Federal Communications Commission    DA 08-2805
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Herring Broadcasting, Inc. d/b/a WealthTV,
Complainant
v.
Time Warner Cable Inc.
Defendant
Herring Broadcasting, Inc. d/b/a WealthTV,
Complainant
v.
Bright House Networks, LLC,
Defendant
Herring Broadcasting, Inc. d/b/a WealthTV,
Complainant
v.
Cox Communications, Inc.,
Defendant
Herring Broadcasting, Inc. d/b/a WealthTV,
Complainant
v.
Comcast Corporation,
Defendant
TCR Sports Broadcasting Holding, L.L.P.,
d/b/a Mid-Atlantic Sports Network,
Complainant
v.
Comcast Corporation,
Defendant
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
MB Docket No. 08-214
File No. CSR-7709-P
File No. CSR-7822-P
File No. CSR-7829-P
File No. CSR-7907-P
File No. CSR-8001-P
MEMORANDUM OPINION AND ORDER
Adopted:  December 24, 2008 Released:  December 24, 2008
By the Chief, Media Bureau:
 Federal Communications Commission    DA 08-2805
2
I. INTRODUCTION
1. On October 10, 2008, the Media Bureau issued a Memorandum Opinion and Hearing 
Designation Order (“HDO”) in the above captioned matters.1 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.2 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.3 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. 
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.”4 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.5
  
1 In the Matter of Herring Broadcasting Inc., d/b/a WealthTV, et al., Memorandum Opinion and Hearing Designation 
Order, DA 08-2269, MB Docket 08-214 (rel. Oct. 10, 2008) (“HDO”), as modified by Erratum (rel. Oct. 15, 2008).
2 HDO, at ¶¶ 58, 119.
3 Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB Docket No. 08-214, FCC 08M-50 (rel. Dec. 
2, 2008).
4 47 U.S.C. § 536.  Section 616 was added to the Communications Act by the Cable Television Consumer Protection 
and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992). 
5 47 U.S.C. § 536(a)(3).  See also 47 C.F.R. § 76.1301(c) (implementing discrimination provision).
 Federal Communications Commission    DA 08-2805
3
4. The Commission adopted rules in 1993 to implement Section 616.6 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.7  
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.”8 The Media Bureau is granted authority to administer and enforce rules and policies 
regarding program carriage.9 The procedural rules for program carriage provide that disputes are to be 
resolved on the basis of a complaint, answer and reply.10  The general procedural rules set forth under 
Section 76.7 apply to program carriage proceedings unless specified otherwise under the program carriage 
rules.11 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.12
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.”13 The Commission anticipated that the “staff 
would be unable to resolve most carriage agreement complaints on the sole basis of a written record….”14  
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.”15 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”),16 alleging that they violated Section 76.1301(c) of the Commission’s rules by 
  
6 See 47 C.F.R. §§ 76.1300 – 76.1302; Implementation of Sections 12 and 19 of the Cable Television Consumer 
Protection and Competition Act of 1992 and Development of Competition and Diversity in Video Programming 
Distribution and Carriage, 9 FCC Rcd 2642 (1993) (“Second Report and Order”).
7 47 C.F.R. § 76.1301(c).
8 47 C.F.R. § 0.203.
9 47 C.F.R. § 0.61(f)(7).
10 See 47 C.F.R. § 76.1302(c), (d), (e).
11 47 C.F.R. § 76.1302(a).
12 47 C.F.R. § 76.7(g).
13 Second Report and Order, 9 FCC Rcd at 2648.
14 Id. at 2652.
15 Id. at 2655.
16 See Herring Broadcasting, Inc. d/b/a WealthTV, Carriage Agreement Complaint Against TWC, File No. CSR-7709-
P (filed December 20, 2007) (“WealthTV Complaint Against TWC”); Herring Broadcasting, Inc. d/b/a WealthTV, 
Carriage Agreement Complaint Against BHN, File No. CSR-7822-P (filed March 13, 2008) (“WealthTV Complaint 
 Federal Communications Commission    DA 08-2805
4
discriminating against WealthTV’s programming in favor of a similarly situated video programming 
vendor, MOJO, which is affiliated with TWC, BHN, Cox, and Comcast.17  
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,18 filed a 
program carriage complaint against Comcast,19 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.20 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.21
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”).22 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.23 The HDO set forth findings of fact in support of the 
determinations that a prima facie showing had been made,24 and resolved other procedural issues.25 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.26  
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.27 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 
    
