Carriage Fight over Regional Baseball Channel Heads to FCC
A carriage dispute between Time Warner Cable and the network carrying Orioles and Nationals games will move to the FCC, now that the company plans to appeal an arbitrator’s finding for the independent channel. Mid-Atlantic Sports Network on Monday released the arbitrator’s Jan. 7 interim award in its favor. In his decision, Jerome Sussman sharply criticized Time Warner Cable’s refusal to place MASN on the company’s expanded-basic tier, reaching more than 1 million subscribers in the Tar Heel state. The award paves the way for Sussman to order Time Warner Cable to carry MASN there, where it’s the largest cable operator.
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The dispute hinges over whether MASN is a regional sports network as defined by a July 2006 FCC order approving the $17 billion sale of Adelphia to Time Warner and Comcast. Sussman found that the channel is an RSN, as it claimed, and that Time Warner effectively denied it carriage in declaring that it would place MASN only on a digital tier that fewer subscribers see. Since only about half of Time Warner Cable subscribers in North Carolina get digital cable, and since the company carries similar networks more widely on analog cable, its rebuff of MASN amounted to denying it carriage, Sussman found. “This is exactly the kind of discrimination I think the FCC intended to prevent,” he wrote: “TWC had both motive and opportunity to discriminate against TCR,” the owner of MASN.
Time Warner Cable’s own News 14 Carolina carries games of the NBA’s Charlotte Bobcats, making the cable operator a potential competitor to MASN, said Sussman. News 14 got rights to carry those games after Carolinas Sports and Entertainment Television failed, thanks to being denied Time Warner Cable carriage, he wrote. “These facts suggest that the possibility that TWC is hoping to repeat that scenario here and scoop up the rights to the Washington Nationals and the Baltimore Orioles if MASN is put out of business. By virtue of its dominant position in the North Carolina market place, TWC certainly had the opportunity to discriminate.” But Sussman noted that News 14 primarily carries news and there was no evidence that it wants to air MLB games if “MASN were squeezed out of business.”
Time Warner Cable will appeal the arbitrator’s decision, the company said. Far from showing intent to discriminate against MASN, the cable company said, the decision against wide carriage of MASN arose from the fact that the network shows games played by distant teams “of little interest to the great majority of our customers in North Carolina.” The majority of customers shouldn’t be forced to absorb higher programming costs related to MASN, said Time Warner Cable. “We also believe it is inappropriate for government to intervene in private carriage decisions.”
Commissioners are studying whether to redefine “regional sports network” as constituted under the Adelphia order, said an FCC official. Programmers other than MASN no longer can exploit the Adelphia order’s regional sports network clause and seek arbitration, the FCC said in finding for the America Channel in a carriage dispute with Comcast (CD Sept 27 p8). The review isn’t done, with no timeline evident, said the FCC source. It’s difficult to define regional sports networks, said the source.
Sussman said he'll next decide which carriage offer is fairer: Time Warner Cable’s or MASN’s. The decision is expected within a few months. Sussman didn’t return a call seeking information on timing. The arbitrator criticized both sides in his decision. “Both Claimant and Respondent were too cute by half in the maneuvering leading up to the arbitration,” he wrote.
MASN wouldn’t disclose the terms of its carriage offer. When Comcast began carrying the network in the Washington, D.C., area, it raised customers’ monthly bills $2. With the fight seemingly on its way to the FCC, MASN “will continue to make our case,” a spokesman said. Suddenlink is the only other pay-TV company in North Carolina that doesn’t carry MASN, he said. The channel is available to 750,000 Charter, DirecTV, EchoStar and Mediacom subscribers in the state, he said. The channel shows Orioles and Nationals games there. Its MLB region spans from Harrisburg, Pa., to Charlotte, N.C., he said.