Herring Broadcasting, Inc., d/b/a Wealth TV v. Time Warner Cable, Inc., Bright House Networks, LLC, Cox Communications, Inc., and Comcast Corporation. MB Docket No. 08-214, File Nos. CSR-7709-P, CSR-7822-P, CSR-7829-P, CSR-7907-P.
Federal Communications Commission FCC 11-94
Federal Communications Commission
Washington, D. C. 20554In the Matter of
MB Docket No. 08-214
Herring Broadcasting, Inc. d/b/a/ Wealth TV,
File No. CSR-7709-P
Time Warner Cable, Inc.,
Herring Broadcasting, Inc. d/b/a/ Wealth TV,
File No. CSR-7822-P
Bright House Networks, LLC,
Herring Broadcasting, Inc. d/b/a/ Wealth TV,
File No. CSR-7829-P
Cox Communications, Inc.,
Herring Broadcasting, Inc. d/b/a/ Wealth TV,
File No. CSR-7907-P
MEMORANDUM OPINION AND ORDER
Adopted: June 10, 2011
Released: June 13, 2011By the Commission:
This proceeding arises from complaints filed in 2007 and 2008 by Herring Broad-
casting, Inc. d/b/a WealthTV, a video programming vendor, against four multichannel video pro-
gramming distributors ("MVPDs") Time Warner Cable, Inc., Bright House Networks, Cox
Communications and Comcast Corporation. The complaints allege that the MVPDs discrim-
inated, in violation of the Communications Act and the Commission's rules, by refusing to carry
WealthTV's programming where the MVPDs did carry a similar programming channel provided
by a video programming vendor that was affiliated with the MVPDs.
Federal Communications Commission FCC 11-942.
In October 2008 the Media Bureau, acting pursuant to delegated authority, desig-
nated the complaints for hearing in a consolidated proceeding.1 As subsequently modified by the
Presiding Administrative Law Judge (ALJ), the issues designated for hearing were:
(a) whether the defendant[s] engaged in conduct the effect of which is to unrea-
sonably restrain the ability of the complainant to compete fairly by discriminating
in video programming distribution on the basis of the complainant's affiliation or
non-affiliation in the selection, terms, or conditions for carriage of video program-
ming provided by the complainant in violation of Section 76.1301(c);
(b) if the Administrative Law Judge determines that the defendant[s] [have] dis-
criminated against the complainant's programming in violation of section
76.1301(c), whether mandatory carriage of the complainant's programming on the
defendant[s'] system[s] is necessary to remedy the violation and, if so, the prices,
terms and conditions for such carriage, and such other remedies as the Adminis-
trative Law Judge recommends."2
Following a full evidentiary hearing, the ALJ issued a Recommended Decision
finding that "the preponderance of the evidence, viewed in its entirety, demonstrates that the
defendants never violated section 616 of the Act or section 76.1301(c) of the rules."3 The ALJ
denied the complaints, concluding that "WealthTV has not satisfied its burden of proving that any
of the defendants engaged in discrimination in the selection, terms or conditions of carriage on
the basis of WealthTV's nonaffiliation" or that "any of the defendants unreasonably restrained
WealthTV's ability to compete fairly."4 For the reasons explained below, we adopt the conclu-
sions of the Recommended Decision and deny WealthTV's exceptions and other requests.
The Statute and Regulations4.
Section 616 of the Communications Act directs the Commission to "establish
regulations governing program carriage agreements and related practices between cable operators
or other multichannel video programming distributors and video programming vendors."5
Among other things, Congress directed that the regulations "contain provisions designed to pre-
vent a [MVPD] from engaging in conduct the effect of which is to unreasonably restrain the
1 In the Matter of Herring Broadcasting, Inc. d/b/a WealthTV v. Time Warner Cable, Inc., et al., 23 FCC Rcd 14787
(MB 2008) ("HDO"). The HDO also designated two additional program carriage complaints filed by NFL Enter-
prises and TCR Sports Broadcasting Holding against Comcast Corp. for hearing in the same proceeding. These
complaints were dismissed after the parties reached settlements. See NFL Enterprises LLC, FCC 09M-42 (May 19,
2009); TCR Sports Broadcasting Holding, FCC 09M-58 (Dec. 23, 2009).
2 In the Matter of Herring Broadcasting, Inc. d/b/a WealthTV, FCC 08M-47 8 (ALJ Nov. 20, 2008).
3 In the Matter of Herring Broadcasting, Inc. d/b/a WealthTV, 24 FCC Rcd 12967, 12997 62 (ALJ 2009) ("Recom-
4 Id. at 13003 74, 75.
5 47 U.S.C. 536. Section 616 was added to the Communications Act by the Cable Television Consumer Protection
and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992).
Federal Communications Commission FCC 11-94ability of an unaffiliated video programming vendor to compete fairly by discriminating in video
programming distribution on the basis of affiliation or nonaffiliation of vendors in the selection,
terms, or conditions for carriage of video programming provided by such vendors."6
The Commission adopted rules in 1993 to implement Section 616.7 Specifically,
Sections 76.1301(a) and (c) were added to the Commission's rules to prohibit a cable operator or
other MVPD from engaging in conduct that unreasonably restrains the ability of an unaffiliated
programming vendor to compete fairly by discriminating against such vendor on the basis of its
In addition to establishing rules governing program carriage, the Second Report
and Order also established procedures for the review of program carriage complaints and appro-
priate penalties and remedies. The Commission adopted procedures by which cases would be
resolved on the basis of a complaint, answer and reply.9 The Commission recognized that "reso-
lution of Section 616 complaints [would] necessarily focus on the specific facts pertaining to each
negotiation, and the manner in which certain rights were obtained, in order to determine whether
a violation has, in fact, occurred."10 The Commission anticipated that the "staff would be unable
to resolve most carriage agreement complaints on the sole basis of a written record."11 In such
cases, if the staff determines that the complainant has established a prima facie case but that
"disposition of the complaint would require the resolution of factual disputes or other extensive
discovery," the staff is to notify the parties that they have the option of choosing Alternative Dis-
pute Resolution ("ADR") or an adjudicatory hearing before an Administrative Law Judge.12 The
Commission stated that the appropriate relief for program carriage violations would be deter-
mined on a case-by-case basis, and that appropriate remedies and sanctions would include
forfeitures, mandatory carriage, or carriage on terms revised or specified by the Commission.13
WealthTV's complaints against the defendants in this proceeding assert that the
defendants denied WealthTV carriage while providing preferential treatment to MOJO, a pro-
gramming vendor affiliated with defendants.14 According to WealthTV, MOJO's programming
was similar to WealthTV's and MOJO targeted the same audience as WealthTV.15 WealthTV
6 47 U.S.C. 536(a)(3); see 47 C.F.R. 76.1301(c) (implementing discrimination provision).
