The Federal Communications Commission's Enforcement Bureau has told an administrative law judge that he should mandate Tennis Channel carriage on a "widely viewed" -- though not necessarily most widely penetrated -- Comcast tier and fine the cable operator the maximum for that program carriage rule violation.
The bureau agreed with Comcast that the burden of proof it on Tennis Channel, but said that issue is basically moot since the network has essentially met that burden. It also agreed that Tennis' request to be put on the most-widely viewed tier, the analog tier, were excessive and would require deletion of other channels.
The bureau said it believes the Tennis Channel has demonstrated that Comcast discriminated against the channel on the basis of affiliation, or in this case non-affiliation, which prevented the channel from competing fairly with similar sports channels in which Comcast holds a financial interest.
The bureau recommends 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 of which are owned by Comcast. The FCC's program-access rules prevent cable operators from favoring co-owned channels over similar, non-affiliated channels.
It also recommended that Tennis either be placed near Versus and Golf, or that a sports neighborhood be created to include all of them, similar to the neighborhooding condition in the Comcast/NBCU merger order.
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.
In a nutshell -- actually in the summary from the redacted version of the recommendation, a copy of which was obtained by Multichannel News -- the bureau concluded that "Comcast engaged in discrimination in the selection, terms and conditions of carriage on the basis of affiliation and nonaffiliation"; that Tennis, Golf Channel and Versus are sufficiently similar; that Comcast discriminated against Tennis in favor or those affiliated sports channels; that Comcast's actions harmed Tennis competitively, and that the judge should mandate carriage and levy the maximum fine.
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. Comcast and Tennis are scheduled to make oral presentations of those recommended decisions July 12, with Tennis now having new ammunition in the form of the bureau recommendation.
The FCC's Media Bureau referred the complaint for hearing back in October, concluding on its face that Tennis had made a case for discrimination.
Even if the judge joined the Enforcement Bureau and upheld the complaint, that would not be the last word. Just as the bureau finding is a recommendation to the judge, the judge's finding is a "right back at you" recommendation to the full commission, which must make the final call. But the FCC's Democratic majority is likely to support the judge and bureau if they are of like minds.
By contrast to its smackdown of Comcast, the Enforcement Bureau recommended in previous program carriage complaints involving Wealth TV and Mid-Atlantic Sports Network that those programmers had not made their cases against various cable operators, including Comcast. The FCC eventually dismissed the Wealth TV complaint and MASN was settled before a final decision, as was another carriage complaint filed by the NFL Network.
Tennis and Comcast argued their cases between April 25 and May 2 following a failed attempt at outside mediation.
Tennis argues that Comcast is favoring its own similarly situated networks Versus and Golf by placing them on more widely viewed tiers. The complaint stems from Comcast's decision to keep the Tennis Channel on a premium sports tier rather than a more broadly distributed programming tier, which Tennis says is discrimination on the basis of affiliation and Comcast says is consistent with its carriage of "many other distributors" and with the terms of their affiliation agreement with Tennis.