Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554
In the Matter of ) ) Implementation of Section 4(g) ofthe ) Cable Television Consumer Protection ) MM Docket No. 93-8 and Competition Act of 1992 ) ) Home Shopping Station Issues )
COMMENTS OF HOME SHOPPING NETWORK, INC. IN RESPONSE TO PUBLIC NOTICE DA 07-2005
James P. Warner Vice President and Secretary HOME SHOPPING NETWORK, INC. One HSN Drive S1. Petersburg, Florida 33729 Tel: (727) 872-1000 Fax: (727) 872-6866 E-mail: Jim.Warner@hsn.net
July 18, 2007 TABLE OF CONTENTS
EXECUTIVE SUMMARY ii
I. INTRODUCTION 1
II. PROCEDURAL HISTORy 4
III. THE FCC IS BARRED BY STATUTE FROM EITHER RECONSIDERING ITS FINDING OR UPDATING THE RECORD IN DOCKET NUMBER 93-8 7
IV. THE RECORD IS SUFFICIENT TO ADDRESS - AND DISMISS - THE ISSUES RAISED IN CSC'S PETITION 9
A. The Commission Correctly Determined That Home Shopping Stations Serve the Public Interest and Properly Avoided a Subjective Evaluation ofProgramming Content 10
B. The Commission Appropriately Focused on Competing Demands for the Spectrum for Broadcast Uses Only 15
V. MORE RECENT INFORMATION SOUGHT BY THE COMMISSION CONTINUES TO DEMONSTRATE THAT HOME SHOPPING BROADCASTS SERVE THE PUBLIC INTEREST 18
VI. CONCLUSION 23 EXECUTIVE SUMMARY
Home Shopping Network, Inc. ("HSN") is filing these Comments in response to the Commission's Public Notice, DA 07-2005 (reI. May 4,2007) ("Public Notice"), in which the
Commission announced that it is seeking public input regarding a handful of issues that were raised in a petition for reconsideration filed by Media Access Project on behalfofthe Center for the Study ofCommercialism ("CSC") nearly 14 years ago.
In 1992, pursuant to Section 4(g) ofthe Cable Television Consumer Protection and
Competition Act of 1992, Congress directed the Commission to determine whether television stations "predominantly utilized for the transmission ofsales presentations or program length commercials" serve "the public interest, convenience, and necessity." After a thorough review of a full and complete record that was developed in 1993 in Docket Number 93-8, the Commission concluded that home shopping stations do serve the public interest and thereby warrant mandatory must-carry cable carriage like any other full-power local broadcast station. CSC apparently was not satisfied with the Commission's rigorous review and determination and demanded that the
Commission reconsider its conclusion; however, no further action was taken in Docket Number
93-8 until the issuance ofthe Public Notice in May 2007.
As more fully set forth in these Comments, the Commission is barred by statute from either reconsidering its findings or updating the record in Docket Number 93-8. The record is sufficient to address-and dismiss-the issues raised in CSC's petition for reconsideration. The
Commission correctly determined that home shopping stations serve the public interest and properly avoided a subjective evaluation ofprogramming content, which would have taken the
Commission down a constitutionally-hazardous road. Furthermore, when evaluating competing demands for the spectrum, the Commission appropriately focused on broadcast uses ofthe
11 spectrum only, as opposed to non-broadcast uses, because that is what Congress had directed it to do.
Although the Commission has all it needs to dismiss CSC's petition based on the record established in 1993, the Commission nevertheless solicits in the Public Notice information regarding the current status ofhome shopping stations. In these Comments, HSN has endeavored to provide the requested data by informing the Commission about HSN's current broadcasting operations. HSN continues to provide a desired and valued service to the public via its owned and operated low power television stations and its affiliation agreements with other licensees that deliver HSN's home shopping programming to their viewers. HSN undertook a current survey and identified 73 broadcast stations that air predominantly home shopping programming (either
HSN or other home shopping formats) with a combined reach to an estimated 44.4 million television households. As attested to by viewers ofHSN, home shopping programming provides valuable public interest benefits to consumers, a service that is critical to those who are homebound.
For the reasons described in these Comments, it is clear that the Commission must reaffirm the conclusion it reached in 1993 that home shopping stations serve the public interest and deny CSC's petition for reconsideration.
111 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554
In the Matter of: ) ) Implementation ofSection 4(g) ofthe ) MB Docket No. 93-8 Cable Television Consumer Protection ) and Competition Act of 1992 ) ) Home Shopping Station Issues )
COMMENTS OF HOME SHOPPING NETWORK, INC. IN RESPONSE TO PUBLIC NOTICE DA 07-2005
Home Shopping Network, Inc. ("HSN"), a subsidiary ofIAC/InterActiveCorp, submits these comments by and on behalfofits subsidiaries in response to the Commission's
Public Notice in the above-captioned proceeding. 11
I. INTRODUCTION
HSN, which this year is celebrating 30 years ofservice to consumers, was the first company in the United States to offer an over-the-air broadcast shop-at-home service. While
HSN has in recent years expanded its business across a number ofplatforms, including the
Internet, the cornerstone ofthe company remains its television home shopping service. As explained more fully below, 74 low power television stations in 60 Designated Market Areas
("DMAs") today broadcast HSN home shopping programming for more than 86 hours per week, making home shopping available via over-the-air broadcasts to approximately 26.5 million households in these DMAs. In addition to over-the-air broadcasting, HSN delivers its
11 Public Notice, Commission Seeks to Update the Record for a Petition for Reconsideration Regarding Home Shopping Stations, MM Docket No. 93-8, DA 07-2005 (reI. May 4, 2007) ("Public Notice"). For convenience, HSN and its subsidiaries are referred to collectively herein as "HSN." programming directly to DBS operators and cable operators, making HSN one ofthe largest multi-platform television networks in the United States. HSN's over-the-air broadcasts, however,
playa key role in the company's strategic objectives, as its broadcast stations often are used to
fill gaps in markets where cable and DBS penetration rates are understood to be low. Overall, the HSN video distribution network reaches approximately 89 million (ofthe 111.3 million) homes in the United States with a television set.
HSN provides viewers with product information, demonstrations, and
entertainment, and in doing so also affords consumers with the convenience ofbeing able to shop
and purchase a variety ofproducts without leaving the comfort oftheir own homes. HSN's programming features a wide range ofmerchandise, including fashion, beauty, home, jewelry, and electronic items, and includes both name brand and HSN-exclusive product lines.
Unlike the conventional "brick-and-mortar" shopping experience where consumers buy products off-the-shelf, HSN customers make educated purchasing decisions after watching product demonstrations and listening to in-depth information about product
specifications and features. Viewers can then order merchandise using their telephones and have
HSN deliver the products to their doorsteps. In this regard, the level ofproduct information and convenience provided by HSN programming is unparalleled.
HSN programming also provides viewers with entertainment and thematic programming content. This content provides viewers with product demonstrations and enhanced information about HSN products - information not ordinarily available to consumers through more typical broadcast television commercials - in an entertaining manner. For instance, special
HSN programs such as Rising Chef, in which three up-and-coming chefs participated in an interactive cooking demonstration using merchandise available for purchase by consumers, and
2 Lukastyle, in which fashion aficionado Wayne Scot Lukas provides fashion advice and teaches
viewers how to mix and match clothing and fashion accessories while featuring product offerings,
impart useful information to viewers in a format that reflects familiar programming models.
Well-known Hollywood celebrities also frequently star in HSN's regular
programming, which lends an entertainment-style format to the home shopping experience. For
example, just over a month ago, HSN broadcast a 30-minute special featuring Paul McCartney to
celebrate and promote the release ofhis latest album, Memory Almost Full. The program
featured cuts from the album, lively discussions among McCartney fans, and video segments in
which McCartney discussed the inspiration behind his latest work. Other celebrities who appear
on HSN programming include, for example, actress Suzanne Somers, who presents fitness and
fashion products; celebrity chefs Wolfgang Puck and Roy Yamaguchi, who present kitchen
products; Emmy-winning actress Susan Lucci, who presents head-to-toe fashion and lingerie;
supermodel/actress Lauren Hutton, who presents cosmetics; model Jennifer Flavin-Stallone, who presents skin care products; and celebrity fashion designer Randolph Duke, who has designed an exclusive line ofapparel for HSN.
Additionally, in the style ofother entertainment programming and reality television shows, HSN offers viewer participation opportunities in its programming. Members ofthe public, for example, often are able to interact with on-air personalities to inquire about a particular product or discuss its benefits. In addition to possibly being featured on-the-air when they call in to place an order, viewers also can apply to be HSN product hosts or HSN vendors.
