning a financial interest in shows and programs they use on their channels.”
138
  The Senate Report 
further observed that “[a]s a practical matter, it is almost impossible in the present environment to start a 
new cable system service without surrendering equity to the owners of the monopoly cable conduits.”
139
  
                                                          
133
Complaint at 43.
134
Id.
135
Id. at 45.
136
Id.
137
Id. at 39-40 (“Instead of engaging with Mr. Adell during his attempts to negotiate a revocation of Ms. Gaiski’s
letter, Ms. Gaiski asked about TWN’s online distribution rights, an unrelated matter in which Comcast had not 
previously expressed interest.  Mr. Adell responded that TWN streams its content through TWN’s website and has 
not licensed it, or provided any rights to, any other distributor.”); Adell Decl. at para. 32 (“I informed Comcast that 
TWN streams its content on our own website and we do not license our digital rights to any distributors.”) (emphasis 
added).
138
S. REP. NO. 102-92, at 156 (quoting testimony of Ben Begdikian, Media Ownership: Diversity and 
Concentration, Hearings Before Subcommittee on Communications of the Senate Committee on Commerce, 
Science and Transportation (101-257), June 14, 21, and 22, 1989, p. 88) (emphasis added).
139
Id. (quoting testimony of Preston Padden, INTV, Media Ownership: Diversity and Concentration, p. 307) 
(emphasis added).
Federal Communications Commission DA 17-1057
18
The Commission recently confirmed its view that Congress was concerned with ownership interests when 
it enacted Section 616, stating that
In 1992, a large number of the most popular cable programming networks were owned by 
cable operators.  Congress was concerned that cable operators had the ability and 
incentive to thwart the competitive development of additional programming networks by 
refusing to carry unaffiliated networks or by insisting on an ownership stake in return for 
carriage.
140
TWN argues that Congress’s elucidation of a concern regarding ownership or equity interests cannot 
reasonably be read to limit “financial interest” to only ownership or equity interests.
141
  We disagree.  
Neither the text or legislative history of Section 616(a)(1) nor Commission precedent supports TWN’s 
broad reading of “financial interest.” Given the clear statements in the legislative history and the 
Commission’s recent statements regarding Congress’s concern with ownership or equity stakes, and the 
concomitant absence of any support for TWN’s more expansive reading, we find that it is reasonable and 
appropriate to interpret the term “financial interest” as limited to ownership or equity interests.  The 
burden to establish a prima facie case is on TWN.
142
Because TWN does not allege that Comcast 
demanded an ownership or equity interest in its programming as a condition of carriage, we conclude that 
it has not made a prima facie showing that Comcast violated Section 616(a)(1) of the Act and Section 
76.1301(a) of the Commission’s rules.  We therefore dismiss TWN’s complaint as to this allegation.
35. TWN asserts that the Media Bureau previously found that a “financial interest” is broader 
than an ownership or equity interest and applies to licensing rights, citing a 2008 hearing designation 
order issued by the Bureau.
143
  In that case, however, the Bureau did not provide any explanation for its 
finding that the NFL had made a prima facie showing that Comcast demanded a “financial interest” in the 
NFL’s programming in exchange for carriage, nor did it address how its decision squared with the 
statements in Section 616’s legislative history reflecting Congress’s concern with ownership interests.
144
  
To the extent that the Bureau’s decision in WealthTV/NFL/MASN HDO is inconsistent with our 
conclusion in the instant case, we disavow that decision.  
                                                          
140
Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 
Eighteenth Report, 32 FCC Rcd 568, 577, para. 22 n.38 (2017) (citing 47 U.S.C. § 536) (emphasis added).  See also 
Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Seventeenth 
Report, 31 FCC Rcd 4472, 4481, para. 21 n.26 (2015) (same).  
141
Reply at 32.
142
See supra para. 16.
143
Complaint at 44 (citing Herring Broadcasting, Inc. d/b/a WealthTV v. Time Warner Cable Inc. et al., 
Memorandum Opinion and Hearing Designation Order, 23 FCC Rcd 14787, 14829, para. 89 (MB 2008) 
(WealthTV/NFL/MASN HDO) (finding that NFL presented sufficient evidence to make a prima facie showing that 
Comcast demanded a financial interest in the NFL’s programming based on allegations that Comcast had retaliated 
against the NFL by moving the NFL Network from the digital basic tier to a premium sports tier after the NFL 
refused to grant Comcast rights to a package of eight live NFL games for Comcast to feature on Versus, a 
programming network affiliated with Comcast).
144
WealthTV/NFL/MASN HDO, 23 FCC Rcd at 14829, para. 89.  The NFL’s complaint subsequently was dismissed 
after the parties reached a settlement.  See NFL Enterprises LLC, MB Docket No. 08-214, File No. CSR-7876-P, 
Order Dismissing Program Carriage Complaint with Prejudice and Terminating Proceeding, FCC 09M-42 (Chief 
ALJ Sippel, 2009).  Thus, the full Commission never had the opportunity to consider the issue of whether 
distribution or licensing rights constitute a “financial interest” for purposes of Section 616(a)(1) of the Act and 
Section 76.1301(a) of the Commission’s rules.
Federal Communications Commission DA 17-1057
19
IV. ORDERING CLAUSE
36. Accordingly, IT IS ORDERED, that pursuant to Sections 4(i), 4(j), and 616 of the 
Communications Act of 1934, as amended 47 U.S.C. §§ 154(i), 154(j), and 536, Sections 76.7 and
76.1302 of the Commission’s rules, 47 CFR §§ 76.7 and 76.1302, and the non-discrimination condition 
set forth in the Comcast-NBCU Order, the above-captioned complaint is DISMISSED to the extent 
indicated herein. This action is taken pursuant to the authority delegated to the Media Bureau in Sections 
0.283 and 76.1302 of the Commission’s rules, 47 CFR §§ 0.283 and 76.1302.
FEDERAL COMMUNICATIONS COMMISSION
Michelle M. Carey
Chief
Media Bureau