The FCC trial of NFL Network vs. Comcast continued Wednesday, with the openness of that trial the first order of business.
After Bloomberg officially complained about FCC Administrative Law Judge Richard Sippel's decision to close the court to reporters, the Judge did not reopen the court, but agreed to provide expedited, though redacted, transcripts as quickly as possible, ideally within 24 hours, according to a source familiar with the proceedings.
According to that source, Judge Sippel suggested he may have made a mistake in closing the court Tuesda. However, the lawyers pointed out that it would be difficult to cross examine while worrying about how to circumscribe their questioning according to what confidential financial information they could bring up or not bring up in open court, particularly with the expedited time frame for the trial, which is scheduled to end Friday.
Lawyers for both sides had supported closing the trial.
The NFL has presented its witnesses, with the exception of former Commissioner Paul Tagliabue, who cannot appear until Thursday. Comcast has agreed that if cross examination of the last NFL witness is completed by the end of the day, it will not wait for Tabliabue, but will begin offering up its witnesses, which will include top execs Brian Roberts and Steve Burke, then let the former Commissioner weigh in.
The NFL complained last year that Comcast had discriminated against the network and in favor of its own sports networks by moving NFL Net to a sports tier that cost extra while carrying its nets on a more broadly viewed tier.
Comcast has said the issue is not discrimination but financial, and that if the NFL had asked less money for the channel, it would have gotten broader carriage. Comcast says it has an enforceable contract with the NFL that allowed it to move the channel to a sports tier. The NFL says FCC program carriage rules trump that contract.
At the same time that the FCC is hearing the case, the NFL and Comcast face a deadline on negotiations for continued carriage of NFL Network on that sports tier. There has been no deal yet and Comcast has informed subscribers to that tier that the network will be pulled off Comcast systems May 1.
While the trial is expected to end by Friday, don't look for a decision for a month or more.
Paul Gallant, a consultant with public policy advisor, The Washington Research Group, pointed out in an advisory that the judge's ruling is not the final word. His decision will be presented to the full commission for a vote.
And even that won't come for a while. According to someone familiar with the process, after both parties have signed on to an official transcript of the proceeding, each has three weeks to come up with its recommendations for what the decision should be, including remedy.
The judge makes his ruling, then sends it to the commission, which Gallant points out will likely not simply "rubber stamp" the case, given its precedential value.
Gallant says he does not expect a decision before late May, in part because there are related access complaints—all involving Comcast as well as other major cable operators—scheduled for the next couple of weeks. “Once the judge makes his recommendation, the full FCC will need to review the case. A realistic timeframe for resolution is late summer, in time for the NFL’s fall kickoff in early September,” he says.
Then, of course, whoever doesn't like the outcome can, and likely will, appeal it in federal court.
Gallant has some experience with FCC process as a former FCC advisor, analyst and aide to then Chairman Michael Powell.