FCC Administrative Law Judge Denies Wealth TV's Program Carriage Complaint
As Expected, Decision Indicates That Parent Herring Broadcasting Failed To Prove Discrimination By 4 MSOs
John Eggerton 10/15/2009 11:49:59 AM

It's official, a Federal Communications Commission administrative law judge has concluded that the program carriage complaint of Wealth TV against four major cable operators should be denied.

In a decision released Thursday, Judge Richard Sippel concluded that Wealth TV parent Herring Broadcasting had failed to prove that "any of the defendants engaged in discrimination in the selection, terms or conditions of carriage on the basis of WealthTV's non-affiliation." The defendants were Comcast, Cox, Time Warner Cable and Bright House Networks.

Sippel also concluded that Herring had not proved that any of the defendants had "unreasonably restrained WealthTV's ability to compete fairly."

FCC rules prevent a multichannel video provider "from engaging in conduct the effect of which is to unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly by discriminating in video programming distribution on the basis of affiliation or nonaffiliation." Herring had the burden to prove discrimination baesd on affiliation and unreasonable restraint of competition. The judge said it proved neither.

Herring had argued that an FCC Media Bureau's pronouncement that it had made a prima facie case for its complaint did not shift the burden to the defendants to prove they did not undertake the conduct at issue. But an earlier judge -- who retired and was replaced by Sippel -- said from the outset that the hearing would be de novo,

meaning the Media Bureau's initial finding was to carry no evidenciary weight.

Herring had claimed that the operators had discriminated against its channel by not negotiating in good faith and denying carriage while providing favorable treatment to a similarly situated network, Mojo, in which they were affiliated.

But Sippel concluded that "the preponderance of record evidence establishes that Mojo and WealthTV neither aired the same type of programming, nor targeted the same audience."

He also concluded that "business factors," not favoritism, drove the operators' decisions not to carry the channel, for example citing Comcast testimony that its affiliation with Mojo had nothing to do with its decision on WealthTV as "consistent, competent and credible."

Judge Sippel's decision is hardly the end of the road. Herring has a chance to weigh in, as does the public and the defendants. The decision is also only a recommended outcome. The FCC's five commissioners will make the final determination.

Not surprisingly, Time Warner Cable was encouraged by Sippel's decision.

"Time Warner Cable is very pleased with the recommended decision of chief administrative law judge Richard Sippel regarding WealthTV's complaints," the company said in a statement. "We agree that WealthTV has failed to demonstrate that Time Warner Cable violated the FCC's program carriage rules. As we've said all along, we do not discriminate against any content provider on the basis of affiliation."