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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In the Matter of ) ) Bellizzi Network, Inc. ) CSR~8837-M Station WEYW-LP, Key West, Florida ) MB Docket No. 13-244 ) Facility ID No. 130765 )

To: Office of the Secretary Attn: Chief, Media Bureau

REPLY TO OPPOSITION TO PETITION FOR RECONSIDERATION

Bellizzi Broadcasting Network, Inc. ("Bellizzi''), Jicensee oflow power station

WEYW-LP (Channel19), Key West, Florida ("WEYW" or the "Station), by its attorney, hereby submits its Reply to the April 3, 2014 Opposition to Petition for Reconsideration filed by

Comcast Cable Communications, LLC, on behalf of its subsidiaries and affiliates ("").

In support of its position, Bellizzi states .

Bellizzi, on September 20, 2013, filed a Complaint against Comcast for Comcast's failure to cany WEYW on Comcast's Key West, Florida cable system serving certain communities in

Monroe County, Florida. Bellizzi requested that the Commission direct Comcast to treat

WEYW as a "qualified, LPTV station in accordance with Section 76.55(a) ofthe FCC's rules and grant WEYW all of the must-carriage rights accorded such stations. Bellizzi pointed out that

WEYW met all applicable requirements for carriage. In its Complaint, Bellizzi also noted that cable operators, like Comcast, had a "vested financial interest in favoring their affiliated programmers over broadcast stations" and that they "have a built-in economic incentive ... to not

1 carry local broadcast signals.' .I In the case of Comcast, there was an even greater financial interest present to disfavor carriage ofWEYW and other local LPTV stations because Comcast not only competed with those stations for local ads, but also carried its own and affiliated companies' on its cable systems.

Bellizzi addressed the fact in its Complaint that there are presently two full power television stations, WGEN-TV and WSBS-TV, which are licensed to Key West. Bellizzi demonstrated that not only do those stations broadcast in a language which the vast majority of viewers in Key West and Monroe cannot understand, but that the stations serve the problems, needs, and interests not of residents ofKey West, their supposed community oflicense, but of

Hispanic residents located throughout Miami-Dade County. Bellizzi quoted statements made by the Commission and the stations themselves that both WSBS-TV and WGEN-TV intentionally broadcast and public affairs progranuning focusing on issues important to communities located in Miami-Dade and that their programming is primarily intended to serve

Hispanic viewers residing in those communities. In fact, WEYW demonstrated through letters and commendations, that it is the only providing local coverage of problems and issues relevant to Key West and Monroe County.

The December 16,2013 Memorandum Opinion and Order 2 issued by the Commission's

Media Bureau, Policy Division (the "Bureau"), denied the Bellizzi Complaint filed against

Comcast, concluding that WEYW did not meet the legal criteria to be considered a "qualified" low power television station under the FCC's rules and Section 534(h)(2) ofthe

Communications Act of 1934, as amended (the "Act"i. The Bureau stated that Stations WSBS-

1 Complaint, filed by Bellizzi Broadcasting Network, Inc., September 20, 2013 at pp. 2-3, quoting Turner Broadcasting System Inc. v. FCC, 512 U.S. 622,646 (1994). 2 Bellizzi Broadcasting Net.vork, Inc., 28 FCC Red 16761 (MB 2013). 3 See 47 U.S.C. § 534(h)(2); 47 C.F.R. § 76.55(d) 2 TV and WGEN-TV were licensed as full power television stations in Key West, which is also the community oflicense ofWEYW. Since it is a specified criteria that, to be considered a

"qualified" LPTV station there be no full power television stations licensed in that community, the Commission denied WEYW's Complaint as failing to meet all of the qualifying factors for carnage.

However, as noted previously, Bellizzi demonstrated in its Complaint that neither of the

Key West full power stations provided local service to Key West and Monroe County, because both television stations were interested in serving the Hispanic population of Miami-Dade. On the other hand, WEYW, although licensed as a low power television station, provided the only locally-focused program service to Key West and the surrounding service area. Despite this, the

Commission rejected Bellizzi's contention as being irrelevant for the purposes of the FCC's enforcement of Section 534(h)(2) of the Act.4

Bellizzi filed a Petition for Reconsideration of the Bureau's decision and demonstrated that there is a legal basis for the Bureau to conclude, based on a reasonable interpretation of the

Commission's rules and the Act, that WEYW met all of the requirements to be a qualified low power television station. Bellizzi argued that, despite its wording, Section 534(h)(2) of the Act could be reasonably interpreted in such a manner as to discount WGEN-TV and WSBS-TV as

Key West full power television stations because of their de facto operation as Miami-Dade television stations.