In sum, HSN programming combines the practical conveniences ofshopping from home with the unique entertainment value that broadcast television so ably conveys. These
3 attributes - as well as others already established in the docket and more fully below - leave little
question that home shopping programming has long been - and remains - in the public interest.
II. PROCEDURAL HISTORY
On October 5, 1992, pursuant to Section 4(g) ofthe Cable Television Consumer
Protection and Competition Act of 1992 (the "Cable Act"), '2.1 Congress directed the Commission
"to determine whether broadcast television stations that are predominantly utilized for the transmission of sales presentations or program length commercials are serving the public interest,
convenience, and necessity" and therefore warrant mandatory must-carry cable carriage like any
other local broadcast television station. '11 In response to this Congressional directive, the
Commission issued a Notice ofProposed Rulemaking on January 14, 1993, which set comment
and reply comment dates in 1993.1/ HSN, along with dozens ofothers, filed comments in response to that NPRM. 2/ As the Commission summarized in the more recent Public Notice, the
"overwhelming majority" ofcommenters in Docket 93-8 previously affirmed that home
shopping stations serve the public interest. §.I
On July 2, 1993 (the 270th day following the passage ofthe Cable Act), the
Commission adopted a Report and Order in Docket 93-8 concluding that "home shopping stations are serving the public interest, convenience, and necessity." 11 Moreover, the
'2.1 Pub. L. No. 102-385, 106 Stat. 1460 (1992), codified at 47 U.S.C. § 325 et seq. '11 47 U.S.C. § 534(g)(2). 1/ 8 FCC Rcd 660 (1993) ("NPRM"). ~I See Comments ofHome Shopping Network, Inc., MM Docket No. 93-8, filed Mar. 29, 1993 ("HSN 1993 Comments"). §.I Public Notice at ~ 3. 11 Implementation of Section 4(g) ofthe Cable Television Consumer Protection and Competition Act of 1992, Home Shopping Station Issues, MM Docket No. 93-8, Report and Order, 8 FCC Rcd 5321, 5328 [~36] (1993) ("1993 R&D").
4 Commission concluded that "as long as a home shopping broadcast station remains authorized to
hold a Commission license, it should be qualified for mandatory [cable] carriage." ~I In reaching
this conclusion, the Commission considered and applied, among other factors 2/, the three
statutory factors directed by Congress in Section 4(g) ofthe Cable Act: (I) the viewing ofhome
shopping stations by the public; (2) the level ofcompeting demands for the spectrum allocated to
such stations; and (3) the role of such stations in providing competition to non-broadcast services
offering similar programming. 101
Addressing the first ofthe three Cable Act factors, the Commission found that
home shopping stations have significant viewership and that the format's continued success and
expansion would not likely occur without significant viewer support.l1! With respect to the
second factor, the Commission found that it must consider the demands only ofother television
broadcasters and not the demands ofservices other than broadcast television to determine whether the use of spectrum by home shopping stations is in the public interest. .12/ In this regard, the Commission further found that the renewal and licensing process adequately took into account the competing demands oftelevision broadcasters for the spectrum. UI Turning to the third factor, the Commission found that the existence and carriage ofhome shopping broadcast stations playa role in providing competition for non-broadcast services supplying similar programming. 141 Based on the Commission's consideration and conclusions with respect to
~I Id. at 5329 [~ 39]. 2.1 Id. at 5326-28 [,-r,-r 24-36]. lQl Id. at 5322, 5326 [,-r 3, ~ 23]. ill Id. at 5322 [,-r,-r 4-6]. 121 Id. at 5323 [~ 8]. UI Id. at 5323 [~,-r 9-12]. HI Id. at 5323-26 [,-r,-r 13-22].
5 these three factors, as well as additional factors, the Commission concluded that home shopping
stations serve the public interest. .12/
One - and only one - petition for reconsideration, prepared by Media Access
Project on behalfofthe Center for the Study of Commercialism ("CSC"), was submitted to the
Commission questioning the Commission's conclusion that home shopping stations serve the public interest. l§! Although the Petition asserted a handful oflegal arguments challenging the
Commission's ruling, its fundamental premise reflected an insular disapproval of"commercial"
programming - that is, programming premised on the commercial sale ofproducts and services, which would include home shopping services. 11/ The Petition was opposed in 1993 by HSN
and the National Association ofBroadcasters ("NAB"), among others.ll/ No further action was taken in this docket by the Commission until the issuance ofthe Public Notice.
Now, after an almost 14-year hiatus, the Commission is seeking comment on the
issues raised by CSC in its Petition. 19/ Specifically, in the Public Notice, the Commission is
seeking comment on: (1) CSC's assertion that the Commission failed to consider in its public interest analysis the significant amount ofcommercial programming broadcast by home
.12/ Id. at 5326-28 [" 24-36] (discussing the value home shopping services provide for people who lack the ability to obtain goods outside the home, the public interest obligations satisfied in connection with the underlying broadcast licenses, and the role home shopping stations have played in assisting minority-owned and small stations to attain financial sustainability). lQ/ Petition for Reconsideration ofCenter for the Study of Commercialism, MM Docket No. 93-8, filed Aug. 23, 1993 ("Petition"). ]1/ See, e.g., id. at 1, 2, 5 ("overcommercialization"), and at 2, 5, 6 ("excessive commercialization"). ll/ See, e.g., Opposition to Petition for Reconsideration ofHome Shopping Network, Inc., MM Docket No. 93-8, filed Sept. 30, 1993 ("HSN 1993 Opposition"); Opposition ofthe National Association of Broadcasters to Petition for Reconsideration, MM Docket No. 93-8, filed Sept. 30, 1993. 12/ See Public Notice at' 6.
6 shopping stations; (2) CSC's assertion that the Cable Act requires the Commission to consider non-broadcast uses in its analysis ofcompeting demands for spectrum; and (3) information on the current status ofhome shopping programming. 20/ As explained more fully below, neither
CSC's assertions nor the current status ofhome shopping programming merits a change in the
Commission's long-standing finding that home shopping stations serve the public interest. More fundamentally, the plain language of Section 4(g) ofthe Cable Act, together with applicable case law, demonstrates that the Commission does not even possess the authority to reconsider its
1993 R&O at this late date.
III. THE FCC IS BARRED BY STATUTE FROM EITHER RECONSIDERING ITS FINDING OR UPDATING THE RECORD IN DOCKET NUMBER 93-8
Congress, in Section 4(g) ofthe Cable Act enacted on October 5, 1992, expressly directed the Commission to "[w]ithin 270 days after the date ofenactment ofthis section" make a determination as to whether home shopping stations serve the public interest. The Commission did so within that time frame in the 1993 R&O, and now that the 270-day period has expired, the
Commission is barred from (a) reversing that finding or (b) updating the factual record on which to base that finding.
Although agencies generally have the inherent authority to reconsider past decisions, 21/ they are required to do so within a reasonable amount oftime. 22/ Even ifa case
20/ See Public Notice at ~~ 6-8. 21/ See, e.g., Dunn & Bradstreet Corp. v. United States Postal Service, 946 F.2d 189, 193 (2d Cir. 1991) ("It is widely accepted that an agency may, on its own initiative, reconsider its interim or even its final decisions, regardless ofwhether the applicable statute and agency regulations expressly provide for such review"). 22/ See id. ("Ordinarily, however, an agency may undertake such reconsideration only if it does so within a reasonable time period and affords the claimant proper notice of its intent to reconsider the decision") (citing Bookman v. United States, 453 F.2d 1263, 1265 (Ct. Cl. 1972)). See also Cooley v. Us., 324 F.3d 1297,1305-06 (Fed. Cir. 2003) ("Reconsideration ofan agency's decision must arise within a reasonable period oftime").
7 could be made that 14 years is within what could be considered "reasonable" under the present circumstances (which it cannot), Congress foreclosed such discretionary review when it included an express limitation in Section 4(g) that required a decision within 270 days. Now that this time frame has expired, the Commission is without authority to alter its previous decision.
Congressional intent that a determination in this proceeding was to have been finalized within 270 days ofthe Cable Act's passage is made even more clear by the fact that other portions ofthe Cable Act contain different time limits for Commission rulemakings in other contexts. 23/ These provisions demonstrate that Congress was fully capable of communicating - and, indeed, did communicate - its intent with respect to the timetable for this proceeding. For example, when Congress sought continued involvement by the Commission in updating an initial decision made pursuant to the Cable Act's directives, it specifically directed the Commission to "periodically thereafter revise" that decision. 24/ Congress did not do so here.
