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Comcast Serves Up Last Tennis Brief

Comcast Tuesday made what it characterized as the last substantive filing in its court battle with Tennis Channel.

That came in a reply brief in its federal appeals court challenge of the FCC's decision that the nation's largest cable operator had discriminated against Tennis in favor of Comcast's own similarly situated co-owned programming networks Versus (now NBC Sports Net) and Golf Channel.

In the brief, filed Tuesday with the U.S. Court of Appeals for the D.C. Circuit, Comcast argues that it did not unreasonably restrain Tennis Channel's ability to compete and did not discriminate on the basis of affiliation. Comcast says the FCC decision violates the First Amendment and Tennis Channel filed its complaint past the statute of limitations so it should be moot.

Comcast told the FCC that by the commission's definition of intentional discrimination, "no carriage decision by a vertically integrated MFPD is safe." The program carriage rules do not prevent discrimination, just discrimination based on favoring ones own, owned content.

Comcast calls the FCC order unprecedented, which it is literally since it is the first program carriage complaint to go to a judgment for the complainaint in the rules' 20-year history. But Comcast says it is also unprecedented in that it "dictates the content of protected speech and rewrites a private contract...[I]t nuffilies statutory requirements in order to insulate government-chosen speakers from competition," the company says flatly.

Oral argument has yet to be scheduled in the case, but Comcast isn't looking for its day in court until sometime next year, at which time Comcast suggests the court should vacate the FCC order.