News

FCC Bureau Backs Tennis Channel

7/18/2011 12:01 AM Eastern

Washington — Tennis Channel has a
doubles partner in its program-carriage
complaint against
Comcast: the Federal
Communications
Commission’s Enforcement
Bureau.

In contrast to previous
complaints involving
WealthTV and
Mid-Atlantic Sports
Network — in which
the bureau didn’t feel
the programmers had
a case — the Enforcement
Bureau has advised
an FCC judge
to throw the book,
or at least most of it,
at Comcast over its
treatment of Tennis.

The bureau has
recommended to
Chief Administrative
Law Judge Richard
L. Sippel — who
has presided over
high-profile program
carriage complaint
hearings including
Wealth, MASN and
NFL Network — that
Tennis has made the
case that Comcast
had discriminated on
the basis of affiliation.
Comcast should be hit
with the maximum
fine allowed, which is
$375,000, the bureau
also said.

COMCAST REBUTS

Comcast took issue with that finding in oral
argument before Sippel last week, essentially
restating the arguments it made two months
ago in the complaint hearing and adding the
reasons why the bureau’s advisory was off -
base.

Phladelphia-based Comcast, the nation’s
largest cable operator, said the bureau decision
was improper and not supported by the
evidence, and the remedy of mandated carriage
would be unconstitutional.

Tennis Channel, an independently owned
network, said the bureau’s recommendation
spoke for itself.

The bureau did agree with Comcast that
the burden of proof
is on Tennis Channel,
but said that
issue is basically
moot since the network
has essentially
met that burden.

Tennis Channel
contended Comcast
favors its own
similarly situated
networks, NBCUniversal-
owned
Versus and Gol f
Channel, by placing
them on more
widely viewed tiers.
Comcast has kept
Tennis Channel on
a premium sports
tier, rather than a
more broadly distributed
programming
tier, which
Comcast claimed
was consistent with
carriage by “many
ot her distributors”
and with the
terms of its affiliation
agreement with
Tennis Channel.

The bureau also
agreed that Tennis
Channel’s request
to be put on
the most-widely
viewed tier, the analog
tier, were excessive
and would
require deletion of other channels.

The Enforcement Bureau said it believes
Tennis Channel has demonstrated that
Comcast discriminated against the channel
on the basis of affiliation, or in this case
nonaffiliation, which prevented the channel
from competing fairly with similar sports
channels in which Comcast holds a financial
interest.

The recommendation is that the judge
force Comcast to carry the channel “across
Comcast’s cable systems nationwide on a
broadly distributed tier” within the next 30
days and at a price on par with Golf Channel
or Versus, both owned by Comcast.

The FCC’s program-access rules prevent cable
operators from favoring co-owned channels
over similar, non-affiliated channels.

The advice further was that Tennis Channel
either be placed near Versus and Golf
Channel, or that a sports neighborhood be
created to include all of them, similar to the
neighborhooding condition Comcast agreed
in the NBCUniversal merger.

The enforcement bureau concluded that
Tennis made a compelling case that the network
and Versus and Golf were comparable,
including evidence of Versus going after tennis
events, comparable demos and similar
ad bases for all three.

Using terms like “willful violation” and
“discriminatory conduct,” the bureau did
not stop there. It said that “given the gravity
of Comcast’s anticompetitive conduct,” it
recommends that the judge levy a $375,000
fine, the maximum allowed.

The bureau’s comments are not dispositive,
but essentially represent the bureau’s
take on the complaint following oral argument
and each side’s submission of a recommended
decision.

FCC HAS FINAL SAY

Even if the judge joined the enforcement bureau
and upheld the complaint, that would
not be the last word. Just as the bureau’s
finding is a recommendation to the judge,
the judge’s finding is a recommendation to
the full commission, which must make the
final call.

In contrast to its smackdown of Comcast,
the enforcement bureau recommended in
previous program-carriage complaints involving
Wealth TV and MASN that those programmers
had not made their cases against
various cable operators, including Comcast.

The FCC eventually dismissed the Wealth
TV complaint. MASN, a Washington, D.C.-
area regional sports network, settled before a
final decision was made, as did the NFL Network
in its carriage complaint.

WealthTV took the enforcement bureau
decision, combined with ex-FCC commissioner
Meredith Attwell Baker’s recent
move to Comcast, to renew its request
that the FCC reconsider its ruling against
WealthTV’s program-carriage complaint
against Comcast and others.

March