The fight goes for reconsideration of the FCC’s 12/16/13 ruling denying must carry for WEYW-LP Key West, FL. Rick Bellizzi, CEO of Bellizzi Broadcasting sent a filing for reconsideration in on 1/15. Now there has been another filing, a previous lawsuit surfacing from another local broadcaster vs. Comcast and another filing from another LP in Key West, supporting Bellizzi. Bellizzi shared them with RBR-TVBR.
Steven Broeckaert, Senior Deputy Chief, Policy Division, Media Bureau, denied a complaint filed 9/20 by Bellizzi against Comcast for refusing to air WEYW because there is another full power television broadcast station licensed to the community within the county served by the cable system. WEYW’s argument is the two full-power stations licensed to the same community provide only Spanish language programming and broadcast from studios over 120 miles north of these stations’ transmitter sites. They are WGEN [MundoFox] and WSBS [MegaTV].
Here is Bellizzi’s latest emails and filing to Broeckaert:
WEYW – Channel 19 Appeal
Dear Mr. Broeckaert,
As you are aware, WEYW In January of this year filed an appeal in response to the FCC’s denial of our must carry request in December 2013. As the original complaint states, WEYW is the only English language low power station in Monroe county. The other, full power English language stations are located 150 miles away in Miami and do not service Monroe County with local content. The other two low power stations granted must carry in 2006 do not service the community of origin either, they are also located in Miami and broadcast 100% Spanish language. It is obvious these stations were granted a waiver to move these studios to Miami as there were not enough Spanish language stations in the Miami market, where 65% of the population is Spanish speaking. As you are aware, the cable company installed cable in this county in the early 1990’s. The translator stations in the Keys, broadcasting the Miami stations were then put in silent domain. As the other low power stations still do not give the county full over the air coverage, my intent is to put four low power translator stations 25 miles apart from Key West to Mile Marker 100, broadcasting seven streams of SD video to cover the entire population of the keys over the air. As you are aware, we are in hurricane prone area, and when hurricanes have come through in the past, ie: Andrew, Georges and Wilma, the cable system has been taken down. It can take as much as 3-6 weeks to restore the cable system. With our over the air broadcast, we will be able to continue full coverage to the county to anyone with an indoor antenna. All transmitter sites will have backup generators and fiber optic connections to keep them on the air with any loss of power. We will be the only station with the ability to provide over the air emergency alert broadcasts. The only emergency broadcast available in a power outage at this time in the keys is FM radio, no one station covers the entire county. We currently provide the only local content to Monroe County. This is filling a crucial gap where no one else is providing service in the event of an emergency to our community.
The list of licenses that will provide this over the air network is below:
Mm = mile marker in the Keys Overseas Highway (Route 1)
WEYW Channel 19 @ mm 4
WTVK – Channel 31 @mm 20
W18DU-D Channel 18 @mm 60
W20DT Channel 20 @mm 100
We have two additional CP permits, to be constructed, additionally we have:
WDFL – Channel 18 @mm150
This will allow us to have the only stations providing full indoor coverage for television for a broadcast range of 200 miles.
One of our CP permits is about to expire. We need to begin constructing this network of translators, your decision to grant our must carry will give us the ability to proceed with this endeavor. This will be a costly process, but I believe it to be critical for the Miami DMA and Monroe County to have this network of stations, to inform the public if and when an emergency should arise.
If you have any further questions, please call me.
Best regards,
RICK BELLIZZI
WEYW CHANNEL 19
Dear Mr. Broeckaert,
On this past Tuesday, I sent you an email outlining the necessity of low power television in the Florida Keys. Then next day, Mary Sporacio from WTVK sent you her email regarding the same issues with Comcast. Now, today, I am sending you a copy of a complaint filed in Federal Court from WCAY this past August with yet again the same issues of poor practices with Comcast. WCAY bypassed the FCC on this complaint because they realized that maybe the commission has no real power over these issues. It is ironic that Comcast is now requesting to purchase Time Warner, making them an even bigger monopoly in the cable industry. Soon, if this conglomerate is allowed to continue domination of how we watch television, there will be no purpose for over the air television – full or low power. It appears, at least in our little corner of the world, that the cable industry dominates not only what is seen on television, but they also appear to be doing their best to eliminate free over the air television.
Please read WCAY’s complaint, attached below and if necessary, I can provide you with two additional stations stories, who are now, also, out of business in Monroe County.
Thank you for your time.
RICK BELLIZZI
WEYW CHANNEL 19
From Mary Sporacio of WTVK, Key West:
Dear Mr. Broeckaert,
Low Power Television can be a powerful communication tool to inform and unite diverse neighborhoods through understanding and to help local organizations reach the public. Please grant WEYW must carry. We need to survive to continue to impact our string of rural communities on the Florida Keys, Monroe County.
