[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Notices]
[Pages 3037-3041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1064]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 08-214; DA 08-2805; File No. CSR-7709-P et al.]


Herring Broadcasting, Inc. d/b/a WealthTV, Complainant v. Time 
Warner Cable Inc., Defendant; File No. CSR-7709-P; Herring 
Broadcasting, Inc. d/b/a WealthTV, Complainant v. Bright House 
Networks, LLC, Defendant; File No. CSR-7822-P; Herring Broadcasting, 
Inc. d/b/a WealthTV, Complainant v. Cox Communications, Inc., 
Defendant; File No. CSR-7829-P Herring Broadcasting, Inc. d/b/a 
WealthTV, Complainant v. Comcast Corporation, Defendant; File No. CSR-
7907-P; TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic 
Sports Network, Complainant v. Comcast Corporation, Defendant; File No. 
CSR-8001-P

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document finds that the Administrative Law Judge exceeded 
his authority by setting a hearing date beyond the 60-day deadline 
specified in the Hearing Designation Order for issuing a recommended 
decision regarding the above-captioned program carriage disputes and 
orders that the Media Bureau will proceed to resolve these disputes 
without the benefit of a recommended decision from the ALJ.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Steven Broeckaert, [email protected], or 
David Konczal, [email protected], of the Media Bureau, Policy 
Division, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Memorandum Opinion 
and Order, DA 08-2805, adopted and released on December 24, 2008. The 
full text of this document is available for public inspection and 
copying during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 12th Street, SW., CY-A257, 
Washington, DC 20554. This document will also be available via ECFS 
(http://www.fcc.gov/cgb/ecfs/). (Documents will be available 
electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete 
text may be purchased from the Commission's copy contractor, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554. To request this 
document in accessible formats (computer diskettes, large print, audio 
recording, and Braille), send an e-mail to [email protected] or call the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Synopsis of the Order

I. Introduction

    1. On October 10, 2008, the Media Bureau issued a Memorandum 
Opinion and Hearing Designation Order (``HDO'') in the above captioned 
matters. 73 FR 65312, November 3, 2008. The HDO, among other things, 
referred certain program carriage disputes to an Administrative Law 
Judge (``ALJ'') to resolve factual disputes as to whether the defendant 
cable operators had discriminated against the complainant video 
programmers in violation of the Commission's program carriage rules. 73 
FR 65312, 65318, 65327, November 3, 2008. The HDO ordered the ALJ to 
make and return a recommended decision to the Commission within 60 days 
of the release date of the HDO, i.e., by December 9, 2008. 
Unfortunately, the ALJ has not issued a recommended decision by the 
deadline but, instead, has set a date to begin a hearing more than 
three months past the HDO's deadline without indicating when a 
recommended decision will be released. Herring Broadcasting, Inc. v. 
Time Warner Cable Inc. et al., Order, MB Docket No. 08-214, FCC 08M-50 
(rel. Dec. 2, 2008). Maintaining that administrative delay will cause 
harm to the programmers, complainant Herring Broadcasting, Inc. d/b/a 
WealthTV (``WealthTV'') filed a motion to revoke the HDO and 
complainant TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic 
Sports Network (``MASN'') filed a motion to reconsider the HDO, 
requesting that the Commission or the Media Bureau reclaim jurisdiction 
over the matters.
    2. For the reasons stated below, we find the ALJ exceeded his 
authority by setting a hearing date beyond the HDO's 60-day deadline 
for issuing a recommended decision. The ALJ's limited authority to 
consider these matters extended through December 9, 2008. That deadline 
has passed, and the ALJ's delegated authority over these hearing 
matters has thus expired under the terms of the HDO. Accordingly, the 
Media Bureau will proceed to resolve the above-captioned program 
carriage disputes without the benefit of a recommended decision from 
the ALJ.

