Comcast Returns Serve at Tennis

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Washington — Comcast has
challenged the Federal Communications
Commission’s decision on a
program-carriage complaint by Tennis
Channel on two fronts.

In filings made late last Thursday
(Jan. 19) at the FCC, the nation’s top
cable operator asked the full commission
to reverse Administrative
Law Judge Richard Sippel’s finding
that it had discriminated against
Tennis and challenged the Media Bureau
for not dismissing the complaint
initially 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 Sippel, they should vacate
the channel-placement order.

Earlier this week, Tennis asked
the agency to force Comcast to comply
with the terms of the ALJ’s ruling
that the MSO violated program-carriage
rules by favoring similarly situated
networks in which it holds
controlling interest, specifi cally NBCUniversal’s Golf Channel
and NBC Sports Network (formerly Versus). 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.

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
[and] 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) it tramples the First
Amendment by subsuming Comcast’s
editorial discretion.

Comcast said 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. 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 NBC
Sports Net 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.

The Tennis Channel had asked the FCC earlier last week to
force Comcast to comply with the terms of Sippel’s decision