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REDACTED - FOR PUBLIC INSPECTION Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) GRAY TELEVISION LICENSEE, LLC ) and ) MB Docket No. 12-1 GRAY MEDIA GROUP, INC. ) Complainants, ) ) v. ) ) CITIZENS TELECOM SERVICES ) COMPANY, LLC D/B/A FRONTIER ) COMMUNICATIONS ) Defendant. ) ) To: Office of the Secretary Attn: Chief, Media Bureau GOOD FAITH COMPLAINT Robert J. Folliard, III Claire Magee Ferguson Gray Television Licensee, LLC Gray Media Group, Inc. 4370 Peachtree Rd. NE Atlanta, GA 30319 202-255-9298 December 22, 2020 REDACTED - FOR PUBLIC INSPECTION Table of Contents Page Summary ......................................................................................................................................... 1 Background ..................................................................................................................................... 3 I. BY PUTTING FORWARD A NEGOTIATOR WITH NO AUTHORITY TO NEGOTIATE, FRONTIER VIOLATED THE FCC’S GOOD FAITH RULES. .............. 5 A. Frontier Violated the Good Faith Rules Because It Refused to Negotiate with Gray and Because Its Lead “Negotiator” Had No Power to Actually Negotiate. ................................................................................................................ 6 B. Frontier’s Playacting Violated the Totality of the Circumstances Test. ................. 9 II. FRONTIER’S MISLEADING VIEWER NOTICES VIOLATED THE FCC’S RULES. ............................................................................................................................. 10 III. THE COMMISSION SHOULD IMPOSE ON FRONTIER THE MAXIMUM FORFEITURE PERMITTED BY LAW. ......................................................................... 12 CONCLUSION ............................................................................................................................. 14 -i - REDACTED - FOR PUBLIC INSPECTION Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) GRAY TELEVISION LICENSEE, LLC ) and ) MB Docket No. 12-1 GRAY MEDIA GROUP, INC. ) Complainants, ) ) v. ) ) CITIZENS TELECOM SERVICES ) COMPANY, LLC D/B/A FRONTIER ) COMMUNICATIONS ) Defendant. ) ) To: Office of the Secretary Attn: Chief, Media Bureau GOOD FAITH COMPLAINT Summary On Friday, December 18, 2020 at approximately 5:00 pm, Frontier with less than one- hour’s warning abruptly dropped three leading local television stations in three separate markets: WWSB(TV), ABC, Sarasota, Florida; WCSC-TV, CBS, Charleston, South Carolina; and WMBF-TV, NBC, Myrtle Beach, South Carolina. This occurred despite Gray’s offers of a no- strings-attached extension that would have kept the stations on Frontier’s systems.1 For weeks prior to the drop, Frontier gave the appearance of negotiating to extend its retransmission consent 1 Gray Television Licensee, LLC is the licensee of WWSB(TV), WCSC-TV, and WMBF-TV. Gray Media Group, Inc. is the 100% owner of Gray Television Licensee, LLC. In this Good Faith Complaint, Gray Television Licensee, LLC and Gray Media Group, LLC are collectively referred to as “Gray.” Citizens Telecom Services Company, LLC d/b/a Frontier Communications (“Frontier”) owns certain cable systems in the Tampa-Sarasota, Florida; Charleston, South Carolina; and Myrtle Beach-Florence, South Carolina DMAs that until December 18, 2020 had been retransmitting the Gray stations. REDACTED - FOR PUBLIC INSPECTION agreement with Gray to continue to retransmit the stations, yet as Frontier’s lead “negotiator” candidly acknowledged less than an hour before that agreement expired, she had no authority to enter into an agreement on any of the terms she had been offering to Gray. In short, the negotiations were a sham. As shown by documents available on Frontier’s own website, Frontier decided more than a month ago that it had no intention of extending its retransmission consent agreement with Gray. Rather than disclosing this plan to its subscribers or Gray, Frontier engaged in Potemkin negotiations making offers that it would not accept for stations that it decided weeks ago it would drop. At the same time that Frontier was making fake offers to Gray, it was keeping its customers in the dark regarding its true intentions to drop all three stations as soon as its carriage agreement expired. The Commission’s good faith rules and consumer notice rules demand more. Therefore, Gray files this complaint urging the Commission to find that Frontier has violated its duty to negotiate in good faith and its obligation to notify its customers “as soon as possible” that it would be dropping Gray’s stations, and Gray asks that the Commission impose the maximum penalty permitted under the Communications Act, which depending on how long Frontier had been leading Gray along and how long it has been misleading its customers, could be as much as $562,500 for the good faith violations2 and a separate forfeiture of another $187,500 for failing to notify its Sarasota customers of the impending loss of the access to the only network-affiliated station that provides news, community service, life-saving weather, and other critical information specifically for the Sarasota market. 