FCC: Programmers Make Case For Discrimination

The FCC's Media Bureau finds that programmers will have their access/discrimination complaints heard by a judge

The FCC's Media Bureau  said late Friday that a half-dozen program complaints will be referred to an FCC administrative law judge (ALJ), including ones by the NFL and Mid Atlantic Sports Network (MASN) against Comcast. (Not included was the FCC's review of Time Warner's loos to MASN in arbitration over another carriage dispute.)

The FCC said Friday that in carriage complaints filed with the commission, the programmers, which also includes Wealth TV, had made a 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.

"The Commission found that in all of these cases the complainants did prove (the initial burden) that they were discriminated against by cable operators who refused to carry their programming," said an FCC spokesman late Friday, clarifying Monday that it was a failure to carry the networks on nondiscriminatory terms (Comcast carries the NFL Network)..

The FCC said it will also make a determination as to whether Comcast demanded a financial stake in NFL Network in return for carriage., which violates FCC rules.

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. The FCC also said that deadline would be delayed if the parties agreed to submit the disputes to arbitration. They have 10 days to tell the FCC whether or not they want to go that route.

Once the ALJ makes a determination, that becomes guidance for the FCC commissioners, who must vote on final action, according to an FCC spokesman.

Wealth TV, which filed four complaints, argued in its compliant that it was not being carried while operators were carrying similar channels in which they had an interest.

The MASN complaint againt Comcast boiled down to carriage of the network in two markets -- Roanoke, Va., and Harrisburg, Pa. MASN said Comcast should be carrying the games there, while Comcast said it met the terms of the original agreement, which was carriage in 2.1 million households and did not include carriage of the games in those out-of-market cities.

The NFL's complaint is essentially two-fold. It told the FCC that Comcast discriminated against the channel by putting it on a premium digital sports tier for which customers must pay, while carrying its own sports channels on the more widely viewed analog-basic tier that costs no extra.

The NFL says Comcast, the nation's largest cable operator, also dropped the network from its digital-basic tier after the league decided not to sell a package of eight regular-season games to Comcast (it decided to keep the games and put them on NFL Network to make that channel more attractive).

Comcast, which was the subject of three of the six complaints--from MASN, the NFL and Wealth TV--defended its programming practictes Friday and said it was confident that it could make its case to the judge.

"We believe we made strong cases that our programming decisions are in the best interest of our consumers and consistent with the law," said spokeswoman Sena Fitzmaurice  While we are still reviewing the Media Bureau decision, we are confident the hearing ordered by the FCC will bear out these facts.  Forcing these networks onto our cable systems will cost consumers millions of dollars and cause cable prices to rise."

As to the specifics of the sports-related complaints, Fitzmaurice pointed to the "freely entered contracts that the NFL Network and MASN signed, which the parties now seek to upend by unnecessary government intervention in the programming marketplace....As it relates to the NFL, Comcast and the NFL agreed by contract several years ago that the NFL Network would be available to nearly all of our customers who wish to receive it on a sports tier. Many other cable companies do not carry the NFL Network at all. It is particularly odd that the NFL Network wants to force its way onto cable systems while the NFL continues to deny access to its premiere content, NFL Sunday Ticket, to all cable subscribers."

Not surprisingly, the NFL was happy with the FCC's call. "We are pleased with today's FCC ruling and appreciate the Commissioners' attention to our complaint," said the league in a statement Friday (Oct. 10). "NFL cable viewers could soon be the real winners. We look forward to meeting in the near future with the administrative judge and Comcast representatives so that NFL Network which begins televising regular season games on November 6 can be available on the same tier as the Comcast owned sports networks."

Wealth TV seconded that: "WealthTV is appreciative of the careful analysis of WealthTV’s claims reflected in the Bureau’s order,"  said attorney Kathleen Wallman in a statement Friday. "Obviously, a great deal of time and effort by many at the Commission went into the decision released tonight. When wisdom confronts unfairness, justice results, which is what happened here."

“We applaud this decision and look forward to a swift resolution that will return Major League Baseball and local sports programming to the airwaves throughout MASN’s television territory,” said MASN Sunday in a statement.