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FCC Won't Make Cablevision Carry GSN on Basic During Carriage Complaint Process

The FCC said that it won't force Cablevision to restore Game Show Network to its basic tier while the FCC is vetting GSN's program carriage complaint against the cable operator.

The FCC's Media Bureau, which issued that decision Wednesday, based it on a four-factor test: "(1) whether the complainant is likely to prevail on the merits of its complaint; (2) whether the complainant will suffer irreparable harm absent a stay; (3) whether grant of a stay will not substantially harm other interested parties; and (4) whether the public interest favors grant of a stay."

The FCC said GSN has the burden of proof as the complaining party.

"Applying the factors set forth above," the bureau said, "we conclude that GSN has failed to satisfy its burden of demonstrating that interim relief is warranted. The bureau said that GSN "did not demonstrate that it was likely to prevail on the merits of its complaint," but said whether it prevailed or not was based on facts still at issue.

Since the FCC was not persuaded that not granting temporary carriage would cause irreparable harm, particularly since GSN waited to file the complaint, and since the public interest call "did not sharply tilt" in either direction, GSN had a "heavy" burden to show it as likely to prevail on the merits. The bureau said there remained "numerous factual issues" to be resolved regarding the first two factors, and that "based on the limited record at this early stage in the complaint proceeding, the first factor neither favors nor disfavors granting the relief requested," which did not meet that "heavy burden." The bureau did not elaborate on its consideration of factor three.

GSN filed the complaint Oct. 12, alleging Cablevision discriminated against it by moving it to a premium sports tier, which cost the channel eyeballs, while favoring similarly situated networks We TV and Wedding Central, in which Cablevision has a financial interest. It wants the agency to force Cablevision to carry the network on what it says are "nondiscriminatory terms and conditions" and pay a fine. FCC rules prevent an MVPD from discriminating against unaffiliated nets in favor of ones in which it has a financial interest.

GSN says Cablevision's migration of the channel last February from the basic tier to a male-targeted sports tier estranged GSN from its primarily female audience. GSN maintains that move was inconsistent with other operators who carry the network on basic, rather than specialty tiers, and that the move favored its similarly-situated affiliated networks, We TV and spin-off Wedding Central, which it did not also reposition. Wedding Channel, which launched in August 2009, was shut down on July 1 as part of AMC Networks' spinoff from Cablevision.

At the same time GSN filed the complaint, it petitioned for temporary relief pending the outcome of its complaint, asking for the basic carriage it was receiving on Cablevision prior to Jan. 31, 2011.

Cablevision opposed the relief, arguing the complaint is moot because it was filed after the one-year statute of limitations, and that even if it weren't, We TV and Wedding Central were not "similarly situated" just because, like GSN, they have a significant female audience. By contrast, it said, those nets are specifically targeted to women. Mincing no words, Cablevision said it moved GSN to a premium tier because it saved money and the channel was of little added value to its basic tier, said the FCC.

The FCC recently approved changes to its programming carriage rules going forward that will provide for interim carriage in some circumstances, but it does not apply to complaints already in the pipeline.