WHDH-TV (Channel 7), the NBC television affiliate in Boston owned by Ed Ansin, has gone to court in a bid to block Comcast Corp. from terminating the station’s network contract.
WHDH, in a 68-page complaint filed Thursday in US District Court in Boston, alleges that Comcast’s plan to take away the network affiliation is a breach of their contract, and that the cable giant, which owns NBC, is in violation of Massachusetts and federal antitrust law. Ansin’s station is seeking an injunction to stop the move, as well as unspecified damages.
In January, Comcast said its new station, dubbed NBC Boston, would carry the the network’s programs such as “The Voice,” now seen on Channel 7, as well as new syndicated shows, starting in 2017. The station will have a local news team, adding to the expansion that has already taken place at New England Cable News and Spanish-language station Telemundo Boston, which are also owned by Comcast.
Comcast has not said where the new station will broadcast from, but WHDH in its filing asserts that the cable giant intends to share a signal with WNEU-TV, a New Hampshire station that NBC owns and currently broadcasts Telemundo on Channel 60.
WHDH contends that the New Hampshire transmitter is much weaker, with less than half of the 7.1 million viewers that Channel 7 reaches in the Boston market. Such a move would mean many viewers would lose free over-the-air access to NBC programming, and WHDH believes that violates the agreement Comcast struck with the Federal Communications Commission in winning approval to acquire a controlling stake in NBC in 2011.
In an interview, Ansin said WHDH is weighing whether to file a complaint with the FCC, but an agency spokeswoman confirmed on Thursday that several viewers have already done so out of concern they will lose free access to NBC programming when the network switches channels.
A spokeswoman for NBCUniversal, a division of Comcast that oversees NBC, issued a statement calling the lawsuit “meritless” and assured Boston-area viewers that it will continue to deliver strong programming that will reach over-the-air viewers.
Elbert Robertson , a former antitrust adviser with the FCC, said he would be surprised if the agency didn’t intervene because Comcast appears to be bypassing its affiliate, which would violate the terms of its government order.
“Everyone was concerned about that from the very beginning,” said Robertson, now a professor at Suffolk University Law School. “This should definitely be before the FCC.”
Other legal experts say that what’s less clear is how strong of a case WHDH has against Comcast for violating antitrust or breach of contract laws.
“It’s not a completely meritless claim,” said Daniel Lyons, a professor at Boston College Law School who studies telecommunications issues. “It’s not clear to me that it’s a slam dunk either.”
Keith Hylton, who teaches antitrust issues at the Boston University School of Law, thinks WHDH faces an uphill battle, but one US Supreme Court precedent could bolster the station’s claims. In Aspen Skiing v. Aspen Highlands Skiing, a monopoly refused to deal with a smaller competitor. The court ruled against Aspen Skiing, the monopoly, saying its actions were an attempt to destroy Aspen Highlands.
WHDH, in its suit, outlines a similar scenario.
“That’s his best case,” said Hylton, but “the facts have to be pretty special.”