The decision to impose a specific time limit on the Commission's authority with respect to this issue was the product ofCongressional policy making 25/ that the Commission is not free to ignore. The Supreme Court has characterized an agency's rulemaking authority as
"the power to adopt regulations to carry into effect the will ofCongress as expressed by the statute," 26/ and has found it "axiomatic that an administrative agency's power to promulgate
23/ See, e.g., 47 U.S.C. § 532(c)(3)(b) (imposing a 180-day deadline for establishing rules for leased access); § 533(f)(1) (imposing a one-year deadline to conduct proceeding on cable ownership); § 536(a) (imposing a one-year deadline to establish regulations on carriage agreements). 24/ 47 U.S.C. § 543(b)(2) (using the language "[p]roscribe, and periodically thereafter revise" in the context ofthe 180-day deadline to establish regulations for cable subscriber rates). 25/ See, e.g., 138 Congo Rec. H25403 (daily ed. Sept. 17, 1992); 138 Congo Rec. H26574 (daily ed. Sept. 22, 1992).
26/ Guardians Association V. Civil Service Commission o/City o/New York, 463 U.S. 582, 614 n.2 (1983) (quoting Dixon v. United States, 381 U.S. 68, 74 (1965».
8 legislative regulations is limited to the authority delegated by Congress." 27/ In the case ofa
statutory subsection like 4(g), where the intent of Congress to limit the Commission's power to a
270-day period is expressed so clearly on its face, a decision to reconsider the previous decision
at this point - 14 years beyond the expiration ofthe delegated authority - simply cannot be justified.
Furthermore, even ifthere was a basis for the Commission to legally reconsider
its original 1993 decision, it would be an abuse of discretion for the Commission to reopen the
record in response to the claims made in CSC's Petition. As the Commission's own rules make
clear, "[n]o evidence other than newly discovered evidence, evidence which has become
available only since the original taking of evidence, or evidence which the Commission or the
designated authority believes should have been taken in the original proceeding" can be added to the record during reconsideration. 28/ CSC has not presented any new information or evidence that satisfies any ofthese enumerated exceptions in its petition; and information submitted today,
pursuant to a public notice issued 14 years after the Commission's decision, also cannot satisfy these standards. As a result, to the extent the Commission even attempts to reconsider its decision, which as noted above it is barred from doing, it must be limited to the existing record.
IV. THE RECORD IS SUFFICIENT TO ADDRESS - AND DISMISS - THE ISSUES RAISED IN CSC'S PETITION
In the Petition, CSC raises legal and procedural issues, not factual ones. Thus, even ifthe Commission were authorized to reconsider its conclusion at this late date, there is no need to "update" the record to do so. In other words, to address the Petition, the Commission need not undertake a wholesale review ofthe factors supporting its conclusion that home
27/ Bowen v. Georgetown University Hospital, 488 U.S. 204,208 (1988). 28/ 47 C.F.R. § 1.106(1).
9 shopping stations serve the public interest; instead, it need only apply established precedent to
the discrete legal and procedural arguments raised in the Petition. CSC's Petition can easily be
dismissed on this basis alone.
CSC in its Petition did not question whether the factual record in the docket
supported the Commission's determination; instead, CSC argued that the Commission
(a) applied the wrong legal principles (by not making a qualitative judgment as to the value and
amount of"commercial matter" in home shopping programming, failing to consider non-
broadcast uses ofthe spectrum, and not addressing renewal expectancy issues), and
(b) inappropriately relied on ex parte matter (referring to then-FCC Chairman Jim Quello's
citation to a handful of letters from the public in his separate statement). These are legal, not
factual, arguments that were addressed fully by the Oppositions filed in 1993 by participants
such as HSN and NAB.
A. The Commission Correctly Determined That Home Shopping Stations Serve the Public Interest and Properly Avoided a Subjective Evaluation of Programming Content
The crux ofCSC's argument in its Petition is that the Commission improperly
focused on the "412 minutes per hour of 'public interest' programming provided by home
shopping stations, and ignored the 5512 minutes ofcommercial matter per hour that engulfs
it." 29/ That is, CSC believed that the Commission committed legal error by not making a
subjective judgment as to the value to the public ofhome shopping programming.
29/ Petition at 2. This "412 minutes per hour" reference apparently alludes to the principal public interest program ofthat length aired generally once an hour by the Silver King Communications, Inc. stations. See 1993 R&D at 5327 [~29]. CSC, however, failed to acknowledge that "home shopping stations utilize a variety offormats for this type of programming [addressing needs and interests oftheir communities of license], including public service announcements (PSAs) and program length features." Id. (emphasis added).
10 This issue was raised and debated by the parties back in 1993 and nothing has
changed to merit a different conclusion than the one the Commission reached at that time. In this
regard, HSN respectfully requests that the Commission refer to HSN's discussion ofthis issue in
the HSN 1993 Opposition, which addressed this issue fully. 30/ There, HSN established that the
position advanced by CSC would violate the principle that the Commission cannot become
involved in the regulation ofprogramming formats.ll/ Specifically, the HSN 1993 Opposition
established that it would be unconstitutionally intrusive for the Commission to judge the value of
non-public affairs programming or to penalize a broadcast station otherwise serving the public
interest based on the quantity of"commercial" programming broadcast by the station. 32/ That
principle is no less valid in 2007 than it was in 1993.
Moreover, the commercial content issue was addressed fully by the Commission
in the 1993 R&D. In the 1993 R&D, the Commission expressly rejected the argument advanced by CSC that the market had failed to protect the public from "excessive commercialization," thereby warranting regulation ofthe home shopping format and the content ofits programming. 33/ What CSC refers to as "commercial" programming (i.e., home shopping) should be no more susceptible to government intrusion than broadcasts ofother program content, whether they be game shows, reality television, or other programming that may appeal to the tastes ofsome but not others. Contrary to CSC's wishes, it was not possible in 1993 - nor is it
30/ See HSN 1993 Opposition at 5-11. Jl/ See, e.g., id. at 9 (citing Federal Communications Commission v. WNCN Listeners' Guild, 450 U.S. 582 (1981); WGBH Educational Foundation, 69 FCC 2d 1250 (1978); WPIX, Inc., 68 FCC 2d 381 (1978); Multi-Com, Inc., 72 FCC 2d 198 (1979); Kaye-Smith Enterprises, 71 FCC 2d 1402 (1979». The HSN 1993 Opposition, at 10-11, also explained that the Commission was under no obligation-pursuant to the Cable Act or otherwise-to consider alternative formats involving fewer hours of home shopping programming. 32/ See HSN 1993 Opposition at 5-11. 33/ See 1993 R&D at 5326-27 [~ 27].
11 possible today - to draw a line between "commercial" and "entertainment" programming that passes constitutional muster. In fact, such line drawing would be virtually impossible to accomplish even as an academic exercise, as product placements and tie-in promotions can render even the most seemingly pure "entertainment" programming "commercial" in nature.
A number offilms and television shows can be said to be comprised of
"commercial material" due to product placements and merchandise tie-ins. 34/ For instance,
Fox's widely-viewed American Idol makes considerable use ofproduct placement through the strategic placement ofred "Coca-Cola" cups in front ofeach ofthe three judges on the program.
Because the evaluations and banter among these judges are a key component ofthe program, the
Coca-Cola cups, which clearly promote a commercial interest, have far more than a fleeting or passive on-air presence. A number ofprime time television shows have even more overt product placement deals. 35/ For example, NBC's The Apprentice has featured Crest toothpaste as the focus ofa business challenge and ABC's Extreme Makeover: Home Edition routinely features
Sears tools, appliances, and home furnishings. Stations broadcasting music videos also can be said to be "commercially"-oriented because they enhance concert ticket and CD sales of recording artists. Overlaps between "commercialized" content and "entertainment" can even be found in children's television, as evidenced by a trip to any local toy or grocery store replete with
Dora the Explorer and Sesame Street paraphernalia. In all ofthese programs, the commercial product - or the inspiration for the commercial product - appears on the screen for an extended
34/ See Lacey Rose, The Prime-Time Product Placement Boom, Forbes.com, June 5, 2007, accessible at http://www.forbes.com/media/2007/06/05/television-advertising-branding-biz media-cx_lr_0605tns.html (reporting that 10 minutes and 50 seconds ofthe average hour of reality television programming is devoted to in-show "brand appearances"). See also Daren Fonda, Prime-Time Peddling, Time.com, May 24,2005, accessible at http://www.time.com/time/printout/0.8816.1064482,00.html (reporting that television product placement deals have surged in value from $709 million to $1.9 billion since 1999). 35/ Id.
