Tennis Channel took one more swing last week at Comcast and the FCC, leading to the unusual result of the commission defending a court decision invalidating one of its earlier judgments. The FCC was joined in its defense by an unlikely ally, Comcast, which is more often on the other side of the courtroom in D.C.— including on the initial court challenge to the FCC’s Tennis Channel decision.
If Tennis wins its challenge, conceivably the FCC would 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 arguments 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 accepted Comcast’s argument that it had a business reason for not giving Tennis wider distribution—namely, the cost of the subscriber fee vs. how attractive it was to those subs.
Tennis argued that the court, in overturning the FCC, had created the new test for discrimination, and the FCC was arbitrary and capricious for not letting it offer up evidence in a new proceeding.
The FCC said there was no new test, and that Tennis essentially missed out by not offering its own economic analysis the first time around. It will now be up to the court to make that line call.
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