Liberman Broadcasting, parent of Spanish-language network Estrella TV, has asked the FCC's Media Bureau to reconsider its decision to reject Liberman's program carriage complaint against Comcast for lack of standing, saying to read a TV broadcast station out of the definition of video programming vendor is illegal.
On Aug. 26, the FCC's Media Bureau said the broadcasters' retrans issues with Comcast did not equate to program carriage under the FCC rules because it was not a video programming vendor under those rules and so did not have standing to bring the complaint.
But in a Petition for Reconsideration filed Monday, Liberman said the bureau had ignored the plain language of the law when it concluded it was not a video programming vendor—"programming… provided by a television broadcast station."
Liberman says that error alone justifies reconsideration.
"The order erred by deviating, indeed even failing to acknowledge, Commission precedent where the Commission shortly after passage of the 1992 Cable Act concluded that Sec. 616 [program carriage] includes 'a broadcast network.'"
"By finding that the 'better reading' of 'video programming vendor' excludes a television broadcast station, the bureau unlawfully excluded the specifically defined term 'video programming.' But the bureau—indeed the commission—lacks the authority to substitute 'better reading' for the plain meaning of the statute."
But there is more. Liberman said it had supplied enough evidence for a prima facie case against Comcast. The FCC said it had not. Liberman also said that the bureau had erred in not considering distribution of Estrella TV outside its broadcast footprint.
Liberman said the FCC compounded its error of failing to recognize its program distributor status by questioning whether Liberman offered its video programming for sale when the facts indisputably and without challenge from Comcast indicate LBI sought payment for its programming from Comcast. The FCC said Liberman was seeking compensation for carriage of its signal rather than the underlying programming.
The broadcaster wants the bureau to vacate its original order denying the complaint, find that LBI has made a case, and designate the complaint for hearing before the FCC's administrative law judge.
Liberman, 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 on 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 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.
"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.
“The Media Bureau rightly dismissed Liberman’s program carriage complaint as failing to meet the core standing requirement," said Comcast in a statement. "This decision was well grounded in both law and policy. As we’ve said from the start, the complaint is without merit. We look forward to responding to this latest filing in due course.”
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.
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