Ruling favors MASN
Raleigh News and Observer
by Roger Van Der Horst
Reacting like an umpire bumped in the chest by an angry manager, a Federal Communications Commission division chief on Thursday tossed out Time Warner Cable's appeal and ordered the cable television company to begin carrying the Mid-Atlantic Sports Network on basic cable within 30 days.
Or, as MASN spokesman Todd Webster noted hopefully, "in time for college basketball season."
Time Warner responded with the one-line equivalent of tossing out the ump: "We disagree with the Media Bureau's decision and plan to appeal to the full commission," said Melissa Buscher, a spokeswoman for TWC.
OK, maybe not in time for college basketball season.
Monica Shah Desai, chief of the FCC's Media Bureau, backed the rulings of two arbitrators that Time Warner Cable unlawfully discriminated against MASN by refusing to carry the regional sports network on an analog tier. MASN, which is co-owned by the Baltimore Orioles and Washington Nationals, carries the games of both Major League Baseball teams, as well as college basketball, football and lacrosse games.
Time Warner, arguing that the distant baseball teams interest only a segment of its customer base, has offered to make MASN available to fans willing to pay extra for a digital sports tier -- a much smaller audience than its estimated 1.8 million basic cable customers in North Carolina.
MASN is available to satellite TV customers of DirecTV and Dish Network, as well as several smaller cable operators in North Carolina.
In part because Major League Baseball has designated the Orioles and Nationals as the home teams, for the purposes of TV, in the Triangle and Eastern North Carolina, Desai rejected Time Warner's argument. The O's and Nationals also are considered two of four home teams -- along with the Atlanta Braves and the Cincinnati Reds -- in the central region, which includes Charlotte, Greensboro and Winston-Salem.
"We also find unconvincing TWC's evidence purporting to show a low demand for MASN's programming among North Carolina residents," Desai wrote. "Although disputed by the parties, the Orioles appear to have a longstanding fan base in North Carolina. ..."
The FCC official also found that Time Warner Cable had a strong financial incentive to limit MASN's reach in North Carolina because it offers MLB's Extra Innings package and plans to put baseball's new MLB Channel on basic cable next year. Extra Innings, which cost subscribers $199 this season, could not air the Nationals or the Orioles.
Among the other findings:
* While MASN was trying to get Time Warner to carry it, the Time Warner-owned News 14 Carolina was televising games of the NBA's Charlotte Bobcats on basic cable -- an indication that Time Warner was treating its own regional sports network differently. TWC has argued that News 14 is a news and weather channel, not a sports network.
* MASN's offer for carriage is closer to fair market value than Time Warner Cable's. In arbitration, the two sides proposed the same per-subscriber rates but for different tiers. Time Warner's proposal to put MASN on a digital sports tier would make it available to a much smaller audience. Time Warner has argued that, if it had to carry MASN on basic cable, it would be forced to raise the bills of basic cable subscribers.
* Any decision requiring the cable company to carry a particular network does not violate the company's First Amendment rights. Time Warner has argued that its refusal to put MASN on a basic analog tier was "an unbiased exercise of editorial discretion and a legitimate business decision based on a cost-benefit analysis." The FCC official noted that, when it took the Adelphia deal, Time Warner voluntarily agreed to a condition it knew might result in mandatory carriage of a network."
About the only point made by MASN with which Desai disagreed was its request that the FCC institute a separate proceeding to determine damages and other relief "to make MASN whole." She noted that neither the Adelphia order nor FCC rules provide for the awarding of damages.
Meanwhile, despite the order of carriage within 30 days, cable subscribers are still waiting to see what happens -- and how soon.
"Three times this matter has been litigated, and three times the outcome has favored MASN," David Frederick, a lawyer for MASN, said in a statement released by the network. "For the sake of the fans, we hope the third time is the charm."