12 period and sometimes is featured in every scene or throughout the program. There is no cogent
distinction between these "commercial" activities and those that are featured on home shopping
programming, and requesting the Commission to concoct one would require the Commission to
engage in precisely the sort ofprogram value judgments that the First Amendment prohibits.
CSC may not like it, but, at bottom, commercial content is the premise on which
television broadcasting - and the global economy - is based. As was previously explained in the
HSN 1993 Opposition, there is no basis in the First Amendment for treating one class of
broadcasters, those offering a home shopping format, to additional burdens not imposed on any
other class ofbroadcasters based solely on the content ofprogramming they offer. 36/ Indeed,
the advertising-based principles on which commercial television was founded - and today
flourishes - are inherently "commercial." Singling out home shopping over other forms of
programming as "too commercial" would require the Commission to engage in unconstitutional
value judgments that would threaten the very notion offiee expression. 37/
Notwithstanding CSC's attempt to characterize its position as seeking regulation
ofthe amount oftime devoted to commercials, 38/ CSC's Petition really amounts to nothing
36/ See HSN 1993 Comments at 10-11. See also HSN 1993 Opposition at 7-8. 37/ The Commission's limited ability to interfere with program content takes other forms as well. For example, under the First Amendment, the Commission cannot discount or negate public interest programming (i. e., programming specifically designated by the broadcaster in its quarterly issues-programs list as being responsive to a community need or interest) simply because it is embedded in a programming format deemed unworthy by CSC. See, e.g., id. at 13 ("Because the home shopping stations broadcast not just commercial speech but locally produced public interest programming that fully satisfies all oftheir obligations as public trustees, any denial ofeligibility from must-carry status based on the content oftheir entertainment programming would fail the requirement that commercial regulation be narrowly tailored"); Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622,641 43 (1994) (noting that "[o]ur precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content"). 38/ See CSC Reply to Oppositions to Petition For Reconsideration at 3-4, MM Docket No. 93-8, filed Oct. 14, 1993 ("CSC Reply").
13 more than an attack on the content ofhome shopping station programming. That CSC does not like home shopping is clear. That it cannot enlist the Commission to implement its preferences is even clearer. As previously set forth in the HSN 1993 Comments, government regulation that discriminates purely on the basis ofthe content ofspeech is per se unconstitutional. 39/
Even ifthe Commission desired to travel down this constitutionally-hazardous road, the record developed in this docket in 1993 established that the public values home shopping stations. 40/ After reviewing the record, the Commission specifically noted in its
1993 R&D that "no commenter" disputed that home shopping stations serve the needs of some consumers 41/ and the Commission recognized that there were a number ofreasons why some consumers preferred over-the-air shopping to retail outlet shopping. 42/ Based on its
39/ HSN 1993 Comments at 11. See also R.A. V v. City ofSt. Paul, Minnesota, 505 U.S. 377, 382 (1992) ("Content-based regulations are presumptively invalid"); Rosenberger v. Rector and Visitors ofthe University ofVirginia, et al., 515 U.S. 819, 828 (1995) ("It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys"); Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622, 641 (1994) ("[T]he First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content ofmessages expressed by private individuals"). 40/ 1993 R&D at 5326-28 [~~ 24-36]. CSC complained in its Petition that then-Chairman Quello cited in his concurring statement certain letters from the public that were not in the official record. Petition at 9-11. Many public comments were in fact made part ofthe docket prior to the deadline for Reply Comments. See, e.g., Memorandum ofOffice ofCommissioner Duggan dated Apr. 16, 1993, to Secretary ofFCC requesting inclusion ofpublic letters into the record ofMM Docket No. 93-8 (entered into docket on Apr. 7, 1993); letters ofHSN-affiliated television stations (entered into docket on June 29,1993); Order, MB Docket No. 93-8, DA 93 419 (Mass Media Bureau reI. Apr. 8,1993) (extending deadline for reply comments to April 27, 1993). The handful ofletters referenced by Chairman Quello in his concurring statement reiterated the same themes as letters in the record, thus re-emphasizing points already documented in the record and available for comment by CSC and others. 41/ 1993 R&D at 5327 [~28]. 42/ Id. ("Several commenters state that [home shopping stations] provide valuable services to the disabled and others confined to their homes, the elderly, families without time to shop by other means, people without ready access to retail outlets or whose outlets do not stock the goods
14 thorough review ofthe record, the Commission concluded that "home shopping stations provide an important service to viewers who either have difficulty obtaining or do not otherwise wish to purchase goods in a more traditional manner." 43/
Given the evidence in the record demonstrating the value ofhome shopping stations to members ofthe public, the absence ofany evidence to the contrary, and the significant constitutional issues presented by content regulation, there is no basis to justify reconsideration ofthe Commission's determination in the 1993 R&D that home shopping stations serve the public interest.
B. The Commission Appropriately Focused on Competing Demands for the Spectrum for Broadcast Uses Only
In the NPRM, the Commission solicited comment on whether in evaluating the second factor ofthe Cable Act - competing demands for the spectrum allocated to home shopping stations - the Commission should consider the demand only ofother broadcasters, as opposed to non-broadcast uses ofthe spectrum. 44/ Several commenters asserted that Congress did not intend that the spectrum be reallocated to non-broadcast uses, while others, including
CSC, argued that the statute required consideration ofnon-broadcast uses. 45/
The Commission fully considered CSC's interpretation ofthe Cable Act in 1993, and, upon a review ofthe plain language ofthe Cable Act and its legislative history, the
Commission rejected CSC's argument in the 1993 R&D. 46/ Specifically, the Commission
they want, people without cars or other transportation, people who dislike shopping, and people who are afraid ofviolent crime in conventional shopping areas"). 43/ Id. 44/ NPRMat 661; see also 1993 R&D at 5322 [~7]. 45/ Id.; see also Petition at 9-11. 46/ 1993 R&D at 5323 [~8].
15 noted that "by directing the Commission to allow home shopping licensees to develop other
broadcast formats iftheir stations were found not to serve the public interest, Congress contemplated only broadcast uses for those channels." 47/
CSC apparently was not satisfied with the Commission's interpretation ofthe
Cable Act and continued to press its contrary view in the Petition. 48/ But all the Petition could muster on this point was a single post-enactment letter by Representative John Dingell, which was not entered formally in the record during the 1993 proceedings, asserting that the
Commission wrongly limited its consideration ofcompeting demands for the spectrum only to broadcast uses. 49/ It is well-established that such post-enactment statements are of limited interpretative value. 50/
The Commission conducted a thorough review ofthe plain language ofthe statute in 1993 in reaching its conclusion to consider only competing broadcast uses. Moreover, the
Commission in 1993 considered contemporaneous comments by both Representative John
Dingell and Representative Dennis Eckart and determined that the legislative history also supported the Commission's conclusion that only broadcast uses were contemplated. 21/ The
47/ Id. 48/ See Petition at 9-11. 49/ Id. 50/ See, e.g., Heintz v. Jenkins, 514 U.S. 291, 298 (1995) (Congressional post-enactment statement should not be given "conclusive weight" because such a post-enactment statement "is not a statement upon which other legislators might have relied in voting for or against the Act, but it simply represents the views of one informed person on an issue about which others may (or may not) have thought differently"). W 1993 R&O at 5322 [~8].
