With new FCC leadership comes new insight into whether or not one of the nation’s largest MVPDs discriminated against Game Show Network, violating Commission rules. In 2015, an Administrative Law Judge said Cablevision did. Today, the Republican-majority FCC responded to the now-Altice USA owned Cablevision’s appeal of the ALJ decision by reversing it — effectively denying GSN’s complaint on a party-line vote.
GSN is commonly found in the “expanded basic” tier of MVPD and DBS service providers. For example, it is Channel 177 on Charter Spectrum’s lineup in midtown Manhattan and on Channel 88 for Optimum subscribers on New York’s Long Island.
Optimum is the MVPD that Altice USA acquired from Cablevision, and will be rebranded within the next 12 months. Some 5 1/2 years ago, choice placement on Channel 88 wasn’t the case for GSN.
GSN in October 2011 filed a complaint against Cablevision, alleging program carriage discrimination, in violation of Commission rules. Specifically, GSN alleged that Cablevision discriminated against it by changing distribution of GSN from its expanded basic programming tier to a less widely distributed premium sports tier.
GSN alleged that it is similarly situated to two cable networks—namely, WE tv and Wedding Central—which were affiliated with Cablevision at the time, and that Cablevision treated GSN differently than those two networks in violation of FCC rules and section 616 of the Communications Act.
Following a hearing before the FCC’s Administrative Law Judge (ALJ), the Commission’s Enforcement Bureau, which was a party to the proceeding, filed comments urging the ALJ to deny the complaint.
However, on Nov. 23, 2016, the ALJ issued an Initial Decision, granting GSN’s program carriage complaint and imposing a monetary forfeiture against Cablevision and mandatory carriage on the expanded basic tier.
On Jan. 3, 2017, with changing winds in Washington set to shift the FCC from Democratic to Republican control, Cablevision appealed the ALJ’s Initial Decision to the Commission by filing Exceptions to the Initial Decision.
In its reversal of the ALJ’s ruling, the FCC said, “Reviewing the Administrative Law Judge’s decision de novo, the Commission finds no direct evidence that Cablevision’s carriage decision was made ‘on the basis of’ GSN’s non-affiliation with Cablevision. The Commission also finds that GSN’s circumstantial evidence case fails because it has not shown that GSN is similarly situated to WE tv or Wedding Central. The Commission also finds that GSN fails to overcome Cablevision’s legitimate and non-discriminatory business reasons for removing GSN from the expanded basic tier, including cost savings.”
To little surprise, FCC Chairman Ajit Pai and Commissioner Michael O’Rielly approved, while Democratic Commissioner Mignon Clyburn dissented.