In its Opposition to Bellizzi's Petition for Reconsideration, Comcast contends that, since

WGEN-TV and WSBS-TV are full power stations licensed to Key West, the Commission need

4 Bellizzi Broadcasting Network, Inc. at para. 6. ("WEYW is licensed to the same community, Key West, Florida as full power stations WGEN and WSBS ... for purposes of Section 614(h)(2)(F) it is irrelevant if the full power stations licensed to the same community do not provide locally-focused programming; their proximity is sufficient to prevent WEYW from being considered 'qualified."').

3 not go any further in denying WEYW' s Petition. Comcast also alludes to Turner Broadcasting

System Inc. v. FCC as casting doubt on the constitutionality of the Commission's LPTV must­ carriage rules. According to Comcast, in determining whether WEYW is entitled to mandatory carriage rights on Comcast's Key West system, it is irrelevant whether WGEN-TV and WSBS­

TV actually provide service to Key West and Monroe County. In its assertion, Comcast basically mimics the Bureau's conclusions in its decision.

Contrary to what is stated in the Bureau decision, Bellizzi does not seek a waiver of the

Act. In defining a "qualified low power station," Section 534(h)(2) of the Act sets a number of conditions as to which such a station must conform. Basically, all of the conditions center around whether the LPTV station in question performs as a full power station and whether the community in question and the county it is located in already have a full power station, which is assumed to be providing local service, a comerstone ofbroadcast regulation for .5

Thus, Section 534(h)(2)(A) mandates that an LPTV station, to be "qualified/' must broadcast at least the minimum number of hours required for full power stations under the FCC's rules.

Under Section 534(h)(2)(B), the LPTV station must meet all of the FCC's rules applicable to full power television broadcast stations with respect to its broadcast of non­ entertainment programming, political programming, programming for children and equal employment opportunity. This subsection also requires that the Commission determine that the provision of such programming by the LPTV station addresses local news and informational needs which are not being adequately served by full power television broadcast stations because of their distance from the community.

s Broadcast Localism, 23 FCC Red 1324, B27 (12008). 4 Section 534(h)(2)(C) requires that an LPTV station comply with interference regulations.

Section 534(h)(2)(D) requires the LPTV station in question not to be located too far (35 miles or less) from the cable system headend and to deliver an over-the-air signal to the cable system of good quality. Section 534(h)(2)(E) requires that the community of license of the LPTV station and the cable franchise area both be located in smaller markets (outside the largest 160 MSA).

Finally, Section 534(h)(2)(F) states that there will be no full power television stations licensed to the community or within the county or other political subdivision served by the cable system. It is quite obvious that the purpose of this requirement is that an LPTV station need not be carried in order to serve the public interest by its broadcast of if there is a full power station licensed to the conummity in question, since that station will already be providing the community with local service. The fact that the local service requirement is specified in Section 534(h)(2)(B) demonstrates the importance of this requirement in determining an LPTV station's qualifications. Because local service is a Commission requirement of operating as a full power station, there was no reason to add additional language to Section 534(h)(2)(F) to re-emphasize that full power television stations actually provide local service. However, again, it is quite clear that this was the intended purpose of the requirement.

Congress did not want to reward an LPTV station, even an otherwise "qualified" LPTV station, with cable carriage in a community where full power television service was already being provided.

In this case, however, no such service is being provided. Neither the Bureau in its decision nor Comcast in its Opposition takes issue with Bellizzi's description of the broadcast service being provided by WGEN-TV and WSBS-TV. Comcast states that consideration of such a factor would be unconstitutional. The Commission claims that it is irrelevant because of the

5 specific language of Section 534(h)(2). However, as discussed previously, the Bureau's conclusion is not borne out by an analysis of Section 534(h)(2) and how its purpose is best effectuated.

