Program-Access Complaint Hits Home Stretch

WealthTV, MSOs Make Final Case to FCC Arbiter

by John Eggerton -- Multichannel News, 6/25/2009 5:40:25 PM

Washington -- Cable-operator defendants and a programmer complainant have made their last-ditch pitch to a Federal Communications Commission administrative law judge.
WealthTV and top cable operators on Wednesday filed their respective post-hearing reply comments and findings of fact in WealthTV's program carriage complaint against the operators.
Those are essentially summaries from both sides pointing out the defects in their opponent's case and the superiority of their own arguments.
That should conclude the cycle of pre-hearing, hearing and post-hearing arguments, with the decision, in the hands of FCC chief ALJ Richard Sippel, though that will not be the final call. Sippel tried their complaint last month at the direction of the FCC, which sent the WealthTV case and two other complaints to the judge for a de novo trial after an initial bureau finding of program-carriage violations did not pass muster with a majority of the commissioners.
Sippel must now come up with a recommended decision and pass that along to the FCC commissioners, who must ultimately make the decision on the complaint. The filings Wednesday were trying to convince Sippel to either recommend denying the complaint or upholding a violation of the FCC's program carriage rules, depending on whose pitch it was.
Comcast, Time Warner Cable, Cox Communications and Bright House Networks filed jointly. They said that WealthTV had not produced any direct evidence that any of the MSOs had intentionally discriminated against WealthTV in favor of channels they owned. They said that was because they had not engaged in "unlawful ‘differential treatment' " of their own channel, the now-defunct Mojo network owned by In Demand, which is co-owned by the MSOs.
WealthTV parent Herring Broadcasting countered that the cable operators' refusal to carry its network had the effect of unreasonably restraining its ability to compete by denying it access to their collective 45 million subscribers, which WealthTV said constitutes about 70% of cable video subs.
Also outstanding is a program-carriage complaint against Comcast by the Mid-Atlantic Sports Network; Sippel presided over that hearing last month.
Sippel also presided over a third complaint, NFL Network vs. Comcast, but the FCC dismissed the complaint after the two settled their dispute with a new carriage deal that put NFL Network on a more widely viewed digital tier.