Wealth TV's Herring: FCC Program Complaint Should Be Open

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Herring Broadcasting's Wealth TV wants the judge in the Federal Communications Commission program-carriage hearing against Comcast to open the hearing to the public.

Wealth TV president Robert Herring told Multichannel News about the network's position over the weekend.

The network's hearing begins Monday, following on the heels of the Friday close of the National Football League complaint against Comcast over the NFL Network --  the first of three program carriage hearings lined up at the FCC over the next three weeks.

"We want to keep as much sunlight as we can on the upcoming trial," said Herring. "[W]e would prefer that the proceedings be open to public and media.

In the NFL-Comcast case, the lawyers for both sides asked the judge to close the trial during testimony on financial matters. After Bloomberg lawyers complained, the judge compromised by trying to keep it open as much as possible, and provide redacted transcripts for the rest as expediently as possible, which meant a couple days.

Herring filed the complaint with the FCC Dec. 20 against Time Warner Cable maintaining that the nation's second-largest cable operator unlawfully discriminated against Wealth TV by refusing to carry the independent programmer or negotiate in good faith for distribution while it carried the affiliated Mojo, which was similar in content and also targeted affluent males 25 to 49.

Mojo and its parent In Demand Networks are owned by Comcast In Demand Holdings, Inc. Cox Communications Holdings, Inc. and Time Warner Entertainment-Advance/Newhouse Parternship. Mojo was shuttered late last year.

Herring argues that the absence of a carriage agreement for Mojo also showed that "[t]he affiliate relationship between defendants and their affiliate apparently made the normal written contract for carriage unnecessary."

The FCC's Media Bureau under then FCC chairman Kevin Martin, tentatively concluded that the cable operators had

discriminated, but Martin did not have the votes to conclude that at the commission level. The full commission sent that and the two other complaints to an administrative law judge for fact-finding.

The Media Bureau, unhappy with the judge's timetable for the hearings, tried to reclaim the decision. Enter acting FCC chairman Michael Copps, who sent it back to the judge, this time ALJ Richard Sippel.

The program-carriage complaint hearings are unusual, but they still will not resolve the cases. The judge's ruling is

an advisory to the commissioners, who must still vote on the complaints. Then, whoever loses could well take the decision to federal court.

In any event, there will almost certainly be no decision on Herring against the cable operators for a month or so after the hearing.

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