Against BHN”); Herring Broadcasting, Inc. d/b/a WealthTV, Carriage Agreement Complaint Against Cox, File No. 
CSR-7829-P (filed March 27, 2008) (“WealthTV Complaint Against Cox”); Herring Broadcasting, Inc. d/b/a 
WealthTV, Carriage Agreement Complaint Against Comcast, File No. CSR-7907-P (filed April 21, 2008) (“WealthTV 
Complaint Against Comcast”).
17 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”).  
18 See MASN Complaint Against Comcast at ¶¶ 3, 68.
19 See TCR Sports Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Sports Network, Program Carriage Complaint, 
File No. CSR-8001-P (filed July 1, 2008) (“MASN Complaint Against Comcast”).
20 Comcast Corporation, Answer, File No. CSR-8001-P (July 31, 2008), at 48 (¶ 67) (“Comcast Answer to MASN”).
21 47 C.F.R. § 76.1301(c).
22 In the Matter of Herring Broadcasting Inc., d/b/a WealthTV, et al., Memorandum Opinion and Hearing Designation 
Order, DA 08-2269, MB Docket 08-214 (rel. Oct. 10, 2008) (“HDO”), as modified by Erratum (rel. Oct. 15, 2008).
23 HDO, at ¶¶ 24 (WealthTV/TWC); 35 (WealthTV/BHN); 46 (WealthTV/Cox); 57 (WealthTV/Comcast); 119 
(MASN/Comcast).
24 HDO, at ¶¶ 11-23 (WealthTV/TWC); 26-34 (WealthTV/BHN); 37-45 (WealthTV/Cox); 48-56 
(WealthTV/Comcast). 
25 HDO, at ¶¶ 102-105 (statute of limitations); 106-107 (res judicata). 
26 HDO, at ¶¶ 58, 119.
27 HDO, at ¶¶ 58, 119-121, 124. 
 Federal Communications Commission    DA 08-2805
5
76.1302(c) and, if necessary would then decide upon appropriate remedies.28 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 .29
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 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. 30 The order established December 10 as the deadline for the filing of post-hearing 
briefs. 31 The order further determined that “due to the time constraints imposed in the HDO discovery 
would not be practicable and WILL NOT BE PERMITTED.”32
10. On November 20, 2008, Judge Steinberg issued a second order that reversed each of these 
determinations.33 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.34 In addition, the ALJ ruled that the 60-day timeframe set forth in the HDO “cannot be 
achieved.”35 The ALJ further determined that some limited discovery should be undertaken.36
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.37 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.38 Judge 
  
28 HDO, at ¶ 121.
29 HDO, at ¶ 124.
30 Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB Docket No. 08-214, FCC 08M-44 (rel. Oct. 
23, 2008).
31 Id.
32 Id. at ¶ 3 (emphasis in original).
33 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).
34 Id. at ¶ 6.
35 Id. at ¶ 7 & n. 10.
36 Id.
37 Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB Docket No. 08-214, FCC 08M-48 (rel. 
Nov. 24, 2008).
38 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.
 Federal Communications Commission    DA 08-2805
6
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.39
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.40 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.41 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.42 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.43 The HDO ordered the ALJ to issue a recommended decision within 60 
days of the release date of the HDO.44 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 
  