[[Page 3038]]

II. Background

    3. Program Carriage Provisions. Section 616 of the Communications 
Act of 1934, as amended (the ``Communications Act''), directs the 
Commission to ``establish regulations governing program carriage 
agreements and related practices between cable operators or other 
multichannel video programming distributors and video programming 
vendors.'' 47 U.S.C. 536. Among other things, Congress directed that 
the regulations:

    (3) contain provisions designed to prevent a [MVPD] from 
engaging in conduct the effect of which is to unreasonably restrain 
the ability of an unaffiliated video programming vendor to compete 
fairly by discriminating in video programming distribution on the 
basis of affiliation or nonaffiliation of vendors in the selection, 
terms, or conditions for carriage of video programming provided by 
such vendors. 47 U.S.C. 536(a)(3); see also 47 CFR 76.1301(c).

    4. The Commission adopted rules in 1993 to implement Section 616. 
See 47 CFR 76.1300-76.1302; Second Report and Order, 58 FR 60390, 
November 16, 1993. Specifically, Sections 76.1301(c) prohibits a cable 
operator or other MVPD from engaging in conduct that unreasonably 
restrains the ability of an unaffiliated programming vendor to compete 
fairly by discriminating against such vendor on the basis of its 
affiliation or nonaffiliation. 47 CFR 76.1301(c).
    5. Delegated Authority. Under the Commission's delegation rules, 
the person ``to which functions are delegated shall, with respect to 
such functions, have all the jurisdiction, powers, and authority 
conferred by law upon the Commission,'' and ``any action taken pursuant 
to delegated authority shall have the same force and effect and shall 
be made, evidenced, and enforced in the same manner as actions of the 
Commission.'' 47 CFR 0.203. The Media Bureau is granted authority to 
administer and enforce rules and policies regarding program carriage. 
47 CFR 0.61(f)(7). The procedural rules for program carriage provide 
that disputes are to be resolved on the basis of a complaint, answer 
and reply. See 47 CFR 76.1302(c), (d), (e). The general procedural 
rules set forth under Section 76.7 apply to program carriage 
proceedings unless specified otherwise under the program carriage 
rules. 47 CFR 76.1302(a). Section 76.7(g)(1) authorizes the Media 
Bureau to refer matters to an administrative law judge (``ALJ''):

    (1) After reviewing the pleadings, and at any stage of the 
proceeding thereafter, the Commission staff may, in its discretion, 
designate any proceeding or discrete issues arising out of any 
proceeding for an adjudicatory hearing before an administrative law 
judge. 47 CFR 76.7(g).

