The Federal Communications Commission Enforcement Bureau has said it thinks the commission should deny Comcast's request for a stay of the initial decision by an administrative law judge that its tier placement of the Tennis Channel violated the commission's program carriage rules.
Comcast had claimed that enforcement would violate its constitutional rights and confuse and frustrate viewers if Comcast had to immediately alter its lineup, according to the FCC.
The bureau said there was no merit to either claim. "The public-interest would be served by providing broad public access to additional cable programming where, as here, there has been a sufficient showing of discrimination. Comcast was afforded its due process by participating in a full and fair adjudicatory proceeding, and it is now the public's turn to get that to which it is entitled," the bureau said. "A stay of the [Initial Decision] would serve only Comcast's pecuniary interests."
Judge Richard Sippel, in rendering the decision that Comcast had discriminated against Tennis in favor of Versus, now NBC Sports Network, and Golf Channel, in which it has a financial interest, said that it was not a mandate of any particular level of distribution. He 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.
"Despite being ordered to treat Tennis Channel the same as its own similarly situated Golf Channel and NBC Sports Network (Versus), Comcast's filings and its continuing discrimination demonstrate that it's not challenging whether or not it violated Section 616; it's challenging the statute itself and the Commission's authority to enforce it," the Tennis Channel said in a statement. "Whether or not it wants to see the rules changed is irrelevant to the end result of the hearing. Tennis Channel won, and Comcast must abide by the FCC regulations in place today."
With the recommended denial of the stay, Comcast must now look for a decision from the FCC commissioners. The company has made it clear it thinks the FCC judge was way off base.
As it made clear last December when the ALJ decision was announced, Comcast is ready for a fight.
"Comcast has the contractual right to distribute Tennis Channel as it does currently, and Comcast firmly believes that the exercise of that right to minimize costs to consumers is not discrimination," it said. Many other companies with no ownership interest in Tennis Channel have made similar decisions and some refuse to carry Tennis Channel at all. Moreover, this decision purports to supersede an existing contract between two private parties, which is unprecedented in the program carriage context. The ruling is only an initial decision, and is subject to further review by the full Commission and then, if needed, the U.S. Court of Appeals.
The FCC made some changes to its program carriage rules back in August to speed complaints and appeals, but those did not apply to complaints, like Tennis, already in the pipeline.