Time Warner Bristles at FCC Order to Restore NFL Network
Time Warner Cable said it won’t restore NFL Network, after removing it from systems it acquired. The FCC had intervened a 2nd time this week in a cable contract dispute (CD Aug 1 p9). The company balked at a Thurs. FCC order to “reinstate carriage” of the sports channel to Adelphia and Comcast subscribers. “At this point in time we have not moved forward to do that,” Mark Harrad, Time Warner Cable senior vp-communications, told us: “You cannot carry programming without a license to do so.”
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Even so, TW could be carrying the channel again soon, a person involved in the case said. The FCC rarely is asked to intervene in such situations and rarely does, said the source. Regional sports network arbitration conditions in the FCC order approving Adelphia’s $17 billion takeover by TW and Comcast don’t appear to apply to the case at hand, based on information from an FCC staffer.
Other networks’ complaints about the Adelphia deal may have encouraged swift FCC action on the NFL Network complaint, said lawyers not involved in the case. Comrs. McDowell and Tate voiced concern that complaints such as one by Mid-Atlantic Sports Network were languishing, said a lawyer involved in a similar dispute. McDowell publicly criticized the backlog in voting for the Adelphia takeover (CD July 14 p1). “The very day after you've [closed the deal], TW did something to piss someone off,” the lawyer said: “The very confluence looks very bad. I think that played a lot into the FCC’s action.”
The cable operator may say it can’t legally provide NFL Network because the parties didn’t agree to a new deal after the Adelphia transaction, said a cable lawyer and another broadcast attorney. Time Warner has until Aug. 15 to file a response to the FCC action, said the order by Media Bureau Chief Donna Gregg. Time Warner criticized the Commission for not letting it answer NFL Network’s emergency petition before acting. “We believe the FCC’s decision is wrong, and we are considering our options,” Harrad said: “I can’t speculate [on] what those options are.”
The FCC said it acted in only 2 days without seeking TW input because “we do not believe that the NFL is required to demonstrate an overwhelming likelihood of success on the merits in order to be entitled to interim relief,” wrote Gregg. The crux of NFL Network’s complaint is that TW didn’t give customers 30 days’ notice it planned to remove the network. The FCC said if that happened it would violate agency rules.
TW faces an uphill battle if it appeals the order because it’s a Media Bureau action not subject to court review, said a person involved in the dispute. Under FCC rules, the company first must petition for review by the full Commission, the source said: “If Time Warner somehow wants to take that to court and somehow skip that step, it has to come up with a very novel theory.” The FCC is unlikely to seek public comment in reviewing the dispute, said 2 sources.
TW gave the channel an ultimatum that carriage would be cut off unless the company got a deal to provide the network to all customers buying a digital sports tier, said an NFL Network filing Aug. 1. “It does not appear that Time Warner objects in principle to carrying the NFL Network,” Gregg wrote: “Rather, Time Warner merely wishes to carry it on different terms.”
Immediate restoration of the channel to the 1.2 million customers who got it until Tues. is impractical, Harrad said, adding that NFL Network has been replaced by other programming on some systems. TW charges $1.95-$4.95 monthly for the sports package, said Harrad. NFL Network isn’t carried on a sports tier by any other video provider, a company official said. DirecTV and EchoStar customers get the network, and it’s available to every AT&T U-verse IPTV and Verizon FiOS fiber TV customer, the official said.
FCC intervention in contract disputes, including this one and a spat between Comcast and Mid-Atlantic Sports Network (MASN), may lead to court challenges, said cable consultant Steve Effros. “There is going to be a legal challenge questioning what the federal government’s role is in specific program contract disputes,” Effros, a former Cable & Telecom Assn. pres., said: “The cork has been taken out of the bottle by finally resolving the Adelphia thing… forcing them to make these other decisions if they are going to make them at all.”
A prehearing conference on the Comcast-MASN case is set for Mon. with FCC Administrative Law Judge Arthur Steinberg, we're told. Fri. is the first day the network can seek arbitration, but MASN hasn’t gone public with its plans. The FCC hasn’t indicated how it might handle a separate program access complaint by Verizon over its inability to strike a deal for Cablevision sports networks, said another source.