An FCC administrative law judge (ALJ) has ruled that a trial will go forward on program discrimination complaints against Comcast, Time Warner, Cox and Brighthouse, but that it will start fresh with the facts of the cases and cannot be finished within the 60-day time frame proposed by the FCC.
The FCC's Media Bureau last month had concluded that the complainants in a half-dozen program access complaints, including the NFL, WealthTV, the Mid-Atlantic Sports Network, had made Prima facie case that Comcast, Cox, Time Warner Cable and Brighthouse had violated the FCC's rules against discriminating against outside vendors in favor of an affiliated network.
But the FCC also said there were several factual disputes that it could not resolve, and so set all for adjudication, with a decision required within 60 days. FCC Chairman Kevin Martin would have preferred the FCC bureau act on that prima facie evidence, but the other commissioners wanted to take the further step of referring the complaints to FCC judges to make the call.
In an opinion, a copy of which was obtained by B&C, FCC Judge Arthur I. Steinberg granted cable operators' request for more than 60 days, saying the FCC's time frame "cannot be achieved" given the "extremely complex proceeding involving six separate program carriage complaints" against four defendants. The operators had said 60 days was unrealistic and insufficient.
And while the Media Bureau said a prima facie case had been made, the judge granted the operators' request that the hearing would start fresh, make no such presumption, and base its decision "solely on the evidence compiled during the course of the hearing, and not on the basis of how those questions were addressed in the HDO [Hearing Designation Order]."
A Comcast spokesperson had no comment at press time, but the NFL responded in a statement, applauding the judge's decision not to send the complaints back to the commission for clarification of the wording. Comcast had sought review by the full commission first before sending it on to the ALJ, a request that was essentially mooted by the judge’s decision to change the wording.
Instead, the judge modified the wording at issue as follows:
"whether the defendant engaged in conduct the effect of which is to unreasonably restrain the ability of the complainant to compete fairly by discriminating in video programming distribution on the basis of the complainant’s affiliation or non-affiliation in the selection, terms, or conditions for carriage of video programming provided by the complainant in violation of Section 76.1301(c)."
"if the Administrative Law Judge determines that the defendant has discriminated against the complainant’s programming in violation of Section 76.1301(c), whether mandatory carriage of the complainant’s programming on the defendant’s system is necessary to remedy the violation and, if so, the prices, terms, and conditions for such carriage, and such other remedies as the Administrative Law Judge recommends."
“NFL Network is pleased that the Administrative Law Judge has rejected Comcast's attempts to delay this proceeding through a needless appeal to the full Commission," said the League in an e-mailed statement, framing it as "an appeal that sought to challenge the clear legal standards that support the NFL Network's complaint." "We're particularly glad to note that the ALJ's order did not accept Comcast's position that it was exempt from the statutory prohibition against discrimination because of its contract with the NFL Network."
"We will now turn to proving our case in the ALJ factual hearing, and will do our utmost to help the ALJ complete the hearing expeditiously, as he has promised to do.”
The judge did not say how much longer than 60 days the trial might take.
"The FCC's Media Bureau has found that the (legal) standard of discrimination has been met and we hope that the judge resolves this matter in favor of consumers as soon as possible," a spokesman for FCC Chairman Kevin Martin said late Wednesday.
The Mid-Atlantic Sports Netwwor (MASN) was pleased by the decision. "MASN welcomes the Administrative Law Judge’s decision to move expeditiously to trial," the regional sports net said in a statement. " The cable companies’ strategy of delay and obstruction would have further harmed the very consumers who are already being denied access to our independent, local programming. We are confident that on the merits and on the evidence, MASN will once again prevail and we look forward to presenting our case. "