Washington

Tennis Appeals Comcast Decision to Supremes

Says D.C. circuit ignores congressional intent 12/04/2013 10:45:00 AM Eastern

The Tennis Channel has taken its carriage complaint against Comcast to the Supreme Court.

“We are seeking Supreme Court review of the D.C. Circuit’s decision in our case because the lower court strayed from longstanding federal discrimination law to invent an arbitrary and unfair standard for deciding cable carriage complaints," Tennis Channel said in a statement. "The ruling ignores Congress’ intent to ensure a diverse, competitive media marketplace and eviscerates the FCC’s congressionally assigned responsibility to regulate program network competition in the public interest.

"“In doing so, the lower court reversed two-and-a-half years of repeated conclusions by the FCC’s Media Bureau, Enforcement Bureau, the Administrative Law Judge – who noted Comcast’s ‘serious violations of law in this case’ – and the Commission itself.  Ultimately Congress expressly charged the FCC with the responsibility to establish procedures and decide carriage discrimination complaints.  The court’s decision not only failed to recognize where that responsibility lies, but also rewrote a vital portion of Congress’ 1992 Cable Act and federal discrimination law.”

In its petition, Tennis said that the D.C. Circuit had gone beyond the FCC decision that discrimination can be established where "similarly situated parties are treated differently, and the defendant is unable to articulate a legitimate justification for this unequal treatment," adding a requirement of its own: "The complainant must show that the defendant would have profited by granting it equal treatment."

Tennis wants the Supremes to answer the question of whether proof is required that an MVPD sacrificed distribution profits as a "necessary element of a discrimination claim," notwithstanding a finding that it "treats similarly situated networks differently in order to favor its affiliated networks."

Last May, a three-judge panel of the U.S. Court of Appeals for the District of Columbia has unanimously ruled that Comcast did not violate the FCC's program carriage rules, as the commission had concluded in upholding the Tennis Channel complaint.

In September, the court declined Tennis Channel's request for en banc (full court) review of that decision, triggering the decision to seek Supreme Court Review.

“The D.C. Circuit Court of Appeals has spoken emphatically and unanimously that Comcast did not discriminate against the Tennis Channel.  We are confident that this ruling will continue to be upheld,” Comcast said in a statement.

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