The trial that will decide whether or not Comcast discriminated against the NFL Network by putting it on a sports tier began Tuesday in an FCC hearing room. But, at least for the first day and perhaps beyond, a trial about access was not accessible to reporters.
According to a court observer, FCC Administrative Law Judge Richard Sippel closed the court after lawyers from both sides said the testimony would include too much proprietary information. The briefs in the case made public were full of the black bars that represent confidential information the parties maintain could hurt their businesses if made public.
According to the source, NFL lawyer Gregg Levy made the initial request, saying there was too much confidential information involved to repeatedly open and close the court to protect it.
Anyone not signing protective orders were required to leave the court, though not before the lawyers had made their opening statements.
That exclusion could well hold for the rest of the trial, which is expected to last another two days at least, including testimony from former NFL commissioner Paul Tagliabue and Comcast executives Brian Roberts, Steve Burke and Jeff Shell.
According to the source, the NFL and Comcast each took about a half hour in opening statements after planning for a much shorter stay. That was because the judge actively engaged them in questioning during the statements, according to the source.
While the NFL argued the case was about access, Comcast countered that it was about price. The NFL said that Comcast was retaliating because its OLN, now known as Versus, did not get a package of eight NFL games primetime games that the league eventually put on the NFL Network.
Lawyer Michael Carroll pointed out that the NFL Network cost "almost three times" the Golf Channel or Versus, the two Comcast-owned networks the NFL contends the operator favors by carrying them on a more highly penetrated tier. He said that if the NFL Net was more in line with Versus or Golf Channel, it would have gotten broader carriage.
Carroll argued that the NFL's strategy from the outset was to offer one of the most expensive networks on TV, then give cable operators the chance to bid for the eight NFL games and the Sunday Ticket package (now exclusive to DirecTV through 2014) as way to get carriage in 2004, before it had much high-value programming.
During the closed portion of the trial, NFL witness Frank Hawkins took the stand. After cross-examination by Comcast lawyers, representatives of the FCC's Enforcement Bureau asked Hawkins a couple of questions, according to the observer. He was followed by Hal Singer, an economic consultant with Empiris LLC.
NFL Network-Comcast is the first of three program access complaints slated before an FCC ALJ. The next will come April 21 with Wealth TV's complaint against Comcast, Cox, Time Warner Cable and Bright House Networks. The third is scheduled for May 5 pitting Mid-Atlantic Sports Network against Comcast.