Comcast has told the FCC it needs to reject Tennis Channel's request March 11 that the commission take another crack at upholding Tennis' program carriage complaint against Comcast.
In a filing with the commission, Comcast called Tennis' request a "transparent invitation" to defy the D.C. Circuit Court decision throwing out the FCC's finding that Comcast discriminated against Tennis Channel in favor of its own, co-owned sports networks Golf Channel and NBC Sports Network.
Tennis says it is not looking to relitigate the issue, but it does want the FCC to take another shot at a discrimination finding by applying three new discrimination tests it says the court suggested "may" establish that Comcast discriminated.
Comcast told the FCC that there are not new tests, that the court made it clear that it was following the law when it overturned the FCC's discrimination finding, and that Tennis Channel was asking the FCC to flout the court's ruling and "pretend the court did not decide whether the record demonstrates discrimination."
Comcast points out that the suggestion that the court did not decide the discrimination question definitively was refuted by the fact that the court did not weigh in on various other Comcast grounds for dismissing the complaint, including that it was time-barred, that there needed to be a showing of market power, and that there were First Amendment implications.
Had the court found that the evidence on discrimination did not resolve the dispute, it would have had to adjudicate those other issues, Comcast says.
"Tennis Channel's claims, in short, boil down to its own disagreement with the D.C. Circuit's ruling," Comcast told the FCC. "That disagreement has no bearing on the Commission's authority or obligations now."
Comcast's advice to the commission is to deny the petition and then do whatever it can to bring the case to an end.