7 See 47 C.F.R. 76.1300 76.1302; Implementation of Sections 12 and 19 of the Cable Television Consumer
Protection and Competition Act of 1992 and Development of Competition and Diversity in Video Programming
Distribution and Carriage, 9 FCC Rcd 2642 (1993) ("Second Report and Order").
8 47 C.F.R. 76.1301(c).
9 See 47 C.F.R. 76.1302(c), (d), (e).
10 Second Report and Order, 9 FCC Rcd at 2648.
11 Id. at 2652.
12 Id. at 2656.
13 Id. at 2653.
14 HDO, 23 FCC Rcd at 14790 1.
15 Id. at 14795-797 12-17.
Federal Communications Commission FCC 11-94claimed that the defendants' actions unreasonably restrained its ability to compete fairly in the
marketplace and requested the Commission to order each defendant to carry WealthTV under
specified terms and conditions.16
In October 2008, the Media Bureau, acting pursuant to delegated authority, desig-
nated the four captioned complaints for hearing in a single consolidated proceeding after con-
cluding that the pleadings raised factual disputes that made it unable "to determine on the basis of
the existing records whether we can grant relief."17 The Bureau ordered the ALJ to issue a
recommended decision within 60 days. In a December 2008 order, in response to a motion by
WealthTV,18 the Media Bureau ruled that the ALJ's authority had expired when he had not issued
a decision within 60 days as set forth in the HDO.19 The Bureau stated that it would resolve the
complaints itself, without a recommended decision from the ALJ.20 In a January 2009 order, the
Commission rescinded the Media Bureau's December 2008 order, concluding that "these
proceedings are best resolved by hearings before an Administrative Law Judge."21 The
Commission "reinstate[d] the presiding Administrative Law Judge's delegated authority and
direct[ed] him to proceed pursuant to the HDO."22
Following completion of discovery, formal hearing with testimony of 21 witnesses
and written submissions by WealthTV, the defendants and the Commission's Enforcement
Bureau, the ALJ issued his Recommended Decision on October 14, 2009.23
The Recommended Decision10.
The dispute reflected in WealthTV's complaint arose out of efforts by MVPDs
such as defendants to provide high definition (HD) programming to their subscribers in the early
2000s when such programming was scarce. The defendants jointly own iN DEMAND, a com-
pany that provided HD programming to defendants beginning in 2003 through two channels
known as INHD and INHD2. In 2007, INHD was rebranded as the MOJO channel. MOJO
ceased operating in December 2008.24 The ALJ found that the defendants viewed the carriage of
these channels as a short term project to "showcase HD programming to those customers which
were `early adopters' of HD television sets at a time where there was little HD programming
available."25 He found that they expected eventually "to replace those networks when [standard
16 Id. at 14792 9.
17 Id. at 14790 7.
18 See Motion for Revocation of Hearing Designation filed by Herring Broadcasting, Inc., Nov. 24, 2008.
19 In the Matter of Herring Broadcasting, Inc. d/b/a WealthTV v. Time Warner Cable, Inc., et al., 23 FCC Rcd
18316 (MB 2008).
21 In the Matter of Herring Broadcasting, Inc. d/b/a WealthTV v. Time Warner Cable, Inc., et al., 24 FCC Rcd 1581,
1582 2 (2009).
23 Herring Broadcasting, Inc., 24 FCC Rcd 12967 (ALJ 2009).
24 Id. at 12973-76 11-19. The INHD2 channel was shut down in December 2006 to provide bandwidth for other
HD channels. See Cox Ex. 84 (Asch Test. 52).
25 Id. at 12973 12.
Federal Communications Commission FCC 11-94definition] networks with established brands and audience developed HD versions of their
existing programming."26 The ALJ found it "particularly noteworthy" that WealthTV had not
launched its channel when the INHD channels began operation in September 2003.27
The ALJ found, contrary to WealthTV's claims, that WealthTV's channel and the
MOJO channel were not similarly situated because the record evidence established that they
"neither aired the same type of programming, nor targeted the same audience."28 Furthermore,
the ALJ found the analysis of the two channels' programming provided by defendants' experts
"far more credible" than the analysis of WealthTV's expert.29 The Recommended Decision sum-
marizes the record evidence of the differences in WealthTV's and MOJO's programming that led
the ALJ to find that there were substantial differences in the content and presentation.30
The ALJ found the record evidence strongly supported defendants' claims that
WealthTV and MOJO did not target the same audience. The parties agreed that MOJO's target
audience was affluent males between the ages of 25 and 49. In contrast, the ALJ found that the
"overwhelming weight of the record evidence ... shows that WealthTV targeted a much broader
audience that was not limited to" that group.31
The ALJ concluded that the record evidence established that in 2003 the defendants
chose to carry the INHD channel, which subsequently became MOJO, "for legitimate, non-
discriminatory business purposes."32 These purposes, he found, included a need: (1) to offer HD
programming in order to compete with other MVPDs in appealing to "`early adopters' of HD
[television] sets;" (2) to preserve flexibility to preempt scheduled programming on the MOJO
channel to provide regional or local programming; and (3) for flexibility to replace the MOJO
channel when HD versions of existing cable networks became available.33 Noting that WealthTV
had not even begun operations when the defendants began carrying the INHD channel and thus
was not available for carriage, the ALJ concluded that the record provided "no credible evidence
that the defendants, in deciding to carry INHD, discriminated against WealthTV or any other
independent programming vendor on the basis of affiliation or non-affiliation."34
The ALJ rejected WealthTV's argument that the defendants launched a new
channel when INHD was converted to MOJO. The ALJ found the record evidence showed, to the
contrary, that "the re-branding of INHD into MOJO consisted of incremental changes over many
months resulting in no significant change in the network's target demographic or general content.
