C-SPAN Asks Court to Dismiss Sky Angel Claim

Calls it a prohibited end-run around FCC's program access jurisdiction

By John Eggerton -- Broadcasting & Cable, 1/14/2013 4:24:04 PM

C-SPAN has filed a motion to dismiss an antitrust complaint filed against it in November in a D.C. federal district court by Sky Angel. C-SPAN says the company was off base when it took its claims that the public affairs net improperly withdrew its programming from the distributor in 2009 directly to the district court while the issue was still before the FCC.

"We regard the complaint as merely another chapter in Sky Angel's longstanding dispute with the FCC over whether as a program distributor it can invoke the so-called program access rules to its benefit," said C-SPAN's corporate VP/general counsel Bruce Collins in a statement. "They are attempting to get into federal court by dressing up their program access complaint as an antitrust violation."

C-SPAN asked the court to dismiss the complaint with prejudice (it could not then be re-filed), saying there was case law that clearly prohibited Sky Angel from undertaking what C-SPAN said was "an end run around the FCC's exclusive jurisdiction on program access issues." It says that a party can complain to the FCC, then to an appeals court if it doesn't like the decision. "Nowhere, however, does the statute allow for district court review of these issues" for a party dissatisfied with the pace of an FCC decision.

C-SPAN says the district court thus lacks subject matter jurisdiction over the case.

In 2008, Sky Angel decided to switch from a satellite service to what it describes as a hybrid satellite/Internet delivery service, a move that prompted some programmers to choose not to be carried.

Sky Angel subsequently filed a program access suit against one of those programmers, Discovery. The FCC has yet to resolve the complaint, but has tentatively concluded an over-the-top aggregator does not fall under program access rule protections because it does not also own the distribution facilities that a traditional MVPD does. As an adjunct to that decision, the commission has also asked for comment on the tentative conclusion and how it should treat online video providers going forward when it comes to protections like program carriage and obligations like PEG programming and access obligations.

Sky Angel says that because C-SPAN is owned and operated by the cable industry, it "ceased to act as a legitimate collaboration among competitors" with the withdrawal of programming and instead illegally harmed competition by depriving Sky Angel of content that was highly valued and that all of Sky Angel's competitors had access to.

Sky Angel is seeking damages and mandatory access to C-SPAN for the next decade.