Sky Angel has asked a Federal Appeals Court to deny C-SPAN's
request that it dismiss the over-the-top provider's antitrust complaint
Saying the public affairs net improperly withdrew its programming
from the program distributor in 2009, Sky
Angel filed the suit last fall.
In its response to C-SPAN's request that the court drop the
suit, Sky Angel said that the court has jurisdiction, that cable operators have
monopoly power over the relevant market and that an antitrust claim is warranted
and antitrust injury demonstrable, which includes "lost profits, lost business
opportunity, loss of the ability to effectively compete and injury to Sky
Angel's prestige and reputation."
Sky Angel has alleged 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.
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
last month 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
C-SPAN, reacting to Tuesday's petition by Sky Angel, said
the filing "makes clear that there is no coherent legal theory underlying
its complaint and no facts to back up any of its illusory claims. We are
confident that its attempt to contort a simple breach of contract claim into a
federal antitrust case will fall flat."