Rick Bellizzi and I have a dream to inform and bring together the diverse and scattered communities of the Florida Keys in what was the original intent for establishing Low Power Television in America. This is very personal for me, and a subject about which I am very passionate. I have associated my station and permits with Rick Bellizzi.
WTVK 31 – Key West, Stock Island
Layton, FL – A construction permit (W20DC): until February 24, 2014. I am requesting a small extension today through my lawyer Lee Peltzman.
Key West, Downtown, (La Concha) (W15DL-D) – A construction permit
Marathon, FL (W18DU-D): – A construction permit.
Combined with Rick Bellizzi’s stations we hope to reach throughout the Florida Keys. WEYW is based in Monroe County the other Must Carry’s are not.
The Florida Keys and Monroe County are a series of remote rural communities spread out over more than 1,700 islands and thousands of square miles and over 50 bridges. The land area however is only 135 square miles and has a population concentration of around 560 per square mile and a resident population of around 70,000. Whilst Key West has around 30% of the population the rest is spread through the many villages and small clusters of population through the mainly unincorporated islands – many below 100 residents. Only the most densely populated areas have access to cable, which translates to less than 50% of the year-round population.
We must be on cable to sell Ads but the high cost of carriage is impossible to support.
Comcast has, rather than encourage and support the local communities, does everything it can to wipe out any small competition from Local TV. These local shows are what many folk would like to see, people in their own community.
WEYW is consistently in the communities with local information and events. We at WTVK, Key West covered Local High School Football, Gay Pride, The Red Show Drop on New Year’s Eve, the Drag Races, the Veteran’s Day parade Artists and Musicians, School children playing ball, The education at the local botanical gardens and Seniors events are all part of the “Good News” we desire to hear about in our corner of America on the Air and on Cable.
Following the devastation of Hurricane Katrina, WTVK was the only TV Station on over the Air or on Cable for several weeks. We had electric power in the Keys but were cut off from the North who had no power and the satellite dishes far away in Miramar, that would carry all other stations, blew down and took weeks to rebuild.
We set up the Camera and two chairs in the parking lot outside our transmitter tower and went Live for 5 hours. Officials came to us to reach the people. We could send a signal 5 miles away to the Comcast Head End and go on with emergency information. FEMA was on several times a day as was the Red Cross. We had so much information and interviews to relay to all the people of the lower Florida Keys. The first two days we broadcast for many, many hours telling people where to go for help and how to reach the Army corps of engineers to put on a Blue Roof. The City departments talked about many things people needed to hear and when they would come by your neighborhood to take away their every appliance that the storm surge had ruined. Our black stringer reporter reassured the black community that FEMA was okay to approach and we translated what information we could into Spanish. Then we played the happiest “Classic” movies to get peoples’ minds off their troubles until the next day when we started again with more info. We were on for two hours a night after that until the power came back on in Miami and the Newspaper could print again. We were Low Power TV in action.
Comcast did nothing. The other “Must Carry” stations did nothing they were all based 150 miles and more away in another County.
WEYW and WTVK serve Monroe County.
The Florida Keys is a diverse place. There are wealthy people but also a lot of poor folk that need TV over-the-air or on basic cable.
The advertising dollars in the Florida Keys can’t support the high rates Comcast Cable charges for Low Power TV to be carried. Yet we have to be also on cable to get any advertisers to survive.
The Armed Forces community is isolated, we’ve covered everything from children’s events to the Veterans Day parade, to Wounded Warriors. On November 11th we always have a recitation of “In Flanders Fields” and maintain a minute of silence for Armistice Day. Only small towns care about these values anymore. We serve our community.
Only Low Power Television like WEYW cares to cover the Good News, local events and can tell neighbors that there are neighbors that need help.
We are in need of a must carry license to take the money pressure off our dream of Community Television. The Florida Keys has not recovered as well as other parts of the Country. Unemployment is over 25% and property values are less than half of what they were in 2010. I lost my house. Rick struggles to make community TV work.
WTVK could no longer afford carriage and now WEYW struggles to pay to be on cable. Comcast admitted that they had overcharged WTVK by over $120,000 and told us to sue them for it – laughed at us. Their behavior has been unethical and probably illegal but we cannot afford to take them to court, as they will just keep delaying until we run out of money. They are right, we have. They did it to the other local stations they drove out of business by this and other dirty tricks.
My Construction Permit for Layton Florida will expire and we struggle to build it before the end of the month.
Please help us. We need Must Carry on WEYW.