39 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).
40 See Herring Broadcasting, Inc.’s Motion for Revocation of Hearing Designation, filed Nov. 24, 2008.  See also 
Supplement to Herring Broadcasting, Inc.’s Motion for Revocation of Hearing Designation, filed Dec. 3, 2008.
41 See TCR’s Motion for Reconsideration of Hearing Designation Order, filed Nov. 26, 2008.  See also TCR’s Reply 
in Support of Motion for Reconsideration of Hearing Designation Order, filed Dec. 15, 2008. 
42 HDO, at ¶¶ 11-23; 26-34; 37-45; 48-56; 102-105; 106-107.
43 HDO, at ¶¶ 58, 119.
44 HDO, at ¶¶ 58, 119-121, 124.
 Federal Communications Commission    DA 08-2805
7
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.45
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 decision could not be achieved. 46 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.47 The ALJ had no authority to act 
inconsistently with the terms of the HDO from which he derived his authority.48 Commission case law 
makes clear that an Administrative Law Judge has no authority to act inconsistently with the terms of a 
Hearing Designation Order.49 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.50 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.51 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 
  
45 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.
46Herring 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).
47 Herring Broadcasting, Inc. v. Time Warner Cable Inc. et al., Order, MB Docket No. 08-214, FCC 08M-50 (rel. Dec. 
2, 2008).
48 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”).
49 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).
50 See Cox’s Opposition to WealthTV’s Motion to Revoke Hearing Designation, at 3-4; Comcast’s Opposition to
Motion for Reconsideration, filed Dec. 8, 2008, at 3, 5-6; Comcast’s Opposition to Herring Broadcasting, Inc.’s 
Motion for Revocation of Hearing Designation, filed Nov. 26, 2008, at 1-3.
51 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).
 Federal Communications Commission    DA 08-2805
8
matter, that the ALJ determined that the 60-day deadline could not be achieved.52 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.53 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.54 To the contrary, the Bureau is 
delegated broad authority over program carriage disputes to administer and enforce rules and policies 
regarding program carriage.55 The Bureau acts under delegated authority invested with the full powers of 
the Commission.56 Nothing in the Commission’s rules requires the Bureau to designate a program carriage 
dispute for hearing before an ALJ.57 Rather, Commission rules authorize the Media Bureau to refer such 
matters to an ALJ “in its discretion.”58 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 
  
52 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)).
53 See In the Matter of TCR Sports Broadcasting Holding, L.L.P. v. Comcast Corp., Memorandum Opinion and 
Hearing Designation Order, 21 FCC Rcd 8989, 8995 (2006).
54 See Opposition of Bright House Networks, L.L.C. to Herring Broadcasting, Inc.’s Motion for Revocation of Hearing 
Designation Order, at 3 n. 7.  See also Comcast’s Opposition to Motion for Reconsideration of Hearing Designation 
Order, filed Dec. 8, 2008, at 8-9.
55 47 C.F.R. § 0.61(f)(7).
56 47 C.F.R. § 0.203(a).
57 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.  
See Comcast’s Opposition to Motion for Reconsideration of Hearing Designation Order, filed Dec. 8, 2008, at 1-2.  
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 C.F.R. §§ 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.
58 47 C.F.R. § 76.7(g).   See also Second Report and Order, 9 FCC Rcd at 2655 (contemplating resolution of factual 
disputes either by the staff or by referral to an ALJ, at the Bureau’s discretion).  
 Federal Communications Commission    DA 08-2805
9
in favor of its own programming in violation of the program carriage rules.59 Under Commission rules, the 
Media Bureau has broad authority to perform these functions.60  
19. The cable operators also argue that the period for seeking reconsideration under Section 405 of 
the Act61 has passed, and that a request for revocation of the hearing designation would be an improper 
appeal of an interlocutory ruling.62 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
  
59 HDO at ¶¶ 120-121.
60 47 C.F.R. § 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 
ALJ.  See Comcast’s Opposition to Motion for Reconsideration of Hearing Designation, filed Dec. 8, 2008, at 6 n.20.  
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.  
61 47 U.S.C. § 405.
62 TWC’s Opposition to Herring Broadcasting, Inc.’s Motion for Revocation of Hearing Designation, filed Dec. 4, 
2008; Comcast’s Opposition to Motion for Reconsideration of Hearing Designation Order, filed Dec. 8, 2008, at 7; 
Comcast’s Opposition to Herring Broadcasting, Inc.’s Motion for Revocation of hearing Designation, filed Nov. 26, 
2008, at 3-4.