In this case, Stations WGEN-TV and WSBS-TV and their Miami LPTV facilities which rebroadcast their programming present an anomalous situation. The television stations operate as LPTV stations and the LPTV stations function as full power television stations. This not only occurs with respect to the stations' programming that is broadcast, which revolves around the needs and issues relevant to Miami, the LPTV stations' conununity of license rather than Key

West, the full power stations' community oflicense. It is also clear from how the licensees operate the stations. Both WSBS and WGEN operate their full power stations with incredibly low power and barely cover their communities of license. WSBS-TV is licensed to operate at 1 kW, but as Rick Bellizzi states, the station actually operates at 30 Watts. WGEN-TV is licensed to operate at 7 kW, but actually operates at 850 Watts. See Declaration of Rick Bellizzi. On the other hand, Station WSBS-CD and WGEN-LD operate at considerably more power, 15 kW.

While it is obvious to any fair-minded reviewer of the facts and circumstances, here, the

Bureau and Comcast would ignore these realities and pay strict obedience to the exact wording of a subsection of the Act, which, as discussed herein, implicitly includes a requirement which neither the Bureau nor Comcast recognize.

The Bureau seeks to distinguish this case from those Court decisions previously cited by

Bellizzi. Bellizzi cited Gardner v. FCC because of its principle that seemingly mandatory statutory language need not be binding on the Commission when interpreting a statute where unusual circumstances are present and justice would be setved. Contrary to the Bureau and

Comcast's position, the decision stands for the proposition that one must look beyond even clear

6 530 F.2d 1086, 1091 (D.C. Cir. 1976). 6 statutory language when deciding how a statute or rule is interpreted where there exists a peculiar set of inconsistencies. The Bureau seeks to limit the Gardner decision to its own procedural circumstances. However, Bellizzi in no manner has argued that the instant case revolves around whether the Cotmnission committed procedural error to the detriment of

Bellizzi.

Similarly, Bellizzi cited Communications Investment Corp. v. FCC7 for the principle, as stated therein, that the Bureau cannot simply find a factual distinction, as the Bureau did in its decision here, and, thereby, virtually ignore precedent, which the Bureau did in distinguishing

Gardner. Long ago, a Court concluded that the Commission must "do more than enumerate factual differences, if any, between [the present case] and other cases; it must explain the relevance of those difference to the purposes of the Federal Conununications Act.,.8 The Bureau decision failed to explain the relevance of the differences between this case and the decisions cited by Bellizzi to the purposes of the Act. Comcast attempts to pave over this failure in its

Opposition, but cannot.

7 641 F.2d 954,976 (D.C. Cir. 1981). 8 Melody Music, Inc. v. FCC, 345 F.2d 730,733 (D.C. Cir. 1965) 7 In view of the above, Bellizzi requests that the Bureau reconsider its earlier decision and that it grant WEYW-LP "qualified" LPTV status under the Commission's must-carriage rules.

Respectfully submitted,

By:

Shainis & Peltzman, Chartered 1850 M Street, NW, Suite 240 Washington, DC 20036 Tel.: (202) 293-0011 April 18,2014 : (202) 293-0810

8 CERTIFICATION PURSUANT TO 47 C.F.R. § 76.6(a)(4)

The below-signed signatory has read the foregoing Reply to Opposition to Petition for

Reconsideration, and to the best of my knowledge, information and belief and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and is not interposed for any

Improper purpose.

Respectfully submHted,

By:

Shainis & Peltzman, Chartered 1850 M Street, NW, Suite 240 Washington, DC 20036 Tel.: (202) 293-0011 Fax: (202) 293-0810 Apri118, 2014 DECLARATION

I, Rick Bellizzi, am the owner and manager of Bellizzi Broadcasting Network, Inc.

("Bellizzi"), licensee of Station WEYW-LP, Key West, Florida. I hereby declare, under penalty of perjury, that I have reviewed the attached Reply to Opposition to Petition for Reconsideration and that it is true and correct to my knowledge and belief.

As a resident of Key West and Monroe County and as a result of my long-term professional involvement in television broadcasting, I am very aware of the full power television and LPTV stations which are licensed in and around Key West. I have viewed Stations WGEN­

TV and WSBS-TV ttu·oughout the years and have discussed those stations' broadcast

performance with literally scores, if not hundreds, of city and county residents.

I can state without fear of contradiction that not only do WGEN-TV and WSBS-TV fail

to program to meet the problems, needs and interests of Key West and Monroe County residents,

but that the ~tations' signals barely cover Key West and are virtually unwatchable. Because the signals are so weak, anyone who does not receive cable in Monroe County is unable to watch either of these stations off-air. That means that, not only do WGEN-TV and WSBS-TV

broadcast in a language that most Key West and Monroe County residents cannot understand, while neither station seeks to program to the problems, needs and interests of Key West and

Monroe County residents, but almost no one in Monroe County can receive the stations unless

they order cable from Comcast.

