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The Game Show Network, jointly owned by Sony Pictures Entertainment and DirecTV, appears to be losing a big contest at the Federal Communications Commission.
On Thursday, the FCC’s Enforcement Bureau issued its recommendations after a trial this past summer where GSN attempted to demonstrate that its repositioning on Cablevision’s service from a wide tier to a premium sports tier amounted to program carriage discrimination in violation of Section 616 of the Communications Act of 1934.
The Enforcement Bureau believes that the presiding judge should conclude that Cablevision hasn’t violated the law and shouldn’t mandate broader carriage of GSN.
The nearly 5-year-old dispute involves a lot of inside baseball, but is indeed an important one that will shape the relationship between programmers and distributors. In fact, the Enforcement Bureau’s recommendation comes just as Cablevision settled an antitrust lawsuit against Viacom that spoke to how and why cable channels appear and are in certain positions on the dial. In this dispute, GSN and Cablevision faced off over a law that was intended to minimize anti-competitive activities while preserving the ability of aggressive negotiations in the television marketplace.
In its complaint filed at the FCC, GSN claimed that Cablevision moved GSN into the premium sports tier so as to benefit the Cablevision-affiliated WE tv and Wedding Central networks — channels of “female-oriented” programming that GSN believes is most analogous to the reality- and competition-based programming that it itself serves to audiences. As evidence of such, GSN pointed to an offer by Cablevision to reinstate GSN’s broad carriage in exchange for GSN parent DirecTV agreeing to carry the Wedding Channel.
The Enforcement Bureau, though, says there’s no evidence that the initial decision to re-tier was related to how the Wedding Channel was placed on DirecTV, that it might have been GSN’s executives who came up with the exchange idea, and moreover, Cablevision’s former COO and negotiator Thomas Rutledge wasn’t even aware of DirecTV’s ownership interest in GSN.
“There is no smoking gun in the record,” write attorneys at the Enforcement Bureau.
Further, GSN’s claims of being “similarly situated” to We tv and the Wedding Channel are doubted.
“Although GSN characterized itself as a women’s network, and presented evidence that its network predominantly attracts women, GSN also repeatedly distinguished itself from women’s networks and held itself out as a network targeting a wider audience,” states the opinion. “For example, in a presentation to Comcast, GSN segregated itself from the ‘women’s entertainment’ category and stated that GSN offered ‘family-friendly programming with wide-audience appeal’ that delivered a ‘loyal, broad-based audience.’ “
FCC investigation attorneys also found that GSN’s actual audience demographics didn’t fit the profile of a network targeting young adult women and heard Cablevision’s evidence that while GSN was concentrating on game shows, We tv and the Wedding Channel “emphasized scripted comedies, dramas and movies.”
Overlaps in advertisers and ratings aren’t enough to satisfy the GSN’s burden in demonstrating being “similarly situated,” and combined with a lack of evidence to establish unfairly disparate treatment, the presiding judge is being told to find in favor of Cablevision.
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