FCC Judge Asked to Take Three Cable Cases Back from Media Bureau
An FCC administrative law judge was asked last week to take back control of cable carriage complaint cases that the Media Bureau deemed to have expired because a 60-day deadline passed (CD Jan 2 p7, Dec 29 p2). The cable operator defendants said the judge still has authority over the three batches of cases because the bureau lacked power to impose the deadline in its hearing designation order sending the disputes to the ALJ. A motion for reaffirmation by Time Warner Cable on behalf of itself and Bright House, Cox and Comcast and other filings asked Chief ALJ Richard Sippel to hew to the schedule he had set. Independent programmers Mid- Atlantic Sports Network, NFL, and WealthTV are the plaintiffs.
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“The ALJ should not capitulate to the Media Bureau’s attempt to usurp the independence and authority of the administrative hearing process,” said TWC Tuesday. “Once the HDO was issued, the ALJ has absolute authority over the course of the hearing until” an initial decision is made, said the company. Sippel should stick to the schedule set Dec. 12 but extend all deadlines for the amount of time lost between the bureau’s Dec. 24 order and release of the reaffirmed schedule, said TWC. A hearing was scheduled for March 17. Sippel and other ALJ officials didn’t reply to messages seeking comment.
Comcast criticized a Wednesday Media Bureau order ending all parts of the proceeding before the ALJ by finding the judge hadn’t acted on the third case by the deadline. “The ALJ should treat the New Year’s Eve Order as ultra vires [beyond powers] and proceed with the hearing,” on the NFL’s case against it, the cable operator said Friday: The document “is expressly based on the same flawed logic as the Christmas Eve Order.” Bright House said the judge shouldn’t wait for oppositions to the cable defendants’ request and asked Sippel to immediately grant Tuesday’s motion.
FCC Chairman Kevin Martin has said the bureau acted properly to take back the first two cases, noting the bureau sent the cases to the ALJ in the first place. “There’s no question about the legal authority,” he told reporters Tuesday. “I don’t know if the Media Bureau will be able to finish before January 20th,” when his chairmanship may end, he said, “but I do think that I and the Media Bureau were concerned about trying to get this finished as quickly as possible.” An FCC spokesman declined to comment.
Responding to TWC’s request, the Enforcement Bureau said it never took a stance on whether the Media Bureau’s deadline amounted to a requirement to which the ALJ was bound. In a Wednesday filing, Enforcement Bureau Chief Kris Monteith and others said the bureau affirmed that the Media Bureau could issue a hearing designation order without getting approval from all FCC members. The Enforcement Bureau said previous comments on a schedule for the case or discovery “were made in the context of imparting to the Presiding Judge the importance of expediting the resolution of this case to the fullest extent possible.”
WealthTV said Comcast is using the DTV transition, which the cable operator has said the FCC ought to focus on instead, as an excuse to delay the proceedings. Bright House, Comcast, Cox and Time Warner Cable paid about $80 million for cable-affiliated Mojo May 1, 2007, through 2008, estimated WealthTV President Charles Herring. He said his company offered free carriage. An NFL spokesman declined to comment on the cable operators’ request. MASN sees last week’s filings as “throwing a Hail Mary pass after trying every other play in the book,” said a spokesman for the network. “The cable companies’ request that the ALJ seek to trump the authority of the bureau that empowered it is brazen and unprecedented.”
“It doesn’t surprise me” that the four operators asked the ALJ to reassert authority over the cases, Herring said. “Anybody who looks at what is going on [would conclude] that the FCC took the appropriate action,” he added. “What took place at the administrative law judge level was completely unacceptable” because Sippel initially assigned the case to Arthur Steinberg, who just retired, said Herring. “I don’t think that we had a fair opportunity based on his retirement.”