Court Stays FCC's Tennis Channel Decision

Comcast won't have to move network to broader carriage while court hears appeal

By Mike Reynolds and John Eggerton -- Broadcasting & Cable, 8/24/2012 8:49:31 PM

The United States Court of Appeals for the District of Columbia Circuit on Friday granted Comcast's request for a stay of the FCC's decision it had discriminated against Tennis Channel in favor of its owned networks.

The ruling means that the nation's largest distributor will not have to upgrade Tennis Channel on its systems to a position comparable to that of NBC Sports Net and Golf Channel -- both of which are owned by Comcast-controlled NBCUniversal -- during its upcoming appeal. Comcast carries Tennis on a sports tier, while NBC Sports Network and Golf are available on more widely penetrated packages.

Tennis' migration to Comcast Digital Starter and Digital Preferred tiers was set to begin on Sept. 7, failing Comcast gaining a stay, which was handed down Friday afternoon, in the program-carriage complaint. Comcast had begun notifying its customers of the possible change, pending the outcome of its stay petition.

"We are pleased the Court of Appeals has recognized the serious issues raised by the FCC's unprecedented Tennis Channel decision and granted our request to stay the FCC's action, sparing millions of our customers needless disruption", said Comcast spokeswoman Sena Fitzmaurice. "We look forward to presenting our case to the court."

The independent network volleyed off its own statement: "Tennis Channel is disappointed by today's U.S. Court of Appeals stay decision. We believe that the FCC's decision was correct and that the court will agree with the FCC when it considers the full case."

Comcast had sought a stay from the FCC earlier this month, but the commission denied the stay at the bureau level. At the same time, assuming the FCC would likely deny the stay, Comcast asked the court to stay enforcement, calling the FCC action "unjustified, and unconstitutional.

As it did in pitching a stay to the FCC, Comcast told the court it was likely to win on the merits, would be "irreparably harmed" absent a stay, said it would be in the public interest, and argues that the stay will not injure the Tennis Channel.

FCC Commissioners Robert McDowell and Ajit Pai, who had voted against the complaint and had said they would have supported an FCC stay if they had had the chance to vote on it, praised the court.

"As stated in our joint dissent, we believe the decision errs on both the law and the facts, undermines the public interest, and raises serious First Amendment concerns," they said in a joint statement. "We look forward to the federal appeals court giving this matter a full and fair hearing while preventing irreparable harm to the parties."

Tennis filed its initial complaint against Comcast on July 5, 2010, alleging that Comcast had flouted agency rules by discriminating against it on the basis of affiliation. An administrative law judge, an FCC bureau decision and a full commission vote all landed on Tennis' side of the net.

Now, though, the network figures to be engaged in a protracted legal deuce game as Comcast undertakes the appeals process.

The FCC on July 24 upheld an FCC administrative law judge's decision that Comcast had discriminated against Tennis by placing it on a sports tier while giving its similarly situated co-owned sports nets wider coverage. The FCC has told Comcast to equalize its treatment by the beginning of next month, and to pay a fine.

The U.S. Court of Appeal stay play comes days before Tennis begins its expansive coverage of the U.S. Open Tennis Championships in Flushing Meadow, N.Y. on Aug. 27.

Tennis, which counts some 34 million subscribers and will see its roster expand to more than 50 million via a free view during the Open, had expected to see its hard customer count cross that latter threshold with the Comcast upgrade.

In a recent response to Tennis' opposition to the cable company trying to gain the stay, the MSO 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."

Comcast also calls the FCC decision an "unprecedented, distorted" theory of the program carriage rules. As it has maintained from 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, none of which it says either the FCC or the network refuted in their opposition to the stay.