While GOP leaders in Congress have suggested Democratic FCC chairman Tom Wheeler should be on a short leash when it comes to taking action during the transition to a Trump administration, Wheeler may not go down without a shot or two more across the bow.
One opportunity presented itself when an FCC administrative law judge found in favor of Game Show Network in its long-standing program carriage complaint against Cablevision.
If Wheeler wishes, he could schedule a vote on that recommendation to affirm it. One backer of the GSN decision speaking on background suggested there would likely be three Democratic votes to uphold the call if he did.
Judge Richard Sippel, a familiar name from decisions in complaints involving Comcast and Tennis Channel and others, ruled that Cablevision, now owned by Altice, discriminated against GSN on the basis of non-affiliation by “unlawfully” moving it to a sports tier while the MSO’s WE TV remained on expanded basic.
Sippel imposed the maximum fine of $400,000 and recommended the FCC require Cablevision to carry GSN on expanded basic, “or the current or future tier that has 90% or more penetration,” until they strike a new contract, or five years, whichever comes first.
Oral arguments in the case were held over a year ago, but such cases usually take a while to be decided. In fact, the ruling is not binding, but is instead a recommendation to the full commission, which referred the complaint for an administrative law judge hearing and now must decide whether or not to take Sippel’s advice.
Wheeler has long fingered cable operators as having the incentive and ability to favor their own content, whether online or on multichannel video programming distributor services. But such a finding in this case is no slam dunk.
The FCC’s Enforcement Bureau concluded last year that GSN had not demonstrated affiliation- based discrimination or shown that it was similarly situated to WE TV or another Cablevision-affiliated network, the Wedding Channel.
GSN had said that Cablevision should have to immediately draw up a new contract guaranteeing it the same carriage and license fees as the affected WE TV, but the judge disagreed.
“Such remedy is not appropriate because it is Cablevision’s carriage of GSN on the premium sports tier that has been adjudged unlawful, not its carriage of GSN on an at-will basis.”
“GSN has satisfied its burden of proving by a preponderance of evidence that Cablevision engaged in discrimination in the selection, terms or conditions of carriage on the basis of GSN’s non-affiliation with Cablevision,” Sippel wrote in the 65-page decision.
GSN first filed a carriage complaint with the FCC in Oct. 2011, alleging that Cablevision discriminated against the channel by moving it from a basic tier to a premium sports tier on its systems in February 2011. The change, GSN claimed, caused its ratings to “crater.”
GSN claimed Cablevision used its market power to favor its own affiliated networks, including WE TV and the now-defunct Wedding Central channel, which did not change channel positions. Cablevision countered that there was a legitimate, nondiscriminatory basis for the move. The judge found otherwise.
“We appreciate ALJ’s recognition that GSN is a ‘uniquely popular network…highly valued by’ the cable audience, and agree with the conclusion that the network was inappropriately tiered,” GSN said of the decision.
“We respectfully disagree with the ALJ’s decision and fully intend to appeal [to the FCC],” Altice said in a statement.
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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.