FCC May Not Make TWC Show Nationals, Orioles Games in North Carolina
FCC commissioners soon will consider whether to reverse course from a staff ruling, an independent arbitrator’s decision and a draft Media Bureau order from early 2009 that until recently was circulating in a case involving Time Warner Cable and the Mid-Atlantic Sports Network, agency and industry officials said last week. They said agency officials will begin more-serious consideration of a new bureau draft order on whether the cable operator must distribute telecasts of Washington Nationals and Baltimore Orioles baseball games to its approximately 1.5 million subscribers in North Carolina. The new draft started circulating Oct. 5, replacing one that was circulated by Kevin Martin on his last business day as chairman and that would have forced carriage, agency officials said.
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The new draft is thought by agency officials to say Time Warner Cable need not carry MASN in North Carolina, because the requirement could raise the monthly bills of viewers with tepid interest in the Nationals and Orioles. The item concludes that requiring the distribution isn’t in the public interest and that viewers in the state seem more interested in watching games of the Atlanta Braves than of the Baltimore and Washington teams, a commission official said. A bureau spokeswoman declined to comment. The draft order, which had been predicted to be finalized several months ago, is largely as expected (CD Aug 18 p2), another FCC official said.
The draft, if approved, would be a 180-degree turn from what the bureau drafted under Martin in an item that remained on circulation as it was revised under Chairman Julius Genachowski, agency officials said. The bureau in October 2008 upheld an arbitrator’s finding that the regional sports network should be carried by the cable operator throughout North Carolina, in the last public document from the commission on the issue, http://xrl.us/bh4pun. At the time, Time Warner Cable was affiliated with the channel carrying professional basketball’s Charlotte Bobcats, which the bureau found the cable operator favored over MASN. That decision was the correct one, and was buttressed by the findings of two arbitrators, a spokesman for the network said.
The FCC and arbitrators are “looking at different things, and the commission has a broader obligation than an arbitrator,” said cable lawyer Steve Effros, who’s not involved in the case. “The commission is looking at public policy obligations, while the arbitrator is looking at economic and contractual obligations,” he said. “The agency is the ultimate arbiter of these things, because it’s their rules.” A reversal such as this one is “generally pretty unusual,” said another cable attorney not in the case. “But I do not believe that it is unprecedented.” For instance, he said the agency under the interim chairmanship of Michael Copps reversed a staff ruling fining Time Warner Cable and other operators for not ensuring that all subscribers with video devices they bought at retail from other companies could get switched digital programming. The FCC’s CableCARD order approved Thursday mandates that (CD Oct 15 p4).
There’s “no evidence to suggest that carrying MASN will raise prices” and none of the nine pay-TV providers in North Carolina carrying it have raised customer bills, the network’s spokesman said. Time Warner Cable didn’t introduce evidence in the program carriage case that North Carolinians prefer the Braves over the Nationals and Orioles, while MASN showed its channel was watched by more people than the network carrying the Bobcats, he said. A Time Warner Cable spokesman declined to comment.
"The question in this dispute is not whether the Orioles and Braves are similarly popular,” but rather if Time Warner Cable “favored its own vertically integrated programming that was less popular than MASN’s programming,” the channel’s spokesman said. “The overwhelming evidence showed it did and it was,” he said. “We're not aware of any other situation where two independent arbitrators” and the bureau “came to a conclusion that the commission then reversed.”