Liberman Petitions FCC to Reconsider Dismissed Comcast Carriage Complaint
That the Communications Act's Section 616 and FCC precedent include a TV station as a video programming vendor is reason enough to warrant FCC Media Bureau revisiting its August rejection (see 1608260046) of Liberman Broadcasting's carriage complaint against Comcast, the…
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programmer said in a petition for reconsideration posted Monday in docket 16-121. The bureau order also flubbed by questioning whether Liberman sells its video programming when Comcast never disputed that the programmer sought payment, Liberman said in the petition. It asked the bureau to vacate the order and refer the complaint -- alleging Comcast dumped the broadcaster's Estrella TV network in favor of Spanish-language networks in which it had a financial stake (see 1604080013) -- to an administrative law judge. The FCC didn't comment. Comcast in a statement said the Media Bureau "rightly dismissed Liberman’s program carriage complaint as failing to meet the core standing requirement. This decision was well grounded in both law and policy. As we’ve said from the start, the complaint is without merit. We look forward to responding to this latest filing.” The ruling that Liberman didn't have standing to bring a carriage complaint ignored the Communication Act's Section 602, which defined "video programming" as being provided by a TV broadcast station, and the obvious next logical step -- that under Section 616, which covers regulation of carriage agreements, video programming vendors would include involved in production, creation and wholesale distribution of programming provided by a broadcast station, Liberman said. The programmer said nothing in Section 616 or its legislative history makes it mutually exclusive from sections 325 and 614, covering must-carry and retransmission consent. It said FCC precedent -- in the form of 1993 interim and final reports on implementation of the 1992 Cable Act and in a 2015 brief to the U.S. Court of Appeal for the D.C. Circuit regarding Tennis Channel's discrimination complaint against Comcast -- also includes broadcast networks as video programming vendors. Liberman took issue with the order's logic that Estrella sought compensation for its signal, not its programming; in electing for retrans in lieu of must carry in its markets, it was trying to sell both its content and signal to Comcast, Liberman said. The programmer said even if Section 616 did only apply to cable channels, the bureau erred in not considering the case against Comcast in "white area" markets lacking either an Estrella affiliate or a Liberman-owned and -operated station.