The Commission recognized that ``resolution of Section 616 complaints 
[would] necessarily focus on the specific facts pertaining to each 
negotiation, and the manner in which certain rights were obtained, in 
order to determine whether a violation has, in fact, occurred.'' Second 
Report and Order, 58 FR 60390, 60391, November 16, 1993. The Commission 
anticipated that the ``staff would be unable to resolve most carriage 
agreement complaints on the sole basis of a written record. * * *'' 
Second Report and Order, 58 FR 60390, 60392, November 16, 1993. In such 
cases, if the staff determines that the complainant has established a 
prima facie case but that the existing record is not sufficient to 
resolve the complaint and grant relief, the staff can either 
``determine and outline the appropriate procedures for discovery, or 
will refer the case to an ALJ for an administrative hearing.'' Second 
Report and Order, 58 FR 60390, 60393-94, November 16, 1993. Thus, the 
decision to refer a case for resolution of factual disputes by an ALJ 
is discretionary.
    6. Program Carriage Complaints. WealthTV, a video programming 
vendor, filed program carriage complaints against multichannel video 
programming distributors (``MVPDs'') Time Warner Cable Inc. (``TWC''), 
Bright House Networks, LLC (``BHN''), Cox Communications, Inc. 
(``Cox''), and Comcast Corporation (``Comcast''), alleging that they 
violated Section 76.1301(c) of the Commission's rules by discriminating 
against WealthTV's programming in favor of a similarly situated video 
programming vendor, MOJO, which is affiliated with TWC, BHN, Cox, and 
Comcast. MOJO is owned by iN DEMAND L.L.C., which is owned 54.1% by 
Comcast iN DEMAND Holdings, Inc.; 15.6% by Cox Communications Holdings, 
Inc.; and 30.3% by Time Warner Entertainment-Advance/Newhouse 
Partnership (``TWE-A/N'').
    7. MASN, a regional sports network (``RSN'') which owns the rights 
to produce and exhibit the games of the Baltimore Orioles and 
Washington Nationals as well as other sporting events, filed a program 
carriage complaint against Comcast, the nation's largest MVPD, which 
holds an attributable ownership interest in two RSNs, Comcast SportsNet 
Philadelphia (``CSN-P'') and Comcast SportsNet Mid-Atlantic (``CSN-
MA''), among other networks. MASN alleged that Comcast discriminated 
against MASN in favor of its affiliated video programming vendors in 
violation of Section 76.1301(c) of the Commission's rules. 47 CFR 
76.1301(c).
    8. Hearing Designation Order. On October 10, 2008, after reviewing 
the pleadings and supporting documentation filed by the parties in each 
case, the Media Bureau released a consolidated Memorandum Opinion and 
Hearing Designation Order (``HDO''). 73 FR 65312, November 3, 2008. The 
HDO determined that each of the complainants had established a prima 
facie showing of discrimination by the MVPDs in violation of Section 
76.1301(c) of the program carriage rules. 73 FR 65312, 65314, 65316, 
65317, 65318, 65327, November 3, 2008. The HDO set forth findings of 
fact in support of the determinations that a prima facie showing had 
been made (73 FR 65312, 65313-14, 65314-16, 65316-17, 65317-18, 
November 3, 2008), and resolved other procedural issues (73 FR 65312, 
65324-25 (statute of limitations), 65325 (res judicata), November 3, 
2008). The HDO further found that the pleadings and supporting 
documentation presented factual disputes as to whether the MVPDs 
discriminated against the video programmers in favor of their 
affiliated services. 73 FR 65312, 65318, 65327, November 3, 2008. 
Accordingly, the HDO designated the matters for hearing before an ALJ, 
ordering the ALJ to make and return a recommended decision and a 
recommended remedy, if necessary, to the Commission within 60 days of 
the release date of the HDO. 73 FR 65312, 65318, 65327, November 3, 
2008. The HDO stated that upon receipt of the ALJ's recommended 
decision and remedy, the Commission would make the requisite legal 
determinations as to whether the MVPDs discriminated against the 
complainants' programming in favor of their own programming, with the 
effect of unreasonably restraining the complainants' ability to compete 
fairly in violation of Section 76.1302(c) and, if necessary would then 
decide upon appropriate remedies. 73 FR 65312, 65327, November 3, 2008. 
Under the terms of the grant of authority under the HDO, the ALJ's 
recommended decision was required to be made within 60 days of the 
October 10, 2008 release date of the HDO, i.e., by December 9, 2008. 73 
FR 65312, 65327, November 3, 2008.
    9. Proceedings Before the ALJ. On October 23, 2008, Administrative 
Law Judge Steinberg issued an order stating that complainants will have 
the burden of proof with respect to specific issues identified in the 
Erratum to the HDO and setting a procedural schedule

[[Page 3039]]