Sincerely Yours,
Mary Sporacio, WTVK
Here’s a lawsuit from Key TV/WCAY-TV against Comcast filed in August for overcharging, breach of contract and more:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
KEY WEST DIVISION
CASE NO. 13-lOll9-CIV-MARTINEZ-McALILY
BEACH TV CABLE CO., INC.
D/B/A KEY TV
Plaintiff
v.
COMCAST OF FLORIDA/GEORGIA, LLC
DIB/ A COMCAST and JOHN DOE
Defendants
FIRST AMENDED COMPLAINT
Now comes Plaintiff Beach TV Cable Co., Inc. d/b/a Key TV (“‘Key TV”) by its
attorney and alleges as follows:
Parties And Jurisdiction
1. Key TV is a Florida corporation with its principal place of business in Florida.
2. Defendant Comcast of Florida/Georgia, LLC d/b/a Comcast (“Comcast’) IS a Delaware limited liability company with its principal place of business in Pennsylvania.
3. Defendant John Doe (‘John Doe”) is an unknown individual with managerial responsibility for Comcast. John Doe is, upon information and belief, a resident of Pennsylvania.
4. The Court has jurisdiction over the claims in this case pursuant to 28 U.S.C. § 1332 as there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000 exclusive of costs and interest.
5. The Court has jurisdiction over the claims in this case pursuant to 28 U.S.C. §1331 as Key TV’s claims arise under the laws of the United States.
Facts
6. Key TV owns and operates a television station serving the Florida Keys using the call letters WCAY-CD, Channel 36.
7. Key TV is licensed by the Federal Communications Commission (“FCC”) to broadcast over-the-air in parts of Monroe County.
8. The programming broadcast by Key TV pursuant to its license consists of locally originated programming directed to residents and tourists in the Florida Keys (the “Key TV Programming”).
9. Specifically, but not by way of limitation, the Key TV Programming consists of locally produced videos that feature local restaurants, hotels, events, facilities, activities, news, weather and other information that is of interest to residents and tourists in the Florida Keys.
10. Comcast owns and operates a cable television system that serves Monroe County Florida, including the Florida Keys (the “Cable System”).
11. Starting on or about January 1, 2008, Key TV and Comcast entered into an agreement pursuant to which Defendant carried Key TV Programming on the Cable System as required by 47 U.S.C. §532 (the -‘2008 Agreement”). A copy of the January 1, 2008 agreement is attached as Exhibit “A.”
12. An agreement required by 47 U.S.C.§532 is commonly known as a Leased Access Agreement. The terms and conditions of a Leased Access Agreement, including rates, are regulated by 47 U.S.C. §532 and the FCC.
13. The 2008 Agreement is a Leased Access Agreement.
14. From 2008 through 2012, Comcast carried Key TV Programming on the Cable System pursuant to the 2008 Agreement and 47 U.S.C. §532.
15. From 2008 through 2012, Comcast received from Key TV cash and advertising services having a total value in excess of$871,000 for the carriage of Key TV Programming in on the Comcast Cable System.
16. The consideration received by Comcast exceeded the charges permitted by the FCC and 47 U.S.C. §532 in an amount to be determined but at least $283,000.
17. Key TV has been damaged by Comcast’s unlawful receipt of consideration in excess of the amounts permitted by law in an amount to be determined but at least $283,000.
18. In or about March 2012, Comcast called Key TV and advised Key TV that Comcast had overcharged Key TV for the carriage of Key TV Programming on the Cable System from 2008 to March 2012.
19. Key TV provided advertising services to Comcast from 2010 through 2012 having a total value of at least $258,000 (the “Advertising Charges”).
20. Comcast knew about and accepted the advertising services covered by the Advertising Charges.
21. Comcast is liable for payment of the Advertising Charges pursuant to the 2008 Agreement and 42 U.S.C §532.
22. Comcast refuses to accept responsibility for payment of the Advertising Charges.
23. Upon information and belief, Comcast knew prior to March 2012 that it was overcharging Key TV for the carriage of Key TV Programming on the Cable System.
24. Upon learning of the overcharges, Comcast had a duty to immediately notify Key TV about the overcharges.
25. Comcast failed to immediately notify Key TV about the overcharges.
26. Upon learning of the overcharges, Comcast had a duty to promptly remit all undisputed overcharges to Key TV.
27. Comcast failed to promptly remit undisputed overcharges to Key TV. Instead, Comcast retained the undisputed overcharges and used them as “leverage” to try and negotiate a release from Key TV for all claims including, without limitation the Advertising Charges.
28. Comcast also used the threat of refusing to continue carriage of Key TV Programming on the Cable System pursuant to the 2008 Agreement and 47 U.S.C §532 as leverage to negotiate a release from Key TV for all claims including, without limitation the Advertising Charges.
