FCC Stayed Out of Ovation-TWC Carriage Dispute, But Could Still Act on Petition
Ovation asked the FCC to intervene just before Time Warner Cable (TWC) stopped carrying it at the end of 2012 (CD Jan 3 p10), filings show. The cable network filed an emergency petition with the commission Dec. 19, saying TWC failed to give proper notice to subscribers about the coming channel lineup change that would result from no longer carrying Ovation. The pleadings from last month were posted Thursday in docket 03-15 (http://xrl.us/bob6vs).
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The commission did not act on the petition before Ovation’s carriage on TWC ended. But the agency could step in, said Mitchell Becher, an attorney with Greenberg Traurig representing Ovation. For instance, the commission could order TWC to carry the network until it complies with FCC subscriber notice rules, he said, or it could rule against Ovation.
TWC failed to give its subscribers proper notice about dropping Ovation, the network said in its complaint. It said the cable operator included a notice in subscribers’ bills directing them to look for programming changes in local newspaper legal notice sections. But a review of those legal notices “reveals general information about programming services that may be up for renewal at some unspecified point in the future,” rather than the specifics that Ovation would be dropped on Dec. 31, Ovation’s petition said. The network sought an injunction against TWC that would have blocked the cable operator from dropping the network.
TWC argued it violated no notice rules (http://xrl.us/bob6w3). “The rule on which Ovation relies ... did not require 30 days’ advance notice in these circumstances,” TWC said in an opposition to Ovation’s petition. “But in any event, [the notice requirement] was completely satisfied by TWC’s timely notifications to its subscribers regarding the upcoming expiration of the parties’ carriage agreement."
Ovation and TWC had been in regular negotiations over carriage from April 2012 to the end of the year, said the operator’s opposition. It said Ovation had sought expanded carriage on TWC’s systems. After the operator offered to continue carrying Ovation “on terms that would be acceptable to TWC and its subscribers,” TWC said it concluded that it would probably delete the network from its channel lineup on Dec. 31. TWC set up new notice policies following a Media Bureau order on its carriage of the NFL Network, the operator said. “TWC determined that, under the Bureau’s analysis, it had no choice but to provide 30 days’ advance notice in connection with any programming service whose carriage was set to expire, despite the fact that the vast majority of expiring carriage agreements are renewed without any deletion of the service."
But TWC left out the terms under which it agreed to carry Ovation, the network said in a reply. “TWC neglects to advise the Commission that TWC, by stating the only carriage terms it would accept are carriage for free, and knowing that [the] Network would not accept such terms, had complete control over whether it would delete Ovation. “ TWC’s notifications to subscribers provided no notice the network would be deleted, the programmer said (http://xrl.us/bob6xy). “Those notices only disclose that Ovation is among the dozens of channels that may be deleted.”