Comcast Seeks More ‘Penalty Time’ in Bloomberg Complaint10/03/2011 12:01 AM Eastern
Washington — In the latest round of the dispute between Comcast and Bloomberg Television over channel placement, the nation’s largest cable operator has asked the Federal Communications Commission to allow it to respond to the business-news channel’s reply comments filed at the end of August.
In its “surreply” — a legal term for an additional comment filed after a complaint has been fully briefed — Comcast said Bloomberg had brought up new arguments that Comcast needed to address/refute. Comcast characterized them as “the host of new and erroneous legal and factual assertions raised in Bloomberg’s Reply,” which it says also violates FCC rules against raising new issues in replies.
“These new arguments and assertions not only lack merit,” Comcast said last week, “but Bloomberg’s decision to introduce them for the first time on reply represents a flagrant violation of the commission’s rules. As the commission has recognized, matters accessible to the complainant at the time it filed its complaint ‘should [be] raised in earlier filings,’ not strategically reserved for reply.”
Comcast didn’t wait for an answer, filing its 67-page response along with the request that the FCC take it into account.
Bloomberg filed the complaint with the FCC in June, asking it to require Comcast to move its Bloomberg Television news channel into “existing news neighborhoods” on Comcast systems, saying that not doing so would violate a condition in the FCC’s order approving its merger with NBCUniversal, owner of rival business-news network CNBC. Comcast replied to the complaint, then Bloomberg’s final volley was an 82-page defense of its definition of “news neighborhood” and argument that Comcast moves channels all the time and would not be put out by doing so again.
Comcast argues in its surreply that Bloomberg tries to have it both ways, contending that neighborhooding is commonplace in the cable industry, while arguing during the merger proceeding that cable operators generally did not neighborhood, though they might do so when transitioning to digital.
“This reversal not only untethers the condition from any potential transaction-related harm,” Comcast said, “but also off ends the doctrine of judicial estoppel, which ‘prohibit[s] parties from deliberately changing positions according to the exigencies of the moment.’ ”
Comcast said Bloomberg is trying to introduce new, “flawed” statistics to try and show that the cable operator “frequently repositions networks” and said Bloomberg’s “overreach” would compel contentbased judgments that implicate the First Amendment.
It is up to the FCC’s Media Bureau to decide if it will give Comcast another bite of the legal apple.