WASHINGTON — Tennis Channel has taken its carriage complaint against Comcast to the U.S. Supreme Court, but it could be a long shot to make that legal finale.
“We are seeking Supreme Court review of the D.C. Circuit’s decision in our case because the lower court strayed from longstanding federal discrimination law to invent an arbitrary and unfair standard for deciding cable carriage complaints,” Tennis Channel said in a statement. “The ruling ignores Congress’s intent to ensure a diverse, competitive media marketplace and eviscerates the FCC’s congressionally assigned responsibility to regulate program network competition in the public interest.”
Last May, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled that Comcast did not violate the FCC’s program-carriage rules, as the commission had concluded in upholding the Tennis Channel complaint, the first carriage complaint against a distributor that had ever gone the distance and not been settled in the interim.
In September, the court declined Tennis Channel’s request for full court (en banc) review of that decision, triggering the network’s decision to seek Supreme Court review.
In its petition, Tennis said the D.C. Circuit had gone beyond the FCC decision — which held that discrimination can be established where “similarly situated parties are treated differently, and the defendant is unable to articulate a legitimate justification for this unequal treatment” — by adding a requirement of its own: “The complainant must show that the defendant would have profited by granting it equal treatment.”
Tennis wants the Supremes to answer the question of whether proof is required that a multichannel video-programming distributor sacrificed distribution profits as a “necessary element of a discrimination claim,” notwithstanding a finding that it “treats similarly situated networks differently in order to favor its affiliated networks.”
Comcast responded in a statement: “The D.C. Circuit Court of Appeals has spoken emphatically and unanimously that Comcast did not discriminate against the Tennis Channel. We are confident that this ruling will continue to be upheld.”
So was a veteran public-interest attorney who has been following the case and asked not to be identified, who said, “While the cert petition is well-written, the odds for success are very long.”