26 Id. at 12974 13.
27 Id. at 12973 12.
28 Id. at 12976 20.
29 Id. at 12979 25.
30 Id. at 12977-80 21-26.
31 Id. at 12980 27.
32 Id. at 12998 64.
34 Id. at 65.
Federal Communications Commission FCC 11-94That re-branding constituted an evolutionary re-focus of an existing channel rather than the
independent launch of a new network."35
The ALJ also rejected WealthTV's argument that the defendants unlawfully dis-
criminated against WealthTV based on its non-affiliated status when they chose to carry the
MOJO channel rather than WealthTV's channel. "The preponderance of the evidence," the ALJ
concluded, "establishes that WealthTV's status as an independent programming vendor played no
role in the defendants' individual decisions not to provide full linear carriage to WealthTV."36
That record evidence, in the ALJ's judgment, demonstrated that the defendants based their
decisions not to carry WealthTV on "non-discriminatory business reasons," including: (1) "their
evaluation of WealthTV's programming;" (2) "their perception that WealthTV lacked an estab-
lished brand with a proven record of appeal to their subscribers;" (3) that "WealthTV had not
obtained carriage with a number of competing MVPDs;" (4) that "WealthTV's owners were
inexperienced in launching networks;" (5) that "bandwidth necessary to carry WealthTV could be
used for better purposes;" (6) that "WealthTV lacked outside financing;" and (7) that
"WealthTV's proposed terms and conditions of carriage were unfavorable" to the defendants.37
The ALJ concluded that the record provided "no credible or reliable evidence proving that any
defendant refused to carry WealthTV for any purpose of enhancing the competitive position of
the affiliated programming vendor, MOJO."38 Indeed, he concluded that there was no "credible
or reliable evidence that any of the defendants considered MOJO at all in deciding whether or not
to carry WealthTV."39
Section 616 of the statute and Section 76.1301(c) of our rules provide that, to
establish a violation, a complainant like WealthTV must show that the effect of the alleged dis-
criminatory conduct is to "unreasonably restrain" its "ability to compete fairly."40 The ALJ
rejected defendants' arguments that an antitrust approach should be used in applying the statute
and rule because the antitrust laws are designed to protect competition, not competitors, whereas
sections 616 and 76.1301(c) are intended to protect a specific group of competitors.41 The ALJ
found that the defendants' approach "would permit MVPDs to discriminate against unaffiliated
program vendors ... simply by showing that they have a relatively small percentage of overall
subscribers or that a large proportion of viewers subscribe to MVPDs that are not vertically inte-
grated."42 The ALJ found this approach inconsistent with the underlying purpose of the statute to
provide new remedies separate from those available under the antitrust laws.43
35 Id. at 12999 66.
36 Id. at 67.
40 47 U.S.C. 536(a)(3); 47 C.F.R. 76.1301(c).
41 Recommended Decision, 24 FCC Rcd at 13001 71.
Federal Communications Commission FCC 11-9417.
While rejecting the defendants' proposed analytic approach, the ALJ nevertheless
concluded that WealthTV had failed to demonstrate that the defendants' refusal to carry its pro-
gramming channel unreasonably restrained its ability to compete fairly. He concluded that the
record evidence demonstrated that
each of the defendants made a decision not to carry WealthTV on the basis of
reasonable and legitimate business reasons that were within the bounds of fair
competition. Thus, WealthTV has failed to satisfy its burden of proving by a
preponderance of the evidence that any of the defendant's actions unreasonably
restrained WealthTV's ability to compete fairly under the second part of the
standard of sections 616 and 76.301(c).44
The Burden of Proceeding and the Burden of Proof18.
The ALJ determined at the outset of this proceeding that WealthTV, as the com-
plainant, had the burden of proceeding with the introduction of evidence and the burden of proof
on the issues specified with respect to the complaints against these defendants.45 WealthTV
argues in its exceptions that the ALJ improperly allocated the burdens of proceeding and proof to
it "despite the fact that the Media Bureau determined that WealthTV had established a prima
facie showing of each defendant's discrimination against WealthTV."46 In his Recommended
Decision, the ALJ explained that he had adhered to "the usual practice of requiring that the party
seeking relief by Commission order to bear the burden of proving that the violations occurred"
and that WealthTV had not challenged his allocation when the ruling was first issued, but instead
waited until after the evidentiary record was closed.47 We acknowledge the ALJ's concern that
the parties relied on his prehearing order assigning the burdens to the complainant, and that it
would therefore have been "fundamentally unfair" to shift the burdens retroactively after the
record was closed.48 However, we need not decide here whether the ALJ properly allocated the
burdens or whether WealthTV's objection to the allocation was untimely because we agree with
the ALJ's conclusion that the allocation of the burdens is "immaterial to the [ultimate] decision"
inasmuch as "the preponderance of the evidence, viewed in its entirety, demonstrates that the
defendants never violated Section 616 of the Act or section 76.1301(c) of the rules."49 We
conclude that the defendants would have prevailed even if they had been required to carry the
burdens of production and proof, as WealthTV contends was proper. Accordingly, we need not
44 Id. at 13003 73.
45 See In the Matter of Herring Broadcasting, Inc. d/b/a WealthTV, FCC 08M-44 (ALJ Oct. 23, 2008).
46 Exceptions to Recommended Decision of Chief Administrative Law Judge Richard L. Sippel, filed by Herring
Broadcasting, Inc. d/b/a WealthTV (Nov. 16, 2009), at 6.
47 Recommended Decision, 24 FCC Rcd at 12995 58 and n.230. The ALJ also noted that the Commission's rules
provide a procedure by which WealthTV could have sought permission to challenge the interlocutory ruling gov-
erning the burdens in this proceeding when it issued in October 2008, but WealthTV failed to do so. Id. at n. 231.
