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Before the Federal Communications Commission Washington, D.C. 20554

Amendment of Commission Rule ) MB Docket No. 20-35 Requiring Records of Cable Operator ) Interests in Programming ) ) Modernization of Media Regulation ) MB Docket No. 17-105 Initiative )

COMMENTS

ACA Connects—America’s Communications Association (“ACA Connects”) hereby provides brief comments on the Commission’s most recent media modernization proposal.1 We share the Commission’s goal of reducing regulatory burdens—including the requirement to keep records showing cable ownership of video services. Such information about “,” however, is useful in the program access context. We urge the Commission to find a solution in which this information remains available in some less burdensome form or fashion for those who must provide it.

1 Amendment of Commission Rule Requiring Records of Cable Operator Interests in Video Programming; Notice of Proposed Rulemaking, FCC No. 20-19, MB Docket Nos. 20-35 & 17-105 (rel. Mar. 2, 2020) (“Notice”). The Notice seeks comment on eliminating or modifying two sections of the

Commission’s rules:

• Section 76.1710, which requires that cable operators maintain records in their online public inspection files regarding the nature and extent of their attributable interests in video programming services.

• Section 76.1700(a)(7), which lists cable operator interests in video programming as one of the records to be maintained by cable system operators in their public inspection file.2

The Notice explains that the Commission originally adopted these rules as a method of

monitoring compliance with the Commission’s cable channel occupancy limits, which

restricted the number of channels that could be occupied on a vertically integrated cable

system by video programmers in which the cable operator had an attributable interest.3

Since the DC Circuit ordered the Commission to repeal those limits, the Notice

suggests, the recordkeeping requirements may no longer serve a purpose.4

While the recordkeeping requirements may no longer serve their original

intended purpose, they nonetheless remain helpful in one specific context. The

Communications Act and the Commission’s program access rules prohibit unfair

practices by, among others, a “satellite cable programming vendor in which a cable

operator has an attributable interest.”5 Thus, a party wishing to file a program access

complaint against a “satellite cable programming vendor” must demonstrate that a

2 Id. ¶ 1. 3 Id. ¶ 2. 4 Id. ¶ 4. 5 47 U.S.C. § 548(b); 47 C.F.R. § 76.1000.

2 “cable operator has an attributable interest” in such vendor.6 The obligation thus assists in the enforcement of the Commission’s program access rules, just as it had originally assisted with the Commission’s cable channel occupancy limits.

This is precisely the information that the existing recordkeeping requirements require cable operators to place in their public files. For example, the public files for

Comcast, Charter, and Cox each contain a statement listing all of the programmers in which the cable operator has an attributable interest, including the percentage of the interest and related information.7 While a prospective complainant can collect this information for some programmers and cable operators,8 we are aware of no other public, reliable, and readily available source for the vertical integration status of all vertically integrated programmers and cable operators. The Commission, for its part, no

6 47 C.F.R. § 76.1003(c)(2) (requiring complainant to provide “[e]vidence that supports complainant's belief that the defendant, where necessary, meets the attribution standards for application of the program access requirements”); Implementation of Sections 12 & 19 of the Consumer Prot. & Competition Act of 1992 Dev. of Competition & Diversity in Video Programming Distribution & Carriage, First Report & Order, 8 FCC Rcd. 3359 ¶ 76 (1993) (“The complaint must identify both the programmer and cable operator who are parties to the alleged prohibited agreement. The complaint must be supported by documentary evidence of the violation, or an affidavit (signed by an officer of the complaining MVPD) setting forth the basis for the complainant's allegations. The complainant must also demonstrate that the relevant vertically integrated programming vendor meets the attribution standards adopted herein.”). 7 See Exhibit 1 hereto (), also available at https://publicfiles.fcc.gov/cable- system/006535-comcast-of-maryland-lp/operator-interests-in-video-programming/4cb979a5- d0cb-4f4b-c48d-2af814178508/; Exhibit 2 hereto (Charter), also available at https://publicfiles.fcc.gov/cable-system/006045-spectrum-mid-america,-llc/operator-interests- in-video-programming/fdf408a4-59aa-9097-73e2-931c77e11b3a/.; Exhibit 3 hereto (Cox), also available at https://publicfiles.fcc.gov/cable-system/000709-cox-communications- arizona,-llc/operator-interests-in-video-programming/ea78b1ed-2046-84ec-db87- cfb5c34c3780/. 8 Notice ¶ 10 .24. (“For example, in the past, the Commission has used information from various sources, such as cable company websites, published articles, and SNL Kagan, to identify affiliations between programming services and MVPDs for its Video Competition Reports.”).

