The FCC's Media Bureau has designated the Game Show
Network's program carriage complaint for hearing before an administrative law
judge if the two sides don't resolve it via third-party mediation in the
interim.
The bureau said that while it was not reaching any
conclusions on the merits, but that on its face GSN's arguments merited a full
hearing. "After reviewing GSN's complaint, we find that GSN has put forth
sufficient evidence supporting the elements of its program carriage
discrimination claim to establish a prima facie case," the bureau said.
In essence, the bureau concluded that GSN had provided
enough evidence that it competed for ad dollars and eyeballs with
Cablevision-owned nets, but was treated differently (GSN argues discriminated
against) when it came to carriage.
The bureau questioned whether GSN had offered sufficient
direct evidence of discrimination, but said given the amount of circumstantial
evidence, a hearing is warranted. It also pointed out that it had not weighed
GSN's evidence against rebuttal evidence from Cablevision, which will now be
the province of the administrative law judge.
"Once again, the FCC has revealed its inability to
administer its duties, just as it has failed to address the broken
retransmission consent system," said Cablevision in a statement. "It
should be obvious to anyone that a channel showing game shows and one showing
women's-oriented programming are not comparable. We will vigorously defend
against this preposterous FCC finding."
The parties have ten days from May 9 to seek alternate
dispute resolution (ADR) before the hearing proceeding will be launched. If
both sides agree, the hearing will be suspended while they try to come to a
resolution. If only one side wants ADR, it goes to hearing. Cablevision had no
comment on its next move beyond referring to the last line of its statement,
which at least suggests it is not in a conciliatory mood.
"We have no comment," said a GSN spokesperson, "the
Hearing Designation Order speaks for itself."
GSN filed the complaint Oct. 12, alleging Cablevisiondiscriminated against it by moving it to a premium sports tier, which cost the
channel eyeballs, while favoring similarly situated networks WE tv and Wedding
Central, in which Cablevision has a financial interest.
It wants the agency to force Cablevision to carry the network on what it says
are "nondiscriminatory terms and conditions" and pay a fine. FCC
rules prevent an MVPD from discriminating against unaffiliated nets in favor of
ones in which it has a financial interest.
"[T]he existing record, including Cablevision's answer and
other pleadings, makes clear that there are substantial and material questions
of fact as to whether Cablevision has engaged in conduct that violates the
program carriage provisions of the Act and the Commission's Rules," the
bureau said. "We therefore initiate this hearing proceeding. We direct the
Presiding Judge to develop a full and complete record and to conduct a de novo
examination of all relevant evidence in order to make an Initial
Decision."
The bureau rejected Cablevision's argument that GSN's complaint
was filed after the statute of limitations, and accepted GSN's argument that it
was similarly situated "with respect to genre" to Cablevision's WE tv
and now-defunct Wedding Central.
"Under Cablevision's view of the program carriage
statute of limitations," said the bureau, "an MVPD could delete an
unaffiliated network from all of its systems one year after the execution of
the contract in order to favor its affiliated network and then claim that such
conduct cannot be challenged under the program carriage rules because it
occurred outside of the one-year window for filing a complaint. We find this
view untenable as it would eviscerate the protections provided by the program
carriage statute."
As to GSN being in the same ballpark as Cablevision's
channels, the bureau was swayed by GSN testimony that "all feature
female-oriented reality and competition-based programming" and "are
similarly situated with respect to ratings on a national basis and within the
New York DMA, as well as among specific demographic groups." The bureau
also said GSN had made a case for its having been treated differently on the
basis of affiliation.
GSN had made the point that while Cablevision carried GSN on
a sports tier, it carried Wedding Central on expanded basic even though no
other major cable operator gave Wedding Central similar carriage.