48 Id. at 12995 58.
49 Id. at 12997 62.
Federal Communications Commission FCC 11-94consider whether the burdens were properly allocated or WealthTV's objection to the allocation
Several of WealthTV's exceptions contend that the record evidence did not support
the ALJ's conclusions, specifically with respect to WealthTV's claims that its channel was
similar to the MOJO channel in content and target audience and with respect to its claims that
each defendant unlawfully discriminated by refusing to carry its programming in favor of the
programming provided by the affiliated MOJO channel. As discussed below, we find that there is
substantial record evidence supporting the ALJ's conclusions.
Whether WealthTV and MOJO Were Similarly Situated. A central element in
WealthTV's complaints was the claim that it was similarly situated to MOJO because the two
networks offered similar types of programming and targeted the same audience affluent
younger adult males.51 Following a detailed analysis of the evidence, the ALJ concluded that "the
preponderance of the record evidence demonstrates that WealthTV and MOJO were not similarly
situated networks. The two networks aired different types of programming and targeted different
In its exceptions, WealthTV argues that the ALJ's conclusion was erroneous.
Specifically it argues that the ALJ applied an improper standard that required WealthTV to show
that its programming and audience appeal were "substantially identical" to that of MOJO in order
to demonstrate discrimination. In addition, it argues that substantial record evidence does not
support the ALJ's conclusion.53
We find no basis for WealthTV's claim that the ALJ required it to demonstrate that
the programming on its network and that on MOJO were substantially identical in order to
maintain its complaints. It cites in its exceptions no specific language from the Recommended
Decision that imposes such a requirement nor does it point to any discussion from which one
could infer that the ALJ imposed such a standard. In any event, regardless of what standard
WealthTV may claim that the ALJ required it to meet, the ALJ's findings that there were signifi-
cant differences in the programming of WealthTV and MOJO is based on substantial evidence
50 We recognize that it would be helpful for us to provide guidance on the proper allocation of the burdens of
proceeding and proof in program carriage cases that are designated for hearing. To that end, we anticipate initiating
a rulemaking proceeding that will seek comment on this and other issues regarding the program carriage rules,
which will afford all interested parties an opportunity to present their views.
51 See HDO, 23 FCC Rcd at 14795-797, 14801, 14806, 14812 13-18, 28, 40, 52. We need not decide whether a
complainant alleging affiliation-motivated discrimination, in the absence of direct evidence of discrimination, must
meet a threshold burden of showing that its program channel and the affiliated program channel are similarly
situated in terms of types of programming and targeted audience as the Recommended Decision suggests. It is
sufficient to observe here that WealthTV framed its complaint around the allegation that its channel was similarly
situated with the MOJO channel, and the HDO took the complaint as presented. See, e.g., "Carriage Agreement
Complaint," File No. 7907-P at 1, 2, 14-20, filed by Herring Broadcasting Corp. (Oct. 15, 2008).
52 Recommended Decision, 24 FCC Rcd at 13000 69 (footnotes omitted); see also id. at 12976-83 20-34.
53 Exceptions at 11-13.
Federal Communications Commission FCC 11-94supporting his conclusion that the two networks were not similarly situated with respect to pro-
The ALJ rejected WealthTV's claim that it presented "substantial evidence regard-
ing the programming similarities of WealthTV and MOJO" (Exceptions at 12). We see no basis
for disagreeing with the ALJ's finding that the preponderance of record evidence established that
MOJO and WealthTV aired different types of programming. Defendants' expert compared the
programming on each channel in two sample weeks in July 2007 and January 2008. His "analysis
established that 54 percent of MOJO's programming time was devoted to sports, music, and
movies whereas only three percent of WealthTV's programming consisted of shows in those
genres."55 In addition, his study "established that 60 percent of WealthTV's programming time
consisted of shows in the genres of travel and recreation, lifestyle, food & drink, documentary,
and art/design/collectables programming that aired only 19 percent of the time on MOJO."56
He also concluded that "the on-air `look and feel' of MOJO and WealthTV were demonstrably
different."57 The ALJ found the defendants' expert to have provided "consistent, convincing, and
well organized expert testimony."58
By contrast, the ALJ found that WealthTV's programming expert based her analy-
sis of WealthTV's programming on selections of that channel's programming provided to her by
WealthTV President Charles Herring and that she had not based her views on any "systematic
review of the programming of either WealthTV or MOJO."59 "Nothing in the record establishes
that the selections of WealthTV's programming viewed by Ms. McGovern are representative of
WealthTV's programming as a whole."60 The ALJ also noted that WealthTV's expert had
acknowledged in her testimony "many differences in the programming of WealthTV and
MOJO."61 We find that there was ample basis for the ALJ's conclusion that the expert testimony
presented by defendants was more credible than that of WealthTV.
WealthTV's additional claim that the two networks were similarly situated based
on record evidence that they "targeted a similar audience" is belied by an examination of the
record. There appears to be no dispute that the target audience for MOJO was younger adult
males.62 WealthTV argues that it targets a similar "male skewed audience, aged 25-49."63 The
ALJ found, however, that the "overwhelming weight of the record evidence ... shows that
WealthTV targeted a much broader audience than adult males between the ages of 25 and 49" and
54 See Recommended Decision, 24 FCC Rcd at 12976-83 20-34.
55 Id. at 12977 22.
57 Id. at 12978 23.
58 Id. at 12979 n.91.
59 Id. at 25.
62 Id. at 12980 27
63 Exceptions at 12.
Federal Communications Commission FCC 11-94that "WealthTV's assertion that it `consistently' has described its target demographic as males
aged 25-49 conflicts with the record evidence considered as a whole."64
The ALJ considered and rejected WealthTV's evidence. The ALJ noted the
absence of references to 25-49-year-old men in WealthTV's marketing presentations to MVPDs
and prospective advertisers. Indeed, those presentations included one in which "WealthTV
described itself as `targeting the most affluent viewer, 25-60+, educated, equal appeal to men and
women.'"65 WealthTV repeatedly described itself as having a "broad appeal," competing for
advertisers with magazines and programming networks that were "female-skewed" or "gender
neutral." Statements on WealthTV's website and in press releases consistently described
WealthTV as having "broad appeal" without any reference to specific appeal to affluent men aged
25-49.66 The ALJ also took note of Mr. Herring's sworn testimony in unrelated litigation
inconsistent with his testimony here that WealthTV's programming "appeals to about a 25 to
65+ crowd," irrespective of gender, and that "the only group that would not find WealthTV
attractive was `monks that have taken a vow to poverty.'"67 In sum, substantial record evidence
supports the ALJ's conclusion that WealthTV and MOJO did not target similar audiences.
