The
FCC's Enforcement Bureau says the commission should deny Comcast's request for a stay of the initial decision by an
administrative law judge that its tier placement of the Tennis Channel violated
the commission's program carriage rules.
Comcast
had claimed that enforcement would violate its constitutional rights andconfuse and frustrate viewers if Comcast had to immediately alter its lineup,
according to the FCC.
The
bureau said there was no merit to either claim. "The public interest
would be served by providing broad public access to additional cable
programming where, as here, there has been a sufficient showing of
discrimination. Comcast was afforded its due process by participating in
a full and fair adjudicatory proceeding, and it is now the public's turn to get
that to which it is entitled," the bureau said. "A stay of the
[Initial Decision] would serve only Comcast's pecuniary interests."
"Despite
being ordered to treat Tennis Channel the same as its own similarly situated
Golf Channel and NBC Sports Network (Versus), Comcast's filings and its
continuing discrimination demonstrate that it's not challenging whether or not
it violated Section 616; it's challenging the statute itself and the
Commission's authority to enforce it," said Tennis Channel in a statement. "Whether or not it wants to see the
rules changed is irrelevant to the end result of the hearing. Tennis Channel
won, and Comcast must abide by the FCC regulations in place today."
Judge Richard Sippel, in rendering the decision that Comcast
had discriminated against Tennis Channel in favor of Versus and Golf channel
(in which it has a financial interest), said that it was not a mandate of any
particular level of distribution. He said that meant that Comcast could carry
Tennis on any tier, or even not carry it at all, so long as it did the same
with Versus and Golf. "The remedy imposed in this order does not, as
Comcast Cable erroneously contends, infringe upon Comcast Cable's editorial
discretion by 'forcing broader carriage' of Tennis Channel," Sippel said
in the decision.
With
the recommended denial of the stay, Comcast must now look for a decision from the FCC
Commissioners on its appeal of the initial decision. The company has made it
clear it thinks the FCC judge was way off base.
As
it made clear last December when the ALJ decision was announced, Comcast is
ready for a fight.
"Comcast
has the contractual right to distribute Tennis Channel as it does currently,
and Comcast firmly believes that the exercise of that right to minimize costs
to consumers is not discrimination," it said. Many other companies with no
ownership interest in Tennis Channel have made similar decisions and some
refuse to carry Tennis Channel at all. Moreover, this decision purports to
supersede an existing contract between two private parties, which is
unprecedented in the program carriage context. The ruling is only an initial
decision, and is subject to further review by the full Commission and then, if
needed, the U.S. Court of Appeals.
The
FCC made some changes to its program carriage rules back in August to speed
complaints and appeals, but those did not apply to complaints, like Tennis
Channels, already in the pipeline.
