Last ALJ Cable Complaint at FCC Being Worked On By Staff
FCC bureau-level staffers appear to be continuing to work on wrapping up a program carriage complaint heard by an administrative law judge, the last such case pending at the agency, commission officials said. Representatives of the Media Bureau and Office of General Counsel have talked about how to address the recommended decision from the judge, they said. The judge recommended WealthTV’s case against Bright House Networks, Comcast, Cox Communications and Time Warner Cable be dismissed (CD Oct 16 p6). Meanwhile, Comcast is the subject of a new complaint this week by the Tennis Channel, alleging the cable operator discriminates against the channel over programming it owns.
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“Comcast isolates Tennis Channel on a premium sports tier received by a small fraction of Comcast subscribers while it carries Comcast-owned networks that compete with Tennis Channel on basic tiers available to far more subscribers at no additional charge,” the programmer said in a news release Wednesday. “Following protracted discussions,” Comcast in June declined to carry the Tennis Channel on a more widely viewed tier, the complaint said. The cable operator gave “no reason for its decision, which has stranded the Tennis Channel on a tier received -- for a substantial extra charge -- by only one tenth as many Comcast subscribers as Golf and Versus.” The cable operator owns stakes in those channels.
The programmer “had numerous discussions with” Comcast about being moved to a service tier with more subscribers, as the cable operator recently did with MLB, NHL and NBA channels Comcast has stakes in, Tennis Channel CEO Ken Solomon said. “We made offers with added incentives for it to move us to a competitive, broadly penetrated service tier.”
Almost every household that buys cable from Comcast can choose to subscribe to the Tennis Channel, a spokeswoman for the cable operator said. A 2005 contract lets Comcast carry the network on the Sports Entertainment Package, where it is now, she added. “We are fully honoring the terms of our agreement with Tennis Channel and plan to continue carrying the network for our customers and tennis fans. We look forward to outlining the facts of this groundless complaint, including our existing contract, to the FCC.”
In the WealthTV case, Media Bureau and General Counsel staffers seem to be trying to reconcile Chief FCC ALJ Richard Sippel’s recommendation with responses from the defendants and plaintiff so the arguments can be mentioned in an item to go before commissioners, agency officials said. No item is circulating yet and it’s unclear what the bureau may recommend commissioners take to address Sippel’s decision -- which must be voted on by FCC members to be finalized -- they said. Commissioners don’t appear to be pressing for a vote on the matter, and when they act it won’t likely be directly on the ALJ’s recommendation but rather on an item from the bureau, they said. The bureau could circulate an order or a memo on the subject, an official said. It doesn’t appear that the bureau has finished work on the item, several officials said. A bureau spokeswoman declined to comment. Cox, Comcast and Time Warner Cable spokespeople declined to comment on the case and Bright House representatives didn’t reply to messages.
The father and son who run WealthTV want the FCC to act on their complaint and don’t know what staffers are doing on the issue, they told us. WealthTV alleges the four cable defendants discriminated against it by not agreeing to carry the channel while distributing what the plaintiff described as a similar network owned by the operators. President Charles Herring and father Robert Herring, the company’s CEO, said they want the regulator to allow them to appear before commissioners to say why they think the members ought to vote to approve the complaint. Under FCC rules, they can’t do that without giving defendants the chance to sit in, something they worry will lead them to being outgunned because collectively the defendants employ far more lawyers.
“I just can’t imagine them making a decision without hearing directly from the parties,” Charles Herring said. The company also wants to speak with commissioners and their aides about the program carriage complaint process, something WealthTV’s lawyers advised against while its case is pending, the Herrings said. That advice makes sense because appearing before commissioners while a complaint is pending could give the impression that WealthTV was trying to influence the outcome of the case, a commission official said.
“WealthTV’s example is one of the prime examples and few examples that exist showing the process is broken” for handling such complaints, Charles Herring said. “We've gone on for more than two years not being able to knock on the doors of Time Warners and Comcasts because there is an open complaint. … Until they address the process and put in expedited, robust, meaningful regulations,” rules governing cable carriage “will continue to be abused,” he said.
The Herrings aren’t optimistic they'll reach a settlement with the four cable operators, as occurred last month between Comcast and the Mid-Atlantic Sports Network (CD Dec 24 p7). Sippel dismissed that case, leaving WealthTV as the only one unresolved of a batch of three he heard this spring. Comcast and the NFL Network also ended their dispute. “We would definitely would like a settlement -- whenever you can resolve things between the parties, that is quicker, better,” Charles Herring said. “We're ready, but they just don’t want to talk,” Robert said. “I think they are just going to beat up on the little guy and show everybody else what they can do.”