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FCC Sets Hearing Date for Tennis Complaint Against Comcast

The FCC has set a March 29 date for a hearing on Tennis Channel's program carriage complaint against Comcast. 

Administrative Law Judge Richard Sippel Thursday cancelled a Dec. 14 prehearing conference after both parties presented their own agreed-upon expedited discovery timetable for motions, testimony and depositions leading up to the hearing.

Discovery ends and final depositions are due March 11, with trial briefs and exhibits due March 18.
Sippel also heard carriage complaints against Comcast by the NFL Network and Wealth TV, the first of which was settled and the second Sippelrecommended should be decided in Comcast's favor, though a full commission decision has yet to be rendered.

In his order Thursday accepting the agreed-upon schedule and cancelling the prehearing conference, Sippel said it would a inefficient use of time to meet at a formal conference to review what the parties already know, or to make New York lawyers commute to D.C. for a conference. Comcast has also pointed out that both it and Comcast had participated in a number of previous carriage hearings before Sippel and that essentially Sippel's staff was already well-versed in the relevant law and evidentiary presentations.

The FCC designated the dispute for a hearing lIn September, saying there were "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." But it also gave the parties an option of making one last try through outside mediation, which both agreed to. Mediation didn't work.

Now, the judge will make a finding based on the evidence presented, though the commission has the ultimate decision on the complaint. The FCC 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 said in referring the complaint to the judge, that on the face of it, Tennis Channel has made a case for program carriage discrimination by Comcast. The judge will look at the case de novo, meaning from scratch, and is directed not to take that Media Bureau 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 has long argued that it makes the channel available to nearly every home consistent with its affiliation agreement. "That affiliation agreement was fairly negotiated and agreed upon in 2005, and there is no dispute that it specifically permits us to carry Tennis Channel as part of our Sports Entertainment Package, where we currently offer it to our customers," Comcast said in a statement when the complaint was first designated for hearing. "Far from discriminating against Tennis Channel, we are carrying it in a manner similar to many other distributors and fully honoring the terms of the parties' agreement. We plan to continue carrying the network for our customers and tennis fans."

Tennis filed the complaint in February 2010. It has been trying to get on Comcast's basic tier for some time--Comcast declined to reposition the channel when Tennis proposed it last year, saying it would be "cost-prohibitive." But Comcast's high-profile play for NBC Universal provided an opportunity for Tennis to leverage that attention on the deal to try to get wider carriage.