FCC upholds order forcing Time Warner to air NFL Network

Tuesday, August 8, 2006

WASHINGTON — The Federal Communications Commission yesterday stood by its decision to force Time Warner Inc. to put the NFL Network back on some of its cable systems for 30 days while a dispute over carrying the channel is resolved.

In an order published on the FCC’s Web site, Donna Gregg, chief of the media bureau, wrote that New York-based Time Warner’s requests that the decision be stayed and reconsidered “are denied.”

Last week, Time Warner Cable removed the network from cable systems that it had acquired from Greenwood Village, Colo.-based Adelphia Communications Inc. and Philadelphia-based Comcast Corp. The network quickly lodged a complaint with the FCC arguing that Time Warner had violated rules requiring that cable companies give 30 days’ notice to customers before changing their lineups.

The FCC’s media bureau on Aug. 3 forced Time Warner to reinstate the channel. The company then asked the FCC to reconsider its decision, arguing, in part, that being forced to air programming it wishes to discontinue violates the company’s First Amendment rights.

“The commission’s obligation is first and foremost to the consumer — not to the private interests of Time Warner or NFLN — and because of this we again find continued carriage to be in the public interest,” FCC spokeswoman Rebecca Fisher said. “We believe that on balance the granting of interim relief is warranted.”

In addressing Time Warner’s First Amendment argument, the FCC said the company’s concerns reflected criticism not of the commission’s Aug. 3 ruling, but of the 30-day notice rule.

“Significantly, Time Warner makes no effort to argue that [the 30-day notice rule] is unconstitutional, either on its face or as applied to Time Warner’s discontinuation of the NFL Network,” the commission said. “Moreover, Time Warner, when it voluntarily acquired new systems from Adelphia and Comcast with Commission approval, was well aware that it would be expected to comply with the Commission’s rules. If Time Warner believed that carrying the NFL Network or any other programming service for 30 days placed too onerous a burden on its First Amendment rights, then it should have sought a waiver of the Commission’s rules or provided subscribers with 30-days notice so that it might drop the NFL Network as soon as it acquired the new systems.”

Time Warner objected to the FCC’s latest decision.

“Time Warner Cable continues to believe that the FCC has misconstrued the notice rules and has ordered a remedy that is in clear violation of the First Amendment,” the company said in a statement. “The FCC’s action has resulted in exacerbating, not avoiding, consumer confusion. We are reviewing the decision and considering our options.”

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