providing for the exchange of direct case exhibits, stipulations, and a 
list of witnesses, if any, to be called for oral testimony; a date for 
the commencement of the hearing; and the filing of proposed findings of 
fact and conclusions of law, as well as any replies thereto. Herring 
Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB Docket 
No. 08-214, FCC 08M-44 (rel. Oct. 23, 2008). The order established 
December 10 as the deadline for the filing of post-hearing briefs. Id. 
The order further determined that ``due to the time constraints imposed 
in the HDO discovery would not be practicable and WILL NOT BE 
PERMITTED.'' Id. at ] 3 (emphasis in original).
    10. On November 20, 2008, Judge Steinberg issued a second order 
that reversed each of these determinations. Herring Broadcasting, Inc. 
v. Time Warner Cable Inc. et al., Memorandum Opinion and Order, MB 
Docket No. 08-214, FCC 08M-47 (rel. Nov. 20, 2008). In response to 
motions for modification and clarification of the HDO filed by the 
cable operators, the ALJ indicated that, rather than limit the hearing 
to a resolution of factual disputes that the HDO designated for 
hearing, the ALJ would require re-litigation of all disputes in the 
case and review all evidence de novo. Id. at ] 6. In addition, the ALJ 
ruled that the 60-day timeframe set forth in the HDO ``cannot be 
achieved.'' Id. at ] 7 & n. 10. The ALJ further determined that some 
limited discovery should be undertaken. Id.
    11. On November 24, 2008, Chief Administrative Law Judge Richard 
Sippel released an order announcing that Judge Steinberg would be 
retiring on January 3, 2009, and that Judge Sippel would be taking 
control of the case. Herring Broadcasting, Inc. v. Time Warner Cable 
Inc. et al., Order, MB Docket No. 08-214, FCC 08M-48 (rel. Nov. 24, 
2008). On November 25, the parties held a status conference with Judge 
Sippel, where the ALJ indicated that he would not adhere to the 60-day 
time frame specified in the HDO and that he would not give weight to 
the Bureau's findings of a prima facie case of discrimination in the 
HDO. See Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., 
Transcript of Proceedings, MB Docket No. 08-214 (Nov. 25, 2008), at 97 
(indicating the cases will be decided de novo); 104 (same); 141 
(establishing March 17, 2009 as the date for commencement of the 
hearing). See also TCR's Motion for Reconsideration of Hearing 
Designation Order, filed Nov. 26, 2008, at 2. Judge Sippel thereafter 
set a date of March 17, 2009, to begin a hearing, but did not indicate 
how long the hearing would take or when his recommended decision would 
be released. Herring Broadcasting, Inc. v. Time Warner Cable Inc. et 
al., Order, MB Docket No. 08-214, FCC 08M-50 (rel. Dec. 2, 2008); 
Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Revised 
Procedural and Hearing Order, MB Docket No. 08-214, FCC 08M-53 (rel. 
Dec. 15, 2008).
    12. Requested Relief. On November 24, 2008, WealthTV filed a Motion 
for Revocation of Hearing Designation, requesting that the Media Bureau 
resolve the program carriage matters on the basis of the existing 
record since administrative delay in resolving the program carriage 
matter would result in irrevocable harm to the programmer. On November 
26, 2008, MASN filed a Motion for Reconsideration of the Hearing 
Designation Order, requesting that the Commission or the Media Bureau 
reclaim jurisdiction over the matter. MASN contended that relief is 
necessary to resolve MASN's program carriage complaint expeditiously, 
as the Commission and Congress intended.
    13. TWC, BHN, Comcast and Cox filed oppositions to WealthTV's 
Motion for Revocation, arguing that WealthTV has offered no basis for 
revoking the HDO and has chosen a procedurally improper means to remove 
the hearing from the ALJ. The cable operators request the Bureau to 
deny WealthTV's Motion for Revocation. Comcast filed a similar 
opposition to MASN's Motion for Reconsideration, arguing that 
reconsideration at this stage of the proceeding would be procedurally 
improper and outside the delegated authority of the Bureau. For these 
reasons, Comcast maintains the motion should be summarily dismissed or 
denied.

