FCC Rejects Liberman Carriage Complaint Against Comcast
Program carriage rules clearly didn't extend to broadcasters, and the FCC decision Friday to reject Liberman Broadcasting's carriage complaint against Comcast makes it "especially clear," one lawyer with cable clients told us Friday. Liberman's complaint -- alleging Comcast dumped the broadcaster's Estrella TV network in favor of Spanish-language networks in which it had a financial stake -- was seen as facing tough odds (see 1604080013).
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Liberman didn't make a case to show its stations qualify as video programming vendors, and thus it didn't have standing to bring a carriage complaint against Comcast under either Section 616 of the Communications Act or under the conditions of the order OK'ing Comcast's buying control of NBCUniversal, the Media Bureau said in its 12-page order. While the section doesn't expressly exclude broadcast licensees, the FCC said, "the better reading of that term" does, since it's questionable Liberman engages in the sale of programming as a broadcaster. Its seeking compensation from Comcast for Estrella retransmission has to do with being paid for the signal, not for the programming being carried by that signal, the FCC said.
"The design and legislative history" of 616 also points to Congress intending for other Communications Act provisions -- such as sections 325, dealing with retransmission consent, and 614, dealing with must-carry rules -- governing the relationships between broadcasters and cable systems, the order said. Comcast carried Estrella TV in Houston, Denver and Salt Lake City as must-carry stations, but Liberman starting in 2015 opted for retrans consent for the Estrella TV-owned and operated stations. That opting for retrans consent in certain markets "bore the risk of failing to reach agreement and a resulting lack of carriage," which is exactly what happened in those markets, the bureau said. "It cannot now invoke the section 616 program carriage process as an alternative vehicle for securing carriage."
That lack of standing under the section also precludes Liberman from bringing a complaint under the Comcast/NBCU order, the bureau said. The NBCU order uses the same video programming vendor definition. That the order discusses program carriage matters separately from broadcast-related matters just reinforces the idea that broadcasters like Liberman lack standing to bring program carriage complaints, the order said.
Broadcasters trying to invoke program carriage rules is an unusual strategy, and one that probably won't be followed, the lawyer with cable clients told us. The Big Four broadcasters have sufficient clout in negotiations and generally don't need to bring carriage complaints, while must-carry rules provide leverage for smaller broadcasters, the lawyer said.
The dismissal "on a narrow technicality relating to standing" doesn't clear Comcast "of the underlying wrong-doing of discrimination against Estrella TV as an independent programmer," Liberman said in a statement. "Hispanic viewers in Denver, Salt Lake City and Houston are being denied access to programming ... they deserve due to this discriminatory behavior. And more broadly, competition in the media industry is being chilled by the signal that Comcast can thwart with impunity those who attempt to challenge its owned-networks." Estrella said it's "exploring all options available to us to appeal this decision."
The decision didn't tackle an underlying issue of the difficulty small programmers -- either broadcasters or cable -- have in bringing carriage complaints, namely the overly large burden of proof, Public Knowledge Senior Staff Attorney John Bergmayer told us. "In the real world, it's very hard for a programmer to meet that burden" of having some documentary or testimonial evidence showing it was affiliation related, he said. And there's no indication of any intention on Capitol Hill to address those rules in the foreseeable future, Bergmayer said.
But Liberman's redress may lie in the retrans consent rules, Bergmayer said in a subsequent email. "Since the Commission has said it plans to continue enforcing the retrans rules (see 1608020043), and because Liberman’s complaint failed for standing reasons and not on the merits, I’d hope it still has meaningful ways to have its issues heard."
Comcast in a statement Friday called itself "pleased." Liberman "carriage complaint had no basis in law and was simply an attempt to extract carriage of Estrella TV and fees from Comcast that are in no way justified," the cable company said. The operator had argued the complaint was time-barred under program carriage rules (see 1606080026). The order didn't address that, citing Liberman's failure to meet the threshold showing.