Entertainment Studios Networks and Newsmax have asked the FCC to push back the Wednesday (7/22) commentfiling deadline on a petition from Charter to sunset conditions tied to its merger with Time Warner Cable. In theirrespective comments, the independent networks argue that the Wireline Competition Bureau placed Charter’s petitionon public notice too early. When the FCC approved the merger back in 2016, it established a process for Charter topetition for relief of the interconnection and data cap conditions as of the five-year anniversary of the transaction’s closingdate. Under that process, the Wireline Competition Bureau was tasked with seeking public comment on the petitionnine months prior to that anniversary, which will fall on May 18, 2021. Given that timeframe, Newsmax argues that theFCC can’t seek public comment before August 18, 2020. “The Bureau failed to faithfully execute a clear and explicitdirective from the full Commission. The Bureau patently lacks authority to deviate from the Commission’s command inthis way,” the programmer said in FCC comments. Newsmax hasn’t decided whether it will participate any further in theproceeding, but ESN has. It claims that if the Commission doesn’t delay the date by which comments should be filed, itwill hinder ESN’s ability to establish material facts on the record. Specifically, ESN said Tuesday that it plans to file detailedinformation about Charter’s “stated desire to make business decisions in discriminatory ways, not just based oneconomics, but on race and ethnicity.” ESN founder Byron Allen filed a discrimination suit against Charter in January2016, claiming that MSO’s refusal to enter into a carriage deal was racially motivated. “Charter’s arguments before anappellate court in litigation with ESN reveal a propensity to discriminate, not only anti-competitively but based on race,and ESN intends to provide record evidence to that end in this docket,” ESN said. Charter had tried to dismiss the suit,arguing that the First Amendment barred a claim to be brought based on a cable operator’s editorial discretion. “Charter’son-the-record argument in federal court that the First Amendment granted it authority to discriminate, not only forcontent or economic reasons, but even for overtly racial reasons is troubling because it shows that the company…believe[s] that they should be able to discriminate however they please, regardless of who gets hurt, if they thoughtdoing so served their own interests,” ESN said. “If the Commission permits Charter to discriminate against various thirdparty businesses in its interconnection agreements, what would prevent Charter from exercising that discretion to the detriment of African-American, Latinx, Asian, or other minority-owned businesses seeking interconnection agreements,not to mention potential competitors to Charter’s various businesses?” Charter has fought back against ESN’s claims,saying it offers programming produced by minority-owned companies, including several owned by Allen. “Decisions onwhich networks to carry are based on business considerations, such as cost, quality and uniqueness of content, andongoing customer demand,” Charter said in a statement. “Race played no role whatsoever in our programming decisionregarding these networks and we will continue to vigorously defend against these false claims.”
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