FCC and court save the cable companies again

Herring Broadcasting wanted access to a network platform and its programming did not have the quality or ratings the cable companies believed were required to make money.
Written by Doug Hanchard, Contributor

Access to infrastructure networks is neither free nor equal. Not everyone has the same privileges, quality or agreements in place. There are different products and services that are often bundled, sold as individual items, etc. And there are always capacity issues, so you're not always guaranteed what you paid for. For the past several years, the same is true for companies that want access to the cable companies' networks to broadcast their television station(s). Some are doing very well and have very good mutual agreements. But when a new player enters the field and wants in, there are a number of ways to complain if they hit a road block as Herring Broadcasting found out two years ago. They filed a lawsuit and began the process of blaming everyone else, except themselves.

In September of 2007, Herring Broadcasting, which operates Wealth TV, filed a complaint against Time Warner Cable and Cox Communications alleging discrimination that Herring were not allowed access to their cable networks to broadcast their television station. The cable companies denied the allegations and presented evidence that the primary reasons were for low demand for their type of programming and limited HD space on their networks -- Wealth TV being supplied in HD signal only. In a decision released on Oct. 15 by Judge Richard L. Sippel, the complaint by Herring Broadcasting was denied.

Herring Broadcasting argued that both cable companies had infringed on their rights to equal access to their networks and because they already carried similar a programmed television station, MOJO that they partially either owned or had rights to, was also one of the reasons Time Warner discriminated against Herring Broadcasting's station Wealth TV.

In the court's written decision, the burden of proof is on the complainant, declaring that the defendants were in fact NOT discriminating against Wealth TV. Herring Broadcasting believed both Cox and Time Warner did breach sections of the FCC regulations (Cable Act); FCC 616 and 76.1301(c). Judge Sippel's decision states the regulations were not violated and lacked evidence that was credible. That the defendants also claimed limited HD signal space was an interesting point --  we see that all the time with ISPs.

The FCC has heard previous complaints and similar challenges with I.P. based TV shows that broadcast from anywhere in the world. ISPs have bandwidth restrictions (Both Time Warner and Cox are ISPs, but not related to this specific case) and many ISPs have their own media content, usually delivered as bundled services such as your cell phone, cable, and home phone service along with Internet.

The Internet is an open playing field, while other media market spaces are not. The reality is, Herring Broadcasting wanted access to a network platform and its programming did not have the quality or ratings the cable companies believed were required to make money. The Internet doesn't care about quality or if the content is revenue generating – so long as your company can afford the bandwidth to distribute it on the network and broadcast. As video encoders become more efficient in bandwidth usage, the cable and satellite TV companies may have few regulations that can protect them in the future like the current ones do. There are technology limitations in the cable environment, but the Internet is scalable and deflationary. MOJO TV ended its programming in November of 2008, which should tell you something.

The FCC is currently going through several policy reviews and revised approaches to Internet neutrality and open access. Let's hope it can keep up.

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