E6-13484. TCR Sports Broadcasting Holding, L.L.P., Complainant v. Comcast Corporation, Defendant

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

This document designates the program carriage complaint of TCR Sports Broadcasting Holding, L.L.P., against Comcast Corporation for an evidentiary hearing to resolve the factual disputes with respect to its claims and return a recommended decision and a recommended remedy, if necessary, to the Commission within 45 days of the stay of this Order being lifted.

ADDRESSES:

Please file documents with the Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, Room 3-B443, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Robert Ratcliffe, Deputy Bureau Chief, Enforcement Bureau at [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Memorandum Opinion and Hearing Designation Order, FCC 06-111, released July 31, 2006. The full text of the Hearing Designation Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to [e-mail] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Synopsis of the Order

1. TCR Sports Broadcasting Holding, L.L.P. (“TCR”) is a regional sports network (“RSN”), controlled by the Baltimore Orioles, that owns the underlying rights to produce and exhibit Orioles games. In March 2005, an agreement was reached among Major League Baseball, TCR, the Montreal Expos (now the Washington Nationals), and the Orioles that provided that TCR would “have the sole and exclusive right to present any and all of the Nationals’ and Orioles' baseball games not otherwise retained or reserved by Major League Baseball's national rights agreements. * * *” For purposes of exercising these rights with respect to the Orioles and Nationals, TCR created and does business as Mid-Atlantic Sports Network (“MASN”). Comcast Corporation (“Comcast”) is an MVPD that serves numerous communities in the Washington, D.C. metropolitan area.

2. On June 14, 2005, TCR filed a program carriage complaint alleging that Comcast violated 47 CFR 76.1301(a) by demanding a financial interest in MASN and 47 CFR 76.1301(c) by discriminating against TCR's programming in favor of Comcast's own programming. After reviewing the pleadings and supporting documentation filed by the parties, the Commission finds that TCR has established a prima facie case for both its claims. The Commission also finds that the pleadings and supporting documentation present several factual disputes, such that we are unable to determine on the basis of the existing record whether we can grant relief based on the claims. Accordingly, commencing concurrently with the Alternative Dispute Resolution (“ADR”) election process discussed below, we direct an Administrative Law Judge to hold a hearing, issue a recommended decision on the facts underlying the discrimination claim and a recommended remedy, if necessary, and then return the matter to the Commission within 45 days.

3. Pursuant to 47 CFR 76.7(g)(2) of the Commission's rules, TCR and Comcast will have ten days following the lifting of the stay of this Order to elect to resolve this dispute through ADR. Each party will notify the Commission, in writing, of its election within 10 days of release of this Order and, in the event that ADR is chosen, will update the Commission monthly on the status of the ADR process. If the parties elect to resolve the dispute through ADR, the 45-day period for review by an Administrative Law Judge will be tolled. In the event that the parties fail to reach a settlement through the ADR process, the parties shall promptly notify the Commission in writing, and the 45-day period will resume upon receipt of such notification.

4. Upon receipt of the Administrative Law Judge's recommended decision and remedy, the Commission will make the requisite legal determinations as to whether Comcast has demanded a financial interest in TCR's programming in exchange for carriage in violation of 47 CFR 76.1302(a) or has discriminated against TCR's programming in favor of Comcast's own programming, with the effect of unreasonably restraining TCR's ability to compete fairly in violation of 47 CFR 76.1302(c). If necessary, the Commission will then decide upon appropriate remedies. The Commission will issue its decision not more than 60 days after receipt of the Administrative Law Judge's recommendations, which may be extended by the Commission for one period of 60 days.

5. We note that the Commission recently approved a series of license assignments and/or transfers of control by Adelphia Communications Corporation, Time Warner Cable and Comcast. The Commission imposed remedial conditions including a commercial arbitration condition as an alternative for RSNs unaffiliated with any MVPD to the program carriage complaint procedures. An unaffiliated RSN that has been denied carriage by Comcast may submit its carriage claim to arbitration within 30 days after the denial of carriage or within ten days after the release of the Adelphia Order. On our own motion, we stay this Order pending TCR's decision whether to pursue the arbitration option afforded it in the Adelphia Order. In the event TCR declines to pursue arbitration under the conditions established in the Adelphia Order, the stay will be lifted automatically without further action by the Commission.

6. Accordingly, it is ordered, that TCR Sports Broadcasting Holding, L.L.P.'s Complaint against Comcast Corporation is designated for hearing at a date and place to be specified in a subsequent order by an Administrative Law Judge.

7. It is further ordered, that pursuant to Section 616 of the Communications Act of 1934, as amended, 47 U.S.C. 536, and 47 CFR 76.1300 through 1302, TCR Sports Broadcasting Holding, L.L.P. and Comcast Corporation submit to the Commission, in writing within ten days of the stay of this Order being lifted, their respective elections as to whether each wishes to proceed to Alternative Dispute Resolution and, in the event that Alternative Dispute Resolution is chosen, will monthly update the Commission on the status of that process.

8. It is further ordered, that the Administrative Law Judge, within 45 days of the lifting of the stay of this Order, will make and return to the Commission a recommended decision on the following factual questions:

(1) Did Comcast Corporation demand a financial interest in the programming of TCR Sports Broadcasting Holding, L.L.P. in exchange for carriage of such programming?

(2) Did Comcast Corporation discriminate against TCR Sports Broadcasting Holding, L.L.P.'s programming in favor of Comcast Corporation's own programming?

9. It is further ordered, that the Administrative Law Judge, within 45 days of the lifting of the stay of this Order, will return to the Commission a recommended remedy, if necessary.

10. It is further ordered, that if the parties elect Alternative Dispute Resolution, the period for Administrative Law Judge review shall be tolled, until such time as the parties notify the Commission that they have failed to reach a settlement through Alternative Dispute Resolution.

11. It is further ordered, that this hearing will be governed by the rules of practice and procedure pertaining to the Commission's Hearing Proceedings, 47 CFR 1.201 through 1.364, subject to the Administrative Law Judge's discretion to regulate the hearing.

12. It is further ordered, that all Discovery shall be conducted in accordance with 47 CFR 1.311 through 1.325, subject to the Administrative Law Judge's discretion.

13. It is further ordered, that the Chief, Enforcement Bureau will be a party to the proceeding and will determine its level of participation.

14. It is further ordered, that the Secretary of the Commission shall cause to have this Order published in the Federal Register.

15. It is further ordered, that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send copies of this Order to all parties by certified mail, return receipt requested.

Federal Communications Commission

Marlene H. Dortch,

Secretary.