No Fault in Tennis’ Discrimination Claim

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When a Federal Communications Commission
administrative law judge ruled last Dec. 16 that
Comcast has discriminated against the Tennis Channel,
he smacked the legal equivalent of a clean ace down the

On the other hand, those who contend the
decision violated the First Amendment should
get tagged with a double fault. (See “Tennis Ruling
a False Start,” March 12, 2012.)

To recap: Tennis Channel, an independent
programmer, filed a complaint against Comcast
with the FCC, charging the cable giant with discrimination.
Tennis Channel said it was placed
on a tier of cable service for which Comcast subscribers
had to pay an additional monthly fee,
resulting in fewer viewers, while similar channels
in which Comcast has a controlling interest, the Golf
Channel and NBC Sports Network (formerly Versus), are
on the more widely available basic tier that is available to all
subscribers at no extra cost.

The ruling didn’t require Comcast to carry the Tennis
Channel; that was already being done. Administrative Law
Judge Richard Sippel ruled that Comcast was prohibited
from discriminating against Tennis in regard to carriage of
Golf and Versus. The ruling doesn’t dictate which tier the
three should be on. They could all be on basic tiers, or on an
extra-pay sports tier.

U.S. Supreme Court Justice Hugo Black, a legendary defender
of the First Amendment, addressed the issue in a
1945 antitrust case in which the government challenged the
Associated Press bylaws prohibiting AP members from selling
news to non-members and allowing members to block
competitors from joining the news consortium. The AP
then, as Comcast does now, claimed the shield of the First

Black, writing for the Court, strongly disagreed in ruling
the AP was subject to the Sherman antitrust law: “It
would be strange indeed, however, if the grave concern for
freedom of the press which prompted adoption of the First
Amendment should be read as a command that the government
was without power to protect that freedom.”

Black could have been referring to the current Comcast
case, writing: “Freedom to publish is guaranteed
by the Constitution, but freedom to combine
to keep others from publishing is not.”

Since then, the FCC has ruled several times
in cases involving program carriage, including
must-carry and leased-access channel
requirements, and has been upheld in the
courts each time, even as cable has raised First
Amendment issues.

As the FCC said in a program-carriage ruling
last August, courts have held that provisions of
law that regulate speech based on affiliation
are constitutional “in promoting diversity and competition
in the video programming market.”

The agency noted that the 1992 Cable Act, “which prevents
MVPDs [multichannel video program distributors]
from demanding exclusivity or financial interests from, or
discriminating on the basis of affiliation with respect to, unaffiliated programming vendors and, accordingly, regulates
speech based on affiliation with an MVPD, not based on
its content.” That’s the principle here. Banishing the Tennis
Channel to the outer courts (extra-pay channels) in favor of
similar affiliated channels is discrimination and anti-competitive

Accepting the argument that the First Amendment wipes
out any ability to remedy an anticompetitive or discriminatory
situation would do violence to Justice Black’s reminder
that, “The First Amendment affords not the slightest support
for the contention that a combination to restrain trade
in news and views has any constitutional immunity.”

Game, set and match, Tennis Channel.

Art Brodsky is communications director of Washington,
D.C.-based Public Knowledge.