Indie Programmer's Comcast Carriage Complaint Seen Facing Uphill Battle
Christian programmer The Word Network could find it difficult to prove losing more than half its Comcast viewers in January rises to the level of malfeasance, lawyers with cable and programmer clients told us. Independent programmers naturally are frustrated by MVPD business decisions to drop or reduce carriage. Carriage complaints like TWN's are relatively rare because demonstrating an actual violation of rules or the Communications Act can be very challenging, said a lawyer with MVPD and indie programmer clients.
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TWN's being dropped in January from 456 Comcast systems was "precisely the behavior" the FCC worried about in its review of the operator taking over NBCUniversal and why the agency imposed conditions to prevent discrimination against nonaffiliated programmers, TWN complained Thursday in docket 12-1. TWN said Comcast violated NBCU conditions by cutting TWN distribution without a valid business justification while increasing distribution of and per-subscriber payments to affiliated networks, and by demanding digital distribution rights for TWN content for the network to keep full carriage.
Comcast's having those exclusive digital rights "would damage, if not entirely foreclose, TWN’s online presence and make it more difficult to maintain and expand video programming with other MVPDs," the network said, saying the cable provider's not negotiating with TWN without getting online digital rights violates program carriage rules and Section 616 of the Communications Act. It said losing those Comcast markets, including Washington, Baltimore and Philadelphia, cost TWN roughly 7 million of its 12 million Comcast subscribers. TWN said it was replaced by a different Christian programmer, Impact Network.
“The claims by The Word Network are baseless and we hope the FCC will agree," Comcast said in a statement: It's "broadly distributing Impact, an independent, African American owned service, in which Comcast has no ownership. Comcast still carries The Word Network, which is not African American owned, to millions" and these distribution decisions "are based on our reasonable business judgment.”
The operator pointed to letters in the indie's complaint dated Feb. 16 and May 26 to TWN outside counsel in which Comcast said it provided business justification when it told TWN that Impact has a broader programming array and likely would be of more subscriber value. Comcast said how it chooses to carry two unaffiliated networks can't give rise to a plausible affiliation discrimination claim. It denied ever demanding digital rights to TWN content.
A lawyer with MVPD and indie programmer clients said it's difficult to show a business justification for a carriage decision. The complaint Comcast didn't provide the network with that business justification doesn't mean the company doesn't have one, since an MVPD could make that justification many ways, the lawyer said. The expert said TWN's argument about Comcast-affiliated networks might not carry much weight since the cited networks don't readily appear to be comparable to or a substitute for TWN. Carriage complaints generally are hard to prove notwithstanding Comcast/NBCU conditions, and can drag on for years, said a lawyer with MVPD experience. Comcast also is fighting a Liberman Broadcasting asking the FCC to reconsider a 2016 decision to reject a carriage complaint (see 1609260049) and an appeal before the 9th U.S. Circuit Court of Appeals on a lower court's 2016 dismissal of an Entertainment Studios Networks/National Association of African American Owned Media lawsuit alleging racism in Comcast carriage (see 1704170017).