UPDATE, 2:40 PM: Comcast’s Sena Fitzmaurice just responded to the Tennis Channel’s petition, urging the FCC to reject it as “baseless litigation” that “simply reiterates arguments that the court of appeals and the Supreme Court have already rejected.” In 2005 the companies “negotiated and signed an arm’s length contract” that Comcast has fulfilled “in exactly the way the contract requires.” The DC Court of Appeals agreed that Tennis Channel’s plea to be carried as a basic service would have “immense costs and no benefits for Comcast and that, therefore, Comcast’s carriage decision was appropriate and non-discriminatory. When given the opportunity to pursue the case at the Supreme Court, the government’s own lawyers chose not to do so.”
PREVIOUS, 12:55 PM: Tennis Channel has lost a game and a set in its discrimination cases against Comcast, but it still believes that it can win the match if the FCC agrees with a new petition asking it to review the matter again. The filing follows a U.S. Supreme Court decision last month not to review an appeals court decision that vacated a 2012 FCC order. The regulators agreed that Comcast had discriminated against Tennis Channel by putting it on an extra-fee sports tier while putting similar channels that it owns — Golf Channel and NBC Sports Network — on the expanded basic tier. The appeals court concluded that the FCC offered no evidence to refute Comcast’s position that it made a simple financial judgment that few subscribers wanted to watch tennis. Tennis Channel says that the FCC now can return to the case because “there is considerable evidence in the record that satisfies the new tests” the appeals court used to vacate the FCC’s order. If regulators look again, they “will once again conclude that Tennis Channel is correct in its view that Comcast has illegally discriminated against it.” Read More »
The Tennis Channel says that while it’s “disappointed” by today’s decision, it still has “a number of available options” to revive its case alleging that Comcast treated it unfairly by putting it on an extra-fee sports tier. The Supreme Court offered no comment when it said that it will not review a decision by the U.S. Court of Appeals in DC that overturned an FCC ruling in 2012. The FCC ordered Comcast to take Tennis Channel off of the sports tier so it could compete more equally with the cable giant’s Golf Channel and NBC Sports Network. The FCC said that Comcast had used its market power to discriminate against Tennis Channel. But the Appeals Court said last May that the FCC offered no evidence to refute Comcast’s position that it made a simple financial judgment that few subscribers wanted to watch tennis. In September it denied Tennis Channel’s dual request for an en banc rehearing or a panel rehearing. ”We are pleased that finding by the lower court that Comcast did not discriminate against Tennis Channel will stand,” Comcast says. “We continue to make Tennis Channel available to tennis fans across the country in terms with our longstanding contract.”
The independent pay TV service wants the justices to reverse decisions by the U.S. Court of Appeals in DC that overturned an FCC ruling last year. Regulators said that Comcast had to take Tennis Channel off of an extra-fee sports tier so it could compete more equally with the cable giant’s Golf Channel and NBC Sports Network. The FCC said that Comcast had used its market power to discriminate against Tennis Channel. But the Appeals Court said that the FCC offered no evidence to refute Comcast’s position that it made a simple financial judgment that few subscribers wanted to watch tennis. The Appeals Court ruling “strayed from longstanding federal discrimination law to invent an arbitrary and unfair standard for deciding cable carriage complaints,” the Tennis Channel says today. “The ruling ignores Congress’ 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.” The Appeals Court overturned the FCC in May, and in September denied Tennis Channel’s dual request for an en banc rehearing or a panel rehearing. Comcast says that the court “has spoken emphatically and unanimously that Comcast did not discriminate against the Tennis Channel.” The company adds that it’s “confident that this ruling will continue to be upheld.”
The Tennis Channel will not be getting its day in court again, but the ball is still in play. Without explanation, the federal Court of Appeals for the D.C. Circuit Wednesday denied the channel’s dual request for an en banc rehearing or a panel rehearing of a May 28 ruling on anti-competitive tactics by Comcast (read it here). Needless to say, the Tennis Channel isn’t happy. “The U.S. Circuit Court decision today effectively strips the FCC of the ability to perform the role Congress requires,” said the channel in a statement. “We are disappointed with this result and intend to pursue further review.” In the decision this spring, the court overturned the Federal Communications Commission’s July 2012 ruling that Comcast discriminated against the Tennis Channel in favor of the cable giant’s Golf Channel and NBC Sports Network. Currently on a tier with around 3 million subscribers, the specialty channel has been trying since 2010 to be placed on Comcast’s basic service and reach over 21 million subscribers. Read More »
For now, at least, the ball’s in Time Warner Cable‘s court. As the company’s carriage stalemate with CBS drags on, TWC said today that will offer its digital subscribers in the CBS blackout area a free preview of the Tennis Channel from August 26 to September 9 as its serves up coverage of the U.S. Open. The channel will offer 240 hours of coverage of the NYC event, including 75 hours live. But CBS has exclusive TV rights to the men’s and women’s semifinals and finals, as well as the mixed doubles final. In a statement CBS said, “The only way to watch CBS’s coverage of the U.S. Open on television is on CBS.” It remains to be seen whether TWC customers will be able to watch those matches.
