FILED/ACCEPTED Federal Communications Commission APR - 62009 Fel:1Eral Communica~Ons Co '
Total Page:16
File Type:pdf, Size:1020Kb
REDACTED Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) NFL Enterprises LLC, ) MB Docket No. 08-214 Complainant ) v. ) File No. CSR-7876-P Comcast Cable Communications, LLC, ) Defendant ) ) To: Marlene H. Dortch, Secretary FILED/ACCEPTED Federal Communications Commission APR - 62009 Fel:1eral Communica~ons Co '. Attn: ChiefAdministrative Law Judge Richard L. Sippel 0tIi mmlSSIOll ce oll1le Socrelary PREHEARING SUBMISSION OF NFL ENTERPRISES LLC In accordance with the Further Revised Procedural and Hearing Order, FCC 09M- 12 (reI. Feb. 3, 2009), NFL Enterprises LLC ("Enterprises") submits the following: I. Witness List and Summaries of Testimony NFL Enterprises intends to offer the testimony of Paul Tagliabue, Frank Hawkins, Ronald Furman, and Dr. Hal Singer. The written direct testimony ofeach witness is attached to this Prehearing Submission (see Part II below); it also is summarized here: Paul Tagliabue Paul Tagliabue is the former Commissioner ofthe National Football League. Commissioner Tagliabue testifies principally concerning the threats that Comcast made about punishing the NFL Network if Comcast did not secure a financial interest in what became the NFL Network's most valuable property. Frank Hawkins Frank Hawkins is the former Senior Vice President Business Affairs ofthe National Football League (the "League"), where his duties included strategic planning, operations, and supervising NFL Enterprises' negotiations with Comcast relating to Enterprises' programming service, the NFL Network. No. or Copies rec'd--D-..±::=...~ UslABCDE Mr. Hawkins's testimony principally addresses the history ofdealings between the League, NFL Enterprises, and Comcast, including negotiations between the League and Comcast for carriage ofa package ofeight live League games; NFL Enterprises' relationships with multichannel video programming distributors other than Comcast; the circumstances surrounding Comcast's dropping the NFL Network from its "D2" basic programming tier while maintaining carriage ofits affiliated sports networks, Versus and the Golf Channel, on basic programming tiers; the respects in which Versus and the Golf Channel compete against and are similarly situated to the NFL Network and the relative popularity of those networks; the differential treatment imposed by Comcast on the NFL Network in comparison to the treatment ofComcast's affiliated networks; the efforts Comcast made to secure a financial interest in what became the NFL Network's most valuable programming, and the threats Comcast used to support these efforts; and the commercial impact of Comcast's decision to drop the NFL Network from the "D2" tier. Ronald Furman Ronald Furman is Senior Vice President - Customer Marketing and Sales ofNFL Ventures, Inc., an affiliate of the League. Mr. Furman supervises all aspects ofthe advertising sales operations ofthe NFL Network. Mr. Furman testifies concerning the process by which advertisers decide how to spend their advertising budgets; the channels that are generally understood within NFL Enterprises and in the industry as competitors ofthe NFL Network; the factors often affecting whether, followed by the manner in which, NFL Enterprises sells advertising on the NFL Network; and the impact on NFL Network advertising of Comcast's decision to drop the NFL Network from its "D2" programming tier. Dr. Hal Singer Dr. Hal Singer is the President and Managing Partner of Empiris LLC, an economic consulting firm. He is an expert in the field ofeconomics. Dr. Singer testifies that Comcast's treatment of the NFL Network constitutes discrimination on the basis of affiliation in favor ofComcast's affiliated programming services; that the justifications Comcast has put forward for its conduct do not withstand scrutiny; that Comcast's conduct is exclusionary and harms NFL Enterprises' ability to compete fairly; and that this conduct has also harmed - 2 - viewers and advertisers. Dr. Singer also testifies concerning the appropriate remedy for Comcast's unlawful conduct. II. Written Direct Testimony The written direct testimony ofeach witness that Enterprises intends to call is attached as follows: Paul Tagliabue Attachment A Frank Hawkins Attachment B Ron Furman Attachment C Dr. Hal Singer Attachment D III. Trial Brief Enterprises' trial brief is attached hereto as Attachment E. IV. Hearing Exhibits Enterprises is submitting as Attachment F an index ofthe exhibits that it contemplates using at the hearing. The index also includes documents as to which official notice is requested. Copies ofall documents listed in the index have been assembled in binders that are being delivered to the Presiding Judge and counsel for