Updated: ALJ to Hear Game Show Net Carriage Complaint Against Cablevision

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The FCC's Media Bureau has designated the Game Show Network's program carriage complaint for hearing before an administrative law judge, if the two sides don't resolve it via third-party mediation in the interim.
The bureau said that while it was not reaching any conclusions on the merits, but that on its face GSN's arguments warranted a full hearing. "After reviewing GSN's complaint, we find that GSN has put forth sufficient evidence supporting the elements of its program carriage discrimination claim to establish a prima facie case,"
the bureau said.
In essence the bureau concluded that GSN had provided enough evidence that it competed for ad dollars and eyeballs with Cablevision-owned nets, but was treated differently (GSN argues discriminated against) when it came to carriage.
The bureau questioned whether GNS had offered sufficient direct evidence of discrimination, but said given the amount of circumstantial evidence, a hearing is warranted. It also pointed out that it had not weighed GSN's evidence against rebuttal evidence from Cablevision, which will now be the province of the administrative law judge.
"Once again, the FCC has revealed its inability to administer its duties, just as it has failed to address the broken retransmission consent system," asid Cablevision in a statement. "It should be obvious to anyone that a channel showing game shows and one showing women's-oriented programming are not comparable. We will vigorously defend against this preposterous FCC finding."
The parties have ten days from May 9 to seek an alternate dispute resolution before the hearing proceeding will be launched. If both sides agree, the hearing will be suspended while they try to come to a resolution. If only one side wants ADR, it goes to hearing. Cablevision had no comment on its next move beyond referring to the last line of its statement, which at least suggests it is not in a conciliatory mood. A GSN spokesperson was not available for comment at press time.
GSN filed the complaint Oct. 12, alleging Cablevision discriminated against it by moving it to a premium sports tier, which cost the channel eyeballs, while favoring similarly situated networks We TV and  the now defunct Wedding Central, in which Cablevision has a financial interest. It wants the agency to force Cablevision to carry the network on what it says are "nondiscriminatory terms and conditions" and pay a fine. FCC rules prevent an MVPD from discriminating against unaffiliated nets in favor of ones in which it has a financial interest.
"[T]he existing record, including Cablevision's Answer and other pleadings, makes clear that there are substantial and material questions of fact as to whether Cablevision has engaged in conduct that violates the program carriage provisions of the Act and the Commission's Rules," the bureau said. "We therefore initiate this hearing proceeding. We direct the Presiding Judge to develop a full and complete record and to conduct a de novo examination of all relevant evidence in order to make an Initial Decision."
The bureau rejected Cablevision's argument that GSN's complaint was filed after the statute of limitations, and accepted GSN's argument that it was similarly situated " with respect to genre" to Cablevision's We TV and now-defunct Wedding Central.
"Under Cablevision's view of the program carriage statute of limitations," said the bureau, "an MVPD could delete an unaffiliated network from all of its systems one year after the execution of the contract in order to favor its affiliated network and then claim that such conduct cannot be challenged under the program carriage rules because it occurred outside of the one-year window for filing a complaint. We find this view untenable as it would eviscerate the protections provided by the program carriage statute."
As to GSN being in the same ballpark as Cablevision's channels, the bureau was swayed by GSN testimony that "all feature female-oriented reality and competition-based programming" and "are similarly situated with respect to ratings on a national basis and within the New York DMA, as well as among specific demographic groups." The bureau also said GSN had made a case for its having been treated differently on the basis of affiliation.
GSN had made the point that while Cablevision positioned it on a sports tier, the MSO carried Wedding Central on expanded basic even though no other major cable operator gave Wedding Central similar carriage.

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