Comcast Wins OGC Stay of ALJ Ruling in Case FCC May Soon Decide

FCC Chairman Julius Genachowski circulated an order on Tennis Channel’s program carriage case, the OGC said. The ALJ found in December that the independent channel showed it was discriminated against in favor of similar content owned by Comcast. The draft may uphold some of Chief FCC ALJ Richard Sippel’s recommended decision, industry officials watching the proceeding predicted. They see the OGC order as a procedural step to give the agency time to approve the draft decision, as does communications lawyer Andrew Schwartzman, who just shut down the Media Access Project that had backed program carriage rules. But he said the order may go Comcast’s way, and so the OGC decision ensures the operator won’t have to carry more widely the indie only for a short time before commissioners vote on the draft order. A bureau spokeswoman declined to comment.

For now, Comcast won’t have to pay the $375,000 forfeiture Sippel recommended or put the indie on the same tier as Comcast’s Golf Channel and NBC Sports Network. The judge found the cable operator’s own channels are similar to the plaintiff’s network. The indie has said it’s relegated to a sports package that costs Comcast subscribers extra and has 10 percent of all the cable operator’s video customers. Sippel’s initial decision is stayed until the forthcoming order, now on circulation, takes effect, FCC General Counsel Austin Schlick wrote (http://xrl.us/bm5524). The channel in January asked the agency to require the cable operator to move the network so it’s as widely available as the defendant’s channels. The plaintiff said Sippel’s ruling took effect in December, while the defendant said its opposition automatically meant it wouldn’t take effect.

"Chairman Genachowski has circulated to his fellow Commissioners a proposed orderaddressing The Tennis Channel’s petition to compel compliance and Comcast’s petition for conditional stay,” Schlick wrote. “To remove the existing uncertainty about Comcast’s obligations while the Commissioners consider that item, we hereby stay the Initial Decision on our own motion pending the Commission’s action on the parties’ petitions.” Lobbying on that order is generally barred, because it’s a restricted proceeding, agency and industry officials said.

The interim stay “is a welcome development, and we hope the full commission will follow suit,” a Comcast spokeswoman said. “There were procedural and substantive flaws in the ALJ decision, and we continue to believe it should not be upheld.” The OGC order is “simply a continuation of the status quo while the commission decides that procedural question” between the companies on whether Sippel’s decision has taken effect, a Tennis Channel spokesman said. “It does not constitute a stay of the judge’s decision pending the commission’s review of the full case. We are pleased that the commission continues to move forward in resolving this dispute."

It might be a while before the full commission votes on the draft order, especially if Ajit Pai and Jessica Rosenworcel are approved by the full Senate as the agency’s newest commissioners and so take time to vote on it, industry officials said. But Schlick’s stay “only holds things up for a few weeks at most,” said Schwartzman. “The tea leaves” from Schlick’s order suggest Genachowski “might be leaning in favor of giving longer-term relief to Comcast,” Schwartzman said. “That still doesn’t mean Comcast will win in the end, though.” A reversal by the 4th U.S. Circuit Court of Appeals in Richmond, Va., of Mid-Atlantic Sports Network’s challenge of FCC dismissal of MASN’s program carriage complaint against Time Warner Cable is likely “any day now,” Schwartzman said. “A reversal might put pressure on the commission to rule in favor of the Tennis Channel.”