TW Seen in Uphill Battle on Carriage Order

“The injunction issued by the Bureau is truly extraordinary and unprecedented,” said TW. The order lacked “even the rudiments of due process,” it added: “Time Warner will have no choice but to obtain judicial relief to protect its interest and those of its customers if the Bureau or the Commission has not acted by 10 a.m. Eastern time on Monday.”

The Commission rarely reverses a bureau order when the full agency is asked to review it, lawyers, including Womble Carlyle’s Howard Barr, said. Aides on the 8th floor usually rely on bureau officials to respond to such requests, he and 2 other broadcasting lawyers said. “The entity below that issued the decision is still going to be involved in the application for review,” Barr said: “There’s a reason you don’t see too many applications for review or reconsideration granted… Essentially you're trying to get the entity that made its decision to change its mind.”

Another hurdle to a TW suit is a pattern of appeals judges usually granting the FCC broad discretion on actions other than rulemakings, U. of Colo. Law Prof. Phil Weiser said. The Media Bureau order, unlike items Commissioners vote on, doesn’t set precedent. “Courts tend to rely on agencies to do their work and the most effective remedy is generally a timetable for making the decision in question,” said Weiser. By the time a court could rule, the issue probably would be moot, since the 30-day carriage period would have expired, said cable lawyers. A Media Bureau spokeswoman declined to comment on Time Warner’s filings. “The FCC is reviewing the pleadings,” she said.

Time Warner Cable began notifying customers Fri. it will remove the NFL Network if carriage negotiations fail, Mark Harrad, TW senior vp-communications, said. Material put in place of the NFL Channel, including C-SPAN 3 and HDTV channels from TNT and Discovery, has been removed, he said. Harrad wouldn’t discuss the company’s legal strategy.

Another challenge TW would face in a suit is that the FCC hasn’t acted in the NFL Network carriage case, Weiser and other lawyers said. TW didn’t appear to give customers the required 30 days’ notice that it would drop the channel, said the order from Media Bureau Chief Donna Gregg. She didn’t rule on the case’s merits. “Petitioning a court to hear an appeal of a decision not to decide is a difficult matter and requires a strong showing that the agency could decide the matter, has delayed doing so for no good reason and has prejudiced the party in question,” said Weiser.

Time Warner disputed Gregg’s statement, telling the FCC it didn’t get notice before the $17 billion Adelphia deal closed. TW said the FCC “lacks authority to enforce the customer service standards on which this order relies,” even if the cable operator did get enough notice before acquiring systems whose customers already got the NFL Network.

“NFL has no ‘must carry right’ on Time Warner’s systems,” the cable company said: “As would have been clear if Time Warner had been given the opportunity to present the facts as they actually occurred, NFL has satisfied none of the prerequisites for injunctive relief.” The Media Bureau relied on an “unusual procedural posture [in] this case,” TW said.

Cable lawyers, including one participating in the case, agreed the action was rare. The FCC last ordered a cable operator to restart carriage of a network in a 2000 case that involved TW and ABC (CD May 4/00 p1), said cable and broadcast lawyers. An FCC staffer declined to discuss precedents.