Allegations of Discrimination Against WealthTV. WealthTV also contends that the
ALJ erred in concluding that WealthTV's status as an independent programmer "played no role in
the defendants' individual decisions not to provide full linear carriage to WealthTV."68
According to WealthTV, the record contained substantial evidence of discrimination by defen-
dants against it and in favor of their affiliated network. We disagree.
The Recommended Decision contains a detailed analysis of each defendant's nego-
tiations with WealthTV concerning carriage of WealthTV's program channel.69 WealthTV's
exception with respect to discrimination largely ignores these findings. For example, with respect
to defendant Time Warner Cable (TWC) the ALJ found that although TWC officials reasonably
believed that there was little demand from its cable systems for carriage of WealthTV's
programming and that those "officials made reasonable business decisions based on that belief,"70
TWC had continued to negotiate in good faith with WealthTV. He noted, for example, that the
TWC system in San Antonio had offered to extend a trial in which it provided WealthTV
programming as a video-on-demand service, but WealthTV refused to extend the agreement
unless TWC provided a linear carriage agreement.71 The ALJ pointed out that "only three of 59
networks launched by TWC between 2004 and 2008 were affiliated with TWC," and "TWC lacks
capacity to carry all the networks that seek affiliation and must decide what networks are in its
64 Recommended Decision, 24 FCC Rcd at 12980 27, 12983 34.
65 Id. at 12980 29.
66 Id. at 12981-83 30, 33.
67 Id. at 12982 32.
68 Id. at 12999 67.
69 Id. at 12983-93 35-51.
70 Id. at 12984 36.
71 Id. at 37; see also id. at 38 (discussing TWC's continuing negotiations in an attempt to reach a carriage agree-
ment with WealthTV). Linear carriage refers to carriage of a programming channel full time, that is, generally 24
hours a day 7 days a week.
Federal Communications Commission FCC 11-94best interest to carry."72 He concluded that the "weight of the record evidence shows that TWC's
decision not to offer full linear carriage to WealthTV was based upon business considerations that
were unrelated to TWC's affiliation with MOJO."73
The ALJ found the record also to show that although defendant Cox Communi-
cations had concluded that WealthTV "was a marginal network that would not bring value to
Cox, [it] continued to meet with WealthTV, however, because it kept open the possibility that
WealthTV would provide it with new material that might convince it to carry the network."74 The
ALJ cited numerous factors developed from the record that led him to find that the preponderance
of the record evidence thus shows that business factors, and not Cox's affiliation with MOJO,
were the reasons that Cox declined to carry WealthTV. WealthTV's claims in its exception that
the ALJ ignored evidence that Cox refused to enter into "meaningful" carriage negotiations
despite "expressions of interest" from individual Cox cable systems are not supported by the
The ALJ noted that two Comcast executives with responsibility for program
carriage both "testified that Comcast's affiliation with MOJO played no role either in Comcast's
negotiations with WealthTV or in its carriage decisions regarding that network." 76 They "testi-
fied that pursuing a carriage agreement with WealthTV was a low priority for Comcast given the
cost of carriage, the uncertain consumer appeal of WealthTV's programming, bandwidth con-
straints, the fact that WealthTV had attracted relatively few carriage agreements, the lack of
experience of its owners in the programming business, and absence of outside investment sup-
port."77 The ALJ found their testimony to be credible. By contrast, the ALJ found that the
testimony of WealthTV president Charles Herring that there was support among individual Com-
cast cable systems for carriage of WealthTV to be "unreliable and not credible."78
The ALJ found that the record led to similar findings with respect to WealthTV's
negotiations with Bright House Networks (BHN) for carriage. BHN executives concluded that
their subscribers had very limited interest in WealthTV's programming and for that reason
thought it was not "worth BHN's bandwidth needed to carry an HD channel ...."79 BHN's then-
president testified that "BHN's carriage of MOJO played no role in BHN's decision not to carry
WealthTV," and the ALJ found this testimony to be credible.80
72 Id. at 12985 39.
74 Id. at 12986 41.
75 See Exceptions at 15.
76 Recommended Decision, 24 FCC Rcd at 12989 44 (footnote omitted).
78 Id. n. 179.
79 Id. at 12992 49. The ALJ noted that the record contained evidence of a survey BHN had conducted in July 2007
which showed that among BHN subscribers, WealthTV ranked next to last (36th of 37) both among program chan-
nels most requested by subscribers having HD television sets and among channels that HD set owners were likely to
watch if available. Id. at 50.
80 Id. at 12993 51.
Federal Communications Commission FCC 11-9432.
WealthTV's claims that the defendants treated it unfairly may reflect its good-faith
belief. However, we agree with the ALJ's conclusion that the record evidence as a whole does
not support WealthTV's claims. In particular, we find no basis in the record for WealthTV's
claim that the reasons given by defendants for refusal to carry its programming were "mere
pretext to mask the discriminatory treatment of a non-affiliated network."81 There is substantial
record evidence that defendants' refusals to carry WealthTV were based on legitimate business
reasons that were unrelated to WealthTV's status as an independent programming vendor.82
The ALJ's Rulings On Witnesses And Evidence33.
WealthTV also contends that the ALJ erred in his rulings with respect to certain
evidence and the testimony of certain witnesses. Deference is ordinarily accorded an ALJ in the
conduct of a hearing.83 WealthTV's exceptions present no basis to conclude that the ALJ abused
his discretion in his rulings on the witnesses and evidence that are challenged.
The ALJ's Exclusion of Certain Evidence. WealthTV excepts to the ALJ's refusal
to permit it to introduce into evidence as a party admission the testimony of Comcast chief ope-
rating officer Stephen Burke from a separate proceeding. WealthTV asserts that this testimony
would have rebutted the testimony in this proceeding of a different Comcast executive, Madison
Bond.84 WealthTV contends that the ALJ erroneously refused to admit the testimony given in the
separate proceeding because it was hearsay, but that was not the basis for the ALJ's ruling.
