Comcast has filed its opposition to BeIN Sports' request for emergency review of the FCC's dismissal of the beIN's program carriage complaint against the cable operator. Comcast says that review should be denied and the underlying order affirmed. Case closed.
The Media Bureau on July 1 dismissed beIN's second complaint against Comcast, which it said had discriminated against it in favor of its own, owned networks. beIN appealed that decision, alleging the bureau made various errors in process and substance that warranted the new look. It is that review Comcast is saying should be rejected, saying beIN was straining to conjure up defects in the decision that were not there by way of "several fundamental mischaracterizations of the applicable law and factual record."
In its opposition to the appeal, Comcast said the bureau based its decision--that Comcast did not discriminate against the channel on the basis of affiliation or nonaffiliation--on the extensive written record, and that the decision in Comcast's favor was "not even a close call."
"The Bureau properly found, on the merits, that Comcast’s reasons for rejecting beIN’s exorbitant demands for higher fees and broader carriage were legitimate and non-discriminatory – a 'straight up financial decision' about the limited appeal of beIN’s niche networks – and were substantiated with compelling evidence showing significant
cost savings from dropping the beIN networks relative to carrying them on the terms beIN demanded," Comcast told the FCC," according to the document.
The Media Bureau found that beIN had failed to make a case for discrimination against beIN en Español because that channel was not similarly situated with Comcast's Universo, one of the requirements for a carriage violation. The FCC dismissed that charge with prejudice, meaning it could not be refiled.
The bureau did conclude that that beIN Sports did establish a prima facie (on its face) case for discrimination against beIN, which was similarly situated to NBC Sports Networks, the FCC concluded, and was treated differently. But that was not done on the basis of affiliation or non-affiliation, so there was no program carriage violation or violation of the Comcast-NBCU carriage deal conditions.
Back in March 2018, beIN Sports filed its initial complaint, saying the cable operator had violated both the program carriage rules and a nondiscrimination condition in the NBCU purchase agreement, violations it said had occurred before the Jan. 20, 2018, expiration of that deal condition.
Among the errors beIN said the FCC made was not designating the complaint for hearing by the FCC's Administrative Law Judge. But Comcast says the bureau is authorized to decide the issue itself, and beIN even agreed with that assessment before the bureau ruled against it.
BeIN said it was also denied a chance by the court to collect evidence (discovery) that might have undercut Comcast's business defense of the decision, but Comcast said theoretically relevant information was speculative and irrelevant. "Nothing in the program carriage rules requires that a defendant be subject to discovery, let alone when the record is as clear as it is here," Comcast told the FCC.
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