Courts

Tennis Gets Day In Court

10/11/2010 12:01 AM Eastern

Washington — Comcast’s
lawyers will spend the next few
weeks in overdrive as they prepare
for a two-front challenge
posed by the Federal Communications
Commission.

The FCC last week designated
Tennis Channel’s programaccess
complaint for a hearing
before an administrative law
judge, saying that there are “substantial
and material question of
fact” as to whether Comcast violated
program-carriage rules.
Tennis filed a complaint against
Comcast, the nation’s largest
MSO, claiming it discriminated
against the independent service
by placing it on a subscription
sports tier, while offering two
similar Comcast-owned services
— Versus and the Golf Channel
— as part of a more widely
viewed package.

If either Comcast or Tennis
doesn’t opt for third-party arbitration
by Oct. 15 (and Comcast
doesn’t plan to do so), it will be
referred to a judge on Oct. 18. Th e
judge can then get the ball rolling
by setting a date for a prehearing
conference.

Oct. 18 is also the FCC’s deadline
for a second data drop related
to Comcast’s merger deal with
NBC Universal. (See sidebar.)

An FCC spokesperson said it
would move expeditiously on the
complaint, as is its goal with all
such complaints. She had no comment
on whether that also had to
do with the pending transaction.
The merger data and complaint
deadlines are not linked — nothing
in the FCC’s complaint designation
says the Tennis Channel
matter must be resolved before a
decision on the merger, according
to an FCC spokesperson — but the
program-carriage issue is relevant
to both situations.

Change “sports” to “news”
and that is the same concern expressed
by fi nancial-information
firm Bloomberg LP — a major critic
of the Comcast-NBCU joint venture
— in a letter to the FCC two
weeks ago. Bloomberg said the
FCC should make sure that Comcast
places its Bloomberg TV
— and News Corp.-owned Fox
Business Network, for that matter
— on the same tier and adjacent
to CNBC.

Bloomberg even referenced
Versus, saying that in the Washington,
D.C., system, Comcast
placed sports network Versus
adjacent to competitor ESPN
and its own Comcast SportsNet
Mid-Atlantic, while putting Mid-
Atlantic Sports Network (MASN),
an RSN competing with CSN Mid-
Atlantic, 30 channels away.

Bloomberg said that requiring
similar and adjacent placement
— so-called neighborhooding
— was a way to prevent Comcast
from harming and discriminating
against the financial-news service.

In scheduling the Tennis
Channel hearing, the FCC said it
had met the threshold for a case
of program-carriage discrimination,
though it had reached no
conclusion on the merits of the
complaint.

Comcast called Tennis’ complaint
groundless and said it
looked forward to a hearing.
“Comcast currently makes the
Tennis Channel available to nearly
every home we serve,” Comcast
vice president of government
communications Sena Fitzmaurice
said. “Our contract with Tennis
Channel, which the network
freely negotiated and signed in
2005, specifically permits us to
carry Tennis Channel as part of
our Sports Entertainment Package,
where we — like many other
distributors — currently offer
it to our customers.”

“We are gratified that the bureau
has found that, on every
substantive allegation, we have
made a prima facie showing of
Comcast’s discrimination,” Tennis
Channel said in response to
the FCC’s decision.

November

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