The National Cable and Telecommunications Association said Wednesday that the Federal Communications Commission's decision to uphold Tennis Channel's program carriage complaint against Comcast takes the agency down a "dangerous and unnecessary regulatory path."
The FCC concluded that Comcast, NCTA's largest member, had discriminated against the channel in favor of its owned Golf and NBC Sports Net channels and ordered the company to provide equal treatment, which means comparable tiers and compensation, to those channels.
"For the first time, the full commission has intervened to rewrite a private, arms-length contract and dictate the terms and conditions of carriage for a particular programming network," said NCTA in a statement. "The carriage agreement at issue gave Comcast the right to carry the Tennis Channel on a separate sports tier to provide its customers with additional choice of video programming packages. The government has now abrogated that contract, midterm, by finding that Comcast 'discriminated' against the Tennis Channel by not carrying it on a more widely purchased tier that carries two Comcast-affiliated channels that also happen to carry sports programming
"Forcing a cable operator not only to carry a particular program network but to include it in a particular tier or package of channels directly interferes with the operator's constitutionally protected right to select and package programming in the manner that, in its editorial discretion, best meets the interests and demands of its customers," NCTA continued. "In today's highly competitive marketplace, it is difficult to see how the government can justify this content-based trampling on the right of free speech and the freedom of contract."
The FCC said in its ruling, a 3-2 vote on party lines, that its carriage remedy did affect cable's editorial discretion in how it placed channels, but did not affect the underlying content, and so was only subject to intermediate First Amendment scrutiny.
Comcast has pledged to challenge the decision in court.