US pay-television broadcaster the Tennis Channel has pledged to maintain its long-running carriage dispute with pay-television provider Comcast despite US media regulator the Federal Communications Commission denying its request to again look at the case.
Tennis Channel petitioned the FCC in March 2014 after the Supreme Court in February rejected its complaint against Comcast’s decision to carry the network on a premium sports tier. Tennis Channel in December 2013 called on the Supreme Court to review a ruling from a lower court that reiterated Comcast’s right to carry the network on a premium sports tier.
In May 2013, a three-judge panel of the Washington DC Circuit overturned rulings from the FCC that Comcast should put Tennis Channel on an equal footing with Comcast-owned pay-television channels Golf Channel and NBC Sports Network.
The regulator concluded that Comcast was in violation of programme carriage provisions of the 1992 Cable Act, but the appellate judges said that the FCC “failed to identify adequate evidence of unlawful discrimination.”
In its latest complaint, Tennis Channel argued that the D.C. Circuit Court of Appeals was imposing a different “test” than the FCC did in deciding whether Comcast violated program carriage rules. Tennis Channel claimed that the appellate court had sought evidence that broader distribution of Tennis Channel would benefit Comcast, enhancing the notion that Comcast’s placement of Tennis Channel on upper tiers is motivated by favouritism for channels it owns.
However, in its new ruling the FCC said: “We reject Tennis Channel’s assertion that the Commission must order additional briefing on the question whether the existing record satisfies purported 'new tests' established by the court for unlawful program-carriage discrimination, and deny Tennis Channel’s complaint.
“To the extent the Commission has discretion to reopen the proceeding, we conclude that the interest in bringing the proceeding to a close outweighs any interest in allowing Tennis Channel a second opportunity to prosecute its program-carriage complaint. In this regard, we note that Tennis Channel has had a full and fair opportunity to litigate its complaint. Moreover, we disagree with Tennis Channel’s contention that the Commission is statutorily required to permit further briefing and submission of additional evidence.”
Responding to the verdict, Tennis Channel said: “We respectfully disagree with the FCC’s decision. Two-and-half years ago the FCC found that Comcast had blatantly violated Section 616 of the Communications Act in its carriage of our network vis-à-vis its own competing Golf Channel and NBC Sports Network. Just as Comcast explored all options following its disagreement with that Order, we fully intend to do the same now.”