Enforcement Bureau Backs Hearing on GSN v. Cablevision
The FCC Enforcement Bureau sees “genuine issues of material fact&rdquo in Game ShowNetwork’s carriage complaint against Cablevision that should be aired before a judge. In an 11-page submission posted Wednesday in docket 12-122 to FCC Chief Administrative Law Judge Richard Sippel, the bureau said the summary judgment Cablevision seeks is “inappropriate” because there are factual issues to be weighed. Sippel required the response after the bureau said it wouldn't make a filing on whether he should uphold Cablevision's request, angering Sippel (see 1505200069).
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Cablevision's April request for a summary decision said GSN didn't sufficiently demonstrate it suffered financially from the operator moving the channel, and the law requires proof it suffered competitively. Cablevision said GSN’s business grew in recent years -- though perhaps not as much as it would have if it hadn't been moved in 2011 from basic cable to Cablevision’s Sports and Entertainment Tier. Cablevision stands by its earlier motion, a spokeswoman said Thursday.
The bureau said the legal standard Cablevision points heavily to -- that the operator is a relatively modest player in the U.S. cable market, and thus GSN being retiered there doesn't hurt its ability to compete nationally -- is faulty. Looking at the national market as a basis for deciding if a video programming vendor is a victim of unreasonable restraint “would eviscerate the efficacy of Section 616” of the Communications Act, the bureau wrote. It said the standard for deciding if Section 616 is being violated should be if a multichannel video programming distributor has market power in a particular local market. GSN has said Cablevision’s “significant share of the market for video programming in New York … allows Cablevision to foreclose GSN from reaching millions of viewers within Cablevision’s footprint.” The bureau said Cablevision's summary judgment request relies too much on U.S. Court of Appeals for the D.C. Circuit Judge Brett Kavanaugh’s 2013 decision in a somewhat similar and ultimately unsuccessful complaint by Tennis Channel against Comcast.
A question for the ALJ is whether New York “is the relevant market,” the bureau said. Even if Sippel accepts that New York is a relevant market to focus on and that Cablevision has major presence there, the bureau said, there are questions whether GSN was hurt by the retiering. An ALJ hearing is needed partly because of what Cablevision didn’t argue in its motion: that GSN content isn't similar to what Cablevision offers, or that GSN failed to prove that the retiering cost Cablevision subscribers or potential subscribers, said the bureau. “In the absence of any such evidence, the Bureau can only conclude that there remains a significant number of factual disputes between Cablevision and GSN.” The hearing before Sippel is to begin July 7.
The bureau apologized to Sippel for seeking an extension from him and then failing to file comments. He had said it disrespected him and abandoned its responsibility to the public interest. After the bureau read GSN’s opposition, “the Bureau concluded that GSN had comprehensively addressed the Bureau’s concern about Cablevision’s over-reliance on Judge Kavanaugh’s" opinion, it wrote: It "apologizes … for any misunderstanding this may have caused, and it was not the Bureau’s intention to disrespect the Presiding Judge in any manner.”