In a 3-2 decision, the Federal Communications Commission (FCC) delivered a victory to the Tennis Channel this summer in the network’s discriminatory carriage lawsuit against Comcast Cable Communications.
The decision, which followed an eight-day trial, marked the first time an independent cable network has prevailed under Section 616 of the Communications Act of 1934 since the statute was passed two decades ago.
Specifically, the FCC held that Comcast discriminated against Tennis Channel in favor of its wholly-owned networks, Golf Channel and Versus (now re-named the NBC Sports Network), in violation of Section 616. The FCC ordered Comcast to carry Tennis Channel “on the same distribution tier, reaching the same number of subscribers, as it does Golf Channel and Versus.” The Commission’s carriage remedy will expand Tennis Channel’s carriage nearly six-fold, extending the network’s reach to virtually the entirety of Comcast’s national footprint. Comcast was required to comply within 45 days and must pay the maximum statutory penalty of $375,000.
The ruling affirms the initial decision of the FCC’s chief administrative law judge last December. In a lengthy opinion, the FCC rejected each of Comcast’s arguments for its discriminatory treatment of Tennis Channel as “unpersuasive.”
Highlighting Comcast’s disproportionate size and market influence — it is the nation’s largest distributor of video programming content, representing nearly 24 percent of the market — the FCC held Comcast’s discrimination had a particularly harmful effect on the network. But with equal carriage, it concluded, “Tennis Channel would be able to compete against Golf Channel and Versus on equal footing for content, advertisers, and viewers.”
Tennis Channel was represented Covington attorneys Stephen Weiswasser, William Phillips, and Paul Schmidt as well as associates Leah Pogoriler and Neema Trivedi, and former associate Robert Sherman.
“The landmark decision is a substantial victory for small, independent networks like Tennis Channel,” said Weiswasser, a lead Covington attorney on the case. “For over two years, Tennis Channel battled against the nation’s largest content distributor, all the while continuing to operate with artificially-constrained distribution.”
Comcast issued the following statement: “The finding of a violation here is inconsistent with the evidence, which shows that all major distributors recognize that Tennis Channel does not merit the same carriage as Golf Channel and NBC Sports Network. This decision will accomplish nothing other than to drive up programming costs and enrich a group of wealthy investors in the Tennis Channel.”
The FCC’s ruling can be viewed here: http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0724/FCC-12-78A1.pdf
To view the original complaint, visit http://www.publicknowledge.org/files/docs/10-01-05tennischannelprogaccomplaint.pdf