III. Discussion

    14. For the reasons stated below, we find that the Administrative 
Law Judge's limited grant of authority under the HDO to issue a 
recommended decision by December 9, 2008, has expired under the terms 
of the HDO, and the ALJ thus no longer has delegated authority to 
conduct hearings in the above-captioned proceedings. Accordingly, the 
Media Bureau will proceed to resolve the above-captioned program 
carriage disputes and will conduct any further discovery as may be 
necessary for it to resolve any factual disputes.
    15. The HDO resolved procedural issues and set forth factual 
findings based on a review of the pleadings and supporting 
documentation. 73 FR 65312, 65313-14, 65314-16, 65316-17, 65317-18, 
65324-25, November 3, 2008. The HDO directed the ALJ to resolve factual 
disputes concerning whether the cable operators discriminated against 
the complainant programmers in favor of their affiliated programming 
service. 73 FR 65312, 65318, 65327, November 3, 2008. The HDO ordered 
the ALJ to issue a recommended decision within 60 days of the release 
date of the HDO. 73 FR 65312, 65318, 65327, November 3, 2008. The HDO 
was released on October 10, 2008, and under the terms of the HDO, the 
ALJ's recommended decision was to be issued by December 9, 2008. The 
expedited deadline for issuing the recommended decision was a critical 
component of the HDO. As complainants point out in their requests for 
relief, administrative delay in resolving program carriage disputes 
could result in irrevocable harm to an independent programmer (e.g., a 
competing cable operator could use Commission procedures to delay a 
carriage remedy and thus potentially drive a competing unaffiliated 
programmer out of business) and potentially deprive viewers of access 
to desired programming. See Herring Broadcasting, Inc.'s Motion for 
Revocation of Hearing Designation, filed Nov. 24, 2008, at 2-3 (``The 
HDO's 60-day deadline reasonably and fairly took into account the harms 
that administrative delays can inflict, particularly on small 
businesses such as WealthTV. The deadline reflects congressional 
concern that holders of bottleneck power could utilize FCC procedures 
to delay a remedy, and thereby potentially drive competitors out of 
business''); TCR Sports Broadcasting Holding, L.L.P.'s Motion for 
Reconsideration of Hearing Designation Order, filed Nov. 26, 2008, at 6 
(``under the [expedited deadline of] the HDO, a decision favorable to 
MASN would have been made well in advance of the next Major League 
Baseball (``MLB'') season (which begins April 6, 2009); under the ALJ's 
schedule, a decision by this Commission would not be possible until 
well into the next MLB season, thereby depriving hundreds of thousands 
of consumers of an opportunity to watch the Washington National and 
Baltimore Orioles baseball games in those markets where Comcast has 
discriminatorily refused to carry MASN''); see also Supplement to 
Herring Broadcasting, Inc.'s Motion for Revocation of Hearing 
Designation, filed Dec. 3, 2008.
    16. Unfortunately, rather than set an expedited hearing schedule 
consistent with the HDO deadline, the ALJ greatly expanded the 
designated issues for hearing, then determined that the 60-day deadline 
for a recommended

[[Page 3040]]

