The U.S. Court of Appeals has declined en banc review of the Tennis Channel decision, according to Comcast.
In July, Tennis Channel filed a petition for full court (en banc) review of a three-judge panel decision from the court on May 28 saying that Comcast did not violate the FCC's program carriage rules by keeping Tennis on a sports tier rather than give it the wider distribution Tennis had sought.
In writing for the majority, Judge Stephen Williams said in May that the commission "has nothing to refute Comcast's contention that its rejection of Tennis' proposal was simply a straight-up financial analysis." In essence, the court was agreeing with Comcast that Tennis had not shown how its proposal of wider carriage provided any business benefit to the cable operator that it would be forgoing to favor its own co-owned networks. The full court chose not to review that decision, said Comcast Wednesday.
"The D.C. Circuit Court of Appeals found 3-0 that Comcast did not discriminate against the Tennis Channel. We are gratified the full court agreed with the panel's decision," said Sena Fitzmaurice, VP of government communications at Comcast Corporation.
Cable operators are allowed to discriminate in carriage so long as it is not for anticompetitive reasons.
Tennis Channel said it was not done challenging the decision.
"The U.S. Circuit Court decision today effectively strips the FCC of the ability to perform the role Congress requires," the channel said in a statement. "Tennis Channel takes very seriously Congress' goal of a fair, open marketplace where diverse, independent voices are afforded the opportunity to compete on a level playing field based on their own merit. Many in the industry have recognized that if Comcast owned Tennis Channel instead of Golf Channel, the tables would be turned. We are disappointed with this result and intend to pursue further review."