16 Commission's interpretation of its statutory mandate was reasonable, and as the expert agency,
must be afforded significant weight. 52/
An expansion ofthe Commission's inquiry into non-broadcast uses at this late
date not only would be at odds with the plain language and legislative history ofthe Cable Act,
but also would be impractical. The idea that one could pull six MHz ofbandwidth out of
spectrum reserved for television broadcast use at an unpredictable location and frequency and assign it to a non-broadcast service based on a finding that the license was not serving the public interest (and only ifthe broadcaster did not avail itselfofthe "escape clause" ofthe Cable Act to change format) 53/ would create licensing, technical, interference, enforcement, and administrative nightmares. 54/ Moreover, the DTV transition 55/ already will make available a
52/ See HSN 1993 Opposition at 13 (citing Orange Park Florida TV, Inc. v. Federal Communications Commission, 811 F.2d 664 (D.C. Cir. 1987); City ofNew York Municipal Broadcasting System v. Federal Communications Commission, 744 F. 2d 827 (D.C. Cir. 1984); National Railroad Passenger Corporation v. Boston & Maine Corporation, 112 S. Ct. 1394 (1992); Rivera-Cruz v. INS, 948 F.2d 962 (5th Cir. 1991)). 53/ See 47 U.S.C. § 534(g)(2) ("In the event that the Commission concludes that one or more ofsuch stations are not serving the public interest, convenience, and necessity, the Commission shall allow the licensees ofsuch stations a reasonable period within which to provide different programming, and shall not deny such stations a renewal expectancy solely because their programming consisted predominantly ofsales presentations or program length commercials"). 54/ The concerns that have been voiced in other contexts in relation to the unlicensed non- broadcast use of"white spaces" between DTV channels barely scratch the surface ofthe difficulties that the Commission would face ifit reassigned pockets ofthe television broadcast spectrum to non-broadcast uses. See, e.g., Unlicensed Operation in the TV Broadcast Bands, ET Docket No. 04-186, 21 FCC Rcd 12266, 12277 [~ 28] (2006). In the context ofthe DTV white spaces debate, such concerns include the possibility that interference from unlicensed non broadcast sources would prevent television viewers from not only watching free over-the-air broadcasts, but possibly also cable television. See, generally, Joint Comments ofthe Association for Maximum Service Television, Inc. and the National Association ofBroadcasters, ET Docket Nos. 04-186, 02-380, at ii (Nov. 30, 2004). Additionally, commenters in the debate regarding DTV "white spaces" have noted that allowing unlicensed non-broadcast uses into DTV spectrum would create an interference enforcement problem, because the interference would be impossible to pinpoint and cure. See, e.g., id.
17 significant amount ofspectrum for non-broadcast uses, including public safety and emergency
uses - and far more extensively than would re-allocation ofbroadcast spectrum here under
CSC's interpretation ofthe Cable Act.
Additionally, while there is no longer a procedure for filing competing permit
applications against renewal applications, 56/ petitions to deny renewal applications may still be,
and are still, filed. 57/ Just as the Commission found in 1993 that the lack ofcompeting
applications against home shopping stations demonstrated that the competing demand for that
spectrum was minimal, 58/ so too should the Commission now take notice that, despite the
ability ofcompeting interests to file petitions to deny, there is no trend of successful challenges
to license renewals ofhome shopping formatted stations. The absence ofsuch successful
challenges indicates both that such stations are serving the public interest and that there is not
significant competition for the spectrum currently occupied by home shopping-formatted stations.
V. MORE RECENT INFORMATION SOUGHT BY THE COMMISSION CONTINUES TO DEMONSTRATE THAT HOME SHOPPING BROADCASTS SERVE THE PUBLIC INTEREST
Although the Commission has all it needs to dismiss CSC's Petition, the
Commission nevertheless is seeking to "update the record" in this proceeding by soliciting comment on the current number ofbroadcast stations that today provide home shopping programming for the majority oftheir broadcast day and how home shopping stations meet their public interest obligations, in particular the requirements ofthe Children's Television Act of
55/ See Deficit Reduction Act of2005, Pub. L. No. 109-171, 120 Stat 4 (2006), codified at 47 U.S.C. § 337 et seq. ("DRA"). Title III ofthe DRA is the Digital Television and Public Safety Act of2005. 56/ Cf 1993 R&O at 5323 [~~ 10-12]. 57/ See, e.g., 47 C.F.R. 73.3516(e) (2006). 58/ 1993 R&D at 5323 [~ 12].
18 1990 59/ and coverage of issues facing the stations' communities. 60/ As previously noted, to
the extent the Commission can act at all here, it must do so based on the record developed in
1993, as that is the record developed pursuant to the statutory mandate ofthe Cable Act and on
which CSC's Petition was based. Nevertheless, in deference to the Commission's most recent
request, HSN has endeavored to supply here available updated information. This updated data
makes it readily apparent that the market for home shopping programming is as vibrant today as
it was in 1993 and continues to support the Commission's conclusion that home shopping
stations meet and satisfy the public interest.
At the time the Cable Act was passed, HSN was the licensee of 12 full-power
broadcast television stations. 61/ HSN's initial focus on full-power broadcast stations was a
critical stepping stone in the company's development. Since that time, HSN has transitioned its
delivery platform from full-power broadcast television stations to low power broadcast television,
cable, direct broadcast satellite, and other wireline communications outlets. Much ofHSN's
original stable of full-power television stations were sold to Univision, thereby seeding the
development ofUnivision's Telefutura Spanish-language network.
Today, HSN supplies home shopping programming for a majority ofthe
broadcast day via 74 television stations, including 27 low power television stations owned and
operated by HSN affiliate Ventana Television, Inc. and another 47 low power television stations
with which HSN has affiliation agreements. Together, these HSN owned and affiliated
59/ Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S.C. §§ 303a, 303b, 394. 60/ See Public Notice at ~ 8. Ql/ See HSN 1993 Comments at n 3.
19 broadcast stations serve viewers in 60 DMAs and cover over 26 million households. 62/ These owned and affiliated broadcast stations playa key role in HSN's strategic coverage objectives, as they are used to fill gaps in markets where cable and DBS penetration rates are understood by
HSN to be low. Moreover, while HSN is not currently a licensee ofany full power television stations nor are any of its current affiliates full-power broadcast television stations, market conditions in the future may be such that HSN would again add full power television stations to its existing complement ofbroadcast stations. Any change in the must carry rights offull power home shopping stations would negate this opportunity and thus potentially prevent millions of consumers from reaping the benefits that home shopping programming so ably provides.
In response to the Commission's broader inquiry regarding the current number of broadcast stations that provide home shopping programming for the majority oftheir broadcast day, HSN has undertaken a survey ofthe top 100 DMAs to identify those broadcast television stations (full-power, Class A, and low power) that, as ofJune 21, 2007, broadcast 86 hours per week or more ofhome shopping programming. 63/ This survey identified a total of 73
62/ A list ofstations providing HSN programming is provided as Attachment 1 ofthe Declaration ofCynthia Spano, which is attached hereto as Exhibit A. Because HSN is the licensee ofonly low power television stations, which are not subject to the same type ofpublic interest obligations applicable to full-power television stations, HSN is not in a position to comment on the provision ofchildren's programming and other public interest programming. In the event that HSN becomes a full-power broadcast licensee in the future, HSN would ensure that its full power stations meet their public service obligations as HSN did before when it was a licensee offull-power television stations and as would any broadcaster who understands the need to maintain its most precious asset - its FCC license. 63/ See Attachment 2 ofthe Declaration ofCynthia Spano, which is attached hereto as Exhibit A ("2007 Home Shopping Survey"). See also the Declaration ofCynthia Spano (detailing methodology ofestimation ofhousehold reach). Because the Public Notice seeks an updated record as to home shopping stations, the 2007 Home Shopping Survey includes programming expressly listed as home shopping in the resources that were used to compile the survey. Paid programming was not included in the study, notwithstanding that such programming is also subject to Section 4(g) ofthe Cable Act. See 47 U.S.C. § 534(g) (Section applies to stations "predominantly utilized for the transmission ofsales presentations orprogram
20 broadcast stations predominantly broadcasting home shopping programming with a combined reach to an estimated 44.4 million television households. 64/ That the market supports such a wide range ofhome shopping programs across so many DMAs is evidence alone ofthe value of home shopping stations to the public.
The fact that there are now a number ofother networks that provide home shopping television programming 65/ is further evidence that the public at large desires and values the services provided by home shopping television programming. 66/ Unlike "brick-and- mortar" store shopping, home shopping enables consumers to obtain in-depth information about product features and watch product demonstrations. In this regard, the home shopping format affords HSN and similar programmers the ability to educate consumers about appropriate uses for a product - information that often is not provided in more traditional commercial broadcast formats. This level of information - and the manner in which it can be provided - is helpful to customers. In short, home shopping programming plays a critical role for consumers that ordinary broadcast television, multichannel distribution platforms, and the Internet often cannot.
