A federal appeals court has denied Tennis Channel's petition to review the FCC's decision that Comcast did not favor its own content over Tennis Channel, saying the FCC adequately justified its decision not to reopen the matter.
Comcast’s initial challenge was against the FCC’s ruling that Tennis Channel, an independent network, was discriminated against by its placement on a lesser tier than Golf Channel and NBCSN, both owned by Comcast’s NBCUniversal.
While FCC had initially ruled for Tennis Channel, after Comcast challenged that decision, the same court, the U.S. Court of Appeals for the D.C. Circuit, had remanded that decision back to the commission, concluding that the FCC had failed to identify sufficient evidence of illegal discrimination.
The FCC then found in favor of Comcast and declined Tennis Channel's petition to hold further proceedings to provide the sufficient evidence the court had said was lacking.
Tennis then challenged that latest FCC decision in the court, which has now declined to review it.
In the FCC's initial decision in Tennis Channel, it concluded Comcast had discriminated against Tennis in favor of its own content, but on Comcast's appeal the court concluded that Comcast had demonstrated a clear business reason—that interest in the channel did not justify the price in sub fees—for doing what it did, a reason which was not sufficiently refuted by Tennis Channel.
Tennis had said in oral argument last April that the FCC was obliged to reexamine the record on remand and had it done so would have found the missing evidence of discrimination, particularly regarding Comcast's assertion that there was a legitimate business interest in its carriage decision. So, Tennis argued, the decision not to reopen the record was arbitrary and capricious. Tennis also argued that the FCC had created a new test for discrimination, which also warranted reopening the record.
Related: Court Rematch for Tennis Channel
But the three-judge panel of the court, which handed down the decision this week, found the FCC had indeed adequately supported its decision to deny the complaint. It said the FCC's view that the record lacked evidence on which it could find discrimination was consistent with administrative law principles and thus not arbitrary and capricious in violation of the Administrative Procedure Act.
In its initial (Tennis I) decision, the court had the option of remanding the case back for further review of the record, the panel said, but the court did not do so. "Under the circumstances, the Commission correctly concluded that Tennis I left no room for it to find discrimination on the existing administrative record."
The panel pointed out that there was a high bar for overturning the FCC's decision to deny further proceedings, saying overturning it requires "a showing of the clearest abuse of discretion" and that Tennis channel failed to make such a showing.
The court said the FCC's explanation for not allowing new briefings or evidence—that the interest in closing the proceeding outweighed giving Tennis a second bite at the program carriage complaint apple—was sufficient.
The judges rendering the decision were Judith Rogers, Cornelia Pillard and Janice Rogers Brown.
