Comcast Challenges FCC's Program Carriage Ruling That Landed in Tennis Channel's Court

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Comcast has challenged the Federal Communications Commission's Tennis Channel program carriage complaint decision on two fronts.

In filings made late Thursday at the FCC, the nation's top cable operator asked the full commission to reverse the Administrative Law Judge's finding that it had discriminated against Tennis and challenged the Media Bureau for not dismissing the complaint inititially because it was filed after the statute of limitations had expired.

The cable operator also argued that even if the FCC commissioners do not reverse the ALJ, they should vacate the channel-placement order.

Earlier this week, Tennis asked the FCC to force Comcast to comply with the terms of the ALJ ruling that the MSO violated the program carriage rules by favoring its own similarly situated networks, Golf Channel and Versus, now known as the NBC Sports Network. In the complaint, Tennis said the language is clear that such a ruling becomes effective upon release, though it is subject to appeal to the commission, which Comcast has done.

For its part, Comcast said Tennis Channel was trying to rewrite its contract under the guise of a discrimination claim. And while the judge saw it differently, in officially taking exception--make that exceptions--to that ruling, Comcast said there were fundamental errors including: 1) the program carriage rule targets "intentional efforts to deprive programmers of the ability to compete; it does not shield programmers from all market forces" 2) the decision "flies in the face" of Congress' instruction to the FCC to ""rely on the marketplace to the maximum extent feasible" when implementing the statute; and 3) tramples the First Amendment in the process by subsuming Comcast's editorial discretion.

Comcast says that the judge's remedy of giving the channel the same placement it does NBC Sports Network and Golf is an "unjustified a remedy that is both foreclosed by the First Amendment and unnecessary to "redress Tennis Channel's purported injury. Comcast argues that the remedy is giving Tennis Channel the ability to reach a larger audience, not specific channel placement.

Judge Richard Sippel in rendering the decision said that it was not a mandate of any particular level of distribution, but also said that meant that Comcast could carry Tennis on any tier, or even not carry it at all, so long as it did the same with Versus and Golf.

"The remedy imposed in this order does not, as Comcast Cable erroneously contends, infringe upon Comcast Cable's editorial discretion by 'forcing broader carriage' of Tennis Channel," Sippel said in the decision.

In a separate filing, Comcast took aim at the Media Bureau's initial decision to refer the complaint to Sippel. Comcast says that the bureau should have dismissed the complaint in the first place because, in Comcast's reading of the statute of limitations, complaints have to be filed within a year of a carriage agreement. The bureau saw it differently, but Comcast says that is based on a misreading that would render the limitation meaningless.

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