Both Sides Now

FCC saw both pros and cons of dealing with D.C. federal appeals court with Tennis Channel case against Comcast 3/04/2013 12:01:00 AM Eastern

The FCC saw both the pros and cons of
dealing with the D.C. federal appeals court
last week. Cable operators, however, were
happy with both outcomes.

The commission got hammered by
a three-judge panel over its program
carriage complaint decision in the Tennis
Channel case. But the court showed the
agency a little love on its pole attachment
decision, upholding it against a
challenge from utility companies.

While that was a good news/bad news
scenario for the FCC, it was only good
news for cable operators. A win in the
Tennis Channel case would be a victory for
Comcast, the nation’s top cable operator;
meanwhile, the pole attachment decision
eases their deployment of a new plant.

Between the serious First Amendment
issues with the FCC’s carriage remedy
expressed by Judge Brett Kavanaugh and
the contract issues on which Judge Harry
Edwards focused, the FCC appeared to
have an uphill fight to keep its Tennis Channel
decision from being remanded back.

In a 3-2 party line vote, the FCC last
July upheld a judge’s ruling that Comcast
discriminated against Tennis Channel by
carrying it in a sports tier while carrying its
co-owned Golf Channel and Versus (now
NBC Sports Network) on a more widely
viewed basic tier. Comcast appealed the
decision to the FCC, then the court.

The FCC remedy was to provide
Tennis Channel with the same level of
distribution—whether that be basic or
sports tier, or not carrying it at all—that
it provided its co-owned channels.

Judges Kavanaugh and Edwards were
joined by Judge Stephen Williams on the
panel, but the former two asked most of
the questions. Since judges often play
devil’s advocate, it is hard to predict how
they might come down on this case. However,
given that this is a conservative panel
regarded as tough on the FCC, it may be a
bit easier than usual to forecast.

The FCC argued that cable did not still
have to have bottleneck control of a multichannel
video programming distributor
market for the anti-discrimination provision
of the Cable Act to still hold sway, but that
if the court found that a showing of bottleneck
control was necessary, the court
should give it a chance to prove that.

And the FCC could get its wish. Court
watchers last week were expecting the
judges to vacate the decision and remand
it back to the FCC to demonstrate that
Comcast’s move was anticompetitive.

But it was not all coal and switches
for the commission. The same court
found that the FCC had justified its
decision to revise the pricing of pole
attachments and putting a shot clock on
localities for decisions.


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