Comcast: Enforcement Bureau Remedy In Tennis Channel Complaint Was Improper, Unconstitutional

Argue that mandating carriage would be a violation of the First Amendment

By John Eggerton -- Broadcasting & Cable, 7/11/2011 7:23:36 PM

Comcast plans to tell an FCC administrative law judge Tuesday that the Enforcement Bureau's recommendation that he find Comcast in violation of program carriage rules is wrong that that its ecommendation of mandated Tennis channel carriage on a wider tier is improper, unsubstantiated, and illegal.

That is according to an outline of the oral arguments the nations' top cable operator plans to make Tuesday when it goes before the judge. Both Comcast and Tennis Channel are scheduled to argue their respective recommended decisions, which in Comcast's case will now include what it thinks the FCC bureau got wrong in its recommendation Friday.

Comcast lawyers plan to argue that the bureau's recommendation is "improper legislative action [meaning the FCC is straying into Congress' territory] not based on the record evidence." They also plan to argue that mandating carriage would be a violation of the First Amendment.

Additional points will be that Tennis Channel's witnesses were not credible, that the FCC's rules require only nondiscrimination, not equality of treatment, that there is no basis for the judge to reject Comcast witness testimony establishing that there were reasons beyond discrimination not to give Tennis the carriage it sought, that Tennis did not establish that Comcast had unreasonably restrained its ability to compete fairly given the alternative carriers available.

The Enforcement Bureau recommended that the judge find in favor of Tennis Channel, require carriage on a more widely viewed tier than the sports tier where it currently resides on Comcast, and levy the maximum fine against Comcast.