FCC Judge May Back Comcast in Carriage Case, Lawyers Say
The administrative law judge overseeing a FCC program carriage complaint against Comcast may recommend that commissioners find for the cable operator and against the sports network that made the case, after the Enforcement Bureau sided with the cable operator, said industry officials not part of the case. They cited past precedent in which the ALJ pays close attention to bureau comments, and the fact that defendants in general have a hard time winning such cases. An MASN spokesman said its case is “especially compelling.”
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The commission this week released to reporters a version with blackouts of confidential material (CD Aug 5 p11) of the bureau’s July 31 comments in Mid-Atlantic Sports Network v. Comcast. The bureau said MASN didn’t show Comcast favored regional sports channels owned by the cable operator over the independent channel, which carries Baltimore Orioles and Washington Nationals games.
Chief FCC ALJ Richard Sippel should find Comcast didn’t violate Section 76.1301(c) of commission rules, said the document, signed by enforcement Chief Kris Anne Monteith and bureau officials who sat in on the May hearings before Sippel. MASN wants Comcast, already carrying it in the Washington, D.C., market, to also distribute it in areas of southern Virginia and Pennsylvania that are part of the baseball teams’ markets because the cable operator carries its own regional sports networks there. “Comcast has treated MASN differently than it has the Comcast RSNs in certain respects” because the company said channels it owns are treated “like siblings” and not “strangers,” the bureau said. “Notwithstanding evidence of disparate treatment, the Bureau submits that the sine qua non for a carriage decision” under the section isn’t whether a cable operator “has totally ignored the practical considerations and marketplace realities” of owning programming, it added. Instead, the threshold is whether Comcast engaged in a pattern of discrimination, which MASN didn’t prove occurred, the comments said.
“Comcast has effectively and substantially rebutted MASN’s direct case purporting to demonstrate that Comcast’s decision was based on affiliation, and MASN has failed to prove that Comcast’s business justifications were pretextual,” the bureau said. Even if Sippel were to find Comcast discriminated against the programmer, “MASN has not satisfied its burden of demonstrating that Comcast’s denial of carriage in the Disputed Areas unreasonably restrained MASN’s ability to compete fairly.”
The bureau’s “recommendation is at odds with the intent of Congress in the Cable Act and FCC precedent,” said a MASN spokesman. “The Enforcement Bureau’s approach inexplicably ignored critical evidence of Comcast’s long-lasting animus toward MASN.” The bureau’s “selective use of evidence appears to have been tailored to fit a desired conclusion,” the spokesman added. A Comcast spokeswoman declined to comment.
FCC ALJs don’t have to follow the recommendations of the bureau in making their recommendations for what action the full commission should take. The document is “a persuasive brief from the one neutral party involved,” said analyst Paul Gallant of the Washington Research Group. “So it probably gives Comcast the edge in winning the case.” Few have won similar cases before ALJs before, said a cable lawyer. “By and large a big sophisticated cable company isn’t going to lose that case, they're either going to settle it” before the judge makes a decision “or win it,” the attorney added.
The bureau’s recommendations may bolster Comcast’s hand in negotiations to carry MASN in the additional areas where it seeks distribution, said several industry officials. The programmer and cable operator met last week to discuss a settlement (CD Aug 3 p6), but it’s unclear whether they'll meet again. Spokespeople for both sides declined to comment on the talks. “Maybe this will encourage MASN to try to settle,” speculated an industry official, “though presumably more on terms to Comcast’s liking.”