Commissioners Reverse ALJ Finding of Cablevision Discrimination
FCC 2-1 reversal of its administrative law judge on Game Show Network's programming discrimination complaint might largely reflect guidance set by the U.S. Court of Appeals for the D.C. Circuit's 2013 Tennis Channel decision more than the merits of the GSN complaint, said a lawyer with cable and programming agreement experience. Thursday's order reversed ALJ Richard Sippel's advisory ruling that Cablevision discriminated when it retiered GSN in 2011 (see 1611230046). Commissioner Mignon Clyburn, arguing for more deference to the ALJ's work, strongly dissented, calling the FCC decision "a dangerous precedent, one I hope will not become a trend.” Asked later about whether she thinks GSN was discriminated against, she said she wouldn't weigh in.
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Office of General Counsel Attorney Bill Dever said the order agrees with the 2015 Enforcement Bureau finding that GSN didn't show direct evidence of affiliation-based discrimination and there was no showing it was similarly situated to WE tv and Wedding Central (see 1510150044). He said the record shows stark differences between GSN and those Cablevision-affiliated networks on advertiser appeal and actual audiences. He said granting GSN relief wouldn't be consistent with the D.C. Circuit's Tennis Channel ruling. Judges there decided 3-0 for Comcast and said MVPDs treating channels differently for a reasonable business purpose is permissible under the Cable Act. Dever said with the reversal, Cablevision doesn't have to pay the fine or retier GSN. The order wasn't posted Thursday. Sippel didn't comment.
Cablevision parent Altice called the commissioners' decision "consistent with legal precedent and affirm[ing] our business decision to carry GSN on the appropriate tier for our Optimum customers." GSN counsel said it will consider next steps after it can review the decision and commissioners' opinions.
While voting to back the Enforcement Bureau, Mike O'Rielly said he couldn't understand why it took six years to resolve the 2011 complaint: "That is not acceptable." He agrees WE tv and Wedding Central weren't similarly situated networks, and Cablevision made its retiering decision based on business factors. O'Rielly also Thursday recommended the FCC work with Congress to roll back or sunset ALJ duties (see 1707130046). Pai, justifying his vote, said he relied on OGC staff judgment and believed it came to its position consistent with the facts of the law.
Clyburn said the FCC could benefit from holding its own judicial-style hearings but it's not structured to do so and thus has to rely on the ALJ. She said the ALJ structure was created because some issues require more granularity and attention, and the FCC should respect the process. She said the GSN case illustrates the challenges facing programmers unaffiliated with MVPDs and said the agency should move forward on protections for indies. She spearheaded 2016's small and indie programmer notice of inquiry (see 1601290047).