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Herring Wants Hearing to Be Open

Posted 9:54 PM ET, April 19, 2009

Herring Broadcasting wants the judge to keep its program-access complaint hearing over its WealthTV channel open to the public, WealthTV President Robert Herring told B&C over the weekend.

Herring's hearing begins Monday, following on the heals of the Friday close of NFL vs. Comcast, the first of three program-carriage hearings lined up at the FCC over the next three weeks. (See related story, "Comcast's Roberts Testifies in NFL Network Carriage Trial")

"We want to keep as much sunlight as we can on the upcoming trial," said Herring. "[W]e would prefer that the proceedings be open to public and media."

In NFL vs. Comcast, the lawyers for both sides asked the judge to close the trial during testimony on financial matters. After Bloomberg lawyers complained, the judge compromised by trying to keep it open as much as possible, and provide redacted transcripts for the rest as expediently as possible, which meant a couple days.

Herring filed the complaint against Comcast, Cox and Time Warner Cable, charging that they discriminated against its lifestyle channel WealthTV in favor of a similar channel--MOJO--in which they had a financial interest.

Herring argues that the absence of a carriage agreement for MOJO also showed that "[t]he affiliate relationship between Defendants and their affiliate apparently made the normal written contract for carriage unnecessary.

The FCC's Media Bureau under FCC Chairman Kevin Martin, tentatively concluded that the cable operators had discriminated, but Martin did not have the votes to conclude that at the commission level. The full commission sent that and the two other complaints to an administrative law judge for fact-finding.

The Media Bureau, unhappy with the judge's timetable for the hearings, tried to reclaim the decision. Enter acting Chairman Michael Copps, who sent it back to the judge, this time ALJ Richard Sippel.

The program carriage complaint hearings are unusual, but they still will not resolve the cases. The judge's ruling is an advisory to the commissioners, who must still vote on the complaints. Then, whoever loses could well take that decision to federal court.

In any event, there will almost certainly be no decision on Herring vs. Cox et. al. for a month or so after the hearing.