Having exhausted its court appeal options, the Tennis Channel wants the FCC to take another crack at justifying its decision that Comcast descriminated against Tennis channel in favor of its own, co-owned sports networks Golf Channel and NBC Sports Network.
The FCC upheld Tennis Channel's program carriage complaint, but the D.C. Federal Appeals court vacated that decision, saying the facts did not support discrimination, and the Supreme Court declined to review that lower court ruling.
Now, Tennis has petitioned the FCC asking it to assess Comcast's actions against three "tests" the court suggested "may" establish that Comcast discriminated.
Tennis says it is not looking to re-litigate the issue, but it does want the FCC to take another crack at a discrimination finding by applying the court's tests to the evidence and see if Comcast's actions pass muster. Tennis says there is ample evidence they do not.
According to Tennis, those tests are:
First, the Commission could find that Comcast's distribution business could have obtained a 'net benefit' from carrying Tennis Channel more broadly, but that it sacrificed this benefit — a decision that presumably evidences Comcast's real motive as seeking to reap illegitimate advantages for its affiliated and competing programming services.
Second, the Commission could conclude that Comcast's carriage decision was discriminatory if it found that 'incremental losses from carrying Tennis in a broad tier would be the same as or less than the incremental losses Comcast was incurring from carrying Golf and Versus in such tiers.'
Third, the court held that the Commission could rely on a finding that Comcast's 'otherwise valid business consideration is here merely pretextual cover for some deeper discriminatory purpose.'
The court vacated the FCC decision for lack of evidence of discrimination, but Tennis says that under the court's new direction, the FCC could make a new case under the new test and it would stick.
"In light of the D.C. Circuit's decision, Tennis Channel requests that the Commission set a new briefing cycle in this proceeding on the narrow questions of whether the record evidence satisfies any one of the three tests that the D.C. Circuit has now set forth for establishing MVPD discrimination."
Comcast was preparing a response at time of publication.