"It's really challenging for an independent programmer to speak up about this issue because there is grave concern about retaliation by Comcast and companies that Comcast can influence," he said.
WealthTV last week became one of only two "independent" networks -- along with Bloomberg TV -- to oppose the proposed Comcast-NBCU joint venture as part of a new Coalition for Competition in Media.
In about 10 million homes, WealthTV is not carried by Comcast. Independent networks such as Outdoor Channel, ReelzChannel and Gol TV that have Comcast distribution have come out in favor of the deal as proposed.
Herring is concerned that the new company would stuff Comcast cable systems with NBCU content to a point that smaller programmers would have difficulty gaining carriage. Last month, WealthTV filed a petition with the FCC requesting the transaction be scuttled.
Former FCC Chairman Kevin Martin, now with Washington law firm Patton Boggs, is serving as one of its attorneys. He also represents Bloomberg and other entities fighting the deal.
Herring and Comcast haven't exactly been on good terms. WealthTV first began unsuccessfully seeking FCC help to gain access to Comcast and other cable operators' systems in late 2007.
A Comcast representative said the operator hasn't found the "value proposition" of the network "very compelling." She noted that other large cable operators, such as Time Warner Cable and Cox, have also denied carriage to WealthTV.
In the unlikely event that Comcast would offer some reach now, Herring said WealthTV would still continue to press its case. Comcast has added Bloomberg in 1.5 million homes since the proposed merger was announced, bringing the total Comcast footprint to about 16 million.
"We don't think the merger's going to be helpful for the public, and we're not going to change our position based on something thrown our way," he said.
Comcast has shown some increased sensitivity to carriage-access issues regarding the proposed merger recently, particularly on the diversity front. Last week, it promised to begin carrying four independent networks, where African-American and Hispanic interests have majority control, during the first eight years after the new company would launch. In addition, it has promised two additional slots for other independents.
"I personally find that [offer] flat-out insulting," Herring said. "Any cable company that's in business will do that as a minimum without even thinking about it, so it's really meaningless."
The Comcast representative said that the eight channels will be controlled by minority interests, but the programming wouldn't necessarily be geared toward their respective communities.
San Diego-based WealthTV has been around six years, with luxe-life series focusing on travel, autos, boats, shopping and other topics. It also runs more tangential programming, such as films; it recently screened "Dances with Wolves" and "Hotel Rwanda." It says about one- third of its audience makes above $125,000 a year.
Charter is the only large cable operator to carry it, joining dozens of other smaller ones. Both telco TV operators -- Verizon and AT&T -- offer it, although it doesn't have a deal with either satellite operator. Principal markets where it has carriage are New York, Washington, Dallas and Southern California.
Herring wants the FCC to deny the Comcast-NBCU transaction altogether. But short of that, WealthTV has proposed that the FCC place some conditions on the new venture that would break down walls for carriage of independent channels: require Comcast to divest its stake in VOD and PPV provider iNDemand and establish a system whereby carriage disputes could be settled by binding arbitration.