COUNT ONE – BREACH OF CONTRACT
29. Key TV repeats and realleges ~~1 to 28.
30. Comcast breached the 2008 Agreement.
31. Key TV has been damaged as a direct and proximate result of Comcast’s breach in an amount to be determined but at least $283,000.
WHEREFORE Key TV respectfully requests the entry of judgment in its favor against Comcast for damages in an amount to be determined but at least $283,000 together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT TWO – UNJUST ENRICHMENT
32. Key TV repeats and realleges ,-r,-r 1 to 4; 6 to 10; 15; 19; 20 and 22.
33. Comcast has been unjustly enriched by receiving advertising services from
Key TV having a value to be determined but at least $258,000.
34. Key TV does not have an adequate remedy at law.
WHEREFORE Key TV respectfully requests the entry of judgment in its favor against Comcast for restitution in an amount to be determined but at least $258,000 together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT THREE – VIOLATION OF 47 U.S.C. §532 BY OVERCHARGING
35. Key TV repeats and realleges ,-r,-rl to 28.
36. Comcast violated 47 U.S.C. §532 by charging and collecting excessive fees from Key TV for the carriage of Key TV Programming on the Cable System.
37. Key TV has been damaged by the illegal overcharges in an amount to be determined but at least $283,000.
WHEREFORE Key TV respectfully requests the entry of judgment in its favor against Comcast for an amount to be determined but at least $283,000 together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT FOUR – VIOLATION OF 47 U.S.C. §532 BY FAILURE TO NOTIFY
38. Key TV repeats and realleges ~~1 to 28.
39. Comcast violated 47 U.S.C. §532 by failing to immediately notify Key TV about the overcharges.
40. Key TV has been damaged by Comcast’s failure to notify Key TV about the overcharge in an amount to be determined but at least $100,000 based on the judgment rate of interest on the overcharges.
WHEREFORE Key TV respectfully requests the entry of judgment in its favor against Comcast in an amount to be determined but at least $100,000 together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT FIVE – VIOLATION OF 47 U.S.C. §532 BY FAILURE TO REMIT
41. Key TV repeats and realleges ~~1 to 28.
42. Comcast violated 47 U.S.C. §532 by failing to promptly remit all undisputed overcharges to Key TV.
43. Key TV has been damaged by Comcast’s failure to promptly remit all undisputed overcharges to Key TV in an amount to be determined but at least $100,000 based on the judgment rate of interest on the amounts Comcast failed to promptly remit.
WHEREFORE Key TV respectfully requests the entry of judgment in its favor against Comcast in an amount to be determined but at least $100,000 together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT SIX – VIOLATION OF 47 U.S.c. §532 BY REFUSING TO CARRY KEY TV PROGRAMMING IN HD FORMAT
44. Key TV repeats and realleges ~~1 to 28.
45. In In Re Implementation of Sections of the Cable Television Consumer
Protection and Competition Act of 1992: Leased Commercial Access, Second Report and Order and Second Order on Reconsideration of the First Report and Order, FCC 97-27, the FCC said at ~99:
[S]o long as an operator’s available leased access capacity is sufficient to satisfy the current demand for leased access, all leased access requests must be accommodated as expeditiously as possible, unless the operator refuses to transmit the programming because it contains obscenity or indecency. We believe that such an approach is the most appropriate method of assuring that cable operators comply with [47 U.S.C. §532(c)(2)], which explicitly restricts operators’ exercise of editorial control over leased access programming. [47 U.S.c. §532(c)(2)] provides that “a cable operator shall not exercise any editorial control over any video programming provided pursuant to this section, or in any other way consider the content of such programming, except in the case of programming containing obscenity or indecency, or to the minimum extent necessary to set a reasonable price.” We believe that requiring operators to accommodate all leased access requests when the programming does not contain obscenity or indecency, so long as there is available capacity, will most effectively restrict operators’ exercise of editorial control, without impinging upon their discretion with regard to price and sexually-oriented programming. We also believe that such an approach will further the statutory objective to promote competition because it will reduce an operator’s ability to select leased access programming based on anti-competitive motives. [emphasis added]
46. 47 U.S.c. §532 places Comcast “in the position of a common carrier” regarding the carriage of programming on leased access channels, Time Warner Entertainment Co., L.P. v. F.Cc., 93 F.3d 957,968 (D.C. Cir. 1996).
47. “The general principle embodied in the leased access rules is that cable operators must make available for leased access programming the same type of access that is made available on their system for the distribution of non-leased access programming.” In the Matter of Engle Broadcasting v. Comcast of Southern New Jersey, Inc. Commercial Leased Access, Memorandum Opinion and Order, DA 01-2274, Released: October 2, 2001 at ~7.