decision could not be achieved. Herring Broadcasting, Inc. v. Time 
Warner Cable Inc. et al., Memorandum Opinion and Order, MB Docket No. 
08-214, FCC 08M-47 (rel. Nov. 20, 2008). The ALJ did not issue a 
recommended decision by December 9, 2008. Indeed, the hearing in these 
proceedings is not even scheduled to begin until March 17, 2009, more 
than three months past the HDO's December 9th deadline. Herring 
Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB Docket 
No. 08-214, FCC 08M-50 (rel. Dec. 2, 2008). The ALJ had no authority to 
act inconsistently with the terms of the HDO from which he derived his 
authority. Tequesta Television, Inc., 2 FCC Rcd 41, 42 ] 10 (1987) 
(``an ALJ may not countermand a designation order issued under 
delegated authority as to matters already considered by the delegating 
authority''). Commission case law makes clear that an Administrative 
Law Judge has no authority to act inconsistently with the terms of a 
Hearing Designation Order. Anax Broadcasting, Inc., 87 FCC2d 483 ] 11 
(1981) (ALJ has no authority to dismiss an application on grounds that 
were considered by an operating bureau in designating the application 
for hearing under delegated authority); Frank H. Yemm, 39 RR 2d 1657, 
1659 (1977) (ALJ has no authority to dismiss as defective a show cause 
order issued by the Private Radio Bureau acting under delegated 
authority). See also Algreg Cellular Engineering, 9 FCC Rcd 5098 ] 75 
(Rev. Bd. 1994) (ALJ has no authority to grant exceptors' request to 
confine the intervenors' participation to the Applicants where HDO 
accorded the intervenors full party status). Thus, by the express terms 
of the HDO, the ALJ's authority to issue a recommended decision in 
these proceedings expired after December 9, 2008. The Media Bureau will 
thus proceed to resolve the carriage disputes in the above-captioned 
matters.
    17. We reject the cable operators' argument that a fair hearing 
could not be accomplished within the 60-day timeframe described in the 
HDO. The HDO defined the issues designated for hearing: Whether the 
cable operators discriminated against the complainant programmers in 
favor of their affiliated programming service. A 60-day deadline 
provided adequate time for the parties to present their case on this 
issue so that the ALJ could meet the December 9 deadline. Indeed, the 
ALJ's first scheduling order released October 23, 2008, established an 
expedited schedule more closely in line with the HDO deadline. See 
Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB 
Docket No. 08-214, FCC 08M-44 (rel. Oct. 23, 2008). It was not until 
the ALJ decided to disregard the facts and conclusions recited in the 
HDO, and instead give de novo consideration to all issues in the 
matter, that the ALJ determined that the 60-day deadline could not be 
achieved. See Herring Broadcasting, Inc. v. Time Warner Cable Inc. et 
al., Memorandum Opinion and Order, MB Docket No. 08-214, FCC 08M-47 
(rel. Nov. 20, 2008). We note that under the Adelphia Merger Order, the 
program carriage condition required certain program carriage disputes 
to be resolved through arbitration and required the arbitrator to 
render a decision within 45 days of a request for arbitration. See 
Applications for Consent to the Assignment and/or Transfer of Control 
of Licenses, Adelphia Communications Corp., Assignors to Time Warner 
Cable, Inc. et al., Memorandum Opinion and Order, 21 FCC Rcd 8203, 
8287-8288 Appendix B (2006). See also TCR Sports Broadcasting, LLP v. 
Time Warner Cable, Order on Review, DA 08-2441 (MB rel. Oct. 30, 2008). 
Moreover, a 60-day deadline is consistent with Commission precedent for 
deciding program carriage disputes. In another program carriage 
complaint proceeding involving MASN and Comcast, the Commission 
directed the ALJ to hold a hearing to resolve factual disputes with 
respect to the programmer's claims and return a recommended decision 
and remedy to the Commission within 45 days. See In the Matter of TCR 
Sports Broadcasting Holding, L.L.P. v. Comcast Corp., Memorandum 
Opinion and Hearing Designation Order, 71 FR 47222, 47222-23, August 
16, 2006. For these reasons, we believe that the 60-day deadline 
imposed by the Bureau under the HDO was reasonable under Commission 
precedent and provided sufficient time to address these matters. In any 
event, as reviewed above, the ALJ had no authority to expand the 
designated issues for hearing in this manner or extend the deadline for 
issuing a recommended decision.
    18. We also reject the cable operators' argument that resolving 
disputed issues of fact is a function reserved to the ALJ, and may not 
be conducted by Media Bureau staff. To the contrary, the Bureau is 
delegated broad authority over program carriage disputes to administer 
and enforce rules and policies regarding program carriage. 47 CFR 
0.61(f)(7). The Bureau acts under delegated authority invested with the 
full powers of the Commission. 47 CFR 0.203(a). Nothing in the 
Commission's rules requires the Bureau to designate a program carriage 
dispute for hearing before an ALJ. We reject Comcast's argument that 
the Bureau may not reclaim jurisdiction over the proceedings because in 
the HDO the Bureau found there were factual disputes that it was unable 
to determine on the basis of the existing records. The Bureau is not 
confined to the existing record and has procedural tools at its 
disposal to have the parties supplement the existing record in order to 
resolve the factual disputes. See, e.g., 47 CFR 76.7(e)(1) (``The 
Commission may specify other procedures, such as oral argument or 
evidentiary hearing directed to particular aspects, as it deems 
appropriate''); 76.7(e)(2) (``The Commission may require the parties to 
submit any additional information it deems appropriate for a full, 
fair, and expeditious resolution of the proceeding, including copies of 
all contracts and documents reflecting arrangements and understandings 
alleged to violate the requirements set forth in the Communications Act 
and in this part, as well as affidavits and exhibits); 76.7(f)(1) 
(``The Commission staff may in its discretion order discovery limited 
to the issues specified by the Commission. Such discovery may include 
answers to written interrogatories, depositions or document 
production.''). As the ALJ's authority to resolve the factual disputes 
and return a recommended decision has expired, the Media Bureau will 
proceed to resolve the factual disputes using the tools at its disposal 
and render a decision. Commission rules authorize the Media Bureau to 
refer such matters to an ALJ ``in its discretion.'' 47 CFR 76.7(g); see 
also Second Report and Order, 58 FR 60390, 60393-94, November 16, 1993 
(contemplating resolution of factual disputes either by the staff or by 
referral to an ALJ, at the Bureau's discretion). Moreover, the HDO 
directed the ALJ to issue a recommended decision, but made clear that 
the Commission would render the ultimate decision, i.e., make the 
requisite legal determination as to whether the defendants had 
discriminated against the complainants' programming in favor of its own 
programming in violation of the program carriage rules. 73 FR 65312, 
65327, November 3, 2008. Under Commission rules, the Media Bureau has 
broad authority to perform these functions. 47 CFR 0.61. Likewise, we 
reject Comcast's argument that the Bureau cannot proceed here because 
it is ``statutorily forbidden'' under Section 5(c)(1) and (8) of the 
Communications Act from reviewing the rulings of the

