Sky Angel Fires Back In Discovery Access Complaint

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Discovery and Sky Angel continue to spar over the latter's program-access complaint over the programmer's decision to exit its programming contract with the distributor.

The most recent volley came from Sky Angel Friday. In a letter to the FCC, the company said Discovery has misinterpreted the Federal Communications Commission's decision to deny a temporary standstill request to keep Discovery content on the IP-delivered programmer's lineup.

Sky Angel said neither the FCC nor its Media Bureau has ruled on the merits of its program-access complaint, including whether it qualifies as an MVPD subject to the program-access rules.

Discovery said in a Dec. 3 letter to the FCC that it has already demonstrated that Sky Angel is not an MVPD.

Quoting from the FCC's denial of the standstill, Discovery said that Sky Angel "has not carried its burden of demonstrating that it is likely to succeed in showing on the merits that it is an MVPD" entitled to program access relief.

Sky Angel had argued that because Discovery is carried by Dish, which now offers subs online access to its programming, Discovery's move is discriminatory. Discovery said that there was no question that Dish was an MVPD, so the fact that it had decided not to license its programming -- citing concerns over how it was delivered, says Sky Angel -- was not discriminatory.

"While Dish now apparently offers its subscribers hardware and software that enables remote access to their Dish service, this officer does not somehow convert Sky Angel into an MVPD." Discovery argues that Sky Angel does not deliver "channels" as it is defined by law in the Cable Act.

In its letter Friday, Sky Angel disputed that, saying Congress created an intentionally broad definition. "Congress used 'multiple channels' to mean multiple programming networks, certainly not multiple portions of electromagnetic frequency spectrum used in a cable system."

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