New York – A lawyer for commercial TV station WRNN told a federal appeals panel on Monday that the broadcaster will face financial ruin if it doesn’t secure carriage from Cablevision Systems on Long Island.
WRNN counsel Andrew McBride made the argument, which Cablevision disputed, during a hearing before the U.S. Court of Appeals for the 2nd Circuit. The station needs the additional distribution in order to compete with other local stations for advertising, according to McBride.
“We’re an independent station, privately owned,” he told the three-judge panel. “If you confine the station to Kingston, you’d destroy this station.”
Cablevision is opposing a Federal Communications Commission ruling that grants WRNN must-carry status in Long Island, mandating that the cable operator offer its signal.
During the oral arguments in Manhattan, Cablevision outside counsel Henk Brands told the court that WRNN is a home-shopping station that has made a business model of seeking must-carry rights from cable companies.
Brands also said that was no evidence that WRNN “will in any way be harmed” if it doesn’t secure cable carriage on Long Island.
The station is based in Kingston, N.Y., a town located closer to Albany than to Long Island but nevertheless within the New York designated market area (DMA) that includes Cablevision’s Long Island cable systems.
WRNN began broadcasting in 1985 on Channel 62 from a transmitter located on Overlook Mountain in Woodstock, several miles northwest of Kingston.
Cablevision never carried the station on Long Island, in part because the station’s signal didn’t reach that far and its programming didn’t address Long Island issues.
At the cable operator’s request, an FCC staff ruling in 1996 deleted Cablevision’s heavily populated Nassau County and western Suffolk Country franchise areas from WRNN’s must-carry market. That ruling was later affirmed by the five FCC members and by the U.S. Court of Appeals for the 2nd Circuit.
But the issue was revived in 2002 when WRNN relocated its transmitter to Beacon Mountain, N.Y., about 50 miles closer to Manhattan, and commenced digital-only operations on channel 48.
With its digital signal reaching Long Island and having added some Long Island-specific programming, WRNN asked the FCC to order Cablevision to carry WRNN in Nassau. Last November, the FCC ruled in favor of WRNN. Last month, the 2nd Circuit stayed that decision pending the outcome of the litigation at Cablevision’s request.
Brands told the appellate panel that WRNN is seeking “beachfront” spectrum on Cablevision’s channel line-up, “a 6-Megahertz slot on our analog tier,” because the station’s channel position is channel 48. “We may have to throw off some other programmer,” Brands said.
W’s lawyer McBride, in turn, claimed that Cablevision doesn’t want to carry WRNN because its Long Island local programming will be a rival to the cable operator’s local news network, News 12 Long Island.
“They don’t want a competing local-news station on Long Island,” McBride told the three-judge panel.
In a legal brief filed with the 2nd Circuit, Cablevision said, “This case is about cynical gamesmanship by an upstate New York television station in pursuit of cable carriage on Long Island, where it has never had a viewing audience.”
Cablevision added, “Granting carriage on Long Island to a station that is licensed to Kingston, a community with few economic, social, and cultural ties to Long Island, and that broadcasts only a token amount of Long Island-targeted programming, does not appreciably promote localism for Long Islanders.”
But in its brief, the FCC said the must-carry law was intended to help stations add cable systems in circumstances such as those presented by WRNN.
“Despite Cablevision’s rhetoric, nothing in the 1992 Cable Act prohibits a television station from taking actions to restore to its market communities within its [DMA]; nor does the statute confine a television station to serving only those communities that it served prior to the enactment of must-carry,” the FCC said.
In court, FCC attorney Jacob Lewis said that WRNN now has “a strong signal” that reaches Long Island, and that it is now offering Long Island-related programming.
Cablevision asked for an expedited ruling from the appellate panel, which reserved decision at the end of Monday’s arguments.
