According to commission sources,
FCC Chairman Julius Genachowski has voted to back an Administrative Law Judge
ruling against the program carriage complaints of Wealth TV against Comcast,
Cox, Time Warner and Brighthouse.
Those sources say that an item has
been circulated among the other commissioners for their vote.
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 engaged in discrimination in
the selection, terms or conditions of carriage on the basis of WealthTV'snon-affiliation."
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 non-affiliation." Herring had the burden of
proving discrimination based on affiliation and unreasonable restraint of
competition. The judge said it proved neither, and the FCC chairman apparently
agrees.
Wealth was the last unresolved
complaint of a collection of three of them that went to the ALJ hearing phase
in the late 1990's 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 Brighthouse 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.
Wealth TV has asked for oral
argument before the commission to plead its case, according to Wealth CEO
Robert Herring.
Sippel recently concluded his
latest program carriage complaint hearing featuring Tennis Channel vs. Comcast.
