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Options for WHDH limited after judge dismisses Comcast suit

Pat Greenhouse/Globe Staff/File 2016

“They are trying to steal our station,” WHDH-TV owner Ed Ansin previously told the Globe.

By and Globe Staff 

A federal judge on Monday dismissed a lawsuit from WHDH-TV (Channel 7) against the media giant Comcast Corp., a decision that will cloud the future of the local station and shake up the Boston broadcast television market.

WHDH has been running NBC programming since 1995, but the peacock network, which is owned by Comcast, said earlier this year that it would end its contract with the station at the end of 2016 and launch its own new Boston TV station in 2017.

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Ed Ansin, the 80-year-old billionaire owner of WHDH, sued Comcast in March, alleging breach of contract and antitrust violations. Comcast asked for the case to be dismissed.

Judge Richard G. Stearns, who heard arguments from both sides last week, on Monday ruled in Comcast’s favor — saying that WHDH had no legal right to demand contract renewal negotiations with NBC.

“WHDH’s loss of the NBC affiliation is no doubt a blow to the station’s profitability. But absent any actionable harm attributable to Comcast, it is simply an indurate consequence of doing business in a competitive and unsentimental market place,” Stearns wrote in his decision. “For the foregoing reasons, defendant’s motion to dismiss is allowed.”

NBC applauded the judge’s ruling.

“We’re very pleased with the court’s decision and we look forward to delivering Boston area viewers the best local news, weather and information — along with the NBC news, sports, primetime and late night programming they already know and enjoy — when NBC Boston launches on January 1, 2017,” the company said in a statement.

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WHDH declined to comment, but in its 7 p.m. broadcast, the station reported that it is “reviewing its options” and has “contingency plans” to stay on the air.

Ansin, whose Sunbeam Television Corp. owns the broadcast signal and station in downtown Boston, has previously said that he would continue operating without NBC and that he plans to beef up local news coverage.

Ansin’s lawsuit alleged that Comcast, the media conglomerate that in addition to owning NBC is a major cable service provider, engaged in unfair, deceptive, and anticompetitive practices when it refused to negotiate a renewal of its lucrative affiliation agreement with WHDH.

WHDH is the largest NBC affiliate not owned and operated by the network.

But in a 23-page decision, Stearns ticked through the reasons those arguments didn’t hold up. He said WHDH fell “woefully short” of proving that Comcast engaged in unfair or deceptive practices. Despite Comcast’s size, he added, “mere possession of market power . . . does not an antitrust violation make.”

Stearns ruled that Comcast would not harm competition by cutting ties with WHDH and launching its own station because the Boston market includes an array of other network and cable stations.

Stearns also rejected another argument from WHDH: that Comcast would limit public access to free television by moving NBC programming from the WHDH signal, which reaches 7.1 million people, to the Comcast-owned WNEU in New Hampshire, which reaches about 3.2 million, according the complaint.

“While the loss, even temporarily, by some four million viewers of free over-the-air NBC programming may be a matter of public concern, it is not a concern that WHDH has standing to redress,” the judge said.

NBC’s popular national programs include the “Today” show, “The Voice,” and “Sunday Night Football.” While WNEU is widely considered to be the future home of NBC Boston, the network has not made an official announcement.

Comcast-owned Telemundo currently airs on WNEU, and two channels could share a transmitter signal. Comcast, which also owns New England Cable News, has also made clear that NBC Boston will be a stand-alone station.

Daniel Lyons, a professor at Boston College Law School who studies telecommunications issues, said the judge’s decision did not leave much room for the local station to appeal.

WHDH, he pointed out, built its case around Comcast’s violating an agreement with the Federal Communications Commission designed to protect affiliates when the cable company acquired NBC. But that agreement excluded ordinary negotiations between NBC and its affiliates that do not involve the company’s cable operations.

“The fact that was explicitly carved out, that was the death knell of the case,” said Lyons.

Ansin’s next steps could include filing an appeal in court or taking his case to the FCC. The agency has said it has already received some complaints from viewers who are concerned that they will lose free access to NBC programming when the network switches channels.

If Ansin ultimately loses his battle with NBC, it will mark the end of a partnership that has spanned half a century, not always happily.

Ansin and his father got into the television business in the 1960s with the purchase of an NBC affiliate in Miami. That station later became a Fox affiliate after NBC bought another Miami station and shifted programming there.

After Ansin bought WHDH in 1993, he was able to get back into the NBC family. But in 2009, NBC threatened to pull the station’s affiliation after Ansin refused to air a new 10 p.m. show with comedian Jay Leno.

After a week-long standoff, Ansin backed off. Ultimately, poor ratings forced Leno’s new show off the air after less than a year.

During their latest skirmish, Ansin claimed that NBC, after refusing to renew its contract, made a lowball offer to buy some of WHDH’s assets.

“They are trying to steal our station,” Ansin said in a previous interview with the Globe.

Still, Ansin wanted to believe that he could salvage his relationship with the network, even saying as recently as December: “It seems that every article I read refers to the fact there is bad blood between our company and NBC. That is very far from the truth.”


Priyanka Dayal McCluskey can be reached at priyanka.mccluskey@globe.com
Follow her on Twitter @priyanka_dayal
Shirley Leung can be reached at shirley.leung@globe.com
Follow her on Twitter @leung.