9th Circuit Upholds FCC WealthTV Program Carriage Complaint Denial Favoring Four Operators
WealthTV lost a challenge to the FCC’s denial of the independent network’s program carriage complaint against four cable operators, exactly a week after the 9th U.S. Circuit Court of Appeals heard oral argument on the case. Thursday’s five-page decision from the three-judge panel said even if it had found some of the arguments correct that the agency erred on technical matters, they wouldn’t have changed the outcome. Judge Paul Watford asked mostly skeptical questions of the channel during oral argument, while Leslie Kobayashi’s one question also was skeptical and the third jurist, Richard Paez, asked no questions (CD March 11 p4).
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On more substantive matters, the three judges said they found no reason to second-guess the commission’s 2011 order upholding an administrative law judge’s recommendation that the agency find WealthTV wasn’t similar to the four operators’ affiliated channel, Mojo. Both channels were in HD in the earlier days of that technology, and now-defunct Mojo’s owner In Demand was owned at the time of the alleged discrimination by Bright House Networks, Comcast, Cox Communications and Time Warner Cable. Those were the four operators that were the subject of the program carriage complaint.
That an expert witness for an operator in the administrative-law hearing leading up to the ALJ’s recommendation against WealthTV was found persuasive in that case, and not by the ALJ in a subsequent case, wasn’t reason for the 9th Circuit to overturn the commission. Michael Egan’s testimony was discounted in the ALJ’s later decision in favor of Tennis Channel’s program carriage complaint against Comcast, which the FCC upheld. That order was the subject of oral argument in the U.S. Court of Appeals for the D.C. Circuit last month, with D.C. Circuit judges skeptical of the FCC’s case and often appearing to side with Comcast (CD Feb 26 p1). In WealthTV, “the agency reasonably relied on the expert testimony” of Egan “to conclude that the two networks did not show similar programming,” Thursday’s disposition said of the indie and Mojo. WealthTV calls itself a “lifestyle and entertainment network” on its website (http://bit.ly/Z7wsiK), and earlier Thursday the company said it’s preparing to start a news channel. (See separate report below in this issue.) The decision noted on the first page it’s “not for publication” and “not appropriate for publication and is not precedent” except as under some 9th Circuit rules.
"Even assuming that inconsistency with a later agency decision would undermine the validity of the FCC’s analysis in this case ... no such inconsistency has been shown,” the 9th Circuit said about Egan. “Egan himself acknowledged that he was applying two different modes of analysis in the two cases. Thus, there was nothing inconsistent about the agency finding the mode of analysis Egan applied to be persuasive in this case and not in the other.” Comcast is “pleased that this drawn-out litigation is finally over,” a spokeswoman said. The company is “gratified that the court has confirmed what both the FCC and” an ALJ “had already concluded -- that WealthTV’s allegations of program carriage discrimination were entirely baseless,” she said. Time Warner also is “gratified,” a spokesman said. The Media Bureau declined to comment, and spokespeople for Bright House, Cox and WealthTV had no immediate comment.
The FCC “reasonably relied on Egan’s conclusion that the two networks had a different ‘look and feel,'” the three jurists said of WealthTV and Mojo. “WealthTV provides no authority to suggest that it is unreasonable to consider ‘look and feel’ as one factor in determining how similar” two TV networks are, they said. “The FCC’s overall analysis was carefully reasoned and not intuition-based.” The agency “reasonably concluded, based on WealthTV’s own marketing materials, that WealthTV targeted a broader audience than MOJO did,” said the memorandum in 9th Circuit docket 11-73134. “Even under the employment discrimination framework” of the burden of proof WealthTV wanted used, the indie’s “claim would still hinge on whether the two networks were similarly situated,” said the order.
Burden shifting wouldn’t have “made a difference” because “the FCC reasonably determined that, regardless of which party bore the burdens of production and proof,” Mojo and WealthTV “were not similarly situated,” the memo said. “Even assuming either evidentiary ruling was error,” it said of WealthTV’s allegations the ALJ improperly kept out evidence in the case, “any such error would have been harmless,” the document said. On WealthTV’s argument the agency erred “in relying on the fact that WealthTV launched after MOJO’s predecessor networks,” the memo said, that’s “improperly premised on a later agency decision involving very different facts.”