Order to place channel on a more desireable tier remains intact for Sept. 7 deadline

The FCC rejected Comcast’s effort to put on hold an order that the cabler put Tennis Channel on a more desirable tier, but the cabler is continuing to pursue its case in a federal appellate court.

Tennis Channel won its FCC case against Comcast last month, when a majority of the agency’s commissioners ruled that the cabler had engaged in discriminatory practices by placing channels it owns, Golf Channel and the NBC Sports Network, on less expensive and more widely distributed tiers, while placing Tennis in a more expensive sports tier.

Comcast has until Sept. 7 to carry out the order, which it said should be put on hold as it pursues a court appeal.

The FCC’s general counsel, Sean Lev, rejected Comcast’s contentions that it would suffer “irreparable harm” if forced to move Tennis Channel now and a court rules in its favor later. Lev also wrote that a judicial review was “unlikely” to reverse the FCC’s decision. He did leave open the possibility of putting the order on hold for a small number of Comcast systems that do not carry Tennis Channel now and will struggle to place it on the systems immediately because of low bandwith, but asked the cabler to provide a list in the next five days.

Tennis Channel filed its carriage complaint in January 2010, and said in a statement that this marks the fifth time the FCC has ruled against Comcast in the dispute.

“By denying Comcast’s petition for a stay in all significant respects today, the FCC has reinforced that Comcast must begin positioning Tennis Channel on equal footing with its own Golf Channel and NBC Sports Network,” a statement from Tennis Channel said. “The FCC has reiterated that this repositioning must happen within the required timeframe, which is now approximately 30 days from today’s ruling.”

Comcast filed a motion for a stay with the D.C Circuit Court of Appeals on Wednesday, in which it called the FCC’s actions “unprecedented, unjustified and unconstitutional.” It said that the FCC had misread the carriage statute, expanding its scope “from a narrow shield — created by Congress to block deliberate attempts to use bottleneck power to harm networks based on affiliation — into a sword that dissatisfied networks can use to extort privileged carriage terms that they did not bargain for and have not earned in the marketplace.”

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