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Bloomberg: Take ALJ Out of Program Carriage Complaint Equation

Bloomberg has advised the FCC to stop referring program carriage disputes to administrative law judges and instead empower the Media Bureau to conduct sufficient discovery to resolve the complaints.

That came in reply comments to the FCC on the FCC's proposed revisions to program carriage rules.

Bloomberg is concerned that the Media Bureau could go that route with its neighborhooding complaint against Comcast, which it has yet to decide, delaying that process needlessly when the bureau has the expertise to decide the issue, a point it made in its filing. It said that the bureau "is in the best position to determine the information it needs to resolve disputes, and such a process would eliminate the inevitable discovery disputes, and attendant delays that would result if party-to-party discovery and numerical limits on discovery are adopted."

Whatever the FCC does will not apply to that neighborhooding complaint, since the changes are not retroactive.

The FCC has not proposed taking the ALJ out of the equation, which can add months or even years to the process.

Bloomberg also put in a pitch for compensatory damages, saying cable operator arguments that such payouts would encourage frivolous complaints were exaggerated. "Between the risk of retaliation from MVPDs and the significant resources needed to initiate a program carriage complaint, no independent programmer would opt to file a complaint unless it had no other option," said Bloomberg.

The FCC in July voted to grant interim carriage during the adjudication of cable-network program-carriage complaints, or true-up payments for nets that have never been carried, and set deadlines for dealing with those matters. Such a mechanism currently does not exist. The order also better defines what type of complaints are, or are not, likely to have merit, and setting up shot clocks for FCC action.

But the FCC teed up a lot of questions for comment on just how it should structure the changes, including being able to collect damages in program carriage cases, defining retaliation as a form of discrimination, and codifying who bears the burden of proof (there was some confusion in the WealthTV complaint).

Reply comments had been due Dec. 28, but parties from both sides asked and got a holiday extension to Jan. 11.