Allbritton: ‘Ample Evidence' of Shentel's Bad Faith

Calls cable company's opposition to FCC petition "odd mixture of novel and ill-formed legal theory"

By John Eggerton -- Broadcasting & Cable, 1/18/2012 11:13:22 AM

Allbritton has fired the latest volley in the ongoing retrans battle with small cable company Shenandoah Telecommunications (Shentel).

In a filing with the FCC, a copy of which was obtained by B&C, Allbritton, defending its earlier petition to the FCC to force Shentel to put WJLA Washington back on its system, says that the record indicates Shentel negotiated in bad faith, and that Shentel's opposition to the petition, filed last week, is an "odd mixture of novel and ill-formed legal theory," and alleged "facts, that literally cannot all be true."

Allbritton said that WJLA had been unavailable to Shentel subscribers because the cable company had only pretended to negotiate then withdrew an offer WJLA had accepted and refused to proffer a new one, "refusing to accept its own proposed terms -- while piously, gallingly, and disingenuously claiming it did so to protect its subscribers from 'egregious rates' that it, in fact, proposed," said Allbritton.

In countering Shentel, Allbritton says that it is the Communications Act, not the common law of contracts, under which the company was acting in bad faith, that the company essentially admits to having violated the FCC's notice requirements to subs, and that it demonstrates a pattern of behavior -- including not telling the truth -- that the FCC needs to investigate further and levy a fine both for bad faith negotiations and for "apparent false statements" to the FCC.

The FCC currently has an open proceeding in which it has proposed clarifying just what constitutes good faith bargaining, but Allbritton suggests the case against Shentel is cut and dried and that immediate redress is "uniquely required" because Shentel subs are being denied "long-relied-upon WJLA programming.