FCC Denies Liberman Program Carriage Complaint Against Comcast

The FCC's Media Bureau has dismissed a program carriage complaint against Comcast filed by Liberman Broadcasting, saying its retrans issues with Comcast did not equate to program carriage under the FCC rules so Liberman did not have standing to bring the complaint.

"After reviewing the Complaint, we find that LBI has failed to put forth sufficient evidence of its program carriage claims to establish a prima facie case," the bureau said. That is the standard for referring a complaint to an FCC administrative law judge for discovery, argument and a decision.

"We are pleased with the Media Bureau’s decision," said Comcast in a statement. "Liberman Broadcasting’s carriage complaint had no basis in law and was simply an attempt to extract carriage of Estrella TV and fees from Comcast that are in no way justified."

“We are disappointed by today’s decision from the FCC’s Media Bureau, which dismissed LBI’s complaint on a narrow technicality relating to standing," Liberman said in a statement.

"Obviously, we disagree with the Media Bureau’s interpretation of the relevant statutes. But more importantly, this technical decision in no way absolves Comcast of the underlying wrongdoing of discrimination against Estrella TV as an independent programmer."

The company said it was looking into all its options for appeal.  

"We also intend to continue to call on Comcast to do the right thing by its subscribers and the public by ending its discriminatory practices. Every other major MVPD carries Estrella TV for the simple reason that it is popular with Hispanic viewers," Liberman said. "Comcast differs from these other companies only in the fact that it owns competing networks. That type of blatant and obvious discrimination must not continue.”

Comcast has pointed out that, even without the stations in question, it continues to carry Estrella TV to millions of customers elsewhere and remains one of its biggest distributors.

Liberman, parent of Spanish-language network Estrella TV, filed the complaint last April stemming from a contentious carriage impasse last year, when KETD Denver, KZIZ Houston and KPNZ Salt Lake City were pulled by Liberman, or dropped by Comcast, depending no which side was talking.

Liberman was trying to upgrade from must-carry status to retransmission consent, electing to try to negotiate license fees for the stations. The other side of that election is that if a deal is not reached, Comcast does not have to carry them.

Comcast, which offers five dozen Hispanic networks, noted at the time that, even with the station exits, it was still Estrella's largest distributor and said it had been negotiating in good faith.

But Liberman said Comcast was discriminating against Estrella TV in favor its own Telemundo and NBC Universo networks, in violation of program carriage rules, that it was "unlawfully" demanding that Estrella give up digital rights.

The FCC said that Liberman could compel carriage by electing must-carry next time around, but that it was negotiating for retransmission of its signal and not as a video program distributor, so could not compel carriage, if such were justified, via the program carriage rules.

The bureau said Liberman "failed to demonstrate that it has standing to bring a program carriage complaint pursuant to section 616 of the Act and section 76.1301 of the Commission’s rules because it has failed to show that its broadcast stations qualify as 'video programming vendors.' For substantially the same reasons, we find that LBI has failed to demonstrate that it has standing to bring a program carriage complaint with regard to its broadcast television stations under the Comcast-NBCU Order and conditions.  Accordingly, we dismiss, without prejudice, LBI’s program carriage complaint against Comcast."  

The bureau took some pains to explan just why a broadcaster, in this instance, was not a video program distributor.

"Although the language of section 616 does not expressly exclude broadcast licensees, such as LBI, from the term 'video programming vendor,' we find that the better reading of that term excludes broadcast licensees," the bureau said. "As an initial matter, we question whether LBI engages in the 'production, creation, or wholesale distribution of video programming for sale' with regard to its television broadcast stations.  In its capacity as a broadcaster, LBI is engaged in the retail distribution of programming to viewers for free, not the 'wholesale distribution of video programming for sale.'  While it could be argued that LBI is engaged in the “production, creation, or wholesale distribution of video programming for sale” to the extent it seeks compensation from Comcast for carriage of its television broadcast stations, it is in fact negotiating compensation for the retransmission of its television broadcast “signal” rather than carriage of the “video programming” contained within that signal.  Compensation for cable carriage of the video programming content transmitted by television broadcast stations is governed by the compulsory copyright license.  Because section 616 applies to “program carriage agreements,” negotiations between a broadcast station and an MVPD for carriage of the station’s signal do not appear to be covered under the terms of that provision.

"While it might be argued that LBI is engaged in the “production, creation, or wholesale distribution of video programming for sale” to the extent it sells programming to its owned and non-owned Estrella TV network-affiliated television stations, section 616 applies to program carriage agreements between video programming vendors and MVPDs, not between broadcast networks and their television station affiliates.

Because a broadcasters negotiation retransmission is not considered a video programming vendor, Liberman also lacked standing to bring the carriage complaint under the NBCU order, the bureau said.

"Irrespective of legal technicalities, Comcast has an affirmative obligation to its subscribers and the communities it serves to refrain from abusing its position as the nation’s largest cable company and owner of a vast number of broadcast and cable networks, including two Spanish-language networks that directly compete with Estrella," said Liberman.

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.