                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 14 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



HERRING BROADCASTING, INC.,                      No. 11-73134
DBA Wealth TV,
                                                 FCC No. 08-214
              Petitioner,

  v.                                             MEMORANDUM *

FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,

              Respondents,

BRIGHT HOUSE NETWORKS, LLC;
COMCAST CORPORATION; COX
COMMUNICATIONS, INC.; TIME
WARNER CABLE, INC.,

              Respondents-Intervenors.



                     On Petition for Review of an Order of the
                      Federal Communications Commission

                       Argued and Submitted March 7, 2013
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ and WATFORD, Circuit Judges, and KOBAYASHI, District
Judge.**

      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


       **
              The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.

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similar programming. WealthTV argues that the agency’s rejection of Egan’s

conclusions in a later case undermines its reliance on Egan here. Even assuming

that inconsistency with a later agency decision would undermine the validity of the

FCC’s analysis in this case, we conclude that no such inconsistency has been

shown. Egan himself acknowledged that he was applying two different modes of

analysis in the two cases. Thus, there was nothing inconsistent about the agency

finding the mode of analysis Egan applied to be persuasive in this case and not in

the other.

      The agency also reasonably relied on Egan’s conclusion that the two

networks had a different “look and feel.” WealthTV provides no authority to

suggest that it is unreasonable to consider “look and feel” as one factor in

determining how similar two television networks are. The out-of-circuit case on

which WealthTV relies is readily distinguishable because the FCC there “nowhere

even vaguely described how it aggregated its findings into the decisive balance,”

but rather relied on an “administrative feel,” which the D.C. Circuit found was

“completely opaque to judicial review.” Cent. Fla. Enters., Inc. v. FCC, 598 F.2d

37, 50 (D.C. Cir. 1978). Here, by contrast, the FCC’s overall analysis was

carefully reasoned and not intuition-based.




                                          3
      Finally, the FCC reasonably concluded, based on WealthTV’s own

marketing materials, that WealthTV targeted a broader audience than MOJO did.

The record does not support WealthTV’s argument that those marketing materials

were describing WealthTV’s actual audience and were misconstrued by the FCC as

describing its target audience.

      2.     WealthTV argues that the agency erred by not applying the burden-

shifting framework used in employment discrimination cases. However, even

under the employment discrimination framework, WealthTV’s claim would still

hinge on whether the two networks were similarly situated. See Hawn v. Exec. Jet

Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010). Moreover, burden shifting

would not have made a difference here because the FCC reasonably determined

that, regardless of which party bore the burdens of production and proof, the two

networks were not similarly situated. Finally, although WealthTV alludes to other

reasons why a burden-shifting approach would have helped its case, it points to

nothing concrete that it would have done differently in presenting its case. Thus,

the FCC did not err in declining to decide whether a burden-shifting framework

should have been used in this case.

      3.     WealthTV argues that the agency made two incorrect evidentiary

rulings. We conclude that, even assuming either evidentiary ruling was error, any


                                          4
such error would have been harmless. See 5 U.S.C. § 706; Molina v. Astrue, 674

F.3d 1104, 1115 (9th Cir. 2012).

      4.     We find WealthTV’s remaining arguments unpersuasive. The record

contradicts WealthTV’s contentions that the agency improperly required

WealthTV to prove discrimination with direct evidence, and that the agency

overlooked evidence that the two networks targeted the same prospective

advertisers. WealthTV’s argument that the agency erred in relying on the fact that

WealthTV launched after MOJO’s predecessor networks is improperly premised

on a later agency decision involving very different facts.

      PETITION FOR REVIEW DENIED.




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