The National Cable and Telecommunications Association said
Wednesday that the commission's decision to uphold Tennis Channel's program
carriage complaint against Comcast takes the commission down a "dangerous
and unnecessary regulatory path."
The FCC concluded that Comcast, NCTA's largest member, had
discriminated against the channel in favor of its owned Golf and NBC Sports Net
channels and ordered the company to provide equal treatment, which means
comparable tiers and compensation, to all those channels.
"For the first time, the full commission has intervened
to rewrite a private, arms-length contract and dictate the terms and conditions
of carriage for a particular programming network," said NCTA in a
"The carriage agreement at issue gave Comcast the right
to carry the Tennis Channel on a separate sports tier to provide its customers
with additional choice of video programming packages. The government has now
abrogated that contract, midterm, by finding that Comcast 'discriminated'
against the Tennis Channel by not carrying it on a more widely purchased tier
that carries two Comcast-affiliated channels that also happen to carry sports
programming," NCTA said.
"Forcing a cable operator not only to carry a particular
program network but to include it in a particular tier or package of channels
directly interferes with the operator's constitutionally protected right to
select and package programming in the manner that, in its editorial discretion,
best meets the interests and demands of its customers. In today's highly
competitive marketplace, it is difficult to see how the government can justify
this content-based trampling on the right of free speech and the freedom of
The FCC said in its ruling, a 3-2 vote on party lines, that
its carriage remedy did affect cable's editorial discretion in how it placed
channels, but did not affect the underlying content, and so was only subject to
intermediate First Amendment scrutiny.
Comcast has pledged to challenge the decision in court.