Washington -- The Federal Communications Commission's Media Bureau chief, claiming an administrative law judge (ALJ) failed to meet a Dec. 9 deadline, intends to rule on a batch of program carriage complaints filed by independent programmers against four major cable operators.
Media Bureau chief Monica Desai, in a decision released on Christmas Eve, said the ALJ defaulted on his obligation to return with recommendations by Dec. 9, despite being given 60 days to act.
"The ALJ's authority to issue a recommended decision in these proceedings expired after Dec. 9. The Media Bureau will thus proceed to resolve the carriage disputes ..." Desai explained in a nine-page ruling.
Desai's ruling directly affects complaints by WealthTV against Time Warner Cable, Bright House Networks, Cox Communications, and Comcast; and Mid-Atlantic Sports Network, which televises Baltimore Orioles and Washinton Nationals Major League Baseball games, against Comcast. WealthTV alleges that it was denied carriage to allow the cable companies to favor a channel --MOJO -- with similar content, violating anti-discrimination provisions in federal cable law.
“We are grateful to the FCC for recognizing the importance of addressing carriage access discrimination in a timely manner, especially for small emerging businesses. Excessive delays cause irrevocable harm and send the wrong signal to inspiring entrepreneurs offering more choice and diversity to cable programming," said Robert Herring, Sr., CEO and co-founder of WealthTV
When Desai referred the cases to the ALJ in October, she included a similar, but not identical, complaint filed by the NFL Network against Comcast. Desai's Dec. 24 ruling didn't refer to the NFL Network-Comcast dispute on whether Comcast is discriminating by distributing the NFL Network on a sports tier purchased by about 2 million subscribers.
Lawyers involved in the NFL Network-Comcast matter said they expect the ALJ would lose control over their case as well. Although WealthTV and MASN had asked the Desai to seize their cases from the ALJ, the NFL Network had not done the same. WealthTV and MASN complained after the ALJ made a number of unfavorable rulings, including a decision to postpone the first hearing date until March 17. WealthTV filed its first complaint, against Time Warner Cable, on Dec. 20, 2007.
ALJ Arthur Steinberg, who was later replaced by ALJ Richard Sippel, said in late November that he was incapable of deciding all the cases by Desai's Dec. 9 deadline.
"The 60-day timeframe set forth in the [Media Bureau order] cannot be achieved. This is an extremely complex proceeding involving six separate program carriage complaints, three complainants, and four [cable operators]," Steinberg ruled.
Steinberg's five-page opinion had a number of surprises for WealthTV, MASN and the NFL Network, if not for Desai. He ruled that the networks would have the burden of proof in demonstrating that the cable companies had discriminated because they didn't have a financial interest in them, and he also said the proceedings would begin anew, meaning Desai's initial finding of discrimination would be set aside.
FCC chairman Kevin Martin, who appointed Desai, is expected to step down when President-elect Barack Obama is sworn in on Jan. 20. A ruling against the cable companies, by Desai or her successor, can still be appealed to the full FCC, which has five voting members when fully staffed.