The FCC is requiring that Comcast carry Tennis Channel on the same tier as Golf Channel and Versus, siding with an adminstrative law judge who said that the cabler was favoring channels that it owns.
Comcast will have 45 days to comply with the order, and must pay a $375,000 fine, the FCC said in its order, issued Tuesday.
“Tennis Channel’s competitive disadvantage against Golf Channel and Versus would be directly relieved if Comcast provided Tennis Channel with equal carriage,” the FCC said. “With equal carriage, Tennis Channel would be able to compete against Golf Channel and Versus on equal footing for content, advertisers and viewers. Futhermore, without the ripple effect of Comcast’s narrow carriage of Tennis Channel on the basis of affiliation, Tennis Channel will be in a better position to compete for broader carriage on the systems of other MVPDs.”
Comcast had appealed a decision made by an administrative law judge late last year, concluding that Comcast discriminated against Tennis Channel by placing it on more expensive tiers. Although the FCC mandated equitable carriage for Tennis Channel, the commission also threw out the judge’s requirement that Comcast give equitable channel placement, concluding that the arguments for such an order were “underdeveloped.”
Comcast said it plans to appeal the decision to the courts. The company had argued that the FCC was misreading Congress’s standards for discrimination and competitive harm, and was violating its First Amendment rights.
“The decision will accomplish nothing other than to drive up programming costs and enrich a group of wealthy investors in Tennis Channel,” said Kyle McSlarrow, president of Comcast/NBCUniversal, Washington D.C. “Comcast has carried Tennis Channel for more than seven years under a contract Tennis Channel freely negotiated, which this government action would now override.”
Two commissioners, Robert McDowell and Ajit Pai, dissented from the rest of the FCC, concluding that Comcast’s treatment “was within the industry mainstream.”
“If the Commission merely ordered Comcast to carry Tennis Channel on the same tier as Golf Channel and Versus, that alone would make Comcast an industry outlier,” they said. “But to add insult to injury, the Commission also effectively obligates Comcast to pay Tennis Channel for this privilege.”
In its order, the FCC said that Comcast is obligated pay Tennis Channel any additional compensation due under existing contract provisions if it places the channel on a more broadly distributed tier to being it into parity with Golf and Versus. If their existing contract does not state how Tennis Channel should be paid, the FCC said that they expect the parties to negotiate “appropriate pricing terms.”
Tennis Channel issued a statement arguing that it is “the consumer who has won today.”
“Today’s decision underscores that Comcast’s power comes with a concurrent responsibility to see to it that the freedoms of speech and expression of the diverse programmers that serve these communities are not stifled simply because they compete with networks that the sole cable provider in the marketplace happens to own,” the channel said.