Herring Broadcasting, which just announced plans to challenge Fox News with a new conservative cable channel, will be hoping for better luck than it had in court with a quartet of big cable MSOs over carriage of its WealthTV.
The case involved Bright House Networks, Comcast, Cox and Time Warner Cable, and was heard in the Ninth Circuit.
The four cable companies were partners in a company called iN DEMAND, which ran a cable network called MOJO. It was Herring’s contention that they opted to carry MOJO on their systems rather than WealthTV due to their affiliation with it.
The FCC found otherwise. It ruled that expert testimony from Michael Egan showed in a reasonable manner “…that the two networks did not show similar programming.” Egan also said the two networks had a different “look and feel.”
Herring found two problems with Egan’s testimony.
For starters, it noted that his testimony in a subsequent and unrelated matter was rejected. However, the Court noted that even if it would consider taking into account something that happened after the immediate case, there was not enough overlap between the issues being addressed for a comparison of Egan’s testimony in both cases overall.
Herring also believed the terms “look and feel” were too vague to be used as a basis for denying its claim, and cited precedent. However, the Court said that in the precedent similar terminology was indeed vague, whereas in this case the terminology was supported by careful application of reason rather than intuition.
The Court them supported an FCC conclusion that the marketing material used by WealthTV suggested that it targeted a much wider audience than that of MOJO, further evidence that they were dissimilar.
Another Herring argument, that the burden of proof should have sat with the cable companies, was tossed because it was immaterial to the finding that the two networks were dissimilar.
In the end, the Ninth Circuit declined to review the case.