3 longer lists this information in its Marketplace Reports.9 Some cable operators report some (but not all) of this information in their annual reports.10 Others are privately held and have no such reports.11 Such information could therefore be burdensome for a prospective plaintiff to collect—especially in light of the sometimes complicated ownership structures of vertically integrated programmers.12 Since information regarding vertical integration is available , we think it would not serve the public interest to require ACA Connects members, some of whom have very limited resources, to hunt down this information and make these calculations themselves.13

9 Communications Marketplace Report et al., FCC No. 18-181, GN Docket No. 18-231 et al., ¶ 67 (rel. Dec. 26, 2018) (describing vertical integration generally). 10 NBC Universal’s most recent annual report lists many, but not all, programmers listed in Comcast’s public file. For example, it fails to specify NBC Universal’s interest in . Securities & Exchange Commission Form 10-K, NBC Universal (2019), https://www.cmcsa.com/static-files/d3de7993-a16b-42bf-bebd-a45b938dcbfc. On the other hand, Comcast’s public file may be out of date. For example, it lists the Esquire channel, a now defunct joint venture between NBC Universal and Hearst. Charter’s annual report contains no details about its affiliate programming. 2019 Annual Report, (2019), https://ir.charter.com/static-files/b453964b-6b96-4fb8-aebc- 91cec0fda968. 11 Investor Relations, , https://www.cox.com/aboutus/investor- relations.html. We do not know whether Cox’s programming is otherwise subject to the program access rules and do not contend as much here. We are simply illustrating the point that some cable operators who own programming are privately held and do not issue public reports. 12 See, e.g., Exhibit 2 (Charter Public File) at 3 (“Dr. Malone (described above) owns 93.6% of the series B common stock of Discovery and 6% of the series C common stock of Discovery, and has a 28% voting interest in Discovery for the election of directors. Advance/Newhouse Partnership has a 12.8% equity interest in Charter. Its affiliate Advance/Newhouse Programming Partnership owns 100% of the Series A-1 preferred stock of Discovery and 100% of the Series C-1 preferred stock of Discovery, and has a 24.2% voting interest for the election of directors. . . . Inclusion of any programming service on this schedule is not an admission that any such service is subject to any regulatory obligation or requirement. With regard to other entities and individuals with interests in Charter, we have relied on public information available to Charter.”). 13 As the Notice indicates, “as the recordkeeping requirement does not apply to other video programming distributors, the information in these records would only be useful for monitoring vertical integration in cable operators.” Notice ¶ 8. The program access rules,

4 ACA Connects supports the goal of eliminating unnecessary and unreasonable recordkeeping burdens on cable operators. After all, its members are cable operators themselves. We question, however, whether this obligation imposes substantial burdens on vertically integrated cable operators since ownership of programming does not change very often. In any event, we believe it should be possible to keep this information readily available while reducing the already modest administrative burdens that the existing rule creates for vertically integrated cable operators. Perhaps, for example, the Commission could eliminate the part of the rule that requires reporting of carriage on a particular system, given that channel lineup information is widely available elsewhere.14 The Commission could also revise the rules to require cable operators to

post this information only once and update it when it changes. Further, it could allow

cable operators to post “classes” of ownership percentages (5%—25%, 26%—50%;

51%—75%; 76%—100%) so that they would not have to update the filings based on

minor ownership changes. We are, of course, open to other ideas to further ease cable

recordkeeping burdens while maintaining the rule’s utility and would be happy to

participate in discussions on how to resolve what seems like an eminently resolvable

issue.

however, apply only to “cable operator[s], satellite cable programming vendor[s] in which a cable operator has an attributable interest, [and] satellite broadcast programming vendor[s].” 47 C.F.R. § 76.1001(a). Thus, the rule as it stands would reflect the regulatory scheme which it supports. 14 Channel Lineup Requirements—Sections 76.1705 & 76.1700(a)(4), FCC No. 19-33, MB Docket Nos. 18-92 & 17-105 (rel. Apr. 12, 2019).