Related: FCC Chief Says She’ll Act If CBS, TWC Don’t Resolve Dispute
The U.S. Court of Appeals in DC just shot down the FCC’s ruling last year that would have required Comcast to take Tennis Channel off of an extra-fee sports tier so it could compete more equally with the cable giant’s Golf Channel and NBC Sports Network. The FCC said last year that Comcast had used its market power to discriminate against Tennis Channel. But the Appeals Court says that the FCC offered no evidence to refute Comcast’s position that it made a simple financial judgment that few subscribers wanted to watch tennis. When Comcast put the channel on a sports tier “not one customer complained about the change,” the court notes. Indeed the justices say that the FCC had no evidence to demonstrate that broader distribution of Tennis Channel “offered Comcast any commercial benefit.” Comcast says that Tennis Channel agreed to be on a sports tier when it negotiated its carriage agreement in 2005. “Tennis Channel received exactly the carriage it bargained for and agreed to,” says Comcast VP Government Communications Sena Fitzmaurice. Read More »
Comcast has won a reprieve of the FCC’s order for the cable operator to make the Tennis Channel available to more of its subscribers, the LA Times reports. The U.S. Court of Appeals for the D.C. Circuit today granted Comcast a stay of the FCC’s order. Comcast hopes to overturn the FCC ruling and avoid having to make Tennis Channel available to the same number of subscribers as the Golf Channel and NBC Sports Network, which Comcast owns. FCC rules prohibit cable operators who own programming from discriminating against competitors’ programming. The Tennis Channel expressed confidence the court ultimately will agree with the FCC’s decision. Comcast had begun preparing its cable systems to comply with the FCC’s order but now can mark time until the court rules on the cable giant’s appeal.
Related: FCC Sides With Tennis Channel In Discrimination Case Vs Comcast
Comcast filed its petition today, the first step in what is expected to be a lengthy appeals process in a discrimination case, the Los Angeles Times reports. It comes nearly a week after the Federal Communications Commission ruled that Comcast hurt Tennis Channel’s ability to compete by favoring two similar services that the cable company owns: Golf Channel and Versus (now known as the NBC Sports Network). Comcast was ordered to remedy the situation within 45 days. In its filing, Comcast asked the FCC to stay its decision so that the cable company would not be required to increase Tennis Channel circulation while Comcast takes its case to the federal appeals court in Washington, D.C. Comcast asked the FCC to rule on its petition by August 7th.
Related: FCC Sides With Tennis Channel In Discrimination Case Vs Comcast
Regulators were split in the potentially important ruling, but still found that Comcast hurt Tennis Channel’s ability to compete by favoring two similar services that the cable company owns: Golf Channel and Versus (now known as the NBC Sports Network). Comcast says it plans to appeal the FCC order for it to pay a $375,000 fine and within 45 days put Tennis on an equal footing with its sports services. The Comcast-owned channels typically are part of the popular expanded basic package with ESPN and USA Network — but customers who want Tennis must pay an additional $5 or more each month for the Sports Tier that also includes NFL RedZone and ESPN Classic. The FCC agreed with Tennis’ claim that this was a form of discrimination. “Today’s decision underscores that Comcast’s [market] power comes with a concurrent responsibility to see to it that the freedoms of speech and expression of the diverse programmers that serve these communities are not stifled simply because they compete with networks that the sole cable provider in the marketplace happens to own”, Tennis Channel said.
But Comcast/NBCUniversal’s Washington, DC President Kyle McSlarrow says the decision would overturn a carriage deal that Tennis “freely negotiated”. He adds that the channel “does not merit the same carriage as Golf Channel and NBCSports Network” and the ruling would just “drive up programming costs and enrich a group of wealthy investors in the Tennis Channel”. It will argue … Read More »
The recommendation from the FCC’s Enforcement Bureau to the commission itself was part of the intense legal volleying this week in the Tennis Channel’s discrimination case against Comcast. Commission staffers said that they were simply going along with an Administrative Law Judge’s ruling in December: The judge concluded that Comcast had fouled The Tennis Channel by treating it differently than it does rival channels that it owns, the Golf Channel and NBC Sports Network. The Comcast-owned channels typically are part of the popular expanded basic package with ESPN and USA Network — but customers who want Tennis must pay an additional $5 or more each month for the Sports Tier that also includes NFL RedZone and ESPN Classic. The ruling said Comcast should fix things “as soon as practicable.” But Comcast told commissioners that it’s appealing the judge’s decision, which means that ordering immediate compliance would violate its due process rights. The cable company says that ”moving even one channel may require wholesale alterations to Comcast’s channel line-up, as each channel displaces another, giving rise to a kind of domino effect. These changes will be difficult and costly to implement.” Last week Comcast asked the FCC to overrule the Administrative Law Judge entirely. The company says that The Tennis Channel is just trying to get out of a carriage deal it wishes it hadn’t made.
FCC Administrative Law Judge Richard Sippel stood up for the little guy in an initial ruling on Tennis Channel’s discrimination complaint against Comcast. The judge ordered Comcast to pay a $375,000 fine and boost Tennis’ distribution after concluding that the No. 1 cable operator tried to squash competition by treating it differently than it does two similar sports services that Comcast owns: Versus and The Golf Channel. The Comcast-owned channels typically are part of the popular expanded basic package with ESPN and USA Network — but customers who want Tennis must pay an additional $5 or more each month for the Sports Tier that also includes NFL RedZone and ESPN Classic. Others including DirecTV, Dish Network, and Verizon’s FiOS tend to lump Tennis, Versus and Golf together. As a result, Comcast “has depressed the number of Tennis Channel’s subscribers, diminished the amount of its license fees, reduced its ability to procure valuable programming rights, and made it more difficult for Tennis Channel to sell advertising,” Sippel says. His decision, which closely tracks the case that the FCC’s Enforcement Bureau made in July, must be reviewed by the FCC’s commissioners before it take effect.
Comcast’s Sena Fitzmaurice says the company may challenge the ruling at the FCC and possibly the Court of Appeals. She says Comcast has a right “to minimize costs to consumers. … Many other companies with no ownership interest in Tennis Channel have made similar decisions and some refuse to … Read More »