Comcast confirms that its outside mediation with Tennis Channel to try to resolve a carriage complaint has failed and the dispute will now go before a Federal Communications Commission administrative law judge.
"Although it is disappointing that a resolution could not be reached," said Sena Fitzmaurice, Comcast vice president, government communications, in a statement, "we now look forward to refuting Tennis Channel's flawed complaint in a full evidentiary hearing before an Administrative Law Judge at the FCC."
The FCC designated the dispute for a hearing last month, saying there were "substantial and material question of fact as to whether Comcast has engaged in conduct that violates the program carriage provisions of the act and the Commission's rules." But it also gave the parties an option of making one last try through outside mediation, which both agreed to.
Now, the judge will make a finding based on the evidence presented, though the commission has the ultimate decision on the complaint. The FCC made clear that beyond a finding that, contrary to Comcast assertions, the statute of limitations on the complaint had not run out, the jury is still out on the merits of the case. But the FCC's Media Bureau said in referring the complaint to the judge, that on the face of it, Tennis Channel has made a case for program carriage discrimination by Comcast. The judge will look at the case de novo, meaning from scratch, and is directed not to take that FCC determination into account.
Tennis argues that Comcast is favoring its own similarly situated networks Versus and Golf Channel by placing them on more widely viewed tiers. The complaint stems from Comcast's decision to keep the network on a premium sports tier, rather than a more broadly distributed programming tier.
Comcast Tuesday reiterated its statement from October, when the case was first designated for hearing.
"Comcast currently makes the Tennis Channel available to nearly every home we serve, fully consistent with the terms of our affiliation agreement with the Tennis Channel. That affiliation agreement was fairly negotiated and agreed upon in 2005, and there is no dispute that it specifically permits us to carry Tennis Channel as part of our Sports Entertainment Package, where we currently offer it to our customers. Far from discriminating against Tennis Channel, we are carrying it in a manner similar to many other distributors and fully honoring the terms of the parties' agreement. We plan to continue carrying the network for our customers and tennis fans."
Tennis filed the complaint in February 2010. It has been trying to get on Comcast's basic tier for some time--Comcast declined to reposition the channel when Tennis proposed it last year, saying it would be "cost-prohibitive." But Comcast's high-profile play for NBC Universal provided an opportunity for Tennis to try and leverage the attention on the deal.