2 DIRECTV, LLC; AT&T Services, Inc., Complainants, v. Deerfield Media, Inc., et al, Defendants, MB Docket No. 19-168, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 35 FCC Rcd 10695, ¶¶ 57-58 (2020) (“AT&T Good Faith NAL”). - 2 - REDACTED - FOR PUBLIC INSPECTION Background On November 23, 2020, Frontier’s long-time lead negotiator for retransmission consent agreements reached out to Gray asking that Gray provide a proposal to extend the parties’ existing retransmission consent agreement for WWSB(TV), WCSC-TV, and WMBF-TV, which was due to expire on December 18, 2020. Ordinarily, Gray already would have sent Frontier a proposal weeks earlier and been deep in renewal negotiations, but Gray was negotiating a master agreement with NCTC that would cover all of NCTC’s members, including, Gray believed, Frontier. Frontier’s negotiator explained that Frontier did not intend to opt into the NCTC agreement but instead preferred to negotiate directly with Gray. Given the short time period between November 23 and December 18 (including the intervening Thanksgiving holiday), Gray immediately offered to extend the existing retransmission consent agreement until December 31, 2020. Frontier responded that it did not want to extend but would prefer to move quickly towards a final agreement prior to December 18th. Although in Gray’s experience it is unusual for an MVPD to reject an extension offer, the negotiations between Gray and Frontier appeared to proceed normally following the November 23 contact. Gray and Frontier exchanged at least eight separate drafts that in each instance drove towards what Gray was led to believe would be a mutually agreeable business deal. Each party’s turn of the draft brought very standard gap-narrowing changes to rates and rate structure. Conversations remained light and cordial for the duration of the negotiation, with each of Frontier’s drafts accompanied with notes from Frontier’s negotiator like “[w]ould love to keep the momentum going!!” (December 1, 2020) and “[w]e are getting closer” (December 7, 2020). The appearance of normal negotiation ended abruptly at 4:00 pm on December 18, 2020 – just one hour before the parties’ agreement was set to expire. At that time, Frontier’s lead - 3 - REDACTED - FOR PUBLIC INSPECTION negotiator informed Gray for the first time ever that Frontier would be dropping the three Gray stations in one hour at 5:00 pm. She represented that not only did Frontier’s management not accept Gray’s most recent offer, but, more importantly, Frontier’s management did not approve Frontier’s own latest offer, either. In fact, Frontier’s negotiator informed Gray that she could not enter into an agreement on any terms. When Gray pressed for an explanation, Frontier’s negotiator did not say much, outside of some vague concerns regarding payment on a “duplicate” ABC affiliate in the Tampa DMA, even though WWSB(TV) exclusively serves the Sarasota market (previously, a separate television market). When asked about negotiating a rate for the South Carolina stations – unaffected by such “duplicate” concerns – Frontier’s negotiator could not and did not answer for why it was no longer interested in discussing carriage of these stations. When asked “if any proposal” would be acceptable – for any of the three stations – Frontier simply said “no.” During the 4:00 pm phone call, Gray reiterated its offer from November 23, 2020 to extend the retransmission consent agreement until December 31, 2020. In a follow up email minutes later, Gray put the extension into writing, confirming with certainty that Frontier had a license to retransmit the stations through the end of the year. This short extension would have allowed viewers to continue to watch Gray’s highly desirable local programming without imposing any burdens on them. The extension also would have given Gray and Frontier time to determine whether it would be possible to strike a mutually acceptable agreement given Frontier’s new stance on carriage of Gray stations, which is fully consistent with the public and private recommendations and policy statements of FCC Commissioners from multiple Administrations. Frontier yet again rejected Gray’s no-strings-attached extension. - 4 - REDACTED - FOR PUBLIC INSPECTION At 5:00 pm, all three stations were removed by Frontier from Frontier’s

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