The FCC agreed with Tennis Channel that Comcast discriminated against it by placing it in the upper tier of its channel lineup, while Golf Channel and NBC Sports Network got better placement. Comcast owns the later two properties.
The D.C. Circuit Court of Appeals, however, overturned the FCC’s decision, with Judge Stephen Williams writing in an opinion that there was a lack of evidence of unlawful discrimination in violation of program carriage rules.
Tennis Channel, however, argues that the court was imposing a different “test” than the FCC did in weighing whether Comcast violated program carriage rules.
Namely, Tennis Channel notes that the appellate court had sought evidence that broader distribution of Tennis Channel would be a benefit to Comcast, bolstering the notion that Comcast’s placement of Tennis Channel on upper tiers is motivated by favoritism for channels it owns. Tennis Channel argues that Comcast’s “purported business justifications for restricting Tennis Channel’s carriage were merely pretexts designed to obscure a discriminatory purpose.”
Tennis Channel believes that there is evidence that broader carriage would be a benefit to Comcast; it just wants the FCC to now go down that route.
“There is considerable evidence in the record that satisfies the new tests, and we are confident that, as in every agency finding throughout the history of this case, the Commission will once again conclude that Tennis Channel is correct in its view that Comcast has illegally discriminated against it in violation of Section 616 of the Communications Act,” Tennis Channel said in a statement.
The new dynamic, however, is that the FCC will be reviewing Comcast’s proposed merger with Time Warner Cable, and the whole issue of carriage of independently owned or non-affiliated channels undoubtedly will be a topic of great interest, as it was when Comcast acquired NBCUniversal.
Comcast has argued that Tennis Channel is attempting to pursue a regulatory ruling instead of a business negotiation. It has argued not just that it was not violating program carriage rules, but that the FCC’s ruling were violations of the First Amendment.
Update: Comcast’s Sena Fitzmaurice said in a statement that “after years of litigation and scurrilous accusations by the Tennis Channel, the plain and simple fact is that the Court of Appeals unanimously concluded that carrying the Tennis Channel in the manner it demanded would have had immense costs and no benefits for Comcast and that, therefore, Comcast’s carriage decision was appropriate and non-discriminatory. When given the opportunity to pursue the case at the Supreme Court, the government’s own lawyers chose not to do so.”