48. 47 C.F.R. §76.971 states “[c]able operators … may not unreasonably refuse to cooperate with a leased access user in order to prevent that user from obtaining channel capacity.”
49. Under 47 U.S.C. §532, as interpreted by the FCC and the Courts, and 47 C.F.R. §76.971, it is unreasonable for Comcast to refuse carriage of Key TV Programming on the Cable System on the same terms and conditions as Comcast carries programming by an arrangement other than a Leased Access Agreement so long as:
a. Comcast has sufficient leased access channel capacity for such carriage; and
b. There are no technical impediments to such carriage; and
c. The programming does not contain indecent or obscene material; and
d. Such carriage will not otherwise adversely affect the operation, financial condition, or market development of the Cable System.
50. Many broadcasters transmit their programming using an over-the-air digital signal transmitted on a channel licensed by the FCC that can be viewed on a television screen in a standard definition format (“SD Format”)
51. Many broadcasters also broadcast their programming using a second over-the-air digital signal transmitted on another channel licensed by the FCC that can be viewed on a television screen in high definition format (“HD Format”) if the television set is compatible with HD Format.
52. Many broadcasters broadcast their programming in both HD Format and SD Format. Two signals are transmitted simultaneously; one for HD Format and another for SD Format. Carriage of that programming on a cable system likewise requires two separate channels; one dedicated to the SD Format and another separate channel dedicated to HD Format.
53. HD Format delivers a picture quality superior to SD Format.
54. Programming delivered in HD Format attracts more advertising revenue than programming delivered only in SD Format due to the perception of advertisers that viewers of HD Format can afford high definition television sets and have more disposable income than viewers who do not own high definition television sets.
55. There are at least thirteen (13) full power broadcast television stations licensed by the FCC to broadcast their signals in SD Format and HD Format in parts of Monroe County as described in the annexed Exhibit “B:’
56. Upon information and belief, one or more of the broadcast television stations listed on Exhibit “B” are carried on the Cable System by “retransmission consent” pursuant to 47 U.S.C. §325 (“Retransmission Consent”).
57. The terms and conditions of Retransmission Consent are negotiated on an arm’s length basis between the owner of a broadcast television station and Comcast.
58. The owners of the broadcast television stations described in Exhibit “B” whose HD Format signals are carried on the Cable System pursuant to Retransmission Consent are referred to herein jointly and severally as the “HD Broadcasters.”
59. The HD Format programming of the HD Broadcasters carried on the Cable System is referred to herein as the “HD Broadcast Programming.”
60. Comcast receives and carries the HD Broadcast Programming on the Cable System in HD Format.
61. None of the HD Broadcast Programming is carried on the Cable System pursuant to a Leased Access Agreement.
62. Comcast also carries the television programming of each HD Broadcaster on the Cable System simultaneously on a separate channel in SD Format.
63. Thus the signals of each HD Broadcaster are carried on two (2) separate channels on the Cable System; one dedicated for distribution of the signal in SD Format and the other dedicated for HD Broadcast Programming.
64. Beginning in or about January 2013, Key TV and Comcast entered into a Leased Access Agreement (the “2013 Agreement”).
65. Key TV entered into the 2013 Agreement without a waiver of its rights arising out of Comcast’s breach of contract, unjust enrichment or other violations of law.
66. Key TV broadcasts Key TV Programming only in HD Format.
67. However, Comcast carries Key TV Programming on the Cable System only in SD Format.
68. Key TV requested Comcast to carry Key TV Programming on the Cable System in HD Format.
69. Comcast refuses to carry Key TV Programming on the Cable System in HD Format.
70. Comcast’s refusal to carry Key TV Programming on the Cable System in HD Format impairs and impedes the delivery of Key TV Programming to the Cable System’s subscribers (the “Subscribers”).
71. Comcast refuses to provide Key TV the same carnage of Key TV Programming in HD Format that Comcast provides for the carriage of HD Broadcast Programming.
72. Upon information and belief, there is sufficient leased access channel capacity on the Comcast Cable System to carry Key TV Programming in HD Format.
73. Upon information and belief, there are no technical impediments to the carriage of Key TV Programming on the Comcast Cable System in HD Format.
74. Key TV Programming does not contain indecent or obscene material.
75. Upon information and belief, the carriage of Key TV Programming on the Comcast Cable System in HD Format will not adversely affect the operation, financial condition, or market development of the Comcast Cable System.
76. Upon information and belief, Comcast’s refusal to carry Key TV Programming on the Comcast Cable System in HD Format was intended to promote Comcast’s interests in a channel on the Cable System commonly known as Keys Information Station (“‘KIS”).
77. Upon information and belief, KIS is owned and operated by Comcast.
78. KIS competes with Key TV in the solicitation of advertising from companies that want to sell their goods and services to tourists and residents in the Florida Keys.
