Full FCC Stays ALJ Decision Ordering Comcast Carry Tennis Channel More Widely
The full FCC put on hold implementation of an administrative law judge’s December decision requiring Comcast to carry the Tennis Channel as widely as sports networks owned by the cable operator. The new decision largely reflects an Office of General Counsel order earlier this month staying implementation of the ALJ decision in the program carriage complaint where the independent channel alleged Comcast discriminated against it (CD May 5 p3). The new stay said it “will preserve the status quo while the Commission has an adequate opportunity to examine the record and the ALJ’s disposition of each issue closely.” The cable operator challenged Chief FCC ALJ Richard Sippel’s decision, while the indie sought an order requiring the wider carriage.
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Sippel’s ruling for the indie “is the first program carriage adjudication in which an initial decision requires the defendant to carry the complainant’s programming, and it presents important issues that are likely to recur in future program carriage adjudications,” the full-commission order said (http://xrl.us/bm72xd). Sippel “imposes a tier placement remedy without providing guidance on questions of compensation, a matter on which the parties disagree,” and “imposes a channel placement remedy that is not defined,” the order continued.
"Without examining the record in detail,” it’s impossible “to determine at this point whether Comcast is likely to succeed on the merits, but upon further examination of the record, the Commission may reverse or modify specific rulings,” the order said. “Harms to both parties may result from either compelling immediate compliance or granting a stay, but the balance of harms does not tilt sharply in favor of either party. If we compel immediate compliance, Comcast would be required to implement the carriage remedy without guidance on compensation, a matter that the parties dispute, and it may have to undertake multiple channel realignments to implement the channel placement remedy."
The stay avoids “potential disruption to consumers and any affected third-party programmers in the event that the Commission subsequently reverses or modifies the ALJ’s remedy,” it said. The pause won’t “unduly delay the grant of any relief to which The Tennis Channel may be entitled,” the order continued. It waived FCC rules requiring an order mandating carriage take effect when released unless it forces a defendant to delete existing programming.
The stay from the full FCC, “a welcome development” to Comcast, comes after there were “procedural and substantive flaws in the ALJ decision,” a company spokeswoman said. “We continue to believe it should not be upheld.” A Tennis Channel spokesman noted the order doesn’t overturn Sippel’s decision in the network’s favor. “We remain pleased that the commission is clearly moving forward with our case,” he said.
Commissioner Jessica Rosenworcel didn’t take part in voting on the order adopted Friday, the day she was privately sworn in. The order was released late Monday. Ajit Pai, not mentioned in the order, was sworn in Monday (CD May 15 p11) in a ceremony in the office of Chairman Julius Genachowski where Rosenworcel also was sworn in again.