Editorial: Double Fault

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Let’s see if we have this right. Comcast gave the Tennis Channel the same treatment as other major distributors did, which is to say the operator put the network in a sports tier, where tennis fans who wanted 24 hours of serving and volleying could buy it and those who didn’t, didn’t have to.

Sounds like that vaunted notion of “choice” government officials are always talking about, and one less additional programming cost to spread over basic cable subscribers. And we know how Washington is always talking about not making people pay for programming they aren’t watching.

But last week, the FCC concluded that Comcast was discriminating against Tennis Channel in favor of its own networks Golf Channel and Versus (now NBC Sports Net) by providing similar distribution. By that reasoning, all the other major cable ops were also discriminating in favor of Golf and Versus, which they also placed in a more widely viewed tier.

Cable operators are allowed to discriminate among channels. That is called editorial discretion. If they feel their viewers aren’t interested in a channel, they don’t have to carry it. If they feel that a channel audience serves too small a niche to justify basic carriage, they can group it with other, similarly niche channels and offer it on a tier. You just can’t discriminate for the wrong reasons, which is to favor your vertically integrated co-owned network.

Now, however, the FCC appears to have sent the message that even if the carriage you are providing is similar to that of others, the government can step in and take over editorial control of your channel lineups.

Comcast will now have to put Tennis Channel in the basic tier, where it could raise the cable bills of subscribers, who will in turn complain to Washington, which will complain yet again about the high cost of cable bills and opine that cable operators are not doing anything about it while continuing to charge for bundles of channels, some of which few people want to watch. Are we all following Alice down this rabbit hole?

Of course, Comcast could choose not to carry Tennis at all, or keep it on the sports tier, so long as it dumped or moved its own Golf Channel and NBC Sports Network. The administrative law judge’s ruling was that there be equal treatment. But given all that Olympics coverage on NBC Sports Net, Washington would be complaining about viewers being denied access to must-have sports programming.

This decision was the FCC’s first commission-level vote to uphold a program carriage complaint. It had decided to raise the issue to that rarefied air given the precedential value. Some precedent. Commission Republicans, who were outvoted in the party-line decision, summed it up: “In order to shield themselves from discrimination complaints, Comcast and other MVPDs will be more likely to carry networks they do not want, on tiers with broader penetration, and at higher prices than ever before—at least if they are foolish enough to be willing to invest in content creation. And the Commission should not kid itself. These additional programming costs will come out of the pockets of consumers, not from MVPDs’ bottom lines.” Higher cable bills, anyone?

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