FCC to Adjudicate Access Complaints

The FCC's Media Bureau has stepped in to take a raft of program-access complaints away from an administrative law judge (ALJ), saying it would adjudicate the complaints instead, and setting up the possibility that Chairman Kevin Martin's FCC could issue a number of program-access decisions against top cable operators before he exits that post in January.

By taking the complaints back, the bureau was granting a request by Wealth TV, one of the cable programmers who had filed the complaints. The Dec. 24 decision was a lump of coal in the stocking of top cable operators, however, who had opposed the request that the Media Bureau step in.

The bureau had tentatively concluded that four cable operators—Comcast, Time Warner (the two largest), Cox and Brighthouse—had discriminated against Wealth TV and the Mid-Atlantic Sports Network in favor of their own programming http://www.broadcastingcable.com/article/CA6604711.html.

But the bureau had also designated disputed facts in the cases for hearing before an FCC administrative law judge (actually, two judges, since the first announced his retirement and turned it over to a second judge).

Chairman Martin had initially wanted the bureau to find the operators had discriminated rather than refer the complaints to the ALJ for its recommendation. But other commissioners wanted the extra step of the ALJ decision before the FCC made a final determination of discrimination.

The Media Bureau said back on Oct.10, when it first designated the complaints for hearing, that they needed to be resolved by Dec. 9.

Instead, the judges decided that the time frame was too short, said the proceedings would not even start until March 17, and also said that the complaints would need to be justified from scratch rather than taking into account the Media Bureau's preliminary conclusion of discrimination.

That did not sit well with the Media Bureau, which on Dec. 24 said that since the decision was not issued by Dec. 9, the ALJ’s authority to decide it had expired. "Accordingly," said the Media Bureau, "[we] will proceed to resolve the above-captioned program carriage disputes and will condact any further discovery as may be necessary to resolve any factual disputes."

It did not say it would re-try the cases from scratch, however.

In deciding to try the cases itself, the bureau said it rejected cable operators' arguments that a fair hearing was not possible in a shortened time frame. It also said that it rejected cable's argument that a judge, not the bureau, was empowered to resolve disputed issues of fact, saying the bureau has broad delegated authority under carriage-dispute rules.

Not surprisingly, Wealth TV welcomed the Christmas present: "We are grateful to the FCC for recognizing the importance of addressing carriage access discrimination in a timely manner," said Wealth TV CEO Robert Herring, "especially for small emerging businesses. Excessive delays cause irrevocable harm and send the wrong signal to inspiring entrepreneurs offering more choice and diversity to cable programming."

John Eggerton

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.