The FCC has designated Tennis Channel's program
access complaint for a hearing before an Administrative Law Judge (ALJ), saying
that there are "substantial and material question of fact as to whether
Comcast has engaged in conduct that violates the program carriage provisions of
the ACT and the Commission's rules."
The FCC has not answered those questions, but it
wants a judge to help it do so.
That judge will make a finding based on the evidence
presented, though the commission has the ultimate decision on the complaint. It
made clear that beyond a finding that, contrary to Comcast assertions, the
statute of limitations on the complaint had not run out, the jury is still out
on the merits of the case.
But the FCC's Media Bureau has concluded that, on
the face of it, Tennis Channel has made a case for program carriage
discrimination by Comcast against it. The judge will look at the case de novo,
meaning from scratch, and not take that FCC determination into account.
Tennis Channel argues that Comcast is favoring its
own similarly situated networks Versus and Golf Channel by placing them on more
widely viewed tiers.
The complaint stems from Comcast's decision to
keep the Tennis Channel on a premium sports tier rather than a more broadly
distributed programming tier.
Comcast responded quickly to the news, which comes
as its joint venture with NBCU is being vetted at the FCC, including on
carriage and program access issues.
"We look forward to refuting this groundless complaint in a full
evidentiary hearing before an Administrative Law Judge at the FCC," said
Comcast spokeswoman Sena Fitzmaurice. "Comcast currently makes the
Tennis Channel available to nearly every home we serve. Our contract with
Tennis Channel, which the network freely negotiated and signed in 2005,
specifically permits us to carry Tennis Channel as part of our Sports
Entertainment Package, where we - like many other distributors - currently
offer it to our customers. Far from discriminating against Tennis Channel, we
are fully honoring the terms of our agreement with Tennis Channel and plan to
continue carrying the network for our customers and tennis fans."
"We are gratified that the Bureau has found that, on every substantive allegation, we have made a prima facie showing of Comcast's discrimination - that there is a significant factual basis for concluding that it has violated the Communications Act and FCC Rules and caused significant harm to Tennis Channel," the company said in a statement. "We look forward to presenting our full case, and we are confident that when the matter is finally resolved, Comcast will have been found definitively to have illegally discriminated against Tennis Channel and in favor of its owned sports services. We look forward to a speedy resolution of this matter."
The FCC gave both sides the option of having the carriage dispute
arbitrated by an outside party. They have until Oct. 15 to make that call. If
either one declines, which appears already to be the case--"we expect to
go to a hearing before the ALJ," said Fitzmaurice--the FCC hearing has
been designated for an Oct. 18 start.
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