5

Respectfully submitted,

Matthew M. Polka Michael Nilsson President and Chief Executive Officer Harris, Wiltshire & Grannis LLP ACA Connects – America’s 1919 M Street, NW Communications Association The Eighth Floor Seven Parkway Center Washington, DC 20036 Suite 755 (202) 730-1300 , 15220 (412) 922-8300

Ross J. Lieberman Senior Vice President of Government Affairs ACA Connects – America’s Communications Association 2415 39th Place, NW Washington, DC 20007 (202) 573-6247

May 4, 2020

6 EXHIBIT 1 COMCAST CORPORATION ATTRIBUTABLE INTERESTS As of 12/31/19-FINAL

Consolidated for accounting Entity % ownership purposes? Revised since last quarter

NBCUniversal Interests NBC 100.00% 100.00% Yes 100.00% Yes CNBC 100.00% Yes CNBC World 100.00% Yes LX 100.00% Yes MSNBC 100.00% Yes NBC Universo (f/k/a Mun2) 100.00% Yes Oxygen 100.00% Yes 100.00% Yes Universal HD 100.00% Yes USA 100.00% Yes E! Television 100.00% Yes Esquire 100.00% Yes 100.00% Yes (f/k/a PBS KIDS Sprout) 100.00% Yes Saigon Broadcasting Television Network 50.00% No Television Korea 24 (1 and 2) 14.15% No NBC Sports Network (formerly VERSUS) 100.00% Yes Comcast SportsNet Bay Area (d/b/a NBC Sports Yes Bay Area) 67.00% Comcast SportsNet (d/b/a NBC Sports 100.00% Yes California) NBC Sports LLC (formerly Chicago 40.00% Yes Sports TV Holdings LLC )

Comcast SportsNet Mid-Atlantic (d/b/a NBC 67.00% Yes Sports Washington) Comcast SportsNet (d/b/a NBC 80.00% Yes Sports ) Comcast SportsNet Northwest (d/b/a NBC Sports 100.00% Yes Northwest) Comcast SportsNet (d/b/a NBC 75.00% Yes Sports Philadelphia) 100.00% Yes SportsNet New York 8.17% No The (d/b/a NBC Sports 100.00% Yes Philadelphia + and NBC Sports Washington +)

Comcast Interests C2 100.00% Yes CN100 100.00% Yes Comcast Network (CN900) 100.00% Yes Comcast Entertainment Television 100.00% Yes Comcast Hometown Network 100.00% Yes Comcast Television Network 100.00% Yes Utah Channel 6 100.00% Yes Comcast Network (CN81) 100.00% Yes Sports (managed by Midcontinent) 50.00% No MLB Network 8.34% No NHL Network 16.00% No Pittsburgh Cable News Channel 30.00% No

NBCUniversal and Comcast Interest TVG and HRTV/TVG2- Comcast and 5.51% No NBCUniversal hold a 14.82% voting interest in Fastball Holdings, which owns 37.19% of Fanduel Group. Fanduel Group owns 100% of TVG and HRTV/TVG2

Entities that Shut Down, but Legal Entities Still Exist (in process of determining if entity can be merged out) Chiller 100.00% Yes On July 1, 2017, NBCUniversal acquired the DirecTV 20% interest in Chiller. The Chiller cable station has been shut-down; however, the legal entity still exists. 100.00% Yes Effective February 1, 2017, CLOO was shut down; however, the legal entity still exists 100.00% Yes In April, 2014, FEARnet was shut down, however the legal entity still exists Style 100.00% Yes In September, 2013, Style was shut down, however the legal entities still exists Comcast Sports Southeast 100.00% Yes Entity is no longer operational; however, legal entity still exists.

Comcast Sports Southwest 100.00% Yes Entity is no longer operational; however, the legal entities still exist.

Comcast SportsNet Chicago (d/b/a NBC Sports 30.00% Yes Yes- noted that ceased Chicago) operations in September 2019 Entity ceased operations in September 2019.