79. KIS is distributed on the Comcast Cable System only in SD Format.
80. Upon information and belief, Comcast seeks to limit Key TV Programming to SD Format so that KIS will be more competitive with Key TV Programming in the solicitation of advertisers.
81. Comcast is in violation of 47 U.S.C. §532 by unreasonably refusing to carry Key TV Programming on the Comcast Cable System in HD Format.
82. Key TV has no adequate remedy at law for Comcast’s unlawful refusal to carry Key TV Programming in HD Format.
WHEREFORE Key TV respectfully requests the entry of an order directing Comcast to carry Key TV Programming on the Cable System in HD Format together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT SEVEN – VIOLATION OF 47 U.S.c. §532 BY REFUSING TO CARRY KEY TV PROGRAMMING ON THE HOSPITALITY TIER
83. Key TV repeats and realleges ~~ 44 to 82.
84. Starting in or about 2012 and continuing to date, Comcast created and maintains a new service tier commonly known as “Hospitality TV” (the “Hospitality Tier”).
85. The Hospitality Tier IS distributed only III hotels and other lodging facilities in Monroe County.
86. The HD Broadcast Programming is carried on the Hospitality Tier.
87. Comcast also carries WJAN-CD and WEYW-LP on the Hospitality Tier.
88. WJAN-CD broadcasts programming commonly known as “American TeVe,” which is locally originated Spanish language programming. WJAN-CD broadcasts only in SD Format.
89. WEYW-LP broadcasts programming commonly known as “RetroTV,” which consists primarily of television series distributed by the national television
networks in the 1950’s through the 1970′ s. WEYW-LP broadcasts only in SD Format.
90. America TeVe and Retro TV are received and carried by Comcast on the Comcast Cable System only in SD Format. America TeVe and Retro TV are referred to jointly and severally herein as “SD Broadcast Programming.”
91. WJAN-CD and WEYW-LP are referred to herein jointly and severally as the “SD Broadcasters.”
92. The FCC licenses the SD Broadcasters to broadcast over-the-air in parts of Monroe County.
93. Upon information and belief, the SD Broadcast Programming is carried on the Hospitality Tier pursuant to either Retransmission Consent or a Leased Access Agreement.
94. The distribution of Key TV Programming in hotels and other lodging facilities in Monroe County is important to Key TV since a significant portion of its programming is directed to the tourists who stay in those facilities.
95. Key TV asked Comcast to carry Key TV Programming on the Hospitality Tier.
96. Comcast refuses to carry Key TV Programming on the Hospitality Tier.
97. Comcast refuses to provide Key TV the same carriage of Key TV Programming on the Hospitality Tier as Comcast provides for SD Broadcast Programming and HD Broadcast Programming.
98. Upon information and belief, there is sufficient channel capacity on the Comcast Cable System to carry Key TV Programming on the Hospitality Tier pursuant to a Leased Access Agreement.
99. Upon information and belief, there are no technical impediments to the carriage of Key TV Programming on the Hospitality Tier.
100. Upon in Formation and belief, the carriage of Key TV Programming on the Hospitality Tier will not adversely affect the operation, financial condition, or market development of the Cable System.
101. Comcast’s refusal to carry Key TV Programming on the Hospitality Tier impairs and impedes the delivery of Key TV Programming to Subscribers.
102. Upon in Formation and belief, Comcast excludes Key TV Programming from the Hospitality Tier so that the KIS will be more competitive with Key TV Programming in the solicitation of advertisers.
103. Com cast is in violation of 47 U.S.C. §532 by unreasonably refusing to carry Key TV Programming on the Hospitality Tier.
104. Key TV has no adequate remedy at law for Comcast’s unlawful refusal to carry Key TV Programming on the Hospitality Tier.
WHEREFORE Key TV respectfully requests the entry of an order directing Comcast to carry Key TV Programming on the Hospitality Tier together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT EIGHT – MONEY DAMAGES FOR DISCRIMINATION BASED ON CONTENT IN VIOLATION OF 47 U.S.C. §532
105. Key TV repeats and,-r,-r 83 to 104.
106. Key TV has paid and continues to pay Comcast for the carriage of Key TV Programming on the Cable System pursuant to the 2008 Agreement and 2013 Agreement.
107. Upon information and belief, the SD Broadcasters do not pay Comcast for the carriage of SD Broadcast Programming on the Cable System.
