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Appeals Court Denies WealthTV Challenge (Updated)

The U.S. Court of Appeals for the Ninth Circuit Wednesday declined to review the FCC decision that Time Warner Cable, Cox, Comcast and Bright House Networks did not discriminate against WealthTV in favor of their own, co-owned channel, Mojo HD.

The court agreed with the Federal Communications Commission's call that the multichannel distributors had denied carriage for legitimate, nondiscriminatory business reasons and that WealthTV could not prove that it and Mojo were similarly situated, which was a requirement for a showing of discrimination. It said it found Wealth TV's arguments "unpersuasive."

The court said the FCC's finding that the two channels were not similarly situated was supported by "substantial evidence."

Comcast had outlined its business reasons as "cost of carriage, the uncertain consumer appeal of WealthTV's programming, bandwidth constraints, the fact that WealthTV had attracted relatively few carriage agreements, the lack of experience of its owners in the programming business, and absence of outside investment support."

“We are pleased that this drawn-out litigation is finally over, and are gratified that the court has confirmed what both the FCC and an Administrative Law Judge had already concluded – that WealthTV’s allegations of program carriage discrimination were entirely baseless," Comcast said in a statement.

WealthTV, owned by Herring Broadcasting Co., did not immediately reply to a request for comment after the court verdict came on Thursday.

But reached on Friday, Herring Broadcasting president Charles Herring told Multichannel News: "We are disappointed with the decision. We're still reviewing it and we are considering our options." He said he did not know those options might be, and pointed out out that he had not talked with his lawyers because he was in Washington, D.C., shooting some footage of CPAC 2013, the Conservative Political Action Conference, for a new news channel, One America News Network, Herring is launching. Herring said the news network, being launched in partnership with the conservative-leaning Washington Times newspaper, would be deployed "on a conventional model” rather than over-the-top and that "a few" carriage agreements were in place with talks ongoing for others. He would not identify who the done deals were with or how many subscribers they represent. The number of households is still "real small," he said. A publicist for the new news network said it would launch in July with at least 10 million subscribers. WealthTV claims a base of 16 million subscribers.

In June 2011, the FCC denied the program-carriage complaint of WealthTV, the last of a group of such complaints that went before an FCC Administrative Law Judge and the only one that was not settled before the commission had to make that call. The vote was unanimous.

Mojo, a male-targeted and ad-supported channel, was launched by In Demand Networks, which the MSOs targeted in the complaint control. In Demand shut Mojo down in 2008, five years after it debuted.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.