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June 11, 2020

Marlene H. Dortch, Esq. Secretary Federal Commission 445 12th Street, SW Washington, DC 20554

Re: Written Ex Parte , MB Docket Nos. 17-105, 07-42

Dear Ms. Dortch:

ION Networks, Inc. (“”) and Trinity Christian Center of Santa Ana, Inc., d/b/a Trinity Network (“Trinity”) are writing to express their support for the views of the National Association of Broadcasters (“NAB”) in the above-referenced proceeding. Each of ION and Trinity offer innovative, diverse programming over-the-air that serves the essential needs and interests of hundreds of communities across the country. 1 Like NAB, ION and Trinity take no position on the merits of the leased access rules that the Commission proposes to revise in this proceeding. We agree with NAB that the Commission need not and should not reach First Amendment issues in this proceeding because those issues have been resolved by the courts and are not subject to Commission reconsideration in this proceeding. 2

1 ION is America’s last truly independent over-the-air general broadcasting network, anchored by 71 local television stations and reaching nearly 90% of U.S. TV . is the #5 most-watched U.S. television network with particular appeal to over-the-air and diversity audiences (#2 in African American and Hispanic viewers); its multicast channel is the nation’s only full-time children’s educational and informational programming channel – a safe zone for families; and is a full-time digital network featuring original series and hit from the ION library. As delivered by ION’s stations, these networks are available free and over-the-air – making a much needed dose of program diversity affordable and accessible to millions of households. Trinity provides religious and Christian inspirational television to dozens of local communities. Today, Trinity owns 30- local television stations and numerous other local affiliates. Trinity’s free-to-air multicast streams include: “TBN,” “Smile of a Child TV” (a service providing significant Children’s educational programming); “The ” (a service crossing denominational lines and providing access to the best and most popular church services and live events and concerts); “ USA” (a service for the religious programming needs and interests of Spanish-speaking viewers); “TBN Salsa” (a service providing English and Spanish language programming serving the wider Hispanic community and culture); “JUCE TV” (a service for the 13-29 year old age groups, combining music programming, sketch and stand-up , talk shows, action- and extreme- programming, and other subject matter of interest to teens and young adults); and “PositiveTV” (a movie and entertainment channel for the entire family). 2 See Letter from Rick Kaplan, General Counsel and Executive Vice President, Legal and Regulatory Affairs, NAB, to Marlene H. Dortch, Secretary, FCC, MB Docket Nos. 17-105, 07- Ms. Marlene H. Dortch MB Docket Nos. 17-105, 07-42 June 11, 2020 Page 2

ION and Trinity collectively own over 100 television broadcast stations that are among the more than 600 plus commercial and non-commercial television stations that benefit from the broadcast television must carry rights guaranteed by Sections 338 and 614 of the Communications Act. 3 We exercise these rights to ensure that viewers across the country have free access to diverse entertainment, religious, and foreign-language programming. Maintenance of these rights is crucial to preserving the nation’s free, over-the-air broadcast programing system. Congress’s carefully considered system of broadcast television carriage rights was approved by the Supreme Court, and they have become a deeply embedded part of the fabric of U.S. law, communications policy, and consumer expectations. 4

Like Congress’s carriage rights system, the leased access regime currently under review by the Commission has been thoroughly vindicated in the courts, which rejected claims that leased access violates the First Amendment. 5 Yet commenters have argued that “changed circumstances” somehow overrule Congress’s judgments and binding precedent from the Supreme Court and Circuit Courts of Appeals. The Commission is aware that it has no authority to overrule Congress or the courts on this issue. The Commission is charged with implementing the Communications Act – not with writing a new one based on novel First Amendment theories that have already been rejected by the courts. Moreover, adopting the “changed circumstances” argument in this case will only cause confusion and invite further litigation in other areas – like broadcast carriage rights – where the courts have already spoken clearly. For these reasons, it would not serve anyone’s interests for the Commission to adopt any version of the “changed circumstances” argument raised in this docket.

Moreover, the main issues before the Commission here – the proper rate setting procedures and formula for leased access users – have absolutely nothing to do with the First Amendment. The Commission has broad statutory authority over these issues, and it does not need the First Amendment to justify any action to modify the procedures and rate setting formula under Congress’s leased access system. As NAB rightly argues, reaching out to make a statement about the First Amendment in this context would violate of precedent counselling the Commission to avoid reaching constitutional issues it does not need to reach. 6 That prudential doctrine should apply with multiplied force in a case like this one where Commission statements about the First Amendment’s application threatens to initiate a new long battle over questions about broadcast carriage rights that were long ago settled by the Supreme Court. There is no

42, dated June 3, 2020 (“NAB Letter”); see also Reply Comments of NAB, MB Docket Nos. 07- 42 and 17-105 (filed Aug. 5, 2019). 3 47 U.S.C. §534. 4 Turner Broadcasting System , Inc . v. FCC , 520 U.S. 180 (1997); Satellite Broadcasting and Commc’n Ass’n v . FCC , 275 F.3d 337 (4th Cir. 2001). 5 Time Warner Entertainment Co ., L.P. v. FCC , 93 F.3d 957 (D.C. Cir. 1996). 6 NAB Letter at 1-2. Ms. Marlene H. Dortch MB Docket Nos. 17-105, 07-42 June 11, 2020 Page 3 need or basis for the Commission to reach this issue in light of the current posture of the law and previous court review.

Should the Commission nonetheless determine to address the changed circumstances/First Amendment arguments, any order should make absolutely clear that the Commission is not prejudging how those arguments would be received in proceedings addressing any other Commission rules. As NAB rightly points out, the narrow and unique context of the leased access rules is ill-suited to sweeping judgments by the Commission about the larger video marketplace. 7

For these reasons, ION and Trinity fully endorse NAB’s position in this matter and urge the Commission to avoid addressing the purported First Amendment concerns of commenters in this matter.

Very Truly Yours,

/s/ /s/ John R. Feore Colby M. May Cooley LLP Colby M. May, Esq., P.C. 1299 Pennsylvania Avenue, NW P.O. Box 15473 Suite 700 Washington, DC 20003 Washington, DC 20004 Counsel to Trinity Broadcasting Network Counsel to Networks, Inc.

cc (via email): Alex Sanenis Joel Miller Ben Arden Kate Black Diane Holland Michelle Carey Holly Saurer Nancy Murphy Maria Mullarkey Diana Sokolow Katie Costello Christian Hatten Tom Johnson Ashley Boizelle Michel Carlson Susan Aaron David Konczal

7 Id. at 6-11.