The FCC commissioners have approved an order, circulated by Chairman Kevin Martin, that will send a program access complaint by Mid Atlantic Sports Network parent TCR Sports Broadcasting Holding, L.L.P to one of its administrative law judges (ALJ) for resolution and recommendation if MASN says the word.
The FCC has been under pressure from congress to get the hometown Washington Nationals games
wider distribution among hometown cable fans, including a number of the congressmen and their constituents..
The order found that TCR "provided sufficient evidence to make a prima facie showing that Comcast indirectly and improperly demanded a financial interest in MASN in exchange for carriage," in violation of FCC rules.
Comcast stuck with a statement that it released last week, when Martin circulated the order for vote: "Our decision with respect to carriage of MASN – a part time, overpriced network – is based on the best interest of our customers and not on the ownership interest of MASN. The truth is that the vast majority of our programming, including the vast majority of our sports programming is unaffiliated, so the MASN complaint is demonstrably false. We believe that any program carriage proceeding on this matter – no matter who is reviewing the facts -- will conclude that the MASN complaint is wholly without merit."
"Part time" and "overpriced" are key words in that statment, since Comcasts legal argument is that the reason it hasn't done a deal to carry MASN is not because it can't get a piece of the regional sports network, but becuase the price is too high.MASN spokesman Todd Webster said: "For 16 months, Comcast has broken the hearts of sports fans by blacking out the nationals games. Today, the FCC ruled that MASN has made the case that Comcast has broken the law."
In its finding of "sufficient evidence," the FCC cited in part TCR's claim that a representative of investment banker Allen & Co. who pushed for a financial interest in Comcast as part of a deal for Nationals carriage was not representing Major League Baseball, as advertised, but Comcast. However, Allen & Company vouched in a letter to the FCC that that was not the case. The FCC order paves the way for a more expeditious resolution of a long-standing impasse, but it is stayed for 10 days while TCR decides whether it wants to go the FCC judge route, or instead submit the complaint to arbitration under a condition imposed on the purchase of Adelphia by Comcast and Time Warner.
The order also appears to preserve some arbitration rights for Comcast, though it is not clear how they would be exercised."We're reviewing the options," said Webster, "and will determine how to best get the games to the fans as quickly as possible."
If MASN decides to go the ALJ route, the judge has 45 days to rule on the dispute, and then the FCC has another 60 days to act. The arbitration route would take about the same time.
MASN has the rights to the Nationals, but Comcast does not carry the games on its D.C. area cable systems serving hundreds of thousands of households. The two have been in a protected dispute, including lpast legal action, over Baltimore Orioles games that Comcast has carried but Orioles owner Peter Angelos wants to put on MASN at the end of a 10-year deal with Comcast. Comcast has argued it had a right of first refusal on a new deal for the games, while TCR says it has not put the games on a new entity, but is instead keeping the rights inhouse.
Angelos has rights to the Nationals as part of the deal that allowed the Washington team to move into the market that had been the Orioles' alone.
New FCC Commissioner Robert McDowell criticized FCC inaction on the MASN complaint in no uncertain terms during the public meeting approving the Adelphia deal earlier this month, asking the FCC to speed the process.
He said of the Monday vote: "Today’s order will provide the parties in this case with an expeditious path here at the Commission for resolution of their differences...One way or the other, a decision will be made."