E9-1172. NFL Enterprises LLC, Complainant v. Comcast Cable Communications, LLC, Defendant; File No. CSR-7876-P

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

This document finds that the Administrative Law Judge exceeded his authority by setting a hearing date beyond the 60-day deadline specified in the Hearing Designation Order for issuing a recommended decision regarding the above-captioned program carriage dispute and orders that the Media Bureau will proceed to resolve this dispute without the benefit of a recommended decision from the ALJ.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

For additional information on this proceeding, contact Steven Broeckaert, [e-mail], or David Konczal, [e-mail], of the Media Bureau, Policy Division, [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Memorandum Opinion and Order, DA 08-2819, adopted and released on December 31, 2008. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. This document will also be available via ECFS (http://www.fcc.gov/​cgb/​ecfs/​). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to [e-mail] or call the Commission's Consumer and Governmental Affairs Bureau at [phone] (voice), [phone] (TTY).

Synopsis of the Order

1. On October 10, 2008, the Media Bureau issued a Memorandum Opinion and Hearing Designation Order (“HDO”) in the above captioned matter. 73 FR 65312, November 3, 2008. The HDO, among other things, referred certain program carriage disputes, including the above-captioned matter, to an Administrative Law Judge (“ALJ”) to resolve factual disputes as to whether the defendant cable operators had discriminated against the complainant video programmers or required a financial interest in the complainant video programmer's programming as a condition for carriage in violation of the Commission's program carriage rules. 73 FR 65312, 65322, 65323, November 3, 2008. The HDO ordered the ALJ to make and return a recommended decision to the Commission within 60 days of the release date of the HDO, i.e., by December 9, 2008. Unfortunately, the ALJ has not issued a recommended decision by the deadline but, instead, has set a date to begin a hearing more than three months past the HDO's deadline without indicating when a recommended decision will be released. Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB Docket No. 08-214, FCC 08M-50 (rel. Dec. 2, 2008).

2. On December 24, 2008, the Media Bureau issued a Memorandum Opinion and Order (the “Dec. 24th MO&O”) finding that the ALJ exceeded his authority by setting a hearing date beyond the HDO's 60-day deadline for issuing a recommended decision. In the Matter of Herring Broadcasting Inc., d/b/a WealthTV, et al., Memorandum Opinion and Order, DA 08-2805, MB Docket 08-214 (rel. Dec. 24, 2008), at ¶¶ 2, 14-16 (“Dec. 24th MO& O”). In the Dec. 24th MO&O, the Media Bureau stated that the ALJ's limited authority to consider these matters extended through December 9, 2008. See id. The Media Bureau noted that this deadline has passed, and the ALJ's delegated authority over these hearing matters has thus expired under the terms of the HDO. See id. While the above-captioned matter was not included in the caption of the Dec. 24th MO&O, NFL Enterprises, LLC has filed a Motion for Clarification arguing that the logic and reasoning of that decision applies equally to the above-captioned matter. See NFL Enterprises LLC, Motion for Clarification, MB Docket No. 08-214, File No. CSR-7876-P (filed Dec. 29, 2008). We agree and therefore the Media Bureau will proceed to resolve the above-captioned program carriage dispute without the benefit of a recommended decision from the ALJ.

3. Accordingly, It is ordered, that the Hearing Designation Order for the above-captioned matter has Expired, the proceeding set for hearing before the Administrative Law Judge is Terminated, and the Media Bureau will proceed to resolve the above-captioned program carriage dispute.

4. It is further ordered that all parties to the above-captioned proceeding will be served with a copy of this Memorandum Opinion and Order by e-mail and by certified mail, return receipt requested.

5. It is further ordered that a copy of this Memorandum Opinion and Order or a summary thereof Shall Be Published in the Federal Register.

Federal Communications Commission.

Monica Shah Desai,

Chief, Media Bureau.