Herring Broadcasting, Inc. v. Federal Communications Commission

MEMORANDUM

Herring Broadcasting, Inc., which does business as WealthTV, petitions for review of an order by the Federal Communications Commission (FCC) concluding that Time Warner Cable, Inc., Bright House Networks, LLC, Cox Communications, Inc., and Comcast Corporation (collectively Intervenors) did not violate 47 U.S.C. § 536 (a)(3) in denying carriage to WealthTV. The four Intervenors jointly own a company called iN DEMAND, which for several years operated a network called MOJO. WealthTV alleges that the Intervenors impermissibly discriminated on the basis of affiliation in favor of MOJO and against WealthTV. The FCC concluded that the Intervenors denied carriage to WealthTV for legitimate, nondiscriminatory business reasons and that WealthTV could not prove its claim by showing differential treatment of MOJO because the two networks were not similarly situated.

1. The FCC’s determination that WealthTV and MOJO were not similarly situated is supported by substantial evidence. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.2008). First, the agency reasonably relied on the expert testimony of Michael Egan to conclude that the two networks did not show similar…