Cablevision, GSN Respond to Arguments in Carriage Discrimination Case
Both Game Show Network and Cablevision continue to try to poke holes in each other's legal arguments about whether the cable operator discriminated against the programmer. Wednesday was the deadline for responses to proposed findings of fact and proposed conclusions…
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of law filings submitted earlier this month in docket 12-122 (see 1509140026). The FCC Enforcement Bureau is scheduled to weigh in by Oct. 15, with closing oral argument Oct. 29 before Chief Administrative Law Judge Richard Sippel. When Cablevision in 2011 moved GSN from the basic tier to a sports tier, it was discriminatory because Cablevision used a "must-have" test that didn't apply to its own affiliates and admits its affiliates probably would fail, GSN said in its 72-page response. And while Cablevision keeps focusing on "certain irrelevant details" like minor variations in demographic information among audiences for GSN and Cablevision-affiliated WE tv and Wedding Central, the evidence overwhelmingly shows GSN and WE are similarly situated, GSN said. And the fact it has added subscribers since the retiering doesn't change the fact it was harmed by that retiering, GSN said, saying testimony makes it clear it was Cablevision that first broached the idea of returning GSN to basic if part owner DirecTV would carry Wedding Central. GSN lacks any evidence to back its claim of favoritism as it disregards that Cablevision carried its affiliated networks "on market terms and at market rates" and that it was DirecTV -- not it -- that broached the idea of the satellite company carrying Wedding Central, Cablevision said in its 71-page response. GSN also ignores the evidence the move to retiering started in 2010 when numerous networks -- not just GSN -- went under carriage assessments because their contracts had lapsed or were about to, opening the door for them to be retiered or canceled, Cablevision said. The evidence of GSN and WE tv being similarly situated was "cherry picked," the cable company said, saying when confronting evidence the retiering decision was "to save programming costs incurred by broadly carrying a network that only a tiny fraction of Cablevision’s subscribers watched, GSN resorts to dismissing such evidence as 'pretextual.'"