A broadcaster that sued a Comcast Corp. system in Florida
has apparently failed to convince a federal magistrate that the operator acted
anti-competitively by moving the station to different channel slots.
The irony of the suit: Two of the moves were made at the
broadcaster's request, according to the magistrate's written report.
DeSoto Broadcasting Inc., the general partner of
DeSoto-Channel 62 Associates Ltd., sued Comcast Cablevision of West Florida Inc., which
operates in Sarasota, in 1996. The station, WBSV, alleged that the operator violated state
and federal antitrust laws by switching the broadcaster's channel placement twice in
Comcast agreed to add the new channel to its lineup in
1991, even though it was not compelled to do so by federal must-carry rules, which were
not re-established for another year. The operator even had to expand its channel capacity
from 35 channels to 37 and bump Black Entertainment Television up one notch to make room
for the TV station at channel 35, according to court papers.
But five days after WBSV went on the air, Comcast,
responding to technical problems and consumer complaints, moved BET back to its original
channel 35 slot and WBSV to channel 37. DeSoto alleged that the change was for competitive
advantage because cable subscribers could not receive channel 37 without special tuning
instructions, cable-ready televisions, VCRs or modifications to their cable set-tops.
The broadcaster lobbied for a lower channel position, and
in October 1991, Comcast agreed, moving DeSoto's station to channel 20 and displacing
The Nashville Network. But the broadcaster said that move was anti-competitive, as well,
because the lower channel suffered from static. Although WBSV, in court documents, could
only identify 35 complaints from a customer base of 73,000 cable subscribers, Comcast
again agreed to move it, this time to channel 15.
Despite the actions by Comcast, the broadcaster filed the
civil action, stating that the moves were prompted by the cable operator's wish to
gain "unreasonable or unwarranted competitive advantage."
But Magistrate Judge Mark Rizzo of the U.S. District Court
for the Middle District of Florida, Tampa Division, found for the operator in his motion
for summary judgment.
If Comcast meant to stifle DeSoto in 1991, it could have
simply refused to add the broadcaster, relegating it "to the television no-man's
land of aluminum foil-covered rabbit ears and rooftop antennas," the judge wrote.
Further, the cable company leased WBSV property for its
broadcast tower and directed viewers to it with information "crawls" on-screen
each time that the channel was moved. All of these factors negated the broadcaster's
"weak circumstantial evidence," Rizzo wrote.
Rizzo's recommendation is not final. The broadcaster
was given time to offer opposition, and Comcast's comments are due this week. Rizzo
should issue his ruling by the end of this month, the parties said.