Cablevision Argues for Carriage Discrimination Decision Reversal, Stay
Forcing Cablevision to comply with the FCC administrative law judge's initial decision in the Game Show Network carriage discrimination complaint before an administrative and judicial review is done would be unprecedented and violate the Administrative Procedure Act and Cablevision's due process rights, the cable company said in an opposition posted Wednesday in docket 12-122. Cablevision filed exceptions urging the agency to reverse the ALJ initial decision and a petition seeking a stay of GSN's petition pending an administrative review.
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The ALJ initial decision finding carriage discrimination by Cablevision (see 1611230046) running contrary to an Enforcement Bureau finding (see 1510150044) represents an unusual situation, and the full FCC response might depend in part in how tight ALJ Richard Sippel's reasoning was and who's leading the bureaus and FCC in the Trump administration, a lawyer with cable clients told us. Another lawyer with cable clients said there's a strong prospect the full commission could reverse the ALJ decision, given the bureau precedent and the leanings of Republican commissioners on these issues.
GSN petitioned the FCC to order Cablevision to immediately comply with the ALJ decision (see 1612090002), but the language in that decision makes clear the order to retier GSN isn't supposed to take effect immediately but instead 50 days after release if exceptions aren't filed within 30 days, Cablevision said. Without a stay, the multichannel video programming distributor said, GSN's petition creates "the possibility of repeated changes to GSN’s carriage, compounding the costs to Cablevision by causing ... unquantifiable reputational harm and loss of significant goodwill."
If Sippel wanted immediate relief, he wouldn't have designated the effective date as 50 days after release and subject to further delay if exceptions were filed, Cablevision said. The operator said the initial decision's taking immediate effect would violate the company's due process since the FCC hasn't considered the company's statute of limitations defense barring the GSN complaint altogether (see 1612230049). And it said GSN isn't suffering any harm under the status quo. "GSN is, as it admits, a thriving network and has been so at all times during the pendency of this carriage proceeding," Cablevision said, saying the programmer didn't try to expedite the ALJ proceeding.
The network "profoundly disagree[s] with Cablevision's positions on the meaning of the FCC's regulatory structure -- which clearly mandates that it has a current obligation to restore GSN to the service tier it used to occupy -- and with its interpretation of the ALJ's decision," outside counsel Stephen Weiswasser of Covington & Burling emailed us. "We think the decision is fully supported by the record and the applicable law." Weiswasser said the network will file its responsive pleadings next week.
The ALJ's initial decision "is riddled with legal and factual errors," Cablevision said in its exceptions, urging the full commission to follow the Enforcement Bureau decision. It labeled the ALJ's finding of direct evidence of discrimination "fundamentally wrong," since there's no evidence like a document or statement showing discriminatory intent without further inference or presumption. Cablevision also said Sippel didn't follow controlling precedent from the Tennis Channel carriage discrimination decisions that would have held he should look at the pros and cons of the retiering decision under the "net benefit" framework and that he erred in deciding GSN was similarly situated to Cablevision's WE tv and Wedding Channel affiliates.
Cablevision said its takeover by Altice USA earlier this year (see 1606210026) means it no longer is vertically integrated with any network at issue in the proceeding. That means requiring mandatory carriage would violate the cable distributor's First Amendment rights by regulating its speech when any Cablevision carriage decision is inherently no longer related to affiliation considerations, the company said.