Washington—Cable operators are saying that a special judge is incapable of ruling on a half-dozen program carriage discrimination cases within the 60 days mandated in a recent Federal Communications Commission ruling.
“This deadline is simply not realistic," Bright House Networks said in an FCC filing last Monday.
Action within the FCC's deadline is unlikely, BHN added, mainly because it took the FCC's staff "nearly seven months" just to make its threshold findings.
Comcast, also critical of the 60-day deadline, found that after analyzing all ALJ actions over the past 15 years—34 initial decisions—not one was issued within 60 days.
"In fact, the quickest decision was issued after approximately seven months," Comcast lawyers told the FCC in an Oct. 20 filing.
The FCC's Media Bureau tentatively ruled Oct. 10 that four cable operators—BHN, Comcast, Time Warner, and Cox Communications—violated program carriage rules by refusing to carry WealthTV, owned by Herring Broadcasting Inc.
WealthTV claimed discrimination because the cable operators refused carriage while distributing Mojo HD, a channel they owned which is aimed at the same demographic as WealthTV: affluent males interested in vintage wines, professional sports and expensive automobiles.
Comcast was involved in the other two disputes, one about carriage of Mid-Atlantic Sports Network (MASN) and one about tier placement of the NFL Network.
The Media Bureau, saying it was unable to resolve "several factual disputes," referred all six cases to an administrative law judge, who was given until Dec. 9 to return with recommended decisions. Last week, the FCC named Administrative Law Judge Arthur I. Steinberg as the presiding judge.
“Even focusing solely on the four cases brought by WealthTV, each complaint is based on a separate course of conduct and a separate set of inferences," BHN said. "BHN submits that fundamental considerations of due process require that the (ALJ) should adopt a proposed hearing schedule that is designed to serve interests of justice rather [than] to meet an artificial deadline."
BHN, the sixth-largest cable company with 2.3 million subscribers, has 5% interest in Mojo HD channel, a programming service of In Demand Networks that launched it in 2003 under a different name. Mojo HD is shutting down service around Dec. 1.
WealthTV has asked the FCC to bar the cable operators from filling the channel space vacated by Mojo HD until after its complaint has been resolved. A pre-hearing conference at the FCC is scheduled for Oct. 27.
"Delay sought by Big Cable’s army of lawyers is the last thing that cable consumers need," said Robert Herring, Sr., co-founder and chief executive officer of WealthTV. "WealthTV has no doubt that Judge Steinberg can capably discharge the duties delineated by the Media Bureau’s order within the prescribed 60 days."
The FCC tentatively held that BHN's carriage of Mojo HD at the same time it was refusing carriage to WealthTV was discriminatory because, among other things, both channels were "substantially similar."
FCC chairman Kevin Martin had wanted the agency to find discrimination is each instance, with the ALJ recommending the license fee the cable operators should have to pay. But he was overruled by the other four commissioners.
