Judge Rejects Cablevision's Motion for Summary Decision in GSN Complaint

Cablevision's attempt to have the Game Show Network carriage complaint against it tossed was shot down by FCC Administrative Law Judge Richard Sippel. In an order posted Monday in docket 12-122, Sippel ruled that there are too many contested facts and assertions to warrant the summary decision Cablevision asked for in April (see 1504300051). "Summary decision isn't a procedure that was intended to be used in resolving these complex issues of mixed law and fact," Sippel ruled.

The complex issues could include comparing profit GSN made when it was Cablevision's basic cable tier with the money made after it was moved in 2011 in the New York City metropolitan area to the cable company's Sports and Entertainment tier, Sippel said. GSN has argued that the re-tiering hurt it competitively and was motivated by giving the cable company's affiliated networks a channel advantage. Cablevision contends the channel move was done for cost savings, with lower affiliate fees, that GSN remains competitive nationally and that its business has since thrived. The hearing on GSN's complaint is scheduled to start July 7, and it will include opposing economic experts evaluating the costs of Cablevision's re-tiering move, Sippel said, so an evidentiary hearing "is essential to assist ... in resolving the conflicts in expert opinions. Cablevision has not presented a purely legal question to be resolved." The Enforcement Bureau also opposed the summary decision sought by Cablevision in an argument echoing Sippel's ruling -- that there are too many factual issues in dispute that need to be weighed in a hearing before a judge (see 1505280010). Cablevision "has not demonstrated that there are no uncontested material and triable facts," Sippel said.

In its request for summary decision, Cablevision argued GSN failed to show it suffered competitively, not just financially, or that it made the re-tiering decision with any discriminatory intent to GSN programming. "That proffer must be fully tested with opposing fact and expert witnesses, confrontation with contradictory facts and conclusions, cross examination and opposing economic analysis," Sippel said. Neither Cablevision nor GSN commented Monday.

Sippel didn't rule on a variety of experts and evidence Cablevision has attempted to block from being brought up by GSN, including analyses by Hal Singer, Navigant Economics' managing director, regarding the profit Cablevision allegedly sacrificed in moving GSN (see 1506150013).