Broadcaster Accuses ACA of Retrans Complaint ‘Conspiracy’

ComCorp. Files FCC Complaint Claiming Cable System Won’t Negotiate in Good Faith

By Linda Moss -- Multichannel News, 11/18/2008 5:57:00 PM

A broadcaster filed a complaint with federal regulators Tuesday accusing a New Mexico cable operator of being part of a “conspiracy” led by the American Cable Association to file “specious” complaints against broadcasters regarding retransmission consent.

ComCorp, owner of KTSM-TV in El Paso, Texas, lodged its complaint with the Federal Communications Commission against Baja Broadband—charging that the cable system has “brazenly” refused to negotiate a new retransmission consent deal in good faith—in the wake of the cable operator filing its own complaint against the station owner in September.

In its nine-page complaint Tuesday, ComCorp also charged that Baja is part of a “conspiracy” being led by the ACA to file “specious complaints” against broadcasters.

The ACA, a lobbying group for independent cable operators, called ComCorp’s charges “an utter lie.” Baja Broadband also denied it had conspired with the ACA.

In its FCC filing, ComCorp said, “The Baja complaint reflects one step in a pattern of abusive conduct being carried out by various clients of the same law firm who, in a conspiracy coordinated with the American Cable Association, also represented by the same law firm, have filed a series of specious complaints and ‘comments’ against various broadcasters and issued multiple press releases in an effort to gain media attention and political advantage during this retransmission-consent negotiation period.” 

ComCorp went on to allege, “The objective of this collusive endeavor is to advance, among other things, the request of cable operators for a lengthy ‘quiet period’ and to strip broadcasters of their retransmission rights now that the retransmission market has, for the first time, become truly competitive.”

So far this fall four cable operators, including Baja Broadband, have filed retransmission-consent related complaints against either ComCorp or Granite Broadcasting, who are using the consultant Duane Lammers to handle retransmission-consent talks for their stations. ComCorp and Granite are owned by Silver Point Capital, a hedge fund.

Three of the cable operators, including Baja Broadband, are represented by the Chicago law firm of Cinnamon Mueller, which is also outside counsel for the ACA.

The ACA immediately denied ComCorp’s allegations.

“It is an utter lie,” ACA president Matt Polka said. “We had no contact with Baja, period. None.”

He added that ACA didn’t have any contact with two of the other operators who have FCC complaints pending against ComCorp and Granite, namely Trust Cable TV and Paul Bunyan Rural Telephone Cooperative.

“We saw the complaints after they were filed,” Polka said. “If anything, this is just misdirection from their behavior (ComCorp), which is at issue, not some far-fetched, spaced-out claim that ACA somehow concocted these things.”

Peter Kahelin, Baja Broadband’s CEO, also denied ComCorp’s charges regarding any ACA conspiracy. He said his company was an ACA member, but that he hadn’t been an active member or attended an ACA meeting in years.

“All I can say is I’m quite disappointed that they (ComCorp) would even consider going down that path,” Kahelin said. “Unequivocally, there is no conspiracy…I will honestly admit that I have not even been to an ACA meeting of any kind in the last eight years. I would not even have known who the leadership was. That kind of debunks the conspiracy theory. ” 

He said he was aware that the ACA had filed a petition in support of Baja Broadband’s FCC complaint, as he believed the lobbying group would do for any of its members.

“We’re just doing the best we can to operate in this tough environment,” Kahelin said. “With the retrans stuff coming down, it’s going to impact our customers. We’re doing everything we can just to run our own operations, never mind creating this big conspiracy.”

“That’s just a disappointing statement. It really is,” he added. “It’s good fodder and it’s their way to defend themselves, and everybody makes a choice.” 

Cinnamon Mueller couldn’t be reached for comment Tuesday.

In its filing Tuesday, ComCorp claimed that its consultant, Lammers, had made repeated efforts to initiate retransmission-consent talks with Baja Broadband, to no avail.

ComCorp also said that its parent, Communications Corp. of America, had recently filed a separate complaint against Baja Broadband, one that alleges that the cable operator is illegally carrying KTSM.

Communications Corp. of America alleges, and ComCorp repeats the allegation, that Baja Broadband has been carrying KTSM without the station’s consent for two years.

“When Baja learned of CCA’s unauthorized carriage complaint to seek appropriate FCC relief, Baja Broadband retaliated by submitting a frivolous and wasteful FCC complaint against ComCorp,” ComCorp said in its complaint Tuesday. “The Baja complaint is a specious and sham pleading, and Baja’s tactics continued to demonstrate that Baja had no interest in reaching a retransmission consent agreement, but rather as a stalking horse for a broader political agenda.”

The dispute involves Baja Broadband’s 20,000-subscriber system in Alamogordo, N.M. Baja Broadband in March 2006 reached a deal to acquire that system from Charter Communications.

In its FCC complaint in September, Baja Broadband stated that it had written KTSM a letter in June 2006 to say it planned to continue carrying that station, and that Charter had assigned it its carriage rights for KTSM.

Baja Broadband said that it never received an objection or any communication from the station after that—until Lammers called Aug. 18 with a proposed deal and also telling the cable operator that it was “illegally” transmitting KTSM. 

Baja Broadband is seeking a stay to continue carrying KTSM. In addition to its complaint Tuesday, ComCorp has also filed an answer in opposition to the cable operator’s request of such a stay.