Rather, the ruling was based on the fact that WealthTV sought to introduce the testimony during
its cross examination of Mr. Bond, and Mr. Bond was not competent under Rule 901 of the
Federal Rules of Evidence to authenticate the transcript of testimony of a different individual in a
Although the ALJ indicated at the time of his ruling sustaining Comcast's objection
that there were alternative procedures by which WealthTV could have sought to have the
transcript admitted into evidence, WealthTV's exceptions make no reference to any further effort
on its part at any other time to introduce this evidence pursuant to appropriate procedures. Even
if it is true, as WealthTV claims, that Mr. Burke's testimony in the separate proceeding would
have been inconsistent with Mr. Bond's statements in this proceeding that Comcast treated
affiliated and non-affiliated networks even-handedly, there is no evidence that Mr. Burke's
testimony in a separate proceeding had any bearing on WealthTV's specific complaint against
Comcast or the other defendants here. We therefore reject WealthTV's arguments that the ALJ
erred in this evidentiary ruling.
81 Exceptions at 16.
82 See id. at 12999 67. We are not persuaded by WealthTV's argument that some number of Cox systems had some
interest in carrying WealthTV. Even if this were the case, it would not demonstrate that Cox acted improperly in
making a system-wide decision as to whether to carry WealthTV.
83 In re Applications of Intercontinental Radio, Inc., 98 F.C.C.2d 608 41 (Rev. Bd. 1984), aff'd in relevant part,
100 F.C.C.2d 817 (1985).
84 Exceptions at 18.
85 See Tr. 4707-09.
Federal Communications Commission FCC 11-9436.
The ALJ's Denial of WealthTV's Request for the Testimony of Robert Jacobson.
WealthTV also contends that the ALJ erred when he denied WealthTV's request for the president
of iN DEMAND "to testify to the facts and circumstances regarding the development and launch
WealthTV failed to include Mr. Jacobson on its witness list, which was required to
be filed by April 3, 2009.87 WealthTV states that his testimony became necessary when portions
of the testimony of WealthTV President Charles Herring were challenged by defendants as
improper expert testimony and hearsay.88 The testimony in question related to the policies of iN
Demand.89 However, as defendants note in their reply, WealthTV should have known that its
president Mr. Herring would not be competent to testify as to the policies of iN Demand and thus
should not have been surprised by the defendants' challenge to those portions of his proposed
testimony.90 Moreover, the defendants and WealthTV subsequently agreed on Mr. Herring's
testimony, and WealthTV did not renew its request for the testimony of Mr. Jacobson. We find
no basis to conclude that the ALJ abused his discretion in refusing to allow the testimony of Mr.
Jacobson. In any event, WealthTV's exception on this point fails to demonstrate how it was
harmed by not having Mr. Jacobson's testimony.91
The ALJ's Reliance on the Testimony of Michael Egan. WealthTV also excepts to
the ALJ's conclusion that the testimony of defendants' expert Michael Egan was credible, argu-
ing that the testimony was unreliable and should have been accorded "little weight" by the ALJ.92
The ALJ considered Mr. Egan's testimony and WealthTV's challenges to its reliability in some
detail and was not persuaded that the testimony was "wrong or unreliable."93 The ALJ found Mr.
Egan "far more credible" than WealthTV's programming expert.94
It is well established that an ALJ's determination of the credibility of witnesses at a
hearing is due substantial deference.95 We find no basis to conclude that the ALJ abused his
discretion in finding Mr. Egan's testimony reliable and credible. WealthTV's exceptions suffer
from the same flaws as its argument to the ALJ. For example, the ALJ pointed out that
"WealthTV criticizes the formality of the method by which Mr. Egan conducted the `look and
feel' analysis. But it fails to show how Mr. Egan's conclusions were erroneous. Nor did
86 Exceptions at 18.
87 In the Matter of Herring Broadcasting, Inc. d/b/a WealthTV, FCC 09M-30 (ALJ April 1, 2009).
88 Exceptions at 19; see "Defendants Motion In Limine to Exclude Portions of the Testimony of Charles Herring,"
(April 10, 2009).
90 See Reply to Exceptions at 21.
91 Numerous executives of the defendant companies testified at the hearing, including the Executive Vice President
of Programming at iN DEMAND, David Asch. See generally Tr. 4343-4411.
92 Exceptions at 23-24.
93 Recommended Decision, 24 FCC Rcd at 12977 n.76; see also id. at n.77; 12979 n.91; 12980 26.
94 Id. at 12979 25.
95 See, e.g., In re Reading Broadcasting, Inc., 17 FCC Rcd 14001, 14006 16 (2002); Telestar, Inc., 2 FCC Rcd 5,
13 23 (Rev.Bd. 1987).
Federal Communications Commission FCC 11-94WealthTV present any countervailing evidence on the comparative `look and feel' of MOJO and
WealthTV in support of its claim that the programming of the two networks is similar."96 The
ALJ gave full consideration to WealthTV's arguments as to the reliability of Mr. Egan's testi-
mony, and we find no basis to disagree either with his rejection of those arguments or with his
decision to credit that testimony.
Alleged Bias By The ALJ40.
WealthTV contends that the ALJ "demonstrated an improper bias against it,"
evidenced by the fact that he "made arbitrary and capricious findings of fact, not supported by the
record evidence, against WealthTV."97 The Commission's rules provide a specific procedure to
address questions of bias on the part of a presiding ALJ at an evidentiary hearing, which includes
a right to immediate review.98 WealthTV did not avail itself of that procedure, although it points
to events occurring at the very outset of the proceeding in late 2008 and early 2009 as the "most
notabl[e]" evidence of bias on the part of the ALJ.99 The Commission has held that where a party
to a hearing proceeding fails, without justification, to utilize these specified procedures governing
the disqualification of a presiding ALJ on the basis of bias, but raises the issue of bias for the first
time in its exceptions to an ensuing adverse decision, the appropriate response is to strike those
exceptions. Raising a bias issue in this manner seeks "through the back door to cast serious
aspersions on the integrity of the presiding ALJ with undocumented maledictions in a forum in
which the ALJ cannot respond."100 Courts also have recognized generally that "[c]laims of bias
must `be raised as soon as practicable after a party has reasonable cause to believe that grounds
for disqualification exist.'"101 WealthTV has submitted no justification for its tardy claim of bias.
