As expected, the FCC has denied the program carriage complaint of WealthTV, the last of a group of such complaints that went before an FCC Administrative Law Judge and the only one that was not settled before the commission had to make that call. The vote was unanimous.
Anticipating that result, WealthTV had asked for an oral hearing to plead its case one more time. That, too, was denied.
Administrative Law Judge (ALJ) Richard Sippel more than a year and a half ago concluded that Wealth TV parent Herring Broadcasting had failed to prove that "any of the defendants -- Comcast, Cox, Time Warner and Bright House -- engaged in discrimination in the selection, terms or conditions of carriage on the basis of WealthTV's non-affiliation." The complaint had been designated for hearing back in 2008.
While WealthTV had complained that Sippel put the burden of proof on Wealth rather than on the cable operators, the commission agreed with Sippel that Wealth would have lost in either case. "We conclude that the defendants would have prevailed even if they had been required to carry the burdens of production and proof, as WealthTV contends was proper."
The commission agreed with the ALJ that it was business considerations, not discrimination, that kept WealthTV off the operators' systems, which Comcast outlined in its testimony as "cost of carriage, the uncertain consumer appeal of WealthTV's programming, bandwidth constraints, the fact that WealthTV had attracted relatively few carriage agreements, the lack of experience of its owners in the programming business, and absence of outside investment sup-port."
Wealth was the last unresolved complaint of a collection of three such complaints that went to the ALJ hearing phase under the watchful eye of Sippel.
The three complaints were filed by programmers Mid-Atlantic Sports Network, the NFL Network and Wealth TV, for allegedly discriminating against those programmers' channels in favor of their own, owned content. The complaints were filed against Comcast in the cases of NFL and MASN, and Comcast, Cox, Time Warner and Bright House in the case of Wealth TV.
The NFL and MASN complaints were settled before Sippel rendered his decision, so Wealth was the only one left that had gone back to the full commission for a decision.
There remains an outstanding Tennis Channel program carriage complaint against Comcast that was argued earlier this spring on which Sippel has yet to render a decision.
