Updated: Tennis Volleys Program Carriage Complaint Against Comcast

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 Tennis Channel has served a program carriage rule complaint with the Federal Communications Commission against the nation's top distributor.

Filed on Jan. 5, Tennis Channel's complaint with the commission's Media Bureau avers that Comcast Cable Communications has violated the commission's program carriage rules prohibiting cable operators from discriminating against unaffiliated cable services in favor of networks they own by keeping the dedicated racquet sport channel on a premium sports tier.
Moreover, the complaint states that Comcast-owned networks Golf and Versus, which compete with Tennis for ratings and advertising, are positioned on basic tiers available to many more subscribers for no additional charge.
It also maintains that by being locked on the sports tier, which is currently taken by some 2.6 million Comcast subscribers at $5 per month, Tennis is disadvantaged relative to Golf and Versus, which are available to almost of Comcast's 23.8 million video subscribers.

Tennis, which says it carries a lower license fee than Golf and Versus, is seeking to be placed on equal distribution footing as the Comcast-owned services, a move that would improve its ability to establish national ratings, better compete for advertising, and event programming, and improve its position in the sports cable marketplace overall.

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Comcast, on the morning of Jan. 6, returned this statement in response to the complaint: "Comcast currently makes the Tennis Channel available to nearly every home we serve. Our contract with Tennis Channel, which the network freely negotiated and signed in 2005, specifically permits us to carry Tennis Channel on many different tiers, including as part of our Sports Entertainment Package, where we currently offer it to our customers. We are fully honoring the terms of our agreement with Tennis Channel and plan to continue carrying the network for our customers and tennis fans. We look forward to outlining the facts of this groundless complaint, including our existing contract, to the FCC."
The cable operator's contract, according to sources, currently extends through most of this decade.
The complaint was not unexpected. Tennis Channel has been trying to gain wider carriage from the top operator for some time and Comcast's plans to form a joint venture with NBC Universal has provided the channel with an opportunity to put the issue in the spotlight in Washington as Comcast argues for government permission for the deal.

Comcast is expected to file with the Justice Department any day, then follow up with a public-interest showing at the FCC at the end of the month.
The cable operator has been the subject of three program carriage complaints over the past year, with NFL Network, regional sports service Mid-Atlantic Sports Network and Wealth TV.
Comcast recently settled its carriage complaint with the MASN. Last spring, it reached an agreement with NFL Network, settling a program carriage complaint from the pro football league's in-house channel, which resulted in its migration from Comcast's sports tier to a more widely penetrated tier.
The FCC has yet to make a final decision on the third carriage complaint involving Comcast and other operators, filed by WealthTV. But an FCC Administration Law Judge has ruled against WealthTV after the FCC's Enforcement Bureau recommended that outcome.
For its part, Tennis last summer in the weeks leading up to, during and after the U.S. Open tennis championships, was embroiled in a contentious dispute with Cablevision over carriage, which ultimately resulted in the network being lauched on that operator's sports tier.
In Tennis' complaint against Comcast, it states that the appeal of the top operator's sports tier has been diminished further because it no longer includes single-sport networks from the NBA, NHL and the NFL. These channels -- which Tennis says the cable company has a direct or indirect financial interest in -- were upgraded last year to more widely penetrated levels of service. Similarly, MLB Network, in which Comcast also owns a stake, enjoys a broader berth.
In a redacted version of the complaint, Tennis maintains that "Comcast relegates only unaffiliated services like Tennis Channel to its narrowly penetrated premium sports tier."

According to Tennis' complaint, the programmer last year was negotiating with Comcast, offering incentives it thought would increase its penetration. However, those conversations ended on June 9, 2009. Network officials said those incentives didn't include offering the operator an equity stake in Tennis.
"We did not want to file this complaint, but Comcast has left us with no choice," said Tennis chairman and CEO Ken Solomon in a statement. "After steadily building the most comprehensive single-sport network in television over the past few years, in the first half of 2009 we had numerous discussions with Comcast. We made offers with added incentives for it to move us to a competitive, broadly penetrated service tier, as it has done recently with the MLB, NHL and NBA channels, in which it has financial interests. But Comcast declined to do so."
The complaint includes data showing that despite the fact it only has some 24 million subscribers, Tennis' ratings performance, in some instances, is comparable within its coverage areas with those of Golf and Versus, which have much larger sub bases. Comcast disputes the notion that the ratings are equivalent, and that Tennis has "cherrypicked" certain time slots and events in measuring itself against Golf and Versus.

The documents also points out that it has acquired more top fare, relative to its sport, including all of four Grand Slam events, than the Comcast-owned services. Tennis says it presents 2,700 hours of event coverage annually, versus 2,400 for Golf and 1,350 on Versus.
Comcast counters by saying that Versus and Golf both offer around 2,500 event hours annually.

The complaint also includes testimony and comments from Comcast executives indicating that the cable operator gives special carriage consideration to its owned-service, that ad-supported networks can't succeed on sports tiers and generally decry sports tier positioning.
To that end, the complaint cited remarks made by Comcast president and COO Steve Burke during NFL Network's program complaint with the FCC in which the executive said the operator treats affiliates networks "like siblings as opposed to strangers."

The document also points to remarks made by Comcast Programming Group president Jeff Shell during NFL Network's aforementioned program complaint in which he admitted "if you're an ad-supported network"...like Tennis Channel..."the sports tier that Comcast has is not viable."
The complaint also refers to remarks made by Versus president Jamie Davis in the network's carriage dispute with DirecTV. There, Davis described  the top DBS provider's intention to move Versus, which has been off DirecTV's air since Sept. 1, to a sports tier as a "non-starter."

"This case is truly the litmus test for unaffiliated programmers everywhere, and the future of the public's interest in having a wide variety of voices and choice in the media marketplace," said Solomon. "Ultimately, we simply want to be treated comparably to the way Comcast treats the sports program services it owns."
To do that, Comcast spokesman John Demming said that such moves would result in an increase of "hundreds of millions" in license fees to Tennis over a number of years, costs that would have to be passed on to all of the operator's subscribers. Demming also indicated that Tennis' wont for HD placement would result in an extant service getting bumped from its carriage position.

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