Accordingly, we will strike those portions of WealthTV's exceptions alleging bias on behalf of
the ALJ in this matter.
In addition, we separately and independently find that even if we were to consider
WealthTV's exception on this issue, nothing in its argument would support a finding of bias on
the part of the ALJ here or call for further examination of this question. Although claiming
broadly that the ALJ "made arbitrary and capricious findings of fact, not supported by the record
evidence ... which demonstrated an improper bias against [WealthTV]" (Exceptions at 21),
WealthTV focuses primarily on one asserted example of such alleged bias.102 It contends that in a
96 Recommended Decision, 24 FCC Rcd at 12980 26 (footnote omitted).
97 Exceptions at 21.
98 See 47 C.F.R. 1.245. Because the special nature of bias claims is reflected in the rule that specifically allows
bias challenges during the course of a hearing, a challenge to the qualification of a presiding ALJ on the basis of bias
as established in this rule is not precluded by the language in the Second Report and Order stating as a general
matter that "[i]nterlocutory appeals shall be permitted only after a ruling on the merits." 9 FCC Rcd at 2656 34.
99 Exceptions at 21.
100 Aspen FM, Inc., 5 FCC Rcd 3196 4 (Rev.Bd. 1990); see also In re Application of Maria M. Ochoa, 10 FCC
Rcd 4323, 4324 9 (Rev.Bd. 1995).
101 Pharaon v. Board of Gov. of the Fed. Reserve Sys., 135 F.3d 148, 155 (D.C. Cir. 1998), quoting Marcus v.
Director, Office of Workers' Comp., 548 F.2d 1044, 1051 (D.C. Cir. 1976)(footnotes omitted).
102 WealthTV's additional citation to a comment of the ALJ at the hearing as evidence of bias is frivolous. See
Exceptions at 23. We find no evidence of bias against WealthTV in the comment, and certainly no evidence of "a
prejudice against WealthTV [that] materially affected his findings of fact in these cases." Id.
Federal Communications Commission FCC 11-94December 2, 2008 procedural order, the ALJ adopted a schedule for the proceeding that would
have led to delay harmful to both WealthTV and the public interest. As a result, WealthTV
moved to revoke the HDO. It now relies on language in the Media Bureau's order granting that
motion in support of its claim of bias on the part of the ALJ.103 We note, however, that nothing
in the Bureau's order intimated a view that its criticism of the ALJ was based at all on a view that
the ALJ was biased against WealthTV, and WealthTV made no such claim at the time.
WealthTV also overlooks that the Commission "rescind[ed] in full" the Media Bureau order on
which it relies, thus its reliance on statements in the order are improper.104
WealthTV's claims fall far short of meeting its "heavy burden" of "demonstrat[ing]
personal bias or prejudice impairing the Presiding Judge's ability to act in an impartial
manner."105 Adverse rulings by an ALJ alone do not support allegations of bias unless they
demonstrate "a fixed opinion a closed mind on the merits of the case."106 WealthTV's claim,
citing primarily a single assertedly adverse procedural ruling by the ALJ in this case, does not
come close to meeting that standard.
Accordingly, we find that there would be no basis for WealthTV's exception that
the ALJ in this proceeding had been improperly biased against it even if the claim had been raised
in a timely manner.
Request For Oral Argument44.
WealthTV has also filed a "Request for Oral Argument on Exceptions to Recom-
mended Decision of Chief Administrative Law Judge Richard L. Sippel." WealthTV contends,
reciting the language of 47 C.F.R. 1.277(c), that "oral arguments will assist in the resolution of
the issues presented."107 WealthTV's request, however, fails to identify any specific grounds for
its assertion that oral argument would be beneficial to the resolution of this case, and we see none.
In view of the extensive record compiled in this proceeding and the thorough decision of the ALJ,
we find that oral argument is unnecessary to the resolution of the issues presented in WealthTV's
exceptions. The request for oral argument, therefore, will be denied.
Motion To Reopen The Record45.
On March 4, 2010, WealthTV filed a "Motion To Reopen The Record For Further
Hearing." The motion stated that WealthTV had recently discovered that Comcast had been
carrying WealthTV's program channel without compensation to it for more than two years on
several cable television systems in the Princeton, New Jersey area that Comcast acquired from
another operator in 2007. According to the motion, this calls into question "whether Comcast
Corporation has been truthful and candid in its representations to the Commission about its
103 Exceptions at 21-23; see In the Matter of Herring Broadcasting, Inc. d/b/a WealthTV v. Time Warner Cable, Inc.,
et al., 23 FCC Rcd 18316 (MB 2008).
104 Herring Broadcasting, Inc., 24 FCC Rcd at 1582 2.
105 In the Matter of Family Broadcasting, Inc., 17 FCC Rcd 19332, 19333 7 (2002), citing WWOR-TV, 5 FCC Rcd
2845 6 (1990); Metropolitan Council of NAACP Branches, 46 F.3d 1154, 1164-65 (D.C. Cir. 1995).
