The FCC’s administrative law judge (“ALJ”) has once again sided with a programmer in resolving a complaint under the Commission’s program carriage rules. More than five years after GSN filed a program carriage complaint against Cablevision, ALJ Richard Sippel issued an initial decision finding that Cablevision improperly discriminated against GSN on the basis of its non-affiliation when moving GSN from Cablevision’s expanded basic tier to its “Sports Pak”—this despite the fact that the ALJ determined that Cablevision had demonstrated that it saved programming fees as a result of the retiering.
Section 616 of the Communications Act and the FCC’s implementing regulations prohibit multichannel video programming distributors (MVPDs) from “unreasonably restraining the ability of an unaffiliated programming vendor to compete fairly by discriminating in video programming distribution on the basis of affiliation or non-affiliation of vendors in the selection, terms, or conditions” for carriage.
GSN alleged that Cablevision discriminated against it on the basis of non-affiliation by moving GSN to the “Sports Pak” while leaving affiliated networks, including similarly situated WeTV and Wedding Channel along with expensive affiliated sports networks, in the expanded basic tier. Cablevision originally considered and rejected proposals to move GSN to its Silver tier and to move GSN and three other unaffiliated networks to the Sports Pak to reduce programming expenses. Ultimately, GSN was the only non-sports or outdoors network included in the “Sports Pak,” which Cablevision renamed the “Sports and Entertainment Pak.” Continue Reading