1/10/2020 17:45:27 EXHIBIT 2 CHARTER COMMUNICATIONS, INC. (“CHARTER”)

47 C.F.R. § 76.1710 – Operator Interests in Video Programming

A. Charter wholly own the following local programming services, which are widely carried on Charter cable systems in the applicable operating area:

Operating Area Programming Service California/Nevada SportsNet 1 Spectrum Spectrum OC Sports Spectrum OC 16 Spectrum Surf Channel Spectrum uSurf Spectrum XCast /Missouri (Kansas City) Spectrum News (Bowling Green) Spectrum News (Lexington) Spectrum News (Louisville) New England Spectrum TV3 ( MA) New York Spectrum News NY1 Spectrum Noticias NY1 Spectrum News (Buffalo) Spectrum News () Spectrum News (Rochester) Spectrum News Capital Region (Albany) Spectrum News Central NY (Syracuse) Spectrum News Rail & Road (NYC) / Spectrum News (Charlotte) Spectrum News (Greensboro) Spectrum News (Raleigh) Spectrum News (Wilmington) Spectrum News 1 () Spectrum News 1 (/Akron) Spectrum News 1 (Columbus) Spectrum News 1 (Dayton) Spectrum News 1 (Toledo) Spectrum News (Austin) Spectrum News () Spectrum News 1 (Milwaukee) Spectrum News 1 (Green Bay) Spectrum News 1 (Madison)

August 2019

1 B. Charter subsidiaries have an interest in the following entities and their programming services, which are widely carried on Charter cable systems in the applicable operating area: Entity Programming Service

1. L.L.C. PPV/TVOD

Charter Communications Operating, LLC is a of Charter and has a 39.4% equity interest in In Demand.

2. The MLB Network, LLC MLB Network

TWCE has a 6.35% equity interest in The MLB Network, LLC.

3. Sterling Entertainment Enterprises, LLC SportsNet New York – (NY market) (f/k/a Channel)

TWC SEE Holdco LLC has a 26.83% equity interest in Sterling Entertainment Enterprises, LLC.

4. Nippon Golden Network Inc. Nippon Golden Network (Hawaii)

Oceanic LLC has an 8.23 % equity interest in Nippon Golden Network Inc.

5. NGN Hotel Channels NGN Hotel Channels (hotels only) (Hawaii)

Oceanic Time Warner Cable LLC has a 40% equity interest in NGN Hotel Channels.

C. There are overlapping ownership interests between Charter and the following entities, whose national programming services are widely carried on Charter systems across the country:

Entity Programming Service

1. HSN, Inc. HSN

Liberty Broadband Corporation (“Liberty Broadband”) holds an approximate 23.5% equity interest in Charter. Dr. John Malone has an approximate 49% voting interest in Liberty Broadband and an approximate 37.5% voting interest in Qurate Retail, Inc. (“Qurate”). Qurate wholly owns HSN, Inc.

2. QVC, Inc. QVC

Qurate (described above) wholly owns QVC, Inc.

3. Discovery Communications, Inc. Discovery, The Learning Channel (TLC), Oprah Winfrey Network (OWN), Animal Planet, Science, Investigation Discovery, Destination America, Discovery en Espanol, Discovery Familia, Channel, Velocity, Discovery Life, Military Channel, Cooking

August 2019

2 Channel, DIY, , GAC, HGTV, and Travel Channel.

Dr. Malone (described above) owns 93.6% of the series B common stock of Discovery and 6% of the series C common stock of Discovery, and has a 28% voting interest in Discovery for the election of directors.

Advance/Newhouse Partnership has a 12.8% equity interest in Charter. Its affiliate Advance/Newhouse Programming Partnership owns 100% of the Series A-1 preferred stock of Discovery and 100% of the Series C-1 preferred stock of Discovery, and has a 24.2% voting interest for the election of directors.

4. Lions Gate Entertainment Corp. and Encore Channels

Dr. Malone (described above) owns 7.8% of the Class A voting shares of Lions Gate and 3.8% of the Class B non-voting shares of Lions Gate.

5. Hemisphere Media Group, Inc. WAPA America, Cine Latino, TV Dominicana, ControAmerica TV, Pasiones

Eric Zinterhofer is a member of the board of directors for both Charter and Hemisphere. He has an indirect ownership interest in Hemisphere (with no voting or dispositive power over its shares).

******** Inclusion of any programming service on this schedule is not an admission that any such service is subject to any regulatory obligation or requirement. With regard to other entities and individuals with interests in Charter, we have relied on public information available to Charter.

August 2019

3 EXHIBIT 3

COX COMMUNICATIONS, INC. INVESTMENT OWNERSHIP PERCENTAGES AS OF DECEMBER 31, 2019

INVESTMENT COX INTEREST News Channel, LLC (OKC/Tulsa) 50.00% National Cable Communications 20.00% Insite Wireless Group 18.98% Canoe 13.00% 12.50% StackPath 11.40% WTFast 10.15% In Demand, LLC 8.50% MLB Network 1.98%