Comcast Calls Tennis Channel Decision 'Nakedly Content-Based Restriction'

Reiterates to court that FCC is micromanaging speech via "unprecedented" and "distorted" ruling

By John Eggerton -- Broadcasting & Cable, 8/21/2012 10:58:27 AM

As expected, Comcast has once again urged the U.S. Court of Appeals for the District of Columbia to issue an emergency stay of the enforcement of the FCC's program carriage complaint decision in the Tennis Channel case.

The FCC required Comcast to give Tennis comparable tier placement to Comcast's co-owned NBC Sports Network and Golf Channel -- it had been carrying Tennis on a sports tier, while those nets are on more widely viewed basic tiers.

In a response Tuesday to Tennis Channel's opposition to that stay, Comcast said the FCC's carriage order "imposes nakedly content-based restrictions on Comcast's speech by compelling Comcast to distribute Tennis Channel more broadly because its speech is "similar" to that of Comcast's affiliated networks."

It also calls the decision an "unprecedented, distorted" theory of the program carriage rules. As it said at the outset, Comcast argues that it will be irreparably harmed by the decision, that it is likely to win on appeal, that the stay is in the public interest, and that the stay will not harm Tennis Channel, none of which it says either the FCC or Tennis refuted in their opposition to the stay.

While the FCC's General Counsel issued a partial stay of the decision for Comcast systems that had not been carrying Tennis at all and had limited capacity to do so, Comcast said that is hardly relief. "The partial stay issued by the FCC's General Counsel does not alter the need for a judicial stay," it argued.

If the court does not grant the full stay, Comcast will have to provide that equivalent carriage starting early next month. It has already begun informing its customers about the possible channel moves.