FCC: Carriage-Complaint Process Needs Change

Author:
Updated:
Original:

Washington — If the Federal Communications Commission’s
chairman gets his way, the agency will set up a
regime for granting interim carriage during the adjudication
of cable-network program-
carriage complaints,
and set deadlines for dealing
with those matters.

Such a mechanism currently
does not exist, and it can take
years for complaints to grind
through the regulatory sausage-
making process.

The FCC is getting busy on
the program-carriage front,
with chairman Julius Genachowski
having circulated —
and voted to approve — two
items, including proposed
changes to the program-carriage
complaint process. He
also denied cable network
Wealth TV’s longstanding
program-access complaint
against four operators.

The activity follows the
FCC’s note in the Comcast-
NBCUniversal mergerapproval
order that said the
cable giant needed to review
its program-carriage rules,
with the vehicle being an open
notice of proposed rulemaking dating back to 2007.

CHAIR VOTES YES

According to sources close to three of the four commissioners
still voting on items — Meredith Attwell Baker is
effectively, though not officially, gone — Genachowski
has voted to approve a combination order and Notice of
Proposed Rulemaking, with the order portion containing
a framework and legal analysis for imposing temporary
standstills on existing contracts while program-carriage
complaints are pending.

The order covers specific circumstances, too. How about
a channel that is complaining it couldn’t get a contract in
the first place citing, say, discrimination according to affiliation? If the complaint were upheld, there would be
some form of “true up” payment for what the cable operator
would have been paying if it had agreed to carry the
network.

At press time, it was unclear whether that standstill regime
would remain in the order or be moved to the NPRM
portion, according to one source familiar with the FCC
discussions about the item. That is because there some
had complained that standstills had not been teed up in
the 2007 NPRM.

The order also clarifies the elements that a complaining
party would have to offer up to make a prima facie case for
a violation. For instance, it lays out what it considers an apples-
to-oranges comparison of channels unlikely to prevail
as discrimination according to affiliation, citing the example
of a music channel targeting young people complaining
that it is not carried, while a music channel owned by the
distributor, but targeting an older demo, is carried.

The order also imposes “some” deadlines for decisions
on the Media Bureau and administrative law judges.

The FCC’s goal is not only to speed the complaint process,
but to discourage complaints unlikely to prevail by
giving better guidance on what is unlikely to fly.

The second item being circulated is arguably an example
of why the first item’s deadlines are needed. It is the
denial of a complaint by Wealth TV against Comcast, Cox
Communications, Time Warner Cable and Bright House
Networks, a complaint that has been in the pipeline for
years.

In October 2009, administrative law judge Richard
Sippel concluded that Wealth TV parent Herring Broadcasting
had failed to prove that “any of the defendants
engaged in discrimination in the selection, terms or
conditions of carriage on the basis of WealthTV’s nonaffiliation.”

FCC rules prevent a
multichannel video provider
“from engaging
in conduct the effect of
which is to unreasonably
restrain the ability
of an unaffiliated videoprogramming
vendor to
compete fairly by discriminating
in video programming
distribution on
the basis of affiliation or
non-affiliation.” Herring
had the burden of proving
discrimination based
on affiliation and unreasonable
restraint of competition.
The judge said it
proved neither case, and
the FCC chairman apparently
agrees.

WEALTH TV RESOLVED

The Wealth TV matter
was the last unresolved
complaint of a collection
of three of them that went
to the ALJ hearing phase in the late 1990s under Sippel’s
watchful eye.

The three complaints were filed by programmers MASN,
NFL Network and Wealth TV, for allegedly discriminating
against those programmers’ channels in favor of their
own, owned content. The complaints were filed against
Comcast in the cases of NFL and MASN, and Comcast,
Cox, Time Warner Cable and Bright House in the case of
Wealth TV.

The NFL and MASN complaints were settled before Sippel
rendered his decision, so Wealth’s matter was the only
one left that had gone back to the full commission for a
decision.

Wealth TV has asked for oral argument before the FCC
to plead its case, according to network CEO Robert Herring.

Neither of the items has been slated for the June public
meeting, so they could be teed up for the July meeting, or
voting could occur on circulation before that.

Related