The FCC's Enforcement Bureau has advised the commission that Comcast should be required to comply immediately with the FCC's Administrative Law Judge's decision that Comcast has discriminated against Tennis and has to give it equivalent carriage to Golf and NBC Sports Net.
In a decision dated Jan. 25, the bureau said it believed that judge's initial decision had become effective upon its release.
Tennis had asked for the ruling, saying Comcast should not be able to put off that carriage while it exhausted its appeals of the decision.
The bureau agreed that the specified carriage should begin immediately since the order does not require Comcast to delete any programming.
While the ALJ order included a footnote that said the judge's ruling should be deferred upon the filing of exceptions to it, which Comcast did in abundance, the Enforcement Bureau said that the general rule about when initial FCC decisions become effective is trumped by the more specific rule about when program carriage initial decisions become effective, saying the footnote should be disregarded.
Apparently, the full commission still needs to act since the bureau said Comcast "should" be ordered to comply "forthwith," not that it had been ordered to do so. An FCC spokesperson was not immediately available for comment.
"Tennis Channel's position prevailed at the hearing, and the rules are clear that Comcast now has to give us the same carriage that it gives to its own Golf Channel and NBC Sports Network," said Tennis Channel in a statement. Now, the Enforcement Bureau has confirmed that the ALJ's decision is already effective and recommended that the Commission order Comcast to come into compliance immediately."
The decision came the same day the FCC asked the full commission to stay enforcement if it decides the Enforcement Bureau is correct and grants the petition, saying the initial decision imposes an "unprecedented burden" on the cable operator.
Comcast says it is likely to win its appeal on the merits, that the initial decision misapplies and misinterprets the law, and violates the First Amendment without even acknowledging that those rights were implicated by the decision.
Comcast has argued in its challenge of the decision that the Tennis Channel was trying to rewrite its contract under the guise of a discrimination claim. And while the judge saw it differently, in officially taking exception – make that exceptions – to that ruling, Comcast said there were fundamental errors including: 1) the program carriage rule targets "intentional efforts to deprive programmers of the ability to compete; it does not shield programmers from all market forces"; 2) the decision "flies in the face" of Congress' instruction to the FCC to "rely on the marketplace to the maximum extent feasible" when implementing the statute; and 3) tramples the First Amendment in the process by subsuming Comcast's editorial discretion.
Comcast says that the judge's remedy of giving the channel the same placement it does Versus (now NBC Sports) and Golf Channel is an "unjustified a remedy that is both foreclosed by the First Amendment and unnecessary" to redress Tennis Channel's purported injury. Comcast argues that the remedy is giving Tennis Channel the ability to reach a larger audience, not specific channel placement.
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