Home shopping programming is also a resource for individuals who lack easy access to the Internet for detailed consumer information and the convenient ordering ofproducts, thus helping to bridge the "digital divide." Homebound individuals, for example, value home length commercials") (emphasis added). As a consequence, the 2007 Home Shopping Survey likely understates the total number ofstations that broadcast the type ofprogramming subject to Section 4(g) for more than 86 hours per week. 64/ Id. 65/ Other major home shopping programming networks include QVC, ShopNBC (ValueVision), Jewelry TV, and Shop at Home. 66/ See also 1993 R&D at 5326-27 [~27] ("[T]he record clearly demonstrates that market forces have revealed a desire among a significant number oftelevision viewers for home shopping programming. We find no reason to believe that home shopping stations would survive in an increasingly competitive video marketplace ifviewers were dissatisfied with their level ofcommercialization").
21 shopping programming for its convenience and entertainment qualities. The Commission found this to be the case in 1993 and it remains true to this day. In this regard, HSN has included here two recent customer testimonials demonstrating precisely this benefit. 67/ Home shopping stations were pioneers in interactive television and may serve as a model for additional consumer-oriented technological innovation. 68/ In sum, even more so than in 1993, home shopping programming continues to be valued by the public and continues to be a source of innovation.
67/ See, e.g., Statement ofBarbara Ann Rau (attached hereto as Exhibit B) ("Home shopping television enables me to accomplish things that would otherwise be impossible. I am like a prisoner within my own home with my disability and the service that home shopping television provides is like a lifeline to me."); Statement ofBarbara Libman (attached hereto as Exhibit C) ("HSN has made my quality oflife much better knowing that ifI need to do some shopping, I don't have to worry about finding help getting to the store, getting around the store, and getting home from the store ... "). 68/ For example, last fall HSN launched the nation's first shop-by-remote system for digital television customers, enabling HSN viewers who have pre-registered credit card information with the company to buy products via their television's remote control. See Mindy Fetterman, HSN to Offer Point and Shop By TV Remote, USA Today, Aug. 14,2006, accessible at http://www.usatoday.com/tech/products/2006-08-13-hsn-remote-shopping_x.htm; see also Anne D'lnnocenzio, HSN to Launch Shop-By-Remote TVService, msnbc, Aug. 14,2006, accessible at http://www.msnbc.msn.com/id/14346619/ (referencing analogous services in Great Britain and Asia and noting that HSN's purchase-by-remote technology "is the first service ofits kind being offered in the U.S.").
22 VI. CONCLUSION
For the foregoing reasons, as a maner ofprocess under the Cable Act, umll:r its
administrative duties pursuant to the Administrative Procedure Act, and to be consistent with the constitutional guarantees in the First Amendment, the Commission must affinn its 1993 R&O and deny the Petition.
Respectfully submitted,
HOME SHOPPING NETWORK, INC. B~~~ Jame . Warner Vice President and Secretary
Home Shopping Network, Inc. One HSN Drive St. Petersburg, Florida 33729 Tel: (727) 872-1000 Fax: (727) 872-6866 E-mail: [email protected]
July 18, 2007
23 Exhibit A Declaration of Cynthia Spano Declaration of Cynthia Spano
I, Cynthia Spano, do hereby declare:
1. I have been employed by a subsidiary ofHome Shopping Network, Inc. ("HSN") for over 18 years. For the past 10 years I have served as the Director ofBroadcast Affiliate Sales. As the Director ofBroadcast Affiliate Sales, my primary duty is to maintain and manage relationships with current HSN affiliates and assist HSN in developing new affiliate relationships.
2. Attached hereto as Attachment 1 is a list ofstations, as ofJune 21, 2007, that carry HSN programming, including (i) stations that are owned and operated by HSN affiliate Ventana Television, Inc. and (ii) stations that carry HSN programming via affiliation agreements. Via these 74 television stations, HSN's home shopping programming is delivered over-the-air to approximately 26.5 million households in a total of60 DMAs.
3. In response to the Federal Communications Commission's request for information regarding the current number ofbroadcast stations that provide home shopping programming for the majority ofthe day, I, with the assistance ofa staff member acting at my instruction and under my supervision, have conducted a survey to identify full power, low power, and Class A broadcast stations in the top 100 Nielsen Designated Market Areas ("DMAs") that broadcast 86 or more hours per week ofhome shopping programming. The results ofmy survey are attached hereto as Attachment 2.
4. The following resources were utilized to compile the information for the survey: backchannelmedia, Media Access Pro (BIA Financial Network), RadioStationWorld, TV Guide, and the publicly-accessible online databases ofthe Federal Communications Commission, the U.S. Census Bureau, and U.S. Postal Service. I also used as resources the websites ofHSN, Shop at Home, and ShopNBC.
5. The survey includes only those stations that as ofJune 21, 2007 had their programming described in one or more ofthe foregoing resources as home shopping programming. Programming that was described as "paid programming" was excluded from the survey. To the extent "paid programming" consists ofinfomercials this survey represents a conservative estimate ofthe total number ofbroadcast stations that air "sales presentations or program length commercials" for the majority ofthe broadcast day.
6. The survey provides an estimate ofthe number ofhouseholds reached by each ofthe stations identified through the above-described approach. For full power stations, the survey reports the number ofhouseholds in the DMA ofthe station. Because DMA households would not be an accurate measure for low power stations, I estimated the number ofhouseholds in the Grade A contour service area ofeach low power station. For low power stations that are currently HSN-associated stations (including both owned and operated stations and affiliated stations), I relied on HSN's existing engineering coverage maps and interference studies, which includes an estimate ofthe household reach ofeach station. I also used HSN's engineering data, where available, for former and prospective HSN affiliates. HSN engineers use V-Soft engineering software to review stations prior and during affiliation. For all other low power stations, I used
1 Media Access Pro (BIA Financial Network software) to determine the estimated population ofeach station's coverage area and I used the Census Bureau's databases to obtain the population-per-home statistic for the station's city oflicense. I then divided the population in the station's coverage area by the population-per-home to estimate the number ofhouseholds reached by the low power television station. For example, WANN-LP in Atlanta is listed in Media Access Pro as reaching 293,093 people in its Grade A contour service area and the Census Bureau's database reports that the population-per-home in Atlanta is 2.3, which yields an estimated 127,432 households.
7. In the top 100 DMAs, HSN broadcasts home shopping programming for more than 86 hours per week on 58 television stations and reaches approximately 25.5 million households. Through the survey, I was able to determine that, including the HSN-owned or affiliated stations, in the top 100 DMAs there are a total of 73 television stations broadcasting home shopping programming for 86 hours or more per week with a combined reach to an estimated 44.4 million television households.
[The remainder ofthis page is intentionally blank.]
2 I understand that this statement may be submitted by Home Shopping Network, Inc. to the Federal Communications Commission in connection with a proceeding to determine whether home shopping programming serves the public interest. I hereby declare under penalty of perjury that the foregoing is true and correct to the best ofmy knowledge, information, and belief.
Signature: C IJ£j) Printed Name~:f2!/LtrJ/trf fjJJ1ii2 Executed on July 18, 2007
3 Attachment 1
HSN Owned or Affiliated Stations!
