E9-2801. Herring Broadcasting, Inc. v. Time Warner Cable Inc., et al.; MB Docket No. 08-214

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

This document rescinds three previous Media Bureau Orders regarding six program carriage complaints, reinstates the presiding Administrative Law Judge's delegated authority over these complaints, and directs the presiding Administrative Law Judge to issue a Further Revised Procedural and Hearing Order and to proceed expeditiously to issue recommended decisions and recommended remedies, if necessary.

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 Order, FCC 09-4, adopted and released on January 27, 2009. 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”) referring the above-captioned matters to an Administrative Law Judge for recommended decisions. 73 FR 65312, November 3, 2008. The Media Bureau has since issued Orders stating that the Administrative Law Judge's delegated authority over these hearing matters expired under the terms of the HDO, providing that the Media Bureau will proceed to resolve these disputes without the benefit of recommended decisions from the Administrative Law Judge, and providing an abbreviated schedule for the parties to file additional and/or updated arguments and evidence responsive to certain questions and requests. In the Matter of Herring Broadcasting Inc., d/b/a WealthTV, et al., 74 FR 3037, January 16, 2009 (“December 24th Order”); In the Matter of NFL Enterprises LLC, 74 FR 4035, January 22, 2009 (“December 31st Order”); In the Matter of Herring Broadcasting Inc., d/b/a WealthTV, et al., Order, DA 09-55, MB Docket 08-214 (rel. Jan. 16, 2009) (“January 16th Order”).

2. On our own motion, we conclude that the factual determinations required to fairly adjudicate these matters are best resolved through hearings before an Administrative Law Judge, rather than solely through pleadings and exhibits as contemplated by the Media Bureau. Accordingly, we rescind in full the December 24th Order, the December 31st Order and the January 16th Order. As discussed above, we believe that these proceedings are best resolved by hearings before an Administrative Law Judge. Therefore, notwithstanding the Media Bureau's previous determination that the presiding Administrative Law Judge's delegated authority over these matters has expired, we hereby reinstate the presiding Administrative Law Judge's delegated authority and direct him to proceed pursuant to the HDO. We instruct the presiding Administrative Law Judge to issue a Further Revised Procedural and Hearing Order that updates the schedule announced in the December 15th ALJ Order to account for any delays caused by the Bureau's recent actions. Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB Docket No. 08-214, FCC 08M-50 (rel. Dec. 2, 2008); Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Revised Procedural and Hearing Order, MB Docket No. 08-214, FCC 08M-53 (rel. Dec. 15, 2008) (“December 15th ALJ Order”). Further, as instructed in the HDO, the presiding Administrative Law Judge shall issue recommended decisions and remedies, if any, to the Commission as expeditiously as possible, consistent with the mandates of fairness and due process. In light of our decision, the Emergency Application for Review and Emergency Motion for Stay, and related pleadings, regarding the December 24th Order and the December 31st Order are dismissed as moot. See Comcast Corporation, Emergency Application for Review, MB Docket No. 08-214 (Dec. 30, 2008); Comcast Corporation, Emergency Motion for Stay, MB Docket No. 08-214 (Dec. 30, 2008); Joinder of Time Warner Cable et al., MB Docket No. 08-214 (Dec. 31, 2008); Comcast Corporation, Supplement to Emergency Application for Review, MB Docket No. 08-214 (Jan. 2, 2009); Comcast Corporation, Supplement to Emergency Motion for Stay, MB Docket No. 08-214 (Jan. 2, 2009).

3. Accordingly, It is ordered, pursuant to Section 1.117 of the Commission's rules, 47 CFR 1.117, that the December 24th Order, the December 31st Order and the January 16th Order Are Hereby Rescinded.

4. It is further ordered that the presiding Administrative Law Judge will issue a Further Revised Procedural and Hearing Order and proceed expeditiously to issue recommended decisions and recommended remedies, if necessary, as discussed herein.

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

6. It is further ordered that a copy of this Order, or a summary thereof, Shall Be Published in the Federal Register.

Federal Communications Commission.

Marlene H. Dortch,

Secretary.