FCC's Enforcement Bureau Says MSOs Didn't Discriminate Against WealthTV
Cable opertors involved include Comcast, Time Warner Cable, Cox Communications and Bright House
By John Eggerton -- Broadcasting & Cable, 7/8/2009 6:35:52 PM
In a big shot in the arm to the case of some major MSOs, the Federal Communication Commission's Enforcement Bureau said Wednesday that WealthTV did not make its case that cable operators Comcast, Time Warner Cable, Cox Communications and Bright House had discriminated against it and said the commission should not mandate its carriage on those operators' systems.
That came in its filing of a recommended outcome to Administrative Law Judge Richard Sippel, who is in the process of coming up with his own recommendation to the full commission, based on a trial on the facts of the case.
Based on its review of the evidence, the bureau said:, "WealthTV has not satisfied its burdens of demonstrating that Defendants engaged in conduct the effect of which was to unreasonably restrain the ability of WealthTV to compete fairly by discriminating in video programming distribution on the basis of affiliation or nonaffiliation in the selection, terms or conditions of carriage."
It also said that even had WealthTV made that case, it could not show that the discrimination would have prevented it from competing fairly.
Agreeing with the cable operator defendants in the case, the bureau said that WealthTV had failed to present any
direct evidence that any of the operators' refusal to carry the channel was based on considerations of affiliation of non-affiliation.
WealthTV claimed the operators discriminated against it by not distributing WealthTV, while carrying a similar channel, the now defunct Mojo service, in which they had a financial interest. The MSOs said the issue was cost of the channel versus its value, and that it was business, not discrimination, that kept WealthTV off their lineups.
The FCC's Media Bureau last fall, under then-chairman Kevin Martin, had advised the commissioners that it thought the operators had discriminated against WealthTV in favor of their own, owned network, but a majority of the commmissioners were not ready to conclude that without fact-finding and testimony before an ALJ, which came at a hearing in April.
There ensued a tug-of-war over jurisdiction that eventually wound up with the ALJ.
Sippel's finding will not be the last word. It is a recommendation that must then go to the full commission for a vote.
The Enforcement Bureau was a party to the hearing and had a representative there to vet the testimony.
Sippel also presided over a program-carriage complaint against Comcast by the Mid-Atlantic Sports Network, and a third complaint, NFL Network vs. Comcast, but the FCC dismissed that complaint after the two settled their dispute with a new carriage deal that put NFL Network on a more widely viewed digital tier.
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