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FCC Recommends Against Mandatory MASN Carriage: Sources

8/03/2009 2:31 PM Eastern

According to industry sources, the FCC's Enforcement Bureau has told an FCC administrative law judge that it does not believe regional sports programmer Mid-Atlantic Sports Network made its case for mandatory carriage on some Comcast systems.

Unless the complaint is settled beforehand, there must still be a decision by that judge, and by the FCC's new full complement of five commissioners, before the complaint is ultimately revolved. However, if this is the case, it is clearly good news for Comcast.

MASN, which carries Baltimore Orioles and Washington Nationals Major League Baseball games, and Comcast are scheduled to talk Aug. 4, and the judge has urged a settlement.

Neither MASN or Comcast would comment for this story.

Of the three program-carriage complaints referred to an ALJ for hearing last fall after the Media Bureau tentatively concluded discrimination and a majority of commissioners called for more fact-finding, one has been settled and the Enforcement Bureau has now come down on the side of the cable operators in the other two.

The bureau, which represented the commission at program carriage complaint hearings, was required to file its view of the MASN case by last Friday (July 31). The FCC has not released the decision, which must first be redacted (have proprietary information blacked out), and lawyers for both sides agreed not to discuss the decision until that redacted version is released.

A source at the bureau said that redacted version would be out "on or before Aug. 12," but would not comment on its substance.

MASN had alleged that Comcast discriminated against it by refusing to carry the reginal sports net in Harrisburg, Penn.; the Tri-Cities region of southwestern Virginia, including Roanoke and Lynchburg; as well as "in various cable systems in smaller communities where Comcast has cable systems within MASN's territory."

A source said that the bureau's recommendation was not as direct a rebuke to MASN's arguments as was the Enforcement Bureau's smackdown of  WealthTV's case in its own carriage complaint against Comcast and other operators. In that case, the bureau said WealthTV had failed to show any direct evidence that a quartet of top cable operators had discriminated against its network in favor of their own, allegedly similar network, and that even if they had shown discrimination, they could now demonstrate that it put them at a competitive disadvantage.

Both the MASN and WealthTV complaints had hearings in the spring before FCC Administrative Law Judge Richard Sippel. A decision is still pending in both cases, but is not the final call. It is instead a recommendation to the full commission, which must vote on the complaints. That likely won't come until the fall at the earliest.

Last week, the FCC denied a request from MASN to delay the Enforcement Bureau recommendation.

MASN has argued that its release could adversely affect the Aug. 4 meeting with Comcast, where MASN told the court it expected agreement on a negotiated settlement could be reached. Comcast had countered that it did not agree that a deal was necessarily in the offing and said the bureau should go ahead and file its recommendation on time.

While denying the request for delay, Sippel also encouraged the parties to settle ASAP.

The NFL Network and Comcast, for example, reached a carriage settlement that obviated the need for a Sippel decision on that complaint. That NFL Net deal included offering the network on a more highly-viewed digital tier, a move Comcast made this past weekend (Aug. 1).

September