! Rank 'Market City of License State Station O&O/Affiliate CH i TVim~ '-- - --'-- I New York New York NY W60AI-LP 0&0 60 4,709,193 2 Los Angeles Island Empire CA KHTV-LP Affiliate 67 2,491,484 3 Chicago Arbury Hills IL W46DM-LP Affiliate 46 1,277,594 4 Philadelphia Springville PA WNAI-LP Affiliate 41 731,668 5 San Francisco-Oak-San Jose San Francisco CA KFTL-CA Affiliate 28 1,110,837 6 Dallas-Ft. Worth Corsicana TX K25FW-LP 0&0 25 748,298 7 Boston (Manchester) Leicester MA WCRN-LP Affiliate 34 47,797 9 Atlanta Atlanta GA W23DN-LP 0&0 23 270,472 12 Tampa-St. Pete (Sarasota) Orient City FL WI5CM-LP Affiliate 15 270,211 12 Tampa-St. Pete (Sarasota) St. Petersburg FL W33CC-LP 0&0 33 162,632 13 Phoenix (Prescott) Phoenix AZ K25DM-LP Affiliate 25 236,094 13 Phoenix (Prescott) Mesa AZ K57HX-LP Affiliate 57 489,135 15 Minneapolis-St. Paul Minneapolis MN K67HG-LP 0&0 67 792,995 16 Miami-Ft. Lauderdale West Gate FL WI6CC-LP Affiliate 16 479,236 17 Cleveland-Akron (Canton) Cleveland OH WXOX-LP Affiliate 65 724,522 18 Denver Denver CO KHDT-LP Affiliate 45 804,011 20 Sacramnto-Stkton-Modesto Sacramento CA KEZT-CA Affiliate 23 436,127 20 Sacramnto-Stkton-Modesto Modesto CA KEXT-CA Affiliate 27 240,998 21 St. Louis St. Louis MO KPTN-CA Affiliate 7 629,963 21 St. Louis St. Louis MO K38HD-LP 0&0 21 504,566 22 Pittsburgh Pittsburgh PA W6ICC-LP Affiliate 61 137,677 23 Portland, OR Portland OR KORK-CA Affiliate 35 748,388 23 Portland, OR Astoria OR K28FP-LP Affiliate 28 16,518 29 Raleigh-Durham (FayetvlIe) Raleigh NC W58CD-LP 0&0 58 206,718 2 30 Nashville Nashville TN WRMX-LP/WJDE-CA Affiliate 12/24 102,986 31 Kansas City Kansas City MO K45IO-LP 0&0 45 580,463 32 Columbus,OH Columbus OH WDEM-CA Affiliate 17 269,878 32 Columbus,OH Ludington OH W43BZ-LP 0&0 43 278,147 37 San Antonio San Antonio TX KSAA-LP Affiliate 28 269,909 40 Birmingham (Ann and Tusc) Birmingham AL W34BI-LP 0&0 34 96,129 42 Norfolk-Portsmth-Nwpt Nws Portsmouth VA W56CS-LP 0&0 56 351,566 43 Las Vegas Las Vegas NV KGNG-LP Affiliate 47 558,591 44 Memphis Memphis TN W67CV-LP Affiliate 26 290,411 45 Albuquerque-Santa Fe Albuquerque NM KTFA-LP Affiliate 48 345,486 45 Oklahoma City Oklahoma City OK KTOU-LP Affiliate 21 284,228 48 Louisville Louisville KY W50CI-LP Affiliate 50 39,422
Information as ofJune 21, 2007. WRMD-LP and WJDE-CA are operated by the same owner and HSN counts the stations together as one station in its database. Rank Market City of License State tation O&O/Affiliate CH TVHHs _.. _---,,--"---"--,-,-- 49 Buffalo Buffalo NY WBXZ-LP Affiliate 56 326,555 50 Jacksonville Jacksonville FL W36AY-LP 0&0 36 126,205 54 New Orleans New Orleans LA K47JO-LP 0&0 47 471,910 55 Fresno-Visalia Fresno CA KHSC-LP Affiliate 16 323,238 59 Mobile-Pensacola (Ft Walt) Mobile AL W30BX-LP 0&0 30 146,528 59 Mobile-Pensacola (Ft Walt) Pensacola AL WI9CO-LP 0&0 19 92,177 60 Knoxville Knoxville TN W56CM-LP 0&0 56 123,271 62 Tulsa Tulsa OK K39CW-LP 0&0 39 158,719 65 Charleston-Huntington Huntington WV WI7BH-LP 0&0 17 33,321 67 Wichita-Hutchinson Plus Wichita KS KI5DD-LP 0&0 15 173,702 68 Roanoke-Lynchburg Roanoke VA W44CL-LP 0&0 44 84,266 70 Tucson (Sierra Vista) Tucson AZ K21CX-LP 0&0 21 220,953 71 Toledo Toledo OH W38DH-LP 0&0 38 174,336 73 Des Moines-Ames Des Moines 1A K4IDD-LP 0&0 41 166,976 77 Spokane Spokane WA K43GZ-LP 0&0 43 141,751 78 Rochester, NY Rochester NY WHSH-CA Affiliate 36 200,443 78 Rochester, NY Rochester NY WAWW-LP Affiliate 38 204,075 79 Syracuse Syracuse NY WHSU-CA Affiliate 51 180,817 81 Shreveport Shreveport LA K67FD-LP 0&0 67 129,063 82 Champaign- Spmgfld-Decatur Champaign 1L W39BH-LP 0&0 39 75,214 82 Champaign- Spmgfld-Decatur Springfield 1L W33AY-LP 0&0 33 84,524 94 Colorado Springs-Pueblo Broadmoor CO KI4MH-LP Affiliate 14 165,005 101 Evansville Evansville IN WJPS-LP Affiliate 4 23,309 118 Boise Boise 1D KBSE-LP Affiliate 33 180,793 120 Eugene Eugene OR KORY-CA Affiliate 41 130,806 120 Eugene Coos Bay OR K49DM-LP Affiliate 49 15,662 120 Eugene Roseburg OR K25FG-LP Affiliate 25 17,056 126 Bakersfield Bakersfield CA KBFK-LP Affiliate 36 150,617 129 Corpus Christi Corpus Christi TX KXCC-CA Affiliate 45 121,589 131 Amarillo Amarillo TX K64GK-LP Affiliate 64 77,470 141 Medford-Klamath Falls Ashland OR K39EF-LP Affiliate 39 58,991 141 Medford-Klamath Falls Grants Pass OR K20DT-LP Affiliate 20 22,056 141 Medford-Klamath Falls Klamath Falls OR K39DP-LP Affiliate 39 19,343 147 Lubbock Lubbock TX K24GP-LP Affiliate 24 68,777 159 Odessa-Midland Midland TX K691T-LP Affiliate 69 54,919 194 Bend, OR Bend OR KABH-CA Affiliate 15 36,651 194 Bend, OR Redmond OR K25GA-LP Affiliate 25 47,949 205 Victoria Victoria TX K39HB-LP Affiliate 39 28,491
Total 26,591.9 Attachment 2
Stations in the top 100 DMAs that carry 86 or more hours of home shopping programming per weekI
. 2 Rank DMA . Station ...... Service . .. Network . Est HrlWk. . Est HHs (0000) .' I New York W60AI-LP Low power HSN 168 4,709.1 2 Los Angeles KHTV-LP Low power HSN 161 2,491.4 2 Los Angeles KJLA Full power JTV 89.5 5,61 I.I 2 Los Angeles KSGA-LP Low power JTV 89.5 (see above)j 2 Los Angeles KSMV-LP Low power JTV 89.5 (see above)4 3 Chicago W46DM-LP Low power HSN 168 1,277.5 4 Philadelphia WNAI-LP Low power HSN 168 731.6 5 San Francisco-Oak-San Jose KFTL-LP Low power HSN 90 1,110.8 6 Dallas-Ft. Worth K25FW-LP Low power HSN 168 748.2 7 Boston (Manchester) WWDP Full power SNBC 167 2,372.0 7 Boston (Manchester) WCRN-LP Low power HSN 168 47.7 9 Atlanta W23DN-LP Low power HSN 168 270.4 9 Atlanta WANN-LP Low power JTV 168 127.4 II Detroit WADL Full power JTV 86 1,938.3 12 Tampa-St.Pete (Sarasota) W33CC-LP Low power HSN 168 162.6 12 Tampa-St.Pete (Sarasota) WI5CM-LP Low power HSN 168 270.2 12 Tampa-St.Pete (Sarasota) WVEA-LP Low power JTV 168 688.2 13 Phoenix (Prescott) K25DM-LP Low power HSN 168 236.0 13 Phoenix (Prescott) K57HX-LP Low power HSN 168 489.1 14 Seattle-Tacoma KBCB Full power SNBC 164 1,724.4 14 Seattle-Tacoma KHCV-DT Full power JTV 164 1,724.4 15 Minneapolis-St. Paul K67HG-LP Low power HSN 168 792.9 16 Miami-Ft. Lauderdale WI6CC-LP Low power HSN 168 479.2 17 Cleveland-Akron (Canton) WXOX-LP Low power HSN 168 724.5 18 Denver KHDT-LP Low power HSN 168 804.0 20 Sacramnto-Stkton-Modesto KEZT-CA Class A HSN 162 436.1 20 Sacramnto-Stkton-Modesto KEXT-CA Class A HSN 162 240.9 20 Sacramnto-Stkton-Modesto KSTV-LP Low power JTV 168 161.5 21 St. Louis K38HD-LP Low power HSN 168 504.5 21 St. Louis KPTN-CA Class A HSN 162 629.9 22 Pittsburgh WQEX Full power SNBC 164 1,163.1 22 Pittsburgh W6ICC-LP Low power HSN 164 137.6 23 Portland, OR K28FP-LP Low power HSN 168 16.5 23 Portland, OR KORK-CA Class A HSN 162 748.3 26 Charlotte WHKY Full power JTV 95 1,045.2 29 Raleigh-Durham (Fayetvlle) W58CD-LP Low power HSN 168 206.7
