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Herring Broadcasting, Inc. v. FCC, No. 11-73134 (9th Cir.)

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Released: March 14, 2013
Case: 11-73134 03/14/2013 ID: 8550458 DktEntry: 90-1 Page: 1 of 5
FILED

NOT FOR PUBLICATION

MAR 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HERRING BROADCASTING, INC.,
No. 11-73134
DBA Wealth TV,
FCC No. 08-214
Petitioner,
v.
MEMORANDUM*
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
BRIGHT HOUSE NETWORKS, LLC;
COMCAST CORPORATION; COX
COMMUNICATIONS, INC.; TIME
WARNER CABLE, INC.,
Respondents-Intervenors.
On Petition for Review of an Order of the
Federal Communications Commission
Argued and Submitted March 7, 2013
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

Case: 11-73134 03/14/2013 ID: 8550458 DktEntry: 90-1 Page: 2 of 5
Before: PAEZ and WATFORD, Circuit Judges, and KOBAYASHI, District
Judge.
**
Herring Broadcasting, Inc., which does business as WealthTV, petitions for
review of an order by the Federal Communications Commission (FCC) concluding
that Time Warner Cable, Inc., Bright House Networks, LLC, Cox
Communications, Inc., and Comcast Corporation (collectively Intervenors) did not
violate 47 U.S.C. § 536(a)(3) in denying carriage to WealthTV. The four
Intervenors jointly own a company called iN DEMAND, which for several years
operated a network called MOJO. WealthTV alleges that the Intervenors
impermissibly discriminated on the basis of affiliation in favor of MOJO and
against WealthTV. The FCC concluded that the Intervenors denied carriage to
WealthTV for legitimate, nondiscriminatory business reasons and that WealthTV
could not prove its claim by showing differential treatment of MOJO because the
two networks were not similarly situated.
1.
The FCC’s determination that WealthTV and MOJO were not
similarly situated is supported by substantial evidence. See Tommasetti v. Astrue,
533 F.3d 1035, 1038 (9th Cir. 2008). First, the agency reasonably relied on the
expert testimony of Michael Egan to conclude that the two networks did not show
**
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
2

Case: 11-73134 03/14/2013 ID: 8550458 DktEntry: 90-1 Page: 3 of 5
similar programming. WealthTV argues that the agency’s rejection of Egan’s
conclusions in a later case undermines its reliance on Egan here. Even assuming
that inconsistency with a later agency decision would undermine the validity of the
FCC’s analysis in this case, we conclude that no such inconsistency has been
shown. Egan himself acknowledged that he was applying two different modes of
analysis in the two cases. Thus, there was nothing inconsistent about the agency
finding the mode of analysis Egan applied to be persuasive in this case and not in
the other.
The agency also reasonably relied on Egan’s conclusion that the two
networks had a different “look and feel.” WealthTV provides no authority to
suggest that it is unreasonable to consider “look and feel” as one factor in
determining how similar two television networks are. The out-of-circuit case on
which WealthTV relies is readily distinguishable because the FCC there “nowhere
even vaguely described how it aggregated its findings into the decisive balance,”
but rather relied on an “administrative feel,” which the D.C. Circuit found was
“completely opaque to judicial review.” Cent. Fla. Enters., Inc. v. FCC, 598 F.2d
37, 50 (D.C. Cir. 1978). Here, by contrast, the FCC’s overall analysis was
carefully reasoned and not intuition-based.
3

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Finally, the FCC reasonably concluded, based on WealthTV’s own
marketing materials, that WealthTV targeted a broader audience than MOJO did.
The record does not support WealthTV’s argument that those marketing materials
were describing WealthTV’s actual audience and were misconstrued by the FCC as
describing its target audience.
2.
WealthTV argues that the agency erred by not applying the burden-
shifting framework used in employment discrimination cases. However, even
under the employment discrimination framework, WealthTV’s claim would still
hinge on whether the two networks were similarly situated. See Hawn v. Exec. Jet
Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010). Moreover, burden shifting
would not have made a difference here because the FCC reasonably determined
that, regardless of which party bore the burdens of production and proof, the two
networks were not similarly situated. Finally, although WealthTV alludes to other
reasons why a burden-shifting approach would have helped its case, it points to
nothing concrete that it would have done differently in presenting its case. Thus,
the FCC did not err in declining to decide whether a burden-shifting framework
should have been used in this case.
3.
WealthTV argues that the agency made two incorrect evidentiary
rulings. We conclude that, even assuming either evidentiary ruling was error, any
4

Case: 11-73134 03/14/2013 ID: 8550458 DktEntry: 90-1 Page: 5 of 5
such error would have been harmless. See 5 U.S.C. § 706; Molina v. Astrue, 674
F.3d 1104, 1115 (9th Cir. 2012).
4.
We find WealthTV’s remaining arguments unpersuasive. The record
contradicts WealthTV’s contentions that the agency improperly required
WealthTV to prove discrimination with direct evidence, and that the agency
overlooked evidence that the two networks targeted the same prospective
advertisers. WealthTV’s argument that the agency erred in relying on the fact that
WealthTV launched after MOJO’s predecessor networks is improperly premised
on a later agency decision involving very different facts.

PETITION FOR REVIEW DENIED.

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