108. Key TV and the SD Broadcasters are – except for the content of their respective programming — similarly situated in all material respects for purposes of carriage of their respective programming on the Comcast Cable System because:
a. They are licensed by the FCC to broadcast their respective programming to parts of Monroe County; and
b. Comcast is not required to carry their signals over the Comcast Cable System pursuant to the “must carry” obligations of 47 U.S.C. §534; and
c. Comcast may, at its election and with the broadcaster’s consent, carry their programming on the Cable System pursuant to either Retransmission Consent or a Leased Access Agreement; and
d. The carriage of their respective signals on the Cable System extends their distribution to Subscribers throughout all of Monroe County; and
e. They rely on advertising revenues to sustain their business; and
f. Upon information and belief, they compete with each other and Comcast for advertising customers; and
g. Upon information and belief, carnage of their programing on the Comcast Cable System enhances their revenues because it enhances the number of viewers of their programming; and
h. Their programming is carried only in SD Format; and
1. The method by which Comcast collects and distributes their respective signals is substantially identical with the exception that Key TV Programming is received in HD Format; and
j. With the sole exception of the Hospitality Tier, their programming is made available to all Subscribers on the same tiers.
109. The only material difference between Key TV and the SD Broadcasters for purposes of carriage of their respective programming on the Comcast Cable System is the content of their programming.
110. There is no legitimate reason for the discriminatory treatment of Key TV and the owners of the SD Broadcasters in the payment for carriage of their respective programming on the Comcast Cable System.
111. Comcast exercises illegal editorial control over Key TV Programming in violation of 47 U.S.C. §532(c)(2) by requiring Key TV to pay for the carriage of Key TV Programming on the Comcast Cable System and exempting the SD Broadcasters from paying for the carriage of SD Broadcast Programming on the Cable System.
112. Upon information and belief, the HD Broadcasters do not pay Comcast for the carriage of HD Broadcast Programming on the Comcast Cable System.
113. Key TV and the HD Broadcasters are – except for the content of their respective programming — similarly situated in all material respects for purposes of carriage of their respective signals on the Comcast Cable System because:
a. They are licensed by the FCC to broadcast their respective programming to parts of Monroe County; and
b. Comcast may, at its election and with the broadcaster’s consent, carry their programming on the Cable System pursuant to either Retransmission Consent or a Leased Access Agreement; and
c. The carriage of their respective programming on the Comcast Cable System extends their distribution to Subscribers throughout all of Monroe County; and
d. They rely on advertising revenues to sustain their business; and
e. Upon information and belief, they compete with each other and Comcast for advertising customers; and
f. Upon information and belief, distribution of their signals on the Comcast Cable System enhances their revenues because it enhances the number of viewers of their programming; and
g. Their signals are broadcast in HD Format; and
h. The method by which Comcast collects and distributes their respective signals is substantially identical with the exception of distribution of Key TV Programming in SD Format; and
1. With the sole exception of the Hospitality Tier, their programming is made available to all Subscribers on the same tiers.
114. The only material difference between Key TV and the HD Broadcasters for purposes of carriage of their respective programming on the Cable System is the content of their programming.
115. There is no legitimate reason for the discriminatory treatment of Key TV and the owners of the HD Broadcasters in the payment for carriage of their respective programming on the Comcast Cable System.
116. Comcast exercises illegal editorial control over Key TV Programming in violation of 47 U.S.C. §532(c)(2) by requiring Key TV to pay for the carriage of Key TV Programming on the Comcast Cable System and exempting the HD Broadcasters from paying for the carriage of HD Broadcast Programming on the Comcast Cable System.
117. Comcast has considered the content of Key TV Programming beyond the minimum extent necessary to set a reasonable price for the carriage of Key TV Programming by a Leased Access Agreement.
118. Upon information and belief, KIS is distributed on the Comcast Cable System without charge by Comcast.
119. Upon information and belief, Comcast seeks to impose on Key TV excessive costs for the carriage of Key TV Programming on the Cable System so that KIS will be more competitive with Key TV Programming in the solicitation of advertisers.
120. Comcast violates 47 U.S.c. §532 by charging Key TV an unreasonable rate for the carriage of Key TV Programming on the Comcast Cable System.
121. Key TV has been damaged by Comcast’ s violations in an amount to be determined but at least equal to all consideration received by Comcast for the carriage of Key TV Programming from the inception of carriage of SD Broadcast Programming or HD Broadcast Programming on the Comcast Cable System to date.
WHEREFORE Key TV respectfully requests the entry of judgment in its favor against Comcast in an amount to be determined but at least equal to all amounts paid by Key TV while the SD Broadcast Programming or HD Broadcast Programming was carried on the Comcast Cable System without charge together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT NINE – ENJOINING DISCRIMINATION BASED ON CONTENT IN VIOLATION OF 47 U.S.c. §532
122. Key TV repeats and realleges ,-r,-rl05 to 120.
123. The fees paid by Key TV for the carriage of Key TV Programming pursuant to the Leased Access Agreements constitute about 15% of the gross revenue of WCAY. These fees are a substantial burden on the delivery of Key TV Programming to the Subscribers and those who receive Key TV Programming by over-the-air broadcast.