Because of these stations' weak signals, there is effectively no off-air broadcast full

power television service in Monroe County to individuals without cable. Residents are unable to

receive either of these stations off-air. While such a result may not be a terrible dilemma for

many people, given that neither station's programming can be understood by residents and neither station does anything in terms of broadcasting to the interests of county residents, it is

still a distortion of the public interest. Full power stations should not be forcing residents to pay

for cable in order to view their broadcasts.

Stations WGEN-TV and WSBS-TV are licensed as Key West television stations, but

operate as Miami television stations. They broadcast with the miniscule power that a typical

LPTV station might broadcast. WGEN-TV is licensed to broadcast at 7 kW. It actually

broadcasts at 850 Watts. WSBS-TV is licensed to broadcast at 1 kW. It actually broadcasts at

30 Watts. In addition, both stations are licensed to operate with antennas at a height of 180 feet

above ground, but actually broadcast at 80 feet above ground. On the other hand, their Miami

LPTV stations (WGEN-LP 15 kW; WSBS-CD 15 kW) operate with far more power, because that is the audience the stations wish to provide service. The main studios of each of these

stations are located in Miami, not Key West. In fact, if a Key West resident wanted to meet a

station manager associated with the operation of WSBS-TV or WGEN-TV, he or she would have

to travel over 150 miles to Miami to do so. These stations function the exact opposite of how

they should. The LPTV stations serving Miami function as full power stations and the full

power stations operate as LPTV stations. Comcast and the Bureau rely on this anomaly as a

reason to deny WEYW as a qualified LPTV station.

While Station WEYW is licensed as a LPTV station to serve Key West, WEYW

operates, in effect, as a full-power television station. It provides a substantial amount of local

programming which meets the needs of city and County residents. We offer a daily

containing local content. We conduct interviews with local goverrunent officials. We provide

local news and information, broadcasting at least 28 hours of local broadcasting each week. We

have previously submitted letters to the FCC from city and county government officials thanking WEYW for providing service to their communities as well as letters from non-profit organizations and from viewers attesting to our excellent local programming. It is our plan to eventually broadcast from multiple antennas located in the Keys so that our programming may be viewed by all Monroe County residents off-air.

Unfortunately, obtaining cable carriage is a requisite for a television station's financial survival. Comcast, as the controller of the sole broadcast pipeline, is very aware of that fact. We compete against Comcast in broadcasting programming and Comcast utilizes its power as controller of its broadcast pipeline to destroy its competition by failing to provide WEYW and other LPTV stations with cable carriage. Were it to occur, the loss ofWEYW's programming would constitute a real loss in local service to Key West and Monroe County residents. The

Bureau has it in its power to correct its initial mistake in denying the Bellizzi Complaint. It should reconsider its position and grant WEYW mandatory carriage as a qualified LPTV station so that all of Monroe County may actually have a television station providing local programming.

Aprill8, 2014 Rick Bellizzi Bellizzi Broadcasting Network, Inc. President CERTIFICATE OF SERVICE

I, Erica L. Hetzel, do hereby certify on this 18th day of April, 2014 that a true and correct copy of the foregoing "Consent Motion for Extension of Time" has been sent via U.S. mail, postage prepaid, to the following:

Steven Broeckeart, Esq. Senior Deputy Chief, Policy Division, Media Bureau Federal Communications Commission 445 Iih Street, SW Washington, D.C. 20554

Barbara Kreisman, Esq. Chief, Video Division, Media Bureau Federal Communications Commission 445 12th Street, SW Washington, D.C. 20554

Florida Department of State Cable and/or Video Franchising Division of Corporations Clifton Building 2661 Executive Center Circle Tallahassee, FL 32301

Florida Department of Agriculture and Consumer Services Division of Consumer Services Terry Lee Rhodes Building 2005 Apalachee Parkway Tallahassee, FL 32399-6500

Monroe County Administrator's Office 1100 Simonton Street, Suite 205 Key West, FL 33040

Fred W. Giroux, Esq. Davis Wright Tremaine LLP 1919 Avenue, NW, Suite 800 Washington, D.C. 20006

Erica L. H I