While the FCC hearing on Wealth TV vs. a quartet of major cable MSO's starts today with arguments on evidence, the meat of the trial does not start until tomorrow's opening arguments, a year to the day from Herring's filing of the complaint.
But the battle lines are already clearly drawn.
Wealth TV parent Herring Broadcasting claims the operators--Comcast, Time Warner, Cox and Bright House, discriminated against its channel in favor of a similar one in which they had a financial interest, which would be a violation of the Communications Act, which does not allow program distributors to "unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly by discriminating in video programming distribution on the basis of affiliation or non-affiliation of vendors."
Comcast, in its pre-trial briefing, says it did negotiate for the channel, did make an offer, did not discriminate, and that MOJO (no longer in business) and Wealth TV were not even similar channels.
It also says the burden of proof remains on Herring, which had argued in pre-trial motions that the burden should instead shift to the four MSOs to show "that their conduct had a legitimate, nondiscriminatory rationale," pointing out that in "another type" of program access complaint the FCC does adopt a "burden-shifting" standard. "As the ALJ [administrative law judge] has held, 'WealthTV SHALL HAVE both the burden of proceeding with the introduction of evidence and the burden of proof."
Comcast, the nation's largest cable operator, says flatly that WealthTV "cannot prove its case," or even provide any direct evidence to support it.
"To the contrary," says Comcast, "the evidence will show that Comcast not only negotiated in good faith, but also made two legitimate, good faith offers," comparable to ones WealthTV accepted from others." Comcast says the reason it did not carry the channel was differences over terms and conditions of carriage. "WealthTV failed to persuade Comcast that carriage of [the channel] was a sufficiently compelling value proposition for Comcast or its subscribers based on the terms and conditions," which Comcast says was guaranteed extensive carriage at "high license fees."
Comcast says its decision not to carry the channel did not restrict Wealth TV's ability to compete fairly, saying it was free to seek carriage from various direct competitors including satellite and telco TV.
Comcast also says Herring has a high First Amendment bar to clear in asking the FCC to overrule Comcast's editorial judgment about whether or not to carry a channel, and under what conditions.
Wealth TV is seeking mandatory carriage as a remedy, and Comcast says that even granting, for the sake of argument only, that the FCC found discrimination, mandatory carriage would not be a narrowly tailored remedy because MOJO is defunct, so that WealthTV is "not currently suffering any arguable discrimination."
The FCC just completed its first program carriage hearing--NFL Enterprises vs. Comcast--and in early may holds its third and final--MASN vs. Comcast.
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