The third time was no charm for beIN Sports. The FCC has dismissed its latest program carriage complaint against Comcast, and with prejudice, which means it can't be re-filed. BeIN had tried to add an extra allegation to its previous complaint.
BeIN Sports has been off Comcast/Xfinity since July 31, 2018.
Comcast had asked the FCC to strike that extra allegation, and the FCC concluded that the beIN filing was off base.
It was beIN's third program carriage complaint against Comcast and the FCC said this latest one failed on procedural grounds. The FCC rejected beIN's first complaint, but the second complaint has yet to be resolved.
"Specifically, beIN Sports submitted an additional pleading absent a request from the Media Bureau (Bureau) and failed to satisfy its obligation to present 'extraordinary circumstances' that could permit our acceptance of this otherwise prohibited pleading," the FCC's Media Bureau said in dismissing the latest volley.
"While we are disappointed with the finding of the Commission concerning the dismissal of our refusal to deal claim, we are reviewing our procedural options," beIN said in a statement. "Our separate complaint about Comcast’s discrimination against us remains pending. We look forward to completing briefing on this claim and to the FCC’s eventual decision on the merits. It remains our strong preference that Comcast listen to customers and engage in meaningful discussions concerning the restoration of beIN SPORTS programming to its cable platform.”
Back in March, beIN Sports filed its initial complaint, saying the cable operator had violated both the program carriage rules and a nondiscrimination condition in its NBCU purchase agreement, violations it said had occurred before the Jan. 20, 2018, expiration of that deal condition.
BeIN alleged Comcast had discriminated against it in the terms and conditions for carriage of beIN and beIN en Español. The FCC dismissed that complaint without prejudice, saying it had failed to make its case. But that also meant it could be filed again with additional evidence.
BeIN filed its second complaint Dec. 13, 2018, with added information it said addressed deficiencies the Media Bureau identified with the March 15 complaint.
But then it filed a third complaint Feb. 5 with an added allegation of unreasonably refusing to deal, specifically that it refused to deal with beIN Sports in October and November 2018.
It is that allegation that is now off the table with the dismissal of the third complaint.
BeIN sees the issue this way:
“We have spent many months tirelessly trying to negotiate reasonable terms with Comcast, but Comcast has now, point-blank, refused to negotiate with us,” said beIN Sports deputy managing director for U.S. and Canada Antonio Briceño in December. “Thus, beIN Sports has refiled our carriage complaint against Comcast, providing additional evidence, consistent with FCC guidance, to substantiate Comcast’s discriminatory practices against beIN Sports and in favor of their NBC affiliates. Unfortunately, this is a continued strategy of leveraging large, vertically integrated cable carriers against smaller networks like ours to the detriment of devoted, loyal fans.”
Comcast sees it differently:
“Our practices and decisions with respect to beIN’s programming are justified by clear data and marketplace facts," said Comcast in a statement, also back in December when the complaint was re-filed. "We will once again demonstrate this in our response to the FCC and are confident beIN’s recycled complaint will fare no better a second time around since we are fully compliant with the FCC’s rules. This is just another attempt by beIN to use the regulatory process improperly to try to extract non-market carriage terms from Comcast."
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.