In a big shot in the arm to the case of some major MSOs, the Federal
Communication Commission's Enforcement Bureau said Wednesday that
WealthTV did not make its case that cable operators Comcast, Time
Warner Cable, Cox Communications and Bright House had discriminated
against it and said the commission should not mandate its carriage on
those operators' systems.
That came in its filing of a
recommended outcome to Administrative Law Judge Richard Sippel, who is
in the process of coming up with his own recommendation to the full
commission, based on a trial on the facts of the case.
its review of the evidence, the bureau said:, "WealthTV has not
satisfied its burdens of demonstrating that Defendants engaged in
conduct the effect of which was to unreasonably restrain the ability of
WealthTV to compete fairly by discriminating in video programming
distribution on the basis of affiliation or nonaffiliation in the
selection, terms or conditions of carriage."
It also said that
even had WealthTV made that case, it could not show that the
discrimination would have prevented it from competing fairly.
Agreeing with the cable operator defendants in the case, the bureau said that WealthTV had failed to present any
evidence that any of the operators' refusal to carry the channel was
based on considerations of affiliation of non-affiliation.
WealthTV claimed the operators discriminated against it by not distributing WealthTV, while carrying a similar channel, the now defunct Mojo service,
in which they had a financial interest. The MSOs said the issue was
cost of the channel versus its value, and that it was business, not
discrimination, that kept WealthTV off their lineups.
Media Bureau last fall, under then-chairman Kevin Martin, had advised
the commissioners that it thought the operators had discriminated
against WealthTV in favor of their own, owned network, but a majority
of the commmissioners were not ready to conclude that without
fact-finding and testimony before an ALJ, which came at a hearing in
There ensued a tug-of-war over jurisdiction that eventually wound up with the ALJ.
Sippel's finding will not be the last word. It is a recommendation that must then go to the full commission for a vote.
The Enforcement Bureau was a party to the hearing and had a representative there to vet the testimony.
also presided over a program-carriage complaint against Comcast by the
Mid-Atlantic Sports Network, and a third complaint, NFL Network vs.
Comcast, but the FCC dismissed that complaint after the two settled their dispute with a new carriage deal that put NFL Network on a more widely viewed digital tier.