Washington — Tennis Channel took one more swing at Comcast and the Federal Communications Commission, with the unusual result of the regulator defending a court ruling invalidating one of its earlier decisions.
Comcast’s initial challenge was against the FCC’s ruling that Tennis Channel, an independent network, was discriminated against by its placement on a lesser tier than Golf Channel and NBCSN, both owned by Comcast’s NBCUniversal.
If Tennis wins its challenge, the FCC would conceivably have a new test for determining whether an MVPD had discriminated against a programmer — whether there was financial benefit in wider distribution of a competitor’s channel that an MVPD had foregone in an effort to protect its own content.
In oral argument in the U.S. Court of Appeals for the D.C. Circuit last week, the FCC said it had accepted the court’s reversal of its program-carriage discrimination complaint finding against Comcast and had moved on.
The court had accepted Comcast’s argument that it had a business reason for not giving Tennis channel wider distribution: the cost of the subscriber fee versus how attractive it the channel was to its customers.
Tennis argued that the court, in overturning the FCC, had created the new test for discrimination, and that the agency was being arbitrary and capricious for not letting it offer up evidence in a new proceeding. )
