Media Bureau Takes Back Cases from ALJ, in Rare Move
The FCC Media Bureau took back control over at least two batches of cases pitting cable operators against independent programmers that alleged they were discriminated against. An order by bureau Chief Monica Desai, adopted on Christmas Eve and released Monday by the FCC, said the office of the administrative law judge exceeded its authority by setting a date for a hearing after the 60-day deadline the bureau gave it to act. Since no decision was rendered by an ALJ by Dec. 9 on the cases, that office’s authority expired that day and the bureau will resolve them “without the benefit of a recommended decision from” a judge, it said.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Three former bureau staffers said it’s extremely rare for any bureau to take back a case. They couldn’t recall similar instances of hearing designation orders essentially being revoked in cases other than broadcast license hearings, and criticized the bureau’s action. An FCC spokeswoman declined to comment.
The cases involve program carriage complaints against Bright House Networks, Comcast, Cox and Time Warner Cable by WealthTV, the order said. Also involved is a similar complaint by Mid-Atlantic Sports Network against Comcast. The initial cases were referred Oct. 10 by the bureau to the ALJ after the other four commissioners pushed FCC Chairman Kevin Martin to send the disputes to a judge rather than have the bureau render a decision (CD Dec 15 p13).
An NFL Network complaint against Comcast also was included in the batch of cases sent in October to the ALJ, but it wasn’t listed in Wednesday’s bureau order. A filing Monday by the league asked the bureau to confirm that the order applies to the network. “In the wake of the Media Bureau’s order last week addressing similar discrimination claims brought by other independent channels, we simply are asking for clarification of the status of the discrimination claim that we filed last May against Comcast,” said an NFL spokesman.
Chief FCC Administrative Law Judge Richard Sippel, taking over the case from Judge Arthur Steinberg, said Nov. 25 that he wouldn’t heed the bureau’s finding of a prima facie case that the cable operators discriminated against the networks, the order stated. “Unfortunately, rather than set an expedited hearing schedule consistent with the HDO deadline, the ALJ greatly expanded the designated issues for hearing, then determined that the 60-day deadline” couldn’t be met, it said. “The ALJ had no authority to act inconsistently with the terms of the HDO from which he derived his authority. Commission case law makes clear” that’s so, it said. Steinberg, who is retiring, declined to comment, and Sippel didn’t reply to a message. A hearing had been set for March.
WealthTV believes the bureau recognized “the importance of addressing carriage access discrimination in a timely manner, especially for small emerging businesses,” said CEO Robert Herring in a written statement. A MASN spokesman said the decision “is consistent with the bureau’s responsibility to act swiftly to root out discrimination by powerful vertically-integrated cable monopolies.” The NCTA declined to comment, said a spokesman.
Comcast’s programming decisions are lawful, as any “fair and objective review” will bear out, a company spokeswoman said. The “very unusual Media Bureau order” seeks “to disrupt the reasoned adjudicative process that the same Media Bureau started only two months ago,” she added, saying the company is considering legal options. She called the action “especially puzzling” because congressional leaders have told the FCC and bureau to focus on the DTV transition (CD Dec 15 p1). Officials at Bright House didn’t reply to messages, a Cox spokesman declined to comment and a Time Warner Cable spokeswoman said the bureau’s decision was “disappointing.”
Three former officials of the bureau and its predecessors said its order didn’t seem well reasoned. “The commission will be in a very awkward position if it ultimately has to argue in court, where this will obviously go if the full commission really votes on it,” that the FCC took the cases out of the ALJ’s hands because of the missed deadline, since the FCC frequently misses deadlines, said a former official. Another former official said bureaus usually ask permission from judges before stepping in after a matter was set for an ALJ hearing. Barbara Esbin, a former bureau front-office official now with the Progress & Freedom Foundation, called the case “very extraordinary … As soon as it looks like there is going to be a fair hearing, the Media Bureau says ‘never mind’ and essentially revokes the ALJ’s authority to hear the case.”