The FCC has ordered Time Warner to reinstate the NFL Network on the systems it has newly acquired from Adelphia and Comcast until the FCC can act on an NFL petition for an emergency ruling on their carriage dispute.
"Based on the current state of the record," the FCC said Thursday, "we conclude that the NFL is entitled to appropriate interim relief. The FCC cited the public's interest in access to the network, saying it ouweighed any potential harm to Time Warner.
By contrast, the FCC said the NFL could suffer "irreparable harm" if viewers are denied the preseason games that begin in August and help establish viewing patterns for the rest of the season.
"Specifically, we direct that Time Warner reinstate carriage of the NFL Network on all of its newly acquired systems on the same terms under which it was carried prior to August 1, 2006, until we are able to resolve the NFL’s Petition on the merits," the FCC said. "In addition, due to the time-sensitive nature of the NFL’s request, we direct Time Warner to file its response to the NFL’s Petition on or before August 15, 2006."
While not prejudging the outcome, the FCC said the NFL had a sufficient likelihood of prevailing to warrant the temporary restoration of the network.
Although the FCC's Thursday order ended with the curious declaration that "Time Warner has established a sufficient prospect of success on the merits to justify this relief," that turned out to be a typo.
"We appreciate the FCC’s speedy action in response to our petition, and are gratified that the Commission has acted to protect the interests of cable consumers – and NFL fans – throughout the country," the NFL said of the FCC's decisoin. "We look forward to continuing discussions with Time Warner regarding long-term carriage of the NFL Network, and are happy that in the interim our fans will have access to our "insider" coverage of NFL training camps and the preseason as a result of this ruling."
Not surprisingly, Time Warner was not happy, saying the FCC had made the wrong call.
"“Time Warner Cable is currently reviewing the FCC’s order regarding the NFL Network.This order was issued without offering us the opportunity to respond to the NFL Network’s allegations," the company said in a statement. "We believe the FCC’s decision is wrong and we are considering our options.”
It had not reinstated the networks at press time--about 1:30 p.m. NYT. The FCC issued its order at about 10:30 a.m. An FCC spokesman said the FCC order meant immediately, but did not comment on how soon Time Warner would have before it was in violation of the order.
The NFL petition, filed earlier this week, claimed that Time Warner violated Section 76.1603(b) "of the Commission’s rules requiring adequate notice to subscribers before dropping a cable channel from cable systems Time Warner recently acquired from Adelphia Communications and Comcast Corporation." That period of adequate notice is 30 days, according to the Commission’s rules.
"As a result of Time Warner quietly and suddenly pulling our NFL Network channel off cable systems around the country last night at midnight, we were left with no alternative under FCC rules but to file this injunction," said the league in a statement Tuesday. "NFL fans who called us today said they were not given a fair chance on the eve of the NFL season to have their voice heard on this decision by Time Warner. We owe it to our fans to help them fight for their rights. Those rights were abruptly and unfairly taken from them late last night."
Systems that lost the NFL Network as of Aug. 1 included football hotbeds such as Cleveland and Dallas. (Kansas City was not one of the cities, as originally reported by B&C).
Calling the filing "frivolous," "Time Warner Cable spokesman Mark Harrad said earlier this week: "We think we are in full compliance with the FCC's notification rules. The rule is 30 days notice unless the change is beyond your control," Harrad said. "The NFL Network made it apparent to us that they would not allow TWC to carry their network in a manner that was in the best interests of our customers and our business," which he said only became apparent last week. "We notified customers as soon as the possiblity of that impasse became apparent," running ads to that effect in different markets last week, he said.
But the FCC said Thursday that: "Given the current state of the record, it appears that Time Warner discontinued carriage of the NFL Network without providing customers with the requisite 30-days notice.... Moreover, it appears that the decision made by Time Warner was “within the control of the cable operator”...since the termination of the NFL Network did not result from any uncontrollable external event, such as a natural disaster.
"Moreover, we find that the NFL has a reasonable prospect of showing that Time Warner’s actions, which affected millions of customers across the nation residing within numerous franchising authorities’ jurisdiction, constitute systemic abuses that undermine the statutory objectives. "
The two sides are at odds as the NFL Network looks to keep itself off of the digital sports tier on which Time Warner wants to place the network. The NFL says that monthly fees are not at issue, the differences are over where the network would be carried. The NFL is said to be asking $100 million for the package, or in the neighborhood of 90 cents per sub per month. If so, that is high by cable network standards. At the high end, ESPN gets three dollars a sub, but the bulk of top tier cable nets are in the 20 cent-50 cent range.