FCC Staff Work on WealthTV Program Carriage Complaint May End Soon

The father and son who run WealthTV said the company is focusing meanwhile on striking over-the-top video deals, since it can’t get carriage on major cable operators with the complaint unresolved. They and a lawyer who participated in the case when it was heard by an FCC administrative law judge said the commission has been slow in acting on the complaint. Chief FCC ALJ Richard Sippel in October 2009 ruled against WealthTV and in favor of the four cable operators, recommending that the commission dismiss the channel’s complaint. The FCC members must vote on whatever action the bureau recommends. A bureau spokeswoman declined to comment.

One reason for the delay may be that bureau staffers see whatever decision they recommend on the WealthTV case as a precedent for other program carriage cases, said a commission official. That would be in contrast to a recent bureau-drafted order, approved 4-1, on the Mid-Atlantic Sports Network’s complaint against Time Warner Cable, the official said. That order, unlike the forthcoming one on WealthTV, didn’t deal with a case heard by an FCC judge (CD Dec 22 p8). Bureau officials may also have more time to focus on WealthTV now that they've finished work on Comcast’s purchase of control of NBC Universal, a deal that closed this weekend, said officials inside and outside the commission.

"Part of the problem is there’s always stuff going on” at the FCC, even with the Comcast-NBC Universal order finished, said Public Knowledge Legal Director Harold Feld. He sat at WealthTV’s side during the ALJ hearings, not representing his current employer, and isn’t involved in the case anymore. “Unlike in Kevin Martin’s commission, when cable issues were a priority, this commission is more focused on broadband, so I think it’s more of a struggle for folks to have traditional media items come to the fore,” Feld said. Martin was active on cable issues before leaving as chairman in January 2009. He was criticized by some as not running the commission in a transparent way. WealthTV is “fighting for attention against items that are a priority for the chairman’s office,” and “even if the chairman receives something and circulates” it in the case, other commissioners may not see it as a significant item that needs their attention right away, Feld said. Yet he said that Comcast-NBC Universal “raised the profile of generic cable issues for the chairman’s office” and showed “there is a lot of active concern by traditional cable programmers about traditional cable issues, and my hope is there would be interest in moving to address those."

The wait for an order to circulate has been “just excessive, to put it nicely,” since the ALJ made his recommendation more than a year ago, said WealthTV President Charles Herring. “During that time, the operators have not allowed us back through their front doors to have a discussion, and we've had to figure out other ways to keep WealthTV moving forward, and that’s become very challenging when we've been shut out of 60 percent of the cable market.” The company contends that the lack of carriage by Bright House, Comcast, Cox and Time Warner Cable has dissuaded other cable operators from carrying the channel. Spokespeople for the four operators declined to comment on the case.

"We're just trying to figure out a business model that keeps us a viable” company long term, and over-the-top video distribution with companies such as Roku helps in that, Herring said. The channel is distributed nationally by AT&T’s U-verse and Verizon’s FiOS pay-TV services and is on about 150 small cable and telco-TV providers, reaching a total of 11 million households, he estimated. “We're going over the top,” said CEO Robert Herring, Charles’s father. “We have to make sure we survive, whatever they do,” he said of WealthTV and the four cable operators. Of the bureau, he said, “I think we're both pleased that they're taking their time to look at” the pending case if that leads to a more considered outcome.