Comcast and the Enforcement Bureau. Enterprises has made its best efforts to provide a complete set ofexhibits; nevertheless, Enterprises reserves the right to employ at the hearing (subject to the Presiding Judge's rulings) documents not listed in Attachment F or documents identified by Comcast on its exhibit list. V. Designation of Deposition Excerpts Attachment G to this submission lists deposition excerpts that Enterprises is submitting as evidence. The parties have agreed that this submission need not include - 3 - designations for witnesses expected to provide live testimony for the other party (in Comcast's case, this is Brian Roberts, Steve Burke, Jeff Shell, and Matt Bond). Instead, the parties have agreed that they will cover through cross-examination matters addressed during the witnesses' depositions, or if limited in doing this, they will submit designations for these witnesses after the hearing. The parties have further agreed that they will submit counter-designations and fairness designations on April 9. Enterprises has designated its deposition excerpts in paper form. Enterprises will submit a complete disc of video clips reflecting this deposition testimony following the hearing. VI. Glossary of Terms Enterprises submits as Attachment H a glossary of terms relating to this matter. Respectfully submitted, ~m.~ Jonathan D. Blake Gregg H. Levy Paul W. Schmidt Robert M. Sherman Leah E. Pogoriler COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2401 (202) 662-6000 Counsellor NFL Enterprises LLC April 6, 2009 - 4 - CERTIFICATE OF SERVICE I, Robert M. Shennan, certify that on this 6th day ofApril, 2009, I caused a true and correct copy ofthe foregoing Prehearing Submission ofNFL Enterprises LLC to be served via electronic mail upon: David H. Solomon Kris Anne Monteith L. Andrew Tollin Hillary S. DeNigro Robert G. Kirk William Davenport J. Wade Lindsay Gary Schonman Wilkinson Barker Knauer, LLP Elizabeth Mumaw 2300 N Street, N.W., Suite 700 Enforcement Bureau Washington, D.C. 20037 Federal Communications Commission 445 12th Street, S.W. James L. Casserly Washington, D.C. 20554 Michael H. Hammer Megan A. Stull Lisa C. Smolinisky Michael Hurwitz Vice President, Business & Legal Affairs Willkie Farr & Gallagher LLP Fox Cable Networks 1875 K Street, N.W. 10201 W. Pico Blvd. Washington, D.C. 20006 Building 103, Room 3138 Los Angeles, CA 90035 Michael P. Carroll David B. Toscano Antonio J. Perez-Marques Jennifer A. Ain Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Counsel to Corneas! Cable Communications, LLC Robert M. Shennan WRITTEN TESTIMONY OF PAUL TAGLIABUE 1. Between November 1989 and August 2006, I served as Commissioner ofthe National Football League (the "NFL" or the "League"). My responsibilities as Commissioner included overseeing the NFL's television operations. I continue to serve as a business advisor to the NFL. I am also employed as Senior Counsel at Covington & Burling LLP. I am fully familiar with the facts and circumstances discussed herein. 2. In late 2005 and early 2006, I met with Comcast CEO Brian Roberts on numerous occasions to discuss Comcast's desire to obtain a license to carry a package of eight live NFL games (the "eight-game package"). One such conversation occurred on January 27, 2006, shortly after the NFL informed Comcast that it had decided to license the eight-game package to NFL Enterprises, LLC ("NFL Enterprises"), operator ofthe NFL Network, and not to Comcast. 3. In the January 27 conversation, Mr. Roberts warned me that, as a result ofthe League's failure to license the eight-game package to Comcast for Versus, "your relationships with the cable industry are going to get very interesting." I had heard Mr. Roberts say similar things on prior occasions. 4. In retrospect, I believe that Mr. Roberts' statement foreshadowed Comcast's retaliation against the League and NFL Enterprises for the League's refusal to license the eight game package to Comcast. 5. Shortly after I retired from my position as Commissioner, Comcast took retaliatory steps by publicly announcing its decision to drop the NFL Network from a basic tier on which it had previously been carried and place it On a premium sports tier that was available to far fewer ofComcast's subscribers. I declare under penalty ofperjury that the foregoing testimony is true and correct. Executed on April 3, 2009 PAUL TAGLIABUE REDACTED WRITTEN TESTIMONY OF FRANK HAWKINS 1. My name is Frank Hawkins. For fifteen years, from July 1993 until June 2008, I was employed by the National Football League (the "NFL" or the "League"), most recently as Senior Vice President - Business Affairs. In that role, I was involved in many aspects ofthe League's television business, including those ofthe NFL Network, a 24·-hour cable and satellite network owned and