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Tennis Channel Asks FCC to Review Carriage Call

Cites New Court 'Tests' For Discrimination 3/11/2014 12:00 AM Eastern

Having exhausted its court appeal options, the Tennis Channel wants the Federal Communications Commission to take another crack at justifying its decision that Comcast discrimated against Tennis channel in favor of its own, co-owned sports networks Golf Channel and NBC Sports Network.

The commission upheld Tennis Channel's program carriage complaint, but the D.C. Federal Appeals court vacated that decision, saying the facts did not support discrimination, and the Supreme Court declined to review that lower court ruling.

"“[E]ven under the Commission’s interpretation of § 616 (the correctness of which we assume for purposes of this decision), the Commission has failed to identify adequate evidence of unlawful discrimination," the court concluded, which would seem to be definitive.

But Tennis has petitioned the FCC asking it to test Comcast's actions against three "tests" the court suggested "may" establish that Comcast discriminated.

Tennis says it is not looking to re-litigate the issue, but it does want the FCC to take another crack at a discrimination finding by applying the court's tests to the evidence and see if Comcast's actions pass muster. Tennis says there is ample evidence they do not.

Those tests are, says Tennis:

"First, the Commission could find that Comcast’s distribution business could have obtained a “net benefit” from carrying Tennis Channel more broadly, but that it sacrificed this benefit — a decision that presumably evidences Comcast’s real motive as seeking to reap illegitimate advantages for its affiliated and competing programming services.

"Second, the Commission could conclude that Comcast’s carriage decision was discriminatory if it found that “incremental losses from carrying Tennis in a broad tier would be the same as or less than the incremental losses Comcast was incurring from carrying Golf and Versus in such tiers.”

"Third, the court held that the Commission could rely on a finding that Comcast’s “otherwise valid business consideration is here merely pretextual cover for some deeper discriminatory purpose."

The court vacated the FCC decision for lack of evidence of discrimination, but Tennis says that under the court's new direction, the commission could make a new case under the new test and it would stick.

"In light of the D.C. Circuit’s decision, Tennis Channel requests that the Commission set a new briefing cycle in this proceeding on the narrow questions of whether the record evidence satisfies any one of the three tests that the D.C. Circuit has now set forth for establishing MVPD discrimination."

Comcast was not buying Tennis' argument that it was not trying to relitigate the issue.

“The Tennis Channel is continuing baseless litigation after a unanimous panel of the DC Circuit Court of Appeals found that no discrimination by Comcast had occurred," said Sena Fitzmaurice, vice president, government communications, for Comcast.

"Since 2005 when Tennis Channel and Comcast negotiated and signed an arm’s length contract, Comcast has carried the channel across the country in exactly the way the contract requires, and have continued to do so throughout the Tennis Channel's wasteful legal maneuvering.

"After years of litigation and scurrilous accusations by the Tennis Channel, the plain and simple fact is that the Court of Appeals unanimously concluded that carrying the Tennis Channel in the manner it demanded would have had 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.