C-SPAN : Sky Angel Arguments Won’t Fly

C-SPAN : Sky Angel Arguments Won’t Fly
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WASHINGTON — C-SPAN, which has been trying for years to get its cameras into federal court, doesn’t think its programming decisions should be made there.

Last week, the cable industry-funded public-affairs network filed a motion to dismiss an antitrust complaint filed against it last fall by Sky Angel, an Internet-protocolbased pay TV platform.

C-SPAN said Sky Angel was off base when it went directly to the U.S. District Court for the District of Columbia with claims that C-SPAN improperly withdrew its programming from the distributor. That is because the commission had not yet ruled on Sky Angel’s program-access rights.

“We regard the complaint as merely another chapter in Sky Angel’s longstanding dispute with the FCC over whether as a program distributor it can invoke the so-called program-access rules to its benefit,” C-SPAN corporate vice president and general counsel Bruce Collins said in a statement. “They are attempting to get into federal court by dressing up their program-access complaint as an antitrust violation.”

C-SPAN asked the court to dismiss the complaint with prejudice (it could not then be refi led), saying there was case law that clearly prohibited Sky Angel from undertaking what C-SPAN said was “an end run around the FCC’s exclusive jurisdiction on program-access issues.”

The network said that a party can complain to the FCC, then to an appeals court if it doesn’t like the decision. “Nowhere, however, does the statute allow for district court review of these issues” for a party dissatisfied with the pace of an FCC decision, C-SPAN argued.

C-SPAN said the district court thus lacks subject matter jurisdiction.

In 2008, Sky Angel decided to switch from a satellite service to what it describes as a hybrid satellite/Internet delivery service, a move that prompted some programmers to choose not to be carried.

Sky Angel subsequently filed a program-access suit against one of those programmers, Discovery Communications. The FCC has yet to resolve that complaint, but has tentatively concluded an over-the-top aggregator is not protected by program-access rules because it delivers content via the public Internet, rather than its own distribution facilities as a traditional multichannel video programming distributor (MVPD) does.

As an adjunct to that decision, the commission has also asked for comment on the tentative conclusion and how it should treat online video providers going forward.

Sky Angel says that because C-SPAN is owned and operated by the cable industry, it “ceased to act as a legitimate collaboration among competitors” with the withdrawal of programming and instead illegally harmed competition by depriving Sky Angel of content that was highly valued and that all of Sky Angel’s competitors had access to.

Sky Angel, which markets itself as a family friendly and faith-based pay TV provider, is seeking damages and mandatory access to C-SPAN for the next decade.

C-SPAN counters that it pulled its programming because when Sky Angel switched to IP delivery, it was in violation of its contract.

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