Herring: Enforcement Bureau Got It Wrong

WealthTV parent Herring Broadcasting is not happy with the FCC Enforcement Bureau's conclusion that the company did not make a case for program discrimination by major cable operators, but it has not given up the fight either.

"While we are disappointed with the Enforcement Bureau's comments," WealthTV founder Robert Herring told B&C, "this does not hinder our determination to get a just outcome."

The bureau Wednesday filed comments with the FCC judge currently weighing the evidence in Wealth TV's program access complaint. The bureau said that WealthTV had not supplied direct evidence of discrimination, or that such discrimination, even had it been proved, would have prevented it from competing.

The Enforcement Bureau's view is not the last word, though it obviously helps the cases of the cable operators involved--Comcast, Time Warner Cable, Cox Communications and Bright House. Administrative Law Judge Richard Sippel has yet to rule on the complaint, but even then, that decision is a recommendation to the full commission, which must still vote on it.

The commissioners referred that and two other complaints to the ALJ after a majority did not agree with then-FCC Chairman Kevin Martin and a Media Bureau conclusion that the operators had discriminated.

"We think that if big cable companies, working together through a co-op like iN DEMAND, withhold seventy percent of a market from competition, which they did, that is obviously an unreasonable restraint on a programmer's ability to compete fairly and it is stunning that the Enforcement Bureau did not think so."

"WealthTV was offered for free for an extended period and at a much lower cost than the defendants' channel MOJO. We believe that no weight was given in the Enforcement Bureau's consideration of harm to the customer when that cost of the cable companies paying themselves to carry their own programming was passed on to consumers."

Herring said he was still confident Sippel would come up with a "just decision," but was also hedging his bets, saying "we still want a chance to present our case to the full commission."

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.