[[Page 3041]]

ALJ. Section 5(c)(1) and (8) of the Act describe the employees to whom 
the Commission may delegate review functions in cases of adjudications. 
47 U.S.C. 155(c)(1), (8). These statutory provisions are inapplicable 
here because the Bureau is not reviewing any decision of the ALJ. 
Indeed, the ALJ has not issued any decision as required by the HDO so 
there is no ALJ recommended decision to review. The ALJ's authority 
under the HDO was limited to issuing a recommended decision within 60 
days of the release date of the HDO. The HDO made clear that the 
Commission was to render the ultimate decision and nothing in the HDO 
divested the Commission (or the Media Bureau on delegated authority) 
from resolving the factual disputes and issuing a decision in the event 
that the ALJ failed to exercise its delegated authority under the HDO.
    19. The cable operators also argue that the period for seeking 
reconsideration under Section 405 of the Act (47 U.S.C. 405) has 
passed, and that a request for revocation of the hearing designation 
would be an improper appeal of an interlocutory ruling. We need not 
address these arguments because we are neither reconsidering nor 
revoking the HDO. As indicated above, the grant of authority in the 
instant matters was limited to the ALJ issuing a recommended decision 
by December 10, 2008. That date having passed, the ALJ has no further 
authority over these matters and revocation and reconsideration are 
unnecessary. Thus, the petitions to revoke or reconsider the HDO are 
moot.

IV. Ordering Clauses

    20. Accordingly, It is ordered, that the Hearing Designation Order 
for the above captioned matters has Expired, the proceedings set for 
hearing before the Administrative Law Judge are Terminated, and the 
Media Bureau will proceed to resolve the above captioned program 
carriage disputes.
    21. It is further ordered that all parties to the above-captioned 
proceedings will be served with a copy of this Memorandum Opinion and 
Order by e-mail and by certified mail, return receipt requested.
    22. It is further ordered that a copy of this Memorandum Opinion 
and Order or a summary thereof shall be published in the Federal 
Register.

Federal Communications Commission
Monica Shah Desai,
Chief, Media Bureau.
 [FR Doc. E9-1064 Filed 1-15-09; 8:45 am]
BILLING CODE 6712-01-P