Sky Angel has filed an antitrust suit against C-SPAN, saying
the public affairs net improperly withdrew its programming from the program
distributor in 2009.
Sky Angel says 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
"Competitors can act in concert if they have a
legitimate reason," said Sky Angel attorney Jonathan Rubin, "but,
agreeing to withhold programming in order to stifle a new entrant into the
marketplace is not a legitimate reason."
The suit alleges that the C-SPAN board, comprising MSO execs
from top cable companies "authorized C-SPAN to withhold its programming
from Sky Angel, hijacked the public service mission of C-SPAN's legitimate
competitor collaboration and repurposed C-SPAN as an instrument to boycott,
exclude, injure and destroy Sky Angel."
Sky Angel is seeking damages and mandatory access to C-SPAN
for the next decade. C-SPAN spokespeople said they would have no comment until
they saw the suit.