Enforcement Bureau Rejects GSN Claims of Cablevision Discrimination

While the Enforcement Bureau shot down Game Show Network's retiering complaint against Cablevision, it remains to be seen how Chief Administrative Law Judge Richard Sippel takes that into account in his own ruling. Sippel typically doesn't automatically follow bureau recommendations, but it's hard to say how much weight he might give the GSN/Cablevision comments, a lawyer with ALJ experience told us.

The bureau -- in a document issued Thursday to be posted in docket 12-122 -- recommended that Sippel conclude Cablevision hasn't violated rules regarding multichannel video programming distributor discrimination under Section 76.1301(c) and that there is no basis for requiring any wider carriage of GSN via Cablevision. "GSN has not satisfied its burden of demonstrating that Cablevision engaged in discrimination in the selection, terms or conditions of carriage on the basis of GSN's non-affiliation," the bureau said. GSN declined to comment Thursday.

Closing argument in the case -- revolving around Cablevision's relocation of GSN in 2011 from the basic tier to a sports tier -- is tentatively scheduled for Oct. 30. Sippel's ruling likely won't come for months afterward, the attorney said.

In nearly two weeks of hearings in July, GSN argued that retiering was discriminatory because Cablevision used a "must-have" test that didn't apply to its own affiliates, with the retiering aimed at bolstering its own WE tv and Wedding Central networks; Wedding Central has since shut down. Now, the bureau said that GSN hadn't shown any direct evidence of affiliation-based discrimination "such as an email or other documents reflecting the relevant carriage negotiations." That Cablevision offered to reinstate GSN to the broader cable tier if GSN part-owner DirecTV agreed to carry Wedding Channel doesn't constitute direct evidence of discrimination since there is no indication Cablevision made the GSN retiering move just so it could get DirecTV carriage of Wedding Channel, the bureau said. GSN and Cablevision had disagreed over who first initiated the DirecTV quid pro quo idea, but the bureau said the idea apparently originated with GSN executives. "The remainder of GSN's evidence is more accurately characterized as circumstantial evidence, not direct evidence," the bureau said. "There is no smoking gun in the record."

A circumstantial case of affiliation-based discrimination needs proof that GSN's programming is similarly situated to Cablevision's WE tv and Wedding Channel affiliates -- something GSN also failed to do since it "targets (and attracts) a different audience" and its programing isn't comparable, the bureau said. In testimony and court documents, GSN had argued it was a women's network, since that was its predominant audience. But Cablevision argued -- and the bureau agreed -- that GSN distinguished itself from such networks, holding itself out as attracting a broader, family-based audience.

The bureau filing might not be the end of its role in the case. It said that Sippel doesn't need to look into the subsequent issue of whether Cablevision "treated GSN differently than it treated WE tv and Wedding Channel or whether such treatment was based on affiliation," but that if he wants it to submit further comments on those issues, it "will do so upon request."