Information as ofJune 21, 2007. Key to network abbreviations: HSN = Home Shopping Network; JTV = Jewelry TV; SNBC = ShopNBC KSGA-LP is a translator ofKJLA. KSMV-LP is a translator ofKJLA. Rank DMA Station Service Network2 Est Hr/Wk Est HUs (000t) 30 Nashville WRMX- Low power HSN 165 102.9 5 LP/WJDE-CA /Class A 30 Nashville WJFB Full power JTV 156 944.1 31 Kansas City K45IO-LP Low power HSN 168 580.4 32 Columbus, OH W43BZ-LP Low power HSN 168 278.1 32 Columbus, OH WDEM-CA Class A HSN 165 269.8 34 Milwaukee WJJA Full power JTV 136 882.9 37 San Antonio KSAA-LP Low Power HSN 168 269.9 40 Birmingham (Ann and Tusc) W34BI-LP Low Power HSN 168 96.1 42 Norfolk-Portsmth-Nwpt Nws W56CS-LP Low Power HSN 168 351.5 43 Las Vegas KGNG-LP Low Power HSN 164 558.5 43 Las Vegas KLSV-LP Low Power JTV 168 568.6 44 Memphis W67CV-LP Low Power HSN 168 290.4 45 Albuquerque-Sante Fe KTFA-LP Low Power HSN 168 345.4 45 Oklahoma City KTOU-LP Low Power HSN 168 284.2 48 Louisville K50CI-LP Low Power HSN 168 39.4 49 Buffalo WBXZ-LP Low Power HSN 161 326.5 50 Jacksonville W36AY-LP Low Power HSN 168 126.2 54 New Orleans K47JO-LP Low Power HSN 168 471.9 55 Fresno-Visalia KHSC-LP Low Power HSN 168 323.2 59 Mobile-Pensacola (Ft Walt) W30BX-LP Low Power HSN 168 146.5 59 Mobile-Pensacola (Ft Walt) WI9CO-LP Low Power HSN 168 92.1 60 Knoxville W56CM-LP Low Power HSN 168 123.2 62 Tulsa K39CW-LP Low Power HSN 168 158.7 65 Charleston-Huntington WI7BH-LP Low Power HSN 168 33.3 67 Wichita-Hutchinson Plus KI5DD-LP Low Power HSN 168 173.7 68 Roanoke-Lynchburg W44CL-LP Low Power HSN 168 84.2 70 Tucson (Sierra Vista) K21CX-LP Low Power HSN 168 220.9 71 Toledo W38DH-LP Low Power HSN 168 174.3 73 Des Moines-Ames K41DD-LP Low Power HSN 168 166.9 77 Spokane K43GZ-LP Low Power HSN 168 141.7 78 Rochester, NY WHSH-CA Class A HSN 161 200.4 78 Rochester, NY WAWW-LP Low Power HSN 162 204.0 79 Syracuse WHSU-CA Class A HSN 161 180.8 81 Shreveport K67FD-LP Low Power HSN 168 129.0 82 Champaign-Spmgfld-Decatur W39BH-LP Low Power HSN 168 75.2 82 Champaign-Spmgfld-Decatur W33AY-LP Low Power HSN 168 84.5 94 Colorado Springs-Pueblo KI4MH-LP Low Power HSN 168 165.0
Top 100 DMAs 44,485.7
WRMD-LP and WJDE-CA are operated by the same owner and HSN counts the stations together as one station in its database. Exhibit B Statement ofBarbara Ann Rau Statement of Barbara Ann Rau
I, Barbara Ann Rau, do hereby state:
1. I live at 6456A 223rd Place, Oakland Gardens, NY 11364-2330. I am in my mid-50s. I graduated from college with a medical assistant degree.
2. Just prior to 9-11, I was diagnosed with Chronic Obstructive Pulmonary Disease (COPD) and have since gone on disability. My disease has now progressed to the point where I have difficulty leaving the house and I would say that I am currently about 90 percent homebound. Being disabled makes everything a challenge and a hazard. I do not have family around to help me with my shopping needs and I can't go to the store myself. Very few places have wheelchairs with baskets and many so-called "handicap accessible" places are actually not very accommodating to the disabled.
3. I purchase all kinds ofproducts through home shopping television. All I have to do is pick up the phone and call HSN. I get clothing, jewelry, appliances, and even food. Suzanne Somers' natural meat products are better than anything I can get at the local grocery store.
4. I rely on HSN's customer service representatives for help. When ordering clothes, for instance, they tell me what sizes are available and what are the color options. They tell me on the phone all the information that I need. I have found the quality ofthe merchandise to be excellent. Ifthere's ever a problem, Ijust call them and they help me. HSN is such a reliable, convenient service for people like me.
5. Home shopping television enables me to accomplish things that would otherwise be impossible. I am like a prisoner within my own home with my disability and the service that home shopping television provides is like a lifeline to me. I do not have a computer so I do everything over the phone. It may not seem like it to the average healthy person, but, when you are stuck like I am, having access to home shopping television is fantastic. All I have to do is pick up the phone to call them up and a few days later my stuffwill be at my door. HSN is not simply a store to me, it is an invaluable service. It makes my life much better.
I understand that this statement may be submitted by Home Shopping Network, Inc. to the Federal Communications Commission in connection with a proceeding to determine whether home shopping programming serves the public interest. I declare under penalty ofperjury that the foregoing is true and correct. /J ,,2 r/2 l~}, Signature: /1t..l!?JOO/Uf..J frf7./)J, ) b .' / 7 / . Printed Name: 13~Be,EJ\\e- til\D B~~t1U
Executed on July lL, 2007 Exhibit C Statement ofBarbara Libman Statement of Barbara Libman
I, Barbara Libman, do hereby state:
1. My permanent address is 14224 38th Avenue Apartment 509, Flushing, NY 11354-5502. I am 65 years old. I used to be a real estate agent and I really enjoyed my job because I love working with people. I did that for about 15 years and then I started having hip problems and I had to stop working. I have hip dysplasia, a condition that will require surgery in the near future. I am disabled now and I am confined to my house most ofthe time.
2. It is difficult for me to get to stores. Any shopping that I do outside ofthe house requires assistance. I have to depend on a friend ofmine or a neighbor to drive me. Even when I get to the store, I have to use a cane and it is difficult for me to walk around. Standing in line is a serious problem for me.
3. I do not have a computer and I am computer illiterate so shopping online is not an option. I do most of my shopping through television. My television is on 24/7. I do not shut it offat night. I know there are others that are watching at all times too, because if I call HSN at 5 a.m. in the morning to order something, sometimes I get put on hold. There are a lot ofpeople that are disabled, people that have insomnia, and people with other problems and they are awake and calling too.
4. Home shopping television gives me something to look forward to. I wait for my packages to come. I'm best friends with the UPS delivery man. With HSN, I am able to do my shopping from home and enjoy the experience. If I did not have HSN to watch, I'd be sitting in the house all day with nothing to do. The network is like a family to me. I know all ofthe hosts by name and my voice even has been heard on television a few times when I have called in to order items.
5. I have purchased a wide range ofproducts from HSN. I buy electronics, jewelry, and clothes. Some people who drive me call me the "Jewelry Queen of HSN" because every time they see me I am wearing jewelry. It gives me pleasure. I even do all ofmy Christmas shopping through television. HSN has made my quality of life much better knowing that if! need to do some shopping, I don't have to worry about finding help getting to the store, getting around the store, and getting home from the store-HSN is there for me all ofthe time.
6. The importance ofHSN in my life was revealed to me after 9-11, when the broadcast was interrupted for an extended period oftime because the antenna was on one ofthe twin towers. I missed HSN when it was not available. When you are confined to the house, it is important to have an outlet. HSN is my outlet. It really gives me something to look forward to. I understand that this statement may be submitted by Home Shopping Network, Inc. to the Federal Communications Commission in connection with a proceeding to determine whether home shopping programming serves the public interest. I declare under penalty ofperjury that the foregoing is true and correct. ~
Signature: ~~ PrintedNam~...ecC54~ L/$/?/4?~
Executed on JUlY~, 2007 CERTIFICATE OF SERVICE
I, Janet Davis, hereby certify that on this 18th day ofJuly, 2007, I caused to be served a true copy ofthe foregoing Comments by overnight delivery upon the following:
Andrew Jay Schwartzman Media Access Project 1625 K Street, NW Suite 1000 Washington, DC 20006 Counsel to the Center for the Study ofCommerciaJism