Liberman Broadcasting says Comcast has not made a case for why the FCC should dismiss its carriage complaint against the cable operator and that, instead, a compelling case remains for the FCC to take action.

"Comcast’s Answer distills to nothing more than an unavailing exercise in misdirection and evasion, premised on a misreading and misapplication of governing law," it told the FCC.

That came in its reply to Comcast's June 8 response to Liberman's April 8 program carriage complaint.

In a filing June 7, Comcast told the FCC that Liberman Broadcasting's (LBI) program carriage complaint related to the MVPD's dropping of three TV stations fails on three grounds: 1) As a broadcast network (Estrella TV), Liberman is not authorized to bring a carriage complaint, which is confined to cable networks (Comcast's negotiations were instead covered by must-carry, retrans regime); 2) Comcast's request for digital distribution rights as a condition of carriage is not a demand for a financial interest in Estrella; and 3) the complaint was filed beyond the statute of limitations.

LBI argues that it has presented "clear and compelling evidence" that Comcast discriminated against Estrella TV to favor its Spanish-language networks, Telemundo and NBC Universo, including by "unlawfully" demanding digital rights. It claims Comcast is in violation both of program carriage rules and NBCU deal conditions.

In its June 27 reply comments, Liberman said nothing Comcast said changes the fact that there is a "clear" case for a full FCC hearing.

IT said it clearly meets the definition of a video program vendor eligible to bring a complaint given that Estrella TV produces most of its own programming. It also said it remained clear that Comcast "unlawfully required LBI relinquish the digital rights to its own content as a condition of carriage."

And while Comcast said it had simply made a reasonable decision not to carry the network and that it was not related to favoring its own nets, Liberman said that didn't wash, either.

"Comcast’s treatment of Estrella TV does not reflect a rational commercial negotiation," it told the FCC, "as evidenced by distribution agreements Estrella TV has in place with every other major MVPD in the country. Only Comcast has refused to reach a fair deal to carry Estrella because only Comcast owns two competitor networks.

Liberman also said the complaint was filed in time and that Comcast is trying to rewrite the timetable.

The commission has 60 days to decide whether to designate the complaint for hearing, according to a Liberman spokesperson.

Liberman Broadcasting, parent of Spanish-language network Estrella TV, is filing a program-carriage complaint against Comcast at the Federal Communications Commission, saying the cable operator violated not only the commission's rules but NBCU merger conditions--Comcast can't discriminate in favor of its own content.

Liberman says Comcast is discriminating against Estrella TV to favor its own Telemundo and NBC Universo networks and "unlawfully" demanding that Estrella give up digital rights.

"We hope the FCC will move swiftly to put a stop to Comcast’s egregious behavior not only for the good of our network, but also to send a message to all independent programmers that they need not endure unlawful abuse at the hands of Comcast," Liberman president Lenard Liberman said.

 Estrella pointed to the failure to come to a retransmission deal with Comcast for three TV stations, in Denver, Houston and Salt Lake City, and the “collapse” of ratings following those stations going off Comcast systems. 

The contentious carriage impasse dates from last year, when KETD Denver, KZIZ Houston and KPNZ Salt Lake City were pulled, or dropped, depending no which side was talking (though, technically, only the broadcaster can keep a signal on after the contract has ended).

 Liberman was trying to upgrade from must-carry status to retransmission consent, electing to try to negotiate license fees for the stations. The other side of that election is that if a deal is not reached, Comcast does not have to carry them.

Comcast, which offers five dozen Hispanic networks, noted at the time that, even with the station exits, it was still Estrella's largest distributor and said it had been negotiating in good faith.

Comcast had a lot to say in response:

"Liberman Broadcasting has no case based on the law or the facts.  First, as a threshold matter, the program carriage rules simply do not cover broadcasters like Liberman. They do not apply to broadcast networks. Second, Comcast did not drop Estrella TV; Liberman pulled the broadcast stations in three markets, and Comcast continues to carry Estrella TV to about six million subscribers across the country,” the company said in a statement.

This purported carriage complaint is just the latest attempt by Liberman to extract carriage and fees from Comcast that are in no way justified based on the weak performance of Estrella TV...Comcast negotiated in good faith for months before Liberman pulled the Estrella TV signals in the three markets. In fact, we offered to continue to carry the stations under the existing arrangements, which are the same terms we have with other, comparable stations.  

“Our decision not to pay the exorbitant price demanded by Liberman was a reasonable business judgment in the interest of our customers – and one that has been confirmed over the past year given the absence of any demand for Estrella TV in these markets.

“We do not believe Comcast’s customers should have to pay any fees for Estrella TV, given its very limited appeal. Contrary to Liberman Broadcasting’s assertions, Estrella TV is not widely viewed among Latino audiences -- a fact consistently demonstrated by a wide range of ratings data in the three stations’ local markets, as well as in other Comcast markets that currently carry Estrella TV. Estrella TV’s weak performance in each market where Comcast distributes it today does not justify Liberman’s demand for even broader distribution.

“We are proud to be the nation’s largest cable provider of Spanish language network packages, with a distribution platform that delivers more than 60 Hispanic cable networks on the majority of Comcast Cable systems.” 

Public Knowledge, a big critic of big cable companies, said it thought Liberman had a case and that the FCC should "examine Lieberman's specific claims carefully."

"Liberman Broadcasting's program carriage complaint against Comcast is the latest to document the abuses of a large cable company," said John Bergmayer, senior Staff attorney. "Liberman has presented a strong case that Comcast has discriminated against its Estrella TV network in favor of Comcast's own Telemundo and NBC Universo and is violating the terms of the FCC’s conditions for accepting the Comcast/NBCU merger. The complaint raises legitimate concerns that Comcast favored its own affiliated programming over Estrella and demanded that Lieberman turn over digital rights, and used proprietary data about viewers gathered from its locked-down set-top boxes to make claims about Estrella's audience."

Liberman's complaint comes as the FCC has put a spotlight on diverse programming access to distribution platforms, including any contractual impediments, and Comcast is currently under attack from Byron Allen's Entertainment Studios, which is also complaining to the FCC about Comcast citing lack of carriage -- of Allen's diverse content -- and also claiming that violates the NBCU deal conditions.