Comcast has told the FCC that it believes the Media Bureau broke the law when it terminated an administrative law judge (ALJ) hearing on program access complaints and decided to judge them itself.
Comcast made that assertion in a filing for emergency review Tuesday, saying the Christmas Eve decision was unlawful because it lacked the authority and because the ALJ still had jurisdiction. It also asked for an emergency stay of the Media Bureau order.
Comcast, which had signaled it was pondering its legal options, also said that the complaints needed a "trial-type" hearing before the judge rather than an "unprecedented and unlawful rush to judgment" by the Media Bureau.
Putting the complaints back in the hands of a judge would also free the FCC to concentrate on the DTV transition, Comcast said, evoking the advice from Capitol Hill to do just that.
That petition came the same day FCC Chairman Kevin Martin told reporters there was "no question" that the Media Bureau had been within its authority to make that call since it had initially delegated the adjudication of the complaints to the ALJ with instructions to come to a decision within 60 days. Once the judge did not do so, saying it was too short a time frame, the ALJ no longer had authority absent a subsequent order from the bureau.
According to a Comcast spokeswoman, Time Warner has also petitioned the ALJ to reaffirm the timetable for judging the complaints that existed before the Media Bureau stepped in.
As it currently stands, the FCC's Media Bureau has said it would now decide the complaints. That came after it initially sent them to the judge for fact-finding and a recommendation within 60 days (by Dec. 9). That finding would then be put before the FCC commissioners for a final vote.
Chairman Martin had wanted the commission to find against the cable operators initially, but other commissioners had wanted it referred to a judge for more adjudication.
The judge—actually a pair of judges—said that was too short a time frame and also said the complaints would have to be judged without taking into account the bureau's preliminary finding that the targets of the complaints, including Comcast and Time Warner, had discriminated against Wealth TV and others by favoring their own, owned programming.
The judge's new timetable did not sit well with Wealth TV, which wanted the complaints ruled on expeditiously. It asked the Media Bureau to step in, which it did. Wealth TV pointed out Wednesday that it had filed its complaint in December 2007, that the case had been assigned Oct. 10, and that the bureau had already reviewed arguments for many months and came out with a preliminary finding of discrimination.
One of the programmers with a bone to pick with Comcast said it was not surprised by the petition.
“The cable companies’ rope-a-dope strategy of delay and denial is unsurprising given their historical hostility towards networks they do not own," said Todd Webster, spokesman for the Mid-Atlantic Sports Network (MASN), which had filed one of the program access complaints at issue and included in the Media Bureau decision.
“Comcast’s discrimination against MASN is entering its fifth year, more than enough time for any reasonable person to conclude – as the Media Bureau has – that a remedy is needed to protect consumers from the cable monopoly’s behavior.”
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