106 Pharaon, 135 F.3d at 155.
107 Request at 2.
Federal Communications Commission FCC 11-94negotiations with WealthTV regarding carriage of its programming channel" because "Comcast
has maintained during this proceeding that it did not and would not for various reasons carry
WealthTV on its cable systems."108 The motion seeks to enlarge the issues in the proceeding to
explore whether a specific Comcast official testified candidly and, in light of findings on that
issue, whether the Commission should conclude that Comcast negotiated with WealthTV in good
faith or engaged in anti-competitive conduct.109 Comcast filed an opposition to the motion
arguing that it was untimely, that WealthTV had not been diligent in raising this issue and that the
motion failed to demonstrate a substantial likelihood of proving an issue of decisional signifi-
Where a motion to enlarge is filed belatedly, as this motion was,111 the rules
provide that "the motion to enlarge will be considered on its merits if (and only if) initial exami-
nation of the motion demonstrates that it raises a question of probable decisional significance and
such substantial public interest importance as to warrant consideration in spite of its untimely
filing."112 In addition, the Commission will entertain a request to reopen a proceeding after the
close of the record only where the party seeking to reopen the proceeding shows that its "con-
tentions are based on newly discovered evidence that could not, through the exercise of due
diligence, have been discovered earlier and that the new evidence, if true, would affect the ulti-
mate disposition of the proceeding."113
The motion fails to meet the applicable criteria for enlarging issues in a proceeding
or for reopening a proceeding. WealthTV has failed to demonstrate that it could not have
discovered this evidence earlier. Its pleadings do not even make clear when it actually discovered
that Comcast had been carrying its program channel on these systems, beyond Mr. Herring's
declaration, which indicates only that it was sometime after September 2007 and before January
26, 2010.114 Moreover, as Comcast points out in its opposition, its continued carriage of
WealthTV on these systems was disclosed in a document production to WealthTV in this pro-
ceeding more than a year earlier in February 2009.115 WealthTV does not deny the accuracy of
Comcast's claim, but responds that "one page in thousands is not basis for imputing knowledge
on the part of WealthTV."116 This misses the point, which is whether WealthTV, with exercise of
108 Motion at i.
109 Id. at 1-2.
110 See "Opposition To Motion To Reopen The Record For Further Hearing" (March 15, 2010).
111 A motion to enlarge issues "based on new facts or newly discovered facts shall be filed within 15 days after such
facts are discovered by the moving party." 47 C.F.R. 1.229(b)(3). WealthTV acknowledges that it became aware
of the facts that form the basis for its motion at least by January 26, 2010. The motion, however, was not filed until
March 3, 2010, more than 5 weeks later.
112 47 C.F.R. 1.229(c).
113 Omaha TV 15, Inc., 4 FCC Rcd 730 6 (1988), citing American Int'l Development, Inc., 86 F.C.C.2d 808, 811 5
(1981); Southeast Arkansas Radio, Inc., 61 F.C.C.2d 72, 7374 4 (1976). See also Advanced Communications
Corp., 18 FCC Rcd 2926, 2930 n.20 (2003); Southwestern Bell Tel. Co., v. FCC, 180 F.3d 307, 312 (D.C. Cir.
114 See Herring Decl. at 11-14.
115 See Opposition at 3.
116 Reply at 4 n.5
Federal Communications Commission FCC 11-94due diligence, could have discovered this evidence earlier. Because these facts were actually
made available to WealthTV in documents exchanged in the discovery stage of this very pro-
ceeding, months before the close of the record, we are unable to find that WealthTV has exercised
due diligence. The Commission has consistently refused to order further proceedings to explore
matters that are "easily discoverable initially and only deemed crucial when seen from the
highland of hindsight."117
We also are not persuaded by WealthTV's pleadings that it has raised a question of
substantial importance that could affect the ultimate disposition of this proceeding. The most that
can be said of WealthTV's argument is that Comcast failed to disclose prominently enough that it
had continued to carry WealthTV's program channel on three cable systems in New Jersey with
approximately 25,000 subscribers (0.1% of Comcast's total cable subscribers). However, Com-
cast's allegedly inadequate presentation is barely relevant to this proceeding at all, much less a
matter that would likely affect its ultimate disposition. The record here showed that Comcast
"was willing to carry WealthTV under certain terms and conditions, but it was not willing to pro-
vide the expansive linear carriage across Comcast's systems that WealthTV was demanding."118
Comcast's carriage of WealthTV's program channel on the New Jersey systems is consistent with
those record facts. Comcast asserts that it believed it was authorized to continue carrying
WealthTV on these systems without charge following their acquisition in 2007.119 These systems
had "sufficient capacity to carry more high definition programming," although they represented a
tiny fraction of Comcast's total subscribers.120 WealthTV's claim that this evidence undermines
Comcast's position that it "`did not view WealthTV's programming as a compelling value pro-
position for Comcast or its subscribers'" (Reply at 2) is unpersuasive. We find it unremarkable
that a cable operator might continue to carry a program network on a small number of systems
following a small acquisition without engaging in the same level of analysis involved in deciding
whether to carry the network across all its systems.
Based on the motion's untimeliness, WealthTV's lack of due diligence in raising
this issue, and the absence of any likelihood that this newly discovered evidence would be of
decisional significance, WealthTV's motion to reopen the record for further proceedings will be
IT IS ORDERED, for the reasons discussed above, that the Excep-
tions presented by WealthTV to the Recommended Decision in this proceeding are resolved as
Exception A, alleging an "Improper Shift of the Burden of Proceeding and Proof"
117 Liberty Productions, Inc., 7 FCC Rcd 7581, 7582 14 (1992), quoting Omaha TV 15, 4 FCC Rcd 730, 731 7
(1988), and Guinan v. FCC, 297 F.2d 782, 787 (D.C. Cir. 1961)(internal quotes omitted).
118 Opposition at 9.
119 Opposition at 3 n.6.
120 Id. at 9, 10 n.33.
Federal Communications Commission FCC 11-94Exception B, alleging that "WealthTV and MOJO are Similarly Situated,"
Exception C, alleging "Substantial Evidence of Discrimination in Favor of
Exception D, alleging "Failure to Receive into Evidence Admission of a Party
Exception E, alleging "Denial of Request for Robert Jacobson to Testify was
Exception F, alleging "Improper Bias of ALJ,"
Exception G, alleging "Testimony of Michael Egan Lacked Sufficient Indicia of
Exception H, alleging that the "Ultimate Conclusion" of the Recommended
Decision was erroneous,
IT IS FURTHER ORDEREDthat WealthTV's "Request for Oral Argument on
Exceptions to Recommended Decision of Chief Administrative Law Judge Richard L. Sippel"
IT IS FURTHER ORDEREDthat WealthTV's "Motion To Reopen The Record
For Further Hearing"
IT IS FURTHER ORDEREDthat the Recommended Decision that the com-
plaints filed by Herring Broadcasting, Inc. d/b/a/ WealthTV in MB Docket No. 08-214 against the
remaining defendants be denied
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
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