Hey WHDH, take your Comcast fight to the FCC

Ed Ansin.File photo

Well, that was fast.

I’m talking about billionaire Ed Ansin’s legal battle with Comcast. It was over before it really got started after a federal judge issued a decision late Monday to dismiss the case.

But for anyone who was in US District Court Judge Richard Stearns’ courtroom on Thursday, it should come as no surprise. During that first — and what would be the only hearing — the judge seemed skeptical that Comcast’s decision to drop WHDH-TV (Channel 7) as an NBC affiliate constituted a breach of contract or violated antitrust statutes.

Judge Stearns, however, intimated more than once that Ansin might find a more sympathetic ear at the Federal Communications Commission, the agency that regulates broadcast and other media.

It just so happened that four of the five FCC commissioners were in town Tuesday as part of the Internet & Television Expo, a big industry trade show happening this week at the Boston Convention & Exhibition Center.

I was able to buttonhole one of them, Mike O’Rielly, who has read about the dispute between WHDH and Comcast. He told me he has not heard directly from either party. Don’t hold your breath for a yay or nay answer from O’Rielly, but he seemed to be keeping an open mind.

“I would have to get up to speed on some things to know how much of a role we would or should have,” he said.

Talk to former FCC officials, and the answer is a bit more definitive.

“The FCC is increasingly getting involved in disputes like this one,” said Robert McDowell, a former FCC commissioner who is now a partner at Wiley Rein law firm in Washington. “With this FCC, anything could happen.”

The agency typically does not get involved in contract disputes between an affiliate and a network. But this is no ordinary kerfuffle. It involves a network that is owned by the country’s biggest cable company. And in the Boston market, Comcast accounts for 85 percent of the cable subscribers. The company also owns New England Cable News and the WNEU station in New Hampshire that airs Spanish-language channel Telemundo.

Instead of renewing its WHDH contract, which expires at the end of 2016, Comcast will launch its own station called NBC Boston. The network has already started to hire staff for the new operation and plans to do a soft launch in the fall on a yet-to-be-determined channel featuring local news and syndicated shows.

The new station will formally debut on Jan. 1, 2017, with traditional NBC programming including news, sports, and shows like “The Voice” and “Saturday Night Live.”

Whether the FCC will hear out Ansin rests in part on the new home of NBC Boston. The network has not officially announced the channel, but Ansin has asserted that NBC will share a signal with WNEU, which reaches less than half of WHDH’s 7.1 million viewers. A sharp decline in free over-the-air access should catch the eye of FCC.

Comcast has already begun hiring for its new NBC Boston station and plans a soft launch in the fall.Ken Gabrielsen/AP Images for Comcast/file

Consumers have already complained to the agency about the pending switching of channels, but Ansin curiously has not. The 80-year-old media mogul — uncharacteristically loquacious the last five months — was mum on Tuesday. He did dispatch Paul Magnes, WHDH’s general manager, who reiterated to me that Channel 7 continues “to evaluate all of our options.”

Elbert Robertson, a former FCC attorney who now teaches antitrust issues at Suffolk University Law School, believes both viewers and Ansin have a stronger case before the FCC than in the civil courts.

If he can’t renew with NBC, Ansin plans to operate WHDH as an independent station, and Robertson goes so far as to say that Ansin should round up other local independent broadcast stations to jointly file a consumer protection complaint with the FCC.

“I can see the commission move in the direction of trying to check the growth of Comcast’s power,” said Robertson. “If people are going to be losing service, I don’t think the FCC will allow that to happen.”

But even if the FCC cracks down on Comcast, the remedy might not be Ansin gets to carry the peacock network again. Still, Ansin has something Comcast craves: a stronger signal to carry NBC Boston.

What could happen is that an FCC complaint puts pressure on the cable giant to offer Ansin a better price for WHDH, the biggest NBC station not owned and operated by the network. Initially, NBC wanted to buy a portion of WHDH for as much as $200 million, but Ansin balked at the low-ball offer. He wanted closer to $500 million.

“Make it a public interest problem,” Robertson said, and “Comcast will pay a higher price.”

As New England Patriots coach Bill Belichick might say: “We’re on to the FCC.”