Discovery and Sky Angel continue to spar over the
latter's program access complaint over Discovery's decision to exit its programming contract with the distributor.
The most recent volley came from Sky Angel Friday.
In a letter to the FCC, the company said Discovery has mischaracterized
the FCC's decision to deny a temporary standstill request to keep Discovery
content on the IP-delivered programmer's lineup.
Sky Angel says neither the FCC nor its Media
Bureau have ruled on the merits of its program access complaint, including
whether Sky Angel qualifies as an MVPD subject to the program access
Discovery said in its Dec. 3 letter to the FCC
that Discovery has already demonstrated that Sky Angel is not an MVPD.
Quoting from the FCC's denial of the standstill,
Discovery said that Sky Angel "has not carried its burden of demonstrating that
it is likely to succeed in showing on the merits that it is an MVPD"
entitled to program access relief.
Sky Angel had argued that because Discovery
carries Dish, which now offers subs online access to its programming, was
discriminatory. Discovery said that there was no question that Dish was an
MVPD, so the fact that it had decided not to license its programming--citing
concerns over how it was delivered, says Sky Angel--was not discriminatory.
"While Dish now apparently offers its
subscribers hardware and software that enables remote access to their Dish
service, this officer does not somehow convert Sky Angel into an
MVPD." Discovery argues that Sky Angel does not deliver
"channels" as it is defined by law in the Cable Act.
In its letter Friday, Sky Angel disputed that, saying Congress created
an intentionally broad definition. "Congress used 'multiple channels' to
mean multiple programming networks, certainly not multiple portions
of electromagnetic frequency spectrum used in a cable system."