124. Comcast’s violation of 47 U.S.c. §532 impairs and impedes the delivery of Key TV Programming to Subscribers and those who receive Key TV Programming by over-the-air broadcast.
125. Key TV has no adequate remedy at law for the continued violation of 47 U.S.C. §532.
126. All of Comcast’s violations of 47 U.S.C. §532 described in Counts Three through Eight (,-[,-[35 to 121) and in this Count Nine are a willful and intentional evasion of federal policies to:
a. Promote a diversity of views on the Comcast Cable System, see 47 U.S.c. §512(a)(6); and
b. Provide a fair, efficient, and equitable distribution of broadcast Services on the Comcast Cable System, see U.S.C. §521(a)(9).
c. Ensure the continuation of local origination of programming on the Comcast Cable System, see.47 U.S.C. §521(a)(10); and
d. Promote the continued availability of free television programming for viewers who are unable to afford other means of receiving programming, 47 U.S.C. §521(a)(12); and
e. Assist local broadcasters In increasing their viewership, and thereby attract additional advertising revenues that otherwise might be earned by Comcast, 47 U.S.C. §521(a)(15); and
f. Maintain the viability of free local television, 47 U.S.C. §521(a)(16); and
g. Encourage the carriage of low-power television stations licensed to the communities served by those systems where the low-power station creates and broadcasts, as a substantial part of its programming day, local programming, 47 U.S.c. §521(a)(16); and
h. Promote the availability to the public of a diversity of views and information through cable television and other video distribution media, 47
U.S.c. §521(b)(I); and
1. Ensure that cable television operators do not have undue market power vis-a-vis video programmers and consumers. 47 U.S.C. §521(b)(5).
WHEREFORE Key TV respectfully requests the entry of an order enjoining Comcast from charging or collecting any amount from Key TV for the distribution of Key TV Programming on the Comcast Cable System so long as any SD Broadcaster or HD Broadcaster does not pay for carriage of its programming on the Comcast Cable System together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT TEN – ENJOINING VIOLATIONS OF FDUTPA
127. Key TV repeats and realleges the allegations in Counts Six, Seven and Nine (~~44 to 104 and 122 to 126).
128. Comcasfs violations of 47 U.S.C. §532 are unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce in violation of F.S.A. §501.201, the Florida Deceptive and Unfair Trade Practices Act (“FDUTP A”).
129. Key TV has been injured by Comcast’s violation ofFDUTPA in the same manner it has been injured by Comcast’s violations of 47 U.S.C. §532.
130. Upon information and belief, Comcast’s actions were intended to promote Comcast’s interests in the KIS.
131. The KIS competes with Key TV in soliciting advertisers.
132. Key TV has been injured by Comcast’s violation of FDUTPA by the impairment of delivery of Key TV Programming to its intended audience for which Key TV has no adequate remedy at law.
WHEREFORE Key TV respectfully requests the entry of an injunction directing Comcast to carry Key TV Programming on the Cable System without charge in both SD Format and HD Format and display Key TV Programming in HD Format on the Hospitality Tier so long as Corncast carries any HD Broadcast Programming or SD Broadcast Programming in the same or similar manner together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.
COUNT ELEVEN – MONEY DAMAGES FOR VIOLATIONS OF FDUTPA
133. Key TV repeats and realleges the allegations in ~~1 to 28, 128 and 129 and the allegations in Counts Three, Four, Five and Eight (excluding ~~76 to 80 and excluding mll18 to 119).
134. Key TV has been damaged by Comcast’s overcharges in an amount to be determined but at least $283,000.
135. Key TV has been damaged by Comcast’s failure to timely notify and remit in an amount to be determined but at least $100,000.
136. Key TV has been damaged by paying rates for the distribution of Key TV Programming on the Comcast Cable System that are artificially and unreasonably high when compared to the rates paid by the SD Broadcasters and HD Broadcasters in an amount to be determined but at least $588,000 which is the amounts paid for carriage of Key TV Programming on the Cable System during the period SD Broadcast Programming or HD Programming has been carried on the Cable System without charge (at least $871,000) less overcharges (at least $283,000).
137. Upon information and belief, John Doe was a direct participant in the above described violations of FDUTPA by Comcast.
WHEREFORE Key TV respectfully requests the entry of judgment in its favor against Comcast and John Doe, jointly and severally in an amount to be determined but at least $971,000 together with the award of interest, costs, attorneys’ fees and such other relief as the Court deems just and proper.”
