In a July 30 editorial about the FCC’s vote to uphold a Tennis Channel program carriage complaint against Comcast, B&C expressed the opinion that Comcast had made a business-case argument for its carriage of Tennis Channel, and that the FCC should avoid inserting itself into marketplace negotiations. In the piece, ‘B&C’ made the following point: “Cable operators are allowed to discriminate among channels. That is called editorial discretion. If they feel their viewers aren’t interested in a channel, they don’t have to carry it. If they feel that a channel audience serves too small a niche to justify basic carriage, they can group it with other, similarly niche channels and offer it on a tier. You just can’t discriminate for the wrong reasons, which is to favor your vertically integrated co-owned network. But now the FCC has sent the message that even if the carriage you are providing is similar to that of others, the government can step in and take over editorial control of your channel lineups.”
In response to that editorial, Ken Solomon, chairman and CEO of Tennis Channel, sent the following letter to the editor.
As a 25-year reader of B&C, I was taken aback by the magazine’s editorial position last week, after the FCC’s ruling in the Tennis Channel-Comcast discrimination case. It was uncharacteristic for a publication that has championed the widespread creativity and innovation of our industry for decades.
To set the record straight, I’ll start by saying this: Despite what Comcast would have anyone believe, this FCC decision is about free and open marketplaces, accessible to all networks, regardless of whether or not they’re one of the 40 or so that are owned by Comcast. That type of freedom of expression, protected by Congressional law, should be important to everyone, including B&C.
The editorial begins, “Let’s see if we have this right,” and then mimics one of Comcast’s favorite deceptive tactics—everyone else limits Tennis Channel to a sports tier, so how can we be discriminating against them if we do it too?
B&C doesn’t have it right. Comcast has been routinely distorting the entire point of this complaint for years, thus perpetuating their systemic discrimination and repeated abuses of power. Of the top 10 pay-TV providers, only two others currently carry Tennis Channel on narrow tiers. But here’s the secret Comcast doesn’t talk about: It doesn’t matter whether every other provider carries Tennis Channel on a sports tier or in every home they reach. Why? None of them owns Golf Channel and NBC Sports Network, which the FCC ruled directly compete with our independent channel for subscribers, advertisers and programming. Comcast does own them, and seems unwilling to accept this simple, free market-preserving premise.
The FCC also found, not surprisingly, that Comcast doesn’t carry a single one of the five sports networks in which it has ownership on its sports tier alone.
B&C’s column includes this line: “You just can’t discriminate for the wrong reasons, which is to favor your vertically integrated coowned network.” Bingo. When Congress cautiously allowed then-smaller distributors to begin owning channels, it ordered them not to use this privilege to shut down open marketplaces by discriminating against “similarly situated” networks that compete with their own. But Comcast does just that, thus the FCC’s ruling.
And compete with Comcast’s channels we do. The men’s final of this year’s French Open aired on NBC Sports Network and Tennis Channel. Our networks have shared tennis programming in the past, and Comcast continues to bid on valuable tournament rights that we currently own. Golf Channel and Tennis Channel cover similar sports and compete for the same demographics and advertisers across the board. If these two aren’t similarly situated, no two channels are. Think Coke & Pepsi; catsup and mustard, etc. At every turn, the FCC has strongly agreed.
So, when Tennis Channel directly competes with NBC Sports Network or Golf Channel for programming rights, subscribers and/ or advertisers, which channels have a head start—the ones that are part of a mega-media conglomerate that controls 23 million homes, or the small, independent network? The FCC has concluded that Comcast illegally used the muscle of the distribution side of its business to limit our ability to compete with its channels, and ordered Comcast to start treating us equally.
Comcast never played by the rules; they finally got caught, and they continue to throw a multimillion-dollar lobbying temper tantrum.
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