Media Bureau Sends ‘GSN v. Cablevision’ to FCC ALJ
FCC staff took action on a second program carriage case in as many weeks. The Media Bureau on Wednesday sent the Game Show Network’s complaint against Cablevision to a hearing before an FCC administrative law judge. Seven days earlier the Office of General Counsel put on hold the same ALJ’s order that Comcast begin carrying the Tennis Channel as widely as other sports networks that the cable operator owns (CD May 4 p3). GSN made a case on its face that Cablevision favored its own affiliated networks over the independent channel in moving the complainant from an expanded-basic tier bought by most of the operator’s subscribers to a less-popular sports tier, the bureau said.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The hearing designation order saying a prima facie case was made instructed the ALJ to conduct a new examination. The judge should “develop a full and complete record and to conduct a de novo examination of all relevant evidence in order to make an Initial Decision,” said the HDO signed by bureau chief Bill Lake. “There are substantial and material questions of fact as to whether Cablevision has engaged in conduct that violates” program carriage rules, Lake wrote. Cablevision was affiliated with WE tv and Wedding Central, networks GSN claimed were similar to the indie and given expanded-basic carriage before the wedding network was shuttered in 2011, the same year GSN was moved to the sports tier (CD Oct 14 p8). WE tv is owned by AMC Networks, which separated earlier that year from Cablevision. Spokeswomen for Cablevision and GSN, owned by DirecTV and Sony, had no comment.
The HDO clarified some procedural issues for program carriage cases. The bureau’s finding of a prima facie case “is based on a review of the complaint (including any attachments) only,” Lake wrote. “If the Media Bureau determines that the complainant has established a prima facie case, the Media Bureau will then review the answer (including any attachments) and reply to determine whether there are procedural defenses that might warrant dismissal of the case.” Comcast has asked that the Tennis Channel’s complaint be dismissed.
GSN had “sufficient circumstantial evidence” that Cablevision “engaged in unlawful discrimination in the ’selection of … video programming’ by repositioning GSN to a premium sports tier, while carrying comparable affiliated networks on a more widely distributed tier,” the HDO said. “We do not reach the merits of this claim. Rather, we find that the existing record, including Cablevision’s Answer, makes clear that there are significant and material questions of fact warranting resolution at hearing.”
The plaintiff said it was similar to the two Cablevision affiliates because all targeted women, the order noted. “Cablevision claims that it did not believe that GSN’s programming had the potential to add significant value to Cablevision’s existing channel lineups, but it was willing to agree to a deal if GSN was willing to provide Cablevision certain favorable terms. One of these favorable terms provided Cablevision with ‘carriage flexibility.'” Cablevision’s response said it was “absurd” that GSN had a lot of programming aimed at females (CD Dec 15 p8). The HDO went through how the indie made an initial case that it and WE tv and the Wedding Channel dwelled on a similar “genre” and had similar ratings.